Hewitt et al v. Noble Drilling US, LLC et al
Filing
144
ORDER AND REASONS: For the following reasons, Plaintiff's Motion is DENIED 47 , and Defendants' Motions are GRANTED 65 , 67 , 92 . Plaintiff's claims under for Jones Act negligence, unseaworthiness, and maintenance and cure are DISMISSED WITH PREJUDICE.Signed by Judge Jane Triche Milazzo on 5/5/2016. (my)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WALTER HEWITT ET AL.
CIVIL ACTION
VERSUS
NO: 15-1197
NOBLE DRILLING US, LLC ET AL.
SECTION: “H”(5)
ORDER AND REASONS
Before the Court are Plaintiffs’ Motion for Summary Judgment on
seaman status (Doc. 47); Defendant Frank’s International LLC’s Motion for
Summary Judgment on seaman status (Doc. 65); Defendant Noble Drilling
U.S. LLC’s Motion for Summary Judgment on seaman status (Doc. 67); and
Defendant Shell Offshore Inc.’s Motion for Summary Judgment on seaman
status (Doc. 92). For the following reasons, Plaintiffs’ Motion is DENIED (Doc.
47), and Defendants’ Motions are GRANTED (Docs. 65, 67, 92).
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BACKGROUND
Plaintiff Walter Hewitt alleges that he was a seaman working as a tong
operator aboard a drilling vessel, the FRONTIER DRILLER, 1 when a gust of
wind caused the lid of a tool box to close on his head, injuring him. At the time,
Plaintiff was employed by Defendant Frank’s International, LLC (“Franks”).
The FRONTIER DRILLER was owned by Defendant Noble Drilling U.S., LLC
(“Noble”) and operated by Defendant Shell Offshore, Inc. (“Shell”). Plaintiff
alleges that the tool box lacked certain safety measures, specifically a
hydraulic closure system, which would have prevented it from closing on his
head. He has brought claims under the Jones Act and general maritime law
for unseaworthiness, maintenance and cure, and punitive damages for failure
to pay maintenance and cure. He has also brought a claim under 33 U.S.C. §
905(b) of the Longshore and Harbor Worker’s Compensation Act. Plaintiff’s
wife also brings a claim for loss of consortium.
Plaintiffs and Defendants dispute Plaintiff’s status as a seaman, and all
parties have filed motions for summary judgment regarding this issue.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 2 A genuine issue
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2
Also referred to in briefings as the NOBLE DRILLER.
Fed. R. Civ. P. 56(c) (2012).
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of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 3
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 4 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 5 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 6 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 7 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 8 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 9
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
5 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
7 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
8 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
9 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
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LAW AND ANALYSIS
The issue before the Court is whether Plaintiff is a Jones Act seaman.
Plaintiff argues that he meets the requirements of seaman status, while
Defendants dispute this and seek dismissal of his Jones Act, unseaworthiness,
and maintenance and cure claims.
“The Jones Act provides a cause of action in negligence for ‘any seaman’
injured ‘in the course of his employment.’” 10
The Jones Act provides
heightened legal protections to seamen because of their exposure to the
inherent dangers of the high seas and was intended to provide remedial
protections to sea-based maritime workers. 11
provide a definition of a “seaman.” 12
The Act, however, does not
Instead, the Supreme Court has
promulgated two requirements for an employee to achieve seaman status. 13
First, “an employee’s duties must contribute to the function of the vessel or to
the accomplishment of its mission.” 14
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.” 15
The parties do not dispute that Plaintiff meets the first prong of the test.
However, Defendants argue that Plaintiff cannot meet the second prong of the
seaman test because he cannot show a connection with a particular rig or fleet
of rigs under common ownership.
Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (quoting 46 U.S.C. § 688(a)).
Id.
12 Id. at 355.
13 Id. at 368.
14 Id. (internal quotations omitted).
15 Id.
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11
The fundamental purpose of the substantial connection requirement is
“[t]o 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.” 16 As a general 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.” 17
This time must be spent on one particular vessel or an identifiable fleet of
vessels. 18 “In deciding whether there is an identifiable group of vessels of
relevance for a Jones Act seaman-status determination, the question is
whether the vessels are subject to common ownership or control.” 19
Defendants argue that Plaintiff did not work aboard a fleet under common
control.
Plaintiff argues that the law does not require that he work aboard a fleet
of vessels under common ownership or operational control in order to be
classified as a seaman. In support, Plaintiff cites to the Fifth Circuit’s opinion
in Barrios v. Louisiana Construction Materials Co. 20 The Court finds, however,
that this case fails to address the issue at hand.
In Barrios, the plaintiff worked on the same spud barge for about eight
months prior to his injury, and the jury found that he had established a
substantial connection with the barge such that he was a member of its crew. 21
The jury found the plaintiff’s employer liable under the Jones Act but also
Id.
Id. at 371.
18 Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 557 (1997).
19 Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 376 (5th Cir. 2001).
20 Barrios v. Louisiana Const. Materials Co., 465 F.2d 1157 (5th Cir. 1972).
21 Id. at 1163.
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found that another company was the operator of the vessel and thus liable for
its unseaworthiness. 22 The issue before the Fifth Circuit was whether, to be
held liable under the Jones Act, the Jones Act defendant had to operate the
vessel to which the plaintiff was connected. 23 The Fifth Circuit found that the
plaintiff’s employer need not have operational control over the barge to be held
liable under the Jones Act. 24
The issue here, however, is not whether Plaintiff’s employer Franks had
operational control over the FRONTIER DRILLER; but rather whether
Plaintiff had a connection to a fleet of vessels that was under anyone’s common
operational control. The cases cited by Plaintiff discuss seaman who alleged a
connection to a single vessel and whether the Jones Act employer must have
control over that vessel to be held liable. 25 Plaintiff has not pointed this Court
to any case law that calls into question the viability of the common ownership
or operational control rule. It is well settled that a seaman must have a
connection to a vessel or fleet of vessels. 26 Further, “a ‘fleet’ is not simply any
group of vessels an employee happens to work aboard. It is a finite group of
vessels under common ownership or control.” 27
Here, Plaintiff worked for Franks as a tong operator and member of the
casing crew.
He testified that he worked two-to-three-week jobs aboard
various rigs as assigned by Franks. Plaintiff was employed with Franks from
Id.
Id.
24 Id. at 1166.
25 Id.; Hurst v. Baker Hughes, Inc., No. 14-1819, 2015 WL 4397136 (E.D. La. July 16,
22
23
2015).
Chandris, Inc., 515 U.S. at 368.
Deshazo v. Baker Hughes Oilfield Operations, Inc., No. 99-2552, 2000 WL 798410,
at *3 (E.D. La. June 19, 2000).
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2009 through the day of the accident on April 29, 2012. In that time, he had
worked aboard upwards of 15 different vessels owned and operated by various
different companies. 28 In fact, Plaintiff testified that he has “been on just about
every rig in the gulf.” 29
Plaintiff’s situation is much more akin to the facts of Deshazo v. Baker
Hughes Oilfield Operations Inc. in which the plaintiff was found not to have
attained seaman status because he worked aboard four different rigs that were
owned by three different companies and were not under common operational
control. 30 The court specifically noted that the nature of the plaintiff’s job as a
troubleshooter required that he be aboard multiple rigs owned by multiple
parties on an as-needed basis. 31 Likewise the Fifth Circuit has held that a
plaintiff was not a seaman when she “performed approximately 32% of her
work on fifteen different vessels owned by ten unrelated owners.” 32
Here too, Plaintiff’s job as a member of a casing crew requires that he be
aboard different vessels for short periods of time to assist customers of Franks.
He does not dispute that he worked for two-and-three-week periods aboard
multiple rigs owned by different companies at the direction of his employer.
He also does not argue that those rigs were under common ownership or
Docs. 65-5, 65-6.
Doc. 65-10, p. 40.
30 Id.
31 Id. at 4.
32 Langston v. Schlumberger Offshore Servs., Inc., 809 F.2d 1192, 1194 (5th Cir.
1987); see Cunningham v. Schlumberger Well Servs., 937 F. Supp. 570, 573 (W.D. La. 1996)
(“[Plaintiff] did not have a connection to a vessel in navigation (or an identifiable group of
vessels) that was substantial in terms of both its duration and nature. Like the plaintiffs in
Langston (18 jobs, 15 vessels, 10 owners) and Ardleigh [v. Schlumberger Ltd., 832 F.2d 933
(5th Cir.1987)] (40 jobs, 30 vessels, lacking common ownership) and Lirette v. N.L. Sperry
Sun, Inc., 831 F.2d 554 (5th Cir.1987) (4 years, 23 vessels lacking common ownership), the
group of vessels that Cunningham worked aboard simply did not qualify as a fleet.”).
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operational control. Accordingly, Plaintiff has failed to satisfy the second
prong required to show seaman status.
This Court finds, therefore, that
Plaintiff is not a seaman under the terms of the Jones Act. Indeed, a court in
the Western District of Louisiana previously held that a similar employee of
Franks was not a seaman. 33
Plaintiff next argues that the determination of seaman status is
inappropriate at the summary judgment stage. It is true that the Supreme
Court has stated that “[t]he seaman inquiry is a mixed question of law and
fact, and it is often inappropriate to take the question from the jury.
Nevertheless, summary judgment or a directed verdict is mandated where the
facts and law will reasonably support only one conclusion.” 34 This Court finds
that the facts presented here are not in dispute and can lead to only one
conclusion. Plaintiff offers no material facts upon which a jury could find that
he has the required connection with a fleet of vessels under common control or
ownership. The only conclusion warranted in this case is that Plaintiff is not
a seaman.
Because Plaintiff is not a seaman, he is not entitled to bring a claim
under the Jones Act.
In addition, he is not entitled to bring claims for
Burnham v. Ensco Offshore Co., No. 09-CV-1379, 2011 WL 3759761, at *3 (W.D.
La. Aug. 25, 2011) (“[T]here is no evidence that he was assigned to a particular vessel or to
a fleet of vessels under common ownership or control for more than 30% of the time that he
was employed by Frank's Casing Crew. Accordingly, he cannot satisfy the test for seaman
status prescribed by the United States Supreme Court and applied routinely by the Fifth
Circuit.”).
34 Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554 (1997) (internal citations
omitted).
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33
unseaworthiness or maintenance and cure, as those remedies are reserved for
seamen. 35 Accordingly, those claims are dismissed.
CONCLUSION
For the following reasons, Plaintiff’s Motion is DENIED (Doc. 47), and
Defendants’ Motions are GRANTED (Docs. 65, 67, 92). Plaintiff’s claims under
for Jones Act negligence, unseaworthiness, and maintenance and cure are
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 5th day of May, 2016.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
See Willis v. McDonough Marine Serv., No. 14-811, 2015 WL 3824366, at *4 (E.D.
La. June 18, 2015); Chandris, Inc., 515 U.S. 347, 378 (1995).
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