Opinion
CIVIL ACTION NO. 02-1129, SECTION "L"(5).
May 19, 2003.
ORDER REASONS
Before the Court is the defendant's Motion for Reconsideration of this Court's Denial of its Motion for Summary Judgment on the issue of vessel status. For the following reasons, the defendant's motion is DENIED.
I. FACTS
Plaintiff Kenneth Demarco ("Demarco") filed suit under the Jones Act and general maritime laws for injuries sustained while handling a tag line aboard an unnamed barge in the Mississippi River near the Bungee Grain Elevator in Destrehan, Louisiana on May 17, 1999. The barge to which the plaintiff was assigned is an unnamed "floater barge" lacking self-propulsion. A tug was required to move the barge from location to location. Its only navigational devices were mooring lines and winches to secure its placement during work. It had no crew quarters, and the crew members went home each day following the completion of their assigned tasks.
At the time of the accident, the barge was moored by a series of cables that were attached to dolphins or trees on the riverbank, according to the testimony of barge foreman, Reed Pertuit. No additional mooring lines were used, and no piles were driven to increase stability. Pertuit testified that the cables were attached to engines on the barge that would wind or unwind the cables to allow the barge to be positioned for work. Once the barge was in position, the engines were shut down, and the crew would perform its assigned jobs.
Pertuit further testified that the barge had been in its current position near Destrehan for about six months. Prior to arriving at the Bungee Grain Elevator, the barge was near Baton Rouge, Louisiana and towed to the grain elevator by a tugboat. Pertuit testified that the barge was secured to the tug in a manner similar to grain barges being towed along the river. Furthermore, the crane on the floater was permanently affixed to the barge and was thus transported with the barge when it moved along the river. Finally, Pertuit testified that when the barge was prepared for movement to a new job location it was not stripped down, and that the tools and tool shack were not removed from the barge deck; thus, the crew's equipment was towed to the next job site.
On March 5, 2003, defendant brought for oral argument before the Court a motion for summary judgment arguing that the floater barge was not a vessel in navigation, as that term is defined under the Jones Act, and that the plaintiff was not a seaman because he lacked a permanent connection to a vessel. For reasons given orally, the Court denied the defendant's motion on both issues. Defendant now moves for reconsideration of that ruling only as it concerns the issue of vessel status, arguing that the Court should apply the Fifth Circuit's holding in Bernard v. Binnings Construction Co., 741 F.2d 824 (5th Cir. 1984) rather than the Court's decision in Brunet v. Boh Brothers Construction Co., 715 F.2d 196 (5th Cir. 1983).
II. ANALYSIS
A. Standard for Motion for Reconsideration
Although a motion for reconsideration of a Court's order is not found in the federal rules of civil procedure, the Court construes such motions as one for relief under Rule 59(e). The decision to grant a motion under Rule 59 rests within the discretion of the district court. See Edward H. Bohlin Co., Inc. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). Modifying or setting aside a judgment under Rule 59 is an extraordinary remedy; motions for reconsideration should not be avenues for relitigating old matters, raising new arguments, or submitting evidence that could have been presented before. See Theriot v. Parish of Jefferson, 66 F. Supp.2d 1435, 1452 (E.D. La. 1997); Campbell v. St. Tammany Parish School Board, 1999 WL 777720, at *1 (E.D. La. Sept. 29, 1999).
B. Defendant's Motion for Reconsideration
The Court notes that the defendant does not present any new evidence in its motion for reconsideration or any arguments that were not previously before this Court. Rather, it relies on the affidavit of Reed Pertuit submitted with the defendant's original motion and the argument that the holding of Bernard trumps the holding of Brunet because Bernard was decided a year after Burnet. The Court finds it helpful to briefly discuss the holdings of those cases before turning to the facts of the instant case.
In Brunet, the Court considered the vessel status of the Barge 4000 Ringer. Brunet, 715 F.2d at 197. The barge consisted of several interlocking platforms and carried a 150-ton crane to drive pilings. Id. The barge had no self-propulsion and had to be moved into position at the time of the incident in question by the use of tugboats. Id. It could move short distances through the use of cables running from the deck engines. Id. It lacked crew quarters, but did have a shed built for the purpose of housing tools and equipment. Id. The court concluded that although "the barge was used more often to support the crane than to transport it, we cannot agree that the transportation function was so `incidental' as to warrant a conclusion that the barge was not a vessel as a matter of law." Id. at 198. Further, the barge was designed not only to support the crane but also to transport it, as the barge had moved to four different job location in the six months preceding the plaintiffs accident. Id. at 199.
In Bernard, the court denied vessel status to a work punt, a small platform lacking any navigational equipment or deck lights. Bernard, 741 F.2d at 825-26. The parties had stipulated that the work punt was used solely as a platform to permit the breaking of cement and guiding of sheet pilings. The court articulated a three-part test to determine whether a work platform was a vessel: (1) whether the structures' primary use was as a work platform; (2) whether they were moored at the time of the accident; and (3) whether any transportation function was incidental to its primary purpose. Id. at 83 1. Relying on the parties' stipulation, the court concluded that any transportation function was minimal, at best, and was not sufficient to create a genuine issue of fact for a jury. Id. at 832.
The Bernard court then distinguished the facts before it from the facts before the Brunet court, noting:
We find Brunet's pile-driving barge distinguishable from the work punt. The parties in the instant case have stipulated that the work punt was used "solely" as a work platform. In Brunet, on the other hand, the summary judgment evidence indicated that the barge was used as a work platform and was both designed and used on a "fairly regular basis" to transport the crane around the Gulf of Mexico. Therefore, the Brunet record, like that in other "special use" cases, could have supported the inference that the barge was designed or used primarily for navigation.Id. at 833-34.
When the principles of Bernard and Brunet are applied to the instant case, the Court is unpersuaded that its reliance on Brunet was in error. As noted above, defendant relies on Reed Pertuit's affidavit, which provides that the floating barge, which he refers to as a "work platform barge" that "was intended for the sole purpose of construction operations and pile driving operations" and was never used to transport people or equipment. Essentially, the affidavit reiterates the Bernard test.
Plaintiff, however, submits Pertuit's deposition in opposition to the defendant's motion; Pertuit's testimony presents factual issues when compared to the statements in the affidavit. First, as noted above, according to Pertuit, the barge does transport equipment and tools along the river when it is towed. This is especially true for the crane which is permanently affixed to the floating barge. Second, Pertuit testified that he was familiar with the Barge 4000 Ringer, which was at issue in Brunet, because both barges have the same owner: the defendant, Boh Brothers. According to Pertuit, the only differences in the two barges were that the crane on the Barge 4000 Ringer was not permanently affixed and could turn 360 degrees.
The Court finds that these differences between Pertuit's deposition and affidavit establish issues of material fact precluding summary judgment in this case. Bernard did not overrule Brunet; in fact, it distinguished Brunet in such a way as to create two lines of cases on vessel status: work platform cases and special structure cases. Courts have found the former not to be vessels, but have found the latter either to be vessels or to present issues of material fact sufficient to preclude summary judgment in the employer's favor. See Manuel v. P.A. W. Drilling Well Service, Inc., 135 F.3d 344 (5th Cir. 1998) (comparing and contrasting the Fifth Circuit's work platform and special purpose craft lines of jurisprudence). Accordingly, this Court's reliance on Brunet in denying the defendant's motion for summary judgment was proper.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the defendant's Motion for Reconsideration of the Court's March 5, 2003 denial of the motion for summary judgment be DENIED.