Washington, Sr. v. BP America, Inc. et al

Filing 51

ORDER denying 10 Motion to Remand. Signed by Magistrate Judge C Michael Hill on 11/16/2012. (crt,Davenport, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
TERRANCE WASHINGTON

:

DOCKET NO. 6:10 CV 1486

VS.

:

JUDGE DOHERTY

BP AMERICA, INC., ET AL.

:

MAGISTRATE JUDGE HILL

RULING ON MOTION TO REMAND
Pending before the undersigned is the plaintiff’s Motion to Remand this suit to the
16th Judicial District Court in St. Martin Parish, Louisiana. [rec. doc. 10]. The
defendants have filed Opposition, to which plaintiff filed a Reply. [rec. docs. 17-19 and
22]. On December 15, 2010, the Motion to Remand was pretermitted, pending discovery
limited to those issues raised by the Motion. [rec. doc. 23]. Following additional
discovery, the defendants filed an additional Opposition, to which plaintiff filed another
Reply. [rec. docs. 44 and 48]. A Motion to Reopen the remand proceeding was granted on
June 20, 2012 and oral argument was heard on that same day. [rec. doc. 50]. For the
following reasons, the Motion to Remand is DENIED.
Background
On August 17, 2010, plaintiff, Terrance Washington, filed a Jones Act negligence
claim in the 16th Judicial District Court in St. Martin Parish, Louisiana, alleging personal
injury as a result of slipping and falling on a walkway while working as a cook on the
Thunder Horse. The Thunder Horse is allegedly owned and operated by BP America,

Inc., BP Exploration & Production, Inc., and/or BP Production North America, Inc.,
(collectively “BP”). [rec. doc. 1-1, ¶ 2 and 3].
The Thunder Horse is a production drilling quarters located approximately 175
miles southeast of New Orleans, Louisiana on the Outer Continental Shelf. The facility
displaces some 130,000 tons and floats with the benefit of four large, partially submerged
buoyant columns. The structure was towed to the site in the Mississippi Canyon of the
Gulf of Mexico and then secured to the Outer Continental Shelf with 16 wire and chain
mooring lines attached to 19-foot wide piles driven 90 feet into the seabed. Eight
hydrocarbon production lines also connect the Thunder Horse to the seabed.
To service multiple wellheads at the site, the Thunder Horse can move within a
350-foot radius by tightening and slackening its mooring lines. In 2005, Hurricane Dennis
temporarily forced the Thunder Horse outside this radius and caused it to list. Apart from
this one instance, the Thunder Horse has stayed within the 350-foot radius. BP plans to
keep the facility secured to the Outer Continental Shelf for an estimated 25 years, the
productive life of the wells it services. BP estimates that an effort to detach the mooring
lines, secure the wells, and transport the production drilling quarters elsewhere would cost
approximately $400 million. Though it can reposition itself by manipulating its mooring
lines, the Thunder Horse has no means of self-propulsion. It also has no raked bow.
On September 24, 2010, BP removed this case to federal court on the basis of
federal question jurisdiction, contending that Washington’s claims arise under federal

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law, specifically the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1301 et
seq. BP further alleged that plaintiff had failed to state any claim for relief or right of
recovery under the Jones Act.
LAW AND ANALYSIS
Standard of Removal of alleged fraudulently pleaded Jones Act claims
The United States Court of Appeals for the Fifth Circuit has stated, as a general
rule, that Jones Act cases are not removable. Holmes v. Atlantic Sounding Co., Inc., 437
F.3d 441, 445 (5th Cir. 2006). “A fraudulently pleaded Jones Act claim does not,
however, bar removal.” Id. “A defendant may ‘pierce the pleadings to show that the
Jones Act has been fraudulently pleaded to prevent removal.’” Id. (quoting Burchett v.
Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995)). “The district court may use a summary
judgment-like procedure to determine whether a plaintiff has fraudulently pleaded a Jones
Act claim.” Id. (quotations omitted). “The court may deny remand where, but only
where, resolving all disputed facts and ambiguities in current substantive law in plaintiff's
favor, the court determines that the plaintiff has no possibility of establishing a Jones Act
claim on the merits.” Id.
Seaman Status
To qualify as a seaman under the Jones Act, “an employee must first demonstrate
that his duties ‘contribute to the function of the vessel or to the accomplishment of its
mission.’ Id. (quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 359 (1995)). Second, “a
seaman must have a connection to a vessel in navigation (or an identifiable group of

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vessels) that is substantial in terms of both its duration and its nature.” Id. The defendants
contend that the Thunder Horse is not a “vessel” for purposes of the Jones Act. Thus if
the defendants meet their burden and demonstrate that no genuine issue of material fact
exists and that the Thunder Horse is not a Jones Act “vessel”, removal was proper and
remand must be denied.
Vessel Status
“The term ‘vessel’ has . . . escaped precise definition.” Holmes, 437 F.3d at 446.
Before Holmes, the Fifth Circuit’s vessel status jurisprudence focused on two multi-factor
tests. The first test looked to “the purpose for which the craft is constructed.” Holmes,
437 F.3d at 446.1 A second test was used to determine “the business in which [the craft]
is engaged.” Id.2

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To determine the purpose for which a craft is constructed, courts have considered:

(1) whether the owner assembled or constructed the craft to transport passengers, cargo, or
equipment across navigable waters; (2) whether the craft is engaged in that service; (3) whether the
owner intended to move the craft on a regular basis; (4) the length of time that the craft has
remained stationary; and (5) the existence of other “objective vessel features,” such as: (a)
navigational aids; (b) lifeboats and other life-saving equipment; (c) a raked bow; (d) bilge pumps;
(e) crew quarters; and (f) registration with the Coast Guard as a vessel.
Holmes, 437 F.3d at 446.

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The Fifth Circuit applied a three-prong test to determine whether a watercraft was a Jones Act vessel:
(1) The structure was constructed to be used primarily as a work platform;
(2) the structure is moored or otherwise secured at the time of the accident; and
(3) although the platform is capable of movement, and is sometimes moved across navigable
waters in the course of normal operations, any transportation function is merely incidental to the
platform's primary purpose.

Holmes, 437 F.3d at 446-47; see also Fields v. Pool Offshore, Inc., 182 F.3d 353, 357-358 (5th Cir. 1999).

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In 2005, the United States Supreme Court reexamined the definition of vessel in
the context of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).
Stewart v. Dutra Const. Co., 543 U.S. 481,488-97, 125 S.Ct. 1118, 160 L.Ed.2d 932
(2005). In Stewart, the Court stated that the term “vessel” for the purposes of the
LHWCA is defined by 1 U.S.C. § 3 as “every description of water-craft or other artificial
contrivance used, or capable of being used, as a means of transportation on water.”
Stewart, 543 U.S. at 489. Consistent with this definition, the Court determined that any
“watercraft” “practically capable of maritime transportation, regardless of its primary
purpose or state of transit at a particular moment” is a vessel under the LHWCA. Id. at
497. Accordingly, “[t]he question remains in all cases whether the watercraft’s use as a
means of transportation on water is a practical possibility or merely a theoretical one.” Id.
at 496.
In Holmes, the Fifth Circuit concluded that “Stewart’s definition of ‘vessel’
applies equally to the Jones Act and the LHWCA . . . .” Holmes, 437 F. 3d at 448.
Accordingly, a Jones Act “vessel” includes any watercraft “practically capable of
maritime transportation . . . .” Id. Although the Fifth Circuit did not expressly overrule
its prior jurisprudence regarding vessel status, the Holmes Court acknowledged that “the
class of water-borne structures that are vessels for . . . [the] Jones Act is broader than we
have heretofore held.” Id. at 449.
Though Stewart broadened the class of structures that qualify as Jones Act vessels,
limits still exist. Recently, the Fifth Circuit addressed the issue of whether a spar is a

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vessel for purposes of Jones Act liability. Mendez v. Anadarko Petroleum Corp., 466
Fed. Appx. 316 (5th Cir. 2012).3 In Mendez, the RED HAWK spar was a floating gasproduction platform moored in ocean water 5,000 feet deep approximately 210 miles
from Sabine Pass, Texas. The RED HAWK had been moored since 2004, and was
secured to the ocean floor by six single-point anchor moorings comprised of a chain and
polyester line 78 feet long. Each line was anchored to the sea floor with a suction
embedment anchor approximately 18 feet in diameter, and was permanently taut so that
the spar could not move laterally. Additionally, the spar was attached to the sea floor by
an underwater infrastructure of flow lines and export pipeline systems, as well as
umbilicals extending from the spar to the subsea wellheads, used to transport oil and gas
to shore-based facilities. Plaintiff’s employer, Anadarko Petroleum Corp., intended the
spar to remain in place for the productive life of the field.
Using the test in Stewart, the Court found that the RED HAWK spar was not a
vessel. It observed that although the spar floated, it was permanently moored by six 78foot-long mooring lines that were attached to 18–foot anchors deeply embedded into the
sea floor under 5,000 feet of water. Additionally, steel flow lines and export pipelines
further attached the spar to extraction points in one direction and to an onshore
production facility in Louisiana, via another platform, in another direction.

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The Court recognizes that this case was not selected for publication under Fed. R. App. P. 32.1.
See also Fifth Circuit Rules 28.7, 47.5.3, 47.5.4. Therefore, this Court is not bound to follow the Fifth
Circuit decision. However, this Court agrees with the reasoning of the Fifth Circuit in Mendez and finds
it persuasive.

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The Court also noted that the RED HAWK was permanently affixed to the sea
floor and could only be moved after detaching the substantial moorings and pipelines that
had been joined to its structure. Further, the relocation study showed that moving the spar
would involve detaching all the moorings and severing the pipelines, would take nearly
two months, would cost $42 million, and would require abandoning the mooring system
and building a new mooring system at the new site. The study also revealed that, at most,
the RED HAWK was theoretically capable of maritime transportation but not practically
capable.
Citing Stewart (where the Supreme Court discussed approvingly the Fifth Circuit’s
decision in Pavone v. Miss. Riverboat Amusement Corp., 52 F.3d 560, 570 (5th Cir.1995),
holding that a floating casino moored to the shore in a semi-permanent or indefinite
manner was no longer a vessel, as an example of the “sensible” rule that “ships . . . do not
remain vessels merely because of the remote possibility that they may one day sail again,”
(Id. at 494)), Mendez held that the RED HAWK made an even stronger case for
non-vessel status, reasoning as follows:
With 50 days and $42 million dollars, one could undoubtedly disconnect the
electrical, water, telephone, and other hookups that attach a casino boat to
the shore, allowing it to move on water. See id. at 564 (acknowledging that
all that was necessary to disconnect the casino boat from the shore was
“removing the steel pins from the ramps [that connected the casino boat to
the pier] and letting loose all lines and cables”). Disconnecting the RED
HAWK from the sea floor would make disconnecting a casino boat from
the shore look as easy as unplugging a toaster. The RED HAWK, therefore,
embodies the distinction between theoretical capability, which it has, and
practical capability, which it does not. Stewart, 543 U.S. at 496, 125 S.Ct.
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1118 (“The question remains in all cases whether the watercraft's use as a
means of transportation on water is a practical possibility or merely a
theoretical one.”) (internal quotation marks omitted).
Id. at 319.
Similar to the RED HAWK, the Thunder Horse is a floating production drilling
quarters which is permanently moored by 16 mooring cables (as opposed to six on the
RED HAWK) attached to 16 separate anchor pilings each driven approximately 90 feet
into the seabed under 6,000 feet of water (compared to 5,000 for the RED HAWK).
Relocating the Thunder Horse would cost approximately $400 million (compared to $42
million for the RED HAWK). Also, as is the case with the RED HAWK, the Thunder
Horse is further secured through an underwater infrastructure of production lines.
Finally, like the RED HAWK, the Thunder Horse was intended to remain in place for the
duration of its useful life.
The majority of district courts within the Fifth Circuit, including this Court, have
held that a spar is not a vessel in the context of a Jones Act personal injury action. Moore
v. Bis Salamis, Inc., 748 F.Supp.2d 598 (E.D. Tex. 2010); Rushing v. Pride Intern., Inc.,
2011 WL 3021043 (S.D. Tex. July 22, 2011); Richardson v. Kerr-McGee Oil & Gas
Corporation, 2011 WL 2565315 (E.D. La. June 28, 2011) (Berrigan, J.); Channel v.
Grand Island Shipyard, Inc., 2001 WL 515220 (E.D. La. May 1, 2001); Pupusha v.
Murphy Exploration & Production Co.-USA, et al, Docket No. 06-0549 (E.D. La. June
14, 2006) (Duvall, J.); Soileau v. Nabors Offshore Company, Docket No. 04-2334 (W.D.
La. April 27, 2006) (Haik, J.) (granting summary judgment on the grounds that a spar was
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permanently moored and not a “vessel” within the intendment of general maritime law or
the Jones Act). The undersigned has recently followed the reasoning of these cases. See
Memorandum Ruling, Hefren v. Murphy Exploration and Production, et. al, Docket no.
12-1899 (W.D. La., October 25, 2012).
The plaintiff would have this Court distinguish the spar in Mendez and similar
spars from the Thunder Horse. Specifically, the plaintiff stresses that whereas the RED
HAWK has permanently taut mooring lines and was unable to move laterally, the
Thunder Horse does move laterally within its 350-foot radius by tightening and
slackening its mooring lines. Ultimately, the Court concludes that this lateral movement
does not convert the Thunder Horse into a Jones Act vessel for several reasons.
First, the Stewart test is not whether a structure is capable of lateral movement, but
whether it is “practically capable of maritime transportation . . . .” Stewart, 543 U.S. at
497. The Fifth Circuit concluded in Fields that a floating platform capable of moving
250-feet in any direction by tightening and slackening its mooring chains was not a Jones
Act vessel. See Fields, 182 F.3d at 359. Though Fields was decided pre-Stewart, the
post-Stewart court in Mendez still cited Fields as authority in determining Jones Act
vessel status:
The district court determined that Mendez could not establish a connection
to a vessel in navigation because the RED HAWK is not a vessel in
navigation as the Supreme Court has defined that term. We held that a spar
almost identical to the RED HAWK was not a vessel in Fields v. Pool
Offshore, 182 F.3d 353 (5th Cir. 1999). We therefore agree with the district

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court's conclusion.4
Mendez, 466 Fed. Appx, at 318.
Second, while the Fifth Circuit has yet to apply the Stewart and Holmes analysis to
floating platforms such as the Thunder Horse, district courts in the Fifth Circuit have
applied the Stewart and Holmes analysis to the Thunder Horse and consistently
determined that the Thunder Horse is not a vessel for Jones Act purposes and,
accordingly, denied remand on that basis. Moore, 748 F.Supp.2d at 603-08 (“[B]ecause
of its extensive attachment to the ocean floor and long-term commitment to a single
location, . . . the Thunder Horse is a work platform that is permanently attached to the
seabed and not a Jones Act vessel.”); Rushing v. Pride Intern., Inc., 2011 WL 3021043
(S.D. Tex. July 22, 2011) (concluding that the Thunder Horse is a floating platform and
not a vessel); see also Scroggs v. Big Salamis, Inc., 2010 WL 3910563 (E.D. Tex. Oct. 5,
2010) (granting summary judgment on plaintiff's Jones Act claims because the Thunder
Horse is a work platform, not a Jones Act vessel). Though these cases are not binding on
this Court, the Court finds their reasoning persuasive, and adopts their reasoning.
Finally, the Thunder Horse’s non-vessel status is consistent with the Fifth
Circuit’s recent decision in ACE American Ins. Co. v. M-I, L.L.C., - - F.3d - -, 2012 WL
5077684 (5th Cir. Oct. 19, 2012), in which the Fifth Circuit characterized the Thunder

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As the Court in Moore recognized, “the Holmes court applied some of the pre-Stewart factors in
its analysis of the facts before it . . .” including the objective vessel features such as raked bow, flotation
tanks and anchors. Moore, 748 F.Supp.2d at 605

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Horse as a stationary platform, and held that the plaintiff's work performed on the
Thunder Horse was not maritime in nature, and that the choice of laws provision in a
master service agreement applied because the Thunder Horse was permanently attached
to the Outer Continental Shelf.
CONCLUSION
For the foregoing reasons, the undersigned concludes that, for purposes of remand,
there is no possibility that plaintiff, Terrance Washington, is a Jones Act seaman because
the Thunder Horse is not a vessel within the meaning of the Jones Act. Hence the Jones
Act does not bar removal. Accordingly, the Motion to Remand is DENIED.
Signed this 16th day of November, 2012, at Lafayette, Louisiana.

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