United States Court of Appeals,
Fifth Circuit.
No. 91–3110.
Leroy MICHEL, Jr. and Cindy Michel, Plaintiffs–Appellees,
Cross–Appellants,
v.
TOTAL TRANSPORTATION, INC. and Assuranceforeningen Gard,
Defendants–Appellants, Cross–Appellees.
April 2, 1992.
Appeals from the United States District Court for the Eastern
District of Louisiana.
Before THORNBERRY, KING and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Leroy Michel ("Michel") filed this action against his
employer, Total Transportation, Inc. and its insurer,
Assuranceforeningen Gard (collectively, "TTI"), to recover damages
under the Jones Act (46 U.S.C.App. § 688) and general maritime law
for unseaworthiness and in the alternative, under 33 U.S.C. §
905(b), the Longshore and Harbor Workers' Compensation Act (LHWCA)
for personal injuries he suffered in the course of his employment.
Michel's wife, Cindy Michel, asserted a claim for loss of
consortium under general maritime law. After a bench trial, the
district court found that the GEMINI was a special purpose vessel,
Michel was a "seaman" entitled to the remedies of the Jones Act,
TTI was negligent under the Jones Act and the LHWCA, and the GEMINI
was unseaworthy. The district court awarded Michel $534,000 in
damages,1 and $35,000 to Cindy Michel for loss of consortium. TTI
1
These damages consist of the following components:
1. $100,000 for pain, suffering and disability from
appeals asserting that the Jones Act does not apply. Michel
cross-appeals the $250,000 award for loss of future earnings and
earning capacity. We reverse the award of damages for loss of
consortium and otherwise affirm the judgment.
Michel was permanently assigned to the GEMINI, a special
purpose barge, owned by TTI. The GEMINI was designed to transfer
bulk cargo, usually grain, midstream from river barges to
ocean-going vessels. The GEMINI performs this unique transfer
function on a six mile stretch of the Mississippi River. The
GEMINI is moved into position midstream by a tug or push-boat.
When working, the GEMINI is held in position by side deck winches,
whose cables are lashed onto the ocean-going vessel. The
ocean-going vessel is moored to a mooring buoy and anchored in the
river. The cargo barges are secured alongside the GEMINI. The
GEMINI's two large cranes scoop the grain out of the barge holds
and place it in the hopper on the GEMINI where the grain is
weighed, tested, then deposited into the hold of the ocean-going
vessel. The GEMINI can be equipped with navigation aids when
necessary. Michel's regular duties on the GEMINI involved driving
a tractor inside the cargo holds of river barges to sweep them
clean of all the grain. His duties also included handling cables
date of accident;
2. $150,000 for future pain, suffering and disability;
3. $34,000 for past wage loss, including fringe
benefits; and
4. $250,000 for loss of future earnings and earning
capacity.
and lines, operating deck machinery, as well as cleaning and
painting the GEMINI.
On October 7, 1989, Michel was pressure-washing the grain dust
off of the hopper on the GEMINI. He was suspended in a basket from
one of the large cranes normally used to transfer cargo from the
barges. The basket was attached to the crane by a holding line.
Because the crane was not designed for carrying personnel, a
"headache ball" was attached to the holding line approximately
three feet above Michel's head in order to provide additional
weight so that the crane would operate more easily. The combined
weight of the basket, Michel, and the headache ball totalled less
than 1,000 pounds. As the crane's load descended, the basket
settled upon a suspended dust pipe, but the headache ball continued
to lower, striking Michel's hand and pinning it to the side of the
basket. The basket then tipped, and Michel was thrown clear
landing on the roof of a small work shed. As a result, Michel
suffered multiple fractures to his right hand, and left elbow.
I. WAS MICHEL A JONES ACT SEAMAN?
In relevant part, the Jones Act provides that "[a]ny seaman
who shall suffer personal injury in the course of his employment
may, at his election, maintain an action for damages at law, with
the right of trial by jury, and in such action all statutes of the
United States modifying or extending the common-law right or remedy
in cases of personal injury to railway employees shall apply...."
46 U.S.C.App. § 688(a).2 To qualify as a seaman under the Jones
Act, the plaintiff must show that he was permanently assigned to or
performed a substantial part of his work aboard a "vessel".
Gremillion v. Gulf Coast Catering Company, 904 F.2d 290 (5th
Cir.1990). "The existence of a vessel is a "fundamental
prerequisite to Jones Act jurisdiction' and is at the core of the
test for seaman status. Unfortunately, the term "vessel' has
escaped precise definition, which helps to explain why special-use
structures ... may qualify at times as Jones Act vessels, despite
traditional notions in maritime jurisprudence to the contrary."
Id. at 292 (citations omitted).
The Supreme Court has recently stated that the determination
of who is a seaman is "better characterized as a mixed question of
law and fact, rather than a pure question of fact." McDermott
Int'l, Inc. v. Wilander, ––– U.S. ––––, 111 S.Ct. 807, 818, 112
L.Ed.2d 866 (1991), quoted in Southwest Marine Inc. v. Gizoni, –––
U.S. ––––, ––––, 112 S.Ct. 486, 492, 116 L.Ed.2d 405. Nonetheless,
"[t]he inquiry into seaman status is of necessity fact-specific;
it will depend on the nature of the vessel, and the employee's
precise relation to it." Id. We review findings of mixed law and
2
The "statute ... modifying ... the common law right ... in
cases of personal injury to railway employees" was the Federal
Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., which
provides that:
"Every common carrier ..., shall be liable in damages
to any person suffering injury while he is employed by
such carrier ... resulting in whole or in part from the
negligence of any of the officers, agents, or employees
of such carrier,...." 45 U.S.C. § 51.
fact in the following manner:
As to the trial court's underlying factual findings and
factual inferences deduced there from, we are bound by the
clearly erroneous standard of Rule 52(a) of the Federal Rules
of Civil Procedure. However, as to the legal conclusion
reached by the district court based upon this factual data,
... we may review this as an issue of law.
Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 666 (5th
Cir.1983).
A. THE GEMINI
The GEMINI is a "special purpose structure" not readily
identifiable as a ship. The seminal Fifth Circuit case on this
subject, Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959),
involved a floating drilling platform. The court referred to this
structure as a "special purpose structure," since it was not
usually employed as a means of transport by water but was
nonetheless designed to float on water. Id. at 779. Later cases
narrowed this definition so that it is no longer enough just to
show that the structure is designed to float on water:
In order to qualify as a Jones Act seaman [the plaintiff] must
have worked on a "vessel." The Jones Act does not define the
term "vessel," and we have repeatedly held that the term is
incapable of precise definition. However, we may rely on the
purpose for which the craft was built and the business in
which it was engaged to guide our inquiry. Other factors,
like the structure's size, its ability to float, its permanent
fixation to the shore or the bottom, and its movement or its
ability to move across navigable waters are inconclusive.
Further, structures whose primary function is non-navigational
or non-transportational may still qualify as vessels if the
structure was involved in navigation at the time of the
injury.
Ellender v. Kiva Construction & Engineering, Inc., 909 F.2d 803,
806 (5th Cir.1990) (citations omitted and emphasis added).
In Bernard v. Binnings Const. Co. Inc., 741 F.2d 824 (5th
Cir.1984), we noted that we are seldom presented with direct
evidence of the purpose which a vessel's designer may have had in
mind. Therefore, we developed a list of objective features, which
suggest that a structure's intended purpose is transportation
across navigable waters. "These features are: (1) navigational
aids; (2) raked bow; (3) lifeboats and other lifesaving
equipment; (4) bilge pumps; (5) crew quarters; and (6)
registration as a vessel with the Coast Guard." Id. at 832 n. 25.
The district court found that the GEMINI had all of these features
describing the GEMINI as having a raked bow, a Coast Guard
registry, a first-preferred ship mortgage, crew feeding quarters,
a locker room with showering and toilet facilities, an elaborate
ballast system, bilge pumps, and other complex machinery and
equipment built into her hull. Michel v. Total Transportation,
Inc., No. 91–3110 (E.D.La. January 4, 1991) at 232, 239–41
(hereinafter, Michel ).
TTI argues that since the purpose of the GEMINI is the
transfer of cargo (primarily grain) from river barges to oceangoing
vessels, it is essentially a floating grain elevator and,
therefore, performs stevedoring services, i.e. the transfer and
stowage of cargo. According to TTI, the GEMINI's transportation
function is incidental to its primary stevedoring purpose,
therefore, its capability of and occasional movement across
navigable waters is not determinative of vessel status. TTI
compares the GEMINI to the numerous special purpose structures for
which the Fifth Circuit has denied vessel status:
(1) The structures involved were constructed and used
primarily as 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 of serving
as work platforms.
Id. at 806.
We agree with the district court that the GEMINI's
transportational function is not "merely incidental": to its
primary purpose as a work platform. The district court correctly
concluded that the GEMINI is
designed to move cargo from vessel to another ... she does
move cargo, albeit not for great distances. If one wants to
look at it as a continuous transportation by water of grain
... from some inland port upriver to some foreign port, she's
an integral part of that journey,.... If one views this as a
continuous voyage, she's a necessary link in a continuous
voyage, the cargo of which never hits shore. In that sense,
one could certainly call her a vessel, ... Michel at 241–242.
The district court concluded that aboard the GEMINI, Michel was
"exposed to the typical perils of the sea as any other river
seaman." Michel at 239. We agree with these conclusions and hold
that the GEMINI is a "vessel" under the Jones Act.
B. MICHEL
To determine whether Michel is a "seaman" under the Jones Act,
we specifically look at his connection to the vessel, GEMINI.
"[McDermott Int'l, Inc. v.] Wilander jettisoned any lingering
notion that a maritime worker need aid in the navigation of a
vessel in order to qualify as a "seaman" under the Jones Act.
"The key to seaman status is employment-related connection to
a vessel in navigation.... It is not necessary that a seaman
aid in navigation or contribute to the transportation of the
vessel, but a seaman must be doing the ship's work.' "
Southwest Marine, 112 S.Ct. at 492 (quoting McDermott, 111
S.Ct. at 817).
In addition, Michel must show that he "was assigned permanently to
a vessel ... or performed a substantial part of his work on the
vessel; ..." Robison, 266 F.2d at 779.
We hold that Michel was permanently assigned to the GEMINI and
was doing the vessel's work. His job related to the basic
functions of the GEMINI and encompassed the range of incidental
duties typical of a seaman, handling cable lines and assisting in
the general cleaning and maintenance of the GEMINI. The district
court found that on the day of the accident, "the work that [Michel
was] doing is exactly what seaman do. They chip paint, they clean
the vessel,.... [t]hey do general maintenance work on that
vessel." Michel at 243. In light of McDermott and Southwest
Marine, the district court's conclusion that Michel is a seaman is
correct.
II. LOSS OF CONSORTIUM
Whether or not damages are available for loss of consortium is
a legal question, reviewable de novo. Pullman–Standard v. Swint,
456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982).
TTI argues that the district court's award of damages to
Michel's wife for loss of consortium was invalid under the Supreme
Court's decision in Miles v. Apex Marine Corp., ––– U.S. ––––, 111
S.Ct. 317, 112 L.Ed.2d 275 (1990). In Miles, the Court held that
"there is not recovery for loss of society in a general maritime
action for the wrongful death of a Jones Act seaman." Id. 111
S.Ct. at 326. TTI contends that the difference between a wrongful
death action and a personal injury claim is insignificant, and that
the rationale of Miles applies equally to this case. TTI also
argues that the Miles court limited the kinds of damages available
in general maritime law death actions to those damages Congress
deemed appropriate under the Jones Act, therefore, the same limits
should apply to general maritime law personal injury actions.
Michel argues that we are still bound by the holding in Cruz
v. Hendy Int'l Co., 638 F.2d 719 (5th Cir.1981) that the spouse of
a seaman whose injuries are attributable to the unseaworthiness of
a vessel has a general maritime cause of action for loss of his
society. Id. at 721. Michel asserts that the Miles holding did
not affect the validity of Cruz because Miles involved a wrongful
death claim and Cruz involved a personal injury claim. Michel also
argues that a claim for loss of consortium in a personal injury
action was allowed at common law when the Jones Act became law;
and therefore, Congress intended to incorporate this type of
recovery into the Jones Act. "We assume that Congress is aware of
existing law when it passes legislation." Miles, 111 S.Ct. at 325
(citing Cannon v. University of Chicago, 441 U.S. 677, 696–97, 99
S.Ct. 1946, 1957–58, 60 L.Ed.2d 560 (1979)).
In Miles, the Supreme Court stressed the importance of
uniformity concerning the claims available under the Jones Act and
general maritime law. "It would be inconsistent with our place in
the constitutional scheme were we to sanction more expansive
remedies in a judicially-created cause of action in which liability
is without fault than Congress has allowed in cases of death
resulting from negligence." Id., 111 S.Ct. at 326. We choose to
follow the lead of Miles and hold that damages recoverable in
general maritime causes of action for personal injury of a Jones
Act seaman do not include loss of consortium. To the extent that
Cruz differs with this holding, we think that it does not survive
Miles. We join several Louisiana district courts who have
considered the issue and have held that Miles applies to claims for
loss of society or consortium in personal injury cases brought
under general maritime law. See, e.g., Dunbar v. American
Commercial Barge Lines Co., 771 F.Supp. 151, 152 (M.D.La.1991);
West v. Zapata Gulf Marine Corp., 766 F.Supp. 502, 503
(E.D.La.1991); Cater v. Placid Oil Co., 760 F.Supp. 568, 570
(E.D.La.1991); Breland v. Western Oceanic, Inc., 755 F.Supp. 718,
719 (W.D.La.1991); and Anglada v. Tidewater, Inc., 752 F.Supp.
722, 725 (E.D.La.1990).
III. LOSS OF FUTURE EARNINGS AND EARNING CAPACITY
We review the district court's finding of damages under the
clearly erroneous standard. Wakefield v. United States, 765 F.2d
55, 57 (5th Cir.1985). We will judge a district court's finding to
be clearly erroneous when, after reviewing the entire evidence, we
are "left with the definite and firm conviction that a mistake has
been committed." United States v. United States Gypsum Co., 333
U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).
In his cross-appeal, Michel argues that the district court's
award of $250,000 for loss of future earnings and earning capacity
was clearly erroneous because the award was based on an overly
optimistic view of Michel's ability to overcome his physical
restrictions and earn income comparable to the wages he received
from TTI, $11.50 an hour and $17.25 an hour for overtime. Michel's
vocational expert claims that Michel will be able to return to
employment paying slightly above minimum wage. TTI's vocational
expert claimed that Michel will be able to return to work earning
substantially above the minimum wage. Economic reports presented
by both sides calculated a wide range of damage figures for lost
future income, from $823,133 down to $150,395.
The district judge correctly concluded that as fact finder, he
was free to accept or reject the experts' reports and could reach
his own conclusion regarding lost earning capacity. See, Leefe v.
Air Logistics, Inc., 876 F.2d 409, 411 (5th Cir.1989) (jury's
damage award for future lost wages need not fall within estimates
given by expert testimony); Haas v. Atlantic Richfield, 799 F.2d
1011, 1017 (5th Cir.1986) (economic experts' calculations of future
lost earnings is only a suggested guideline for the trier of fact).
After our review of the record in this case, we conclude that
the district judge's award for lost future earnings and earning
capacity was not so overly optimistic concerning Michel's ability
to return to gainful employment as to be clearly erroneous.
IV. CONCLUSION
The award of damages for loss of consortium is REVERSED,
otherwise the judgment of the district court is AFFIRMED.