Young v. T.T. Barge Services Mile 237, LLC, No. 2:2017cv00225 - Document 47 (E.D. La. 2017)

Court Description: ORDER AND REASONS regarding 24 and 27 Motions for Partial Summary Judgment. Defendant's motion for summary judgment is GRANTED. Plaintiff's motion for partial summary judgment is DENIED. Plaintiff's complaint is DISMISSED for reasons herein. Signed by Judge Sarah S. Vance on 12/5/2017. (cg)
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Young v. T.T. Barge Services Mile 237, LLC Doc. 47 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARCUS YOUNG CIVIL ACTION VERSUS NO. 17-225 T. T. BARGE SERVICES MILE 237, LLC SECTION “R” (3) ORD ER AN D REASON S Before the Court are cross-m otions for sum m ary judgment on the issue of whether plaintiff qualifies as a J ones Act seaman. 1 For the following reasons, the Court finds that plaintiff is not a seam an, denies plaintiff’s m otion for partial sum m ary judgm ent, and grants defendant’s m otion for sum m ary judgment. I. BACKGROU N D This case arises out of an accident aboard a barge owned by Defendant T.T. Barge Services Mile 237, LLC. 2 Defendant operates a business that cleans barges owned by various other com panies. 3 Defendant’s custom ers 1 2 3 R. Doc. 24; R. Doc. 27. R. Doc. 1. R. Doc. 27-9 at 1 ¶ 1; R. Doc. 29-1 at 1 ¶ 1. Dockets.Justia.com dock their barges at a set of floating work barges owned by defendant. 4 Defendant’s work barges are connected to shore through a perm anently installed walkway, steel cables, electric lines, hoses, vapor lines, and steam lines. 5 Plaintiff Marcus Young was em ployed by defendant as a barge cleaner. 6 He stored equipm ent and perform ed other work on the work barges, but lived on land and com m uted to work every day by car. 7 On J une 15, 20 16, plaintiff fell into an open hatch on one of defendant’s work barges, the Gas Free Barge, and allegedly suffered injuries. 8 On J anuary 9, 20 17, plaintiff filed a seam an’s com plaint for dam ages against defendant. 9 Plaintiff now m oves for partial sum m ary judgment, and asks the Court to find that he is a seaman entitled to bring a negligence claim under the J ones Act and claim s for unseaworthiness and m aintenance and cure under general maritim e law. 10 Defendant filed a cross-m otion for sum m ary judgm ent asserting that plaintiff is not a seam an. 11 4 R. Doc. 27-2 at 29; R. Doc. 27-9 at 6 ¶ 42; R. Doc. 29-1 at 6 ¶ 42. R. Doc. 27-9 at 2 ¶¶ 4-10 ; R. Doc. 29-1 at 1-2 ¶¶ 4-10 . 6 R. Doc. 27-9 at 5 ¶ 32; R. Doc. 29-1 at 5 ¶ 32. 7 R. Doc. 24-1 at 2 ¶¶ 10 -11; R. Doc. 30 -2 at 2 ¶¶ 10 -11; R. Doc. 27-9 at 5 ¶ 33; R. Doc. 29-1 at 5 ¶ 33. 8 R. Doc. 24-1 at 1-2 ¶¶ 4-11; R. Doc. 30 -2 at 1-2 ¶¶ 4-11. 9 R. Doc. 1. 10 R. Doc. 24. 11 R. Doc. 27. 2 5 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went 3 uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal citation om itted). The nonm oving party can then defeat the motion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). 4 III. D ISCU SSION A. Le gal Re qu ire m e n ts fo r Se am an Statu s “The J ones Act provides a cause of action in negligence for any seam an injured in the course of his em ployment.” Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (internal citation and quotation m arks om itted). Although the term “seaman” is not defined in the J ones Act, the Supreme Court has explained that “Congress intended the term to have its established meaning under the general m aritim e law at the tim e the J ones Act was enacted.” Id. at 355. The term seam an is synonym ous with “m aster or m ember of a crew” under the Longshore and Harbor Workers’ Com pensation Act. Id. at 356-57. To qualify as a seam an, an em ployee m ust show (1) that his duties contributed to the function of a vessel or the accom plishment of its m ission; and (2) that he had “a connection to a vessel in navigation (or to an identifiable group of vessels) that is substantial in term s of both its duration and its nature.” Id. at 368. The purpose of this test is to “separate the seabased m aritim e em ployees who are entitled to J ones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose em ploym ent does not regularly expose them to the perils of the sea.” Id. 5 Whether an individual is a seam an is “ordinarily a question of fact for the jury.” Ellender v. Kiva Constr. & Eng’g, Inc., 90 9 F.2d 80 3, 80 5 (5th Cir. 1990 ). But “sum m ary judgm ent may be appropriate where ‘the facts establish the lack of seam an status beyond a question as a m atter of law’ and no reasonable evidentiary basis exists to support a jury finding that the injured person is a seam an.” Id. at 80 5-0 6 (quoting Barrett v. Chevron U.S.A., Inc., 781 F.2d 10 67, 10 74 (5th Cir. 1986)); see also Chandris, 515 U.S. at 371 (explaining that sum m ary judgm ent is warranted “where undisputed facts reveal that a m aritim e worker has a clearly inadequate tem poral connection to vessels in navigation”). Plaintiff offers two rationales for his claim to seam an status. First, he argues that he has a substantial connection to defendant’s work barges, which he asserts are vessels in navigation. 12 Second, plaintiff contends that he has a substantial connection to an identifiable fleet of vessels owned by one of defendant’s custom ers, Kirby Inland. 13 As explained below, both arguments run contrary to governing law, and thus the Court finds no genuine issue of fact to support plaintiff’s claim to seam an status. 12 13 R. Doc. 24-2 at 5. Id. 6 B. D e fe n d an t’s W o rk Barge s Defendant m aintains that its work barges form a perm anently m oored work platform , and are not vessels in navigation. 14 Under the J ones Act and general federal maritim e law, a vessel “includes every description of watercraft or other artificial contrivance used, or capable of being used, as a m eans of transportation on water.” Stew art v. Dutra Constr. Co., 543 U.S. 481, 489, 491 (20 0 5) (quoting 1 U.S.C. § 3). But the Supreme Court has explained that the term vessel under 1 U.S.C. § 3 does not m ean “anything that floats.” Lozm an v. City of Riviera Beach, 568 U.S. 115, 126 (20 13). A structure will not qualify as a vessel unless “a reasonable observer, looking to the [structure]’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.” Id. at 121. Relevant physical characteristics can include the structure’s capacity for self-propulsion, the existence of steering m echanisms, and its capacity to generate or store electricity. Id. at 121-22. A reasonable observer would not consider defendant’s work barges to be practically designed for carrying people or things over water. The undisputed facts indicate that the work barges are secured to shore by, am ong other things, a permanent walkway, steel cables, and electricity 14 R. Doc. 27-1 at 9. 7 lines. 15 The barges have no independent m eans of generating electricity and m ust be m oved by tugboat because they have no m eans of self-propulsion. 16 Further, defendant’s president, Mark Toepfer, represents that the work barges are not docum ented as vessels with the U.S. Coast Guard and are prohibited from moving. 17 The work barges operate according to a Facility Operations Manual approved by the U.S. Coast Guard, which describes the cleaning facility as a set of perm anently m oored barges hard-wired together. 18 Plaintiff does not specifically contest these facts, and he adm its in his deposition that the work barges are essentially a stationary dock for the custom er barges. 19 Toepfer’s declaration also states that the work barges do not m ove in the ordinary course of business and that, since being m oored in 20 0 0 and 20 0 5, they have moved only twice and only when they required repair. 20 Although plaintiff asserts that this declaration is self-serving, he offers no evidence to cast doubt on Toepfer’s factual representations. 21 Plaintiff 15 R. Doc. 27-2 at 31-36; R. Doc. 27-3 at 3; R. Doc. 27-9 at 2 ¶¶ 4-10 ; R. Doc. 29-1 at 1-2 ¶¶ 4-10 . 16 R. Doc. 27-9 at 2 ¶¶ 4-10 , 3 ¶ 21; R. Doc. 29-1 at 1-2 ¶¶ 4-10 , 4 ¶ 21; see also R. Doc. 27-2 at 31-36; R. Doc. 27-3 at 3, 8. 17 R. Doc. 27-3 at 5 ¶ 46. 18 Id. at 5, 10 , 13. 19 R. Doc. 27-2 at 41. 20 R. Doc. 27-3 at 3-4. 21 R. Doc. 29-1 at 3. 8 him self testified that the work barges m oved only if they needed repair, and he stated that only one barge was m oved for repair during the year and a half that he worked for defendant. 22 Plaintiff cites to facility m anager Cory Wom ack’s deposition for the proposition that the barges were capable of m ovement. 23 But Wom ack testified that the Gas Free barge is “a m oored vessel” that does not m ove, and that the barge had to be taken to a repair facility to weld a hatch. 24 The undisputed facts dem onstrate that defendant’s work barges have been withdrawn from navigation, and constitute a stationary work platform rather than a vessel. Like the house in Lozm an, the work barges have no m eans of self-propulsion, cannot generate their own energy, and have been m oved only a few tim es in recent years. See 568 U.S. at 121-22. Under sim ilar facts, the Fifth Circuit has repeatedly held that barges are not vessels when they are perm anently attached to land, and when any transportation function is incidental to their primary purpose as a non-vessel work platform . See Daniel v. Ergon, Inc., 892 F.2d 40 3, 40 7 (5th Cir. 1990 ); Ducrepont v. Baton Rouge Marine Enter., Inc., 877 F.2d 393, 394-95 (5th 22 23 24 R. Doc. 27-2 at 20 -22. R. Doc. 24-2 at 2. R. Doc. 24-3 at 15-16. 9 Cir. 1989); W aguespack v. Aetna Life & Cas. Co., 795 F.3d 523, 526-27 (5th Cir. 1986). Plaintiff’s reliance on the Supreme Court’s decision in Stew art, 543 U.S. 481, is m isplaced. The dredge at issue in Stew art had a captain and crew, navigational lights, lim ited m eans of self-propulsion, and it m oved once every couple of hours. Id. at 484-85. The Stew art court specifically distinguished the dredge, which “carried m achinery, equipm ent, and crew over water,” from nonvessels that are perm anently m oored and attached to land by water and electricity lines. Id. at 492-93; see also Lozm an, 568 U.S. at 125 (explaining that the dredge in Stew art was regularly used to transport workers and equipm ent over water, and thus qualified as a vessel). In contrast to the Stew art dredge, the uncontested facts indicate that the work barges were moved only infrequently for repairs, and any transportation function was incidental to their m ain purpose of serving as a work platform and dock for custom er barges. See Ducrepont, 877 F.2d at 395. Plaintiffs argue that the work barges are vessels because they were not originally constructed to be used as a work platform. 25 But the Supreme Court has explained that “[a] craft whose physical characteristics and activities objectively evidence a waterborne transportation purpose or 25 R. Doc. 24-2 at 7. 10 function m ay still be rendered a nonvessel by later physical alterations,” such as if the owner “connect[s] it perm anently to the land” to serve a nonvessel purpose. Lozm an, 568 U.S. at 129. The Fifth Circuit has specifically held that a barge ceases to becom e a vessel if it is transformed into a stationary work platform, even if it was originally a navigable barge. See Ducrepont, 877 F.2d at 394-96; see also Pavone v. Miss. Riverboat Am usem ent Corp., 52 F.3d 560 , 570 (5th Cir. 1995) (explaining that original construction as a work platform is not a prerequisite to being considered a nonvessel under the J ones Act). Accordingly, the Court finds that defendant’s work barges are not vessels in navigation. Plaintiff cannot rely on his relationship with these work barges to claim status as a seam an. C. Kirby In lan d Barge s In the alternative, plaintiff argues that he is a seam an because he has a substantial connection to an identifiable fleet of vessels owned by Kirby Inland, one of defendant’s customers. 26 Plaintiff testified that he spent about thirty percent of his tim e working on Kirby Inland’s barges. 27 But plaintiff acknowledged in his deposition that he did not work exclusively on Kirby 26 27 R. Doc. 24-2 at 9-13. R. Doc. 27-2 at 8. 11 Inland’s barges, and instead worked on whatever barge happened to be at defendant’s facility and was assigned to him by his supervisor. 28 Plaintiff explained that, when work was done on one custom er’s barge, he would help clean another barge, which m ight belong to a different com pany. 29 The parties agree that the length of tim e it took to clean a barge varied between one barge per day and four or five barges per day. 30 The undisputed facts show that plaintiff was a “transitory m aritime worker, only doing work on those vessels when required, as opposed to a m ember of a crew assigned to that fleet of vessels.” Daniel, 892 F.2d at 40 8 (internal citation om itted); see also Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 560 (1997) (explaining that “discrete engagements” and a “transitory or sporadic connection to a vessel or group of vessels . . . does not qualify one for seam an status”); Fazio v. Ly kes Bro. S.S. Co., Inc., 567 F.2d 30 1, 30 4 (5th Cir. 1978) (noting that “[p]laintiff’s contention that he is assigned to a particular group of vessels” is “tantam ount to a longshorem an stating that he is assigned to load and unload all the ships that enter the port of New Orleans and, therefore, he, too, is assigned to a particular group of vessels”). 28 29 30 Id. at 7. Id. R. Doc. 27-9 at 6 ¶ 40 ; R. Doc. 29-1 at 6 ¶ 40 . 12 In Daniel v. Ergon, the Fifth Circuit held that a plaintiff who cleaned and stripped barges generally operated by the sam e com pany was not a seam an because there was little regularity to his work on board that fleet of vessels, he serviced barges other than those owned by the fleet, and on any given day he could work on several barges in the fleet or none. 892 F.2d at 40 8. This case presents nearly identical factual circum stances. Plaintiff asserts that Daniel is distinguishable because it was decided after trial rather than on sum m ary judgm ent. 31 But the Fifth Circuit in that case reversed the jury verdict in favor of the plaintiff, finding that he did not qualify as a seam an as a m atter of law because of the transitory nature of his work on the vessels. Id. at 40 9. Other Fifth Circuit decisions have sim ilarly concluded that a worker who lives on land and is temporarily assigned to service different vessels on a random or as-needed basis lacks the requisite attachm ent to a fleet to qualify as a seam an. See W aguespack, 795 F.2d at 526; W hite v. Valley Line Co., 736 F.2d 30 4, 30 6 (5th Cir. 1984); Fazio v. Ly kes Bro. S.S. Co., Inc., 567 F.2d 30 1 (5th Cir. 1978); see also Schultz v. La. Dock Co., 94 F. Supp. 2d 746, 750 (E.D. La. 20 0 0 ). As the Suprem e Court has em phasized, “the J ones Act was intended to protect sea-based m aritim e workers, who owe their allegiance to a vessel, 31 R. Doc. 29 at 5. 13 and not land-based em ployees, who do not.” Chandris, 515 U.S. at 377. Although plaintiff m ay have frequently cleaned Kirby Inland barges, the undisputed facts indicate that he worked on whatever barges he was assigned by his supervisor, and he owed no particular allegiance to Kirby Inland. Plaintiff has offered no evidence to suggest that he could be considered a m ember of the crew of Kirby Inland’s vessels. The Fifth Circuit’s decisions in N aquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 20 14), and In re Endeavor Marine, Inc., 234 F.3d 287 (5th Cir. 20 0 0 ), are inapposite because those cases involved plaintiffs who were perm anently assigned either to a single vessel or to their em ployer’s fleet. See N aquin, 744 F.3d at 930 (noting that the plaintiff’s prim ary responsibility was the m aintenance and repair of his employer’s fleet of vessels); In re Endeavor Marine, 234 F.3d at 288, 291 (explaining that plaintiff was assigned to a particular vessel and spent alm ost all of his tim e working on that vessel). Because the Court finds that plaintiff lacks a substantial connection to a vessel or an identifiable fleet of vessels, it need not determ ine whether plaintiff’s work contributed to the function of the barges. Plaintiff is not a seam an, and defendant is entitled sum m ary judgm ent. Because plaintiff’s claim s for negligence, unseaworthiness, and m aintenance and cure are 14 prem ised on his status as a seam an, his com plaint m ust be dism issed. See Martin v. Fab-Con, Inc., 7 F. Supp. 3d 645, 651 (E.D. La. 20 14). IV. CON CLU SION Accordingly, defendant’s m otion for sum m ary judgment is GRANTED. Plaintiff’s m otion for partial sum m ary judgm ent is DENIED. Plaintiff’s com plaint is DISMISSED. 5th New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 15