REVISED APRIL 30, 2002 UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 00-30993
MILFRED J. NUNEZ
Plaintiff - Appellee - Cross-Appellant
VERSUS
B & B DREDGING, INC. ET AL
Defendants
CLARENDON AMERICA INSURANCE COMPANY
Defendant - Appellant - Cross-Appellee
Appeals from the United States District Court For the Eastern District of Louisiana, New Orleans
April 23, 2002
Before GARWOOD, JOLLY and DAVIS, Circuit Judges
W. EUGENE DAVIS, Circuit Judge:
The question in this case is whether a land-based employee who
is permanently assigned to work in the service of a vessel but who
spends only 10% of his time working aboard the vessel may enjoy
seaman status. We hold that such an employee is not a seaman. I.
Milfred J. Nunez was employed by B&B Dredging, Inc. (B&B) for
two years. During the last 18 months of his employment, his work
was in relation to the M/V DREDGE BATON ROUGE. He first worked on
the construction of the M/V DREDGE BATON ROUGE in the shipyard.
After she was commissioned and began dredging work, he followed the
dredge as dredge dump foreman. In this role, Nunez oversaw the
discharge of dredge soil on or near the bank of the waterway in
which the dredge was operating. This included building,
monitoring, and changing dredge spoil sites, where the dredge
empties silt into piles on the shore. Although he traveled across
water to the dredge twice a day to report to his supervisor and
occasionally ate meals onboard, it is uncontested that Nunez
performed 90% of his work on land.
On September 4, 1997, the M/V BATON ROUGE had been engaged for
about three months in dredging a section of the Florida
Intercoastal Waterway for the U.S. Army Corps of Engineers. While
performing his duties on that date as dump foreman, Nunez began to
sink into the silt. In order to escape, he climbed onto the back
of a track hoe, but when he attempted to walk across the left
track, the housing of the track hoe rotated, causing the body of
the machine to hit Nunez’s left shoulder and throw him
approximately twenty feet in the air. Nunez suffered serious
injuries as a result.
Nunez sued B&B and its insurer, Clarendon America Insurance
2 Company (Clarendon), asserting claims for negligence under the
Jones Act,1 and unseaworthiness, maintenance, and cure under
general maritime law.2 B&B and Clarendon moved for summary
judgment, arguing that Nunez was not a seaman under the Jones Act,
which the court denied. Then Nunez moved for summary judgment on
the same issue; the court granted the motion, holding that Nunez
was a seaman as a matter of law. After a trial, the court awarded
Nunez damages and entered final judgment. B&B and Clarendon then
lodged this appeal.
II.
B&B argues that the district court erred by finding that Nunez
was a seaman as a matter of law. We agree with B&B for the
reasons that follow.
A.
Over 40 years ago this Circuit in Offshore Company v. Robison,
established a test for seaman status.3 We stated that:
there is an evidentiary basis for a Jones Act case to go to
1 46 U.S.C. §§ 688 et seq. 2 Nunez also sued the owner, operator, and insurer of the track hoe. The owner settled with Nunez before trial. After trial, the district court held that the operator of the track hoe had not abandoned his relationship with the hoe’s owner and had worked in furtherance of the business of both the owner and B&B. Thus, the court held both companies jointly liable for his negligence, and since the owner had already settled for its half, it reduced Nunez’s damage award by half. Nunez cross-appeals this reduction. Our holding on the issue of seaman status renders this cross-appeal irrelevant. 3 Robison, 266 F.2d 769, 779 (5th Cir. 1959).
3 the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.4
The Supreme Court in a series of cases beginning in 1991
essentially accepted this Circuit’s seaman status test.5 In
Chandris v. Latsis,6 the Court established a two-part test to
determine seaman status that essentially tracked this Circuit’s
test in Robison and this Court’s 1986 en banc opinion in Barrett v.
Chevron.7
The Supreme Court stated the test as follows:
First ... an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission ... 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
4 Id. at 779. See also Palmer v. Fayard Moving and Transp. Corp., 930 F.2d 437, 439 (5th Cir. 1991) (noting that the Supreme Court endorsed the Robison test in McDermott Int'l., Inc. v. Wilander, 498 U.S. 337, 354-55, 111 S.Ct. 807, 817 (1991)). 5 See Wilander; Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 2190 (1995); and Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554, 117 S.Ct. 1535, 1540 (1997). 6 Chandris, 515 U.S. 347, 115 S.Ct. 2172 (1995). 7 Barrett, 781 F.2d 1067 (5th Cir. 1986) (en banc).
4 nature.8
It is uncontested that Nunez’s job as dump foreman contributed
to the function and mission of the vessel. An essential function
of a dredge is to remove soil and silt from the seabed of the
waterway where the dredge is working. That spoil must be disposed
of in an orderly fashion on the shore for the dredge to perform its
function. Because Nunez was performing this essential job that
allowed the dredge to perform her work, the first prong of the
Supreme Court’s seaman status test is satisfied. We therefore turn
our attention to the second prong: whether Nunez’s connection to
the dredge BATON ROUGE was substantial in terms of both its
duration and its nature.
B.
We are satisfied that the Supreme Court’s analysis in Chandris
v. Latsis resolves this question. In Chandris, plaintiff Latsis
sued his employer and sought recovery as a seaman under the Jones
Act. Latsis was a salaried engineer responsible for maintaining
and updating the electronic and communications equipment on
Chandris’s fleet of six passenger ships. He planned and directed
ship maintenance from shore and was also required to take voyages
on the ships in the fleet to perform his job. He also spent some
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REVISED APRIL 30, 2002 UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 00-30993
MILFRED J. NUNEZ
Plaintiff - Appellee - Cross-Appellant
VERSUS
B & B DREDGING, INC. ET AL
Defendants
CLARENDON AMERICA INSURANCE COMPANY
Defendant - Appellant - Cross-Appellee
Appeals from the United States District Court For the Eastern District of Louisiana, New Orleans
April 23, 2002
Before GARWOOD, JOLLY and DAVIS, Circuit Judges
W. EUGENE DAVIS, Circuit Judge:
The question in this case is whether a land-based employee who
is permanently assigned to work in the service of a vessel but who
spends only 10% of his time working aboard the vessel may enjoy
seaman status. We hold that such an employee is not a seaman. I.
Milfred J. Nunez was employed by B&B Dredging, Inc. (B&B) for
two years. During the last 18 months of his employment, his work
was in relation to the M/V DREDGE BATON ROUGE. He first worked on
the construction of the M/V DREDGE BATON ROUGE in the shipyard.
After she was commissioned and began dredging work, he followed the
dredge as dredge dump foreman. In this role, Nunez oversaw the
discharge of dredge soil on or near the bank of the waterway in
which the dredge was operating. This included building,
monitoring, and changing dredge spoil sites, where the dredge
empties silt into piles on the shore. Although he traveled across
water to the dredge twice a day to report to his supervisor and
occasionally ate meals onboard, it is uncontested that Nunez
performed 90% of his work on land.
On September 4, 1997, the M/V BATON ROUGE had been engaged for
about three months in dredging a section of the Florida
Intercoastal Waterway for the U.S. Army Corps of Engineers. While
performing his duties on that date as dump foreman, Nunez began to
sink into the silt. In order to escape, he climbed onto the back
of a track hoe, but when he attempted to walk across the left
track, the housing of the track hoe rotated, causing the body of
the machine to hit Nunez’s left shoulder and throw him
approximately twenty feet in the air. Nunez suffered serious
injuries as a result.
Nunez sued B&B and its insurer, Clarendon America Insurance
2 Company (Clarendon), asserting claims for negligence under the
Jones Act,1 and unseaworthiness, maintenance, and cure under
general maritime law.2 B&B and Clarendon moved for summary
judgment, arguing that Nunez was not a seaman under the Jones Act,
which the court denied. Then Nunez moved for summary judgment on
the same issue; the court granted the motion, holding that Nunez
was a seaman as a matter of law. After a trial, the court awarded
Nunez damages and entered final judgment. B&B and Clarendon then
lodged this appeal.
II.
B&B argues that the district court erred by finding that Nunez
was a seaman as a matter of law. We agree with B&B for the
reasons that follow.
A.
Over 40 years ago this Circuit in Offshore Company v. Robison,
established a test for seaman status.3 We stated that:
there is an evidentiary basis for a Jones Act case to go to
1 46 U.S.C. §§ 688 et seq. 2 Nunez also sued the owner, operator, and insurer of the track hoe. The owner settled with Nunez before trial. After trial, the district court held that the operator of the track hoe had not abandoned his relationship with the hoe’s owner and had worked in furtherance of the business of both the owner and B&B. Thus, the court held both companies jointly liable for his negligence, and since the owner had already settled for its half, it reduced Nunez’s damage award by half. Nunez cross-appeals this reduction. Our holding on the issue of seaman status renders this cross-appeal irrelevant. 3 Robison, 266 F.2d 769, 779 (5th Cir. 1959).
3 the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.4
The Supreme Court in a series of cases beginning in 1991
essentially accepted this Circuit’s seaman status test.5 In
Chandris v. Latsis,6 the Court established a two-part test to
determine seaman status that essentially tracked this Circuit’s
test in Robison and this Court’s 1986 en banc opinion in Barrett v.
Chevron.7
The Supreme Court stated the test as follows:
First ... an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission ... 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
4 Id. at 779. See also Palmer v. Fayard Moving and Transp. Corp., 930 F.2d 437, 439 (5th Cir. 1991) (noting that the Supreme Court endorsed the Robison test in McDermott Int'l., Inc. v. Wilander, 498 U.S. 337, 354-55, 111 S.Ct. 807, 817 (1991)). 5 See Wilander; Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 2190 (1995); and Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554, 117 S.Ct. 1535, 1540 (1997). 6 Chandris, 515 U.S. 347, 115 S.Ct. 2172 (1995). 7 Barrett, 781 F.2d 1067 (5th Cir. 1986) (en banc).
4 nature.8
It is uncontested that Nunez’s job as dump foreman contributed
to the function and mission of the vessel. An essential function
of a dredge is to remove soil and silt from the seabed of the
waterway where the dredge is working. That spoil must be disposed
of in an orderly fashion on the shore for the dredge to perform its
function. Because Nunez was performing this essential job that
allowed the dredge to perform her work, the first prong of the
Supreme Court’s seaman status test is satisfied. We therefore turn
our attention to the second prong: whether Nunez’s connection to
the dredge BATON ROUGE was substantial in terms of both its
duration and its nature.
B.
We are satisfied that the Supreme Court’s analysis in Chandris
v. Latsis resolves this question. In Chandris, plaintiff Latsis
sued his employer and sought recovery as a seaman under the Jones
Act. Latsis was a salaried engineer responsible for maintaining
and updating the electronic and communications equipment on
Chandris’s fleet of six passenger ships. He planned and directed
ship maintenance from shore and was also required to take voyages
on the ships in the fleet to perform his job. He also spent some
time supervising the vessels’ refurbishment in the shipyard.
8 Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340, 346 (5th Cir. 1999), quoting Harbor Tug, 520 U.S. at 554, 117 S.Ct. at 1540 (1997) (quoting Chandris, 515 U.S. at 368, 115 S.Ct. at 2190 (1995)) (citations and internal quotation marks omitted).
5 The Court clarified what ”employment related connection to a
vessel in navigation” is necessary for a maritime worker to qualify
as a seaman under the Jones Act.
The Court first discussed the fundamental purpose of the
requirement that a seaman have a substantial connection to his
vessel:
... [M]ost 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. This requirement therefore determines which maritime employees in Wilander’s broad category of persons eligible for seaman status because they are “doing the ship’s work,” are in fact entitled to the benefits conferred upon seamen by the Jones Act because they have the requisite employment-related connection to a vessel in navigation.9
The Court emphasized that the worker’s connection to the
vessel must be substantial in both its duration and nature. The
Court explained:
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
9 Chandris, 515 U.S. at 368-69, 115 S.Ct. at 2190 (internal citation omitted).
6 employee who happens to be working on the vessel at a given time.10
The Court disagreed with the Court of Appeals that the
seaman’s connection to a vessel had no temporal requirement. The
Court stated “a maritime worker who spends only a small fraction of
his working time onboard a vessel is fundamentally land based and
therefore not a member of the vessel’s crew, regardless of what his
duties are.”11 The Court stated further that “generally, the Fifth
Circuit seems to have identified an appropriate rule of thumb for
the ordinary case: a worker who spends less than about 30% of his
time in the service of a vessel in navigation should not qualify as
a seaman under the Jones Act.”12
Nunez points to the Robison test authorizing a finding that
the employee has the requisite connection to a vessel if he was:
...”assigned permanently to a vessel...” or ...”performed a
substantial part of his work on the vessel.” He argues that this
test is disjunctive and because he was permanently assigned to the
dredge BATON ROUGE as the dump foreman the district court correctly
found that he had the requisite connection to a vessel. We
disagree. This interpretation ignores the Supreme Court’s teaching
in Chandris that a seaman’s connection with a vessel includes a
temporal requirement, i.e. that the worker spend a substantial part
10 Id. at 370, 115 S.Ct. at 2190-91. 11 Id. at 371, 115 S.Ct. at 2191. 12 Id.
7 of his work time aboard the vessel. Were we to accept Nunez’s
argument, we would remove this requirement. In other words, Nunez
would have us adopt a rule -- contrary to Chandris’s directions --
that any worker whose duties contribute to the function or the
mission of the vessel is a seaman without regard to whether that
worker ever sets foot on the vessel. Such an interpretation would
introduce a host of land-based employees as potential Jones Act
seamen simply because their work supports the vessel’s mission.
In Palmer v. Fayard Moving and Transp. Corp., a land-based
employee such as Nunez sought recovery under the Jones Act.13 Ms.
Palmer, the plaintiff in that case, was a land-based public
relations officer whose job was entirely devoted to promoting a
single vessel, the M/V FRANCIS FAYARD. Ms. Palmer’s duties
included writing letters promoting the use of the vessel, acting as
liaison with clients, researching the history of the ship, and
setting up trips on the vessel. She spent approximately 19% of her
working hours aboard the ship preparing the social areas of the
ship and cleaning it before and after social events. Despite the
fact that Palmer – like Nunez – spent 100% of her time furthering
the mission or function of the vessel, we concluded that she was
not eligible for seaman status because the time she spent aboard
the vessel was insubstantial.
If we were to accept Nunez’s argument, we would expand the
13 Palmer, 930 F.2d 437 (5th Cir. 1991).
8 ranks of potential Jones Act seamen to all land-based employees who
further the mission or function of the vessel, from salesmen to
payroll clerks to corporate executives. Neither the law of the
Supreme Court or of this Circuit will permit such a bizarre result.
III.
For a worker such as Nunez who divides his work time between
the shore and the vessel, he must demonstrate that he spends a
substantial part of his work time aboard the vessel in order to
demonstrate that he has the requisite connection to a vessel in
order to qualify for seaman status. Nunez spent approximately 10%
of his work time aboard the dredge BATON ROUGE. Because this is an
insubstantial part of his work time, he does not qualify for seaman
status. Because Nunez is not a seaman as a matter of law, we
reverse the judgment of the district court and render judgment in
favor of B&B.
REVERSED AND RENDERED.