Revised July 30, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30309

HERMAN FIELDS,

Plaintiff-Appellant,

versus

POOL OFFSHORE, INC.; ET AL.,

Defendants,

POOL COMPANY, incorrectly sued

as Pool Offshore, Inc.,

Defendant-Appellee.

Appeal from the United States District Court for the

Eastern District of Louisiana

July 27, 1999

Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Herman Fields (Fields) brought a seaman’s

complaint for damages in state court, alleging negligence under the

Jones Act, 46 U.S.C. App. § 688, and the general maritime law.

Defen dants-appellees Pool Company (Pool) and Oryx Energy Company

(Oryx) (collectively defendants) removed the case to federal court.2

Fields’ motion to remand was denied, and the district court granted

summary judgment on behalf of Pool (but n ot Oryx). This partial

summary judgment was then certif ied under Rule 54(b) and Fields

appealed. We affirm.

Facts and Proceedings Below

A spar is a nautical structure designed to float with the bulk

of the hull below the waves—something akin to a giant buoy. As

United States petroleum resources have dwindled, innovative

production companies have attempted to expl oit oil and gas

resources in deeper ocean waters. In an attempt to economically

extract petroleum from one of its deep water fields—located in the

Visosca Knoll area of the outer continental shelf about one hundred

miles off the Alabama coast —Oryx decided to design a production

platform based around a spar. Oryx’s Neptune Spar—which is

apparently the fi rst structure of its kind to be deployed off of

our coast—consists of a cylinder with a diameter of seventy-two

feet, and a length of seven hundred f ive feet. The section that

pokes above the surface has a production deck attached to it and

contains crew quarters, bilge pum ps, life boats, and production

facilities.

The Neptune Spar was installed at its current location in the

Visosca Knoll area in September 1996. The Neptune Spar is anchored

above the field’s seven well head s by six chain wire lines which

connect to six pilings driven one hundred eighty feet into the3

seabed. In addition, the structure is further fixed in place by

the network of pipes used to extract and transfer the petroleum.

A casing riser extends from each of the seven well-heads to the

spar, and two pipelines transport the spar’s product away from the

location. The Neptune Spar has no organic means of propulsion. By

tightening and slackening the six chains, the spar can be

maneuvered to p osition it closer to a particular well-head, but

such movement is only possible within a two hundred fifty foot

range. According to affidavits in the record, this is the Neptune

Spar’s initial location and it will remain thus fixed in place

there until the petroleum resources beneath it are exhausted, an

event that is not predicted to occur for at least fifteen years.

Fields was an employee of Pool who worked as a

roughneck/derrickhand on Pool’s p latform drilling “rigs.” These

rigs are packages of drilling equipment that are moved from

location to location as needed. Fields was permanently assigned to

rig no. 908, but when that rig was taken out of service he was

assigned to rig no. 10. Oryx contracted for the services of rig

no. 10, and arranged for its transport to the Neptune Spar. On

February 20, 1997, while working on this rig aboard the Neptune

Spar, a section of the rig unexpectedly struck Fields in the head.

This accident allegedly caused “serious and permanent injuries to”

Fields’ “face, central nervous system and brain

. . . resulting in

his permanent disability.” Fields is a citizen of Mississippi;

Pool is a Texas corporation with its principal place of business in4

Texas; Oryx is a Delaware corporation with its principal place of

business in Texas.

On August 27, 1997, Fields filed the instant seaman’s

complaint in Louisiana state court, alleging negligence and

invoking the Jones Act and the general maritime law. On October 8,

1997, the defendants filed a notice of removal on the basis of

diversity of ci tizenship and, alternatively, under the Outer

Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq

. They

alleged that Fields’ Jones Ac t claim was fraudulently pled to

defeat removal jurisdiction in that Fields was not a Jones Act

seaman and had no substantial connection to any vessel and the

Neptune Spar was a fixed platform, not a vessel. On November 8,

1997, Fields filed a motion to remand, arguing that removal was

precluded by the Jones Act, that Fields was a seaman and that the

Jones Act claim had not been fraudulently pled. S ee 28 U.S.C. §

1445(a). Defendants filed an opposition to the motion on November

25, 1997, and, i n an order dated December 5, 1997, the district

court rejected Fields’ motion to remand, holding that as a matter

of law the Jones Act claim was baseless as Fields was not a seaman

and the Neptune Spar was a fixed platform, not a vessel. On that

same day, Fields filed a motion requesting fifteen days’ leave to

respond to defendants’ response to Fields’ motion to remand. This

motion was dismissed as moot. On December 16, 1997, Pool moved for

summary judgment, arguing that, since Fields was Pool’s employee5

and was n ot a Jones Act seaman and the Neptune Spar was a fixed

platform on the outer continental shelf, OCSLA, 43 U.S.C. §

1333(b), limited Fields’ remedies against Poo l to compensation

under the Longshore and Harbor Workers’ Compensation Act ( LHWCA),

3 3 U.S.C. § 905. Oryx did not join in the motion. Fields

responded by claiming that material facts were in dispute regarding

the Neptune Spar’s potential vessel status and also moving for a

new trial and/or rehearing of the court’s prior determination that

the Neptune Spar was not a vessel as a matter of law. On February

3, 1998, the district court granted summary judgment in favor of

Pool and denied Fields’ motion for new trial or rehearing. Fields

moved for Rule 54(b) judgment on the grant of summary judgment.

The court granted the Rule 54(b) motion, and this appeal followed.

Discussion

Neither below nor on appeal has Fields questioned the removal

on any basis other than that it is assertedly precluded by the

presence of his Jones Act claim. It appears that the diversity of

citizenship and amount in controversy requirements of 28 U.S.C. §

1332(a) are met, and Fields has never contended otherwise. Hence,

as no defenda nt is a citizen of the state in which the suit was

filed, removal on the basis of diversity was proper under 28 U.S.C.

§ 1441(a) & (b) if not barred by the Jones Act claim. Moreover, if

the Jones Act did not preclude re moval, it is also clear that it

would have been proper because of OCSLA, as the district court1 While Fields’ general maritime law cl aim, brought in state

court under the savings to suitors clause, 28 U.S.C. § 1331(1), is

not one which “arise[s] under the Constitution, treaties, or laws

of the United States” for purposes of 28 U.S.C. § 1331 and does

not of itself furnish a basis for removal even though it could have

been filed originally in federal court, nevertheless this does not

preclude removal when there is some basis for original federal

jurisdiction other than admiralty, such as diversity of citizenship

or a statute. S ee Poirrier v. Nicklos Drilling Co

., 648 F.2d 1063,

1066 (5th Cir. 1981); Tennessee Gas Pipeline

, 87 F.3d at 153 & nn.

5 & 6.

6 held. T ennessee Gas Pipeline v. Houston Casualty Insurance Co.

, 87

F.3d 150, 154-56 (5th Cir. 1996). 1

It is settled that as a general rule Jones Act cases are not

removable. B urchette v. Cargill

, 48 F.3d 173, 175 (5th Cir. 1995).

The Jones Act, 46 U.S.C. App. § 688, incorporates general

provisions of the Federal Employers’ Liability Act, and the latter

expressly bars removal of suits thereunder. 28 U.S.C. § 1445(a).

However, a fr audulently pleaded Jones Act claim does not bar

removal. B urchette

, 48 F.3d at 175 (“‘defendants may pierce the

pleadings to show that the Jones Act claim has been fraudulently

pleaded to prevent removal’”, quoting Lackey v. Atlantic Richfield

Co

., 990 F.2d 202, 207 (5th Cir. 1993)). “While we have cautioned

against pretrying a c ase to determine removal jurisdiction,” the

distric t court is authorized “to use a summary judgment-like

procedure for disposing of fraudulent pleading claims.” B urchette

,

48 F.3d at 176. The court may deny remand where, but only where,

it determines, after resolving “all disputed questions of fact and

any ambiguities in the current controlling substantive law in2 An additional basis on which to show fraudulent pleading—that

there has been an outright fraud in the pleading of jurisdictional

facts—is not involved or asserted in this case. S ee Burchette

, 48

F.3d at 176 n.1.

3 In his state court pleading, Fields alleged that at the time

of his injury he “was employed as a roughneck/derrickhand as a

member of the crew of Rig 10, in such a manner as to contribute to

the overall inten ded purpose of said vessel,” refers to “the

vessel, Rig 10,” and then alleges “the aforesaid vessel was in

navigation in the Gulf of Mexico”; the pleading does not allege

7 plaintiff’s favor,” that there is “‘no reasonable basis for

predicting that the plaintiff might establish liability’” under the

Jones Act. Id

. 2

In order to recover under the Jones Act, the plaintiff’s

complained-of injury must have been suffered while he was a seaman

and in the course of his employment. Section 688(a) (authorizing

action by “[a]ny seaman who shall suffer personal injury in the

course of his employment”). In order to be a seaman, an individual

(among other things) “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.” H arbor

Tug and Barge Co. v. Papai

, 117 S.Ct. 1535, 1540 (1997) (quoting

Chandris, In c. v. Latsis , 115 S.Ct. 2172, 2179 (1995) (citations

and internal quotation marks omitted)).

Fields does not dispute that he has no possible Jones Act

claim if the Neptune Spar is not a vessel, and he claims no

substantial connection to anything else which he contends is a

vessel or fleet of vessels. 3 And Fields has never contended thatthat the Neptune Spar was a v essel or even mention it. However,

the undisputed evi dence establishes that Rig 10 was nothing more

than a collection of several separate items of Pool’s drilling

equipment used by it to provide workover and drilling operations on

offshore platforms, and which had, prior to Field s’ injury, been

transported to and assembled on the Neptune Spar. Fields was

injured while on the Neptune Spar utilizing this assembled

equipment. Rig 10 does not even float and cannot move on its own,

and it is obviously not a vessel. Fields’ only argument on appeal

i s that the Neptune Spar is a vessel and furnishes the bas is for

his claim of seaman status.

8 if the district court correctly determined that the Neptune Spar is

not a vessel, it nevertheless erred in granting Pool’s motion for

summary judgment.

A v essel is “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. § 3. In general, the

“greater the structure’s resemblance to conventional seafaring

craft, the greater the odds of securing vessel status”. G remillion

v. Gulf Coast Catering Co. , 904 F.2d 290, 293 (5th Cir. 1990).

Unusual appearance alone will not suffice to preclude vessel

status, however. We have recognized “a variety of special purpose

structures, far removed from the conventional notions of ships and

seagoing barges, to be vessels.” Manuel v. P.A.W. Drilling & Well

Service, Inc. 135 F.3d 344, 348 (5th Cir. 1998). Fields argues

that the Neptune Spar is such a specialized structure, and thus,

interpreting all facts in his favor, must be viewed as a vessel.

Defendants argue, h owever, that the Neptune Spar can only be

characterized as a work platform under our precedent, and thus9

escapes vessel classification.

Courts have long recognized a distinction between “work

platforms” that are designed for primarily stationary residence and

true vessels. S ee Cope v. Vallette Dry-Dock Co. , 7 S.Ct. 336

(1887) (floating dry dock is not a vessel). Looking to the

language of the statute, we have consistently defined vessel status

in reference to the i mportance of transportation as the craft’s

purpose. M anuel

, 135 F.3d at 348. In particular, we have focused

on three factors when trying to determine whether a structure is a

work platform beyond the realm of the Jones Act. First, we ask

whether the structure was constructed to serve primarily as a work

platform. Second, we look to whether or not the structure was

moored or otherwise secured at the time of the accident. Lastly,

we attempt to ascertain whether the transportation function of the

structure went beyond theoretical mobility and occasional

incidental movement. See Burchett , 48 F.3d at 176.

In applying the three-factor test of work-platform status to

the Neptune Spar, it becomes apparent that it cannot be a vessel.

As the defendants’ affidavits indicated, there are no plans to even

consider moving the Neptune Spar until the current field is

exhausted. While nothing can eve r be certain in the petroleum

industry, the unchallenged prediction of defenda nts is that the

field will remain productive for the next fifteen years. This

distinguishes the Neptune Spar from the types of specialized mobile10

drilling craft that we have previously classified as vessels. As

we have taken care to point out, while such drilling craft may stay

on a particular site, they always move on to the next location when

their work is done. S ee Manuel

, 135 F.3d at 346 (noting that

drilling vessel had been deployed at nineteen different sites over

the course of two years); Columb v. Texaco, Inc.

, 736 F.2d 218, 221

(5th Cir. 1984) (“highly mo bile” submersible drilling barge was

“routinely” refloated and moved to the next location). See also

Blanchard v. Engine and Gas Compressor Services, Inc. , 575 F.2d

1140, 1143 (5th Cir. 1978) (distinguishing work platform from

drilling barge rigs because there was no intention to move

structures “on a regular basis, as is done with submersible

drilling rigs”). Unlike these vessels, the Neptune Spar is

designed not only to discover and open a field, but also to exploit

it—a goal that requires considerably greater co mmitment to a

particular location. Given these undisputed facts, it would seem

readily apparent that the primary, indeed only, purpose of the

Neptune Spar is to serve as a wor k platform in a specific, fixed

location for the foreseeable future.

The work platform status of the Neptune Spar is reinforced by

reference to the second factor. The Neptune Spar was not only

secured to the ocean floor at the tim e of the accident, it was

secured using an elaborate system that guarantees movement will be

a difficult and expensive undertaking. We are not talking about a4 In Hicks

, the structure was sunk by the intake of easilydischargeable water ballast and lacked secure purchase on the sea

floor. Its owners were also somewhat vague about their future

plans to possibly move the structure, admitting at one point that

such a move had been considered. Insofar as the first prong of the

work-platform test is concerned, the indeterminacy of the owners’

intentions in Hicks serves to distinguish it from the case before

us. We also note that two cases have explicitly recognized the

narrowing of Hicks

. S ee Johnson v. Odeco Oil and Gas

, 864 F.2d 40,

43 (5th Cir. 1989) (“ Hicks is no longer the controlling standard”);

Gremillion , 904 F.2d at 294.

11 case in which a structure merely rests on the bottom or is secured

by a run-of-the-mill anchor. Here, the defendants have at

presumably considerable expense sunk massive (180 foot) pilings

into the oce an floor, and attached the spar to these pilings by

means of similarly impressive chain lines. And like its sibling

conventional fixed production platforms, the Neptune Spar is

further anchored in position by the underwater infrastructure of

extraction and exportation pipes that transport the petroleum from

wellhead to the platform and from the platform to the shore. In

this case, the infrastructure consists of two eight-inch pipelines

and seven nine-and-a-half-inch casing risers. This distinguishes

it from other structures whose commitment to a particular location

i s less firmly evidenced by the strength of their physi cal

attachment. Cf. Hicks v. Ocean Drilling and Exploration Co. , 512

F.2d 817, 823-24 (5th Cir. 1975) (evidence sufficient to sustain

jury finding that submersible petroleum storage barge sunk to the

bottom and then connected to nearby platform by pipe and catwalk,

but not in any way affixed into seabed, was a vessel) 4 with12

Bl anchard , 575 F.2d at 1143 (5th Cir. 1978) (compressor building

mounted on submersible barge was distinguishable from structure in

Hicks because barge was anchored with steel cables attached to

fixed piling s); Hemba v. Freeport McMoran Energy Partners, Ltd.

,

811 F.2d 276, 278 (5th Cir. 1987) (rig attached by pilings driven

two hundred feet into the seabed was not a vessel).

Any lingering doubt would seemingly be eradic ated by

examination of the third factor. While the Neptune Spar remains in

its current position, it will have extremely limited and purely

incidental mobility. According to the defendants’ unchallenged

affidavits, the Neptune Spar can be moved by tightening and

slackening the chain line s connected to the pilings. This

procedure is used to place the structur e over one of the site’s

seven closely packed wellheads to perform needed work. Because of

the location of the pilings, however, this movement is limited to

250 feet in any direction. This tightly-constrained range of

motion is not inconsistent with work platform status. S ee

Burchett

, 48 F.3d at 177-78 (loading barge was a work platform

despite the fact it was regularly moved to align itself with boat

receiving goods); Cook v. Belden Concrete Products, Inc.

, 472 F.2d

999, 1002 (5th Cir. 1973) (construction bar ge that was regularly

towed into open water to launch completed craft was not a vessel).

While there remains some theoretical possibility of more lengthy

movement when the current field is exhausted, the mere possibility5 The most com prehensive enunciation of these factors is 1)

intention to move on a regular basis; 2) ability of submerged

structure to be refloated; 3) the length of time the structure has

remained at its current location; 4) the presence of navigational

aids; 5) a raked bow; 6) life-boats and rescue equipment; 7) bilgepumps; 8) crew-quarters; 9) registration as a vessel with the Coast

Guard. See Johnson , 864 F.2d at 43.

13 of movement so many years hence cannot render irrelevant the

structure’s current and long-term immobility.

Under the three-prong test of work-platform status, then, the

Neptune Spar is clearly not a vessel. While we have also

referenced various other factors that might guide the inquiry into

vessel status, 5 we have held that in work platform cases resort to

such an analysis is unnecessary if the three major factors indicate

that the structure is not a vessel. See Burchett , 48 F.3d at 177

(additional factors a re secondary and useful only in determining

close cases). As we have noted, fixed offshore oil

platforms—which obviously are not vessels, s ee Rodrigue v. Aetna

Casualty and Surety Co. , 89 S.Ct. 1835, 1840-43 (1968) (“man-made

islands” not subject to admiralty law)—contain some of these

additional factors such as lifeboats and crew quarters. See

Johnson

, 864 F.2d at 43 (noting factors could not be determinative

since “they routinely exist on structures, such as production

platforms, that are not vessels”). Application of these factors is

unnecessary in this case.

Faced with the above analysis, Fields la rgely relies on two

points. The first is the payment of maintenance to Fields by Pool6 In Savoie

, the plaintiff had worked as a deckhand on the

defendant employer’s vessel on October 21, 1979, and then worked on

his employer’s duck blinds on shore until some seven days later

when he was injured while so engaged. The issue was whether at the

time of the injury he was still a member of the vessel’s crew. The

defendant asserted he was not as it had “discharged” him from the

vessel. We held that the defendant’s payment of maintenance was

admissible to show that the “discharge” was not “intended to fully

terminate Savoie as a Candies seaman, as opposed to being merely a

routine formality when a seaman was temporarily rotated off the

ship and expected to soon return to his duties there in accordance

with normal practice” and that the maintenance “payments tended to

show that Candies regarded Savoie as being a seaman at the time of

the accident, notwithstanding his prior ‘discharge.’” Id . at 367.

No such special relevance is present here.

14 and statements by employees of Pool’s adjusters. Maintenance is a

seaman’s remedy, and in s pecial circumstances the payment of

maintenance may properly be admitted as evidence of seaman status.

See Savoie v. Otto Candies, Inc. , 692 F.2d 363, 367-368 (5th Cir.

1 982). 6 No such circumstances are present here. Moreover, the

payment of maintenance is at most only one factor out of many, see

id. , and cannot by itself justify remand given the clarity of the

Neptune Spar’s work platform status. This is especially so since

the decision to pay maintenance was made by Pool, not Oryx. Pool

does not own or run the Neptune Spar, and whatever inference might

theoretically have arisen had the owner Oryx—presumably intimately

familiar with the nature and purpose of its own

structure —designated maintenance as a remedy is greatly weakened

here. The fact that employees of Pool may have implicitly

classified the Neptune Spar as a vessel is of marginal significance

at the very best.15

Fields also complains that the district court den ied him an

adequate opportunity to respond to defendants’ arguments prior to

its determination that lack of vessel status precluded remand, and

compounded this error by refusing to reconsider that determination

in light of new evidence he presented in his opposition to summary

judgment. In his initial motion for remand, Fields did not submit

any evidence indicating that the Neptune Spar might be a vessel

other than the payment of maintenance and statements by employees

of Pool’s adjusters. In their response, defendants attached

affidavits from employees of Oryx which clearly establish that the

Neptune Spar is not a vessel. Prior to the previously scheduled

hearing date on the motion to remand, Fields did not either submit

a response to defendants’ arguments or request more time to do so.

On the afternoon of the day the district court denied the motion to

remand, Fields requested an extension, which was denied as moot.

Fields later filed a motion for reconsideration, and also

included as exhibits to his motion in opposition to Pool’s motion

for summ ary judgment a variety of print outs— n ot in proper

affidavit form or appropriately authenticated—assertedly taken from

the Internet and from the petroleum industry press in order to

challenge the lower court’s denial of remand. In granting summary

judgment for Pool, the district cour t refused to reconsider its

prior rejection of vessel status in light of this material. Fields

concedes th at these determinations by the district court must be7 In any case, the material hardly advances Fields’ cause. It

confirms that the Neptune Spar will remain at its present location

until the field is exhausted (some fifteen or more years)—the chief

factor precluding vessel status. It also indicates that the Neptune

Spar was transported to its current location in two pieces strapped

aboard a heavy lift ship and assembled on site, a strong indication

that long distance movement of the assembled spar is a difficult

undertaking. Fields also makes a perfunctory challenge to the

district court’s denial of his motion (filed some three weeks after

his notice of appeal) to supplement the record with material not

ther etofore filed with or otherwise before the district court.

Fields failed to enunciate a specific statement of the reasons that

required supplementation. As the district court noted, he thus

failed to comply with Local Rule 26.5.1(e) of the Eastern District

of Louisiana. The denial of the motion was not an abuse of

discretion.

16 reviewed under an abuse of discretion standard. Given the fact

that the only evidence Fields has been able to unearth up to this

point was publicly available and could have been attached to the

initial motion to remand or proffered in the wake of defendants’

response to that motion, we cannot say that the district court

abused its discretion in refusing to consider this tardily and

improperly presented material. 7

The district court thus properly determined that, as a matter

of law, the Neptune Spar is not a vessel. The denial of the motion

to remand and the subsequent grant of summary judgment in favor of

Pool was thus proper.

Conclusion

For the reasons stated, the judgment of the district court is17 AFFIRMED.