Butcher v. Superior Offshore International, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2009
No. 09-30211 Charles R. Fulbruge III
Clerk
NOEL BUTCHER,
Plaintiff - Appellee
v.
SUPERIOR OFFSHORE INTERNATIONAL, INC,
Defendant-Third Party Plaintiff - Appellee
v.
OFFSHORE LIFTBOATS, LLC; TRIUMPH MARINE, INC,
Third Party Defendants - Appellants
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-8136
Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Triumph Marine, Inc. and Offshore Liftboats, LLC (collectively “Triumph”)
appeal following the district court’s summary judgment determination that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30211
Plaintiff Noel Butcher is not a Jones Act seaman. For the following reasons, we
AFFIRM:
1. Superior Offshore International challenges Triumph’s standing to
appeal. Its assertion that only a seaman’s employer or personal
representative may appeal in a case involving a determination of Jones
Act seaman status is incorrect. See, e.g., Foulk v. Donjon Marine Co., 144
F.3d 252, 257 (3d Cir. 1998). Triumph’s standing depends on whether it
has suffered an actual or threatened injury that may be redressed on
appeal. See Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 496 (5th
Cir. 2007) (en banc). The district court’s determination that Butcher is not
a Jones Act seaman would implicate operation of the Longshore and
Harbor Workers’ Compensation Act, which in turn could affect Triumph’s
indemnity claims. See 33 U.S.C. § 905(b); cf. Jenkins v. Aries Marine
Corp., 554 F. Supp. 2d 635, 641 (E.D. La. 2008). Triumph therefore has
standing.
2. The district court correctly determined that Butcher’s connection to the
vessel MAGGIE was not substantial in duration and nature. See
Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S. Ct. 2172, 2190 (1995).
Butcher was a painter/blaster. It is undisputed that all of the painting
and blasting work was done on the fixed platform, which is not a vessel.
See Hufnagel v. Omega Servs. Indus., 182 F.3d 340, 347 n.1 (5th Cir.
1999). Although Butcher performed some tasks on board the vessel, such
as occasionally filling paint pots and sweeping sand, the testimony showed
these to be incidental and minor in nature. See id. at 347. Butcher agreed
with counsel’s question that he worked thirty percent of his time on board
the vessel but this included time spent for meals and breaks, which does
not make Butcher a seaman. See id. Furthermore, Butcher’s testimony
describing his daily activity showed that he spent less than thirty percent
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No. 09-30211
of his time actually working on board the MAGGIE. Therefore, he may
not be considered a seaman. See Chandris, 515 U.S. at 371, 115 S. Ct. at
2191.
AFFIRMED.
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