Monday March 5, 2007 Determining Vessel Status in the Fifth Circuit

The definition of a "vessel" is important in many different contexts of admiralty and maritime law. For instance, the applicability of several statutes, such as the Jones Act, the Longshore and Harbor Workers’ Compensation Act, the Limitation of Shipowners’ Liability Act, and the Outer Continental Shelf Lands Act, may depend on whether a vessel is involved. However, because both the statutory definitions of the term "vessel" and the general maritime law are rather vague, reaching a decision in particular cases is difficult. This article gives an overview of how vessel status is determined in the Fifth Circuit.

I.                Gremillion v. Gulf Coast Catering, Co., 904 F.2d 290 (5th Cir. 1990)

            In Gremillion, a worker was injured while transferring heavy equipment from a crew boat onto a shoreside quarterboat.  The Plaintiff sued his employer, the owner of the quarterboat, and their insurer.  The United States District Court for the Eastern District of Louisiana entered judgment for the defendants; the Plaintiff appealed.  On appeal, the Fifth Circuit held, among other things, that the quarterbarge in question was not a “vessel” for Jones Act purposes.

            The quarterbarge in question had two decks and served as a floating hotel for 40-60 personnel.  It was designed to service oil companies working in inland waterways and shallow offshore areas.  Among other things, the barge provided messing, sleeping, and recreational facilities.  Lacking self-propulsion, however, the craft was usually towed to a desired location and “spudded down” on one side to the seafloor, with the other side fixed, directly or indirectly, to a bank (There were only two spuds, both on one side.).  Despite advertisements that emphasized the barge’s blue-water capability, there was no evidence to suggest that the Q/B MINDY ever operated in the open sea to provide housing for offshore workers.

            In Gremillion, the Court enunciated a specific test for determining whether dry docks and floating work platforms were non-vessels.  Under the test, non-vessels possessed the following attributes: (1) the structure is 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 platforms primary purpose.

II.                Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir. 1995)

            Pavone involved the BILOXI BELLE, a paddle-wheel gambling boat that was permanently moored to the shore.  In Pavone, the Court held that an “indefinitely moored, shore-side, floating casino” was not a vessel.  Rather than analyzing the vessel status of the floating casino under the traditional maritime methodology, the Fifth Circuit applied the analysis used for vessels withdrawn from navigation and those used as work platforms, with a focus on the putative vessel’s status at the time pertinent to the alleged injury.

            To determine the BILOXI BELLE’s status, the Fifth Circuit considered factors typically used for analyzing work-platform cases: (1) was the structure involved constructed and used primarily as a work platform; (2) was the structure moored or otherwise secured at the time of the accident; and (3) although capable of, and at times engaging in, movement over navigable water, was the structure's function as a means of transportation merely incidental to its primary purpose of serving as a work platform?

            In reaching its conclusion that the BILOXI BELLE was a non-vessel, the Court noted that, from its inception, the barge (upon which the BILOXI BELLE was situated) was used first as a floating restaurant and bar until its conversion to a casino and its renaming as the BILOXI BELLE, after which it was used only for casino purposes.  Upon its arrival to Mississippi from Texas, the BILOXI BELLE was moored to the shore in “a semi-permanent or indefinite manner, and continued to be thus moored before, during, and after the accidents in question.”  Although the BILOXI BELLE was capable of being moved, and had been moved across navigable waters one time, such movement was found to be “purely incidental to the barge’s primary purpose of physically supporting a dockside casino structure.”

III.             Buckley v. Shell Oil Company, et. al., unpublished (E.D. La 1/25/06)

            The same rationale was used to convince Judge Beer to grant summary judgment in favor of defendant, Dynamic Industries, Inc. in Buckley v. Shell Oil Company, et. al.  In this case, the plaintiff was employed by Dynamic when he was allegedly injured while performing his assigned duties aboard the NAKIKA.  The plaintiff claimed that he was a Jones Act seaman at the time of his alleged injury.  Dynamic argued that the plaintiff was not a seaman under the Jones Act because the NAKIKA was not a vessel.

            The NAKIKA is a floating development and production facility that is permanently attached to the subsoil and seabed on the Outer Continental Shelf by use of sixteen steel mooring lines.  Dynamic pointed out that a majority of cases examining the issue identify three factors usually present when floating platforms are not vessels: (1) the structures involved were constructed and used primarily as work platforms; (2) they were moored or otherwise secured at the time of the accident; and (3) although they were capable of movement and sometimes moved across navigable waters in the course of normal operations, any transportation function they performed was merely incidental to their primary purpose.  Dynamic convinced the Court that the NAKIKA satisfied all three of these factors.  

IV.             Stewart v. Dutra Const. Co., 543 U.S. 481, 125 S. Ct. 1118 (2005). 

In 2005, the United States Supreme Court declared what constitutes a vessel for purposes of the Longshore and Harbor Workers’ Compensation Act ("LHWCA") and the Jones Act in Stewart v. Dutra.  In that case, the Supreme Court stated that a "vessel" for purposes of those Acts was defined by Title 1, Section 3 of the United States Code, and must be construed accordingly therewith as "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water."  This holding arguably broadened the prior criteria by which a watercraft was deemed to be a "vessel" for purposes of the LHWCA and Jones Act.

V.                Holmes v. Atlantic Sounding Co., 437 F.3d 441 (5th Cir. 2006)

            In this case, the Fifth Circuit analyzed whether a quarterbarge, which it described as a "floating dormitory," was a vessel for purposes of an action under the Jones Act and general maritime law.  The action was brought by an employee aboard the barge who was injured when a locker and a television set had been placed on top of it fell on her while she opened the locker door to place her belongings inside.  The barge in question had a two-story, 50-bed "quarters package" mounted on it, was incapable of self-propulsion, and was towed from place-to-place to house and feed employees during dredging projects at various locations.  It was not intended to transport personnel, equipment, passengers, or cargo, and it had never done so.

            The defendants contended that the barge was not a "vessel" under the Jones Act and moved for summary judgment.  The Fifth Circuit ruled that the definition of a "vessel" in Stewart applied to actions brought under both the LHWCA and Jones Act.  The Court also held that, because the barge was "practically capable" of transporting equipment; that it did, in fact, transport the attached quarter modules, including the sleeping and eating equipment and supplies; that it had a raked bow and two end tanks for flotation; that it was fitted with traditional vessel-like gear; and that it was moored using anchors as well as land lines, and, in some cases, on navigable waters completely inaccessible from shore except by boat, it was a "vessel" for purposes of the Jones Act.

VI.             De La Rosa v. St. Charles Gaming Co., 474 F.3d 185 (5th Cir. 2006).

            Conversely, in De La Rosa, the Fifth Circuit held that a casino boat permanently moored to a dock on a lake was not a “vessel” so as to confer maritime tort jurisdiction.”  This case involved a slip and fall where the boat, although still physically capable of sailing, had not been used as a seagoing vessel for two years, was indefinitely moored to the land by lines tied to steel pilings, and received water, telephone lines, sewer lines, cable television and data processing from land-based sources. 

 

VII.          Jordan v. Shell Offshore, Inc., et. al., 2007 WL 128313 (S.D. Tex. 1/10/07)

            In a recent unpublished decision by Judge Kent involving a Motion to Transfer Venue, the URSA, a tension leg platform located approximately 140 miles southeast of Louisiana (in water approximately 3,800 feet deep) was found to be a vessel.  The URSA, considered by the USCG to be a “Floating Offshore Installation” (or “FOI”), was equipped with a hull, deck, living quarters, and a permanent crew.  At the time in question, the URSA was only accessible by vessel or helicopter.  The URSA, heavily regulated by the USCG, had an active ballast system.  

            Although the URSA had no means of self propulsion, the Court reasoned that the inherent mobility of a tension leg platform combined with the actual mobility the URSA had undergone (and would likely undergo) deemed it “practically capable” of being used for transportation on navigable waters.

In each of the cases above, the respective Courts considered particular characteristics of the watercrafts in question to be significant in their determination of vessel status. The following chart lists the attributes considered by the Courts and indicates whether the particular vessel/non-vessel in question possessed same. It should be noted that although some Courts considered a variety of vessel traits in their analysis, other Courts focused on just a few.

 

For more information, please contact David W. Leefe at dwleefe@liskow.com, or Vanessa L. Waguespack at vlwaguespack@liskow.com or go to www.liskow.com.

The materials in this document are made available by Liskow & Lewis for informational purposes only and are not legal advice. The transmission and receipt of information contained in the document do not form or constitute an attorney-client relationship. Persons receiving the information in this document should not act upon the information without seeking professional legal counsel. The materials in this document may not reflect the most current legal developments, verdicts or settlements, and should not be considered an indication of future results.

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