Opinion
Civil Action No. 99-430 Section "N".
October 19, 2000.
ORDER AND REASONS
Before the Court is defendant Cardinal Services, Inc.'s Motion for Summary Judgment. For the following reasons, defendant's motion is GRANTED.
BACKGROUND
In April 1998, Oryx Energy Company ("Oryx") hired defendant Cardinal Services, Inc.. ("Cardinal") to plug and abandon its wells on a platform off the Louisiana coast. Plaintiff Rusty Roberts, a Cardinal employee, served as the pump operator for this job. Plug and abandon ("PA") work involves the decommissioning of oil wells under offshore platforms. Most of Cardinal's PA work is done from fixed platforms; but other projects, including several of Mr. Roberts' assignments, are performed partly from liftboats, support vessels that use cranes to raise the well casing. The vessel transports Cardinal's equipment to the platforms and also provides the crew with a place to eat and sleep. On May 21, 1998, when Cardinal employees were perforating a well on Oryx's platform. the perforation gun discharged while Roberts was standing next to it. Roberts has brought suit against Cardinal under the Jones Act, 46 U.S.C. § 688, for injuries sustained in this explosion. Cardinal now moves for summary judgment on Mr. Roberts' claims, alleging that he is not a seaman within the meaning of the Act.
LAW AND ANALYSIS
Summary judgment is proper 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." FED. R. Civ. P. 56(c). A genuine issue of fact exists where the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the burden of demonstrating an absence of evidence to support the non-movant's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). To oppose a motion for summary judgment, the non-movant must set forth specific facts to establish a genuine issue of material fact and cannot merely rest on allegations and denials. See Celotex, 477 U.S. at 324. Factual controversies are to be resolved in favor of the non-moving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
The determination of whether an injured worker is a seaman under the Jones Act "is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury." Harvard Tug and Barge Co. v. Papai, 520 U.S. 548, 554 (1997). Nevertheless, "summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion." Id. (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356 (1991)).
The Supreme Court has established a two part test to determine seaman status: First, an employee's duties must contribute to the function of a vessel or to the accomplishment of its mission. 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 its nature. See Chandris. Inc. v. Latsis, 515 U.S. 347, 368 (1995). In applying the Chandris test, all relevant circumstances of the employee's situation must be considered. See id. at 369. The employee bears the burden of establishing seaman status. In re Falcon Inland. Inc., 1998 \VL 290214, at *1 (E.D.La. June 3, 1988).
Cardinal alleges that Mr. Roberts fails to meet either factor of theChandris test. First. Cardinal asserts that Mr. Roberts did not contribute to the function of the vessel or to the accomplishment of its mission. However, Mr. Roberts has submitted evidence that he was required to work as a deckhand on Cardinal liftboats during PA operations. See Beard Aff. at ¶ 6. Accordingly, the Court finds a genuine issue of material fact exists as to whether Mr. Roberts' duties contribute to the function of a vessel or to the accomplishment of its mission.
Cardinal also asserts that Mr. Roberts does not have a substantial connection to a vessel or group of vessels. It is undisputed that Mr. Roberts was not permanently assigned to any one vessel in navigation. Rather, he contends that he was a member of the crews of several liftboats used in plug and abandonment jobs performed by Cardinal, and that these boats constitute an identifiable fleet of vessels. Thus, the issue before the Court is whether Mr. Roberts "has produced sufficient evidence to create a genuine fact issue as to whether he had a substantial connection to a group of vessels acting together under common ownership or control." St. Romain v. Industrial Fabrication and Repair Serv., Inc., 203 F.3d 376, 379 (5th Cir. 2000).
In St. Romain the Fifth Circuit denied seaman status to a PA worker because he did not establish that he worked aboard an identifiable fleet of vessels. The plaintiff in St. Romain was a PA helper employed by Superior Well Service, Inc. Most of his work was performed on fixed oil platforms, but he also worked aboard nine different liftboats that were hired by the oil company that contracted with Superior. Since these liftboats were not controlled by any single entity, the Fifth Circuit held that the plaintiff did not have a substantial connection to a vessel or group of vessels, and was not a seaman under the Jones Act.
Mr. Roberts asserts that he performed approximately 41.31% of his PA work on liftboats. These boats were either owned by Cardinal or leased from third parties. Like the plaintiff in St. Romain, Mr. Roberts does not have a substantial connection to the third party vessels. However, Cardinal's liftboats constitute an identifiable fleet of vessels because they are subject to common ownership or control. Accordingly, if Mr. Roberts can demonstrate that he spent an adequate amount of time on Cardinal liftboats, he can establish a substantial connection to a vessel or group of vessels acting together under common ownership or control.
The Supreme Court has held that "a worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman." Chandris, 515 U.S. at 349. According to his work records, Mr. Roberts only spent 24.88% of his time assigned to Cardinal boats. See Daily Operation Reports and Time Cards. Mr. Roberts alleges that his work records are in error, and in his deposition on October 4, 1999, he states that three projects billed as platform jobs were actually performed on Cardinal liftboats. See Roberts Aff at 206-248. However, Mr. Roberts offers nothing to support his conclusions. Cardinal has submitted invoices for each of these three jobs. and none of the invoices indicate that a Cardinal liftboat was used. See Invoice Nos. 586510. 593162, and 591983. "Conclusory statements in an affidavit do not provide facts that will counter summary judgment evidence, and testimony based on conjecture alone is insufficient to raise an issue to defeat summary judgment." Lechuga v. Southern Pacific Transportation Co., 949 F.2d 790, 798 (5th Cir. 1992). Mr. Roberts' statements in his deposition are conclusory and unspecific, and as such "are inadequate to raise a genuine issue of fact." Id.
Because the evidence clearly proves that Roberts had an inadequate temporal connection to a vessel, it is appropriate for the Court to take the determination of seaman status from the jury. See Chandris, 515 U.S. at 349. Accordingly, since Mr. Roberts has not spent a sufficient amount of time on a vessel or group of vessels under common ownership or control, the Court finds that he is not a seaman under the Jones Act.
CONCLUSION
Because Mr. Roberts is not a seaman under the Jones Act, defendant Cardinal Services, Inc.'s Motion for Summary Judgment is GRANTED.