United States Court of Appeals,
Fifth Circuit.
Nos. 94-30156, 94-30446.
David BURCHETT and Cheryl Burchett, Plaintiffs-Appellants,
v.
CARGILL, INC., Defendant-Intervenor-Appellee, Appellant,
MARINE EQUIPMENT MANAGEMENT CORPORATION, Defendant-Appellee.
March 29, 1995.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before GARWOOD, DAVIS and REYNALDO G. GARZA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Plaintiffs David and Cheryl Burchett appeal the dismissal of
their Jones Act and unseaworthiness actions against Cargill, Inc.
("Cargill") and their § 905(b) action against Marine Equipment
Management Corporation ("MEMCO"). We affirm.
I.
David Burchett, a crane operator employed by Cargill, was
injured when he slipped and fell on the cover deck of the K-2, a
midstream bulk cargo transfer unit owned and operated by Cargill.
The K-2, located in the Mississippi River near Convent, Louisiana,
is used to transfer bulk products, usually grain, from river barges
to ocean-going vessels. The K-2's structure was built on top of a
330 x 75 foot barge in 1981. The K-2 is permanently moored to the
bottom of the Mississippi River, approximately 500 feet from the
river's east bank. It has been in this position since 1982.
1 The K-2 has no engines, thrusters, or any other independent
mode of locomotion other than a winch and cable system used to
reposition the K-2 alongside the ocean-going vessel. The K-2's
backward and forward mobility is limited to the length of the
cables (1,200 feet), and it has no capacity to move laterally. The
K-2 has a raked bow, a ballast system, anchor lights, life boats
and jackets, and a radar unit used to monitor weather conditions.
Although it has an eating area and locker rooms for the crew, the
crew does not sleep aboard the K-2 but rather is transported to and
from shore daily. The K-2 is not registered as a vessel with, nor
has it ever been inspected by, the U.S. Coast Guard.
During the cargo transfer process, the ocean-going vessel
maneuvers itself to the west side of the K-2. Tugs then push the
grain barges into position on the east side of the K-2. Cargill
personnel then transfer the grain from the cargo holds of the
barges to the cargo holds of the ocean-going vessel. Throughout
this process, the K-2 remains stationary except for some minor
adjusting to align the K-2's offloading spouts over the cargo holds
of the vessel.
To offload the cargo from the barge, Cargill personnel first
remove the hatch covers from the cargo barge with a crane and stack
them on the K-2's cover deck. When the offloading process is
complete, a second crane on the K-2 cover deck replaces the covers
on the barge. According to Mr. Burchett, on October 1, 1992,
Cargill personnel removed the hatch covers from a cargo barge owned
by MEMCO and stacked them on the cover deck of the K-2. Burchett
2 testified that he slipped when he stepped on one of the hatch
covers. He contends the covers were slippery because dew and
soybean dust had accumulated on them during the offloading process.
He also complains that the covers were not painted with non-skid
paint.
David and his wife Cheryl originally filed this action in
state court, asserting Jones Act and unseaworthiness claims against
both Cargill and MEMCO. Cargill and MEMCO removed the case to
federal court on the basis of diversity, asserting that plaintiffs'
Jones Act claims were baseless. The plaintiffs moved to remand the
action to state court on the ground that Jones Act cases are
non-removable. The district court denied the motion to remand and
subsequently entered summary judgment in favor of Cargill on the
grounds that the K-2 was not a vessel and, therefore, Burchett was
not a seaman under the Jones Act. Cargill later filed an
intervention seeking reimbursement from MEMCO for the compensation
benefits paid to Burchett under the Longshoremen and Harbor
Workers' Compensation Act ("LHWCA").
After plaintiffs' motion to remand was unsuccessful, they
amended their complaint against MEMCO, withdrawing the Jones Act
claim and adding a negligence claim under § 905(b) of the LHWCA and
the general maritime law. The district court subsequently granted
summary judgment in favor of MEMCO as well, on the grounds that the
summary judgment evidence revealed that MEMCO had no liability
under § 905(b). Plaintiffs now appeal.
II.
3 A.
Plaintiffs argue first that the district court erred in
refusing to remand their action to state court because Jones Act
suits are not removable. As a general rule, we agree that Jones
Act cases are not removable. Johnson v. ODECO Oil & Gas Co., 864
F.2d 40, 42 (5th Cir.1989); 46 App.U.S.C. § 688 (incorporating
general provisions of Federal Employers' Liability Act, including
28 U.S.C. § 1445(a), which bars removal). However, this court has
recognized that in certain circumstances "defendants may pierce the
pleadings to show that the Jones Act claim has been fraudulently
pleaded to prevent removal." Lackey v. Atlantic Richfield Co., 990
F.2d 202, 207 (5th Cir.1993). In Lackey, we held that, like
fraudulent joinder cases, defendants sued under the Jones Act can
defeat remand upon showing that plaintiffs' claims against
non-diverse defendants "are baseless in law and in fact and "serve[
] only to frustrate federal jurisdiction.' " Id. (quoting Dodd v.
Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir.1964)).
The burden of persuasion on a removing party in such a case,
however, is a heavy one: "The removing party must show that there
is no possibility that plaintiff would be able to establish a cause
of action."1 Id. While we have cautioned against pretrying a case
to determine removal jurisdiction, we have recognized the district
court's authority to use a summary judgment-like procedure for
1 An additional ground for fraudulent pleadings—that there has been an outright fraud in the plaintiff's pleadings of jurisdictional facts—is not at issue in this case. See Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992).
4 disposing of fraudulent pleading claims. See B., Inc. v. Miller
Brewing Co., 663 F.2d 545, 549 n. 9 (5th Cir.1981). Accordingly,
in determining whether a plaintiff's claims are baseless, the
district court must resolve all disputed questions of fact and any
ambiguities in the current controlling substantive law in favor of
the plaintiff. See Carriere v. Sears Roebuck & Co., 893 F.2d 98,
100 (5th Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112
L.Ed.2d 35 (1990); Bobby Jones Garden Apartments, Inc. v. Suleski,
391 F.2d 172, 177 (5th Cir.1968). A denial of remand is
permissible where the district court "determine[s] that as a matter
of law there was no reasonable basis for predicting that the
plaintiff might establish liability." Miller Brewing, 663 F.2d at
551 (fraudulent joinder case) (citations omitted).
B.
Defendants contended below that plaintiffs had no possibility
of sustaining a Jones Act claim because the K-2 is not a vessel.
In support of this assertion, defendants submitted an affidavit
outlining in some detail the relevant facts about the nature and
use of the K-2. None of the facts that are pertinent to our
inquiry were disputed by plaintiffs. The district court concluded
that the K-2 is not a vessel as a matter of law and thus that
"plaintiffs' allegations of seaman's status are baseless."
The existence of a vessel is a fundamental prerequisite to a
Jones Act claim and is central to the test of seaman status.
Daniel v. Ergon, Inc., 892 F.2d 403 (5th Cir.1990); Blanchard v.
Engine & Gas Compressor Servs., Inc., 575 F.2d 1140, 1141 (5th
5 Cir.1978). Plaintiffs, therefore, cannot possibly recover on their
Jones Act claim unless the K-2 is a vessel. Johnson, 864 F.2d at
42-43.
In determining whether a structure is a vessel, the
touchstones are "the purpose for which the craft is constructed and
the business in which it is engaged." Blanchard, 575 F.2d at 1142.
We have been called upon on a number of occasions to determine
whether a structure, used as a floating platform in ship repair or
longshoring operations, was a vessel. Several of these cases have
identified three factors usually present when floating platforms
are not vessels:
(1) the structures involved were constructed and used primarily as a work platforms; (2) they were moored or otherwise secured at the time of the accident; and (3) although they were capable of movement and were sometimes moved across navigable waters in the course of normal operations, any transportation function they performed was merely incidental to their primary purpose.
Bernard v. Binnings Constr. Co., Inc., 741 F.2d 824, 831 (5th
Cir.1984); see also Ellender v. Kiva Constr. & Eng'g, Inc., 909
F.2d 803, 806, (5th Cir.1990); Daniel, 892 F.2d at 407; Ducrepont
v. Baton Rouge Marine Enters., Inc., 877 F.2d 393, 395 (5th
Cir.1989).
The K-2 satisfies all three of these factors. It was
constructed to serve as a base or platform to transfer bulk cargo
from barge to ship. It was not only securely moored at the time of
the accident but had been securely moored at the location for a
decade. The limited movement of the K-2, along its mooring lines,
to align the K-2's offloading spouts over the cargo holds of the
6 vessel is certainly incidental to its primary purpose of shifting
the cargo from one vessel to another.
We read the cases as establishing the above factors as the
most important considerations in resolving whether a work platform
is a vessel. See Daniel, 892 F.2d at 407-08. Some of the cases
suggest an expanded list that also may be considered.2 While this
list may be helpful in resolving close cases, we do not find these
factors useful in deciding a case such as this where all three
Daniel factors are satisfied and the structure has been
continuously moored and used as a floating platform for a number of
years.
Plaintiffs' principal argument on appeal is that this court's
decision in Michel v. Total Transp., Inc., 957 F.2d 186 (5th
Cir.1992) compels reversal of the district court. In Michel, we
held that a similar midstream bulk transfer rig was a vessel.
However, the structure at issue in Michel, the GEMINI, is readily
distinguishable from the K-2. Instead of remaining stationary, the
GEMINI was towed to a mid-stream position alongside the moored
ocean-going vessel. The GEMINI then anchored and the cargo barge
was secured to the side of the GEMINI opposite the ocean going
2 In Johnson, this court recited three factors closely related to the three listed above: (1) intention of the owner to move the structure on a regular basis, (2) ability of the submerged structure to be refloated, and (3) the length of time the structure has remained stationary. 864 F.2d at 43 (citing Hemba v. Freeport McMoran Energy Partners, Ltd., 811 F.2d 276, 278 (5th Cir.1987)). Johnson also listed the following additional factors: (1) navigational aids, (2) a raked bow, (3) lifeboats and other life-saving equipment, (4) bilge pumps, (5) crew quarters, and (6) registration as a vessel with the Coast Guard. Id. (citing Bernard, 741 F.2d at 832).
7 vessel. Thus, unlike the K-2, which has been permanently moored to
the river bed since 1982, GEMINI was a free-floating structure that
moved freely along a six-mile stretch of the Mississippi River to
wherever the ocean-going vessel was moored. See id. at 190.
The capacity of the K-2 to be towed on navigable waters and
transport cargo does not make it a vessel. We have routinely held
that floating work platforms and dry docks, even if equipped for
travel across navigable waters, are not vessels when permanently
moored and used as work platforms or dry docks. See, e.g.,
Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 n. 8 (5th
Cir.1990) (citing cases); Johnson, 864 F.2d at 43 (oil platform
and storage facility towed to its location in 1961 and secured into
place by concrete was not a vessel); Hemba, 811 F.2d at 278
(structure moved only twice in twenty years and attached to gulf
bottom by pilings driven into ocean floor was not a vessel); Davis
v. Cargill, Inc., 808 F.2d 361, 362 (5th Cir.1986) (former cargo
barge, anchored to river bed, to which ships would moor for
painting services was not a vessel); Blanchard, 575 F.2d at 1147
(gas compressor building mounted on floating barge which had not
been moved since it was installed in 1952 was not a vessel);
Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279, 283 (5th
Cir.) (" "A fixed structure such as this drydock is not used for
the purposes of navigation ... any more than is a wharf or
warehouse when projecting into or upon the water.' " (quoting Cope
v. Vallette Dry-Dock Co., 119 U.S. 625, 627, 7 S.Ct. 336, 336, 30
L.Ed. 501 (1887)), cert. denied, 396 U.S. 846, 90 S.Ct. 105, 24
8 L.Ed.2d 96 (1969).
As these cases indicate, the fact that the K-2 has remained in
place for ten years makes it a non-vessel despite our holding in
Michel. For example, in Johnson, this court in affirming summary
judgment distinguished the structure in question from a similar
structure which had been deemed a vessel in an earlier case on the
basis that the structure at issue had "remained in the same place
for twenty-four years ..., and it remains there even today."
Johnson, 864 F.2d at 43. Likewise, in Daniel, this court
distinguished a floating platform that had been moored to shore
since 1979 from a similar platform that moved from jobsite to
jobsite, stating: "Unloading cargo onto a stationary structure is
not ... a transportation function." Daniel, 892 F.2d at 408.
The occasional minimal movement of the K-2 along its cables to
reposition its offloading spouts over the cargo holds of the vessel
does not undermine this conclusion. "[S]ome movement, both
perpendicular and lateral, is necessarily part of the regular
operation of floating dry docks and similar structures. However,
capability to sustain such movement has been held insufficient to
establish that such craft are constructed for the purpose of
navigation." Cook v. Belden Concrete Prods., Inc., 472 F.2d 999,
1002 (5th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 175, 38
L.Ed.2d 116 (1973).
This court's decision in Leonard v. Exxon Corp., 581 F.2d 522
(5th Cir.1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60
L.Ed.2d 397 (1979), is particularly instructive in this regard. In
9 Leonard, the plaintiff worked on a platform made of four flat-deck
barges. Three of the barges were placed end-to-end and lashed
together. The three-barge structure was permanently moored to the
shore by cables. A crane was positioned on the fourth barge, which
was located between the shore and the other three barges. This
barge served as a crane platform and as an access ramp to the other
three barges and was connected to shore by a wooden ramp. To
permit the crane to service the other three barges, the three barge
structure would occasionally be moved slightly forward or backward
until it was properly positioned. See id. at 524. The court
concluded that the platform was not a vessel as a matter of law,
reasoning that any transportation function it performed was purely
incidental. Id.
The similarity between the K-2 and our numerous work platform
cases compels our conclusion that the K-2 is not a vessel as a
matter of law. In sum, we agree with the district court that
denial of remand was proper because plaintiffs could not possibly
establish that the K-2 was a vessel, an essential element of their
Jones Act claim.
C.
Plaintiffs argue next that Cargill was not entitled to summary
judgment. Because we have already concluded that the K-2 is not a
vessel as a matter of law, plaintiffs' Jones Act and general
maritime law actions against Cargill must fail. "Summary judgment
will always be appropriate in favor of a defendant against whom
there is no possibility of recovery." Carriere, 893 F.2d at 102.
10 III.
Plaintiffs, and Cargill as an intervenor, argue next that the
district court's grant of summary judgment in favor of MEMCO was
improper. We, of course, review a grant of summary judgment de
novo. Abbott v. Equity Group, Inc., 2 F.3d 613, 618 (5th
Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1219, 127 L.Ed.2d
565 (1994). Summary judgment is appropriate where the record
reflects 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).
Plaintiffs' amended complaint seeks recovery against MEMCO
under § 905(b) of the LHWCA, which allows a longshoreman injured as
a result of the negligence of a vessel to bring an action for
damages against the vessel. 33 U.S.C. § 905(b). Plaintiffs claim
that MEMCO's failure to install non-skid surfaces on its hatch
covers constitutes actionable negligence under § 905(b).
In Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451
U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court
articulated the scope of a vessel's duty under § 905(b). Scindia
established that "the primary responsibility for the safety of the
longshoremen rests upon the stevedore."3 Randolph v. Laeisz, 896
F.2d 964, 970 (5th Cir.1990). However, vessel liability may still
arise
1) if the vessel owner fails to warn on turning over the ship
3 We have held that these principles also apply to LHWCA-covered employees of independent contractors other than stevedores. Hill v. Texaco, Inc., 674 F.2d 447 (5th Cir.1982).
11 of hidden defects of which he should have known.
2) for injury caused by hazards under the control of the ship.
3) if the vessel owner fails to intervene in the stevedore's operations when he has actual knowledge both of the hazards and that the stevedore, in the exercise of "obviously improvident" judgment means to work on in the face of it and therefore cannot be relied on to remedy it.
Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 15 (5th
Cir.1992).
The district court held that the summary judgment evidence
negated a finding of liability under any of the above Scindia
scenarios. Assuming, without deciding, that an injury to a
longshoreman on a wharf or platform by a piece of a vessel, its
gear or equipment can give rise to § 905(b) liability against the
vessel owner, we agree with the district court that the summary
judgment evidence demonstrates that MEMCO has no liability under
Scindia.
MEMCO asserts that it cannot be liable under the first Scindia
duty of failure to warn of a hidden defect because the slippery
hatch cover was an open and obvious danger. A defendant generally
has not breached its duty to turn over a safe vessel if the defect
causing the injury is open and obvious. Id. at 16. The courts
have created a narrow exception to this rule where a longshoreman's
only options when facing an open and obvious danger are unduly
impracticable or time-consuming. Id.
The summary judgment evidence reveals that Burchett was aware
of the accumulation of soybean dust and dew on the hatch cover and
knew that it would cause the cover to be slippery. In fact,
12 Burchett admitted in his deposition that he had seen a co-worker
slip under the same conditions. He further admitted that none of
the steel hatch covers he had encountered previously had non-skid
surfaces and that he had also seen men slip and fall under similar
conditions on fiberglass covers with non-skid surfaces. The
summary judgment evidence also does not indicate that Burchett was
obliged to climb onto the hatch cover. Burchett testified in his
deposition that he climbed onto the hatch cover only because the K-
2 crew was shorthanded that day. According to Burchett, a crane
operator would not need to climb onto the hatch covers under
ordinary circumstances.
For similar reasons, MEMCO cannot be liable under Scindia's
second scenario, which imposes liability for injury caused by
hazards under the vessel owner's control. The vessel has a duty to
"exercise due care to avoid exposing longshoremen to harm from
hazards they may encounter in areas, or from equipment, under the
active control of the vessel during the stevedoring operation."
Scindia, 451 U.S. at 167, 101 S.Ct. at 1622. The summary judgment
evidence showed that the hatch cover was removed from MEMCO's "dumb
barge" and stacked on the cover deck of the K-2 by Cargill
personnel. No MEMCO personnel were present at any time during the
offloading process. The dust accumulated on the cover as a result
of Cargill's offloading operation. Cargill also controlled the
number of men working on the K-2 cover deck. Thus, MEMCO neither
controlled nor created the circumstances leading to Burchett's
injury.
13 As to the third Scindia scenario, which imposes on the vessel
a duty to intervene, the vessel must have "actual knowledge that it
could not rely on the stevedore to protect its employees and that
if unremedied the condition posed a substantial risk of danger."
Randolph, 896 F.2d at 971. As indicated above, MEMCO had no
personnel present at the job site who could have had knowledge of
any peculiar dangers related to Cargill's unloading operations.
See Helaire v. Mobil Oil Co., 709 F.2d 1031, 1038-39 (5th
Cir.1983).
IV.
For the reasons stated above, we affirm the judgment of the
district court.
AFFIRMED.