Bellot v. Marine Surveys L L C

Filing 54

MEMORANDUM RULING re 29 MOTION for Summary Judgment On Plaintiff's Seaman Status filed by Steven Bellot and 43 MOTION for Summary Judgment filed by Marine Surveys L L C. Signed by Magistrate Judge Carol B Whitehurst on 11/30/2015. (crt,Yocum, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Bellot

Civil Action No. 15-00140

versus

Magistrate Judge Carol B. Whitehurst

Marine Surveys, L.L.C.

By Consent of the Parties

MEMORANDUM RULING
Before the Court are cross Motions for Summary Judgment on the Issue of
Plaintiff’s Seaman Status filed by plaintiff, Steven Bellot, [Rec. Doc. 29] and
Defendant, Marine Surveys, LLC’s (“Marine Surveys”) [Rec. Doc. 43], both parties’
oppositions [Rec. Docs. 39; 45] and both parties’ replies [Rec. Doc. 42; 48]. For the
reasons that follow, the Motions will be denied.
Factual and Procedural Background
This action arises from a claim under the General Maritime Law for unpaid
wages filed by Plaintiff, Steven Bellot, against his employer, Marine Surveys, L.L.C.
(“Marine Surveys”). Bellot worked aboard vessels owned, operated and/or chartered
by Marine Surveys from February 16, 2011 to September 8, 2014. During his
employment with Marine Surveys, Bellot performed offshore seismic survey work for
oil companies. R. 39, Exh. 1, Bellot Dep.,pp. 39-40. Bellot states in his affidavit that
from December 13, 2013 through March 12, 2014 he worked for Marine Surveys off

the Nigerian coast aboard the M/V OMAR MESHACK. R. 29, Exh. C, Bellot aff. He
further states that Marine Surveys assigned Bellot a second tour in Nigeria from June
6, 2014 to September 8, 2014 at which time he worked on the M/V PRINCESS
GERTRUDE. Id. As the Field Project Manager, Plaintiff’s job was to direct the
vessels where they would conduct surveys or otherwise work. Id. Marine Surverys
confirmed that its Nigerian company, Silvetti Marine Surveys Ltd., chartered both
Nigeria vessels for the work performed in Nigeria. R. 16, Exh. B, Silvetti Aff. Silvetti
further confirms that both vessels were owned by Nigeria companies. Id.
Plaintiff alleges that although he earned a total of $190,400.00 in wages
between December 12, 2013 and September 8, 2014, Marine Surveys only paid him
a total of $66,000.00. On January 5, 2015, Bellot made written demand upon the
members of Marine Surveys, for payment of past due seaman’s wages totaling
$124,400.00. On January 26, 2015, Bellot filed this action for payment of past due
seaman’s wages under 46 U.S.C. §10313 and the General Maritime Law, specifically
stating “an admiralty or maritime claim within the meaning of Rule 9(h) and
supplemental rules for admiralty and maritime claims.” R. 1. Marine Surveys filed an
answer and counter-claim contending it loaned $67,021.08 to Bellot, and as a result
of the loan, Bellot is indebted to Marine Surveys in the approximate amount of
$27,106.38, plus interest.

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Plaintiff filed his Motion for Summary Judgment on July 20, 2015 asserting
that he is a seaman for purposes of bringing a wage claim under 46 U.S.C. § 10313.
On August 14, 2015, the parties consented to trial before the undersigned Judge and
the Motion was reassigned to this Court. R. 36. Thereafter, on October 1, 2015,
Marine Surveys filed a cross Motion for Summary Judgment as to Plaintiff’s seaman
status. On November 5, 2015, in a telephone conference with the parties, the Court
issued an order directing the parties to brief whether or not Plaintiff’s claims under
46 U.S.C. §10301, et seq, specifically § 10313, confer jurisdiction on the Court. R.
51.
II. Summary Judgment Standard
Summary judgment is appropriate if no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Under
Rule 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 Corp.
v. Catrett, 477 U.S. 317, 323 (1986); see Stahl v. Novartis Pharms. Corp., 283 F.3d
254, 263 (5th Cir.2002). The party moving for summary judgment must demonstrate
the absence of a genuine issue of material fact but need not negate the elements of the
nonmovant’s case. Exxon Corp. v. Oxxford Clothes XX, Inc., 109 F.3d 1070, 1074 (5th

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Cir.1997). When the moving party, has met its Rule 56(c) burden, the nonmoving
party, cannot survive a summary judgment motion by resting on the mere allegations
of its pleadings. “[T]he nonmovant must identify specific evidence in the record and
articulate the manner in which that evidence supports that party’s claim.” Johnson v.
Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir.2004).
III. Analysis
1. Whether The Court Has Jurisdiction Under 46 U.S.C. §§ 10301, et seq.
Plaintiff claims he is entitled to unpaid wages and penalties under Title 46 of
the United States Code Section 10313. Chapter 103 of Title 46, Shipping, contains
a wage penalty provision which allows recovery of back wages and a penalty of two
days wages for each day the employer is late. These statutory provisions are intended
to protect seamen from harsh and unscrupulous actions by employers. Castillo v.
Spiliada Maritime Corp., 937 F.2d 240, 243 (5th Cir.1991). Additionally, these
statutes are designed to prevent, by their coercive effect, arbitrary refusals to pay
wages and to induce prompt payment when payment is possible. Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 572 (1982).
46 U.S.C. § 10101 provides the applicable definitions for Chapter 103 and
specifically states, “(3) ‘seaman’ means an individual (except scientific personnel, a

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sailing school instructor, or a sailing school student) engaged or employed in any
capacity on board a vessel.” The reasoning behind § 10101's exclusion of crew
members engaged in oceanographic research is that, prior to 1965, some scientific
personnel were considered a member of the crew because they contributed to the
mission of the vessel even though their duties were scientific in nature. Those
scientific personnel who could not be considered crewmen were classified as
passengers under the general laws relative to passenger vessels. Finding that these
requirements hampered the operation of such research vessels, Congress enacted the
Oceanographic Research Vessels Act, 46 U.S.C. §§ 441-445 (ORVA). The statute
defines an “oceanographic research vessel” (O.R.V.) as a “vessel which the Secretary
of the department in which the Coast Guard is operating finds is being employed
exclusively in instruction in oceanography or limnology, or both, or exclusively in
oceanographic research, including, but not limited to, such studies pertaining to the
sea as seismic, gravity meter and magnetic exploration and other marine geophysical
or geological surveys, atmospheric research, and biological research.” 46 U.S.C. Sec.
441.
Wage statute 46 U.S.C. § 10313 protects seamen on foreign and intercoastal
voyages. Solvang v. M/T Plan Kristine, 1993 WL 666703, at *5 (S.D.Tex.,1993). The
scope of foreign and intercoastal voyages is defined in 46 U.S.C. § 10301, Id., which

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states in pertinent part:
a) Except as otherwise specifically provided, this chapter applies to a vessel of the
United States—
1) on a voyage between a port of the United States and a port in a
foreign country (except a port in Canada, Mexico, or the West Indies);
or
2) of at least 75 gross tons on a voyage between a port of the United
States on the Atlantic Ocean and a port of the United States on the
Pacific Ocean.
...
(c) Unless otherwise provided, this chapter does not apply to a foreign vessel.
46 U.S.C. § 10301.
In light of Plaintiff’s wage claim allegations that his work as a seaman
conducting scientific seismic surveys was aboard Nigerian vessels, Plaintiff was
ordered to brief whether or not this Court has jurisdiction under the above statutory
language related to 46 U.S.C.§ 10313. That is, whether Plaintiff is precluded from
being a “seaman” and/or whether the “Nigerian vessels” were “foreign vessels,” such
that his claims under Chapter 301 must be dismissed. The Court further ordered
Marine Surveys to respond to Plaintiff’s brief.
In their responses, both parties agree that the ORVA does not preclude
Plaintiff’s alleged seaman status because neither the M/V OMAS MESHACK nor the
M/V PRINCESS GERTRUDE were designated as “oceanographic research vessels”
by the United States Coast Guard. Thus, Plaintiff is not precluded from alleging that
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he is a “seaman” for purposes of Chapter 301.
The parties further agree, however, that the vessels at issue in Plaintiff’s wage
claim were Nigerian, and therefore are excluded as “foreign vessels” under §
10301(c). Also, as provided by Marine Surveys, the vessels do not meet the voyage
requirements for the foreign vessel exception under § 10301(a) as they were not “on
a voyage between a port of the United States and a port in a foreign country,” nor “on
a voyage between a port of the United States on the Atlantic Ocean and a port of the
United States on the Pacific Ocean.” 46 U.S.C. § 10301(a). Thus, as the work at issue
was on foreign vessels, Plaintiff’s wage claims under Chapter 301, in particular 46
U.S.C. § 10313, must be dismissed.1
While Plaintiff does not have a cause of action under 46 U.S.C. § 10301, et
seq., he also alleges his wage “claim is an admiralty or maritime claim within the
meaning of Rule 9(h) and supplemental rules for admiralty and maritime claims.” R.
1. The Court agrees with Marine Surveys’ suggestion that “the contract of hire
between Bellot and Marine Surveys would seem to be a maritime contract” and if so
“this Court would have maritime jurisdiction over the claim.” R. 53, p. 5. The Court
does not agree, however, with Marine Surveys’ statement that Plaintiff must be “a

1

Plaintiff’s original claim under § 10302, “Shipping articles agreements, and his recent
contention that he has a claim under § 10314, “Advances,” are also precluded based on the
foreign vessel exclusion in § 10301 as well as § 10314.

seaman” under its Jones Act analysis in order for a maritime contract to exist.2 Id.
The right to wages arises out of the contract of employment. A contractual
dispute invokes admiralty jurisdiction when the underlying contract is a maritime
contract. See J.A.R., Inc. v. M/V Lady Lucille, 963 F.2d 96, 98 (5th Cir.1992). “A
maritime contract is ‘[a] contract relating to a ship in its use as such, or to commerce
or navigation on navigable waters, or to transportation by sea or to maritime
employment[.]’ ” Id. (quoting 1 E. Jhirad, A. Sann, B. Chase & M. Chynsky, Benedict
on Admiralty, § 183, at 11–6 (7th ed. 1985).
In Akers v. Shaw Environmental, Inc., 2010 WL 3523046, at *3
(W.D.La.,2010), the court distinguished between a claim based on a maritime
employment agreement and a Jones Act claim. The court noted the defendants’
statement that “the employment must be performed aboard or for the direct benefit
of a vessel in navigation” had added “an additional requirement to a contract for
maritime employment.” Id. Quoting the “plain language of Benedict on Admiralty”
cited above, Benedict on Admiralty, § 183, at 11–6, the Akers’ court stated,
“defendants appear to have conflated the test for Jones Act seaman status with
maritime employment.”3
2

In order for Plaintiff to establish a claim under 46 U.S.C. § 10301, et seq. he was required to
be a “seaman.”
3

The court noted the test articulated in Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995), to
determine whether a plaintiff is a seaman under the Jones Act rather than a land-based employee
is, “First, ... an employee’s duties must ‘contribut[e] to the function of the vessel or to the

In the Fifth Circuit, when determining whether a contract is maritime or
non-maritime a court should engage in a “fact-specific inquiry” by applying the
six-factor test set forth in Davis and Sons, Inc. v. Gulf Oil Corp.:
1) what does the specific work order in effect at the time of injury
provide? 2) what work did the crew assigned under the work order
actually do? 3) was the crew assigned to work aboard a vessel in
navigable waters? 4) to what extent did the work being done relate to the
mission of that vessel? 5) what was the principal work of the injured
worker? and 6) what work was the injured worker actually doing at the
time of injury?
919 F.2d 313, 316 (5th Cir.1990); see also Hoda v. Rowan Companies, Inc., 419 F.3d
379, 381 (5th Cir.2005).
Based on the Court’s determination that Plaintiff’s claims under 46 U.S.C. §
10301, et seq must be dismissed, the Court will deny the parties’ cross motions for
summary judgment as to whether or not Plaintiff is a seaman with regard to those
statutes. The Court will also allow Plaintiff to amend his Complaint in order to plead
the factual allegations in support of his “admiralty or maritime claim.”

accomplishment of its mission.’ . . . Second, and most important for our purposes here, 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.”
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