Fifth Circuit Applies New Supreme Court “Vessel” Test

Holmes v. Atlantic Sounding Co., Inc., 437 F.3d 441 (5th Cir. 2006)

Tara Hartman, 2L, Stetson University College of Law

In January of 2006, the U.S. Court of Appeals for the Fifth Circuit ruled on whether a barge that acted as a “floating dormitory” could be deemed a vessel, so as to fit within the Jones Act and allow an employee cook to collect damages for an onboard accident.1

Facts
Addie Holmes, a resident of Louisiana, was a cook aboard the BT-213, a 140-foot by 40-foot “floating dormitory” consisting of a large barge “on the deck of which a two-story, 50-bed ‘quarters package’ [was] mounted.”2 The BT-213, which was owned and managed by Weeks Marine Inc. and Atlantic Sounding Company (both of which have their principal place of business in New Jersey), was moved from different locations by tugboats. Once at its destination the BT-213 housed and fed employees who worked on dredging projects at various locations. Although the entire BT-213 crew consisted of only two janitors and two cooks, there was no evidence to suggest the crew was tugged from site to site. The BT-213 had no captain, engineer or deckhand.

Interestingly, the BT-213 had a “raked bow at each end for flotation,” a radio for communication, and water pumps. However, it had never been registered nor inspected by the Coast Guard. Moreover, the BT-213 was never intended to transport passengers or cargo, and no evidence was presented to prove that it was capable of doing so. The specifics of the BT-213’s use were central to the case, as the make-up of the BT-213 determined if it would fit within the definition of a vessel, which in turn would determine whether Holmes had a cause of action.

The incident that led to Holmes’ claim took place on her first day as a cook aboard the BT-213. She alleged that upon boarding the barge and placing her belongings in her assigned locker, a television set, which rested on top of the locker, and the locker itself crashed down upon her. Holmes claimed that she suffered injuries to her neck, shoulders, ears, and nose, and dizziness.

Lawsuit
Holmes sued both Atlantic Sounding and Weeks Marine in the state of Louisiana under the Jones Act.3 The Jones Act gives injured sailors a cause of action against their employers for damages sustained during the course of employment that were caused by the negligence of the captain, a crew member or the ship owner.

Legal Test
To bring a claim under the Jones Act one must prove three elements: (1) the petitioner qualifies as a seaman, (2) the seaman has a connection to the vessel, and (3) the vessel qualifies under the Act. The only legal issue in dispute in this case was the latter, and Atlantic and Weeks had the burden of proving that the BT-213 does not qualify as a vessel under the Jones Act.

The Court’s Analysis
The court began its analysis by recognizing that the term “vessel,” as used for Jones Act purposes, has a broad definition. The court explained that when the status of a craft is ambiguous “it is necessary to focus upon ‘the purpose for which the craft is constructed and the business in which it is engaged.’”4 The court reasoned that the more the craft acts like a conventional seafaring craft, the greater the likelihood that the craft will be classified as a vessel.

The court gave five factors to consider when determining the purpose of a craft: whether the craft was assembled to transport goods, people, or cargo across water; whether a purpose of the craft is service; whether the craft was intended to be moved on a regular basis; how long the craft has remained in one place; and the presence of features that are characteristic of a vessel.

Moreover, the court articulated, the determination of the craft’s transportation purpose is key to the decision as to whether a craft is considered a vessel. If the craft’s main purpose is to transport it is likely to be ruled a vessel, whereas if transportation is a secondary function it will be more difficult for the craft to attain vessel status.5

The next part of the court’s analysis consisted of analyzing a recent Supreme Court decision, Stewart v. Dutra Construction Co.,6 where a longshoreman was injured on a dredge that removed silt from the ocean. The dredge was not capable of self-propulsion (it had to be moved by a tugboat), but had a captain and crew and other vessel-like features. The Supreme Court determined that as long as a watercraft is capable of being used for transportation purposes it qualifies as a vessel. Although the Supreme Court defined the term vessel for the purposes of the Longshore and Harbor Workers’ Compensation Act, it reasoned that the definition would apply to the Jones Act as well.

Stewart has greatly expanded the categorization of watercraft as vessels under the Jones Act. Because the Supreme Court defined the dredge in Stewart as a vessel, this court classified the BT-213 as a vessel as well because it is capable of transporting equipment and possesses other characteristics of a vessel including raked bow, end tanks for flotation, and anchors.7

Conclusion
In light of the Supreme Court’s recent decision in Stewart, and the holding that a watercraft does not have to be capable of self-propulsion to be classified as a vessel, the Fifth Circuit held that the BT-213 barge was a vessel because it was capable of transportation, though not self-propulsion, and had vessel-like characteristics. Accordingly, the court reversed the decision of the district court and remanded the case for a ruling in agreement with its determination that the BT-213 is a vessel.

ENDNOTES
1. This opinion replaces the court’s contrary opinion in Holmes v. Atlantic Sounding Co., 429 F.3d 174 (5th Cir. 2005), which has been withdrawn.
2. Holmes v. Atlantic Sounding Co., 429 F.3d 174 (5th Cir. 2005).
3. 46 App. U.S.C. § 688.
4. Holmes v. Atlantic Sounding Co., 437 F.3d 441, 446 (5th Cir. 2006).
5. The court further explained that three characteristics are usually attributed to nonvessels: the craft has a platform structure primarily to be used for platform work, the craft is stationary at the time of the incident, and any transportation function of the craft is secondary.
6. 543 U.S. 481 (2005).
7. That the BT-213 is incapable of self-propulsion is irrelevant because in Stewart, where the dredge had to be tugged, the Supreme Court held that the fact that a craft is not able to move by itself does not deprive it of vessel status., 429 F.3d 174 (5th Cir. 2005).

University of Mississippi