In re: Endeavor Mar

REVISED 11-21-2000
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-30197
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In Re: In the Matter of the Complaint of Endeavor
Marine, Inc. and Tako Towing, Inc., as
Owner and/or owner pro hac vice of the
vessel M/V Tako Endeavor, her engines,
tackle, appurtenances, etc., praying for
Exoneration from or Limitation of Liability:

ENDEAVOR MARINE, INC.; TAKO TOWING, INC.,
as owner and/or owner pro hac vice of the
vessel M/V Tako Endeavor her engines,
tackle, appurtenances, etc., praying for
exoneration from or limitation of liability,

Petitioners-Appellants,

versus

CRANE OPERATORS, INC.; ET AL.,

Claimants,

CRANE OPERATORS, INC.,

Claimant-Appellee,

versus

KEVIN M. BAYE, SR.,

Claimant-Appellant.
_________________________________________________________________

Appeals from the United States District Court for the
Eastern District of Louisiana
_________________________________________________________________

December 11, 2000
Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

This appeal of a summary judgment presents a question of

“seaman” status under the Jones Act. Kevin Baye, a crane operator

assigned to the derrick barge FRANK L, was injured while attempting

to moor the FRANK L to a cargo vessel in the Mississippi River.

The district court, finding that Baye’s “duties do not take him to

sea,” denied seaman status to Baye and granted summary judgment for

Baye’s employer, Crane Operators, Inc. Having reviewed the record,

we conclude, as a matter of law, that Baye was a seaman.

Accordingly, we reverse the judgment of the district court and

remand for further proceedings.

I

On April 4, 1996, Kevin Baye sustained disabling knee and back

injuries when he was struck by a mooring line while working aboard

the FRANK L. Baye was an employee of Crane Operators, Inc., a

company that provides personnel on an as-needed basis to businesses

that own or operate cranes and other heavy lift equipment.

The accident occurred in the Mississippi River while the tug

boat TAKO ENDEAVOR was pushing the FRANK L alongside a cargo vessel

that the Frank L was assigned to unload. Baye was standing near

the head of the FRANK L with a deck hand waiting for the barge to

be positioned alongside the cargo vessel so he could pass a mooring

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line to the deck hands aboard the cargo vessel. While being pushed

into position by the TAKO ENDEAVOR, the stern mooring cable of a

nearby derrick barge, the AGNESS, snagged on the FRANK L’s hull.

The line snapped and popped up onto the deck of the FRANK L

striking Baye in the leg.

After receiving benefits under the Longshore and Harbor

Workers’ Compensation Act, Baye sought recovery under the Jones

Act. On November 10, 1996, he filed suit in the Civil District

Court of Orleans Parish against Crane Operators, Ryan-Walsh, Inc.,

the owner of the FRANK L, and Tako Towing, Inc (“Tako”) and

Endeavor Marine (“Endeavor”) the owners of the TAKO ENDEAVOR. On

March 11, 1998, Tako and Endeavor filed a petition for limitation

of liability in federal court. See 46 U.S.C. § 183 (West 1999).1

Pursuant to the Limitation of Liability Act, the district court

stayed the state court proceeding. See id. In addition to Baye,

Crane Operators and Ryan-Walsh filed claims in the limitation

proceeding against Tako and Endeavor. Tako and Endeavor then filed

a counterclaim against Crane Operators for contribution and

1
46 U.S.C. § 183(a) provides in relevant part:

(a) The liability of the owner of a vessel, whether
American or foreign, . . . shall not, except in the cases
provided for in subsection (b) of this section exceed the
amount or value of the interest of such owner in such
vessel, and her freight then pending.

46 U.S.C. § 183(a) (West 1999).

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indemnification. Crane Operators responded by moving for summary

judgment in the limitation action arguing that there could be no

Jones Act liability because Baye was not a “seaman.”

On February 12, 1999, the district court granted summary

judgment for Crane Operators concluding that “Kevin Baye is not a

Jones Act seaman because his duties do not take him to sea.” In

reaching this conclusion, the district court recognized that the

crucial issue in this case was whether Baye had satisfied the

second prong of Chandris--that is, whether Baye’s connection to the

FRANK L in navigation was substantial in terms of both its duration

and its nature. See Chandris, Inc. v. Latsis, 515 U.S. 347, 368

(1995). The court stated that it was conceded by the defendants

that the FRANK L was a “vessel in navigation” and that the

requirement that Baye’s connection to the FRANK L be substantial in

duration was met. However, the district court--faced with a

plaintiff whose primary duties aboard the vessel were in the nature

of longshore work--concluded that Baye’s connection to the FRANK L

was not substantial in terms of its nature because his duties did

not carry him to sea.

In reaching the conclusion that the nature of Baye’s duties

was insufficient to convey “seaman” status upon him, the district

court seems to have relied upon the following statement of the

4
Supreme Court in Harbor Tug and Barge Co. v. Papai, 520 U.S. 548

(1997):

For the substantial connection requirement to serve its
purpose, the inquiry into the nature of the employee’s
connection to the vessel must concentrate on whether the
employee’s duties take him to sea.

Id. at 555. The district court thus understandably surmised that

the “linchpin” of the substantial connection test is whether the

claimant’s duties carry him to sea. After reviewing the summary

judgment evidence, the court concluded that because Baye’s duties

do not literally carry him to sea, he could “not satisfy the second

prong of the Chandris test.” Baye, Tako, and Endeavor each filed

timely notices of appeal from the district court’s judgment.2

II

A

2
The appellants argue that it was improper for the district
court to consider Baye’s status as a “seaman” because such a
determination is immaterial to whether Tako and Endeavor are
entitled to limit their liability under 46 U.S.C. § 183. This
assertion, however, is contrary to clearly established law. In
British Transport Comm’n v. United States, 354 U.S. 129, 138
(1957), the Supreme Court held that the district court may resolve
all cross-claims that arise out of the limitation proceeding. See
British Transport, 354 U.S. at 138-39. Further, in Odeco Oil & Gas
Co. v. Bonnette, 74 F.3d 671 (5th Cir. 1996), this court held that
parties seeking contribution and indemnity by way of cross-claims
are claimants for purposes of the Limitation Act. Id. at 675.
Consequently, contrary to the appellants’ assertions, the district
court had the authority to determine Baye’s status as a Jones Act
“seaman.”

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 We review the district court’s grant of summary judgment de

novo, applying the same standard as the district court. See

Starkman v. Evans, 198 F.3d 173, 174 (5th Cir. 1999)(citing Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Because the

determination of whether an injured worker is a seaman under the

Jones Act is a mixed question of law and fact, it is usually

inappropriate to take the question from the jury. Harbor Tug, 520

U.S. at 554. “Nevertheless, ‘summary judgment . . . is mandated

where the facts and the law will reasonably support only one

conclusion.’” Id. (quoting McDermott Int’l, Inc. v. Wilander, 498

U.S. 337, 356 (1991)).

B

As the courts have often lamented, the term “seaman” is not

defined in the Jones Act. Thus, the difficult--perhaps

insurmountable--task of giving a cogent meaning to this term has

been left to the courts. In Chandris, the Supreme Court

significantly helped by delineating a two-prong test to determine

whether an employee is a “seaman”:

First, . . . an employee’s duties must contribute to the
function of the vessel or to the accomplishment of its
mission. . . .

Second, . . . a seaman must have a connection to a vessel
in navigation (or to an identifiable group of such
vessels) that is substantial in terms of both its
duration and its nature.

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Chandris, 515 U.S. at 368, 115 S.Ct. 2172. To satisfy the first

prong of the Chandris test, the claimant need only show that he/she

“do[es] the ship’s work.” Id. As the Court observed, this

threshold requirement is “very broad.” Id.

The second prong of the Chandris test is intended “to separate

the sea-based maritime employees who are entitled to Jones Act

protection from those land-based workers who have only a transitory

or sporadic connection to a vessel in navigation.” Id. As the

Court explained,

the total circumstances of an individual’s employment
must be weighed to determine whether he had a sufficient
relation to the navigation of the vessels and the perils
attendant thereon. The duration of the worker’s
connection to a vessel and the nature of the worker’s
activities taken together, determine whether a maritime
employee is a seaman because the ultimate inquiry is
whether the worker in question is a member of the
vessel’s crew or simply a land-based employee who happens
to be working on the vessel at a given time.

Chandris, 515 U.S. at 370 (citations omitted).

Even though the nature of the worker’s activities is a factor

in determining his substantial connection to the vessel, the

Chandris Court emphasized that there is “a status-based standard”

for determining Jones Act coverage. Chandris, 515 U.S. at 358. In

other words, “it is not the employee's particular job that is

determinative [of seaman status], but the employee's connection to

a vessel.” Id. at 364. Thus, even a ship repairman (which is

traditional longshoreman work and is one of the enumerated

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occupations under the LHWCA) may qualify for seaman status if he

has the requisite employment-related connection to the vessel. Id.

at 363-64 (citing Southwest Marine, Inc. v. Gizoni, 502 U.S. 81

(1991)).

The Court revisited Chandris in Harbor Tug in 1997. The

Harbor Tug Court explained that the inquiry into the worker’s

employment-related connection to the vessel

must concentrate on whether the employee’s duties take
him to sea. This will give substance to the inquiry both
as to the duration and nature of the employee’s
connection to the vessel and be helpful in distinguishing
land-based from sea-based employees.

Harbor Tug, 520 U.S. at 555 (emphasis added). The meaning of the

“going to sea” test will be discussed below.

C

(1)

Turning to the facts of this case, it is undisputed that

Baye’s duties contribute to the function and the mission of the

FRANK L. Thus, the first prong of the Chandris test is satisfied.

With respect to the second prong of Chandris, as previously noted,

it is undisputed that the FRANK L qualifies as a “vessel in

navigation.” Further, as noted by the district court, Baye’s

connection to the FRANK L was substantial in duration given that he

spent almost all of his time working on the vessel in the eighteen

months prior to his accident. Thus, the sole question before this

8
court, as well as the sole question presented below, is whether

Baye has an “employment-related connection” to the FRANK L that is

“substantial in terms of . . . its nature.” Chandris, 515 U.S. at

368-69.

(2)

In concluding that Baye is not a seaman, the district court

relied exclusively on the “going to sea” test articulated in Harbor

Tug. The court found that Baye’s connection to the FRANK L was not

substantial in nature because “it did not take him to sea. His work

brought him aboard the barge only after the vessel was moored or in

the process of mooring.” This application of the “going to sea”

test has an intuitive appeal, but we do not believe that the

Supreme Court intended to create such a singular rule for

determining seaman status.

First, the Harbor Tug Court stated that the determination of

whether the claimant went to sea was only “helpful” in determining

whether he has the requisite connection to the vessel.

Second, when read in context, the “going to sea” passage in

Harbor Tug is a shorthand way of saying that the employee’s

connection to the vessel regularly exposes him “‘to the perils of

the sea.’” Harbor Tug, 520 U.S at 554-55 (quoting Chandris, 515

U.S. at 368). In other words, we do not think that the Harbor Tug

Court intended to articulate a new and specific test for seaman

9
status. As we read Harbor Tug, the Court merely restated the point

it had made in Chandris, when it explained that

[we] eschew the temptation to create detailed tests to
effectuate the congressional purpose, tests that tend to
become ends in and of themselves. The principal
formulations employed by the Courts of Appeals-- "more or
less permanent assignment" or "connection to a vessel
that is substantial in terms of its duration and
nature"--are simply different ways of getting at the same
basic point: The Jones Act remedy is reserved for
sea-based maritime employees whose work regularly exposes
them to "the special hazards and disadvantages to which
they who go down to sea in ships are subjected."
Sieracki, 328 U.S., at 104, 66 S.Ct., at 882 (Stone,
C.J., dissenting).

Chandris, 515 U.S. at 369-70.

For these reasons, the district court incorrectly concluded

that Baye is not a Jones Act seaman merely because his duties do

not literally carry him to sea.3

(3)

After examining the record evidence and considering Baye’s

entire “employment-related connection” to the FRANK L, we must

conclude that Kevin Baye’s connection to the FRANK L is substantial

in nature and that Baye is a Jones Act seaman as a matter of law.

First, Baye was permanently assigned to the FRANK L and, as

mentioned above, had spent almost all of the prior eighteen months

on the vessel. Second, Baye’s primary responsibility was to

3
Baye’s duties do place him on the brown waters of the
Mississippi River.

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operate the cranes on board a vessel whose sole purpose is to load

and unload cargo vessels.4 Third, in the course of his employment,

Baye was regularly exposed to the perils of the sea. For these

reasons, we conclude that Baye was a Jones Act seaman as a matter

of law.

III

For the reasons stated above, the judgment of the district

court is REVERSED and the case is REMANDED for further proceedings

not inconsistent with this opinion.

REVERSED and REMANDED
for further proceedings.

4
Baye may have performed additional duties in service of the
FRANK L. In his affidavit, Baye states that he not only operated
the crane but also regularly changed cables, changed engine parts,
performed repair welding for different parts of the barge, rebuilt
aircans for the brakes and frictions, adjusted brakes and
frictions, changed air lines, moored and released the barge on a
daily basis, operated deck winches, moved and secured the barge up
and down the side of ships, and cleaned areas of the barge. Baye’s
evidence regarding the nature of his additional duties while in the
service of the FRANK L is contradicted by the affidavits of William
Kirksey, Jr., the operations manager of Ryan-Walsh; and Paul J.
Delatte, Sr., the superintendent for Crane Operators. Kirksey and
Delatte suggest that Baye’s duties while aboard the FRANK L were
limited to operating her crane. Resolution of any dispute of these
additional duties is not determinative of Baye’s status as a seaman
because his duties as a crane operator satisfy the requirements of
the Chandris test.

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