United States Court of Appeals,
Fifth Circuit.
No. 93-4865.
Summary Calendar
Elroy GASPARD, Plaintiff-Appellant,
and
Liberty Mutual Insurance Co., Intervenor-Plaintiff-Appellant,
v.
AMERADA HESS CORP., et al., Defendants,
Amerada Hess Corp. and Owensby & Kritikos, Inc., Defendants-
Appellees.
Feb. 7, 1994.
Appeals from the United States District Court for the Western
District of Louisiana.
Before WISDOM, JOLLY, and JONES, Circuit Judges.
WISDOM, Circuit Judge.
Plaintiff/appellant Elroy Gaspard fell off a wharf while
attempting to board the barge M/V BOB III and was injured. The
question in this case is whether the district court had admiralty
jurisdiction over Gaspard's personal injury claims against the
wharfinger and the wharfinger's agent. The district court
concluded that it had no jurisdiction. We AFFIRM.
I.
Defendant/appellee Amerada Hess Corp. owns the "New Facility",
an oil and gas production facility located on land near Bayou
Gauche, an inland waterway in Louisiana. Amerada Hess hired Meaux
Services, Inc. ("MSI") to sandblast and paint equipment located at
the New Facility. Amerada Hess also hired defendant/appellee
Owensby & Kritikos, Inc. ("O & K"), an independent inspection firm,
to supervise the sandblasting and painting. Amerada Hess also
hired Central Gulf Towing, Inc. ("CGT") to charter and tow a barge,
the M/V BOB III, to the New Facility. MSI's workers ate, took rest
breaks, and stored their equipment aboard the barge during their
work on the New Facility. The BOB III was moored to a wooden
structure at the water's edge which the parties variously describe
as a "retaining wall", a "wharf", and a "bulkhead". There was no
gangplank leading to the barge. A three-foot gap separated the
barge from the wharf. MSI's workers at the New Facility site had
to step across that gap several times each day as they moved
equipment to and from the barge.
Plaintiff/appellant Elroy Gaspard worked for MSI as a
"painter's helper".1 His responsibilities included mixing paint
and retrieving equipment for the painting and sandblasting workers.
He had no training or experience as a seaman.
On May 16, 1989, Gaspard was moving paint cans and other
equipment onto the barge for storage. Gaspard slipped when
attempting to step from the wharf to the barge. He fell from the
wharf to a beam below, striking the barge during his descent, and
injured his shoulder.
Louisiana's one-year statute of limitations for torts2 passed
1
Many of the facts in this section come from the "Statement
of Material Facts as to Which There is No Genuine Issue" filed by
Amerada Hess with its Motion for Summary Judgment in accordance
with Local Rule 2.10 of the Western District of Louisiana.
Gaspard's failure to file a response means that the facts in
Amerada Hess's statement are admitted for purposes of Amerada
Hess's summary judgment motion. Loeber v. Bay Tankers, Inc., 924
F.2d 1340, 1345 (5th Cir.), cert. denied, --- U.S. ----, 112
S.Ct. 78, 116 L.Ed.2d 51 (1991).
2
La.Civ.Code Ann. art. 3492 (West Supp.1993).
without Gaspard filing any lawsuit over his injuries. In a belated
attempt to resurrect his claim, Gaspard filed this lawsuit against
Amerada Hess on June 13, 1991, grounding his claim in "Admiralty
and ... General Maritime Law".3
Gaspard's simple claim against Amerada Hess soon blossomed to
include numerous other parties and claims. First, Liberty Mutual
Insurance Co., MSI's insurer, filed a plea in intervention naming
Gaspard and Amerada Hess as defendants. Gaspard then twice amended
his complaint to add O & K, CGT, the M/V BOB III, and McDonough
Marine Service (the owner of the BOB III)4 as defendants. In his
second amended complaint, Gaspard for the first time invoked the
Longshore and Harbor Workers' Compensation Act (LHWCA).5 Amerada
Hess cross-claimed against O & K and impleaded MSI, Reliance
Insurance Co. of Illinois (O & K's insurer), and UNI Storebrand
International Insurance A/S (MSI's insurer). After a few months of
discovery and infighting, Amerada Hess, O & K, and CGT moved for
summary judgment against Gaspard. The district court granted the
motions and entered judgment for Amerada Hess, O & K, and CGT. The
district court held that Gaspard had not pleaded a maritime tort
and that accordingly it had no admiralty jurisdiction. Gaspard
appealed to this Court only from the judgments in favor of Amerada
3
Gaspard's Original Complaint, 1 Rec. 1. Undoubtedly the
availability of a three-year statute of limitations figured
prominently in Gaspard's decision to pursue an admiralty claim.
See 46 U.S.C.App. § 763a; Cooper v. Diamond M Co., 799 F.2d 176,
178 (5th Cir.1986), cert. denied, 481 U.S. 1048, 107 S.Ct. 2177,
95 L.Ed.2d 834 (1987).
4
Gaspard later voluntarily dismissed his claim against
McDonough Marine Service.
5
33 U.S.C. §§ 901-950; see id. § 905(b).
Hess and O & K.
II.
The sole issue on this appeal is whether the district court
had subject matter jurisdiction over Gaspard's claim. Gaspard must
show that general maritime jurisdiction exists before the court can
reach the merits of his LHWCA claim.6
The seminal Supreme Court case on the reach of federal
maritime tort jurisdiction is Executive Jet Aviation, Inc. v. City
of Cleveland.7 Executive Jet established a two-part
"locality-plus-nexus" test for maritime tort jurisdiction. The
tort must have occurred on or over navigable waters, and the wrong
alleged must "bear a significant relationship to traditional
maritime activity."8 This Court has elaborated on the second part
of the Executive Jet test by listing four factors relevant to a
finding of a "significant relationship to traditional maritime
activity". These factors are (1) "the functions and roles of the
parties", (2) "the types of vehicles and instrumentalities
involved", (3) "the causation and type of injury", and (4)
6
"Our circuit clearly requires that maritime jurisdiction be
satisfied in addition to establishing a § 905(b) claim". Molett
v. Penrod Drilling Co., 872 F.2d 1221, 1225 (5th Cir.) (per
curiam), reh'g denied, 878 F.2d 829 (5th Cir.), cert. denied, 493
U.S. 1003, 110 S.Ct. 563, 107 L.Ed.2d 558 (1989).
7
409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972); see
also Foremost Ins. Co. v. Richardson, 457 U.S. 668, 673-74, 102
S.Ct. 2654, 2657-58, 73 L.Ed.2d 300 approving extension of
Executive Jet beyond the aviation context, reh'g denied, 459 U.S.
899, 103 S.Ct. 198, 74 L.Ed.2d 160 (1982).
8
Executive Jet, 409 U.S. at 268, 93 S.Ct. at 504.
"traditional concepts of the role of admiralty law".9 The parties
in their briefs focus almost exclusively on the "maritime nexus"
requirement of Executive Jet. We agree that the nexus factor is
dispositive here. Because we conclude that Gaspard has not met the
second part of the Executive Jet test, we need not address the
first.
1. The Functions and Roles of the Parties.10 Gaspard was a
painter's helper employed to help paint and sandblast a facility on
land. Amerada Hess, owner of the facility, hired O & K to
supervise the job. None of the parties were engaged in peculiarly
maritime activity at the time of Gaspard's injury.11 Gaspard's use
of the barge as a storage facility is "connected to maritime
affairs merely because performed aboard ship"; it is not a "task[
] somehow unique to maritime service or work traditionally done by
seamen".12
9
Kelly v. Smith, 485 F.2d 520, 525 (5th Cir.), reh'g denied,
486 F.2d 1403 (5th Cir.1973), cert. denied, 416 U.S. 969, 94
S.Ct. 1991, 40 L.Ed.2d 558 (1974); Palmer v. Fayard Moving &
Transp. Corp., 930 F.2d 437, 440 (5th Cir.1991).
10
As used in the Kelly test, "parties" refers to the
entities involved in the accident itself; it is not used in the
legal sense of parties to a lawsuit. Watson v. Massman Constr.
Co., 850 F.2d 219, 221 n. 3 (5th Cir.1988).
11
See, e.g., id. at 222 (no admiralty jurisdiction over
wrongful death claim by a construction worker building a bridge
over the Mississippi River); Molett, 872 F.2d at 1225
(plaintiffs were "land-based construction workers" insufficiently
connected with maritime work to establish maritime nexus).
Gaspard's brief styles him a "longshoreman"; we believe the
facts indicate otherwise. See Herb's Welding, Inc. v. Gray, 470
U.S. 414, 425, 105 S.Ct. 1421, 1428, 84 L.Ed.2d 406 (1985).
12
Woessner v. Johns-Manville Sales Corp., 757 F.2d 634, 644
(5th Cir.1985) (quoting Harville v. Johns-Manville Products
Corp., 731 F.2d 775, 784-85 (11th Cir.1984)); Palmer, 930 F.2d
at 440.
2. The Types of Vehicles and Instrumentalities Involved.
Gaspard's injury occurred while he was attempting to board the
barge M/V BOB III. Gaspard never reached the BOB III; he fell
from the wharf to a beam below. The accident neither began nor
ended on the barge. "This was neither a collision case or one in
which the movement of the barge played any part in the injuries".13
The BOB III was not being used to ferry cargo, but only as a
storage facility. The involvement of the BOB III here was too
minor to support admiralty jurisdiction under this part of the
Kelly test.
3. The Causation and Type of Injury. Gaspard fell from a
wharf to a beam. We find nothing uniquely maritime in such an
injury; it is not meaningfully different from a slip-and-fall
injury occurring wholly on land. We have previously indicated that
admiralty jurisdiction will not lie over incidents involving a mere
fall from a dock as is the essence of Gaspard's claim here.14
4. Traditional Concepts of the Role of Admiralty Law.
Admiralty law has traditionally not concerned itself with
protecting land-based workers on projects adjoining the water. Too
tenuous a connection exists between Gaspard's injury and any
possible effect on commerce to support admiralty jurisdiction.15
13
Watson, 850 F.2d at 222.
14
See Watz v. Zapata Off-Shore Co., 431 F.2d 100, 111 n. 14
(5th Cir.1970); Heim v. City of New York, 442 F.Supp. 35
(E.D.N.Y.1977).
15
"[A] court must assess the general features of the type of
incident involved to determine whether such an incident is likely
to disrupt commercial activity". Sisson v. Ruby, 497 U.S. 358,
363, 110 S.Ct. 2892, 2896, 111 L.Ed.2d 292 (1990).
In sum, we find that the application of the Kelly factors supports
the district court's conclusion that no admiralty jurisdiction
exists in this case.
Because Gaspard's claim is not within the admiralty
jurisdiction of federal courts, we have no cause to reach the
merits of his claim under the LHWCA. We do not reach the question
whether Amerada Hess, as the owner of the New Facility, owed a duty
to provide a safe means of ingress and egress to the BOB III.
III.
We conclude with a minor procedural observation. The
district court stated that it was granting the defendants' motions
for summary judgment on the basis that it lacked subject-matter
jurisdiction over this case. We have previously expressed doubt as
to the propriety of summary judgment as a tool for disposing of a
case on jurisdictional grounds when the district court does not
actually purport to address the merits of the parties' dispute.16
When, as here, however, the jurisdictional question is inextricably
intertwined with the merits of the dispute, summary judgment on the
merits is an appropriate tool with which to resolve the case.17
The district court's judgment is AFFIRMED.
16
See 5A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1350, n. 22 (2d ed. 1990) and cases
cited therein.
17
See Tindall v. United States, 901 F.2d 53, 55 n. 5 (5th
Cir.1990).