Martin v. Fab-Con Inc et al

Filing 75

ORDER AND REASONS granting 36 Motion by Fab-Con, Inc. for Summary Judgment and dismisses Fab-Con from this case. The Court's holding that plaintiff is not a seaman also means that his claims for unseaworthiness against Equipment Co., LLC, Ba rges Unlimited, Inc., and CCR, LLC are not viable. The Court thus puts the parties on notice that it will enter summary judgment in favor of all of the remaining defendants 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 3/12/14. (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
Defendant Fab-Con, Inc. moves the Court for summary judgment

pursuant to Federal Rule of Civil Procedure 56.1 Because the
Court finds that plaintiff is not a Jones Act seaman, the Court
GRANTS defendant's motion and dismisses it from the case.
II.

BACKGROUND
Plaintiff Michael Martin began working as a cook for Fab-

Con, a company that provides support services to companies
engaged in offshore work,2 on September 7, 2011.3 From that date
until November 20, 2012, plaintiff worked exclusively on either
land or fixed platforms.4 Plaintiff testified that he

1

R. Doc. 36.

2

R. Doc. 36-5 at 1.

3

Id. at 2; id. at 5.

4

Id. at 2.

occasionally spent time sleeping on vessels and traveling to
platforms on vessels, however.5 According to Dai Nguyen,
plaintiff's supervisor,6 plaintiff worked 195 days total on fixed
platforms from the beginning of his employment with Fab-Con until
November 20.7
On December 4, 2012, plaintiff began a seven-day hitch
working as a galley hand on board the quarterbarge UNITY at Grand
Bay Receiving Station, where Fab-Con was performing work for
Apache Corporation.8 Plaintiff testified that his duties on the
UNITY included doing laundry, taking out the trash, mopping and
sweeping, "break[ing] down the line," and cleaning
refrigerators.9 Nguyen stated that he allowed plaintiff to do the
seven-day hitch because plaintiff wanted more work to supplement
his income, and there was no platform work available at the
time.10 Nguyen testified that plaintiff's assignment on the UNITY
would have "ended on December 10, 2012, which is the date when
Fab-Con's work for Apache Corporation concluded."11 After that

5

R. Doc. 36-6 at 7.

6

See R. Doc. 36-5 at 1; R. Doc. 36-6 at 3.

7

R. Doc. 36-5 at 2; see also id. at 5-14.

8

R. Doc. 36-5 at 3; R. Doc. 36-6 at 6.

9

R. Doc. 37-1 at 3.

10

R. Doc. 36-5 at 3.

11

Id.
2

date, plaintiff was to return to working on fixed platforms as a
cook.12
On December 9, 2012, one day before his hitch on the UNITY
was to conclude, plaintiff allegedly slipped and fell in a puddle
of diesel oil in the barge's laundry room and sustained a
herniated lumbar disc and a lumbar strain.13 He then brought this
Jones Act claim for negligence, unseaworthiness, and maintenance
and cure against Fab-Con, Inc.14 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.15 Shortly after filing suit, plaintiff
amended his complaint to include claims for unseaworthiness
against Equipment Co., LLC, the owner of the UNITY, and Barges
Unlimited, Inc. and CCR, Inc., the charterers of the UNITY.16
Fab-Con now moves for summary judgment on the ground that
plaintiff is not a Jones Act seaman as a matter of law because he
spent less than five percent of his employment time on board a
vessel.17 Plaintiff responds that his reassignment to the UNITY

12

Id.

13

R. Doc. 1 at 2.

14

See id.

15

Id. at 3.

16

R. Doc. 19.

17

See R. Doc. 36.
3

constituted a change in status sufficient to entitle him to the
protections of the Jones Act.18
II.

LEGAL 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
verdict if the evidence went uncontroverted at trial.'" Int'l
18

See R. Doc. 37.
4

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)).

III. DISCUSSION
5

"The Jones Act provides a cause of action in negligence for
'any seaman' injured 'in the course of his employment.'"
Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (citing 46
U.S.C. § 688); see also Becker v. Tidewater, 335 F.3d 376, 386
(5th Cir. 2003). The term "seaman" is not defined in the Jones
Act. Chandris, 515 U.S. at 355. The Supreme Court has instructed
that not every "maritime worker on a ship at sea as part of his
employment is automatically a member of the crew of the vessel
within the meaning of the statutory terms." Id. at 363. Instead,
to achieve status as a seaman, an employee must show (1) that his
duties contributed to the function of a navigable vessel or the
accomplishment of its mission; and (2) that he had a connection
to a vessel in navigation (or to an identifiable group of
vessels) that was substantial in terms of both its duration and
its nature. Id. at 368; Becker, 335 F.3d at 387. The purpose of
this test is to "separate the sea-based maritime employees who
are entitled to Jones Act protection from those land-based
workers who have only a transitory or sporadic connection to a
vessel in navigation, and therefore whose employment does not
regularly expose them to the perils of the sea." Chandris, 515
U.S. at 368. Importantly, the Supreme Court has explicitly
rejected a "voyage test," under which "anyone working on board a
vessel for the duration of a 'voyage' in furtherance of the
vessel's mission has the necessary employment-related connection

6

to qualify as a seaman." Becker, 335 F.3d at 388 (quoting
Chandris, 515 U.S. at 358); see also Chandris, 515 U.S. at 361
("Land-based maritime workers do not become seamen because they
happen to be working on board a vessel when they are injured . .
. ."); id. at 363.
Whether a person is a seaman is ordinarily a question of
fact for the jury. Becker, 335 F.3d at 386; Ellender v. Kiva
Const. & Eng'g, Inc., 909 F.2d 803, 805 (5th Cir. 1990). But
"summary judgment is appropriate where 'the facts establish [the
lack of seaman status] beyond a question as a matter of law' and
no reasonable evidentiary basis exists to support a jury finding
that the injured person is a seaman." Ellender, 909 F.2d at 80506 (alteration in original) (quoting Barrett v. Chevron U.S.A.,
Inc., 781 F.2d 1067, 1074 (5th Cir. 1986)); accord Becker, 335
F.3d at 386.
Here, Fab-Con has established as a matter of law that
plaintiff lacked a substantial connection to the UNITY in terms
of duration. To assess the temporal element of the seaman status
test, the Supreme Court has adopted a rule of thumb: "A worker
who spends less than about 30 percent of his time in the service
of a vessel in navigation should not qualify as a seaman under
the Jones Act." Chandris, 515 U.S. at 371. According to Nguyen,
Martin's supervisor, plaintiff spent only six days of his
employment with Fab-Con engaged in seaman's work on board the

7

UNITY; the other 195 days were spent working on fixed platforms.
Plaintiff has presented no evidence tending to contradict this
account. Thus, assuming without deciding that the UNITY is a
"vessel," plaintiff spent less than three percent of his time
working for Fab-Con on board a vessel. True, plaintiff's
testimony suggests that he spent time on vessels sleeping and
traveling to platforms. But that time does not figure into the
analysis because it was not spent "in the service of a vessel in
navigation." See, e.g., Hufnagel v. Omega Serv. Indus., Inc., 182
F.3d 340, 347 (5th Cir. 1999) (holding that the time plaintiff
"ate, slept, and spent time" on vessel could not be considered in
the substantial connection analysis); Williams v. Danos & Curole
Mar. Contractors, LLC, 797 F. Supp. 2d 712, 717 (E.D. La. 2011)
(same).
Plaintiff argues that a departure from the thirty percent
test is warranted here because Martin's seaman status changed
when he was reassigned to the UNITY to work as a galley hand. In
support of this argument, plaintiff cites Chandris for the
proposition that "[w]hen a maritime worker's basic assignment
changes, his seaman status may change as well."19
The Court is not persuaded. The Fifth Circuit has held that,
in order for this exception to the thirty percent test to apply,
the reassignment must be permanent. Becker, 335 F.3d at 390. In

19

R. Doc. 37 at 2-3 (quoting Chandris, 515 U.S. at 372).
8

Becker, the Fifth Circuit considered whether an engineering
intern who had been assigned to work a temporary hitch as a
member of the crew of the technological vessel REPUBLIC TIDE was
a Jones Act seaman. The court held that he was not, because "the
mere fact that [he] was ordered to work a crew position aboard
the REPUBLIC TIDE [was] not sufficient as a matter of law to
establish a substantial connection to that vessel, absent
evidence that his essential duties as an intern had changed." Id.
at 391.
The same conclusion is appropriate here. There is no
evidence that the nature of Martin's employment was "permanently
changed or that his that his essential duties . . . had been
altered by his assignment to the [UNITY]." Id. Instead, the
evidence indicates that "plaintiff's position on the [UNITY]
arose by happenstance," id., when plaintiff was unable to obtain
sufficient hours working on fixed platforms and asked Nguyen for
extra work.20 According to Nguyen's affidavit, plaintiff was to
return to his work as a cook on fixed platforms as soon as his
seven-day hitch on the UNITY ended.21 In other words, plaintiff's
work aboard the UNITY was only temporary; it did "not constitute
the kind of regular or continuous commitment of his labor to the
service of that vessel that regularly exposed him to the perils

20

See R. Doc. 36-5 at 3.

21

Id. at 3.
9

of the sea within the meaning of Chandris." Id.; see also Smith
v. Nicklos Drilling Co., 841 F.2d 598, 600 (5th Cir. 1988) (for
purposes of the Jones Act, a "permanent" assignment is one that
is "'for an indefinite period' -- not temporary").
It is true that plaintiff testified that, when Nguyen
reassigned him, Nguyen told him that it could be for the duration
of the Apache job if Martin wanted it.22 But plaintiff did not
contradict Nguyen's testimony that the job for Apache was to
conclude on December 10, 2012, at the end of plaintiff's sevenday hitch on the UNITY. Accordingly, there is no evidence in the
record suggesting plaintiff's position as a galley hand on the
UNITY was intended to last "for an indefinite period," Smith, 841
F.2d at 600. Instead, it is clear that plaintiff's work on the
UNITY would have ended on December 10, 2012, at the conclusion of
the Apache job. A jury faced with this record could reach only
one reasonable conclusion: plaintiff's assignment to the UNITY
was not a permanent and "fundamental change in status" that made
him a Jones Act seaman. See, e.g., George v. Cal-Dive Int'l,
Inc., Civil Action No. 09-5472, 2010 WL 2696876, at *1, 6 (E.D.
La. July 1, 2010) (finding that plaintiff who was injured on
board a vessel where he had been working for 12 days was not a
Jones Act seaman as a matter of law because he did not "expect
permanent or prolonged placement with any particular vessel or

22

See R. Doc. 36-6 at 8.
10

identifiable group of vessels under common ownership or
control"); Nicole v Southstar Indus. Contractors, No. Civ.A. 031432, 2004 WL 936848, at *1-2 (E.D. La. Apr. 29, 2004) (finding
that plaintiff who had been injured on board a vessel was not a
Jones Act seaman as a matter of law because "his time aboard
th[e] vessel was limited to approximately a seven week
refurbishing project," and there was no evidence suggesting that
he had an ongoing connection to that vessel or any other); cf.
Wilcox v. Welders, Civil Action No. 12-2389, --- F. Supp. ----,
2013 WL 4591162, at *7 (E.D. La. Aug. 28, 2013) ("The Fifth
Circuit has rejected claims of seaman status as a matter of law
in numerous cases in which temporary offshore workers . . .
claimed that they were permanently reassigned for a discrete
voyage in which their essential duties did not change."
(collecting cases)).
In view of the foregoing, the Court concludes that plaintiff
lacked a substantial connection to a vessel and that Fab-Con is
entitled to summary judgment on plaintiff's status as a seaman.
See Williams, 797 F. Supp. 2d at 717. Accordingly, plaintiff's
claims under the Jones Act and for maintenance and cure must be
dismissed. See Lantz v. SHRM Catering Servs., Inc., No. 93-4940,
14 F.3d 54, at *1 (5th Cir. Jan. 5, 1994) (unpublished) ("The
standard for determining seaman status for the purposes of
maintenance and cure is the same as that established for

11

determining status under the Jones Act." (quoting Hall v. Diamond
M Co., 732 F.2d 1246, 1248 (5th Cir. 1984)); Williams, 797 F.
Supp. 2d at 717 (dismissing Jones Act and maintenance and cure
claims because plaintiff spent less than thirty percent of his
time on a vessel).
The Court's finding that plaintiff is not a Jones Act seaman
also means that plaintiff's unseaworthiness claim against Fab-Con
must fail. See Stumbaugh v. Am. Commercial Lines LLC, Civil
Action No. 08-1669, 2009 WL 1458037, at *1 (E.D. La. May 26,
2009); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-27
(5th ed. 2013)

("The warranty of seaworthiness . . . is a duty

owed only to a narrow class of maritime workers -- those who can
claim 'seaman' status under the law."). Because plaintiff is not
a seaman, he is limited to a cause of action pursuant to the
Longshore and Harbor Workers' Compensation Act, which applies "to
maritime workers "injured upon navigable waters while in the
course of [their] employment." Bienvenu v. Texaco, Inc., 164 F.3d
901, 907 (5th Cir. 1999); Becker, 335 F.3d at 386 (because "the
Jones Act and the LHWCA are 'mutually exclusive compensation
regimes,'" if a plaintiff is not a Jones Act seaman, "he is
protected only by the LHWCA"). Workers covered by the LHWCA do
not have a cause of action for unseaworthiness. See 33 U.S.C.
§ 905(b); Becker, 335 F.3d at 387; Aparicio v. Swan Lake, 643
F.2d 1109, 1116 n.11 (5th Cir. 1981) (noting that section 905(b)

12

"abrogat[ed] the unseaworthiness remedy" for employees covered by
the LHWCA).23 The Court thus dismisses plaintiff's claim against
Fab-Con for unseaworthiness as well.

IV.

CONCLUSION
For the foregoing reasons, the Court concludes that

plaintiff is not a Jones Act seaman. Thus, plaintiff's claims
against Fab-Con for negligence, unseaworthiness, and maintenance
and cure cannot succeed. Plaintiff has asserted no other claims
against Fab-Con. Accordingly the Court GRANTS Fab-Con's motion
for summary judgment and dismisses it from this case.
The Court's holding that plaintiff is not a seaman also
means that his claims for unseaworthiness against Equipment Co.,
LLC, Barges Unlimited, Inc., and CCR, LLC are not viable. The
Court thus puts the parties on notice that it will enter summary
judgment in favor of all of the remaining defendants fourteen
23

In the Fifth Circuit, there is a narrow exception to
the rule that only Jones Act seamen can assert a cause of action
for unseaworthiness. "[M]aritime workers who are not within the
coverage of the LHWCA" -- so-called Sieracki seamen -- may still
bring unseaworthiness claims. Aparicio, 643 F.2d at 1118; accord
Authement v. Conoco, Inc., CIV. A. No. 86-3482, 1987 WL 54426, at
*4 (E.D. La. Nov. 20, 1987); see generally Seas Shipping Co. v.
Sieracki, 328 U.S. 85 (1946). Plaintiff does not argue that he
qualifies as a Sieracki seaman, and, indeed, any such argument
would not succeed. It is undisputed that plaintiff spent nearly
of all his employment with Fab-Con working on fixed platforms.
Accordingly, he falls within the coverage of the LHWCA, and is
thus not a Sieracki seaman by definition. See Becker, 335 F.3d at
391 ("Fixed platforms are not vessels, and workers injured on
them are covered under the LHWCA, not the Jones Act."); Aparicio,
643 F.2d at 1118.
13

(14) days from the date of this order if plaintiff does not show
cause why such a ruling is inappropriate.

New Orleans, Louisiana, this __ day of March, 2014.
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

14