United States Court of Appeals,

Fifth Circuit.

No. 93-4865.

Summary Calendar

Elroy GASPARD, Plaintiff-Appellant,

and

Liberty Mutual Insurance Co., Intervenor-Plaintiff-Appellant,

v.

AMERADA HESS CORP., et al., Defendants,

Amerada Hess Corp. and Owensby & Kritikos, Inc., DefendantsAppellees.

Feb. 7, 1994.

Appeals from the United S tates District Court for the Western

District of Louisiana.

Before WISDOM, JOLLY, and JONES, Circuit Judges.

WISDOM, Circuit Judge.

Plaintiff/a p pellant Elroy Gaspard fell off a wharf while

attempting to board the barge M/V BOB III and was injured. The

question in this case is whether the district court had admiralty

jurisdiction over Gaspard's personal injury claims against the

wharfinger and the wharfinger's agent. The district court

concluded that it had no jurisdiction. We AFFIRM.

I.

Defendant/appellee Amerada Hess Corp. owns the "New Facility",

an oil and gas production facility located on land near Bayou

Gauche, an inland waterway in Louisiana. Amerada Hess hired Meaux

Services, Inc. ("MSI") to sandblast and paint equipment located at

the New Facility. Amerada Hess also hired defendant/appellee

Owensby & Kritikos, Inc. ("O & K"), an independent inspection firm,1 Many of the facts in this section come from the "Statement

of Material Facts as to Which There is No Genuine Issue" filed by

Amerada Hess with its Motion for Summary Judgment in accordance

with Local Rule 2.10 of the Western District of Louisiana.

Gaspard's failure to file a response means that the facts in

Amerada Hess's statement are admitted for purposes of Amerada

Hess's summary judgment motion. Loeber v. Bay Tankers, Inc., 924

F.2d 1340, 1345 (5th Cir.), cert. denied, --- U.S. ----, 112

S.Ct. 78, 116 L.Ed.2d 51 (1991).

2 La.Civ.Code Ann. art. 3492 (West Supp.1993). to supervise the sandblasting and painting. Amerada Hess also

hired Central Gulf Towing, Inc. ("CGT") to charter and tow a barge,

the M/V BOB III, to the New Facility. MSI's workers ate, took rest

breaks, and stored their equipment ab oard the barge during their

work on the New Facility. The BOB III was moored to a wooden

structure at the water's edge which the parties variously describe

as a "retaining wall", a "wharf", and a "bulkhead". There was no

gangplank leading to the barge. A three-foot gap separated the

barge from the wharf. MSI's workers at the New Facility site had

to step across that gap several t imes each day as they moved

equipment to and from the barge.

Plaintiff/appellant Elroy Gaspard worked for MSI as a

"painter's helper". 1 His responsibilities included mixing paint

and retrieving equipment for the painting and sandblasting workers.

He had no training or experience as a seaman.

On May 16, 1989, Gaspard was moving paint cans and other

equipment onto the barge for storage. Gaspard slipped when

attempting to step from the wharf to the barge. He fell from the

wharf to a beam below, striking the barge during his descent, and

injured his shoulder.

Louisiana's one-year statute of limitations for torts 2 passed3 Gaspard's Original Complaint, 1 Rec. 1. Undoubtedly the

availability of a three-year statute of limitations figured

prominently in Gaspard's decision to pursue an admiralty claim.

See 46 U.S.C.App. § 763a; Cooper v. Diamond M Co., 799 F.2d 176,

178 (5th Cir.1986), cert. denied, 481 U.S. 1048, 107 S.Ct. 2177,

95 L.Ed.2d 834 (1987).

4 Gaspard later voluntarily dismissed his claim against

McDonough Marine Service.

5 33 U.S.C. §§ 901-950; see id. § 905(b). without Gaspard filing any lawsuit over his injuries. In a belated

attempt to resurrect his claim, Gaspard filed this lawsuit against

Amerada Hess on June 13, 1991, grounding his claim in "Admiralty

and ... General Maritime Law". 3

Gaspard's simple claim against Amerada Hess soon blossomed to

include numerous other parties and claims. First, Liberty Mutual

Insurance Co., MSI's insurer, filed a plea in intervention naming

Gaspard and Amerada Hess as defendants. Gaspard then twice amended

his complaint to add O & K, CGT, the M/V BOB II I, and McDonough

Marine Service (the owner of the BOB III) 4 as defendants. In his

second amended complaint, Gaspard for the first time invoked the

Longshore and Harbor Workers' Compensation Act (LHWCA). 5 Amerada

Hess cross-claimed against O & K and impleaded MSI, Reliance

Insurance Co. of Illinois (O & K's insurer), and UNI Storebrand

International Insurance A/S (MSI's insurer). After a few months of

discovery and infight ing, Amerada Hess, O & K, and CGT moved for

summary judgment against Gaspard. The district court granted the

motions and entered judgment for Amerada Hess, O & K, and CGT. The

district court held that Gaspard had not pleaded a maritime tort

and that acco rdingly it had no admiralty jurisdiction. Gaspard

appealed to this Court only from the judgments in favor of Amerada6 "Our circuit clearly requires that maritime jurisdiction be

satisfied in addition to establishing a § 905(b) claim". Molett

v. Penrod Drilling Co., 872 F.2d 1221, 1225 (5th Cir.) (per

curiam), reh'g denied, 878 F.2d 829 (5th Cir.), cert. denied, 493

U.S. 1003, 110 S.Ct. 563, 107 L.Ed.2d 558 (1989).

7 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972); see

also Foremost Ins. Co. v. Richardson, 457 U.S. 668, 673-74, 102

S.Ct. 2654, 2657-58, 73 L.Ed.2d 300 approving extension of

Executive Jet beyond the aviation context, reh'g denied, 459 U.S.

899, 103 S.Ct. 198, 74 L.Ed.2d 160 (1982).

8 Executive Jet, 409 U.S. at 268, 93 S.Ct. at 504. Hess and O & K.

II.

The sole issue on this appeal is whether the district court

had subject matter jurisdiction over Gaspard's claim. Gaspard must

show that general maritime jurisdiction exists before the court can

reach the merits of his LHWCA claim. 6

The seminal Supreme Court case on the reach of federal

maritime tort jurisdiction is Executive Jet Aviation, Inc. v. City

of Cleveland. 7 E xecutive Jet established a two-part

"locality-plus-nexus" test for maritime tort jurisdiction. The

tort must have occurred on or over navigable waters, and the wrong

alleged must "bear a significant relationship to trad itional

maritime activity." 8 This Court has elaborated on the second part

of the Executive Jet test by listing four f actors relevant to a

finding of a "significant relationship to traditi onal maritime

activity". These factors are (1) "the functions and roles of the

parties", (2) "the types of vehicles and instrumentalities

involved", (3 ) "the causation and type of injury", and (4)9 Kelly v. Smith, 485 F.2d 520, 525 (5th Cir.), reh'g denied,

486 F.2d 1403 (5th Cir.1973), cert. denied, 416 U.S. 969, 94

S.Ct. 1991, 40 L.Ed.2d 558 (1974); Palmer v. Fayard Moving &

Transp. Corp., 930 F.2d 437, 440 (5th Cir.1991).

10 As used in the Kelly test, "parties" refers to the

entities involved in the accident itself; it is not used in the

legal sense of parties to a lawsuit. Watson v. Massman Constr.

Co., 850 F.2d 219, 221 n. 3 (5th Cir.1988).

11 See, e.g., id. at 222 (no admiralty jurisdiction over

wrongful death claim by a construction worker building a bridge

over the Mississippi River); Molett, 872 F.2d at 1225

(plaintiffs were "land-based construction workers" insufficiently

connected with maritime work to establish maritime nexus).

Gaspard's brief styles him a "longshoreman"; we believe the

facts indicate otherwise. See Herb's Welding, Inc. v. Gray, 470

U.S. 414, 425, 105 S.Ct. 1421, 1428, 84 L.Ed.2d 406 (1985).

12 Woessner v. Johns-Manville Sales Corp., 757 F.2d 634, 644

(5th Cir.1985) (quoting Harville v. Johns-Manville Products

Corp., 731 F.2d 775, 784-85 (11th Cir.1984)); Palmer, 930 F.2d

at 440. "traditional concepts of the role of admiralty law". 9 The parties

in their briefs focus almost exclusively on the "maritime nexus"

r equirement of E

xecutive Jet. We agree that the nexus factor is

dispositive here. Because we conclude that Gaspard has not met the

second part of the Executive Jet test, we need not address the

first.

1. T he Functions and Roles of the Parties. 10 Gaspard was a

painter's helper employed to help paint and sandblast a facility on

land. Amerada Hess, owner of the facility, hired O & K to

supervise the job. None of the parties were engaged in peculiarly

maritime activity at the time of Gaspard's injury. 11 Gaspard's use

of the barge as a storage facility is "connected to maritime

affairs merely because performed aboard ship"; it is not a "task[

] somehow unique to maritime service or work traditionally done by

seamen". 1213 Watson, 850 F.2d at 222.

14 See Watz v. Zapata Off-Shore Co., 431 F.2d 100, 111 n. 14

(5th Cir.1970); Heim v. City of New York, 442 F.Supp. 35

(E.D.N.Y.1977).

15 "[A] court must assess the general features of the type of

incident involved to determine whether such an incident is likely

to disrupt commercial activity". Sisson v. Ruby, 497 U.S. 358,

363, 110 S.Ct. 2892, 2896, 111 L.Ed.2d 292 (1990). 2. T he Types of Vehicles and Instrumentalities Invo lved.

Gaspard's injury occurred while he was attempting to board the

barge M/V BOB III. Gaspard never reached the BOB III; he fell

from the wharf to a beam below. The accident neither began nor

ended on the barge. "This was neither a collision case or one in

which the movement of the barge played any part in the injuries". 13

The BOB III was not being used to ferry cargo, but only as a

storage facility. The involvement of the BOB III here was too

minor to support admiralty jurisdiction under this part of the

Kelly test.

3. T he Causation and Type of Injury. Gaspard fell from a

wharf to a beam. We find nothing uniquely maritime in such an

injury; it is not meaningfully different from a slip-and-fall

injury occurring wholly on land. We have previously indicated that

admiralty jurisdiction will not lie over incidents involving a mere

fall from a dock as is the essence of Gaspard's claim here. 14

4. T raditional Concepts of the Role of Admiralty Law.

Admiralty law has traditionally not concerned itself with

protecting land-based workers on projects adjoining the water. Too

tenuous a con nection exists between Gaspard's injury and any

possible effect on commerce to support admiralty jurisdiction. 1 516 See 5A Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 1350, n. 22 (2d ed. 1990) and cases

cited therein.

17 See Tindall v. United States, 901 F.2d 53, 55 n. 5 (5th

Cir.1990). In sum, we find that the application of the Kelly factors supports

the district court's conclusion that no admiralty j urisdiction

exists in this case.

Because Gaspard 's claim is not within the admiralty

jurisdiction of federal courts, we have no cause to reach the

merits of his claim under the LHWCA. We do not reach the question

whether Amerada Hess, as the owner of the New Facility, owed a duty

to provide a safe means of ingress and egress to the BOB III.

III.

We conclude with a minor procedural observation. The

district court stated that it was granting the defendants' motions

for summary judgment on the basi s that it lacked subject-matter

jurisdiction over this case. We have previously expressed doubt as

to the propriety of summary judgment as a tool for disposing of a

case on jurisdict ional grounds when the district court does not

actually purport to address the merits of the parties ' dispute. 1 6

When, as here, however, the jurisdictional question is inextricably

intertwined with the merits of the dispute, summary judgment on the

merits is an appropriate tool with which to resolve the case. 17

The district court's judgment is AFFIRMED.