Martin v. Fab-Con Inc et al
Filing
123
ORDER AND REASONS - granting MOTION 40 to Dismiss for Lack of Jurisdiction filed by CCR, LLC, Equipment Co., LLC. The Court thus puts the parties on notice that it will enter summary judgment in favor of Barges Unlimited fourteen (14) days from the date of this order if plaintiff does not show cause why such a ruling is inappropriate.. Signed by Chief Judge Sarah S. Vance on 3/24/14.(jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL MARTIN
CIVIL ACTION
VERSUS
NO: 12-3005
FAB-CON, INC., ET AL.
SECTION: R
ORDER AND REASONS
I.
INTRODUCTION
Defendants Equipment Co., LLC and CCR, LLC move the Court to
dismiss this case for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1).1 Defendants
argue that the Court lacks jurisdiction over this matter because
the barge upon which plaintiff was working when he was injured is
not a "vessel." As is explained more fully below, the Court
treats this motion as a motion for summary judgment because the
issue of whether the barge is a vessel is intertwined with the
merits of the case. Because the Court finds that the barge is not
a vessel under Lozman v. City of Riviera Beach, Fla., 133 S.Ct.
735 (2013), the Court GRANTS defendants' motion and dismisses
them from this case.
II.
BACKGROUND
Plaintiff Michael Martin brought this Jones Act claim for
1
R. Doc. 40.
negligence and unseaworthiness against his employer, Fab-Con,
Inc., based on an accident Martin allegedly sustained on December
9, 2012, while working as a galley hand aboard the quarterbarge
UNITY at Grand Bay Receiving Station.2 Martin alleges that while
on the barge he slipped and fell in a puddle of diesel oil and
sustained a herniated lumbar disc and a lumbar strain.3 He seeks
$1.5 million in damages for medical expenses, lost wages, pain
and suffering, mental anguish, emotional stress, and loss of
earning capacity, as well as maintenance and cure.4 Shortly after
filing suit, Martin amended his complaint to include claims for
negligence and unseaworthiness against Equipment Co., LLC, the
owner of the UNITY, and Barges Unlimited, Inc. and CCR, Inc., the
charterers of the UNITY.5
On March 12, 2014, the Court granted summary judgment to
Fab-Con on the issue of seaman status, holding that plaintiff
lacked a sufficiently substantial connection to a vessel to
qualify as a Jones Act seaman.6 Thus, the only remaining claims
in this litigation are plaintiff's claims against Equipment Co.,
CCR, and Barges Unlimited for unseaworthiness and negligence
2
R. Doc. 1 at 1-2; R. Doc. 19 at 1; R. Doc. 40-3 at 6.
3
R. Doc. 1 at 2.
4
Id. at 3.
5
R. Doc. 19; R. Doc. 40-4 at 1.
6
R. Doc. 75.
2
under the general maritime law.
The primary issue in the motion under consideration is
whether the UNITY qualifies as a "vessel" for purposes of the
general maritime law. Accordingly, the Court will describe the
UNITY's characteristics in detail.
While at Grand Bay, the UNITY was located approximately
thirty feet from shore in a waterway.7 The barge drew roughly
five feet of water.8 It was not grounded on the waterway bottom,
but rather remained in place via tethers to an adjacent crane
barge.9 The barge had a bilge pump,10 a slightly raked hull,11 and
housed a considerable amount of equipment, including kitchen
fixtures, a washer and dryer, and two generators that served the
barge's electrical needs.12 It was incapable of self-propulsion,
had no engine or rudder, and was spudded in place on the date of
the accident.13 The parties dispute whether the vessel was
equipped with lifeboats and other life-saving equipment and also
7
R. Doc. 56-6 at 2.
8
Id.
9
Id.
10
Id.
11
Id.; see also R. Doc. 40-7 at 1.
12
R. Doc. 56-6 at 2; see also R. Doc. 40-5 at 2.
13
R. Doc. 40-4 at 2-3; R. Doc. 40-5 at 2-3.
3
dispute whether it had navigation lights.14
According to the affidavit of C.J. Tabor, a member of CCR,
the UNITY "was constructed to serve solely as stationary housing
accommodations."15 Tabor states that the UNITY was not designed
to transport passengers, cargo, or equipment across the water,
and it was never used in such a way.16 Shawn Lebouef, Corporate
Operations Executive for Fab-Con, corroborated Tabor's
characterization of the barge's purpose and capabilities,17
deeming the UNITY "essentially a floating hotel."18 According to
Lebouef, CCR and Fab-Con staffed the UNITY with between two and
four people at any one time, including a cook, a maintenance man,
and a galley hand.19 Plaintiff's description of the UNITY's
function is largely consistent with the accounts of Tabor and
Lebouef: in his affidavit, plaintiff states that "[p]ersons from
various companies used the quarters-barge UNITY for bunking,
washing clothes, sleeping and eating," and attending meetings.20
14
Compare R. Doc. 40-4 at 2-3; R. Doc. 40-5 at 2-3 with
R. Doc. 56-6 at 2-3.
15
R. Doc. 40-4 at 2.
16
Id.
17
R. Doc. 40-5 at 2-3.
18
Id. at 2.
19
Id.
20
R. Doc. 56-6 at 3.
4
The record reveals that the UNITY has remained stationary
for the majority of the past five years. From October 2009 to
September 2012, the UNITY was located in the Swiftships Shipyard
in Morgan City, Louisiana.21 On September 1, 2012, CCR leased the
UNITY to Fab-Con for use as housing accommodations for Fab-Con's
employees while they worked on a project in Grand Bay.22 The
UNITY was towed to Grand Bay and remained there until January
2013, when it was moved back to the Swiftships Shipyard.23 It is
still at that shipyard today.24
II.
LEGAL STANDARD
A.
Conversion to Motion for Summary Judgment
Federal Rule of Civil Procedure 12(b)(1) governs challenges
to a court's subject matter jurisdiction. "A case is properly
dismissed for lack of subject matter jurisdiction when the court
lacks the statutory or constitutional power to adjudicate the
case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143
F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers
Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). A
21
R. Doc. 40-4 at 2; R. Doc. 40-5 at 2.
22
R. Doc. 40-4 at 3; R. Doc. 40-5 at 1-2; see also R.
Doc. 56-2 (Master Charter and Service Agreement between CCR and
Fab-Con dated September 1, 2012).
23
R. Doc. 40-4 at 3; R. Doc. 40-5 at 2.
24
R. Doc. 40-4 at 3.
5
district court may dismiss for lack of subject matter
jurisdiction based on "(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3)
the complaint supplemented by undisputed facts plus the court's
resolution of disputed facts." Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001) (citing Barrera Montenegro v. United
States, 74 F.3d 657, 659 (5th Cir. 1996)). When examining a
factual challenge to subject matter jurisdiction under Rule
12(b)(1), the district court has the authority to "weigh the
evidence and satisfy itself as to the existence of its power to
hear the case." Jackson v. U.S. Dep't of Housing & Urban Dev.,
No. 96-30619, 116 F.3d 477, at *1 (5th Cir. Apr. 17, 1997)
(unpublished); accord Withrow v. Miller, 348 F. App'x 946, 948
(5th Cir. 2009).
Accordingly, the court may consider matters
outside the pleadings, such as testimony and affidavits. Garcia
v. Copenhaver, Bell, & Assocs., 104 F.3d 1256, 1261 (11th Cir.
1997); 5B Charles Allen Wright, et al., Federal Practice and
Procedure § 1350 (3d ed. 1998).
But, "when . . . issues of jurisdictional fact are
intermeshed with the merits of a case, 'the jurisdictional issues
should be referred to the merits, for it is impossible to decide
one without the other.'" Sierra Club v. Shell Oil Co., 817 F.2d
1169, 1172 (5th Cir. 1987) (quoting McBeath v. Inter-Am. Citizens
for Decency Comm., 374 F.2d 359, 363 (5th Cir. 1967)); Wright, et
6
al., supra, § 1350. Put slightly differently, "[w]here the
defendant's challenge to the court's jurisdiction is also a
challenge to the existence of a federal cause of action, the
proper course . . . is to find that jurisdiction exists and deal
with the objection as a direct attack on the merits of the
plaintiff's case." Sierra Club, 817 F.2d at 1172 (alterations in
original) (quoting Williamson v. Tucker, 645 F.2d 404, 415 (5th
Cir. 1981)); accord Montez v. Dep't of Navy, 392 F.3d 147, 150
(5th Cir. 2004). The Fifth Circuit has explained that "[n]o
purpose is served by indirectly arguing the merits in the context
of federal jurisdiction. Judicial economy is best promoted when
the existence of a federal right is directly reached and, where
no claim is found to exist, the case is dismissed on the merits."
Montez, 392 F.3d at 150 (quoting Williamson, 645 F.2d at 415).
Here, the question of whether the UNITY is a "vessel" is
undoutedly an issue of jurisdictional fact. See, e.g., Miles ex
rel. Miles v. VT Halter Mar., Inc., 792 F. Supp. 2d 919, 924
(E.D. La. 2011) (ruling that the court lacked admiralty
jurisdiction over plaintiff's claims under the general maritime
law because the barge on which he was injured was not a vessel).
But it is also a crucial component of the merits of this case.
Were the Court to find that the UNITY is not a vessel,
plaintiff's unseaworthiness claims claims would be nonviable, see
Daniel v. Ergon, Inc., 892 F.2d 403, 409 n.10 (5th Cir. 1990)
7
("[U]nseaworthiness requires the existence of a vessel."); Riley
v. Alexander/Ryan Mar. Servs. Co., Civil Action No. 3:12-CV00158, --- F. Supp. 2d ----, 2013 WL 5774872, at *4 (S.D. Tex.
Oct. 24, 2013), as would his claims for negligence under the
general maritime law, see Riley, 2013 WL 5774872, at *5 (granting
summary judgment to defendants on plaintiff's claim for
negligence under the general maritime law because plaintiff's
injury did not occur on a vessel). In fact, the Fifth Circuit has
explicitly approved dismissal of a plaintiff's unseaworthiness
claims on the merits, at the summary judgment stage, on the
ground that the structure on which the plaintiff was working at
the time of his injury was not a vessel. See, e.g., Gremillion v.
Gulf Coast Catering Co., 904 F.2d 290, 290, 294 n.11 (5th Cir.
1990); Reeves, 720 F.2d at 837. The Fifth Circuit has also
approved of a district court's granting summary judgment on
claims brought under the general maritime law based on a finding
of no vessel status. See Holifield v. Great Lakes Dredge & Dock
Co., No. 94-30202, 53 F.3d 1280, at *5 (5th Cir. Apr. 18, 1995)
(unpublished) (affirming district court's grant of summary
judgment to defendants because structure upon which plaintiff was
injured was not a vessel, and consequently his clams did "not
bear a sufficient relationship to traditional maritime activity
to support admiralty jurisdiction"). Accordingly, the Court will
construe the motion to dismiss for lack of subject matter
8
jurisdiction as a "direct attack on the merits of the plaintiff's
case," Sierra Club, 817 F.2d at 1172, and treat it as a motion
for summary judgment.
B.
Summary Judgment Standard
Summary judgment is warranted when "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter 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 1069, 1075 (5th Cir.
1994). When assessing whether a dispute as to any material fact
exists, the Court considers "all of the evidence in the record
but refrain[s] from making credibility determinations or weighing
the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but
"unsupported allegations or affidavits setting forth 'ultimate or
conclusory facts and conclusions of law' are insufficient to
either support or defeat a motion for summary judgment." Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see
also Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party "must
come forward with evidence which would 'entitle it to a directed
9
verdict if the evidence went uncontroverted at trial.'" Int'l
Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264–65 (5th
Cir. 1991). The nonmoving party can then defeat the motion by
either countering with evidence sufficient to demonstrate the
existence of a genuine dispute of material fact, or "showing that
the moving party's evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324. The
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. See,
e.g., id.; Little, 37 F.3d at 1075 ("Rule 56 'mandates the entry
of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element 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)).
10
III. DISCUSSION
A.
Definition of "Vessel"
The statutory definition of a vessel includes "every
description of watercraft or other artificial contrivance used,
or capable of being used, as a means of transportation on water."
1 U.S.C. § 3. "Not every floating structure is a 'vessel.'"
Lozman v. City of Riviera Beach, Fla., 133 S.Ct. 735, 740 (2013);
see also id. at 743 (rejecting "the 'anything that floats'
approach" to determining whether a structure qualifies as a
vessel); Mooney v. W&T Offshore, Inc., Civil Action No. 12-969,
2013 WL 828308, at *4 (E.D. La. Mar. 6, 2013) ("Lozman 'sent a
shot across the bow' of those lower courts whose 'opinions
[could] be read as endorsing the "anything that floats" approach'
to determining vessel status." (alteration in original) (quoting
Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., No.
10–1653, 2013 WL 311084, at *3 (S.D.N.Y. Jan. 25, 2013))).
Instead, in order to determine whether a given "artificial
contrivance" is a vessel, a court must determine whether "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."
Lozman, 133 S.Ct. at 741; see also Stewart v. Dura Const. Co.,
543 U.S. 481, 496 (2005) (determinative question is "whether the
watercraft's use 'as a means of transportation on water' is a
11
practical possibility or merely a theoretical one"). The
structure need not be used "primarily" for the purpose of
transportation over water; it need only be "regularly" used or
"practically designed" for that purpose. Lozman, 133 S.Ct. at
742-43. In divining the purpose of the structure, courts are to
consider only "objective evidence of a waterborne transportation
purpose," rather than "the subjective intent of the owner." Id.
at 744-45.
In Lozman, the Court held that the petitioner's houseboat
did not satisfy that test. Justice Breyer, writing for the
majority, listed several characteristics of the boat that
compelled the conclusion that it was not a "vessel" within the
meaning of the statute: (1) it lacked a "rudder or other steering
mechanism"; (2) it did not have a raked hull; (3) it had a
rectangular bottom only ten inches below the water; (4) it could
not generate or store its own electricity without a connection to
land; (5) its rooms looked like ordinary living quarters; (6) it
lacked the capacity of self-propulsion; and (7) although capable
of being towed over water, the boat had only been so moved four
times over a period of seven years. Id. at 741. The Court
concluded that, "[b]ut for the fact that it floats, nothing about
[the] home suggests that it was designed to any practical degree
to transport persons or things over water." Id. It had "no other
feature that might suggest a design to transport over water
12
anything other than its own furnishings and related personal
effects." Id.
The Lozman Court noted that "some lower court opinions can
be read as endorsing the 'anything that floats' approach." Id. at
743. Among the opinions the Court listed was the Fifth Circuit's
decision in Holmes v. Atlantic Sounding Co., 437 F.3d 441 (5th
Cir. 2006). There, the Fifth Circuit determined that the
quarterbarge BT-213 was a "vessel" for purposes of the Jones Act.
Id. at 443. The BT-213 was "in effect, a floating dormitory,"
with a four-person crew of two cooks and two janitors, sleeping
quarters, toilet facilities, a galley, locker rooms, and
electrical generators. Id. It was not capable of self-propulsion,
but it had temporary running lights installed when it was to be
towed. Id. at 444. It had a raked bow, but no navigational or
steering equipment or lifeboats. Id. The Fifth Circuit concluded
that the BT-213 was properly considered a vessel, because it was
"'practically capable' of transporting equipment," such as the
"sleeping and eating 'equipment'" and feeding and housing
supplies on board," and because it had a raked bow, was outfitted
with "vessel-like gear," and was only temporarily moored. Id. at
448-49.
The Lozman majority found Holmes's analysis "inappropriate
and inconsistent with [Supreme Court precedent]." Lozman, 133
S.Ct. at 743. The Supreme Court explicitly rejected the reasoning
13
that a quarterbarge can be considered a vessel because it can
transport "its own furnishings and related personal effects." Id.
at 741. Indeed, Justice Sotomayor made a version of this argument
in dissent in Lozman: she contended that the petitioner's
houseboat should be classified as a vessel because it transported
"large appliances (like an oven or a refrigerator) and all of the
other things [one] might find in a normal home." Id. at 752
(Sotomayor, J., dissenting). The majority rejected Justice
Sotomayor's analysis, reasoning that "a transportation function
need not turn on the size of the items in question." Id. at 745.
The Court "believe[d] the line between items being transported
from place to place (e.g., cargo) and items that are mere
appurtenances is the one more likely to be relevant." Id. (citing
Benedict, American Admiralty § 222, at 121).
B.
Application
The Court finds that the reasoning and result of Lozman
compel the conclusion that the UNITY is not a vessel within the
meaning of 1 U.S.C. § 3. Indeed, the UNITY is quite similar in
most relevant respects to the houseboat at issue in Lozman. Like
the petitioner's houseboat in Lozman, the UNITY has no rudder or
other steering mechanism, is incapable of self-propulsion, has
remained stationary for most of the past several years, and its
14
interior is similar to living quarters on land.25 True, the UNITY
had a generator on board for a limited period of time, had a
slightly raked hull, and its bottom was farther below the water
than that of the Lozman houseboat. But the Court finds that these
differences are not sufficient to make a reasonable observer
think that the UNITY was designed to a practical degree for
transporting people or cargo over water. Plaintiff has failed to
present any evidence that the barge ever did transport any
"cargo," id. at 745 -- that is, anything other than "its own
furnishings and related personal effects," id. at 741 -- or that
it was designed with such a purpose in mind. That distinguishes
this case from Stewart v. Dutra, the other recent Supreme Court
opinion on vessel status. In Stewart, the Supreme Court found
that the "Super Scoop," a massive dredge that removed silt from
the sea floor and deposited it on adjacent scows, was a vessel.
543 U.S. at 484. In contrast to the UNITY, the Super Scoop had
"limited means of self-propulsion" -- it could navigate short
distances by manipulating its anchors and cables. Id. As it
performed its dredging work, it would move in this way once every
two hours, carrying its crew along with it. Id. at 484-85. Thus,
"the Super Scoop was not only 'capable of being used' to
transport equipment and workers over water -- it was used to
transport those things." Id. at 495. "Indeed, it could not have
25
See R. Docs. 40-7, 40-8.
15
dug the Ted Williams Tunnel had it been unable to traverse the
Boston Harbor, carrying with it workers like [plaintiff]." Id.
The UNITY, on the other hand, was incapable of moving under its
own power, and even when it was being towed, it never transported
a crew or cargo. Instead, it was designed exclusively to house
workers, serving, in the words of Lebouef, as a "floating hotel."
It is true that the UNITY is nearly indistinguishable from
the quarterbarge considered in Holmes. See Holmes, 437 F.3d at
448-49. But, given that the Lozman Court cast considerable doubt
on the soundness of Holmes's reasoning, Holmes does not control
this case.
The Court's holding is consistent with that of other courts
to consider the vessel status of similar structures in the wake
of Lozman. See Armstrong v. Manhattan Yacht Club, Inc., No. 12CV-4242, 2013 WL 1819993 (E.D.N.Y. Apr. 30, 2013) (holding that a
floating clubhouse was not a vessel because "[i]ts primary
purpose (and, as the evidence demonstrates, its only use) [was]
to serve as a viewing platform" for individuals to watch sailboat
races); Sea Village Marina, LLC v. A 1980 CARLCRAFT HOUSEBOAT,
Civil Action No. 09-3292, 2013 WL 1501789, at *3 (D.N.J. Apr. 11,
2013) (holding that it lacked subject matter jurisdiction over an
in rem action against four houseboats "because the Lozman case
established that floating homes which do not transport passengers
or cargo" are not vessels). The Court's analysis here is also
16
consistent with Gremillion v. Gulf Coast Catering Co., which was
the controlling Fifth Circuit jurisprudence on the vessel status
of quarterbarges before the decision in Holmes. There, the court
determined that the quarterbarge Q/B MINDY was not a vessel, even
though it was "easily transportable," because "the significance
of its transportation function [was] purely incidental to its
primary mission of providing living facilities to workers in
relatively shallow waterways." Gremillion, 904 F.2d at 294. The
court explained:
[The quarterbarge] does not transport cargo or
passengers, it is not designed for navigation, it was not
engaged in navigation at the time of the injury, and
there is no evidence to suggest that the Q/B MINDY ever
provided housing on the open sea unattached, directly or
indirectly, to an appurtenance of the shore.
Significantly, the Q/B MINDY's motive power was
provided externally through towboats, as it had no
engines, rudders, or navigational equipment (except
lights). It also was not registered with the Coast Guard
as a vessel. In weighing all the factors that this court
deems relevant to vessel status, the conclusion is
inescapable that the Q/B MINDY is a nonvessel for
purposes of the Jones Act.
Id. So it is with the UNITY. There is virtually no evidence that
the quarterbarge was designed to transport people or cargo over
water or otherwise navigate over water, or that it ever in fact
did so. Moreover, at oral argument, plaintiff's counsel explained
that the barge was indirectly attached to the shore, such that
one could walk from the barge to the shore by following a series
of gangplanks. Finally, the evidence indicates that the UNITY was
spudded in place, in relatively shallow water, only a few feet
17
from the shore throughout the entire period of plaintiff's
assignment to it.26 Cf. id. at 291 ("During the course of
[plaintiff]'s assignment on the Q/B Mindy, the barge was never
refloated for transportation to a new site . . . .").
C.
Plaintiff's Arguments
Plaintiff presents several arguments in favor of his
position that the UNITY qualifies as a vessel, but the Court
finds none of them persuasive.
First, plaintiff argues that the Master Charter and Service
Agreement executed between CCR and Fab-Con on September 1, 2012
establishes that the UNITY is a vessel. But, as defendants
correctly point out, "parties cannot contractually agree to
determine vessel status . . . . Vessel status is determined by
the history of the contrivance, it use, purpose, and perhaps
potential, not what the parties call it." St. Paul Fire & Mar.
Ins Co. v. SSA Gulf Terminals, Inc., No. Civ. A. 01-3063, 2002 WL
31260153, at *6 (E.D. La. Oct. 8, 2002). Moreover, the Court
notes that the contract to which plaintiff refers is a master
agreement, written to cover "[a]ll Charter Orders" between CCR
and Fab-Con.27 That a master agreement generally obligates CCR to
provide seaworthy vessels to Fab-Con sheds little light on the
26
See R. Doc. 40-5 at 3.
27
R. Doc. 56-2 at 3.
18
purpose or function of the UNITY in particular.
Second, plaintiff contends that the determination of whether
the UNITY is a vessel is properly a question for the jury. This
is incorrect. "The determination of whether a given craft is a
vessel is ordinarily resolved as a matter of law." Manuel, 135
F.3d at 347. It is true that "marginal claims are properly left
for jury determination." Id. (quoting Ducote v. V. Keeler & Co.,
953 F.2d 1000, 1002 (5th Cir. 1992)). But this is not a marginal
case. As noted above, the parties do dispute some factual issues,
such as whether the UNITY had lifeboats and navigational lights.
But the Court finds that, even were these disputes to be resolved
in plaintiff's favor, the UNITY would not be a vessel as a matter
of law. The dispositive inquiry under Lozman and Stewart is
whether the contrivance is actually used or intended to be used
to transport persons or cargo -- that is, something more than its
own furnishings and "appurtenances." Lozman, 133 S.Ct. at 745.
Here, the answer is no. It is unsurprising that there would be
lifesaving equipment on a "floating hotel," since there was
presumably a risk that the barge could sink with workers onboard
even while secured in place at Grand Bay. That the UNITY may have
had lights is also unremarkable, given that the barge was
sometimes (though infrequently) towed over open water. These two
features, even if present, would not suggest that the UNITY was
designed or used to transport cargo or people over open water,
19
and thus they would not be sufficient to make the UNITY a vessel
under Supreme Court precedent. Cf. Gremillion, 904 F.2d at 291
(finding that quarterbarge was not a vessel even though it "was
capable of being moved easily, was involved in commerce, and
possessed other attributes of Jones Act vessels, such as
navigational lights, life preservers, and sleeping quarters").
Third, plaintiff argues that the affidavits of Tabor and
Lebouef are unreliable because they are contradicted by the
Master Charter and Service Agreement, and because Tabor and
Lebouef do not have personal knowledge of the facts set forth in
their affidavits. For the reasons stated above, the Court does
not find the Master Agreement probative as to the vessel status
of the UNITY. The Court is also satisfied that Tabor and Lebouef
are sufficiently knowledgeable about the characteristics of the
UNITY to submit sworn statements regarding the UNITY's features
and intended purpose. Tabor is a member of CCR and negotiated the
terms of the charter agreement for the UNITY from CCR to FabCon.28 Lebouef is the Corporate Operations Executive for Fab-Con
and executed that agreement.29 Moreover, both individuals
specifically averred that they had personal knowledge of the
facts presented in their affidavits.30 Accordingly, the Court
28
R. Doc. 40-4 at 1.
29
R. Doc. 40-5 at 1-2.
30
R. Doc. 40-4 at 1; R. Doc. 40-5 at 1.
20
concludes that the affidavits are reliable and may form a basis
for the Court's ruling on this motion. Cf. DIRECTV, Inc. v.
Budden, 420 F.3d 521, 530 (5th Cir. 2005) (district courts may
"rely on affidavits where the affiants' 'personal knowledge and
competence to testify are reasonably inferred from their
positions and the nature of their participation in the matters to
which they swore'" (quoting Barthelemy v. Air Lines Pilots Ass'n,
897 F.2d 999, 1018 (9th Cir. 1990))).
IV.
CONCLUSION
For the foregoing reasons, the Court concludes that the
quarterbarge UNITY is not a vessel. Thus, plaintiff's claims
against Equipment Co. and CCR for unseaworthiness and negligence
under the general maritime law cannot succeed. Daniel, 892 F.2d
at 409 n.10 ("[U]nseaworthiness requires the existence of a
vessel."); Riley, 2013 WL 5774872, at *5 (because plaintiff's
injury did not occur on a vessel, summary judgment in favor of
defendants on plaintiff's claim for negligence under the general
maritime law was proper); cf. City of Riveria Beach v. That
Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven
Feet In Length, 527 F. App'x 841, 841-42 (11th Cir. 2013)
(holding, on remand from the Supreme Court's decision in Lozman,
that the district court must dismiss the plaintiff's trespass
claim because the barge in question was not a vessel); Ingrassia
21
v. Marina Del Ray, LLC, Civil Action No. 06-2565, 2006 U.S. Dist.
LEXIS 85374, at *5-10 (E.D. La. Nov. 22, 2006) (holding that
plaintiff alleging negligence could not satisfy location test for
admiralty jurisdiction because the barge upon which the plaintiff
was injured was not a vessel). The Court thus GRANTS defendants'
motion and dismisses them from this suit.
Plaintiff has also brought a claim for unseaworthiness and
negligence under the general maritime law against Barges
Unlimited Inc. Barges Unlimited has not moved for summary
judgment, but the Court's finding that the UNITY is not a vessel
is necessarily fatal to plaintiff's claim against Barges
Unlimited. The Court thus puts the parties on notice that it will
enter summary judgment in favor of Barges Unlimited fourteen (14)
days from the date of this order if plaintiff does not show cause
why such a ruling is inappropriate.
New Orleans, Louisiana, this 24th day of March, 2014.
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_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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