Albert Ross Armand v. Terral River Service, Inc.

• Court: Louisiana Court of Appeal
• Decided: December 10, 2014
• Docket: CA-0014-0610
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

14-610

ALBERT ROSS ARMAND

VERSUS

TERRAL RIVER SERVICE, INC.

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 247,384 HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE

JOHN E. CONERY JUDGE

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery, Judges.

AFFIRMED. Brian M. Caubarreaux Emily G. Meche Robert M. Marionneaux, Jr. Brian Caubarreaux and Associates Post Office Box 129 Marksville, Louisiana 71351 (318) 253-0900 COUNSEL FOR PLAINTIFF/APPELLANT: Albert Ross Armand

Dan Edward West McGlinchey Stafford 301 Main Street, 14th Floor Baton Rouge, Louisiana 70825 (225) 383-9000 COUNSEL FOR DEFENDANT/APPELLEE: Terral River Service, Inc.

Lake Tindall, LLP Frank S. Thackston Heath S. Douglas Attorney, Pro Hac Vice Post Office Box 918 Greenville, Mississippi 38702-0918 (662) 378-2121 COUNSEL FOR DEFENDANT/APPELLEE: Terral River Service, Inc. CONERY, Judge.

Albert Ross Armand (Mr. Armand) appeals the trial court’s ruling granting a

motion for summary judgment in favor of his former employer Terral River

Service Inc. (Terral). The trial court found that the work platform at issue did not

constitute a “vessel” and, thus, Mr. Armand did not qualify as a seaman under the

Jones Act, 46 U.S.C.A. § 30104. Mr. Armand’s Jones Act case was dismissed

with prejudice and at his cost. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Armand worked for Terral for approximately eight months from June

2012 to February 2013. He was injured on the job and suffered the partial

amputation of his right thumb. Mr. Armand had been hired by Terral as an

operator/deck hand. His work duties included activities both on the shore and “on

water.” His on-shore duties included loading fertilizer onto trucks for delivery

from Terral’s warehouse facility, located just below Alexandria, Louisiana. He

also worked on land for approximately three months in the Biloxi-Gulfport,

Mississippi, area for Terral, using an excavator to move sand to enlarge the port

facility. In his deposition, Mr. Armand estimated that approximately thirty to forty

percent of his work time was spent “on the shore.”

Mr. Armand’s “on water” duties were primarily on a floating, fixed work

platform located on the Red River at the Terral facility. The work platform was

tied securely with cables to a dolphin, a marine structure moored to the river

bottom downstream of the work platform. The work platform was also attached to

the river bottom by two sets of three pipes, bound together, and attached at the bow

and the stern of the work platform with a system of chains and cables. The pipes holding the work platform were driven deep into the river bottom. The platform

had no navigational function and was fixed in place.

A “track hoe,” or excavator, was located on the work platform and was used

for offloading fertilizer, rocks, and sand at Terral’s location from various transport

barges that were moved adjacent to the work platform for that purpose. A hopper

for a conveyor system was securely attached to the work platform and the right

descending bank of the river and was used to transport cargo from the excavator on

the work platform to shore-based storage or transport facilities. In addition, there

was also a heavy catwalk attached to the work platform and the river bank, which

allowed the work platform to rise and fall with the river level. 1 Mr. Armand

estimated in his deposition testimony that approximately sixty to seventy percent

of his working time was spent on the work platform.2

During his deposition, Mr. Armand and counsel for Terral discussed the

procedure for unloading a transport barge when it arrived at the Terral work

platform. The barges to be unloaded typically carried fertilizer, sand, and rocks. A

“fleet boat”3 or “line boat”4 would usually bring two transport barges at a time and

push the first barge next to the track hoe on the work platform. The track hoe

would then reach out and hold the barge in place while Mr. Armand, or whoever

was working, tied the transport barge to the work platform.

1 Mr. Armand testified that during his employment with Terral, the work platform never moved stating, “It’s not made to be moved because the hopper is built into the deck itself too.” 2 Mr. Armand testified that “Sixty-five percent” of his work was done on the work platform. When asked if almost all work done on the river was done on that barge, he replied “Yes, sir, on that one barge.” 3 As discussed with Mr. Armand in his deposition, a “fleet boat” would bring the barge to the location and then leave. 4 Also discussed with Mr. Armand in his deposition, a “line boat” is one that moves up and down the river pushing a number of barges at the same time.

2 If the transport barge was carrying fertilizer, the fertilizer lids would be

removed three at a time and, using the excavator, the fertilizer would then be

unloaded. The transport barges carrying rocks and sand were open barges with no

lids. The barges would then be systematically unloaded. Once unloaded, the

barges would be picked up by a fleet boat or line boat. Deck hands on the fleet or

line tow boats were responsible for all mooring operations for the transport barges.

Mr. Armand’s deposition testimony confirms that during his employment, he

never got on a Terral boat or was attached to a Terral vessel of any kind. The work

done for Terral by Mr. Armand was accomplished either on the work platform, on

shore, or occasionally, as in this case, on the transport barges removing or

replacing the fertilizer lids. 5 He further confirmed that he did not know who

owned the tow boats pushing the barges, other than the occasional Terral tow, and

he had no involvement in moving the products on the river, only helping the

excavator operator unload the materials from the barge onto the shore. Mr.

Armand further confirmed in his deposition testimony that he never put

“navigation lights on a barge” or “secured a barge to a tow boat.” He explained

that the tow boats had their own deck hands who would handle the cables and

winches on the tow boats to tie down the barge for movement up and down the

river.

In February 2013, Mr. Armand and Willard Guillory, the excavator operator,

were replacing hopper lids on a fertilizer barge after the fertilizer had been

offloaded. Mr. Armand testified that the hopper lid became twisted, and when he

attempted to move it, the lid fell, causing a partial amputation of his right thumb.

5 Mr. Armand referred to the work platform as either the “track hoe barge” or “loading rig.”

3 Mr. Armand required two surgeries for his thumb injury and timely began

receiving benefits under the Longshore and Harbor Workers’ Compensation Act

(LHWCA). However, in May 2013, Mr. Armand filed suit against Terral seeking

money damages as a Jones Act seaman. Terral then discontinued Mr. Armand’s

Longshore benefits, and, as he had not reached Maximum Medical Improvement

(MMI), began paying Mr. Armand maintenance and cure under the provisions of

the Jones Act while his damage claim was pending.

On December 6, 2013, Terral filed a motion for summary judgment claiming

that Mr. Armand was not a Jones Act seaman. Terral argued that Mr. Armand

would be unable to meet his burden at trial to prove that the work platform at the

Terral facility was a “vessel in navigation.” On February 24, 2014, the trial court

heard the motion and granted summary judgment in favor of Terral, finding, “I am

not convinced that this work platform constitutes a vessel. And I don’t see

anything that raises a material issue of fact regarding that.” The trial court signed a

judgment on March 24, 2014, dismissing Mr. Armand’s Jones Act claim with

prejudice and assessing costs to him. Mr. Armand now timely appeals the trial

court’s ruling.

ASSIGNMENT OF ERROR

Mr. Armand asserts the following assignment of error on appeal, “The lower

Court erroneously applied Louisiana Civil Code of Procedure article 966 in light of

the contradictory testimony and /or evidence.”

LAW AND DISCUSSION

Standard of Review

Summary judgments are reviewed de novo, applying the same standard to

the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp.,

4 Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. Summary judgment is favored by law

and provides a vehicle by which the just, speedy, and inexpensive determination of

an action may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is

required to render summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions, together with the affidavits, if any, admitted for

purposes of the motion for summary judgment, show that there is no genuine issue

as to material fact, and that mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(B)(2). In this case, all documentation supporting and

opposing Terral’s motion for summary judgment was properly admitted into

evidence at the hearing held on February 24, 2014.

In 1997, the legislature enacted La.Code Civ.P. art. 966(C)(2), which

clarified the burden of proof in a summary judgment proceeding. The initial

burden of proof remains with the mover to show that no genuine issue of material

fact exists. If the mover has made a prima facie showing that the motion should be

granted, the burden shifts to the non-moving party to present evidence

demonstrating that a genuine material factual issue remains. Id. “[T]he failure of

the non-moving party to produce evidence of a material factual dispute mandates

the granting of the motion.” Hutchinson v. Knights of Columbus, Council No.

5747, 03-1533, p. 7 (La. 2/20/04), 866 So.2d 228, 233.

When a motion for summary judgment is made and supported, the adverse

party may not rest on the allegations or denials of his pleadings, but must set forth

specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art.

967(B). “A fact is ‘material’ when its existence or nonexistence may be essential

to [a] plaintiff’s cause of action under the applicable theory of recovery.” Smith,

639 So.2d at 751. “[F]acts are material if they potentially insure or preclude

5 recovery, affect a litigant’s ultimate success, or determine the outcome of the legal

dispute.” Id. (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.

1991), writ denied, 596 So.2d 211 (La.1992)).

In determining whether a fact is material, we must consider the substantive

law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir.

12/6/00), 774 So.2d 340, writ denied, 01-73 (La. 3/23/01), 788 So.2d 427. In this

case, substantive law governing this dispute is the Jones Act and the jurisprudence

interpreting its provisions.

Jones Act Claim

Qualification as a Jones Act seaman requires Mr. Armand to demonstrate the

following pursuant to the seminal case of Chandris, Inc. v. Latsis, 515 U.S. 347,

115 S.Ct. 2172 (1995): (1) that his duties “contribut[e] to the function of the vessel

or to the accomplishment of its mission” and (2) “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.” Id. at 368.

However, paramount to any determination of seaman status is the question

of whether or not the work platform upon which Mr. Armand admittedly

performed sixty to seventy percent of his work for Terral is considered a vessel in

navigation. “The determination of whether a given craft is a vessel is ordinarily

resolved as a matter of law . . . [h]owever, at the margin, fact issues may be

presented.” Manual v. P.A.W. Drilling & Well Serv., Inc., 135 F.3d 344, 347 (5th

Cir. 1998).

The United States Supreme Court in the case of Stewart v. Dutra Constr. Co.,

543 U.S. 481, 125 S.Ct. 1118 (2005), confirmed that 1 U.S.C. § 3 defines “vessel”

for purposes of seaman’s status. That statute provides that a “vessel” is “every

6 description of water-craft or other artificial contrivance used, or capable of being

used, as a means of transportation on water.” Id. at 489. In interpreting that statute,

the Stewart court instructed that the question is “whether the watercraft’s use ‘as a

means of transportation on water’ is a practical possibility or merely a theoretical

one.” Id. Further, as would apply to this case, Stewart instructs that “a watercraft

is not ‘capable of being used’ for maritime transport in any meaningful sense if it

has been permanently moored or otherwise rendered practically incapable of

transportation or movement.” Id. at 494.

The United States Supreme Court more recently addressed the issue of

“vessel” status in Lozman v. City of Riviera Beach, FL., 133 S.Ct. 735 (2013). The

Court found that a floating home, which had an unraked hull, rectangular bottom,

no capacity to store or generate electricity, no steering mechanism or self-

propulsion, and which had been towed several miles to a marina, was not a vessel

under 1 U.S.C. § 3. The Supreme Court’s analysis in Lozman focused on the

phrase “capable of being used . . . as a means of transportation on water.” Id. In

citing Stewart, the Court held that the “definition” must be applied “in a ‘practical,’

and not a ‘theoretical,’ way.” Id. at 741. Further defining the “practical”

application of the phrase, the Supreme Court held, “Consequently, in our view a

structure does not fall within the scope of this statutory phrase unless a reasonable

observer, looking to the [structure’s] physical characteristics and activities, would

consider it designed to a practical degree for carrying people or things over water.”

Id.

The Lozman Court, in keeping with its focus on whether a structure was

“designed to a practical degree for carrying people or things over water,” cited its

previous decision in Evansville & Bowling Green Packet Co. v. Chero Cola

7 Bottling Co. 271 U.S. 19, 46 S.Ct. 379 (1926). Lozman, 133 S.Ct. at 741. In

Evansville, the Supreme Court held that “a wharfboat was not a ‘vessel.’” In

Lozman, the Supreme Court stated:

The wharfboat floated next to a dock; it was used to transfer cargo from ship to dock and ship to ship; and it was connected to the dock with cables, utility lines, and a ramp. At the same time, it was capable of being towed. And it was towed each winter to a harbor to avoid river ice. The Court reasoned that, despite the annual movement under tow, the wharfboat “was not used to carry freight from one place to another,” nor did it “encounter perils of navigation to which craft used for transportation are exposed.”

Lozman, 133 S.Ct. at 742.

Therefore, we are now required to make a determination of whether or not there

are any genuine issues of material fact as to whether the work platform at issue,

upon which Mr. Armand performed most of his duties when employed by Terral, is

a “vessel in navigation” pursuant to the definition contained in 1 U.S.C. § 3 as

interpreted by the Supreme Court in Stewart, Lozman, and Evansville. See also

Mooney v. W & T Offshore, 2013 WL 828308 (E.D. La. 2013).

Terral’s Work Platform

In support of its motion for summary judgment, Terral submitted the

affidavit of Jeffrey Hess, Terral’s Special Operations Manager, who attested that

the work platform at issue had the following undisputed characteristics:

1. The work platform has been secured in its current configuration, with no movement since late 2010.

2. The work platform is secured to two (2) pipes called “spuds”, which are driven deeply and permanently into the Red River, with a system of chains and cables.

3. The work platform is also securely tied, via cables, to a marine structure known as a dolphin, which is moored to the river bottom placed downstream of the work platform.

8 4. The work platform has no United States Coast Guard documentation.

5. The work platform has no independent means of propulsion.

6. The work platform does not have a raked bow.

7. The work platform cannot independently navigate.

8. The work platform has no means of steering.

9. The work platform is affixed to right descending bank of the Red River by both a heavy catwalk and an extensive conveyor system. This catwalk and conveyor system is attached to both the bank and the work platform.

10. If the work platform were to be moved, which has not occurred since late 2010, it would involve a long process which would involve at least two (2) tug boats, and five (5) to six (6) personnel.

11. The work platform obviously never moved during Armand’s entire time with Terral.

No countervailing affidavits were filed, and no deposition testimony

introduced placed any issue relating to the work platform’s characteristics in

dispute. In this case, the work platform has no United States Coast Guard

documentation, no self-propulsion, no raked bow, and could not independently

navigate or self-steer. In addition, it has been permanently affixed to both the Red

River bottom and bank since 2010 and would require a significant amount of time,

two tug boats, and five to six personnel to move.

In Mendez v. Anadarko Petroleum Corp., 466 Fed.Appx. 316, 2012 UL

003575 (C.A. 5 (Tex.) (unpublished opinion), cert. denied, 133 S.Ct. 979 (2013)),

the Fifth Circuit found that the Red Hawk spar was not a “vessel.” The Fifth

Circuit’s determination that the Red Hawk spar lacked “vessel” status was based

on the Supreme Court’s opinion in Stewart, in particular the portion which stated,

“Simply put, a watercraft is not ‘capable of being used’ for maritime transport in

9 any meaningful sense if it has been permanently moored or otherwise rendered

practically incapable of transportation or movement.” Stewart, 543 U.S. at 494.

In Mendez, the Red Hawk spar was permanently attached to the sea floor,

some five thousand feet down, and any attempt to move the structure would take

nearly two months, cost $42 million dollars, require detaching the old moorings,

and require building a completely new mooring system at the new site. Likewise,

in order for Terral to move the work platform at issue here, an extensive process

would also be required involving the use of two tug boats and five to six personnel.

The work platform on which Mr. Armand spent sixty to seventy percent of

his time while working for Terral was permanently affixed not only to the Red

River bottom, but also to the river bank. As was the “wharfboat” in Evansville, its

primary purpose was to provide a working platform to unload the barges bringing

fertilizer, rocks, and sand to the Terral facility. Therefore, we find that the work

platform, “was not designed (to any practical degree) to serve a transportation

function and did not do so,” and does not qualify as a “vessel in navigation” for the

purpose of allowing Mr. Armand to maintain his Jones Act Claim. Lozman, 133

S.Ct. at 743.

We find that the trial court correctly determined that the work platform was

not a vessel. Nothing in the record before the trial court or this court raised a

material issue of fact concerning the vessel status of the work platform. Mr.

Armand’s assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the motion for summary judgment granted by the

trial court in favor of Terral River Service Inc. is affirmed. All costs of this appeal

are assessed to Albert Ross Armand.

10 AFFIRMED.