St. Romain v. Industrial Fabrication and Repair Service, Inc., No. 98-31081
(5th Cir. Feb. 22, 2000)
Revised February 23, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31081
MARK ST. ROMAIN and ANGELA
ST. ROMAIN,
Plaintiffs-Appellants,
versus
INDUSTRIAL FABRICATION AND
REPAIR SERVICE, INC., ET AL.,
Defendants.
SUPERIOR WELL SERVICE, INC.
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
February 22, 2000
Before POLITZ, DAVIS, and STEWART, Circuit Judges.
POLITZ, Circuit Judge:
Mark St. Romain and his wife Angela appeal an adverse summary judgment
in their Jones Act action against Superior Well Service Inc. The district court
concluded that St. Romain was not a seaman for purposes of the Jones Act. For the
reasons assigned, we affirm.
BACKGROUND
This action arises out of an accident which occurred on an offshore platform,
owned by Marathon Oil Company and permanently affixed to the Outer Continental
Shelf off the coast of Louisiana. St. Romain was employed by Superior as a "plug
and abandon" (p&a) helper from 1993 until the date of his accident in 1995. Plug
and abandon work involves the decommissioning of oil wells under offshore
platforms. Cement plugs are inserted into the wells beneath the ocean floor and the
casing pipe is removed. Most of Superior's p&a work is done from fixed platforms.
Other projects, including some of St. Romain's assignments, are performed partly
from liftboats. A liftboat is a support vessel that uses a crane to pull the casing.
The vessel transports Superior's equipment to the platforms, and provides the
Superior crew with a place to eat and sleep. The p&a team usually remains at the
platform until the job is complete. The work may extend from a few days to several
weeks. Occasionally the liftboat also is used to transport Superior's p&a team to the
platform.
On March 4, 1995, St. Romain was assisting in the removal of casing when
a spreader bar used to lift the pipe failed and a shackle and sling struck his hard hat.
St. Romain sought and received benefits under the Longshore and Harbor Workers'
Compensation Act.(1) He initially sued the manufacturer of the spreader bar, later
amending his complaint to assert a negligence claim against Superior, claiming status
as a seaman under the Jones Act.(2) The district court granted Superior's motion for
summary judgment, concluding that St. Romain did not qualify as a Jones Act
seaman because he did not establish that he worked aboard an identifiable fleet of
vessels. The district court also granted Superior's motion to strike St. Romain's
second affidavit and the affidavit of his expert witness because they contained
inadmissible legal conclusions and hearsay. The court also denied St. Romain's
motion to strike the affidavit of Superior's president, Terence Hall, for lack of
personal knowledge, concluding that the affidavit was based on Hall's personal
knowledge as president of the company. St. Romain timely appealed.
ANALYSIS
Jones Act:
We review de novo a district court's grant of summary judgment.(3) The
determination whether an injured worker is a seaman under the Jones Act is a mixed
question of law and fact.(4) As such, it is generally inappropriate to dispose of a
seaman status claim on summary judgment.(5) Summary judgment is mandated,
however, "where the facts and the law will reasonably support only one
conclusion."(6) "Seaman" is not defined in the Jones Act; that task has been left to
the courts. The Supreme Court announced a two-part test to determine seaman
status:
First . . . an employee's duties must contribute to the function of the
vessel or to the accomplishment of its mission . . . . Second . . . a
seaman must have a connection to a vessel in navigation (or to an
identifiable group of such vessels) that is substantial in terms of both its
duration and its nature.(7)
We previously have defined "fleet" to mean "an identifiable group of vessels acting
together or under one control."(8) Our review of the record herein leads to the
inexorable conclusion that St. Romain is not a seaman as a matter of law.
It is undisputed that St. Romain was not permanently assigned to any one
vessel in navigation. Rather, he contends that he was a member of the crews of the
several liftboats used in the p&a jobs performed by Superior, and that these boats
constitute an identifiable fleet of vessels.(9) Thus, the issue before the district court,
and before this court, is whether St. Romain has produced sufficient evidence to
create a genuine fact issue as to whether he had a substantial connection to a group
of vessels acting together under common ownership or control. We must conclude
that he has not done so.
The case at bar involves facts strikingly similar to those in Hufnagel v.
Omega Service Industries, Inc..(10) In Hufnagel, we denied seaman status to a
rigger, employed by an oilfield service company, injured on a fixed offshore
platform while repairing the platform's pilings. Hufnagel claimed he was a member
of the crew of the liftboat used to assist Omega in its platform repairs and therefore
was entitled to seaman status.(11)
We held that Hufnagel did not qualify as a seaman because he could not
establish a substantial connection to either a single vessel or to an identifiable fleet
of vessels.(12) Throughout his employment Hufnagel had worked on twenty-six
different offshore platforms owned by thirteen different Omega customers. We
concluded that the support vessels which were used on some of Hufnagel's
assignments did not qualify as a fleet because "[the vessels] were always different,
provided by different customers, and owned and operated by different companies.
They were not subject to common ownership or control."(13)
Similarly, St. Romain did not work aboard vessels under common ownership
or control. During his employment with Superior, St. Romain had eleven different
offshore work assignments. He worked aboard liftboats owned by nine different
companies and chartered by five different entities. Superior did not own any of the
liftboats. Typically, they were chartered by the oil company that hired Superior to
do the p&a work. On four occasions Superior chartered the liftboats for its
customer. The deposition testimony and the written charter agreements reflect that
the captain of the liftboat, and its owner, had at all times ultimate authority with
respect to the navigation, management, and operation of the vessels. Consequently,
viewing the facts in the light most favorable to St. Romain, as we are required to do
in this summary judgment setting, we must conclude that they do not establish that
the liftboats at issue commonly were controlled by any one single entity and, thus,
there is no genuine issue herein necessitating a trial.(14) St. Romain is not a seaman.
St. Romain urges us to take an expansive view of "control" of a vessel,
relying heavily on our decision in Bertrand v. Int'l Mooring & Marine Inc.,(15)wherein we stated, "[i]n light of the purposes of the Jones Act, we will not allow
employers to deny Jones Act coverage to seamen by arrangements with third parties
regarding the vessel's operation or by the manner in which work is assigned."(16) St.
Romain contends that control over a group of vessels should not be determined by
who owns or charters the vessels but, instead, should be determined by who
supervises the practical operations aboard the vessels. St. Romain maintains that
because Superior selected the particular liftboat needed to complete the work,
directed the vessel's captain where to position the boat to facilitate the use of its
crane, and Superior employees told the captain when to jack-up or down, Superior
exercised "operational control" over the boats which should satisfy the common
control requirement.
This reliance on Bertrand is misplaced. Our later decisions clearly reflect
that the court in Bertrand was concerned with denying seaman status to
anchorhandlers, traditional maritime workers, merely because of the contractual
arrangements made by their employer.(17) Our decisions after Bertrand have
reaffirmed the essential principle that to qualify as a seaman an employee must
establish an attachment to a vessel or to an identifiable fleet of vessels.(18) We are not
persuaded by the proposed operational control test. To accept that position would
involve the court in analyzing the day-to-day minutiae of a liftboat's operations. This
we decline to do and, rather, resort to developed workable standards for determining
who qualifies as a seaman under the Jones Act. In doing so we must decline to
depart from these established principles.
St. Romain places great emphasis on his claim that in all his offshore
assignments, whether he worked on the platforms or on the liftboats, he was
regularly exposed to the "perils of the sea" faced by traditional seamen. We cannot
agree. Whether St. Romain faced perils of the sea is not outcome determinative of
seaman status.(19) We must hold, therefore, that consistent with Hufnagel, St.
Romain's seaman status claim fails as a matter of law and the district court properly
granted summary judgment to Superior.
Evidentiary Rulings:
The district court granted Superior's Motion to Strike the affidavit of St.
Romain's expert, Kenneth A. Kaigler, and the second affidavit by St. Romain to the
extent that they contained inadmissible legal conclusions or hearsay. Additionally,
the court denied St. Romain's Motion to Strike or Disregard the affidavit of Terence
Hall, Superior's president, for lack of personal knowledge. We review these
evidentiary rulings for an abuse of discretion. Where an affidavit is erroneously
excluded, a reversal of summary judgment is not warranted if the error was
harmless.
St. Romain's evidentiary challenges involve the inclusion or exclusion of
certain facts related to the proposed operational control test. In light of our rejection
of that test, we must conclude that any evidentiary errors, if any errors indeed were
committed by the district court, necessarily were harmless.
9. We note that no liftboat was being used by Superior on the job when St. Romain's injury
occurred. Marathon's platform was affixed to the Outer Continental Shelf at a point where the
ocean depth was over 400 feet, which is too deep for a liftboat operation. This fact is not material
to our analysis, however, as seaman status must be determined by examining the claimant's
overall employment-related connection to a vessel in navigation rather than focusing only on the
facts at the time of injury. Chandris, 515 U.S. at 363; Barrett, 781 F.2d at 1075 (citing
Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir. 1980)).
14. See e.g., Coats v. Penrod Drilling Corp., 5 F.3d 877 (5th Cir. 1993) (denying seaman
status to claimant as a matter of law because the vessels claimant worked aboard were not under
common ownership or control); Bach v. Trident Steamship Co., Inc., 920 F.2d 322 (5th Cir.
1991) (ships navigated by compulsory pilot not a fleet merely because each vessel was under
pilot's control at the time he navigated them); Langston v. Schlumberger Offshore Serv., Inc.,
809 F.2d 1192 (5th Cir. 1987) (wireline operator not a seaman where employee was assigned to
fifteen different vessels owned by ten owners).
15. 700 F.2d 240 (5th Cir. 1983) (reversing grant of summary judgment denying seaman status
to anchorhandlers where vessels employees worked aboard were all used, but not owned or
chartered by their employer).
17. Buras, 736 F.2d at 311 ("Our concern [in Bertrand] was to prevent the denial of Jones Act
seaman status as a matter of law to those claimants who are engaged in traditional maritime
activity on a vessel or vessels comprising an identifiable fleet in every respect except common
control or ownership.").
18. 736 F.2d at 311 ("[W]e [do not] believe that Bertrand rejected the identifiable or
recognizable fleet requirement established by our prior cases. Rather, Bertrand must be read in
light of the factual situation it involved.") (footnote omitted); Bach, 920 F.2d at 326 ("Dozens
(perhaps hundreds) of seaman status cases have come before us, but we have never made an
exception to the core requirement that the injured worker show attachment to a vessel or
identifiable fleet of vessels.").
19. Chandris, Inc. v. Latsis, 515 U.S. 347, 361 (1995) ("Seaman status is not coextensive with
seaman's risks."); Bach, 920 F.2d at 325 (same).