Holmes v. Atlantic Sounding Co.

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED FEBRUARY 3, 2006
IN THE UNITED STATES COURT OF APPEALS January 19, 2006

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 04-30732

ADDIE HOLMES,

Plaintiff-Appellant,

versus

ATLANTIC SOUNDING COMPANY INC;
WEEKS MARINE INC; ABC INSURANCE
CO; XYZ INSURANCE CO,

Defendants-Appellees;

-----------------------------------------------------
Cons. No. 04-30750

ADDIE HOLMES,

Plaintiff-Appellant,

versus

ATLANTIC SOUNDING COMPANY INC;
ABC INSURANCE CO INC,

Defendants-Appellees.

--------------------------
Appeals from the United States District Courts
for the Western District of Louisiana
--------------------

Before WIENER, DEMOSS, and PRADO, Circuit Judges.

WIENER, Circuit Judge:
 This court’s previous opinion is hereby withdrawn, and the

following opinion is substituted:

In this consolidated appeal of two state actions that were

removed to different district courts, Plaintiff-Appellant Addie

Holmes appeals the denial of her motion to remand and the dismissal

of her Jones Act and general maritime law personal injury suit

against defendants-appellees, Atlantic Sounding Co., Inc.

(“Atlantic”), her nominal payroll employer, and Weeks Marine, Inc.

(“Weeks”), for which she was actually performing services at the

time in question. The dispositive issue —— whether an unpowered

floatable structure like Weeks’s quarterbarge BT-213 (“the BT-

213”), on which Holmes was working when injured, is a vessel for

Jones Act purposes —— is not one of first impression in this

circuit. We resolved this issue in Gremillion v. Gulf Coast

Catering Co.,1 answering the question in the negative; however, the

Supreme Court’s recent decision in Stewart v. Dutra Construction

Co.2 calls into question the analysis underlying our holding in

Gremillion. We therefore must determine what effect, if any,

Stewart has on this aspect of our vessel jurisprudence.

For the reasons that follow, we conclude that the BT-213 is a

vessel for purposes of the Jones Act. We therefore reverse the

district courts’ judgments and orders adverse to Holmes and remand

1
904 F.2d 290 (5th Cir. 1990).
2
543 U.S. 481, 125 S. Ct. 1118 (2005).

2
these cases to those courts for further proceedings consistent with

this opinion.

I. FACTS

Holmes sued defendants-appellees Atlantic and Weeks

(collectively, “appellees”) in Louisiana state court seeking

damages for injuries that she allegedly sustained on her first day

of work as a cook aboard the BT-213. Holmes is a Louisiana

domiciliary. Both Atlantic and Weeks are New Jersey corporations

with their principal place of business in Cranford, New Jersey.

The BT-213 is 140 feet long and 40 feet wide. It is, in

effect, a floating dormitory, a barge on the deck of which a two-

story, 50-bed “quarters package” is mounted. Weeks causes the BT-

213 to be moved from place to place to house and feed employees

during dredging projects at various locations. The BT-213 has

sleeping quarters on both stories, as well as toilet facilities, a

fully-equipped galley, locker rooms, freshwater deck tanks, diesel-

powered electrical generators, and a gangway with railings. The

BT-213’s entire “crew” consists of two cooks and two janitors.

There is no record evidence that they are transported on the BT-213

while it is moved from one site to another.

The BT-213 is towed by tugs between project locations. It is

sometimes towed by itself and, at times, together with other

barges. Weeks temporarily installs battery-operated running lights

on the BT-213 when it is to be towed by itself. When the BT-213 is

3
not in use, it is held in a boat slip at Weeks’s facility in Houma,

Louisiana. At the time of Holmes’s accident, the BT-213 was moored

in a private boat slip at Holly Beach in Cameron Parish while the

crew of Weeks’s dredge worked in the Gulf of Mexico. The BT-213

arrived at Holly Beach in August 2002 and had not moved before

Holmes’s accident the following month.

The BT-213 has never been inspected by or registered with the

Coast Guard. It is not intended to transport personnel, equipment,

passengers, or cargo, and no evidence in the record reflects that

it has ever done so. It is not fitted out with winches, running

lights, a radar, a compass, engines, navigational aids, Global

Positioning System, lifeboats, or steering equipment such as

rudders. It is incapable of self-propulsion; has no captain,

engineer, or deckhand; has no bilge pumps or wing tanks; and has

never been offshore.

On the other hand, the BT-213 has a raked bow on each end, and

“two end tanks where the rakes are . . . for flotation.” It has a

radio that is used primarily to communicate with the dredge. It is

equipped with bits or bollards that are used to tie it to the shore

or to other vessels or structures. It is sometimes moored by

anchors and is equipped with life rings and portable water pumps.

Holmes alleges that when she attempted to place her belongings

in her locker on the BT-213, both the locker and a television set

that was on top of it fell on her as she opened the locker door.

4
She alleges further that the accident caused injuries to her neck,

shoulder, ears, and nose and caused dizziness as well.

Holmes sued Atlantic and Weeks in Louisiana state court,

asserting claims under the Jones Act3 and general maritime law.

She later filed a second suit in Louisiana state court against

Atlantic, seeking maintenance and cure.

These cases were removed to different federal district courts.

In their respective removal notices, Atlantic and Weeks advanced

that Holmes fraudulently pleaded a Jones Act claim to prevent

removal to federal court and that diversity jurisdiction existed

under 28 U.S.C. § 1332. Holmes responded with motions to remand

both suits. The magistrate judge ordered the parties to brief the

issue of Jones Act liability.

After discovery and briefing were complete, the magistrate

judge issued reports and recommendations in both suits, proposing

that the district courts deny Holmes’s motions to remand and enter

judgments in favor of Weeks and Atlantic. The magistrate judge

concluded that (1) the BT-213 is not a vessel for purposes of the

Jones Act, (2) Holmes could not establish any possibility of

recovery under the Jones Act, and (3) as diversity jurisdiction

existed, removal was proper. Holmes timely objected to the

magistrate judge’s report and recommendation.

3
46 U.S.C. App. § 688.

5
 In June 2004, the district court to which Holmes’s maintenance

and cure suit against Atlantic had been removed adopted the report

and recommendation and issued a partial final judgment in favor of

Atlantic. After Holmes conceded that no other viable claims

remained, the district court amended the partial final judgment to

reflect its finality.

One month later, the district court to which Holmes’s Jones

Act and general maritime law suit against Weeks and Atlantic had

been removed adopted the magistrate judge’s report and

recommendation, denied Holmes’s motion to remand, and dismissed her

Jones Act claim. The court certified the partial final judgment

under Federal Rule of Civil Procedure 54(b). Holmes timely filed

notices of appeal in both courts. We consolidated the appeals of

these two cases.

II. ANALYSIS

A. Standard of Review

6
 We review the denial of a motion to remand de novo.4 We also

review a district court’s grant of summary judgment de novo.5

Whether an unconventional craft is a vessel is an issue that is

generally resolved as a matter of law, although we have recognized

that “at the margin, fact issues may be presented.”6

B. Issues

1. Removal

Generally, Jones Act cases are not removable from state

court.7 A fraudulently pleaded Jones Act claim does not, however,

bar removal.8 A defendant may “‘pierce the pleadings to show that

the Jones Act claim has been fraudulently pleaded to prevent

removal.’”9 The district court may use a “summary judgment-like

procedure” to determine whether a plaintiff has fraudulently

pleaded a Jones Act claim.10 “The court may deny remand where, but

4
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494
(5th Cir. 1996) (citing Allen v. R & H Oil & Gas Co., 63 F.3d
1326, 1336 (5th Cir. 1995).
5
Id. at 492 (citing Lee v. Wal-Mart Stores, Inc., 34 F.3d
285, 288 (5th Cir. 1994)).
6
Manuel v. P.A.W. Drilling & Well Serv., 135 F.3d 344, 347
(5th Cir. 1998) (citing Ducote v. Keeler & Co., Inc., 953 F.2d
1000, 1002 (5th Cir. 1992)).
7
See Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir.
1995).
8
See id.
9
Id. (quoting Lackey v. Atlantic Richfield Co., 990 F.2d
202, 207 (5th Cir. 1993)).
10
Id. at 176.

7
only where, resolving all disputed facts and ambiguities in current

substantive law in plaintiff’s favor, the court determines that the

plaintiff has no possibility of establishing a Jones Act claim on

the merits.”11

To qualify as a seaman under the Jones Act, an employee must

first demonstrate that his duties “‘contribute to the function of

the vessel or to the accomplishment of its mission.’”12 Second, “a

seaman must have a connection to a vessel in navigation (or an

identifiable group of vessels) that is substantial in terms of both

its duration and its nature.”13 Atlantic and Weeks contend only

that the BT-213 is not a vessel under the Jones Act. Accordingly,

if Atlantic and Weeks carry their burden and demonstrate that there

exists no genuine issue of material fact as to the BT-213’s vessel

status, removal was proper, as was dismissal. For the following

reasons, we find that the BT-213 is a vessel for Jones Act

purposes. Accordingly, we vacate the district courts’ denials of

Holmes’s motions to remand, and we remand to those courts for

further proceedings not inconsistent with this opinion.

2. Our Pre-Stewart “Vessel” Jurisprudence

11
Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 345-
46 (5th Cir. 1999) (citing Burchett, 48 F.3d at 176).
12
Chandris, Inc. v. Latsis, 515 U.S. 347, 359 (1995)
(quoting McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 355
(1991)).
13
Id.

8
 “The existence of a vessel is a ‘fundamental prerequisite to

Jones Act jurisdiction’ and is at the core of the test for seaman

status.”14 The term “vessel” has, however, escaped precise

definition. The exotic watercraft that have been deemed vessels

and the heavy inquiry that surrounds each analysis of an

unconventional craft’s status has led even this court to recognize

that the “three men in a tub would . . . fit within our definition

[of a Jones Act seaman], and one probably could make a convincing

case for Jonah inside the whale.”15

Historically, we have noted that the term “vessel” connotes a

structure designed or used for “transportation of passengers, cargo

or equipment from place to place across navigable waters.”16 “As

a general principle, where the vessel status of an unconventional

craft is unsettled, it is necessary to focus upon ‘the purpose for

which the craft is constructed and the business in which it is

engaged.’”17 “The greater the structure’s resemblance to

14
Daniel v. Ergon, Inc., 892 F.2d 403, 407 (5th Cir. 1990)
(quoting Bernard v. Binnings Constr. Co., 741 F.2d 824, 828 (5th
Cir. 1984)).
15
Burks v. Am. River Transp. Co., 679 F.2d 69, 75 (5th Cir.
1982).
16
Cook v. Belden Concrete Prods., 472 F.2d 999, 1002 (5th
Cir. 1973).
17
Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292
(5th Cir. 1990) (quoting Blanchard v. Engine & Gas Compressor
Servs., Inc., 575 F.2d 1140, 1142 (5th Cir. 1978)).

9
conventional seafaring craft, the greater the odds of securing

vessel status.”18

To evaluate the purpose for which a craft is constructed, we

have considered: (1) whether the owner assembled or constructed the

craft to transport passengers, cargo, or equipment across navigable

waters; (2) whether the craft is engaged in that service; (3)

whether the owner intended to move the craft on a regular basis;

(4) the length of time that the craft has remained stationary; and

(5) the existence of other “objective vessel features,” such as:

(a) navigational aids; (b) lifeboats and other life-saving

equipment; (c) a raked bow; (d) bilge pumps; (e) crew quarters; and

(f) registration with the Coast Guard as a vessel.19

To determine the business in which the craft is engaged,

“evaluating the craft’s transportation function is the key to

determining the craft’s status.”20 When the transportation function

of the craft is merely incidental to the craft’s primary purpose,

we have consistently held that the craft is not a vessel.21 On the

other hand, when the transportation function of the craft is “an

important part of the business in which the craft was engaged,” we

have generally found the craft to be a vessel, even if it has also

18
Id.
19
Manuel, 135 F.3d at 350-51; Gremillion, 904 F.2d at 293.
20
Manuel, 135 F.3d at 351 (emphasis added).
21
See id.

10
served as a work platform.22 We have attributed three common

attributes to nonvessels:

(1) The structure was constructed to be used primarily as
a work platform;
(2) the structure is moored or otherwise secured at the
time of the accident; and
(3) although the platform is capable of movement, and is
sometimes moved across navigable waters in the course of
normal operations, any transportation function is merely
incidental to the platform’s primary purpose.23

3. Stewart

With this backdrop in mind, we turn to the recent Supreme

Court opinion in Stewart v. Dutra Construction Co.24 to determine

any possible effect on our vessel jurisprudence. In Stewart, the

plaintiff sued Dutra Construction Co. (“Dutra”) under the Jones Act

and the Longshore Harbors Workers’ Compensation Act (“LHWCA”) after

he injured himself on Dutra’s dredge, the Super Scoop.25 The Court

described the Super Scoop as follows:

The Super Scoop is a massive floating platform from which
a clamshell bucket is suspended beneath the water. The
bucket removes silt from the ocean floor and dumps the
sediment onto one of the two scows that float alongside
the dredge. The Super Scoop has certain characteristics
common to seagoing vessels, such as a captain and a crew,
navigational lights, ballast tanks, and a crew dining
area. But it lacks others. Most conspicuously, the
Super Scoop has only limited means of self-propulsion.

22
See id.
23
Pavone v. Miss. Riverboat Amusement Corp., 52 F.3d 560,
570 (5th Cir. 1995); Gremillion, 904 F,2d at 294.
24
543 U.S. 481, 125 S. Ct. 1118 (2005).
25
See id. at 1121-22.

11
 It is moved long distances by tugboat. . . . It navigates
short distances by manipulating its anchors and cables.26

The district court granted summary judgment in favor of Dutra

“because the Super Scoop’s primary purpose was dredging rather than

transportation and because it was stationary at the time of

Stewart’s injury.”27 The district court held, as a matter of law,

that (1) the Super Scoop was not a vessel, and (2) Stewart could

not establish seaman status. The court of appeals affirmed.28 The

Supreme Court granted certiorari and reversed.

The Supreme Court granted certiorari “to resolve confusion

over how to determine whether a watercraft is a ‘vessel’ for

purposes of the LHWCA.”29 The Court stated that 1 U.S.C. § 3

provides the controlling definition of “vessel” for LHWCA

purposes:30 “every description of watercraft or other artificial

contrivance used, or capable of being used, as a means of

transportation on water.”31 Although the issue on which the Court

granted certiorari would appear at first to limit Stewart’s

precedential force to LHWCA cases only, we cannot read Stewart so

narrowly. Indeed, the Court’s opinion refers to the Jones Act and

26
Id. at 1121.
27
Id. at 1122.
28
Id.
29
Id. at 1123.
30
See id. at 1129.
31
1 U.S.C. § 3 (emphasis added).

12
the LHWCA interchangeably and nowhere limits § 3’s definition of

“vessel” to the LHWCA, either expressly or implicitly.

Other language in the opinion supports our conclusion that the

Court used Stewart to define “vessel” for purposes of both

statutes. After noting that the Jones Act does not define “seaman”

and that the LHWCA does not define “vessel,” the Court stated:

The Shipping Act of 1916 defines the term “vessel” for
purposes of the Jones Act. See 46 U.S.C. App. § 801.
However, the provisions of the Jones Act at issue here,
§ 688(a), speaks not of “vessels,” but of “seamen.” In
any event, because we have identified a Jones Act
“seaman” with reference to the LHWCA’s exclusion, see 33
U.S.C. § 902(3)G) (“a master or member of a crew of any
vessel”), it is the LHWCA’s use of the term “vessel” that
matters. And, as we explain, the context surrounding
Congress’ enactment of the LHWCA suggests that Rev. Stat.
§ 3, now 1 U.S.C. § 3, provides the controlling
definition of the term “vessel” in the LHWCA.32

Further, the Court observed that its earlier cases “show[ed] that

at the time Congress enacted the Jones Act and the LHWCA in the

1920’s, it was settled that § 3 defined the term ‘vessel’ for

purposes of those statutes.”33 The most telling indication that the

Court considers Stewart’s holding applicable to the Jones Act is

found in the following language:

Applying § 3 brings within the purview of the Jones Act
the sorts of watercraft considered vessels at the time
Congress passed the Act. By including special-purpose
vessels like dredges, § 3 sweeps broadly, but the other
prerequisites to qualifying for seaman status under the
Jones Act provide some limit, notwithstanding § 3’s
breadth. A maritime worker seeking Jones Act seaman

32
Stewart, 125 S. Ct. at 1124 n. 1.
33
Id. at 1125.

13
 status must also prove that his duties contributed to the
vessel’s function or mission, and that his connection to
the vessel was substantial both in nature and duration.
Thus, even though the Super Scoop is a “vessel,” workers
injured aboard the Super Scoop are eligible for seaman
status only if they are “master[s] or member[s]” of its
crew.34

It is clear, then, that Stewart defines “vessel” for purposes of

both the Jones Act and the LHWCA. Given Stewart’s significant

broadening of the set of unconventional watercraft that must be

deemed vessels, however, we are convinced that the Court employed

the foregoing language to confirm that there still exist limits on

a potential plaintiff’s seaman status under the Jones Act.

As Stewart’s definition of “vessel” applies equally to the

Jones Act and the LHWCA, § 3 clearly controls the definition of

“vessel” for purposes of both acts. Thus, as long as a water-borne

structure is practically capable of being used for transportation

on navigable waters, it is a “vessel.”35 As noted, Stewart has

significantly enlarged the set of unconventional watercraft that

are vessels under the Jones Act and the LHWCA: “Under § 3, a

‘vessel’ is any watercraft practically capable of maritime

transportation, regardless of its primary purpose or state of

transit at a particular moment.”36 Consistent with Stewart’s

34
Id. at 1127.
35
See id. at 1129.
36
Id. (emphasis added).

14
expanded definition of that term, we have no trouble concluding

that the BT-213 is a vessel.

In addition to personnel and cargo, e.g., supplies incidental

to room and board, the BT-213 is “practically capable” of

transporting equipment. As Holmes noted at oral argument and in

her appellate briefs, the BT-213 “transports” the attached (but

presumably detachable) quarters modules —— the sleeping and eating

“equipment” and feeding and housing supplies for members of the

crews of Weeks’s dredges —— from shore to dredge site and from

dredge site to dredge site; and it did so fourteen times between

January 14, 2001, and September 12, 2002. Whether the primary

purpose of the BT-213 is to transport the housing modules, and the

fact that it happened to be moored to the bank at the time of

Holmes’s accident, are of no moment.

In addition, the BT-213 possesses a number of the objective

characteristics of a vessel. As stated above, it has a raked bow

and “two end tanks where the rakes are . . . for flotation.” The

BT-213 is fitted out with vessel-like gear (such as traditional

mooring devices, bits or bollards or cleats) for securing it to the

shore or to other vessels by lines or hausers. It is generally

moored with anchors as well as land lines; and, on some projects,

it is moored in navigable waters, completely inaccessible from the

shore except by boat. We also note that when the BT-213 is moored

near a dredge site, its mooring is temporary only, which

distinguishes it to some extent from the quarterbarge in

15
Gremillion, which “was partially sunk into a shoreside mudbank,”37

and from the faux paddle-wheel gaming boat in Pavone, which was

moored to the shore permanently, save only in the event of a

hurricane.

Further, although the BT-213 is totally incapable of self-

propulsion, and the Super Scoop in Stewart had “limited means of

self-propulsion,” both were moved long distances by tugs.38 As we

read Stewart, it was not the Super Scoop’s limited means of self-

propulsion that rendered it a vessel for purposes of the Jones Act

or the LHWCA. We recognize that the BT-213 too lacks many of the

objective features of those unconventional watercraft that we have

nevertheless held to be vessels, but we accept Stewart’s teaching

that the class of water-borne structures that are vessels for LHWCA

and Jones Act purposes is broader than we have heretofore held.39

As a final caveat, we caution the trial courts henceforth to

remain mindful that, even though § 3’s definition of vessel sweeps

broadly, “the other prerequisites to qualifying for seaman status

under the Jones Act provide some limits . . . . A maritime worker

seeking Jones Act seaman status must also prove that his duties

contributed to the vessel’s function or mission, and that his

connection to the vessel was substantial both in nature and

37
Gremillion, 904 F.2d at 291.
38
See 125 S. Ct. at 1121-22.
39
See id. at 1129.

16
duration.”40 Thus, we express no opinion as to whether Holmes

qualifies for Jones Act seaman status: We have been called on to

determine only whether the BT-213 is a “vessel” under Stewart’s

expanded definition of that term, a question that we answer today

in the affirmative.

III. CONCLUSION

When we factor all discrete facts unique to the BT-213 into

the framework of our vessel jurisprudence as modified by Stewart,

we conclude that the BT-213 is a vessel for Jones Act purposes.

Accordingly, we reverse the rulings of the district courts grounded

in their determinations of non-vessel status and remand these cases

to their respective district courts for proceedings consistent with

this opinion.

REVERSED AND REMANDED.

40
Id. at 1127 (citing Chandris, 515 U.S. at 376).

17