Martin v. Boyd Gaming Corp.

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 8, 2004

Charles R. Fulbruge III
Clerk
No. 03-30389
Consolidated with 03-30459

MARY MARTIN,

Plaintiff - Appellant,

VERSUS

BOYD GAMING CORP., doing business as Treasure Chest Casino MV;
TREASURE CHEST CASINO, LLC.,

Defendants - Appellees.

Appeals from the United States District Court
For the Eastern District of Louisiana

Before DAVIS, PRADO and PICKERING, Circuit Judges.

W. EUGENE DAVIS:

Mary Martin appeals the district court’s order granting

summary judgment to her employer, Boyd Gaming Corporation,

dismissing Martin’s Jones Act suit on the ground that she was not

a seaman because the floating casino upon which she worked was not

a vessel. We affirm.
I.

Mary Martin worked as a cocktail waitress on the TREASURE

CHEST CASINO(TREASURE CHEST)from February 6, 1995 until October 7,

2001 when she slipped and fell in grease or cooking oil on the

loading dock of the TREASURE CHEST. The TREASURE CHEST is a

riverboat casino which was built in 1994 as a replica of a 19th

Century paddle-wheel steamer. The TREASURE CHEST is approximately

213 feet in length, paddle-wheel driven, and carries a valid

certificate of inspection from the United States Coast Guard.

Before the 2001 Louisiana legislative session, the TREASURE CHEST

conducted gaming cruises from September 1994 until March 31, 2001

on Lake Pontchartrain. During the 2001 legislative session, the

Louisiana legislature abolished the cruise requirement for all

riverboat casinos to take effect on April 1, 2001. Beginning April

1, 2001, approximately six months before plaintiff’s injury, the

TREASURE CHEST conducted gaming activities only while moored.

After April 1, 2001 the TREASURE CHEST only moved from her mooring

on Lake Pontchartrain on two occasions, in June 2002, to allow for

maintenance dredging of her berth.

Relying primarily on Pavone v. Mississippi Riverboat Amusement

Corp., 52 F.3d 560(5th Cir. 1995), the defendant moved for summary

judgment on grounds that the TREASURE CHEST was not a “vessel in

navigation” at the time of plaintiff’s injury and plaintiff

therefore lacked the employment related connection to a vessel to

qualify as a Jones Act seaman. The district court agreed and

2
dismissed plaintiff’s suit.

II.

This case is controlled by Pavone v. Mississippi Riverboat

Amusement Corp., 52 F.3d 560 (5th Cir. 1995). In that case we

considered whether the BILOXI BELLE - a 217 foot long floating

gambling casino located on the Mississippi gulf coast and moored to

shore by lines tied to sunken steel pylons - was a vessel in

navigation. The owner of the BILOXI BELLE maintained a towing

contract with a towing company to supply the equipment, facilities

and expertise to tow the BILOXI BELLE to sheltered waters in the

event threatening weather was forecast. The BILOXI BELLE was in

fact towed to sheltered waters on at least one occasion when a

hurricane threatened. The BILOXI BELLE never conducted gaming

operations except in its stationery moored position.

Martin argues that Pavone does not control this case because,

unlike the BILOXI BELLE, the TREASURE CHEST was designed and

constructed as a vessel and sailed on Lake Pontchartrain for six

years before the April 2001 legislation was enacted. We disagree.

The rule has never been “once a vessel, always a vessel.” Like the

barge in Ducrepont v. Baton Rouge Marine Enterprises, Inc., 877

F.2d 393(5th Cir. 1989), once the TREASURE CHEST was withdrawn from

navigation so that transporting passengers, cargo or equipment on

navigable water was no longer an important part of the business in

which the craft was engaged, the craft was not a vessel. See also,

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Manuel v. P.A.W. Drilling & Well Service, Inc., 135 F.3d 344,

347(5th Cir. 1998). Applying these principles to the summary

judgment evidence in this case, it is clear the TREASURE CHEST had

no transportation function in the performance of its function as a

gambling casino. After April 1, 2001, the TREASURE CHEST was

securely moored during all gaming activity conducted by her

customers.

The district court correctly concluded that Pavone controls

this case and correctly granted summary judgment.1

AFFIRMED.

1
As part of its memorandum in opposition to defendant’s summary
judgment motion, plaintiff moved to amend her complaint to assert
a claim against the employer under the general maritime law. The
district court correctly denied that motion as futile. We agree
with the district court that because the TREASURE CHEST is not a
vessel in navigation under the Jones Act it is likewise not a
vessel under the general maritime law foreclosing either a general
maritime law claim or a §905(b) claim. See Ducrepont v. Baton Rouge
Marine Enterprises, Inc., 877 F.2d 393,396(5th Cir. 1989). See
also, Boomtown Belle Casino v. Bazar, 313 F.3d 300,304(5th Cir.
2002).