Opinion
CIVIL ACTION No. 03-1901, SECTION: I/1
March 2, 2004
ORDER AND REASONS
Defendants, Daybrook Fisheries, Inc., and Westbank Corporation (collectively "Daybrook"), alleging that plaintiff is not a Jones Act seaman, have filed a motion for summary judgment requesting dismissal of plaintiff's claims pursuant to the Jones Act, 46 U.S.C. § 688, as well as dismissal of his claims for unseaworthiness and maintenance and cure pursuant to the general maritime law. For the following reasons, the defendants' motion for summary judgment is GRANTED.
Rec. Doc. No. 18.
Relevant Facts
Daybrook operates a menhaden fishing business and processing plant in Empire Louisiana. Plaintiff, Osay Duplessis ("Duplessis"), became employed by Daybrook in 1998 or 1999 as a hose puller and then as a bailer. During the 2002 fishing season, the plaintiff worked for Daybrook as a menhaden bailer. On October 11, 2002, plaintiff alleges that he was injured after he slipped and fell off a ladder while aboard the M/V VASCO DA GAMA which was docked at Daybrook's Empire facility.
Menhaden is "[a]n abundant inedible fish" indigenous to the Gulf of Mexico used "as a source of fish oil, fish meal, fertilizer and bait."American Heritage Dictionary (New College ed. 1976).
Motion for summary judgment, Exh. 3, William Wallace affidavit ("Wallace aff."), para. 1.
Defendants' motion for summary judgment, Exh. A, Duplessis dep. ("Dup. dep.").7 PP. 9-10.
Wallace aff., para. 2.
Complaint, Rec. Doc. No. 1; Dup. dep., pp. 23-24.
As a bailer, plaintiff unloaded fish from the holds of Daybrook fishing vessels when the vessels returned to the dock facility in Empire. In order to unload the fish, bailers were dropped by harnesses into the holds of vessels. Once in the hold, the bailers directed suction hoses to suction the fish into the processing plant. The bailers employed by Daybrook are not fishermen, are not involved in fishing operations, and do not go to sea. The bailing process is performed through the use of land-based equipment.
Wallace aff., para. 3; Dup. dep., pp. 21-22.
Dup. dep., p. 21.
Dup. dep., p. 22.
Wallace aff., paras. 8-9.
Wallace aff., para. 11.
In 2002, plaintiff never went to sea aboard any Daybrook vessel, never slept aboard any Daybrook vessel, and only ate meals aboard Daybrook vessels when the vessel was docked. The plaintiff was supervised by the bailer foreman who worked in Daybrook's "Plant" division. The Daybrook employees who go to sea are referred to as "fishermen" and they work in the Daybrook "Marine" division.
Dup. dep., pp. 13-14.
Wallace aff., paras. 6 and 12.
Id.
Discussion
In Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995), the Supreme Court held that the following test was to be employed when determining whether or not an employee qualified to be a Jones Act seaman:
[W]e think that the essential requirements for seaman status are twofold. First, . . . `an employee's duties must "contribut[e] to the function of the vessel or to the accomplishment of its mission.'" [McDermott International, Inc. v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991), quoting Offshore Co. v. Robison, 266 F.2d 769, 799 (1959)]. The Jones Act's protections, like the other admiralty protections for seamen, only extend to those maritime employees who do the ship's work. But this threshold requirement is very broad: `All who work at sea in the service of a ship' are eligible for seaman status. 498 U.S., at 354, 111 S.Ct., at 817.
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. The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea. [other citations omitted]. . . .
The duration of a worker's connection to a vessel and the nature of the worker's activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time.515 U.S. at 368-370, 115 S.Ct, at 2190-2191.
The Chandris court also recognized "after decades of judicial interpretation that the Jones Act inquiry is fundamentally status based: Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore." 515 U.S. at 361, 115 S.Ct, at 2186.
"The seaman inquiry is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury. Nevertheless, `summary judgment . . . is mandated where the facts and the law will reasonably support only one conclusion.'" Harbor Tug and Barge Company v. Papai, 520 U.S. 548, 554, 117 S.Ct. 1535, 1540, 137 L.Ed.2d 800 (1997), quoting Wilander, 498 U.S. at 356, 111 S.Ct, at 818, and citing Chandris, 515 U.S. at 368-369, 115 S.Ct, at 2189-2190.
The issue of whether a menhaden bailer meets the test of Jones Act seaman status has been addressed by other district courts. InBarthelemy v. Daybrook Fisheries, Inc., 2001 WL 34312254 (E.D. La. 2001), the plaintiff, a fish bailer, filed a Jones Act lawsuit seeking damages for exposure to an "ammonia-like" substance. When considering the question of plaintiff's Jones Act seaman status, the district court observed:
[A]ll of the vessels on which the plaintiff worked were dockside. His routine consisted of boarding the vessels, unloading the fish, and returning to the dock to wait for the next vessel to be unloaded. He never worked on the vessel while it was performing its primary function of fishing. Furthermore, plaintiff's breaks and naps were taken in land-based bunkhouses at the Daybrook plant.Id. at *1. The district: court granted summary judgment in favor of defendant on the plaintiff's seaman status, stating:
Here, the facts indicate that Barthelemy was a land-based employee who spent some of his time working aboard the defendant's vessels. Because the intent behind the Jones Act was not to cover land-based workers `who have only a transitory or sporadic connection with a vessel in navigation and therefore whose employment does not regularly expose them to the perils of the sea,' the Court declines to find that the plaintiff was a seaman under the Jones Act.Id. at *1.
With respect to seaman status, the district court distinguished the circumstances of Barthelemy, a fish bailer, from the crane operator in In Re Endeavor Marine, 234 F.3d 287 (5th Cir. 2000). InIn re Endeavor Marine, the Fifth Circuit reversed the district court's denial of seaman status, holding that the plaintiff, a crane operator on a derrick barge, was a Jones Act seaman as a matter of law.Id. at 291-292. Determining that the plaintiff had a connection to a vessel in navigation, or to an identifiable group of such vessels, that was substantial in terms of both duration and its nature, theEndeavor Marine court concluded:
First, [the plaintiff] was permanently assigned to the FRANK L and . . . had spent almost all of the prior eighteen months on the vessel. Second, [the plaintiff's] primary responsibility was to operate the cranes on board a vessel whose sole purpose is to load and unload cargo vessels. Third, in the course of his employment, [the plaintiff] was regularly exposed to the perils of the sea.Id. at 292. While the duties of the plaintiff inEndeavor Marine "literally [did] not carry him to sea," the Fifth Circuit held that the district court erred in denying plaintiff Jones Act status on this basis, observing that plaintiff's duties did "place him on the brown waters of the Mississippi River." Id. at 292.
The plaintiff in Jones v. Daybrook Fisheries, Inc., 2001 WL 1502336 (E. D. La. 2001) also worked as a fish bailer. As described by the Jones court, "a bailor unloads fish that were caught at sea from the boat once the boat returns to the dock. The plaintiff's job as a bailor did not require him to ever go on the boat while it was away from the dock: engaged in navigation. His job did not start until the boat returned from fishing and it was tied up at the dock. Unlike crew members, the plaintiff never slept aboard any vessel." Id. at *1. Applying the Chandris test for seaman status to Jones' duties as bailer, the district court concluded:
The Jones court uses the word "bailor" to describe a fish bailer. The word "bailer" is defined in the Oxford English Dictionary (University Press 2004) as "a man employed to bail out a ship." The word "bailor" is defined as "one who delivers goods, etc., to another for a specific purpose."
The plaintiff did not have a substantial connection in terms of either duration or nature to a vessel in navigation. The plaintiff in his deposition stated that he did not sleep nor stay on any vessel. Instead, the plaintiff at all times slept at the Daybrook dock, or at his own residence. [page citation omitted]. Plaintiff's job required him to be on the vessel for an extremely limited time. Most of the time that the plaintiff spent at work was spent on the ground and not on a vessel, much less at sea. The plaintiff would bring hoses to the vessel and connect them to the vessel. The plaintiff would unload the fish from the vessel using these hoses, and then he would wait for another vessel and repeat the same steps.Id. at *1. Summary judgment was entered dismissing the plaintiff's Jones Act claim.
"Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Priester v. Lowndes County 354 F.3d 414, 419 (5th Cir. 2004), quoting Fed.R.Civ.P. 56(c) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party meets the initial burden of showing there is no genuine issue of material fact, the burden shifts to the nonmoving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Priester, 354 F.3d at 414, citing Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2002). In response to the defendants' motion, plaintiff produced no additional evidence nor did he designate specific facts establishing the existence of a genuine issue for trial. Neither does the plaintiff attempt to distinguish either theBarthelemy or Jones decisions and the Court was unable to locate any decisions holding that a fish bailer meets theChandris test for Jones Act test for seaman status. Under these circumstances, there are no material issues of fact in dispute and that the defendants are entitled to judgment as a matter of law.
Conclusion
For the reasons stated in Barthelemy and Jones, the Court finds that plaintiff, a menhaden bailer, did not have a substantial connection in terms of its nature or duration to a vessel or an identifiable fleet of vessels as required by Chandris and, therefore, is a not a Jones Act seaman. Accordingly,
IT IS ORDERED that the motion of defendants, Daybrook Fisheries, Inc., and Westbank Corporation, for summary judgment with respect to seaman status is GRANTED.