Opinion
Civil Action No. 99-2552 Section "G"
June 19, 2000
MEMORANDUM AND ORDER
Background
Plaintiffs, Robert DeShazo and Andea DeShazo, residents of Mississippi, bring suit for personal injuries and loss of consortium, respectively, against Baker Hughes Oilfield Operations, Inc., ("BHOO"), a foreign corporation allegedly authorized to do business in the State of Louisiana. Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332.
Plaintiff originally sued the incorrect corporate entity but has now amended to his pleadings to substitute the proper party defendant.
This matter arises out of an alleged accident which occurred in the Egyptian desert on July 17, 1999, when plaintiff Robert DeShazo was being transported from a job in the Egyptian desert/Red Sea, back to his base in Rash Shakier, Egypt. Plaintiff was injured when the driver of the truck, Saber Zaid, fell asleep and drove the truck off the roadway. Plaintiff sues under the Jones Act on grounds that at the time he was injured, he was assigned to an Amoco base at Rash Shakier, spending the majority of his time working as a whipstock operator/fishing tool supervisor aboard four jack-up rigs located in the Red Sea.
See Second Supplemental and Amended Complaint. Plaintiff's original complaint was fashioned in the form of a general tort action against Baker Hughes, Inc. as his alleged employer, relying only in the alternative on Jones Act liability.
Defendant now moves for Summary Judgment on Jones Act seaman status, and plaintiff cross-moves for summary judgment on the same issue. Both motions are opposed. I entertained oral argument on June 14, 2000. Counsel for both parties were present.
The undisputed facts are that on January 21, 1998, plaintiff began working overseas for Baker Oil Tools, an oilfield service company that is a subsidiary of BHOO. Upon arrival in Egypt, plaintiff was placed under the supervision of Bill Sanders, shop foreman, and Jim Sumrall, district manager of one of the Baker Hughes entities in Egypt. Plaintiff was hired to perform whipstock operations and fishing tool services in connection with land-based and sea-based drilling operations. The whipstock procedure allows an oil company to drill in new areas by branching off from an existing well. As a fishing tool supervisor, plaintiff performed such tasks as retrieving tools and broken pipes from well holes.
Plaintiff went to work in Egypt initially on a trial or test basis for three to five months. The plaintiff's work records indicate, and plaintiff concedes, that, after this initial period, between June 1998 and July 17, 1999, he worked on land and offshore for numerous companies with whom his employer contracted to perform specific oilfield services. These companies included, but were not limited to, Amoco/GUPCO, Khalda, Bapetco, Repsol, Suco, Agiba, and Wepco. While not working on the drilling equipment, plaintiff either returned to the United States or remained on 24-hour call at the camp base in Rash-Shakier, Egypt. His schedule appears to have been one of 28 days on/28 days off.
Plaintiff's deposition, pp. 47-50.
Defendant's Statement of Uncontested Facts, ¶¶ 8 and 9, admitted by plaintiff on p. 2 of Memorandum in Opposition to Defendant's Motion for Summary Judgment.
It is undisputed, at least for purposes of the pending motions, that in the months preceding the July 17, 1999 accident, the majority of plaintiff's work was performed on four jack-up rigs in the Red Sea: the COMET, the KAMOSE, the SENUSRET, and the BENNEVIS. It also is undisputed that plaintiff contributed to the mission of these vessels so as to satisfy one prong of the test for seaman status. The remaining criteria for seaman status — assignment to or substantial work on a vessel or an identifiable fleet of vessels, is the subject of the summary judgment motions before me.
Defendant moves for summary judgment on grounds that even assuming plaintiff did a significant amount of work on the four rigs under contract with Amoco/GUPCO, plaintiff cannot demonstrate that the four rigs were under common ownership or control so as to qualify as an "identifiable fleet;" rather, they were owned, operated and controlled by at least three separate companies who were independent drilling contractors for the same company with which plaintiff's employer had contracted. Plaintiff opposes defendant's motion and also moves for summary judgment in his favor on grounds that although the four rigs were not owned by Amoco/GUPCO, they were under the common operational control of Amoco/GUPCO, rendering them an identifiable fleet and plaintiff a seaman.
See Defendant's Statement of Uncontested Facts, ¶¶ 10 and 11, admitted by plaintiff on p2 of Memorandum in Opposition.
Discussion
Summary judgment should be granted "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 a judgment as a matter of law." This language "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." A complete failure of proof on an essential element renders all other facts immaterial because there is no longer a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Id.
The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, and admissions on file, together with the affidavits, if any,' which it believes demonstrates the absence of a genuine issue of fact." However, the movant need not support the motion with materials that negate the opponent's claim. As to issues on which the non-moving party has the burden of proof at trial, the moving party need only point to an absence of evidence to support the non-moving party's claim; the non-moving party must then designate "specific facts showing that there is a genuine issue for trial."
Id. at 323, 106 S.Ct. at 2552-53 (citing Fed.R.Civ.P. 56(c)).
Id. at 324, 106 S.Ct. at 2553.
When the moving party has carried its burden under Rule 56(c), the opponent cannot simply "rest on the allegations in [the] complaint" and must present more than a metaphysical doubt about the material facts. Further, a claim that additional discovery or a trial might reveal facts of which the non-moving party is currently unaware is insufficient to defeat the motion. Nevertheless, the evidence of the nonmovant is to be believed and justifiable inferences from the underlying facts are drawn in his favor, and any doubts are resolved against the moving party.
International Shortstop, Inc. v. Rally's Inc., 939 F.2d 1257, 1263 (5th Cir. 1991)
Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Woods v. Federal Home Loan Bank Ed., 826 F.2d 1400, 1414-15 (5th Cir. 1987)
Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Matsushita, 475 U.S. at 588.
The central issue in this case is whether plaintiff can maintain a Jones Act, 46 U.S.C. § 688, claim against his employer. In relevant part, the Jones Act provides that "[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law. . . ." 46 U.S.C. § 688 (a). The Jones Act does not define the term "seaman" and it has been left to the courts to determine exactly which maritime workers are entitled to the special protections afforded to the seaman.
In Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), the Supreme Court adopted a two-pronged test for seaman status. The essential requirements for seaman status are twofold:
First . . . an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission; and Second, . . . 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 nature.
See id. at 367-70.
In applying the Chandris test, all the relevant circumstances of the employee's situation must be considered. Though the test is fact-intensive, the Supreme Court has recognized that summary judgment is appropriate "where the facts and the law will reasonably support only one conclusion."
See id. at 369.
Id. (citing Wilander, 498 U.S. at 356).
For purposes of this motion, satisfaction of the first Chandris requirement is not in dispute. The parties instead focus on the secondChandris requirement, which mandates 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 nature." Plaintiff will qualify as a seaman only if he performed a significant part of his work on board a vessel or a finite group of vessels under common ownership or control, with at least a degree of regularity and continuity. Although plaintiff's employer need not be the one who owns or operates the group of vessels, a "fleet" is not simply any group of vessels an employee happens to work aboard. It is a finite group of vessels under common ownership or control.
Id. at 368.
Id. at 368-69 (citations omitted).
See Bertrand v. Int'l Mooring Marine, Inc., 700 F.2d 240, 245 (5th Cir. 1983).
See Chandris, 515 U.S. at 369; see also Barrett v. Chevron, 781 F.2d 1067, 1074 (5th Cir. 1986).
Id.
Plaintiff at oral argument conceded that he was not assigned to a certain group of vessels, but rather argues that he performed a significant amount of his work aboard four drilling rigs under contract to Amoco/GUPCO, the same oil company with whom his employer contracted to provide oilfield services. Plaintiff further conceded that the four rigs on which he performed that work were not commonly owned; rather, he argues that the vessels were under the common operational control of Amoco/GUPCO. Defendant argues that the four rigs were not under common control, but rather, that the various rig owners/operators had traditional independent contractor relationships with Amoco/GUPCO and that each owner/operator retained control of the rigs.
See Affidavit of M. Lolloe Galan and Exhibits A-C to defendant's motion for summary judgment.
The fleet seaman doctrine has been applied in the Fifth Circuit for many years, and was incorporated by the Supreme Court into the test for seaman status in Chandris. Therefore, Fifth Circuit cases on the fleet seaman doctrine that predate Chandris remain authoritative. It is one of the pre-Chandris Fifth Circiut cases, Bertrand v. International Mooring Marine, Inc., 700 F.2d 240 (5th Cir. 1983), that plaintiff relies upon.
The rule was first recognized in Braniff v. Jackson Avenue-Gretna Ferry, Inc., 280 F.2d 523 (5th Cir. 1960).
Plaintiff cites Bertrand as establishing an expansive definition of control for purposes of the fleet seaman doctrine. The Bertrand case involved a number of anchorhandlers who worked on specially designed vessels. Rather than purchase its own vessels, the anchorhandlers' employer chartered vessels from various corporations. The plaintiffs' employer argued that it could not be liable under the Jones Act because it had chartered the vessels, and the vessels therefore were not under its ownership or control. The Bertrand court rejected this argument, refusing to deny seaman status where the plaintiffs were "continuously subjected to the perils of the sea like blue water seaman and [were] engaged in classical seaman's work," and where "whether the different vessels were under common ownership or control was determined by the employer, not the nature of the claimants' work."
700 F.2d 240 (5th Cir. 1983)
Bertrand, 700 F.2d at 245-46.
Plaintiff focuses on the Fifth Circuit's statement in Bertrand that "[i]n light of the purposes of the Jones Act, we will not allow employers to deny Jones Act coverage to seaman by arrangements with third parties regarding the vessel's operation or by the manner in which work is assigned." Taken out of context, this language might suggest an expansive interpretation of control for purposes of satisfying the fleet seaman doctrine. This language, of course, must be read in the context of the Bertrand case. The Fifth Circuit in Bertrand emphasized that theBertrand plaintiffs were "continuously subjected to the perils of the sea like blue water seaman and [were] engaged in classical seaman's work" and that what is important is whether the employer, as opposed to the nature of plaintiff's work, is what places plaintiff on multiple, non-employer owned vessels.
Id. at 245.
Id.
Here, unlike in Bertrand, the very nature of plaintiff's work placed him on multiple rigs owned by multiple parties. He was a troubleshooter who went where he was needed, as the need arose. Plaintiff's employment placed him on jobs both on land and at sea, on multiple rigs, with no demonstrable allegiance or assignment to a particular vessel or group of vessels. In the year and a half preceding plaintiff's accident, he worked on land and offshore for at least seven different oil companies.
See Defendant's Exhibit 1, Declaration of Jim Sumrall, at ¶ 7. Plaintiff argues that the declaration of Sumrall does not comport with Rule 56(e) of the Federal Rules of Civil Procedure. While it is not an affidavit, the declaration, signed under penalty of perjury, is admissible summary judgment evidence; it comports with 28 U.S.C. § 1746 (1), which permits submission of declarations in lieu of affidavits under certain circumstances, as when made by a declarant located outside of the United States. Cf. Holland America Line v. Panama Canal Commission, 1994 A.M.C. 1052 (E.D.La. 1994) (Sear, C.J.).
Subsequent Fifth Circuit jurisprudence further appears to have undermined an expansive interpretation of Bertrand, particularly in cases involving oilfield workers and other non-traditional seamen, in which the court has ignored or distinguished the Bertrand case. The most helpful authority for purposes of this cas is the recent case of St. Romain v. Industrial Fabrication Repair Service, Inc., where the Fifth Circuit declined to adopt an "operational control" test for purposes of the fleet seaman doctrine. The plaintiff in St. Romain was a plug and abandon helper whose work involved the decommissioning of oil wells under offshore platforms. He argued that he was a member of the crew of the several liftboats used in the jobs performed by his employer, and that the liftboats constituted an identifiable fleet. St. Romain's employer did not own any of the liftboats. They were owned by nine different companies and chartered by five different entities, usually by the same oil company that hired plaintiff's employer to do the plug and abandon work. Plaintiff nevertheless argued that his employer exercised "operational control" over the boats, based on evidence that the employer selected the liftboats needed to complete the work, directed the vessels' captains where to position the boat, and directed the captains when to jack the boats up or down.
See Coats v. Penrod Drilling Corp., 5 F.3d 877, 890 (5th Cir. 1993) (no fleet where painter/sandblaster injured on submersible rig worked for independent contractor that assigned its employees to perform jobs for owners and operators of various vessels — at least eight different vessels owned by eight different entities); New v. Associated Painting Services, Inc., 863 F.2d 1205 (5th Cir. 1989) (no fleet where sandblaster/painter who in eleven month period worked aboard vessels, rigs and land-based facilities owned by at least eight unrelated entities); Langston v. Schlumberger Offshore Services, 809 F.2d 1192 (5th Cir. 1987) (no fleet where wire line operator performed jobs for ten unrelated owners aboard fifteen different vessels with no common control or nexus); Buras v. Commercial Testing Engineering Co., 736 F.2d 307 (5th Cir. 1984); Wallace v. Oceaneering Int'l, 727 F.2d 427 (5th Cir. 1984).
203 F.3d 376 (5th Cir. 2000).
The district court rejected the operational control argument on summary judgment, and the Fifth Circuit affirmed. According to the Fifth Circuit,
[Plaintiff's] reliance on Bertrand is misplaced. Our later decisions clearly reflect that the court in Bertrand was concerned with denying seaman status to anchorhandlers, traditional maritime workers, merely because of the contractual arrangements made by their employer. Our decisions after Bertrand have reaffirmed the essential principle that to qualify as a seaman an employee must establish an attachment to a vessel or to an identifiable fleet of vessels. We are not persuaded by the proposed operational control test. To accept that position would involve the court in analyzing the day-to-day minutiae of a liftboat's operations. This we decline to do and, rather, resort to developed workable standards for determining who qualifies as a seaman under the Jones Act. In doing so we must decline to depart from these established principles.
203 F.3d 376, 380 (5th Cir. 2000) (citations omitted).
Although in the months preceding his accident, plaintiff worked the majority of his time on four drilling rigs, each of which were under contract to Amoco/GUPCO, this alone does not render the rigs an identifiable fleet. The four rigs were owned by three unrelated entities (Pyramid Drilling S.A., Transocean Offshore International Limited, and Egyptian Drilling Co.) and under contract with Amoco pursuant to three separate contracts. Plaintiff cites virtually every provision of the drilling contract and strives to interpret each one to vest some aspect of control in Amoco/GUPCO, apparently believing by this cumulation he will persuade the court of Amoco's operational control. The bottom-line argument, however, is that Amoco/GUPCO had operational control of the rigs based on Amoco/GUPCO's authority to tell the drilling companies where to go and when to drill.
I have several problems with plaintiff's proposed test and evidentiary argument under that test. First, I interpret St. Romain, to preclude an operational control test like that urged by plaintiff, which requires analysis of the "day-to-day minutiae of the (vessel's] operations." Plaintiff's argument here is identical to that made by the plaintiff inSt. Romain; he argues operational control based on Amoco/GUPCO's authority to tell the drilling companies where to go and when to drill. Further, here, as in Romain, the individual drilling contracts between the various rig owners/operators and Amoco/GUPCO, suggest that the rig owners/operators retained ultimate control over the the rigs and drilling operations and did not cede control to Amoco/GUPCO.
Although the St. Romain court eschewed an operational control test, the court noted that the deposition testimony and written charter agreements demonstrated that the captain of the liftboat and its owner had at all times ultimate authority with respect to the navigation, management and operation of the vessels. 203 F.3d at 378.
See Exhibits A-C at ¶ 10.1.
Though plaintiff, at oral argument, cited a prior case in which I denied summary judgment on facts which plaintiff argues are analogous to those of his case, I decided that case prior to St. Romain, which I find controlling here.
See Hughes v. International Diving Consulting Services, Inc., 1993WL262702 (E.D.La. 1993) (Sear, C.J.).
For the foregoing reasons, I find that the matter is ripe for summary judgment on the issue of seaman status, and plaintiff is not a Jones Act seaman.
Accordingly,
IT IS ORDERED that defendant's motion for summary judgment IS GRANTED and plaintiff's motion for summary judgment IS DENIED.