William Clark v. American Marine & Salvage, LLC , 494 F. App'x 32 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12849
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00002-CG-B
WILLIAM CLARK,
Plaintiff - Counter Defendant.
Appellant.
versus
AMERICAN MARINE & SALVAGE, LLC,
Defendant - Counter Claimant,
Appellee.
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Appeal from the United States District Court
for the Southern District of Alabama
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(October 23, 2012)
Before MARCUS, PRYOR and FAY, Circuit Judges.
PER CURIAM:
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This appeal presents the issue whether an employee who performs a variety
of tasks, including marine repairs, with most of his work on land, but other work
on water, qualifies as a seaman under the Jones Act, 46 U.S.C. § 30104, and
general maritime law. The district court ruled that William Clark was not a
seaman and entered summary judgment in favor of American Marine and against
Clark’s complaint of unseaworthiness and maintenance and cure, under maritime
law, and negligence, under the Jones Act. Because the record establishes that
Clark’s work had no substantial connection to a vessel in navigation, we affirm.
I. BACKGROUND
American Marine provides commercial diving, welding, and repair services
to shipowners in Mobile, Alabama. In January 2010, Aubrey Roney, the owner of
American Marine, hired Clark to operate the company office, respond to business
calls, prepare invoices, and perform most of the diving, welding, and vessel repair
work for the company. Clark also cut the grass outside the office occasionally,
and he performed repairs on a work barge owned by American Marine. American
Marine owned two vessels, the work barge and a dive boat, but Clark did not
reside or work primarily on either vessel.
Clark kept a diary between January 1, 2010, and May 15, 2010, in which he
recorded his daily tasks, hours, and mileage. The entries in Clark’s diary establish
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that he worked 768.5 hours for American Marine, and that he spent 159 hours
repairing the work barge. The entries in Clark’s diary also establish that he spent
35.5 hours on a dive boat performing commercial dive work and 34.5 hours on the
work barge performing repairs on Nathan Friedlander’s dock.
The entries in Clark’s diary, the way he described his tasks on invoices, and
his deposition testimony established that Clark prepared his repair work primarily
from land or from a customer’s vessel. When Clark received a request for repair
services, he traveled by land from the company office in his vehicle or a company
vehicle to the customer’s boat or dock. Clark entered the water from the dock or
the customer’s vessel, completed the repairs, and returned to his home or the
business office.
On March 11, 2010, Clark recorded in his diary that he injured his “right
elbow” when Roney helped Clark to climb on board a boat after resurfacing from a
dive to “mark[] sunk[en] . . . barges of[f] [the] coast of Biloxi.” Clark recorded
that the “dive boat had no ladder [for a diver to use] to get on and off the boat.”
On May 10, 2011, Clark recorded that he “hurt [his] back trying to hold up [a] 20
foot I beam for [Roney]” while working at the Theodore Ship Channel. After he
returned home from the same site on May 11, 2010, Clark recorded that his “back
hurt[] bad, . . . but [he] [had to] keep going,” and that Roney was “making [Clark]
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drive [Roney’s] truck from his house to the job site.” And after working on the
same job on May 12, 2010, Clark recorded that he “hurt [his] back pulling . . . [a]
heavy catwalk onto [a] dock frame.” On May 15, 2010, Clark resigned from his
position with American Marine.
Clark filed a complaint for unseaworthiness and maintenance and cure,
under maritime law, and for negligence, under the Jones Act, for the injuries he
suffered during his work for American Marine, which moved for summary
judgment against his complaint. American Marine argued that Clark did not
qualify as a seaman because he had not worked a substantial amount of time in the
service of a vessel in navigation. American Marine argued that the 70 hours Clark
worked from the dive boat and work barge were insufficient for him to qualify as a
seaman, and that the 159 hours that he spent repairing the work barge “did not take
him to sea or expose him to the perils of the sea . . . [and] did not give him, in
nature, a substantial connection to a vessel in navigation.” To support its
argument about the work barge, American Marine submitted photographs of the
work site and an affidavit from Roney stating that Clark’s repairs on the work
barge were “mostly performed while the barge was drug up on the shore with the
bottom of the barge resting on land” and never performed while the work barge
was “in navigation”; Clark employed the “skills and training of a welder and steel
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fabricator” to repair and improve the work barge; Clark’s equipment included “a
welding machine and a steel cutting torch”; the “welding machine and acetylene
cutting gas cylinders were located on a utility trailer owned by Clark and always
situated on land”; and the “welding leads and cutting torch were at all times
tethered to the land based welding machine and cutting gases located on Clark’s
utility trailer.”
The district court granted summary judgment in favor of American Marine.
The district court ruled that, although the work barge was a vessel in navigation
and Clark’s repairs contributed to its functionality, Clark’s “159 hours of dockside
repair work . . . [did not] [bear] a substantial connection to a vessel in navigation.”
The district court concluded that Clark did not qualify as a seaman because he
“spent only 9.1 [percent] of his time performing Jones Act work.” The district
court also rejected Clark’s argument that he qualified as a seaman as a matter of
law because his work as a commercial diver was inherently maritime.
II. STANDARD OF REVIEW
We review a summary judgment de novo. City of Riviera Beach v. That
Certain Unnamed Gray, Two Story Vessel Approximately Fifty-Seven Feet In
Length, 649 F.3d 1259, 1265 (11th Cir. 2011). Because the issue of whether an
employee qualifies as a “seaman . . . is a mixed question of law and fact, . . . it
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often will be inappropriate to take the question from the jury.” Harbor Tug and
Barge Co. v. Papai, 520 U.S. 548, 554, 117 S. Ct. 1535, 1540 (1997); see Ardoin
v. J. Ray McDermott & Co., 641 F.2d 277, 280 (5th Cir. 1981). “Nevertheless,
‘summary judgment or a directed verdict is mandated where the facts and the law
will reasonably support only one conclusion.’” Papai, 520 U.S. at 554, 117 S. Ct.
at 1540 (quoting McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S. Ct.
807, 818 (1991)); see Roberts v. Williams-McWilliams Co., 648 F.2d 255, 261
(5th Cir. 1981).
III. DISCUSSION
A two-part test governs whether a marine employee is a seaman: the
employee’s duties must “contribute to the function of the vessel,” and the
employee must “have a connection to a vessel in navigation . . . that is substantial
in terms of both its duration and its nature.” Chandris, Inc. v. Latsis, 515 U.S.
347, 368, 115 S. Ct. 2172, 2190 (1995) (internal quotation marks omitted). As a
general rule, an employee “who spends less than about 30 percent of his time in
the service of a vessel in navigation should not qualify as a seaman.” Id. at 371,
115 S. Ct. at 2191. “[T]he inquiry into the nature of the employee’s connection to
the vessel must concentrate on whether the employee’s duties take him to sea.”
Papai, 520 U.S. at 555, 117 S. Ct. at 1540. A seaman need not “aid in navigation
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or contribute to the transportation of the vessel, but a seaman must be doing the
ship’s work.” Wilander, 498 U.S. at 355, 111 S. Ct. at 817. If the employee has
“only a transitory or sporadic connection to a vessel in navigation, and . . . [his]
employment does not regularly expose [him] to the perils of the sea,” the
employee is a “land-based worker . . . [who is not] entitled to . . . protection” under
the Jones Act or maritime law. Chandris, 515 U.S. at 368, 115 S. Ct. at 2190.
Clark worked only sporadically from a vessel in navigation. Clark worked
primarily from land and traveled by land to marinas and other sites from which
sometimes he entered the water to perform marine repairs. Clark worked only 70
of his 768.5 hours — or less than ten percent of his work hours — in the service of
a vessel in navigation owned by American Marine. Although the record
establishes that the 159 hours during which Clark made repairs and improvements
to the work barge contributed to its functionality, Clark performed most of the
repair work on land or, at least, while tethered to a land base, and that work was
not of a seafaring nature.
Clark makes two arguments that he performed seaman’s work, but both
arguments fail. First, Clark argues that performing repairs to the work barge
exposed him to the dangers of the sea. Clark equates his work to that of a crane
operator who worked on board a derrick barge moored in the Mississippi River to
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load and unload cargo ships, see In re Endeavor Marine Inc., 234 F.3d 287,
289–92 (5th Cir. 2000), but the undisputed evidence establishes that Clark
performed most of his repairs of the work barge while he was on land. Second,
Clark argues that his work as a commercial diver exposed him to marine perils, but
“[s]eaman status is not coextensive with seamen’s risks.” Chandris, 515 U.S. at
361, 115 S. Ct. at 2186. Clark likens his situation to that of a commercial diver in
Wallace v. Oceaneering International, 727 F.2d 427 (5th Cir. 1984), but that diver
performed “[m]ore than 95 [percent] of [his] work . . . at sea” while “[h]e, along
with the various other crew members, [worked,] ate and slept aboard” a
semi-submersible drilling vessel anchored in the Gulf of Mexico, id. at 430, 436.
Clark, in contrast, had only a transitory and sporadic connection to a vessel owned
by American Marine when he performed the work of a commercial diver. See id.at 433–34 & n.4.
The district court correctly concluded that Clark did not qualify as a
seaman. Clark failed to introduce any evidence that his work was substantially
connected to a vessel in navigation. American Marine was entitled to a summary
judgment against Clark’s complaint.
IV. CONCLUSION
We AFFIRM the summary judgment in favor of American Marine.
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