Kelvin Gold v. Helix Energy Solutions Group, Inc. , 2015 Tex. App. LEXIS 12645 ( 2015 )


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  • Reversed and Remanded and Memorandum Opinion filed December 15, 2015.
    In The
    Fourteenth Court of Appeals
    NO. 14-15-00123-CV
    KELVIN GOLD, Appellant
    V.
    HELIX ENERGY SOLUTIONS GROUP, INC., Appellee
    On Appeal from the 270th District Court
    Harris County, Texas
    Trial Court Cause No. 2013-59134
    OPINION
    Appellant Kelvin Gold sued appellee Helix Energy Solutions Group, Inc.
    (Helix) after Gold was injured aboard a watercraft, the Helix 534. The trial court
    granted summary judgment to Helix on all of Gold’s claims. The parties join issue
    on whether Helix established as a matter of law that Gold was not a Jones Act
    seaman—specifically, whether the Helix 534 was a “vessel in navigation.” We
    reverse and remand.
    I.    SUMMARY JUDGMENT
    In two issues, Gold contends the trial court erred by granting summary
    judgment to Helix because there is a fact issue about whether Gold was a Jones Act
    seaman, i.e., a member of a crew of a vessel. First, we recite the standard of
    review. Then, we review general principles for Jones Act seaman status. Next, we
    review the record in the light most favorable to Gold. Finally, we hold that Helix
    has failed to conclusively establish that Gold was not a Jones Act seaman.
    A.    Standard of Review
    We review summary judgments de novo. Mann Frankfort Stein & Lipp
    Advisors, Inc. v. Fielding, 
    289 S.W.3d 844
    , 848 (Tex. 2009). A movant for a
    traditional summary judgment, such as Helix, must show that there is no genuine
    issue of material fact and an entitlement to judgment as a matter of law. See 
    id. A defendant,
    such as Helix, is entitled to summary judgment if the evidence
    conclusively negates at least one essential element of the plaintiff’s cause of action.
    See Little v. Tex. Dep’t of Crim. Justice, 
    148 S.W.3d 374
    , 381 (Tex. 2004).
    Evidence is conclusive only if reasonable people could not differ in their
    conclusions. City of Keller v. Wilson, 
    168 S.W.3d 802
    , 816 (Tex. 2005); Loya v.
    Loya, No. 14-14-00208-CV, — S.W.3d —, 
    2015 WL 4546562
    , at *3 (Tex. App.—
    Houston [14th Dist.] July 28, 2015, pet. filed). We review the evidence in the light
    most favorable to the nonmovant, Gold, crediting evidence favorable to him if
    reasonable jurors could and disregarding contrary evidence unless reasonable
    jurors could not. See Mann 
    Frankfort, 289 S.W.3d at 848
    . We indulge every
    reasonable inference in Gold’s favor. See Kane v. Cameron Int’l Corp., 
    331 S.W.3d 145
    , 147 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
    2
    Whether a plaintiff such as Gold is a Jones Act seaman is a mixed question
    of law and fact. See Chandris, Inc. v. Latsis, 
    515 U.S. 347
    , 369 (1995). Summary
    judgment on seaman status is appropriate when the facts and law will reasonably
    support only one conclusion. See McDermott Int’l., Inc. v. Wilander, 
    498 U.S. 337
    , 356 (1991). “The inquiry into seaman status is of necessity fact specific; it
    will depend on the nature of the vessel and the employee’s precise relation to it.”
    
    Id. “The question
    of whether an injured employee was a seaman at the time of his
    injury is normally a question for the trier of fact.” Willis v. Titan Contractors
    Corp., 
    625 S.W.2d 69
    , 73 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d
    n.r.e.); accord 
    Chandris, 515 U.S. at 362
    (“[T]he question of seaman status is
    normally for the factfinder to decide . . . .”); Johnson v. Gulf Coast Contracting
    Servs., Inc., 
    746 S.W.2d 327
    , 328 (Tex. App.—Beaumont 1988, writ denied)
    (“Jones Act status is almost always a fact issue for the jury.”); see also Offshore
    Co. v. Robison, 
    266 F.2d 769
    , 779–80 (5th Cir. 1959) (explaining that the term
    “vessel” has “such a wide range of meaning, under the Jones Act as interpreted in
    the courts, that, except in rare cases, only a jury or trier of facts can determine [its]
    application in the circumstances of a particular case”).
    B.    Principles of Jones Act Seaman Status
    The Jones Act provides that a “seaman” injured in the course of employment
    may maintain an action for damages. See 46 U.S.C.A. § 688(a); 
    Chandris, 515 U.S. at 354
    . Seamen are entitled to maintenance and cure when they are injured in
    the service of a ship. See 
    Chandris, 515 U.S. at 354
    . A seaman’s remedies grow
    out of “the status of the seaman and his peculiar relationship to the vessel, and as a
    feature of the maritime law compensating or offsetting the special hazards and
    disadvantages to which they who go down to sea in ships are subjected.” 
    Id. at 355
    (quotation omitted).
    3
    The term “seaman” is not defined in the statute. 
    Id. But, after
    enacting the
    Jones Act, Congress enacted the Longshore and Harbor Workers’ Compensation
    Act (LHWCA), which provides the exclusive remedy for injured land-based
    maritime workers. 
    Id. The LHWCA
    excludes from coverage a “master or member
    of a crew of any vessel.” 
    Id. (citing 33
    U.S.C.A § 902(3)(G)). Courts have
    construed the term “seaman” in light of the exclusion appearing in the LHWCA
    because the remedies are mutually exclusive. See 
    id. at 355–56.
    The LHWCA
    exclusion “is simply ‘a refinement of the term “seaman” in the Jones Act.’”
    Stewart v. Dutra Const. Co., 
    543 U.S. 481
    , 488 (2005) (quoting 
    Wilander, 498 U.S. at 347
    ). Thus, a Jones Act seaman is a “master or member of a crew of any
    vessel.” See 
    id. at 356
    (citing 
    Wilander, 498 U.S. at 347
    (“[I]t is odd but true that
    the key requirement for Jones Act coverage now appears in [the LHWCA].”)).
    The term “vessel,” for purposes of the Jones Act and LHWCA, “includes
    every description of watercraft or other artificial contrivance used, or capable of
    being used, as a means of transportation on water.” 1 U.S.C.A § 3; see 
    Stewart, 543 U.S. at 491
    (“[A]t the time Congress enacted the Jones Act and the LHWCA
    in the 1920’s, it was settled that § 3 defined the term ‘vessel’ for purposes of those
    statutes.”). Under this definition, the key question “remains in all cases whether
    the watercraft’s use ‘as a means of transportation on water’ is a practical possibility
    or merely a theoretical one.” 
    Stewart, 543 U.S. at 496
    . A structure falls within this
    definition when “a reasonable observer, looking to the [structure’s] physical
    characteristics and activities, would consider it designed to a practical degree for
    carrying people or things over water.” Lozman v. City of Riviera Beach, Fla., 
    133 S. Ct. 735
    , 741 (2013). This “purpose-based” test permits “consideration only of
    objective evidence of a waterborne transportation purpose” as viewed by a
    “reasonable observer.” 
    Id. at 744–45
    (noting that courts look at “the physical
    4
    attributes and behavior of the structure, as objective manifestations of any relevant
    purpose, and not the subjective intent of the owner”). The inquiry may involve
    factual issues for the jury. See 
    Stewart, 543 U.S. at 496
    .
    Although the United States Supreme Court has “sometimes spoken of the
    requirement that a vessel be ‘in navigation,’” the Stewart Court clarified that the
    “in navigation” requirement does not stand “apart from § 3, such that a ‘vessel’ for
    purposes of § 3 might nevertheless not be a ‘vessel in navigation’ for purposes of
    the Jones Act.” Id.1 Rather, the “in navigation” element of the vessel status of a
    watercraft is “relevant to whether the craft is ‘used, or capable of being used’ for
    maritime transportation.” 
    Id. The “in
    navigation” aspect of vessel status is an
    acknowledgement that “structures may lose their character as vessels if they have
    been withdrawn from the water for extended periods of time.” 
    Id. Consistent with
    earlier “in navigation” case law, a “vessel does not cease to
    be a vessel when she is not voyaging, but is at anchor, berthed, or at dockside, even
    when the vessel is undergoing repairs.” 
    Chandris, 515 U.S. at 373
    –74 (citations
    and quotations omitted). A watercraft does not move in and out of Jones Act
    1
    See also Cain v. Transocean Offshore USA, Inc., 
    518 F.3d 295
    , 300 (5th Cir. 2008)
    (“The ‘in navigation’ requirement does not stand apart from § 3 . . . .”); Bunch v. Canton Marine
    Towing Co., 
    419 F.3d 868
    , 871 (8th Cir. 2005) (“[I]in the context of the Jones Act, we look to
    the section 3 definition of ‘vessel,’ rather than attempting to discern additional meaning from the
    phrase ‘in navigation.’”). See generally David W. Robertson, How the Supreme Court’s New
    Definition of “Vessel” Is Affecting Seaman Status, Admiralty Jurisdiction, and Other Areas of
    Maritime Law, 39 J. Mar. L. & Com. 115, 124 (2008) (“[Stewart] has expanded the test for
    seaman status by making clear that there is no separate ‘in navigation’ requirement.”).
    We disagree with Helix’s argument that the “in navigation” inquiry “remains a separate
    and distinct question.” Helix quotes Stewart as holding that the § 3 definition of “vessel” “is
    significantly more inclusive than that used for evaluating seaman status under the Jones 
    Act.” 543 U.S. at 497
    . Stewart, however, was quoting the court of appeals’ decision and immediately
    thereafter clarified, “The Court of Appeals’ approach is no longer tenable.” 
    Id. In light
    of
    Stewart itself and the authorities cited above, we conclude that the “in navigation” requirement is
    “relevant” to a determination of whether a watercraft is a “vessel,” but “in navigation” is not a
    separate element to be proven. See 
    id. at 496.
    5
    coverage depending on whether it was actually moving at the time of the plaintiff’s
    injury. 
    Stewart, 543 U.S. at 495
    –96. Vessels “undergoing repairs or spending a
    relatively short period of time in drydock are still considered to be ‘in navigation.’”
    
    Chandris, 515 U.S. at 374
    (noting that six months was a “relatively short period of
    time for important repairs”); see also Senko v. La Crosse Dredging Corp., 
    352 U.S. 370
    , 373 (1957) (“Even a transoceanic liner may be confined to berth for lengthy
    periods, and while there the ship is kept in repair by its ‘crew.’ There can be no
    doubt that a member of its crew would be covered by the Jones Act during this
    period, even though the ship was never in transit during his employment.”).
    “At some point, however, repairs become sufficiently significant that the
    vessel can no longer be considered in navigation.” 
    Chandris, 515 U.S. at 374
    .
    Thus, a vessel may cease to be a vessel for purposes of the Jones Act when it is
    being “transformed through ‘major’ overhauls or renovations.”                         
    Id. This “underlying
    inquiry whether a vessel is or is not ‘in navigation’ for Jones Act
    purposes is a fact-intensive question that is normally for the jury and not the court
    to decide.” 
    Id. at 373.2
    C.     Summary Judgment Evidence
    Helix and Gold submitted summary judgment evidence including an
    affidavit from Helix’s representative Jason Shropshire, a transcript of Shropshire’s
    deposition, a transcript of Gold’s deposition, pictures of the Helix 534, a printout
    from Helix’s website, and various Helix documents that refer to the Helix 534 as a
    2
    In addition to proving the existence of a vessel under the “broad[]” definition in § 3, a
    plaintiff “seeking Jones Act seaman status must also prove that his duties contributed to the
    vessel’s function or mission, and that his connection to the vessel was substantial both in nature
    and duration.” 
    Stewart, 543 U.S. at 494
    –95. Helix, however, does not challenge the existence of
    these other elements. As Helix argues on appeal, “summary judgment was granted on the
    grounds that the HELIX 534 was not a vessel ‘in navigation,’ as opposed to any other elements
    required to prove seaman status.”
    6
    “vessel,” Gold as a “seaman,” and Helix as a “Jones Act employer.” We review
    this evidence in the light most favorable to Gold.
    1.       Purchase of the Helix 534 and Gold’s Employment
    Helix purchased the Helix 534 for $85 million and took delivery of the ship
    in Singapore in August 2012. The Helix 534 was a 534-foot-long drill ship that
    Helix intended to convert to a well-intervention ship.               The renovation began
    shortly after the ship arrived at the Jurong Shipyard in August 2012.
    Helix hired Gold in November 2012 as an “able bodied seaman.” According
    to Shropshire, Gold was hired “a few months before we first anticipated leaving
    the yard.” Gold immediately began working 28-day hitches aboard the ship. And,
    Shropshire testified that had Gold not been injured, Gold’s “ultimate job would
    have been offshore” in the Gulf of Mexico aboard the Helix 534.
    Gold first noticed some pain in his neck and numbness in his hand while
    moving groceries aboard the Helix 534 shortly after he began working in
    December 2012. He reported to the ship’s medic and ultimately saw his own
    doctor in January 2013 in Houston while he was off the Helix 534.3 He was
    diagnosed with a pinched nerve and received a steroid injection. He was on hitch
    again in February, off in March, and on again in April. Gold reported to the Helix
    534 medic again in April that he suffered more severe neck pain and tingling in his
    hand while moving a heavy beam. Gold saw a doctor in Singapore and was
    diagnosed with a “bulging disk or pinched nerve, herniated disk.” He flew back to
    3
    Helix flew Gold back and forth between Singapore and Houston while Gold was not on
    hitch.
    7
    Houston, and Helix paid Gold maintenance and cure until November 2013 when
    his employment ended.4
    2.     Renovations of the Helix 534
    In a November 2012 article from Helix’s website, Helix wrote that it
    anticipated the renovation project would be complete by mid-2013. Shropshire
    testified that Helix expected the repairs would be complete in as little as five or six
    months, or just a few months after Gold began working on the ship.
    In the article, Helix wrote that its own vice president for commercial
    engineering was “[o]verseeing the conversion process.” Shropshire later testified
    that the “Jurong Shipyard was in charge of the conversion work,” which was
    mostly done by contractors. However, Shropshire also testified that the “ultimate
    control” of the Helix 534 would be under Helix’s vice president of capital
    expenditures. The ship’s crew and captain were not supervising the repairs.
    Helix wrote on its website that the Helix 534 would “appear as she always
    has” after the conversion project.            Despite increased capabilities for well
    intervention, “Her status as a Mobile Offshore Drilling Unit (MODU) will be
    maintained and her top hole drilling capability will remain.”
    By April 2013, the entire crew was aboard the Helix 534 working 28-day
    hitches.5 Shropshire testified that the crew was brought on “towards the end of the
    4
    Shropshire acknowledged that maintenance and cure are the types of benefits owed to
    seamen. In a letter dated October 1, 2013, Helix told Gold that Helix was his “Jones Act
    employer.”
    5
    The crew included a captain (a master/OIN), a chief mate, several senior and junior
    dynamic positioning officers, a bosun, a “bunch” of able bodied seamen, a couple of ordinary
    seamen, a chief engineer, a first engineer, a second engineer, a third engineer, a few ETOs, a
    couple of electricians, a couple of motormen, a couple of rig mechanics, a chief steward, some
    food-preparation employees (such as stewards, bakers, and cooks), a rig superintendant, a
    toolpusher, an assistant driller, crane operators, and others.
    8
    conversion to familiarize themselves with the vessel.” Although the crew was
    “assisting with some of the work being done on the conversion,” a lot of what the
    crew was doing was familiarizing itself with the Helix 534 because Helix was “not
    going to assign a green crew to a boat they’ve never been on and tell them to go to
    work.”
    Ultimately, Helix realized that the conversion project would take more time
    and cost more money than expected. The project took about twenty months and
    cost $115 million. Shropshire testified that the initial estimated cost had been less
    than $115 million. He was not certain if it was “80 million, 50 million, 60
    million,” although it would not have been as low as $15 million. The conversion
    took longer than anticipated because additional work was required, there was
    trouble getting some parts, and there were “labor issues.”6
    Shropshire testified that during Gold’s employment, the Helix 534 lacked
    self-propulsion, although Shropshire did not know “one way or the other” whether
    the Helix 534 was practically capable of transportation on water “at all times”
    during the renovation. Gold testified that the ship had engines, but they were not
    working. Shropshire testified that the Helix 534 was dry-docked at the Jurong
    Shipyard. Gold testified similarly that the ship was in dry dock the entire time
    Gold was aboard the Helix 534, but he testified also that he was not aboard the
    Helix 534 when it was on blocks. According to Gold, the ship was “tied up” and
    6
    In its motion for summary judgment, Helix included a list of about 30 items that were
    repaired “and/or” replaced or overhauled, citing to Shropshire’s affidavit. Shropshire testified by
    his affidavit, “The repair and/or replacement list contained within Defendants’ Motion for
    Summary Judgment is accurate . . . .” This is not proper summary judgment evidence of the
    repairs actually made to the Helix 534. See Quanaim v. Frasco Restaurant & Catering, 
    17 S.W.3d 30
    , 42 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“It is well settled that
    neither the motion for summary judgment, nor the response, even if sworn, is ever proper
    summary judgment proof.”). Even if we were to consider the list as evidence, however, it is not
    dispositive of this appeal.
    9
    “always moored to a dockside” when he was aboard. In September 2013, the
    Helix 534 was dry-towed from Singapore to Galveston for further repairs.
    When confronted with various documents in which Helix referred to the
    Helix 534 as a “vessel,” Shropshire testified, “I think everybody referred to it as a
    vessel.” Shropshire attached images to his affidavit, including pictures of the
    Helix 534 before and after the conversion and several pictures of the propeller of
    the ship while the ship was on blocks. The before and after pictures appear
    respectively as Exhibits A-5 and A-6:7
    7
    See 
    Lozman, 133 S. Ct. at 739
    (holding that a floating house boat was not a vessel and
    referring to a photograph of the craft).
    10
    D.    Analysis
    The summary judgment evidence in this case is not conclusive. On the one
    hand, there is evidence that the Helix 534 was not merely “at anchor, docked for
    loading or unloading, or berthed for minor repairs”—when it would certainly
    remain a vessel. See 
    Stewart, 543 U.S. at 494
    . On the other hand, there is
    evidence that the Helix 534 was not “permanently out of the water” with only a
    “remote possibility that [it] may one day sail again”—when it would certainly not
    be a vessel. See 
    id. Shropshire testified
    that the company believed the repairs
    would be completed a few months after Gold was first injured on the ship, and
    Gold’s injury occurred only a few months after the repairs began. The ship carried
    a full crew on 28-day hitches because there was a significant likelihood that the
    ship would sail again—it was anticipated to sail as early as five months after the
    repairs began.
    11
    Helix points to the lack of self-propulsion and the placement of the Helix
    534 in a dry dock during Gold’s employment, but these factors are not dispositive.
    See 
    Lozman, 133 S. Ct. at 741
    (although relevant, “lack of self-propulsion is not
    dispositive”); 
    Senko, 352 U.S. at 373
    (member of a crew may be covered by the
    Jones Act while the ship is berthed for lengthy repairs even though the ship was
    never in transit during the employee’s tenure); see also The Jefferson, 
    215 U.S. 130
    , 142–43 (1909) (holding that admiralty courts retain jurisdiction over vessels
    undergoing repairs in dry docks; noting that a dry dock “differs from an ordinary
    dock only in the fact that it is smaller, and provided with machinery for pumping
    out the water in order that the vessel may be repaired” (quotation omitted)).
    Although Gold testified that the Helix 534 was in the dry dock when he was
    injured, he also testified that the ship was tied up, moored to a dockside, and not on
    blocks. A reasonable inference from this testimony is that the Helix 534 was in the
    dry dock, but the dock had not yet been emptied of water. The fact that the ship
    was moored the entire time Gold was onboard is also not dispositive. See 
    Senko, 352 U.S. at 373
    (member of a crew of a berthed ship being kept in repair for a
    “lengthy period[]” would “no doubt . . . be covered by the Jones Act during this
    period, even though the ship was never in transit during his employment”).
    Helix also stresses evidence that the repairs to the Helix 534 ultimately took
    about 20 months and cost $115 million.         These may be relevant factors for
    assessing whether a vessel ceases to be a vessel because it is out of navigation for a
    major overhaul. See McKinley v. All Alaskan Seafoods, Inc., 
    980 F.2d 567
    , 568–70
    (9th Cir. 1992) (holding that the “hull of an oil drill ship” being converted into a
    “seagoing fish and crab processing ship” was not in navigation when the employee
    died seventeen months into the renovation project; noting that the hull was
    purchased for $451,000 and cost over $14 million to repair). But here there is also
    12
    evidence that Helix did not anticipate the repairs to be so lengthy and costly. In
    particular, the repairs were estimated initially to take a “relatively short period of
    time for important repairs”—as little as five months. See 
    Chandris, 515 U.S. at 374
    (six months). This evidence helps explain why Helix hired a full crew on 28-
    day hitches to learn the ship and contribute to its function.
    Further, the reasons for the delayed repair schedule included “labor issues”
    and delays in obtaining needed parts. Thus, the length of time for the ultimate
    repair is not necessarily indicative of the scope of the project. See 
    McKinley, 980 F.2d at 568
    (two important factors are the “status of the vessel and the scope of
    work to be completed”). Helix also wrote on its website that the Helix 534 would
    maintain its drilling capabilities and would appear as it always had.            This
    “conversion” could be characterized more as an upgrade compared to the project in
    McKinley, where the hull of a drill ship was entirely repurposed into a seafood
    processing ship. Related to the scope of the repair, in McKinley the cost of the
    major overhaul was more than thirty-one times the value of the original “hull” the
    company had purchased; here, however, the ultimate expenditure was about 1.35
    times the value of the original “drill ship” Helix had purchased, and the initial
    estimate was even lower.
    There is also evidence that “everybody” referred to the Helix 534 as a
    vessel; and it would be reasonable for an observer to do so in light of the pictures
    attached to Shropshire’s affidavit, including Exhibit A-5 above. A reasonable
    observer, looking particularly to the physical characteristics of the Helix 534, could
    “consider it designed to a practical degree for carrying people or things over
    water.” See 
    Lozman, 133 S. Ct. at 741
    . The Helix 534 did not appear to be the
    type of watercraft that courts have held to be non-vessels as a matter of law. See
    
    id. (houseboat that
    had been moved several times by tow but was not designed for
    13
    transportation); 
    Stewart, 543 U.S. at 493
    –94 (collecting cases; noting that a dry
    dock was not a vessel because it was a fixed structure and permanently moored for
    twenty years; a wharfboat was not a vessel because it had a permanent location and
    was secured by cables to land with water, electricity, and telephone lines running
    from land to the boat; a floating casino was not a vessel because it was moored to
    the shore in a semi-permanent or indefinite manner; and a floating processing plant
    was not a vessel because a large opening had been cut into the hull, rendering the
    craft incapable of moving over water).
    Unlike the repairman injured in Helix’s cited authority, West v. United
    States, Gold was not a land-based worker hired by an independent contractor to
    make a ship seaworthy after it had been totally deactivated for several years. See
    
    361 U.S. 118
    , 120–22 (1959) (holding that ship owner made no warranty of
    seaworthiness to the land-based repairman). Similarly, Helix relies on Wixom v.
    Boland Marine & Manufacturing Co., but the ship in that case had been
    undergoing repairs for nearly two years before the plaintiff’s injury; the ship had
    no captain or crew; and the responsibility of the ship was vested entirely in the
    plaintiff’s employer, which was a third-party contractor and not the owner of the
    ship. See 
    614 F.2d 956
    , 956–57 (5th Cir. 1980). The Helix 534, on the other hand,
    was only undergoing repairs for a few months at the time of Gold’s initial injury in
    December 2012 (and repairs were not expected to take much longer); the ship had
    a full crew and a captain working 28-day hitches; and there is some evidence that
    Helix remained in ultimate control of the ship through several of its vice
    presidents.
    Helix also relies on the Fifth Circuit’s divided opinion in Cain v.
    Transocean Offshore USA, Inc., where the court held that Stewart did not apply to
    the separate question of whether a structure under construction can ever be a
    14
    vessel. See 
    518 F.3d 295
    , 303 (5th Cir. 2008). That is, Stewart’s treatment of the
    “in navigation” requirement as merely “relevant” for determining vessel status did
    not apply to the question of “when a vessel-to-be becomes a vessel.” 
    Id. Here, however,
    Helix concedes that the Helix 534 was a traditional seagoing vessel
    before undergoing repairs at the Jurong Shipyard.8                 To prevail on summary
    judgment, therefore, Helix had to establish conclusively that the Helix 534 was not
    a vessel in navigation at the time of Gold’s injuries.                   But Helix did not
    conclusively prove that the Helix was totally deactivated or out of service for an
    extended period of time before Gold’s injury. Accordingly, we think this issue
    should be decided by a fact finder under the totality of the evidence presented.
    See, e.g., 
    Chandris, 515 U.S. at 373
    (“[U]underlying inquiry whether a vessel is or
    is not ‘in navigation’ for Jones Act purposes is a fact-intensive question that is
    normally for the jury and not the court to decide.”).
    We hold that Helix failed to conclusively prove that the Helix 534 was not a
    vessel in navigation for purposes of Gold’s claims. A reasonable fact-finder could
    determine, based on the Helix 534’s physical characteristics and activities, that the
    ship was designed to a practical degree for carrying people or things over water,
    and the Helix 534’s use as a means of transportation on water was a practical
    possibility.
    Gold’s issues are sustained.
    8
    Helix acknowledges in its brief that “the evidence in this case conclusively proves [the
    Helix 534] was a traditional seagoing vessel which, when in service, is designed to move under
    its own propulsion.”
    15
    II.    CONCLUSION
    Having sustained Gold’s issues, we reverse the trial court’s judgment and
    remand for further proceedings consistent with this opinion.
    /s/    Sharon McCally
    Justice
    Panel consists of Justices Jamison, McCally, and Wise.
    16