Opinion
No. 09-30211.
December 17, 2009.
T. Carey Wicker, III, Capitelli Wicker, New Orleans, LA, for Plaintiff-Appellee.
Alfred J. Rufty, III, Rufus C. Harris, III, Cindy Galpin Martin, Jill Schultz Willhoft, Harris Rufty LLC, New Orleans, LA, for Defendant-Third Party Plaintiff-Appellee.
Robert S. Reich, Reich, Album Plunkett L.L.C., Metairie, LA, for Third Party Defendants-Appellants.
Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:07-CV-8136.
Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.
Triumph Marine, Inc. and Offshore Lift-boats, LLC (collectively "Triumph") appeal following the district court's summary judgment determination that Plaintiff Noel Butcher is not a Jones Act seaman. For the following reasons, we AFFIRM:
1. Superior Offshore International challenges Triumph's standing to appeal. Its assertion that only a seaman's employer or personal representative may appeal in a case involving a determination of Jones Act seaman status is incorrect. See, e.g., Foulk v. Donjon Marine Co., 144 F.3d 252, 257 (3d Cir. 1998). Triumph's standing depends on whether it has suffered an actual or threatened injury that may be redressed on appeal. See Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 496 (5th Cir. 2007) (en banc). The district court's determination that Butcher is not a Jones Act seaman would implicate operation of the Longshore and Harbor Workers' Compensation Act, which in turn could affect Triumph's indemnity claims. See 33 U.S.C. § 905(b); cf. Jenkins v. Aries Marine Corp., 554 F.Supp.2d 635, 641 (E.D.La. 2008). Triumph therefore has standing.
2. The district court correctly determined that Butcher's connection to the vessel MAGGIE was not substantial in duration and nature. See Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 2190, 132 L.Ed.2d 314 (1995). Butcher was a painter/blaster. It is un-disputed that all of the painting and blasting work was done on the fixed platform, which is not a vessel. See Hufnagel v. Omega Serv. Indus., 182 F.3d 340, 347 n. 1 (5th Cir. 1999). Although Butcher performed some tasks on board the vessel, such as occasionally filling paint pots and sweeping sand, the testimony showed these to be incidental and minor in nature. See id. at 347. Butcher agreed with counsel's question that he worked thirty percent of his time on board the vessel but this included time spent for meals and breaks, which does not make Butcher a seaman. See id. Furthermore, Butcher's testimony describing his daily activity showed that he spent less than thirty percent of his time actually working on board the MAGGIE. Therefore, he may not be considered a seaman. See Chandris, 515 U.S. at 371, 115 S.Ct. at 2191.
AFFIRMED.