Wanda Palmer v. Fayard Moving and Transportation Corp.

930 F.2d 437, 1991 U.S. App. LEXIS 7929, 1991 WL 55935
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 2, 1991
Docket90-1918
StatusPublished
Cited by42 cases

This text of 930 F.2d 437 (Wanda Palmer v. Fayard Moving and Transportation Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wanda Palmer v. Fayard Moving and Transportation Corp., 930 F.2d 437, 1991 U.S. App. LEXIS 7929, 1991 WL 55935 (5th Cir. 1991).

Opinion

WISDOM, Circuit Judge:

This case raises the issue whether Wanda Palmer has a cause of action under 46 U.S.C.App. § 688 of the Jones Act or general maritime law. Because we agree with the district court that Palmer has no cause of action under the Jones Act, we affirm the district court’s grant of summary judgment to Fayard Moving and Transportation Corporation (“Fayard”) on this point. Because we hold that Palmer has a cause of action for negligence under general maritime law, we reverse the district court’s holding that maritime jurisdiction does not attach and we remand. We affirm, however, the district court’s dismissal of Palmer’s unseaworthiness claim under general maritime law.

I.

Wanda Palmer, a resident of Mississippi, was employed by Fayard from September 1986 to December 1986 as a public relations agent. This case arises out of an incident that occurred on October 4, 1986 when Palmer, while descending a ladder on board the M/V FRANCES FAYARD, slipped and fell. Palmer’s complaint alleged that she was performing duties as a seaman or was an invitee aboard the vessel and that she was injured because of the unseaworthy condition of the vessel and the negligence of her owners, operators and employees.

The district court, finding that Palmer was not a Jones Act seaman and that general maritime law did not apply to the action, granted Fayard’s Motion for Summary Judgment.

II.

We review a district court’s grant of summary judgment de novo, resolving any disputed issues in favor of the non-movant, to determine whether the record, as it exists, shows that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); St. Amant v. Benoit, 806 F.2d 1294, 1296-97 (5th Cir.1987).

A. Jones Act claim

Thirty-two years ago this Court enumerated the criteria for determining seaman status under the Jones Act. In Offshore Company v. Robison, 266 F.2d 769, 779 (5th Cir.1959) we held:

[Tjhere is an evidentiary basis for a Jones Act case to go to 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 *439 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.

The doctrine has stood the test of the time. The Supreme Court recently endorsed it in McDermott Int’l., Inc. v. Wilander, - U.S. -, -, 111 S.Ct. 807, 816, 112 L.Ed.2d 866 (1991).

Palmer does not meet the first part of the Robison test in that she was not assigned permanently to the M/V FRANCES FAYARD, nor did she perform a substantial amount of her work on the vessel.

Palmer’s own deposition shows that she was primarily employed as a land-based public relations officer for Fayard. Palmer said that her employment consisted of writing letters, acting as a liaison with clients, researching the history of the M/V FRANCES FAYARD, and setting up trips on the vessel for people who did business with Fayard. Palmer also testified that her duties in organizing the boat trips consisted of ordering the food, beverages, ice and other supplies, and preparing the boat for the trips. In addition, Palmer and her husband cleaned the vessel during the week before and after the social events.

Palmer testified that she completed ten trips aboard the M/V FRANCES FAYARD during the course of her employment, six of these after her accident on October 4, 1986. The district court, using Palmer’s estimate that each trip averaged 10.32 hours 1 , found that, at a maximum, the 103.2 hours that Palmer said she spent working aboard the vessel represented only about 19% of the 549 hours indicated by her time card records; the remaining hours were spent on land. Obviously, Palmer was not permanently assigned to the M/V FRANCES FAYARD.

Furthermore, the district court found that the time spent on the vessel did not represent a “substantial part” of Palmer’s work, and in this respect too, she did not satisfy the Robison test. We agree. In addressing the question what constitutes performing a “substantial part” of one’s work on a vessel, this Court has stated that “if the employee’s regularly assigned duties require him to divide his time between vessel and land (or platform) his status as a crew member is determined ‘in the context of his entire employment’ with his current employer.” Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1075 (5th Cir.1986) (quoting Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1347 (5th Cir.1980)).

In Barrett, we found that a welder’s helper who performed no more than twenty to thirty percent of his work on vessels was not a seaman because he did not perform a substantial portion of his work aboard a vessel. In Ward v. Reeled Tubing, Inc., 637 F.Supp. 33, 37-38 (E.D.La.1986), the Court held that the plaintiff, who performed 20% of his work on vessels, was not a seaman, because the amount of time spent on vessels was “significantly less than the 20 to 30% ruled insufficient as a matter of law in Barrett”. In keeping with this precedent, we find that even if we accept Palmer’s assertion that she spent 19% of her time on vessel-related work, this is insufficient, as a matter of law, to convince us that she was either permanently assigned to the vessel or performed a substantial part of her work on board a vessel. Accordingly, we hold that Palmer was not a seaman under the Jones Act. The district court did not err in granting Fayard’s Motion for Summary Judgment on this claim.

B. Admiralty Jurisdiction

It is now well established that two requirements must be met to invoke federal admiralty jurisdiction. First, a locality test must be met: the damage or injury must take place on navigable waters. Second, the wrong must have a “significant relationship to traditional maritime activity.” Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 268, 93 S.Ct.

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Bluebook (online)
930 F.2d 437, 1991 U.S. App. LEXIS 7929, 1991 WL 55935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wanda-palmer-v-fayard-moving-and-transportation-corp-ca5-1991.