Campo v. Electro-Coal Transfer Corp. ( 1992 )

United States Court of Appeals,
Fifth Circuit.
No. 89–3738.
Curtis CAMPO, Plaintiff–Appellant,
v.
ELECTRO–COAL TRANSFER CORP., Defendant–Appellee.
Aug. 28, 1992.
On Remand from the Supreme Court of the United States.
Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This court previously affirmed the district court's entry of a directed verdict against plaintiff
Curtis Campo.1 Our earlier opinion relied upon Pizzitolo v. Electro–Coal Transfer Corp., 812 F.2d
977, 983 (5th Cir.1987), cert. denied, 484 U.S. 1059, 108 S. Ct. 1013, 98 L. Ed. 2d 978 (1988), the
reasoning of which was rejected in Southwest Marine v. Gizoni, ––– U.S. ––––, 112 S. Ct. 486, 116
L. Ed. 2d 405 (1991). The Supreme Court vacated our opinion in Campo I, directing us to reconsider
in light of Southwest Marine. We do so now and affirm on grounds different from those in our prior
opinion.
I.
Campo was employed by Electro–Coal Transfer Corp. (Electro–Coal) at its cargo transfer
terminal on the Mississippi River. He was injured while unrolling a barge cargo cover2 and brought
suit against Electro–Coal under the Jones Act, 46 U.S.C.App. § 688.
After hearing Campo's evidence of his seaman status, the district court directed a verdict in
1
Campo v. Electro–Coal Transfer Corp., 955 F.2d 10 (5th Cir.1990) (hereinafter Campo I ),
vacated and remanded, ––– U.S. ––––, 112 S. Ct. 858, 116 L. Ed. 2d 766 (1992).
2
A detailed description of the facts of this case may be found in Campo I, 955 F.2d at 11–12.
favor of Electro–Coal. The court first held that no reasonable jury could find that Campo was a
seaman, as he could not show a permanent assignment to or substantial work on a fleet of vessels.
Relying upon Pizzitolo, the court also found that Campo was not a seaman as a matter of law because
his job was specifically enumerated in the Longshore and Harbor Workers' Compensation Act
(LHWCA), 33 U.S.C. § 902(3). We affirmed on the basis of the court's second line of reasoning,
finding that Pizzitolo controlled the outcome. See Campo I, 955 F.2d at 12.
II.
Southwest Marine overruled Pizzitolo. Easley v. Southern Shipbuilding Corp., 965 F.2d 1,
3 (5th Cir.1992). We therefore must examine that portion of the district court's ruling that did not
rely upon Pizzitolo. On motions for directed verdict, we consider all of the evidence, not just that
which supports the nonmovant's case, in the light and with all reasonable inferences most favorable
to the non-movant. Boeing Co. v. Shipman, 411 F.2d 365, 374–75 (5th Cir.1969) (en banc).
In order to bring a claim under the Jones Act, Campo must show that (1) he was permanently
assigned to a vessel or fleet or performed a substantial part of his work on the vessel or fleet and (2)
that his work contributed to the mission of the vessel or fleet. See Barrett v. Chevron, U.S.A., 781
F.2d 1067, 1074 (5th Cir.1986) (en banc); Offshore Co. v. Robison, 266 F.2d 769, 779 (5th
Cir.1959).
Whether the plaintiff relies upo n establishing a permanent assignment or substantial work
performance, he must show a connection to a vessel or fleet of vessels in order to satisfy the first
prong of the Robison/Barrett test. See Buras v. Commercial Testing & Eng'g Co., 736 F.2d 307,
310–311 (5th Cir.1984); Guidry v. Continental Oil Co., 640 F.2d 523, 529 (5th Cir.1981) ("[t]he
key is that there must be a relationship between the claimant and ... [an] identifiable group of
vessels"), cert. denied, 454 U.S. 818, 102 S. Ct. 96, 70 L. Ed. 2d 87 (1981). A fleet is "an identifiable
group of vessels acting together or under one control. We reject the notion that fleet of vessels in
this context means any group of vessels an employee happens to work aboard." Barrett, 781 F.2d
at 1074.
Campo has failed to identify a group of vessels to which he was permanently assigned or on
which he performed a substantial amount of work. Campo describes a six- or seven-thousand-vessel
fleet composed of the small number of Electro–Coal vessels, river barges owned by Mid–South
Towing, and ocean barges owned by Gulf Coast Transit.
This grouping fails as a fleet for two reasons. First, Campo did not establish common control
of these three groups of vessels.3 Second, Campo was randomly assigned to vessels that entered the
terminal, without regard to ownership, and not all of the vessels were owned or controlled by these
three companies.4 It is well established that a large number of variously owned and controlled vessels
does not constitute a fleet. See, e.g., Langston v. Schlumberger Offshore Servs., 809 F.2d 1192,
1194 (5th Cir.1987); Barrett, 736 F.2d at 1194; Guidry, 640 F.2d at 529.
Since Campo has not shown a relationship to a fleet of vessels, he does not qualify as a Jones
Act seaman. The court properly granted a directed verdict in favor of Electro–Coal.
III.
Campo also has raised several evidentiary and procedural points of error. We reject these
arguments for the reasons set out in the pri or opinion. See Campo I, 955 F.2d at 12. The
intervention of National Union Fire Insurance is dismissed as moot.
3
Counsel for Campo attempted to introduce a promotional film produced by Tampa Electric
Company. Counsel never explained to the court that the purpose of this evidence was to prove
common control of the vessels owned by Electro–Coal, Mid–South, and Gulf Coast. Nor would
the promotional video, without more, have served to establish such common control.
4
Campo seems to suggest that Electro–Coal controlled all the ships that used its terminal in
that it directed the cargo operations. But "control" encompasses more than a temporary authority
to perform an isolated task on a vessel.
AFFIRMED.