United States Court of Appeals

Fifth Circuit



## FILED

June 19, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-31420

SETH A. BECKER,

Plaintiff - Intervenor Defendant - Appellee,

v.

TIDEWATER, INC., ET AL.,

Defendants,

TIDEWATER INCORPORATED, TWENTY

GRAND OFFSHORE INCORPORATED,

TIDEWATER MARINE, L.L.C.,

Defendants - Third Party Plaintiffs -

Intervenor Defendants - Appellees -

Appellants,

R & B FALCON DRILLING USA, INC.,

PENTAL INSURANCE COMPANY, LTD.,

CERTAIN UNDERWRITERS AT LLOYD’S

INSURANCE CO.,

Defendants - Appellants,

HYDRA RIG, a division of Tuboscope Vetco

International, L.P.,

Defendant - Third Party Defendant -

Third Party Plaintiff - Appellee,

HYDRADYNE HYDRAULICS, INC.,

Defendant - Third Party Defendant -

Appellee,

v.

COFLEXIP STENA OFFSHORE, INC.,

Defendant - Third Party Defendant2 Appellee,

v.

BAKER HUGHES, INC., BAKER HUGHES

OILFIELD OPERATIONS, INC.,

Defendants - Intervenor Defendants -

Appellants,

and

BAKER OIL TOOLS, INC., a division of

Baker Hughes Oilfield Operations, Inc.,

Defendant - Third Party Defendant -

Intervenor Plaintiff - Third Party Plaintiff -

Appellant,

BAKER OIL TOOLS, a division of Baker

Hughes Oilfield Operations, Inc.,

Third Party Defendant - Appellant.

------------------------------------------------------ Appeals from the United States District Court

for the Western District of Louisiana

------------------------------------------------------

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges

BENAVIDES, Circuit Judge:

Before the Court are a number of issues stemming from the horrific ordeal of Seth A. Becker,

a young man catastrophically injured while at sea on a gravel-packing assignment at an offshore oil

rig. In a lawsuit involving multiple defendant s and causes of action, the jury sitting in the district

court found for plaint iff, awarding him damages in excess of $43 millio n. A number of issues, the

most significant of which being whether plaintiff is a seaman under the Jones Act, 46 U.S.C. app. §

688 (2000), are before this Court on appeal. Because we determine that plaintiff is not a Jones Act1 Baker’s business encompasses providing a broad range of oilfield services and products

to members of the petroleum industry.

3 seaman, it is unnecessary to address all but one of the remaining issues. Accordingly, the matter must

be, and is, remanded to the district court for proceedings not inconsistent with this opinion.

I.

This case concerns injuries sustained while at sea by plaintiff-appellee Seth A. Becker, a 22

year-old who had just finished the fourth year of a five-year program at Montana Tech University,

where he was st u dying mechanical and petroleum engineering. For the summer of 1999, plaintiff

accepted a full-t ime position working for defendant Baker Hughes, Inc. (Baker), as he had done the

previous two summers. 1

Plaint iff’s internship began as the previous two had—plaintiff was assigned to land-based

work. Specifically, Baker had planned that plaintiff engage and gain knowledge in a variety of areas

over the course of the summer, including oil pumping, screen manufacturing for sand control

,

repairing fishing tool s, and, apparently, foremost, learning dir ect ly from Baker’s team of regional

engineers. Of these activities, only the oil pumping assignments implicated vessels and boating. Still,

des p ite Baker’s largely land-based plan for plaint iff, a superior at Baker expressed hopefully that

Baker would “try to get [plaintiff] out on a boat” at some point during the summer. Plaintiff spent

the first two weeks of the internship working on land in Baker’s sho p, performing relatively basic

tasks such as cleaning and checking equipment that had returned from the field. At a later point,

plaint iff was offered the opportuni ty to observe a gravel-packing operati on on a Vastar offshore fixed

platform. Before this trip, plaintiff received some brief offshore safety and training information, which

included videos, personal instructions, a written safety test, and water survival training. On the trip4

to the platform, plaintiff was a passenger, although he engaged in work for Baker upon arriving at

the platform. As plaintiff returned from this trip, Baker det ermined that its technology vessel, the

M/V Republic Tide (“Republic Tide”) needed two workers to replace two members of the requisite

six-person crew who had served at sea for an extended period of time and were in need of time off.

Baker assigned plaint iff to the Republic Tide, instructing him to “learn as much as you can.” Despite

plaint iff’s i nt ern st at us, the record reflects that he filled one of the required six positions on the

Republic Ti de, engaged in real work while onboard, and was treated no differently than the other

workers on the vessel.

The Republic Tide was owned by defendant Tidewater, Inc., but had been time-chartered by

Baker to service oil wells during gravel pack operations. Baker had used Tidewater’s vessel as its

offshore technology pumping vessel since November or December 1998 and had specially modified

it, inst alling tanks, generators, pumps, and a high pressure winch system, which included a hydraulic

power unit, reel, hydraulic piping, 300 feet of 6-1/2-inch steel coflex hose, and various other kinds

of sophisticated equipment. This equipment, which was owned, operated, and maintained by Baker,

permitted Baker to use the Republic Tide fo r high pressure pumping operations competitive with

those of other vessels in the Gulf of Mexico.

For this particular mission on the Republic Tide, Baker scheduled a twelve-hour trip to the

R&B Falcon/Cliffs Rig 153 (“Cliffs Rig 153”), located in the Gulf of Mexico and owned by defendant

Cliffs Drilling Co. and operated by defendant R&B Falcon Drilling USA, Inc. (collectively “Falcon”).

En route to Cliffs Rig 153, the master of the Republic Tide and Tidewater employee, Captain Daniel

Givens, provided plaint iff a mi nimal o rientation, which took no more than fifteen minutes and

consisted only of the general safety instructions—for in st ance, the location of life preservers and5

where to abandon ship.

Things began to go terribly wrong on the first day of the mission. When the Republic Tide

arrived at Cliffs Rig 153, the vessel was unable to drop anchor successfully and therefore its location

had to be maintained using bow-thrusters, a fact of which plaint iff and the other crew members were

not notified. To begin preparing for the gravel pack operation aboard the rig, the Baker employees,

including plaintiff, unwrapped the Republic Tide’s coflex hose and ran it from the Republic Tide to

Cliff s Rig 153. Although the winch system to which the hose was connected had a component

manufacturer-inst alled emergency disconnect function, the manner in which the hose had been

unwrapped would prevent this mechanism from triggering. There was no other way to disconnect

the hose quickly and the record reflects that senior employees of Baker, Tidewater, and Falcon all

recognized this potential danger.

To perform work on the rig, the Baker crew was lift ed in a basket up to the rig floor. Shortly

thereafter, the Republic Tide lost its bow-thrust and it became uncertain how long the vessel could

hold its position. As a result, the coflex hose needed to be disconnected from the rig, and plaintiff

and two other Baker employees were ordered to leave the rig floor and go t o the main deck to

perform this task. As plaintiff attempted to knock the coflex hose’s connections loose, the Republic

Tide began to move.

Second-in-command on the Republic Tide, Captain Steven Lachney, was at the helm as the

vessel drifted. With the stern moored to the rig by two six-inch ropes, Captain Lachney saw the sixinch rope tied to the port stern snap. Without warning anyone, Captain Lachney powered the port

engine in reverse and the starboard engine in forward, causing the six-inch rope tied to the starboard

stern also to snap. This, in turn, caused the Republic Tide to surge away from the rig, jerking the6

coflex hose tight and pinning plaint iff against the catwalk backstop. The Republic Tide continued to

swing in the strong current and the thick coflex hose, which had pinned plaintiff, began sawing

through his legs to the point that they were almost entirely severed from his body. After sustaining

this injury and losing nine pints of bloo d

, plaint iff, who had remained conscious throughout the

ordeal, was evacuated.

Plaint iff spent six weeks in t he ho spit al, where he almost died. The parties stipulated that

plaint iff’s total medical bills—including those incur red during his hospital stay—amounted to

$487,920.48. During the time at the hospital, plaintiff’s legs were amputated below the knee, leaving

a great deal of scar tissue. Furthermore, plaintiff endured bone infections and will require additional

surgeries on his legs, potentially culminating with above-the-knee amputations, which will exacerbate

plaintiff’s condition considerably. As a result of this accident, plaint iff suffers from post-traumatic

stress disorder, chronic pain disorder, depression, low self-este em, phantom pain, stump pain,

neuropsychological, psychological, and emotional problems, short-term memory loss, concentration

problems, sleep disturbances, and permanent brain damage due to his heavy loss of blood after the

accident. Most, if not all, of these debilitations will persist and require ongoing treatment, counseling,

and medication for the remainder of plaint iff’s life, which doctors have projected will last into his

seventies.

Plaint iff subsequently sued Baker pursuant to the Jones Act, 46 U.S.C. app. § 688 and, in the

alternative, the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-

950 (2001). Plaint

iff also filed suit against Tidewater, alleging a negligence claim under general

marit ime law and, in the alternative, under the LHWCA. Plaintiff also claimed that the Republic Tide

was an unseaworthy vessel. Plaint iff further asserted negligence claims under general marit ime law2 At the time the Underwriters filed their motion, evidence had emerged in discovery that

allegedly implicated Tidewater’s gross negligence. Baker opposed the Underwriters’ motion on

the ground that Tidewater’s gross negligence was still a disputed issue of material fact.

7 against Falcon. Tidewater and two of its affiliates then asserted a third-party demand against Baker

for contractual indemnity and defense under a pre-existing blanket charter agreement. Baker opposed

Tidewater’s motion on the ground that the agreement did not contemplate indemnity for Tidewater’s

gross negligence. Prior to the completion of discovery, the district court granted Tidewater’s motion

for summary judgment on its indemnity claim against Baker.

Plaintiff later amended his complaint to add as defendants Tidewater’s underwriters, Pental

Insurance Co. Ltd. and certain underwriters at Lloyd’s (“Underwriters”). The Underwriters crossclaimed and filed a motion for summary judgment against Baker, asserting the same indemnity rights

as Tidewater under the blanket time charter, which motion was granted. 2 Baker also filed a motion

for summary judgment on the issue of plaintiff’s seaman status, which motion was denied.

Notwithstanding the district court’s rulings to the contrary, Baker persisted in its refusal to defend

and indemnify Tidewater and the Underwriters, and continued to fight application of the agreement’s

indemnity clause. Thus, Tidewater defended itself at trial, during which Baker attempted to prove

Tidewater’s gross negligence so as to avoid indemnification.

Faced with indemnifying Tidewater’s liabilit y, Baker filed third-party demands for products

liability against Hydra Rig and Hydradyne Hydraulics for defects in the manufacture of the co flex

hose and reel assembly installed on the Republic Tide. Plaintiff then amended his complaint to assert

similar product liabilit

y claims against these companies, and against Coflexip Stena Offshore, Inc.,

the manufacturer of the coflex hose (collectively, “component manufacturers”).

In the parties’ joint submission of requested jury charges, Baker requested an instruction on8

the issue of gross negligence, which was rejected. Baker also filed a motion asking the district court

to reconsider the summary judgments g rant ed to Tidewater and the Underwriters and urged its

request for a jury charge on gross negligence. Again, this motion was denied. Baker also interposed

a written objection t o t he line of the proposed verdict form allowing the jury to allot a separate

amount of damages for “disfigurement and scarring,” which objection was ultimately denied.

Over the course of trial, a number of other disputes arose, including that conce rning the

testimony of Jamie Parr, Baker’s operations coordi nator

, as a witness for plaintiff’s case-in-chief.

The district court excluded testimony given by Parr as to what plaintiff’s duties would be after the

trip to the Cliffs Rig 153, because Parr admitted that he had no firsthand knowledge about Baker’s

future pl ans fo r plaintiff and also because Parr could not testify with certainty about the scope of

plaint iff’s future duties. Also controversial was the testimony of Captain Ronald Campana, an expert

in vessel operations and boat-handling. The district court refused to allow a porti on of Campana’s

report that Tidew at er’s senior employee, Ronald Frederick, had been “grossly negligent in the

performance of his duties,” because he determined that such a statement invaded the jury’s abilit y to

decide an ultimate issue.

All parties stipulated that plaint iff was an innocent victim and free from all fault. At the close

of plaint iff’s case, Baker moved for judgment as a matter of law o n the issue of plaintiff’s seaman

status, which motion was denied. At the close of all evidence, the court bifurcated the issues. The

jury was asked first to decide whether plaint iff was a seaman under the Jones Act. It determined that

plaint iff indeed was a seaman. Once this threshold determination was made, t he remaining jury

i nstructions regarding liabilit y and damages reflected that plaint iff was a seaman and did no t

contemplate the alternate theories of recovery that plaint iff pled, such as those under the LHWCA.3 The breakdown for general damages was as follows:

—past physical pain and suffering, including

physical disability and impairment, past loss of

enjoyment of life and inconvenience on the

normal pursuits and pleasures of life $5,000,000

—future physical pain and suffering,

including physical disability and impairment,

future loss of enjoyment of life and

the effects of the injuries and inconvenience

on the normal pursuits and pleasures of life $6,000,000

—past mental anguish and suffering,

as well as feelings of economic insecurity

caused by disability $5,000,000

—future mental anguish and suffering,

as well as feelings of economic insecurity

caused by disability $6,000,000

—disfigurement and scarring $7,000,000.

9 The jury then found that Baker was neg ligent under the Jones Act, the Republic Tide was

unseaworthy a nd a substantial cause of plaintiff’s injuries and that Tidewater and Falcon were

negligent under general marit ime law. The jury assigned 65 percent of the fault to Baker, 30 percent

to Tidewater, and 5 percent of Falcon, although the parties were held to be jointly and severally liable.

The jury found further that Coflexip, Hydradyne, and Hydrarig did not manufacturer a defect ive

product and thus bore plaint iff no liabilit y. The court also concluded that these companies were not

liable to Baker.

The jury then awarded plaint iff $29 millio n in general damages, i ncluding $7 million for

disfigurement and scarring. 3 The jury also awarded plaintiff $11 million in future medical and life care

expenses, $3 millio n in future lost wages, and $56,000 in past lost wages. Judgment was entered in

favor of plaint iff on the jury verdict and in favor of Tidewater and the Underwriters on the contractual

indemnity claim. Baker timely moved for a new t rial, o r remittitur, arguing that the district court10

erred in ordering Baker to indemnify Tidewater and the Underwriters, and that the award of damages

was excessive and constituted an abuse of discretion. These motions were denied. The judgment was

later amended to include judicial interest.

Presented for appeal are the following five issues:

(a) whether the di s trict court erred in assigning plaint iff seaman status under the Jones

Act;

(b) whether the district court erred in determining that there was sufficient evidence for

finding Falcon 5 percent liable;

(c) whether the district court erred by not remitting the jury’s damages award;

(d) whether the district court erred by finding no fault in the component manufacturers’

conduct; and

(e) whether the district court erred by determining that Baker must indemnify Tidewater.

II.

A.

The threshold issue brought forth on this appeal is whether plaint iff is a seaman under the

terms of the Jones Act, codified at 46 U.S.C. app. § 688. Specifically, at issue is whether the district

court erred by allowing the jury to decide whether plaint iff is a seaman, and thus entitled to protecti on

under the Jones Act, or whether he is a longshoreman and therefore under the auspices of the

Longshore and Harbor Workers’ Compensation Act (LHWCA), codified at 33 U.S.C. §§ 901-950.

It is well-settled that the Jones Act and the LHWCA are “mutually exclusive compensation regimes.”

Harbor Tug and Barge Co. v. Papai

, 520 U.S. 548, 553 (1997). S ee also Chandris, Inc. v. Latsis

,

515 U.S. 347 , 355-56 (1995). That is, if plaintiff satisfies the criteria for being a seaman, he is

covered by the Jones Act and not the LHWCA; if he does not, he is protected only by the LHWCA.

See id. at 355-58.

Although determination of whether an injured worker is a seaman under the Jones Act is a4 Plaintiff contends that Baker has waived the argument that he is not a seaman as a matter

of law by admitting, in response to plaintiff’s post-trial motion for judgment, that seaman status

was an issue of fact for the jury to determine. Any such statements, however, were uttered after

the district court informed counsel that either it would hold that plaintiff is a seaman as a matter of

law or the issue would go to the jury. After this choice was presented, Baker naturally argued,

for the sake of that argument, that the issue of seaman status was a jury issue. Given this, and the

fact that, with respect to this issue, Baker (i) filed a motion for summary judgment, (ii) moved for

judgment as a matter of law at the close of plaintiff’s case and at the close of all the evidence, and

(iii) moved for judgment notwithstanding the verdict, Baker has preserved this argument. In any

event, this Court is not required to treat any purported concession as binding, and we would

choose not to do so here. See Pool Co. v. Cooper , 2745 F.3d 173, 185 (5th Cir. 2001).

11 mixed question of law and fact and it is usually inappropri at e to take the question from the jury,

judgment as a matter of law is mandated where the facts and the law will reasonably support only one

conclusion. S ee Papai

, 520 U.S. at 554. Here, plaintiff maintains that the issue of his seaman status

was properly given to the jury. On the other hand, Baker asserts that plaintiff, as a matter of law, is

not a seaman under the Jones Act and that plaint iff should be permitted to proceed only under the

LHWCA. 4

A brief summary of the two statutes’ provisions and remedial schemes explains the litigation

posture of the parties, particularly the cross-claims of th e defendants, in this case. The Jones Act

provides a cause of action permitting unlimit ed damages against the neg ligence of a plaintiff’s

employer. Ferguson v. Moore-McCormack Lines , 352 U.S. 521, 522-23 (1957). Specifically, the

act provides that “[a]ny seaman who shall suffer personal injury in the course of his employment

may... maintain an action for damages at law..., and in such action all statutes of the United States

mo difying or extending the common-law r i ght or remedy in cases of personal injury to railway

employees shall apply....” 46 U.S.C. app. § 688(a). A Jones Act seaman may also sue the owner

of any vessel on which he is working for a breach of the warranty of seaworthiness, regardl ess of

whether the vessel is owned by his employer. P arks v. Dowell Div. of Dow Chem. Corp.

, 712 F.2d5 The LHWCA also provides for recovery against a worker’s employer for vessel

negligence if that employer is also deemed to be such. See 33 U.S.C. § 905(b); Jones & Laughlin

Steel Corp. v. Pfeifer , 462 U.S. 523 (1983).

6 Recovery pursuant to general maritime law is available only from defendants outside the

scope of the LHWCA’s statutory scheme. See 33 U.S.C. § 905(b); see also 1 Thomas J.

Schoenbaum, Admiralty and Maritime Law 156 & n.13 (2d ed. 1994) (noting that those covered

by the LHWCA can only use general maritime law for claims against those outside the realm of

the statute).

12 154, 156-58 (5th Cir. 1983). Finally, a Jones Act seaman may also sue t hird part ies for general

maritime law negligence. Usner v. Luckenbach Overseas Corp. , 400 U.S. 494, 498 (1971).

In contrast, the LHWCA provides a cause of action for injuries sustained by a broad range

of land-based marit ime workers, excluding seamen covered by the Jones A ct. See Chandris , 515

U.S. at 356. First, the LHWCA provides a no-fault wo rkers’ compensation scheme against a

worker’s employer for the death or disabilit y of anyone engaged in marit ime employment to receive

medical costs, 33 U.S.C. § 907(a), prejudgment interest, id. § 905, and two-thirds of the worker’s

salary for as long as the disabilit y persists. I

d. § 908(a). Second, the LHWCA permits a restrictive

theory of negligence against a vessel as a third party to recover damages for injuries caused by vessel

negligence. 33 U.S.C. § 905(b). S ee also Scindia Steam Nav. Co., Ltd. v. De Los Santos

, 451 U.S.

156 (1981); Joseph D. Cheavens, Terminal Workers’ Injury and Death Claims , 64 Tulane L. Rev.

361, 364 (1989). 5 An LHWCA plaintiff may also sue nonvessel third parties under general maritime

law tort principles. M

ele rine v. Avondale Shipyards , 659 F.2d 706, 708 (5th Cir. 1981); s ee also

Harrison v. Flota Mercante Grancolombiana, S.A.

, 577 F.2d 968, 977 (5 t h Cir. 1978). 6 An

LHWCA worker, unlike a Jones Act seaman, does not have a cause of action for unseaworthiness.

See 33 U.S.C. § 905(b). See also Cooper Stevedoring Co. v. Fritz Kopke, Inc. , 417 U.S. 106, 113

n.6 (1974) (Under the LH WCA, “an emplo yee injured on a vessel can bring an action against the13

vessel for negligence, but the vessel’s liabilit y will not be based upon the warranty of seaworthiness

or breach thereof.”). Thus, whether plaintiff is a seaman determines which statutory scheme applies

and, ultimately, the degree and extent to which each defendant may be liable.

To determine if an individual worker is a seaman, and therefore entitled to the protecti ons of

the Jones Act, the Supreme Court has established a two-prong test. First, “an employee’s duties must

contribute to the function of the vessel or to the accomplishment of its mission.” C handris

, 515 U.S.

at 368. Second, “a seaman must have a connection to a vessel in navigation (or to an ident ifiable

group of such vessels) that is substantial in terms of both duration and nature.” Id.

The Supreme Court in Chandris admitted that sat isfying the first prong of the test is relatively

easy: the claimant need only show that he “do[es] the ship’s work.” I d. See also In re Endeavor

Marine, Inc.

, 234 F.3d 287, 290 (5th Cir. 2000). This thresho ld requirement is “very broad,”

encom passing “all who work at sea in the service of a ship.” C handris

, 515 U.S. at 368 (internal

citat io ns and quo tation marks omitted). Here, it is clear that plaintiff satisfies this threshold

requirement: he filled one of the Republic Tide ’s crew positions and engaged in the vessel’s work

while on board. Plaintiff, therefore, clears this initial Jones Act hurdle.

Turning to the second prong—whether plaint iff has a connection to a vessel in navigation that

is substantia l both in duration and nature—it is undisputed that the Republic Tide is a vessel in

navigation. The only remaining question, then, is whether plaintiff’s connection to the Republic Tide

is substantial in duration and nature, therefore warranting coverage under the Jones Act. S ee id. Put

differently, whether the jury erred in determining that plaint iff was a seaman turns on whether it had

suffici e nt evidence before it to conclude that plaint iff was substantially connected to the Republic

Tide. The requirement of a substantial connection to a vessel is intended “to separate the sea-based14

m aritime employees who are entitled to Jones Act protecti on from those land-based workers who

have only a transitory or sporadic connection to a vessel in navigation.” I d. A s the Supreme Court

has noted,

the total circumstances of an individual’s employment must be weighed to determine

whether he had a sufficient relati o n t o t he navigation of the vessels and the perils

attendant thereon. The duration of the worker’s connection to a vessel and the nature

of the worker’s activities taken together, determine whether a marit ime 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.

I d. at 370 (internal citations and quotation marks omitted). Importantly, this second prong

constitutes a “status-based ” standard— i .e.

, “it is not the employee’s particular job that is

determinative [of seaman status], but the employee’s connection to a vessel.” I d. at 364. As a result,

the Court speculated that under this standard even a ship repairman, who may know nothing about

boating or sailing, could qualify as a seaman. I d. at 363-64. The Court expounded on this statuscentric language in Papai

, 520 U.S. at 555, noting that it matters whether “the employee’s duties take

him to sea” and that the Jones Act’s coverage is confined to “tho se workers who f ace r egular

exposure to the perils of the sea.” I d. at 560 (emphasis added). By invoking a status-based standard,

the Court rejected, both explicitly and by necessary implication, a so-called “voyage test” in which

“anyone working on board a vessel for the duration of a ‘voyage’ in furt herance of the vessel’s

mission has the necessary employment-related connection to qualify as a seaman.” C handris

, 515

U.S. at 358.

While seaman status is not simply a temporal concept, the amount of time a worker spends

aboard a vessel in navigation is helpful in determining if that worker has attained seaman status. S ee

id. at 371. This circuit has quantified the duration of time necessary to allow submission of the issue7 After Chandris , this circuit reaffirmed the 30-percent rule. In Nunez v. B& B Dredging,

Inc. , 288 F.3d 271, 277 (5th Cir. 2002), it was held that because the plaintiff spent only

approximately 10 percent of his work time aboard a vessel in navigation, he did not qualify for

seaman status as a matter of law.

15 of seaman status to a jury by using a 30 percent rule of thumb. “[A]s a general rule, [a worker] must

show [substantial duration] by demonstrating that 30 percent or more of his time is spent in service

of that vessel.” Roberts v. Cardinal Servs. Inc. , 266 F.3d 363, 375 (5th Cir. 2001). The Supreme

Court endorsed this thirty-percent rule:

Generally, the Fifth Circuit seems to h ave ident ified an appropriate rule of thumb for the

ordinary case: A worker who spends less than about 30 percent of his time in the service of

a vessel in navigation should not qua lify as a seaman under the Jones Act. This figure of

course serves as no more than a guideline established by years of experience, and departure

from it will certainly be justified in appropriate cases.... And where undisputed facts reveal

that a marit ime worker has a clearly inadequate temporal connection to vessels in navigation,

the court may take the question from the jury by granting summary judgment or a directed

verdict.

Chandris

, 515 U.S. at 371. 7 Importantly, the Supreme Court has articulated an exception to temporal

guidelines, such as our thirty-percent benchmark. I d. at 372. First, an employee who has worked

for years in an employer’s shoreside headquarters and who is then reassigned to a ship in a classic

seaman’s job qualifies for seaman status even if he is injured shortly after reassignment. I d. S econd,

a worker who has been reassigned to a land-based job cannot claim seaman status based on prior

service at sea. I

d. T he Court summed up t hese t wo exceptions by noting that “[i]f a maritime

employee receives a new work assignment in which his essential duties are changed, he is entitled to

have the assessment of the substantiality of his vessel-related work made on the basis of his activities

in his new position.” Id. Thus, a worker who, over the course of his employment, has worked in the

service of a vessel in navigation well under thirty percent of his time may st ill qualify for seaman16

status if he has been reassigned to a new position that meets this temporal requirement. See id. It

is this exception that plaintiff now tries to utilize, claiming that his assignment to the Republic Tide

constituted the requisite fundamental change in his status.

This exception, however, creates a potential problem: any worker who works intermittently

on vessels in navigation and who sustains an injury in the course of doing so will claim seaman status

if he is injured while at sea. For instance, a worker whose duties sometimes take him to sea could

claim that the start of each voyage establishes a reassignment to a sea-based position and that his

return to shore again shifts his status back to a land-based worker. It appears that the Supreme Court

attempted to preempt such arguments by specifically rejecting a “voyage test” of seaman status under

which a worker could “walk into and out of coverage in the course of his regular duties.” I d. at 363

(citing Barrett v. Chevron, U.S.A., Inc.

, 781 F.2d 1067, 1075 (5th Cir. 1986)). Rather, the Court’s

opinion in Chandris contemplates that a change in coverage under the Jones Act occurs only when

the status of the worker changes, not simply because a worker happens to serve on a vessel before

returning to work on land. S ee Chandris

, 515 U.S. at 563. Thus, for plaintiff to qualify for the Jones

Act’s protections, he must have undergone a substantial change in status, not simply serve on a boat

sporadically. To give teeth to the C handris opinion’s rejection of a voyage test, it must be held that

merely serving an assignment on a vessel in navigation does not alter a worker’s status. If that were

not the case, Chandris in fact would have established a voyage test. This conclusion is consistent

with the language of Chandris

, which instructs that “we do not believe that any marit ime worker on

a ship at sea as part of his employment is automatically a member of the crew within the meaning of

the statutory scheme.” Id. at 358.

Plaint iff attem

pts to fit himself into the first Chandris exception to the Fifth Circuit’s general8 See Barrett v. Chevron, U.S.A., Inc. , 752 F.2d 129, 132 (5th Cir. 1985) (“An injured

person claiming the benefits of the Jones Act, 46 U.S.C. § 688 (1976), has the burden of

establishing seaman status.”) (citing Bernard v. Binnings Const. Co., Inc. , 741 F.2d 824 (5th Cir.

1984); Billings v. Chevron U.S.A. Inc. , 618 F.2d 1108, 1109 (5th Cir. 1980)).

17 30 percent temporal requirement. As plaintiff bears the burden of proof fo r est ablishing seaman

s tatus, he accordingly must show that he fits within the framework of Chandris

. 8 He argues that

although in the past he did not work on sea vessels at all (let alone for 30 percent of his time), he was

assigned to the Republic Tide and, at that point, underwent a change in status and became a seaman.

If we are to be persuaded by this theory, we would need to conclude that ( i) when plaint iff was

assigned to the Republic Tide, he was removed from his former position of land-based intern and

assigned to a new, sea-based position, (ii) this reassignment permanently changed his status, and (iii)

by serving in this new position, plaintiff would spend at least 30% of his time aboard a vessel.

On this record, the evidence is insufficient for a finder of fact to conclude that plaint iff has

proven his status at Baker fundamentally changed when he was assigned to the Republic Tide. As

such, no reasonable jury could conclude that, under Supreme Court and Fifth Circuit precedent,

plaint iff is a Jones Act seaman. Indeed, the record indicates that the superiors at Baker had planned

that plaint iff would gain exposure to a number of areas over the course of the summer, including oil

pumping, screen manufacturing for sand control, fishing tools, and, apparently foremost, learning

directly from regional engineers. The latter three of these duties, by plaintiff’s own admission, have

nothing to do with being on a vessel in navigation. Furthermore, the t estimony indicates that

plaint iff’s assignment to the Republic Tide was not a fundamental change in status, but rather an

opportunity presented to him during the course of the internship. Indeed, plaintiff testified that his

superiors at Baker “would try to get me out on a boat.” And, when the Republic Tide needed two18

men to replace two other workers who had been working for too many hours, plaint iff was assigned

to fill in, being told to “learn as much as you can.” Thus, the record paints a picture that plaintiff’s

placement onboard the Republic Tide was one of many activities to take place during the course of

the summer. And, while it is impossible to know with complete cert ainty how events would have

unfolded had plaint iff not suffered this terrible accident, there is absolutely no evidence that plaint iff’s

as signment served to alter Baker’s overall plan for him, which comprised land-based work almost

exclusively. Thus, plaintiff cannot carry his burden that he was reassigned from his job as a summer

engineering intern to a regular and continuous sea-based employment position aboard the Republic

Tide.

This conclusion withstands plaint iff’s arguments to t he contrary. In support of plaintiff’s

assertion that he is a seaman, plaint iff notes (1) his participation in an o ffsho re t raining and safety

course, (2) a one-day visit to a Vastar platform, (3) testimony that on his trip to the Falcon rig for

the gravel-pack job he was as much a member of the crew of the Republic Tide as anyone else, and

(4) his work aboard the vessel during the job. None of these arguments furthers plaintiff’s assertion

that his status had changed and that he became a Jones Act seaman. First, evidence that plaintiff was

given training in offshore work and safety is not sufficient to establish seaman status. Even temporary

workers have to be trained if they are expected to assist in the function or mission of the vessel. The

idea that receiving training would create seaman status is inconsistent with the demands of Chandris

,

which holds that merely serving aboard a boa t is not sufficient, in itself, to warrant seaman status.

See Chandris

, 515 U.S. at 361. And, one could contemplate situations in which individuals who are

clearly not seamen—such as observers or guests—aboard a vessel would receive some safety training.

Plaintiff’s receiving safety training is therefore insufficient to establish seaman status.19

Second, plaint iff’s work on the Vast ar platform does not establish seaman status. Fixed

platforms are not vessels, and workers injured on them are covered under the LHWCA, not the Jones

Act. S ee, e.g., Demette v. Falcon Drilling Co.

, 280 F.3d 492 (5th Cir. 2002). Third, testimony that

plaint iff was as much a part of the crew as any other person is insufficient to establish seaman status.

Seaman status does not attach to a worker simply because he is necessary to the vessel’s mission at

the time of injury. S ee Chandris

, 515 U.S. at 358. Chandris holds that temporary workers are not

seamen, although such workers may be treated as regular crew members by their peers. See id.

Finally, the mere fact that plaint iff was ordered to work a crew position aboard the Republic

Tide is not sufficient as a matter of law to establish a subs t ant ial connection to that vessel, absent

evidence that his essential duties as an intern had changed. S ee Chandris

, 515 U.S. at 358 (rejecting

a “voyage test” under which anyone workin g o n bo ard a vessel for the duration of the voyage in

furtherance of the vessel’s mission would have necessary employment-related connection to qualify

as seaman). Indeed, there is no evidence that plaintiff’s planned activities were permanently changed

or that his essential dut ies as an intern had been altered by his assignment to the Republic Tide.

Plaintiff’s mission aboard the Republic Tide was in fact neither planned nor permanent, despite the

fact that he served as a necessary member of the cr ew and engaged in Baker’s work. Rather,

plaintiff’s position on the Republic Tide arose by happenstance, to relieve two weary workers who

needed rest. In light of the work plaintiff performed over his previous summer internships with

Baker, and the work planned for him that summer, plaintiff’s work aboard the Republic Tide does

not constitute the kind of regular or continuous commitment of his labor to the service of that vessel

that regularly exposed him to the perils of the sea within the meaning of Chandris

.

Although it could be argued that plaint iff’s merely being assigne d to the Republic Tide is20

evidence enough from which a reasonable jury could conclude that his status had changed, t his

argument fails for two reasons. First, it is clear from the record that Baker’s plan for plaintiff may

have included his being placed on a boat. Thus, plaintiff’s assignment to the Republic Tide would

not necessitate that the structure of plaint iff’s largely land-based internship had been fundamentally

altered. Second, if plaintiff’s assignment to the Republic Tide constitutes sufficient evidence to

conclude that plaint iff’s status had changed, then the burden of proof would effectively be placed on

defendants to prove that plaint iff would be transferred away from the vessel and that the assignment

was only temporary , rat her t han requiring plaintiff to show that his status had changed. Such an

outcom e would be inconsistent with Barrett

, which assigns the burden of proof to the plaint iff. S ee

Barrett , 752 F.2d at 132.

Finally, this case is clearly distinguishable from our holding in Manuel v. P.A.W. Drilling &

Well Service, Inc.

, 135 F.3d 344, 352 (5th Cir. 1998). In M anuel

, the plaint iff wa s injured while

working full-t ime on defendant’s vessel, as he had done for the duration of his employment with the

def endant. There, the defendant claimed that because it was p ossible that the plaint iff might have

been transferred to a land-based position at some point in the future, he could not be a Jones Act

seaman. We reject ed the defendant’s argument, establishing that merely being “subject to

reassignment [to a non-seaman role or status]... at some later time is of no moment” and does not in

itself defeat a worker’s pr ayer for seam an status. I d. P ut differently, an employer’s claim that an

employee “could have been assigned to other work locations” does not precl ude t hat employ

ee’s

seaman status. I

d. The facts here are distinguishable from those in M anuel

. Here, plaintiff had

engaged, and was scheduled to engage, in primarily land-based activities during the course of his

employment at Baker. In short, plaint iff was a land-based worker who happened to be assigned to9 Also at issue in this appeal is whether the district court properly excluded as speculative

some of the testimony of Jamie Parr, Baker’s operations coordinator, specifically Parr’s claim that

plaintiff’s appointment to the Republic Tide was temporary. In the testimony that was excluded,

Parr explained that workers were assigned to the crew position filled by plaintiff on a rotation

system, and the practice was for them to leave the boat when the job was finished and return to

the district office. It was possible that plaintiff might have been re-assigned to another vessel

later, but only if his name happened to be placed at the top of the rotation schedule. Because Parr

could not say with certainty that plaintiff would not have returned to the vessel in the future and

because Parr could not testify with certainty about the scope of plaintiff’s future duties, the

district court excluded this testimony as speculation.

Plaintiff and Tidewater agree with the district court that this testimony was speculative

because Parr could not testify with absolute certainty whether plaintiff would be sent back on a

vessel or not. On the other hand, Baker notes that testimony about future events is not

inadmissable unless it rises to the level of “dubious projections into the future or questionable

surmises about what might have happened had the facts been different.” 1 McCormick on

Evidence § 185. As the operations coordinator, responsible for assigning workers on the

Republic Tide, Parr would appear to have the requisite knowledge and foundation to testify about

Baker’s scheduling practices. His testimony was relevant and probative evidence under Rule 406,

Fed. R. Evid., bearing on the total circumstances surrounding plaintiff’s employment-connection

to a vessel. Parr’s excluded testimony supports the reasonable inference that plaintiff’s

assignment to the Republic Tide, and to Baker’s fleet generally, was only temporary, and not

substantial in duration, regular, or continuous. Accordingly, it would appear that the district

court should not have excluded such testimony.

We need not find error here, however, because Parr’s excluded testimony tends to prove

that plaintiff is not a seaman. And, as we have concluded that plaintiff is indeed not a seaman,

such excluded testimony becomes superfluous.

21 a mission on a vessel; he was not a sea-based worker, like the plaintiff in M anuel

, whose only

connection to land-based employment was the mere possibility of being transferred to such a position

at an indeterminate future date. 9

Thus, circuit precedent and the Supreme Court’s holdings in C handris and Papai require the

determination that plaint iff is not a seaman as a matter of law under the Jones Act. A reasoned

review of the evidence compels only the conclusion that plaint iff was a land-based worker who had

been assigned to a mission on a vessel at sea. And, merely serving on such a voyage does not warrant

Jones Act protecti on. Reaching this conclusion does not mean that plaintiff was not a valued10 For instance, the LHWCA provides recovery pursuant to a no-fault compensation

scheme against a plaintiff’s employer. See 33 U.S.C. § 901 et seq. Furthermore, as Section

905(b) of the LHWCA permits recovery for vessel negligence, the district court will have to

determine which defendant—or defendants—may be liable under this theory of negligence, rather

than under other negligence doctrines such as that of general maritime law. Note that the

standard of vessel negligence pursuant to Section 905(b) is different from that of negligence under

the general maritime law. See Pimental v. LTD Canadian Pacific Bulk , 965 F.2d 13, 15 (5th Cir.

1992); Melerine v. Avondale Shipyards, Inc. , 659 F.2d 706, 708 (5th Cir. 1981). Moreover, the

LHWCA does not permit recovery based upon the doctrine of unseaworthiness. See 33 U.S.C. §

905(b). See also Cooper Stevedoring Co. v. Fritz Kopke, Inc. , 417 U.S. 106, 113 n.6 (1974).

22 employee who engaged in difficult and, unfortunately, dangerous work. While it is all too apparent

that plaint iff was exposed to the risks of working at sea, our pr ecedent nevertheless instructs that

“[s]eaman status is not coextensive with seaman’s risks.” C handris

, 515 U.S. at 361 (citing Easley

v. Southern Shipbuild ing Corp. , 965 F.2d 1, 4-5 (5th Cir. 1992)). Accordingly, the district court

erred in allowing the issue of plaint iff’s seaman status under the Jones Act go to the jury. Rather,

because plaint iff is not a seaman under the Jones Act, the jury’s finding to the contrary was improper.

B.

The next question, then, is how t o pro ceed after having determined that the district judge

improperly permitted the jury to determine the issue of seaman status. As this matter should have

proceeded as an LHWCA claim, rather than as a Jones Act claim, the district court must reevaluate

plaint iff’s claims in light o f t he rights and remedies available to LHWCA plaintiffs with respect to

both liability and damages, keeping in mind the appropriate theories of recovery and the applicable

standards of negligence. 10 It is, therefore, necessary to vacate the findings of liability against Baker,

Tidewater, and Falc o n, as t he jury’s instructions on liability and damages did not contemplate

plaint iff’s status as an LHWCA worker rather than a Jones Act seaman. Accordingly, this matter

must be remanded for proceedings not inconsistent with this opinion.11 The other three issues on appeal need not be addressed for the following reasons. First,

the issue whether the jury had sufficient evidence to conclude that Falcon was negligent under

general maritime law and therefore 5 percent accountable for plaintiff’s injuries is now moot

because the determination that plaintiff is a seaman was erroneous. Accordingly, Falcon, the

owner of Cliffs Rig 153, may have to be pursued under the terms of Section 905(b) of the

LHWCA for vessel negligence, not under general maritime law. Second, now that it is established

that the LHWCA governs, the question whether Baker must indemnify Tidewater must be

considered anew, as the LHWCA states, inter alia , that an employer, such as Baker, “shall not be

liable to [a] vessel for such damages directly or indirectly and any agreements or warranties to the

contrary shall be void.” 33 U.S.C. § 905(b). See also In re ADM/Grow mark River System, Inc.

, 234 F.3d 881, 889 (5th Cir. 2000). Finally, the question of whether damages should be remitted

is rendered moot as the liability of Baker, Tidewater, and Falcon has been vacated.

23 C.

As the issue of liabilit

y and damages with respect to Baker, Tidewater, and Falcon should be

vacated and remanded to the district court, only one of the remaining four issues on appeal need be

addressed, 11 namely, whether the component manufacturers are liable to Baker. As an initial matter,

it appears that Baker has waived any such claim against these parties. In its brief, Baker attempts to

argue that the district court committed reversible error by refusing to allow expert testimony

regarding design defects. Baker’s brief, ho wever, devotes only one paragraph to the issue and

presents little, if any, in the way of argument. Baker asserts only that the district court’s refusal to

allo w its expert to testify regarding alleged design defects in the reel and hose assembly was

“reversible error,” depriving Baker of “substantial rights as a litigant.” Baker does not cite a single

case in support of its position nor does it set forth the applicable standard of review. Baker’s brief

further provides no discussion explaining why the district court’s determination constitutes reversible

error. Furthermore, Baker does not clarify its claim that it was “deprived of substantial rights as a

litigant,” leaving the component manufacturers—and this Court—to speculate about the nature of

the issues to be addressed. It appears clear that this argument has not been adequately raised and,12 Accordingly, the motion filed by Falcon seeking permission to file a supplemental brief

that pertains to damages issues is dismissed as moot.

24 as such, is deemed waived. S ee Hidden Oaks Ltd. v. City of Austin , 138 F.3d 1036, 1045 (5th Cir.

1998); Melton v. Teac hers Insurance and Annuity Ass’n of America , 114 F.3d 557, 561 (5th Cir.

1997).

III.

Thus, we reverse the district court’s decision allowing the jury to determine whether plaint iff

is a Jones Act seaman and hold that plaint iff is not a seaman as a mat t er of law. Accordingly, we

vacate the findings of liabilit y and damages with respect to Baker, Tidewater, and Falcon and remand

this case to the district court so that the matt er may pro ceed as an LHWCA case in a manner not

inconsistent with this opinion. 12 We affirm the determination that the component manufacturers are

not liable to Baker. These holdings render moot all other remaining issues on appeal.