In the Matter of: Marquette Transportation Company, LLC

Filing 188

ORDER AND REASONS: IT IS ORDERED that Marquette's 117 Motion for partial summary judgment with respect to the seaman's status of Plaintiff Joseph Solomon is DENIED.As Plaintiffs Ainsworth and Bankston have resolved their claims, Marquette's 116 Motion for partial summary judgment with respect to the seaman's status of Plaintiffs Ainsworth and Bankston is DISMISSED AS MOOT. Signed by Judge Eldon E. Fallon on 3/29/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF:
MARQUETTE TRANSPORTATION COMPANY

CIVIL ACTION
NO. 15-2316

THIS DOCUMENT RELATES TO: ALL CASES

SECTION "L" (1)

ORDER & REASONS

Before the Court is a motion filed by Defendant Marquette Transportation Company
(“Marquette”). R. 117. The motion addresses the seaman status of Joseph Solomon, a personal
injury Plaintiff who filed a cross-claim in In re Marquette, No. 15-2316. Marquette argues that
Solomon is a seaman, such that Kostmayer Construction, LLC (“Kostmayer”) is liable for his
injuries as Solomon’s employer. Solomon’s employers 1, Ameri-Force Craft Services, Inc. and
Signal Mutual Indemnity Association (“Ameri-Force”) oppose the Motion. R. 137. Kostmayer also
opposes the Motion, and adopts Ameri-Force’s response. R. 151. Finally, Plaintiff Solomon
responds. R. 157.
I. BACKGROUND
These consolidated cases involve two accidents that occurred on two separate dates on the
Mississippi River. First, on September 22, 2014, the M/V Blake Denton, operated by Defendant
Marquette Transportation Company, struck the Barge CP-12, chartered to Plaintiff Kostmayer, and
pushed the CP-12 into Barge OU-701, also owned by Kostmayer. R. 1-1 at 1. Both of Plaintiff’s

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There is some dispute over which company was Solomon’s employer at the time of the accident.
However, it is not necessary to address this issue at this stage in the proceeding.

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barges were tied to a dock in the Mississippi River in East Baton Rouge Parish when Barge CP12 was struck by the M/V Blake Denton, which was traveling southbound with approximately
thirty-five barges in tow. R. 1-1 at 1–2. Barge CP-12 was pushed into Barge OU-701, and both
barges detached from the dock and floated freely downriver until a tow boat pushed them to the
east bank. R. 1-1 at 2. Kostmayer alleged that the barges sustained substantial damage as a result
of the impact and required extensive repairs. R. 1-1 at 2.
Plaintiff Kostmayer invoked the Court’s jurisdiction pursuant to 28 U.S.C. §§ 1332 and
1333, and asserted multiple negligence theories based on the actions of the captain and crew
manning Defendant’s vessel: (1) inattentiveness to their duties, (2) failing to see what they should
have seen, (3) failing to maintain control of the towed barges, and (4) any other acts of negligence.
R. 1-1 at 2. Kostmayer sought property damages, including the cost of repairs, loss of use, and lost
profits. R. 1-1 at 2.
Marquette denied all allegations of negligence and asserted a number of affirmative
defenses. R. 5 at 3. First, Marquette avers that Plaintiff’s barges and the dock were obstructions to
navigation. R. 5 at 3. Marquette also alleges that the damages sustained by Plaintiff’s barges
resulted from unrelated incidents or from normal wear and tear. R. 5 at 3. Marquette alleges that
Kostmayer’s damages were caused solely or in part by its own fault or negligence, including failure
to maintain a proper lookout, violations of the U.S. Inland Navigation Rules and other regulations,
and failure to properly moor the barges without obstructing the channel. R. 5 at 4.
A second and unrelated accident between Kostmayer and Marquette occurred on December
29, 2014. In this accident, Marquette was operating the M/V Myra Eckstein near the Terminal 234
Dock Facility on the Mississippi River in Baton Rouge, LA. According to Kostmayer’s Petition in
state court, the M/V Myra Eckstein “contacted” two other crane barges operated by Kostmayer.

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At the time of the accident, the cranes were spudded down, or anchored, in the Mississippi River,
in relation to work Kostmayer was completing on a mooring dolphin attached to the CEMUS dock
near the 190 bridge in Baton Rouge. Plaintiffs James Ainsworth (“Ainsworth”) and Michael
Bankston (“Bankston”) were employed by Kostmayer as welders, while Joseph Solomon
(“Solomon”) was employed by Ameri-Force and assigned to work for Kostmayer. At the time of
the accident, Ainsworth and Bankston were eating lunch on the MS Darlene, while Solomon was
working on the MS Ashley, the two crane barges involved in the accident. Solomon avers that
when the M/V Myra Eckstein allided with the barge where he was working, he sustained personal
injuries. Solomon seeks various damages, including loss of earnings and earning capacity, pain
and suffering, and mental anguish.
Plaintiff Kostmayer has resolved its claims against Marquette. Similarly, Plaintiffs
Ainsworth and Bankston have resolved their personal injury claims. Thus, the Court need only
address the seaman’s status of Plaintiff Solomon.
II. PRESENT MOTIONS
a. Defendant’s Motion for Partial Summary Judgment as to Seaman Status of
Joseph Solomon (R. 117)
Marquette seeks partial summary judgment that Plaintiff Joseph Solomon is a Jones Act
seaman such that Kostmayer, as his employer, is liable for any injuries he may have sustained. R.
116-1 at 1. Further, Marquette contends that if Solomon is a seaman, he may be partially at fault
for failing to maintain a lookout on the day of the accident. R. 116-1 at 1. Marquette argues that
Solomon meets the two-part test for seaman, as his duties contributed to the function of the vessel
or accomplishment of its mission, and he had a substantial connection to the vessel both in terms
of duration and nature. R. 116-1 at 4 (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995)).
First, Marquette explains that this particular fleet of vessels included two crane barges, a material

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barge, a tug boat, and a flat boat, which moved as a unit to the construction site. R. 116-1 at 2-3.
According to Marquette, Solomon directly contributed to the mission of the fleet, as his installation
work was necessary to build the mooring dolphin. R. 116-1 at 2. Further, Marquette argues that
Solomon had a substantial connection to this fleet of vessels, such that he qualifies for seaman’s
status.
Marquette explains that Solomon was not employed directly by Kostmayer, but instead by
Ameri-Force, and was assigned to work for Kostmayer as the operator of a crane known as a cherry
picker. R. 117-1 at 1-2. Solomon worked ten hours a day, six days a week, and was assigned to the
MS Ashley, one of the barges involved in the accident, the entire time he worked for Kostmayer.
R. 117-1 at 2. Marquette argues that the MS Ashley was one of the crane barges in the same fleet
of vessels that Ainsworth and Bankston were assigned. Like the other personal injury plaintiffs,
Solomon did not walk onto the barge each day for work, but either took a boat or a man-lift. R.
117-3.
Marquette argues that like the Plaintiff in Navarre v. Kostmayer Constr. Co., these facts
demonstrate Solomon had substantial contacts with the fleet of vessels to satisfy the two-prong
test for seaman status. 52 So.3d 921, 925 (La. App. 4th Cir. 2010). 2 R. 116-1 at 4. Further,
Marquette contends that Solomon was assigned to the barge a majority of the time, and the fact
that he could have been assigned to another vessel does not change his status as seaman. R. 116-1
at 6-7 (citing Manuel v. P.A.W. Drilling & Well Service, Inc., 135 F.3d 344, 352 (5th Cir. 1998)
(holding Plaintiff who had been assigned to a rig for the entire two months leading up to the

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In Navarre v. Kostmayer Construction Co., the Louisiana Fourth Circuit held that a Kostmayer welder was
a seaman. The Court explained that because he rode to and from the barge each day on an outboard motor boat,
remained on the barge as it was moved to various job sites, and spent 60-70% of his workdays on the barge, he had a
substantial connection to the barge. In particular, the Court emphasized that the circumstances of his injury indicated
he was a seaman, as he was injured on the vessel while actively engaged in the “mission” of the vessel. 52 So. 3d 921,
925 (La. App. 4th Cir. 2010).

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accident was a seaman, even though he could have been reassigned to another vessel)). Finally,
Marquette argues Solomon was injured while working over water, which demonstrates he was
exposed to the “perils of the sea.” R. 116-1 at 8-9.
a. Ameri-Force Craft Services, Inc. and Signal Mutual Indemnity Association’s
Opposition (R. 137/152)
Ameri-Force opposes Marquette’s Motion and argues there is insufficient evidence
whether Solomon’s work on the vessel was incidental to his work as a welder at a construction
site, and whether Kostmayer had sufficient control over his work to preclude him from borrowed
servant status. R. 137 at 1. Further, Ameri-Force argues that this motion is premature, as they have
not had adequate time to use discovery to determine whether Solomon is a Jones Act seaman. 3
Ameri-Force explains that at the time of the accident, Solomon was working on a stationary
barge owned by Kostmayer. R. 137 at 2. When he was injured, Ameri-Force and its insurer, Signal,
paid benefits under the Longshore and Harbor Worker’s Compensation Act (“LHWCA”), which
Solomon accepted. R. 137 at 2. Ameri-Force filed an answer and seeks to recover on its lien under
the LHWCA. However, if Solomon is a Jones Act seaman, then he is owed maintenance and cure
under the Jones Act rather than the benefits he was paid under the LHWCA. Additionally, whether
Solomon is a borrowed servant of Kostmayer will determine who is liable for his maintenance and
cure payments. R. 137 at 3.
Ameri-Force argues that as the bulk of this litigation has addressed property damage and
loss of use, very little discovery has been done regarding the status of the personal injury Plaintiffs.
As such, Ameri-Force avers that the only evidence on this issue is the testimony Solomon provided
during his deposition, which states he was hired by Ameri-Force and assigned to work on the

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Marquette’s Motion regarding the seaman’s status of the personal injury Plaintiffs was filed on November
16, 2016. The Court gave the parties until January 16, 2017 to submit their oppositions. Therefore, they have had two
months to complete additional discovery on these issues.

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Kostmayer vessel. R. 137 at 3-4. He received some work instructions from Josh Bankston, a
Kostmayer employee 4, and other instructions from Ameri-Force employees. R. 137 at 4. Further,
Solomon explained that he did not sleep or eat on the vessel and was never on the vessel while it
was moving to other construction sites along the river. Ameri-Force argues that he was not a
member of the crew, but a welder who worked on a platform that “happened to be [a] stationary
barge[].” R. 137 at 5. Thus, Ameri-Force argues that Solomon is not a seaman, but a welder whose
work on the barge was incidental to his job as a construction worker. 5 R. 137 at 6.
Instead, Ameri-Force argues that Solomon is a longshoreman, as defined in the
LHWCA, as his injuries occurred in an area typically used by longshoreman while he was engaged
in maritime employment. R. 137 at 8 (citing Richard v. Mike Hooks, 799 So.2d 466 (La. 2001)
(holding Plaintiff was not seaman after evaluating the totality of the circumstances and determining
Plaintiff was not exposed to the perils of the sea)). Ameri-Force argues that because Solomon only
worked on stationary barges, his work aboard the vessels was incidental to his overall work as a
welder. R. 137 at 10.
Next, Ameri-Force argues that there is insufficient evidence to determine whether
Solomon was a borrowed servant of Kostmayer. R. 137 at 11. According to Ameri-Force, to
determine if a borrowed servant relationship exists, the Court should consider the amount of
control the borrower has over the servant, whether there is such an agreement between the
borrower and the lender, whether the servant believes he is employed by the borrower, whether
the general employer temporarily terminates employment; who supplied the necessary job tools;

4
Ameri-Force explains that Josh Bankston, Michael Bankston’s brother, was an Ameri-Force employee.
However, based on Solomon’s deposition, this appears to be a typographical error. See R. 137, Ex. 1, Solomon
Deposition, p. 81, ln. 15-16. Both Bankstons were employed directly by Kostmayer.
5
Ameri-Force also argues that the timing of the motion is prejudicial, as they do not have adequate time to
complete discovery on these issues. R. 137 at 6-7.

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the length of employment, and who paid the servant’s wages. R. 137 at 12 (citing Ruiz v. Shell Oil
Co., 413 F.2d 310, 313 (5th Cir. 1969)). Ameri-Force argues that Marquette has not provided any
evidence regarding Solomon’s employer, other than the fact that a Kostmayer employee supervised
Solomon and Ameri-Force handled his payroll and LHWCA claim. R. 137 at 12. Thus, AmeriForce contends that summary judgment on this issue is premature.
b. Kostmayer’s Opposition (R. 151)
Kostmayer contends that the timing of Marquette’s motions “is prejudicial to all parties
and should be denied.” R. 151 at 1. Kostmayer explains that Marquette initially filed a “Complaint
for Exoneration From, or Alternatively, Limitation of Liability,” after the December, 2014
incident. R. 151 at 2. The personal injury Plaintiffs then filed answers and counter-claims against
Marquette seeking to recover damages for personal injuries. R. 151 at 2. Kostmayer avers that after
all the discovery regarding liability was completed, Marquette then filed this motion regarding the
seaman status of these Plaintiffs, despite the fact that the Plaintiff themselves had not sought
seaman status. R. 151 at 2. Kostmayer argues that because these motions were filed so late, the
parties have not had a sufficient opportunity to discover facts related to the seaman status of the
personal injury Plaintiffs. In support of this argument, Kostmayer adopts Ameri-Force’s motion as
it relates to this issue.
c. Plaintiff Solomon’s Response (R. 157)
Plaintiff Solomon responds, and objects to the motion to the extent Marquette seeks to
use Solomon’s seaman status as an affirmative defense to his personal injury claims. R. 157 at 1.
Solomon avers that this defense is untimely, and adopts Kostmayer’s opposition to the extent it
addresses these issues. R. 157 at 2.

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III.

LAW AND ANALYSIS
a.

Standard for Summary Judgment

Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (citing FED. R. CIV. P. 56(c)); 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 refrains from making credibility determinations or weighing the
evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008).
Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial burden of
“informing the district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 322. When the moving party has met its Rule 56(c) burden, “[t]he non-movant cannot
avoid summary judgment . . . by merely making ‘conclusory allegations' or ‘unsubstantiated
assertions.’ ” Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002) (quoting
Little, 37 F.3d at 1075). “The mere existence of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on which the jury could reasonably find for
the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986). All reasonable inferences
are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with
conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately
must be satisfied that “a reasonable jury could not return a verdict for the nonmoving party.” Delta,
530 F.3d at 399.

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b. Standard for Establishing Seaman Status
The Jones Act provides that “[a] seaman injured in the course of employment . . . may elect
to bring a civil action at law, with the right of trial by jury, against the employer.” 46 U.S.C. §
30104. The Jones Act does not define the term “seaman,” therefore, courts have been left to
determine exactly which maritime workers are entitled to the special protections that the Jones Act
provides. See Chandris v. Latsis, 515 U.S. 347, 354 (1995). The Supreme Court has determined
that seaman status requires: (1) that the employee's duties contribute to the function of a vessel in
navigation (or identifiable group of vessels) or to the accomplishment of its mission and (2) that
the connection be substantial in terms of both its nature and duration. See Chandris, 515 U.S. at
368. The purpose of the 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 with a vessel in navigation, and therefore whose employment does not regularly expose
them to the perils of the sea.” Id. at 371.
The “substantial connection” inquiry includes a temporal element. Chandris, 515 U.S. at
371. In Chandris, the Supreme Court adopted the Fifth Circuit's “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.” Id. The Court warned, however, that this figure is a
“guideline” and that “departure from it will certainly be justified in appropriate cases.” Id. The
Court must still examine the “total circumstances of an individual's employment” to determine
“whether the worker in question is a member of the vessel's crew or simply a land-based employee
who happens to be working on the vessel at a given time.” Id. at 369.
c. Discussion
As a preliminary matter, it is worth noting that Solomon himself has not sought seaman’s

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status, nor did he initially elect to proceed as a seaman in this matter. Instead, this issue has been
raised by a third party, after a substantial amount of discovery was already completed in this case.
Turning to the merits of the motion, whether Solomon is a seaman is a question of fact. Plaintiff
Solomon must indicate how much time he was assigned to these particular vessels, how much time
he spent on a given vessel, and whether he was exposed to the perils of the sea. Chandris, 515 U.S.
at 371.
Based on the limited facts available on this issue, Solomon may have been “substantially
connected” to the vessel. At the time of the accident, he had worked at Kostmayer only two months,
but had been assigned to this group of vessels the entire time he was working for Kostmayer. While
he did not eat or sleep on the vessel, he was ferried to work every day either by a boat or a manlife. However, Solomon did not elect to pursue his claims as a seaman, but instead chose to seek
remedies as a longshoreman.
While some facts may support a finding that Solomon is entitled to seaman’s status, the
Court finds that the factual record is too underdeveloped to resolve this issue via summary
judgment. During oral argument, the parties indicated they have not had an opportunity to conduct
discovery regarding the conditions of Plaintiff’s employment and specific job duties. That,
combined with the fact that Plaintiff is not himself seeking seaman’s status, indicates this issue is
not ripe for summary judgment.
Furthermore, Ameri-Force is correct that summary judgment regarding whether Solomon
was a borrowed employee is premature at this time. The scant evidence on this point, namely that
Solomon received some instructions from Kostmayer staff and some from Ameri-Force, while
Ameri-Force handled his payroll and human resource materials, is inconclusive to determine who
employed him at the time of the accident. Because there are genuine disputes of material fact as to

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whether Solomon had a substantial connection to a vessel or was exposed to the perils of the sea,
in addition to factual questions regarding Plaintiff Solomon’s employer, summary judgment is not
appropriate on either issue at this time.
IV.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Marquette’s Motion for partial summary

judgment with respect to the seaman’s status of Plaintiff Joseph Solomon, R. 117, is DENIED.
As Plaintiffs Ainsworth and Bankston have resolved their claims, Marquette’s Motion for
partial summary judgment with respect to the seaman’s status of Plaintiffs Ainsworth and
Bankston, R. 116, is DISMISSED AS MOOT.
New Orleans, Louisiana, this 29th day of March, 2017.

_______________________________________
UNITED STATES DISTRICT COURT JUDGE

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