Campbell v. Royal Caribbean Cruises Ltd. , 349 F. App'x 872 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 8, 2009
No. 08-41343 Charles R. Fulbruge III
Clerk
LANCE CAMPBELL
Plaintiff-Appellant
v.
ROYAL CARIBBEAN CRUISES LTD
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. G-08-0117
Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Lance Campbell (“Campbell”) is a ballet dancer. Royal Caribbean Cruises,
Ltd. (“Royal Caribbean”) hired Campbell to perform on its cruise ship, the
Radiance of the Seas. Before embarking, Campbell participated in on-shore
rehearsals for his performances on the cruise. He suffered injuries during one
of these rehearsals. The sole question on appeal is whether Campbell qualifies
as a “seaman” under the Jones Act, 46 U.S.C. § 30104, given that he had not yet
begun his journey on the ship. Based on Supreme Court and Fifth Circuit
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-41343
precedent, we AFFIRM the district court’s ruling that Campbell does not qualify
as a seaman.
The Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995),
fashioned a two-part test to determine if an employee is a “seaman” and
therefore can bring a Jones Act claim. First, “an employee’s duties must
contribute to the function of the vessel or to the accomplishment of its mission.”
Id. (alterations and internal quotation marks omitted). The Court emphasized
that this is a “very broad” threshold requirement: “All who work at sea in the
service of a ship are eligible for seaman status.” Id. (internal quotation marks
omitted). 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.” Id. The Court clarified that a seaman’s connection
to a vessel must be substantial in both respects. Id. at 370.
The duration of a 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.
Id.In Desper v. Starved Rock Ferry Co., 342 U.S. 187 (1952), the Court
concluded that a worker who suffered injuries while completing land-based work
in preparation for placing boats in the water and serving as a boat operator was
not a seaman. The Court noted that the employee “was a probable navigator in
the near future, but the law does not cover probable or expectant seamen but
seamen in being.” Id. at 191 (emphasis added).
In Ramos v. Delmar Systems, Inc., 750 F.2d 389, 390 (5th Cir. 1985) (per
curiam), we held that an employee who suffered an injury before the employer
actually assigned him to a particular vessel or group of vessels was not a
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seaman. More recently, we ruled that a “land-based employee who is
permanently assigned to work in the service of a vessel but who spends only 10%
of his time working aboard the vessel” is not a seaman. Nunez v. B&B Dredging,
Inc., 288 F.3d 271, 273 (5th Cir. 2002).
In light of these precedents, we decline Campbell’s invitation to expand
Jones Act coverage to those who simply intend to serve as a seaman. Campbell
has not shown that he had “a connection to a vessel in navigation (or an
identifiable group of such vessels) that is substantial in terms of both its
duration and its nature.” Chandris, 515 U.S. at 376. Campbell never embarked
on any vessel. Although he intended to spend seven months on the cruise as an
entertainer, he did not in fact do so. See Nunez, 288 F.3d at 276 (noting that a
worker must spend at least some time aboard the vessel to qualify as a seaman).
As the Supreme Court stated, “the law does not cover probable or expectant
seamen but seamen in being.” Desper, 342 U.S. at 191. Until Campbell actually
embarked on the cruise to perform his ballet, he was a land-based worker.
Accordingly, the district court correctly concluded that Campbell was not a
seaman and properly granted summary judgment to Royal Caribbean.
AFFIRMED.
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