Pavone v. Mississippi Riverboat Amusement Corp.

United States Court of Appeals,

Fifth Circuit.

Nos. 94-30251, 94-60706.

Christopher PAVONE, Plaintiff-Appellant,

v.

MISSISSIPPI RIVERBOAT AMUSEMENT CORPORATION, et al., Defendants-
Appellees.

Kathleen L. KETZEL, Plaintiff-Appellant,

v.

MISSISSIPPI RIVERBOAT AMUSEMENT, LTD., Defendant-Appellee.

May 19, 1995.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Appeal from the United States District Court for the Southern

District of Mississippi.

Before WISDOM, WIENER and PARKER, Circuit Judges.

WIENER, Circuit Judge:

The appeals we hear in consolidation today are brought by two

plaintiffs-appellants who claim that they were injured while

working on a Jones Act vessel, but whose claims were dismissed on

summary judgments rendered by different district courts. Both

claims arose in the context of the dockside casino facet of the

burgeoning gaming industries in two of the states of this circuit.

In our plenary review of the district courts' summary judgments, we

exercise our authority to affirm for reasons differing somewhat

from those of the trial courts.

I

1
 FACTS AND PROCEEDINGS

A. PAVONE

In the first of the cases we review today, Plaintiff-Appellant

Christopher Pavone filed suit in Louisiana state court against

Defendants-Appellants, Mississippi Riverboat Amusement Corporation,

et al. (Riverboat Companies), alleging a work-related accident and

seeking recovery under the Jones Act1 for disablement, lost wages,

impairment of future earning capacity, mental and physical pain and

suffering, and loss of enjoyment of life. In addition to

compensatory damages, Pavone seeks punitive damages and attorneys'

fees.

Pavone maintains that he was employed as a bartender on the

BILOXI BELLE, a floating dockside casino moored in Biloxi,

Mississippi, and claims that he injured his foot during the course

and scope of his employment while working at a related restaurant

located dockside of the BILOXI BELLE. In particular, Pavone

alleges that he stepped on a screw, which penetrated his shoe and

punctured his foot, at a time when the BILOXI BELLE was being

prepared for its grand opening, scheduled for the following day.

The Riverboat Companies were served with process on or about

September 16, 1993, after which they timely removed the case to

federal court for the Eastern District of Louisiana on October 12,

1993. More than thirty days later, on November 15, 1993, Pavone

filed a motion to remand, contending that his Jones Act case was

not removable. Fifteen days thereafter the Riverboat Companies

1
46 U.S.C.App. § 688 (1988).

2
filed a motion for summary judgment, insisting that the BILOXI

BELLE was neither a Jones Act vessel nor "in navigation" at the

time of Pavone's alleged accident.

On December 20, 1993, the district court denied Pavone's

motion to remand, apparently concluding, inter alia, that the

motion was untimely, and on February 16, 1994, the court denied

Pavone's motion for reconsideration. Twice the court granted

Pavone continuances, but eventually granted the Riverboat

Companies' motion for summary judgment, holding, as a matter of

law, that the BILOXI BELLE was not a Jones Act vessel.

Pavone's timely filing of a notice of appeal led to this

review, in which he assigns the following as points of reversible

error: (1) his motion to remand was not untimely when filed within

thirty-three days following the filing by the Riverboat Companies

of their notice of removal; (2) his suit comprised a nonremovable

Jones Act claim; (3) the "saving to suitors" clause prohibits

removal of state court maritime actions; (4) his last motion to

continue the Riverboat Companies' motion for summary judgment

should have been granted; and (5) the BILOXI BELLE and similar

floating casinos are either conventional vessels or special purpose

craft, in either case satisfying requirements for vessel status

under the Jones Act.

B. KETZEL

Plaintiff-Appellant Kathleen L. Ketzel alleges that she was

injured while working as a cocktail waitress on the BILOXI BELLE

and filed suit in federal court for the Southern District of

3
Mississippi against her employer, one of the Riverboat Companies,

Defendant-Appellee, Mississippi Riverboat Amusement, Ltd.

(Mississippi Riverboat Amusement). Ketzel seeks recovery under the

Jones Act and the general maritime law for severe injuries to her

knee, which she claims occurred when she tripped over a garbage can

lid and fell during the course and scope of her employment aboard

the BILOXI BELLE.

In April 1994, Mississippi Riverboat Amusement filed a motion

for summary judgment, contending that Ketzel was not a seaman when

she was injured on the BILOXI BELLE because it was not a vessel in

navigation under the Jones Act or the general maritime law. Ketzel

filed her own summary judgment motion, which Mississippi Riverboat

Amusement answered by filing a motion seeking an extension of time

within which to respond, which the district court granted. Several

months later, the district court also granted Mississippi Riverboat

Amusement's summary judgment motion, concluding that, as a matter

of law, the BILOXI BELLE "is nothing but a "floating casino' ...

not a "vessel' under the Jones Act."2 Ketzel timely filed her

notice of appeal.

2
In Preston O. King v. The President Riverboat Casino-
Mississippi, Inc., No. 1:94CV233GR (Mar. 10, 1995), the same
district court that decided Ketzel, held that it lacked admiralty
subject matter jurisdiction over a claim by a plaintiff who
alleged that he was injured aboard a floating casino that is
essentially identical to the BILOXI BELLE. The plaintiff argued
that he was entitled to "passenger" status under the Jones Act,
but the district court disagreed, holding that a floating casino
is not a Jones Act vessel and that the activity associated with
the alleged injury (i.e., dockside gaming) lacked a sufficient
nexus to traditional maritime activity to confer admiralty
jurisdiction on the court.

4
C. THE BILOXI BELLE

1. History

The structure now known as the BILOXI BELLE is situated on a

barge that was constructed at Morgan City, Louisiana, for the

express purpose of supporting a floating restaurant and bar that

was to be located at Corpus Christi, Texas. In preparation

therefor, the completed barge was towed from Morgan City to a

shipyard in Rockport, Texas, where the restaurant structure was

added and the name WAYWARD LADY was affixed. The WAYWARD LADY was

towed from Rockport to Corpus Christi, where it was operated as a

restaurant and bar, as originally contemplated. After a while, the

WAYWARD LADY was moved from Corpus Christi to Aransas Pass, Texas,

where it remained moored for approximately two and a half more

years before being re-outfitted as a casino, towed to Biloxi, and

renamed the BILOXI BELLE.

In preparation for its use as a dockside floating casino, the

BILOXI BELLE was moored to shore by lines tied to sunken steel

pylons that were filled with concrete. The first level of the

BILOXI BELLE was connected to the pier by steel ramps, and the

second level was joined to a shore-side building. In addition,

numerous shore-side utility lines—telephone, electric, gas, sewer,

domestic fire and water, cable TV, and computer—were connected

permanently (or at least indefinitely) to the BILOXI BELLE. Only

by removing steel pins from the ramps and letting loose all lines

and cables could the BILOXI BELLE be disconnected from the shore.

2. Vessel Features

5
 The barge upon which the casino structure of the BILOXI BELLE

rests has a steel hull, a raked bow to facilitate its being towed,

bilge pumps, functional ballast tanks, an auxiliary generator to

supply emergency electrical power, and below-deck features

including storage facilities and a galley for employee meals and

work breaks. It is 217 feet long, 44 feet wide, has a 10-foot

draft, and a gross and net tonnage of 2587 tons. The barge is

documented by the United States Coast Guard, is assigned an

official registration number, is authorized to engage in the

coastwise trade, is approved to undertake voyages between ports of

the United States with no restrictions, and is home-ported in New

Orleans. In addition, an engineer from the American Bureau of

Shipping Marine Services, Inc. reviewed the stability of the BILOXI

BELLE and rendered an evaluation of the "vessel's intact

stability." The BILOXI BELLE Casino is licensed for gaming by the

Mississippi Gaming Commission pursuant to the Mississippi Gaming

Control Act, which allows such licenses to be issued only to

operators of "vessels" or "cruise vessels." A continual stand-by

towing contract with Alario Brothers Towing commits that company to

supply the equipment, facilities, and expertise required to tow the

BILOXI BELLE to sheltered waters in the event potentially damaging

weather is forecast. (The BILOXI BELLE was towed to sheltered

waters on August 23, 1992, when Hurricane Andrew threatened.)

3. Nonvessel Features

The BILOXI BELLE has no engine, no captain, no navigational

aids, no crewquarters and no lifesaving equipment. For visual

6
effect only, the BILOXI BELLE is outfitted with a decorative pilot

house containing no operating parts other than a single light

switch. This faux pilot house contains no steering mechanism, but

is decorated with an antique wheel for purely aesthetic purposes.

Decorative ring buoys are located on the BILOXI BELLE, but they too

are purely visual effects and are not intended for lifesaving use.

Likewise, a motorized but nonfunctional paddle wheel is

affixed to the BILOXI BELLE. The paddle wheel is turned by a small

engine, and water outlets around the wheel produce spray to give

the appearance of function, but the wheel rests permanently above

the water level and serves no propulsion function.

Despite having been towed from its place of manufacture in

Louisiana to two restaurant and bar locations in Texas and

eventually to its dockside casino location in Biloxi, the subject

barge has never been used as a seagoing vessel to transport

passengers, cargo, or equipment across navigable waters. Neither

was it originally constructed to do so. Even though the barge

floats on navigable waters, its quite substantial dockside

attachment to land is indefinite, if not permanent, save only for

its ability to be unmoored and towed to sheltered waters in advance

of approaching hurricanes or other violent weather. The BILOXI

BELLE employs no navigational or nautical crew; all workers

thereon are employed solely in connection with the casino

operation.

II

ANALYSIS

7
A. STANDARD OF REVIEW

Both cases consolidated here on appeal were terminated in the

district courts by summary judgments in favor of the Defendants-

Appellees. We review de novo a district court's grant of summary

judgment.3 In so doing, we determine whether "all of the

pleadings, depositions, answers to interrogatories, admissions on

file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law."4 The moving party need

not support its motion with affidavits or other evidence, but to

defeat a motion for summary judgment the nonmovant must present

evidence sufficient to establish the existence of each element of

his claim as to which he will have the burden of proof at trial.5

We view this evidence, and the inferences to be drawn from it, in

the light most favorable to the nonmovant.6

B. SEAMAN STATUS

To recover under either the Jones Act or the general maritime

law, a plaintiff must be a "seaman."7 The determination of

3
Simpson v. Lykes Bros. Inc., 22 F.3d 601, 602 (5th
Cir.1994).
4
FED.R.CIV.P. 56(c).
5
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 2552, 91 L.Ed.2d 265 (1986).
6
Unida v. Levi Strauss & Co., 986 F.2d 970, 975 (5th
Cir.1993).
7
Hebert v. Air Logistics, Inc., 720 F.2d 853, 856 (5th
Cir.1983).

8
"seaman" status is generally one of fact.8 "However, seaman status

may be decided on summary judgment where the evidence does not

support a finding, as a matter of law, that the claimant is

permanently assigned to a Jones Act vessel."9 The substantive

issue at the core of both cases that we review today is whether the

BILOXI BELLE is a Jones Act vessel or was one at the times when the

subject accidents are alleged to have occurred. Albeit for reasons

different from those expressed by the district courts, we agree

with their conclusions that the BILOXI BELLE was not a vessel in

navigation for purposes of the Jones Act at the pertinent times.

Consequently, neither Pavone nor Ketzel was a seaman, and summary

judgment against them both was proper.

C. PRELIMINARY MATTERS

Although the discrete facts of the instant cases are

essentially undisputed, and the substantive claims of each

Plaintiff-Appellant are of essentially the same type and turn on

the question of the BILOXI BELLE's status as a Jones Act vessel,

Pavone raises additional points of error, primarily procedural in

nature, that Ketzel does not assert. There is nothing unique or

particularly significant about the procedural errors advanced by

Pavone. Were it not for his contention that the BILOXI BELLE is a

vessel in navigation for Jones Act purposes, Pavone's case would

almost certainly have been decided on our summary calendar in an

8
Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292
(5th Cir.1990).
9
Id.

9
unpublished per curiam opinion. But these lesser procedural

attractions are presently before us, so we shall address them

before proceeding to the main event.

1. Motion To Remand to State Court

Pavone claims that the district court erred in denying his

motion to remand his suit to the state court in which it was

originally filed. The district court did not favor us with its

specific reasons for denying Pavone's motion; rather, it simply

observed that the record did not warrant a remand. On appeal

Pavone advances two points of error to support his claim that he

was wrongly denied remand.

a. Timeliness of Motion To Remand

Pavone first claims that his motion to remand was timely made.

We review the timeliness of a remand motion de novo.

Section 1447(c) provides that a "motion to remand the case on

the basis of any defect in removal procedure must be made within 30

days after the filing of the notice of removal under § 1446(a)."10

Pavone's motion to remand was filed thirty-three days after the

Riverboat Companies filed their notice of removal and mailed a copy

of that notice to Pavone. He states that six days elapsed between

the date the notice of the removal was filed and the date on which

he received his copy in the mail. He contends therefore that (1)

he could have filed a motion for enlargement of time or to have his

pleading deemed timely filed, either of which motions the district

court could have granted; and (2) § 1446(d) requires the removing

10
28 U.S.C. § 1447(c) (emphasis added).

10
party to provide "prompt" written notice, and due process requires

that his (Pavone's) motion be treated as timely under the

circumstances of the mailing and delivery. Pavone also cites as

persuasive authority Chott v. Cal Gas Corp.,11 a decision in which

a district court in Missouri held timely a motion to remand which,

like Pavone's, was filed thirty-three days after the opposing party

had filed and mailed its notice of removal.12 The Chott court found

the motion timely by applying Federal Rules of Civil Procedure

6(e), which provides that "3 days shall be added to the prescribed

period" whenever a party is required to "do some act" within a

prescribed period "after the service of a notice or other paper

upon the party and the notice is served upon the party by mail."13

The Riverboat Companies respond that Rule 6(e) is unavailing

to Pavone, as it applies only when the prescribed period for a

party to act begins to run after service upon that party; by

contrast, § 1447(c) establishes the time to object to a defect in

a removal procedure based on when the removal notice is filed with

the court. As Pavone did not file his objection within thirty days

following the filing of the renewal notice, the Riverboat Companies

conclude that Pavone waived any objection to defects in the removal

procedure.

We agree with the Riverboat Companies that Rule 6(e) does not

extend the thirty-day period of § 1447(c), as that rule applies

11
746 F.Supp. 1377 (E.D.Mo.1990).
12
Id. at 1377.
13
FED.R.CIV.P. 6(e).

11
only when a party is required to act within a prescribed period

after service, not after filing. As we observed ten years ago in

Lauzon v. Strachan Shipping Co.,14

[t]he correct inquiry is whether the required actions must be
performed within a prescribed period of filing or of
service.—If the action is to be taken after filing, the time
for action begins to run from that date. If the act is to be
taken from service, the three day extension of ... [Rule] 6(e)
applies.15

Furthermore, a district court has no discretion to remand to state

court when a motion to do so is grounded on improper removal

procedures and that motion is not made within thirty days following

filing: Under such circumstances, the objection to removal

jurisdiction resulting from a defect in the removal procedure is

waived.16 Defects in removal procedure include, inter alia, the

removal of an action that could have been filed originally in

federal court but could not be removed to federal court if it were

filed originally in state court.17 As Pavone could have filed his

Jones Act claim in federal court originally, as did Ketzel, it is

clear that Pavone's motion to remand does not implicate the subject

matter jurisdiction of the district court, which cannot be waived.

On the contrary, Pavone's motion involves only a defect in removal

procedure which, as noted, is waivable. Although in neither

14
782 F.2d 1217 (5th Cir.1985).
15
Id. at 1220 (emphasis in original).
16
See In re Shell Oil Co., 932 F.2d 1523, 1529 (5th
Cir.1991).
17
Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th
Cir.1991), cert. denied, 502 U.S. 963, 112 S.Ct. 430, 116 L.Ed.2d
449 (1991).

12
Lauzon,18 nor elsewhere do we appear to have directly addressed the

interplay, or lack thereof, between Rule 6(e)'s three-day extension

and § 1447(c)'s thirty-day provision, we perceive no meaningful

distinction between this case and Lauzon, the decision in which we

drew the line limiting Rule 6(e)'s application to periods measured

from time of service upon a party.

b. Removability of Jones Act Suit

Next Pavone raises several arguments as to why his Jones Act

suit was not removable. These contentions, however, all go to the

merits of his motion to remand. But we have already determined

that Pavone's motion to remand merely concerned a defect in the

removal procedure; that the defect therefore was waivable; and

that Pavone, in fact, waived that defect by failing to file his

remand motion within thirty days following the filing of the notice

of removal. Consequently, Pavone also waived these assignments of

error; thus they are not properly before us.

2. Denial of Motion To Continue Summary Judgment Motion

Pavone complains that the district court abused its discretion

in denying his motion to continue the hearing on the Riverboat

Companies' motion for summary judgment until after the court ruled

on his motion to remand. We review for abuse of discretion a

district court's denial of a continuance.19

18
Lauzon, 782 F.2d at 1220; see also Lewis v. Certainteed
Corp., 870 F.Supp. 130, 131-32 (W.D.La.1994) (stating that Rule
6(e) does not extend 30 day period of § 1447(c)).
19
Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th
Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35
(1990).

13
 We believe that the chronology of the motion practice puts

the issue of Pavone's February 8, 1994 request for a continuance in

clear perspective:

November 15, 1993, Pavone filed a motion to remand;

November 30, 1993, the Riverboat Companies filed a motion for
summary judgment;

December 15, 1993, the court heard Pavone's remand motion;

December 20, 1993, the court denied Pavone's remand motion;

January 3, 1994, Pavone filed a motion for reconsideration;

January 26, 1994, the court heard Pavone's reconsideration
motion;

February 8, 1994, Pavone filed a motion to continue the
hearing on the Riverboat Companies' summary judgment
motion;

February 16, 1994, Pavone's motion for reconsideration was
denied;

February 22, 1994, the district court heard the Riverboat
Companies' motion for summary judgment—which had been
continued from December 15, 1993 to February 9, 1994 on
Pavone's motion, and from February 9, 1994 to February
22, 1994 on the court's own motion.

As this makes clear, the district court ruled against Pavone on his

motion to remand on December 20, 1993 and denied his motion for

reconsideration of that decision on February 16, 1994—before the

district court heard the Riverboat Companies' motion for summary

judgment.20

Pavone further insists that he was presented with a Catch-22

20
Pavone's plea that "judicial economy" demands that a
district court definitively rule on a motion to remand a suit
brought under the Jones Act before entertaining a motion for
summary judgment in that suit is inapposite when, as here, the
dispositive issue in both motions is whether the structure at
issue is a Jones Act vessel.

14
by the district court's failure to grant a continuance of the

Riverboat Companies' motion for summary judgment until after the

court had issued its final ruling on his motion to remand the case

to state court. Pavone claims that he could not conduct discovery

prior to obtaining a ruling on his motion to remand without risking

the waiver of that right; but neither could he oppose the

Riverboat Companies' motion for summary judgment without obtaining

information that he could gather only through discovery.

In claiming that he would have risked his right to remand had

he conducted discovery, Pavone relies on Roberts v. Vulcan

Materials, Co.,21 a 1983 decision from a Louisiana district court.

In that decision, the district court noted that a plaintiff had

actively participated in the discovery process and thereby

acquiesced to federal jurisdiction, waiving any objection he might

have otherwise had to procedural defects in the removal process.

Pavone's reliance on Roberts is misplaced, however, as § 1447 was

amended in 1988, changing the determinative question from whether

a plaintiff "acquiesced" in federal jurisdiction to whether the

motion to remand was timely filed. Under the foregoing

circumstances and analysis, we find no abuse of discretion in the

district court's denial of Pavone's motion to continue the hearing

on the Riverboat Companies' motion for summary judgment.

D. JONES ACT VESSELS: YEA OR NAY?

Again, as both Pavone and Ketzel depend for recovery on the

ability to sustain their claims to having been Jones Act "seamen"

21
558 F.Supp. 108 (M.D.La.1983).

15
when they were injured, and as the BILOXI BELLE was concededly

situated on navigable waters at the times when the subject

accidents are alleged to have occurred, thereby meeting the "situs"

test for Jones Act purposes, the core question is whether the

"status" of the BILOXI BELLE was that of Jones Act vessel at the

times in question. And in the context of indefinitely moored

floating casinos, that question is res nova in this circuit.22 With

the assistance of able counsel, our esteemed colleagues of the

Southern District of Mississippi and the Eastern District of

Louisiana, respectively, have rendered opinions in the instant

cases crafted in classical maritime methodology for determining, on

the basis of a watercraft's unique physical and functional

attributes, whether such a craft—here the BILOXI BELLE—is a

"vessel," conventional or nonconventional, for purposes of the

Jones Act or the general maritime law. We are not prepared to say

that either opinion is flawed; that the analysis in either is

erroneous; or that the result reached on the narrow question

whether the BILOXI BELLE was a Jones Act vessel vis-à-vis Pavone

and Ketzel at the times their accidents occurred is wrong. We have

nagging concerns nevertheless that vessel analyses of the kinds

performed by the district courts in the instant cases could be

22
With the recent and presumably continuing proliferation of
such "gaming" establishments in Louisiana and Mississippi, and
the question of legalized casino gaming still being openly
discussed and debated in Texas, we speculate that the cases we
consider today are merely the vanguard of a host of future legal
efforts to advance as maritime causes of action all sorts of
personal injury and property damage claims arising from
occurrences on or near moored floating casinos and similar
establishments.

16
overbroad, albeit through inadvertence, and thereby return to haunt

us in slightly differing contexts in the future.23 We conclude that

the correct result reached by the district courts in these cases

can be achieved in a narrower—and thus a jurisprudentially more

principled—way, thereby avoiding the potentiality of undesirable

future side effects.

The approach to which we refer comprehends the analysis of

putative "vessels" that were either withdrawn from navigation at

the time in question or never placed in navigation. In particular,

we examine the status of the BILOXI BELLE as of the times pertinent

to the alleged injuries in these cases to determine if it was a

Jones Act vessel—assuming arguendo that the subject craft was built

and used for nonvessel purposes, was moored other than temporarily

to the bank, and either had been "withdrawn from navigation" or was

being used as a "work platform," or both.24

The concepts of "withdrawn from navigation" and "work

platform," both usually eschewing vessel status, are not

23
For example, whether floating casinos, bars, restaurants,
etc. would be Jones Act vessels for purposes of accidents
occurring while they were being towed to a new location or to a
shipyard or dry dock for work or repairs or to sheltered waters
in avoidance of a hurricane. The approach we adopt infra also
avoids the conflict in "vessel" status among the Jones Act, the
general maritime law, state casino licensing classification,
Coast Guard documentation, and "dictionary" definitions.
24
In limiting our consideration to vessels withdrawn from
navigation or being used as work platforms, we also avoid the
always problematic issue of special purpose vessels. See, e.g.,
Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 (5th
Cir.1990) ("Nevertheless, exotic craft may qualify as vessels,
especially if frequently navigated, or if exposed to the perils
associated with maritime service, or if injury occurs during
ocean transport.").

17
infrequently intertwined. The withdrawn-from-navigation idea has

been recognized for decades, distinguishing craft or structures

that meet the general dictionary definition of "vessel" from those

that meet Jones Act or the general maritime law vessel status at a

given time, such as when the craft or structure has been " "laid up

for the winter.' "25 Both that concept and the work-platform

concept are certainly alive and well in this circuit, as perhaps

best illustrated by a triumvirate of relatively recent decisions.

In the 1984 Jones Act case of Bernard v. Binnings Construction

Co.,26 the "vessel" in question was a small raft or "work punt"

stationed alongside a piling that was being driven near the shore

of a canal. We noted first the teachings of our earlier cases

establishing that dry docks and analogous structures of which the

primary purpose is to provide a work platform—even if the

structures are afloat—are not Jones Act vessels, as a matter of

law.27 In Bernard, we recognized that:

In a line of cases beginning with Cook v. Belden Concrete
Products,[28] we have extended [the rationale that a floating
dry dock is not a "vessel" while moored at the bank and
operated as a dry dock], by analogy, to structures that lack
the permanency of fixation to shore or the bottom that is

25
Desper v. Starved Rock Ferry Co., 342 U.S. 187, 191, 72
S.Ct. 216, 218, 96 L.Ed. 205 (1952) (quoting Hawn v. American
S.S. Co., 107 F.2d 999, 1000 (2d Cir.1939)).
26
741 F.2d 824 (5th Cir.1984).
27
Id. at 830 & n. 21.
28
472 F.2d 999 (5th Cir.) (finding that floating
construction platform moored alongside employer's concrete yard
is legally indistinguishable from floating dry docks and holding
it not to be a Jones Act vessel, as matter of law), cert. denied,
414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116 (1973).

18
 common to dry docks, but nonetheless are used primarily as
work platforms.29

The Bernard court then laid out what has become the starting point

in this circuit for analyzing such work-platform cases:

Since Cook we have, despite our reluctance to take Jones Act
claims from the trier of fact, affirmed findings that, as a
matter of law, other floating work platforms are not vessels.
A review of these decisions indicates three factors common to
them: (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.30

The next case in our trilogy is Ducrepont v. Baton Rouge

Enterprises, Inc.,31 in which we were called on to classify a

structure as a vessel or nonvessel under the Longshoremen's and

Harbor Workers' Compensation Act (LHWCA)32 as well as under the

Jones Act and the general maritime law. In Ducrepont, we slightly

expanded one element of the Bernard test by recognizing that a

structure could meet the work-platform definition under the Bernard

factors even if it had not originally been constructed for that

purpose, as long as it was used primarily as a work platform at the

time in question and met the other Bernard factors.33

29
Bernard, 741 F.2d at 830.
30
Id. at 831.
31
877 F.2d 393 (5th Cir.1989).
32
33 U.S.C. § 905(b) (1988).
33
Ducrepont, 877 F.2d at 395.

19
 Then came Gremillion v. Gulf Coast Catering Co.,34 in which we

heeded the lesson of our earlier decision in Blanchard v. Engine &

Gas Compressor Servs., Inc.,35 stating that, "[a]s 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.' "36

We then proceeded in Gremillion to reinforce the Bernard analysis

as follows:

Our decisions in this area instruct, however, that as a matter
of law certain dry docks and floating work platforms will not
qualify as Jones Act vessels. [citing in a footnote, examples
from our prior jurisprudence: floating platform used for
cleaning and stripping; repair barge; oil production
platform that had not moved for twenty-four years; gulf rig
moved only twice in twenty years; small raft-like work
platform used to drill pilings; floating work platform used
in unloading grain barges.] A survey of the case law
demonstrates three common attributes for 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.37

When the undisputed facts of the instant cases are plugged

34
904 F.2d 290 (5th Cir.1990).
35
575 F.2d 1140 (5th Cir.1978).
36
Gremillion, 904 F.2d at 293 (quoting Blanchard, 575 F.2d
at 1142).
37
Id. at 293-94 (citing Daniel v. Ergon, Inc., 892 F.2d 403,
407 (5th Cir.1990) (citing Bernard v. Binnings Constr. Co., 741
F.2d 824, 831 (5th Cir.1984))).

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into (1) the Desper/Hawn withdrawn-from-navigation factors, or (2)

the Bernard/Gremillion work-platform attributes, or both, and are

compared to the functional and nautical characteristics and mooring

statuses of the various craft that in earlier cases were held as a

matter of law to be nonvessels for Jones Act purposes, there can be

little doubt that indefinitely moored, shore-side, floating

casinos, such as the BILOXI BELLE, must be added to that list.

Here, the semi-permanently or indefinitely moored barge supporting

the BILOXI BELLE casino was constructed ab initio to be the

floating site of a restaurant and bar (not a key factor given

Ducrepont 's recognition that original construction as a work

platform is not a prerequisite).38 From its inception the instant

barge was used first as a floating restaurant and bar until its

conversion to a casino and its renaming as the BILOXI BELLE, after

which it has been used only for casino purposes. Upon its arrival

in Mississippi from Texas, the BILOXI BELLE was moored to the shore

in a semi-permanent or indefinite manner, and continued to be thus

moored before, during, and after the accidents in question. The

BILOXI BELLE is susceptible of being moved, and in fact was moved

across navigable waters one time in the course of "normal

operations" (assuming that movement to avoid the threat of a

hurricane on a single occasion can be deemed "normal operations"),

which one-time movement was purely incidental to the barge's

primary purpose of physically supporting a dockside casino

38
Ducrepont v. Baton Rouge Enters., Inc., 877 F.2d 393, 395
(5th Cir.1989).

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structure.

We hold, therefore, that at the times of the Pavone and Ketzel

accidents, the BILOXI BELLE (1) was removed from navigation, and

(2) was a work platform. Under either circumstance, it was not

then a vessel for purposes of the Jones Act or the general maritime

law.

For the foregoing reasons, the summary judgments in the cases

consolidated for review herein are, in all respects,

AFFIRMED.

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