Wilander v. McDermott Intern., Inc.

Citation887 F.2d 88
Decision Date30 October 1989
Docket NumberNo. 88-4678,88-4678
Parties, 28 Fed. R. Evid. Serv. 1353 Jon C. WILANDER, Plaintiff-Appellee, Cross-Appellant, v. McDERMOTT INTERNATIONAL, INC., Defendant-Appellant, Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

James B. Doyle, Edmund E. Woodley, Woodley, Williams, Fenet, Palmer, Doyle & Norman, Lake Charles, La., for defendant-appellant cross-appellee.

J.B. Jones, Jr., Jennifer J. Bercier, Jones, Jones & Alexander, Cameron, La., for plaintiff-appellee cross-appellant.

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

Before GEE, GARZA and JONES, Circuit Judges.

GEE, Circuit Judge:

The plaintiff in this action was employed by the defendant, McDermott International, Inc., as a "paint foreman" working in the Middle East. The plaintiff was injured when a plug exploded from a pressurized pipe on board a fixed offshore platform on which he was working.

The plaintiff filed suit against the defendant in the Federal District Court for the Western District of Louisiana, alleging that he was a seaman within the coverage of the Jones Act and seeking punitive damages. The defendant filed a motion for summary judgment on the issue of the plaintiff's status as a seaman and on his entitlement to punitive damages. The plaintiff filed a motion in opposition to the defendant's motion and filed two supporting affidavits. In the second affidavit the plaintiff stated that during his employment with the defendant he spent approximately 70% of his working time aboard some vessel. The district court denied the defendant's motion for summary judgment on the issue of the plaintiff's status as a seaman, but granted the motion on the issue of punitive damages. The district court then determined that the seaman's status issue would be tried to the jury first, followed by a later trial on liability and damages if necessary.

Following the first part of the trial the jury found that the plaintiff had status as a seaman because he was substantially connected to 1) the DB-9, a Panamanian vessel owned by the defendant; 2) the GATES TIDE, an American vessel chartered to the defendant; 3) the fixed platform upon which he was injured, and 4) a group of vessels called the "TIDEX" fleet. The jury further found that the plaintiff contributed to the function of the DB-9 and the GATES TIDE. The defendant moved for judgment n.o.v., and the court denied this motion. The case proceeded to trial before the same jury on the issues of liability and damages. The jury awarded the plaintiff $450,000, including $400,000 for lost past and future earnings. This amount was reduced by 25% for the plaintiff's contributory negligence. The defendant appealed this judgment, and the plaintiff cross-appealed.

The defendant contends that the district court should have granted the defendant's motion for summary judgment on the issue of the plaintiff's status as a seaman rather than submitting that issue to the jury. In Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1073 (5th Cir.1986 en banc) we held that a worker qualifies for seaman status under the Jones Act if "the employee ... [is] assigned permanently to a vessel or perform[s] a substantial part of his work on the vessel."

We have stated "that the status determination ... [is], like any other factual determination, generally to be entrusted to the jury:

[The terms "seaman," "vessel," and "member of a crew"] 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. Even where the facts are largely undisputed the question at issue is not solely a question of law when, because of conflicting inferences that may lead to different conclusions among reasonable men, a trial judge cannot state an unvarying rule of law that fits the facts.

Id. at 1072-1073 (citations omitted). "Our cases also make it clear ... [however] that status may be determined by summary judgment in the appropriate situation. Thus ... 'where the facts establish beyond question as a matter of law [the lack of seaman status] ... a court ... may, in the proper case, hold that there is no reasonable evidentiary basis to support a jury's finding that the injured person is a seaman ... under the Jones Act.' " Id. at 1074 (emphasis in original) [citations omitted].

In Offshore Company v. Robison, 266 F.2d 769 (5th Cir.1959) we held:

[T]here is an evidentiary basis for a Jones Act case to go to the jury: (1) if 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.

Id. at 779.

In adopting the second prong of this test, we rejected a stricter proposed test, one which would have limited seaman status to those persons on board a vessel who aid in navigation. Id. at 780. Thus, under the Robison test, the plaintiff qualifies for seaman status if he is permanently assigned to a vessel or performed a substantial part of his work on the vessel and the duties he performed contributed to the function of the vessel.

In this case the evidence established that the plaintiff performed a substantial part of his work, directing the sandblasting and painting of fixed platforms, from the GATES TIDE. Further, the GATES TIDE functioned as a paint boat. Consequently, the plaintiff's duties contributed to the function of the vessel. There was, therefore, sufficient evidence under the Robison test to support the jury's finding that the plaintiff had status as a seaman.

The defendant urges us to reject the Robison test and adopt the more stringent standard set forth by the Seventh Circuit in Johnson v. John F. Beasley Construction Co., 742 F.2d 1054 (7th Cir.1984). In Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986 en banc) we were offered a similar opportunity to reject the Robison test and adopt the Johnson test. Under the Johnson test, seaman status is conferred only on employees who "perform significant navigational functions or further the 'transportation function' of the vessel," and under this test it is evident that Wilander would not qualify. 1 Barrett at 1073. In declining to adopt this test we noted that "later Supreme Court cases require such a broad definition of 'aid to navigation' that the test proposed ... is entirely inconsistent with them." Id. at 1073. Two justices of the Supreme Court recognize that a conflict exists between our test and that used in the Seventh Circuit. See Lormand v. Aries Marine Corporation, et al., 484 U.S. 1031, 108 S.Ct. 739, 98 L.Ed.2d 774 (1988) dissent by Justice White, denial of certiorari. The Supreme Court has not, however, held that our Circuit's test is...

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  • Dermott International, Inc v. Wilander
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    ...perform transportation-related functions on board the vessel—is a question of law that must be answered in the negative. Pp. 817-818. 887 F.2d 88 (CA5 1989), O'CONNOR, J., delivered the opinion for a unanimous Court. James B. Doyle, Lake Charles, La., for petitioner. Jennifer J. Bercier, Ca......
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