### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-31258

LARRY NAQUIN, SR., Plaintiff-Appellee
v. ELEVATING BOATS, L.L.C., Defendant-Appellant

A ppeal from the United States District Court for the Eastern District of Louisiana

Before DAVIS and JONES, Circuit Judges, and MILAZZO, District Judge. * W. EUGENE DAVIS, Circuit Judge: Defendant-Appellant Elevating B oats, LLC ( “EBI”) employed PlaintiffAppellee L arry Naquin, S r . (“Naquin”) as a vessel repair supervisor at its shipyard facility in Houma, Louisiana. After N aquin was severely i njured in an accident in the shipyard, a jury found that EBI was negligent, found that Naquin qualified for seaman stat u s , a n d a w a r d e d h i m money damages under the J o n e s Act. Because the evidence supports the j ury’s d etermination of seaman status and liability, we AFFIRM the district court’s judgment on l iability; because the damages determination was erroneously based upon e motio n al U n i t e d S t a t e s C o u r t o f A p p e a l s

F i f t h C i r c u it 

### F I L E D March 10, 2014 Ly le W . Cay ce Clerk

* D is trict Jud ge of

the Eas tern D is trict of Louis iana, s itting by d es ignation. Case: 12-31258 Document: 00512554952 Page: 1 Date Filed: 03/10/2014No. 12-31258

anguish resulting from the dea t h o f a t hird party, we VACATE the damages award and REMAND for a new trial on damages. I. EBI manufactures, operates, a nd maintains a fleet of specialty lift-boats 1 and marine c ranes out of several Louisiana port facilities. E BI employed Naquin at its s hipyard in Houma, Louisiana, w here he had served as a vessel repair
super v i s o r since 2005. Naquin’s primary r e sponsibility as a vessel repair supervisor was the maintenan ce and repair o f EBI’s fleet o f lift-boat vessels. Ordinarily, N aquin worked a board the lift-boats while they were moored, jacked
up, or docked in EBI’s shipyard canal. Naquin’s spent approximately 70 percent of his total time working a b o a r d t hese vessels, including inspecting t hem for repairs, cleaning t hem, p ainting t h em, replacing defective o r d a maged parts, performing engine repairs, going o n test runs, securing e quipment, and operating the vessel’s m arine cranes and j ack-up legs. Two to three t i m es p er week, Naquin would d o his work while th e v e s s e l w as being moved to another position in the canal. Occasionally, EBI dispatched Naquin to repair a vessel or fill in as a vessel crane operator while the vessel was operating in open water. Naquin spent the remaining 30 percent of his time working in the shipyard’s fabrication shop or operating the shipyard’s LC-400 land-based crane. On November 17, 2009, Naquin was u sing t he s hipyard crane, which had been designed and constructe d b y E B I, to relocate a test-block, a heavy iron weight u sed to te s t t h e l i f ting capacity o f cranes. Although t he test-block was well within the LC-400’s rated c apacity, t h e crane suddenly f ailed, causing the boom and crane house to separate from the crane pedestal. As the c rane toppled

1 A lif t- boat is a s e l f

- prop elled , s elf

- elevating, of f s hore s up p ly v es s el. Although it f unctions and navigates m uch lik e any other s up p ly ves s el, a typ ical lif t- boat is equip p ed w ith three colum n- lik e legs that can be quick ly low ered to the s eaf loor to rais e the v es s el out of the
w ater and s tabilize it f or m arine op erations

. 2 Case: 12-31258 Document: 00512554952 Page: 2 Date Filed: 03/10/2014No. 12-31258

over onto a nearby building, Naquin was able to jump from the crane h o u s e . However, he did not avoid injury; h e s ustained a b roken l e f t foot, a severely broken right foot, and a lower a bdominal hernia. Naqui n ’ s c o u s i n ’ s h u sband, who happened to be another EBI employe e , was working in t he building a nd was crushed by the c rane and killed. Naquin l earned of his d e a th w hile in the hospital after the accident, either later that same day or the next day. 2 Following the accident, Naquin underwent one surgery for his hernia and

o n e surgery to repair his right foot. Because Naquin’s right f oot was fra c t u r e d in several places, a plate and screws w ere required to repair the d amage. Despite Naquin’s reparative surgeries and 70 physical t herapy s essions, h e was not able to return to physical work. EBI subsequently offered Naquin a “desk job” at the shipyard, but he declined, asserting that he was too emotionally upset to return to work. Although Naquin’s m edical treatment had ceased, at the t ime of trial, he continued to c omplain of chronic p a in in his feet, difficulty walking, and chronic depression. In November 2010, N aquin filed t he instant Jones A ct suit, a lleging that EBI w as negl i g e n t in t he construction a nd/or maintenance of the LC-400 shipyard crane. After a three-day t rial, a j u r y concluded that Naquin was a Jones Act seaman and that EBI’s negligence caused h is injury. The jury awarded Naquin $1,000,000 for p ast and future physical pain and suffering, $1,000,000 for past and future m e n tal pain and suffering, and $400,000 f or f uture lost wages. EBI immediately filed motions requesting a judgment a s a matter of law,

a new trial, a n ew trial on damages, a nd r e mittitur. T he d istrict court denied all of EBI’s motions, and EBI now appeals.

2 D uring his tes tim ony on d irect exam ination, N aquin s tated that p aram ed ics told him im m e d i a t e l y af

ter the accid ent that the w ork ers in the build ing w ere “d oing all right. ” H e continued to s ay that he thought the inf or m a t i o n regard ing their injuries , s p ecif ically the d eath of his cous in’s hus band , w as k ep t f rom him “f

or [ his ] ow n good

. ” 3 Case: 12-31258 Document: 00512554952 Page: 3 Date Filed: 03/10/2014No. 12-31258 I I. “The determination of whether an injured worker is a seaman under the Jones Act is a mixed q uestion of l aw and fact and it i s u sually inappropriate to take t h e q u estion from t he jury.” 3 Accordingly, we will not disturb a jury’s finding of seaman status u nless the facts a nd t he law do not “reasonably support” its conclusion. 4 Conversely, the appropriate standard of review to test a jury’s factual findings is whether there is “reasonable evidentiary basis for the jury’s verdict.” 5 We therefore review the e v idence “ in the light most favorable to the verdict. ‘Only w hen there is a complete absence of p r o b a t i v e facts to support the conclusion reached d oe s a reversible error appear.’” 6 As always, conclusions of law are reviewed de novo. III. O n a p p eal, EBI c hallenges multiple legal conclusions a nd factual determinations of the district court. We now a ddress, in order, EBI’s contentions (1) that Naquin was not a Jones Act seaman, (2) that the district court p rovided the jury with e r r o n e o us seaman status instructions, (3) that the evidence is insufficient to establish EBI’s negligence, and (4) t hat the district court erred by admitting evidence of N aquin’s rela tive’s death to s upport Naquin’s emotional damages claim. A. EBI first a rgues that the jury e rred in its determination that Naquin was
a seaman entitled to J ones Act coverage. Specifically, EBI argues that because

3 Becker v. Ti dew ater, Inc

. , 335 F. 3d 376, 386 ( 5th Cir. 2003)

.
4 See i d

.
5 See Loehr v . O

ff shore Logi si ti cs, Inc

. , 691 F

. 2d 758, 760 (5th C ir. 1982)

.
6 H uf f m a n v . U

ni on Pa ci f

i c R. R. , 675 F .3d 412, 425 ( 5th C ir. 2012) ( citation om itted )

.

4 Case: 12-31258 Document: 00512554952 Page: 4 Date Filed: 03/10/2014No. 12-31258

Naquin is a land-based ship-re p a i r m a n , he is not c onnected to vessels in navigation and cannot qualify as a seaman. In support of its argument that Naquin is not a seaman, EBI primarily argues that Naquin is a land-based r epairman who performs classic land-based harbor worker duties. As EBI points out, the J ones Act’s land-based worker counterpart, the Longshore a nd H a r b o r Worker’s Compensation Act (“LHWCA”) expressly identifies “ship repairm[e]n” a s subject to its coverage. 7 Because the LHWCA and Jones Act a re mutu a l l y exclusive compensation schemes, EBI argues, Naquin’s coverage under the LHWCA p recludes his coverage under the Jones Act. A few years ago we agreed with EBI’s position. 8 However, the Supr e m e Court rejected this position and overruled our d ecision in Pizzotolo i n Southwest Marine, Inc. v. G i zoni

. 9 There, the Court clarified that the Jones Act covers any

w o r k er who qualifies as a “seaman,” without regard to whether a worker m a y also q ualify for coverage under the LHWCA. 1 0 This i s true even i n the c ase where

a worker’s job is specifically identified f or coverage under the LHWCA. 1 1 Thus, the fact that Naquin performed ship repair d uties ( identified as covered by the LHWCA) cannot distract us from t h e threshold inquiry: whether Naquin first qualifies as a seaman. 1 2

7 See 33 U

. S. C

. § 902( 3)

.
8 See Pi z z i tol o v . El ectro- Coa l Tra nsf er Corp

. , 812 F. 2d 977, 982–84 ( 5th C ir. 1987)

.
9 502 U

. S. 81, 87–88 (1991)

.
1 0 See i d

.
1 1 See In re Endea v or M a ri ne Inc

. , 234 F. 3d 287, 291 ( 5th Cir. 2000)

.
1 2 See i d. ( “[ E] ven a s hip rep airm an ( w hich is trad itional longs horem an work and is one of the enum erated occup ations und er the L H WCA) m ay qualif y f or s eam an s tatus if he has the requis ite em p loym ent- related connection to the ves s el. ”)

. 5 Case: 12-31258 Document: 00512554952 Page: 5 Date Filed: 03/10/2014No. 12-31258

Though the J ones Act does not define “seaman,” Congress has elsewhere defined it as the “ m a s t e r or member of a crew of any vessel.” 1 3 To determine if

a worker i s a seaman or member of a v essel’s crew, the Supreme Court has established a two-prong t est: “ First, ‘an employee’s duties m ust contribute to the function of the vessel o r to the accomplishment of its mission.’ Second, ‘a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels ) t h a t is substantial in terms of both duration a nd nature.’” 1 4 Importantly, an individual can still qualify for s eaman status even i f he divides h i s time among multiple vessels under common ownership or control. 15 T h e relevant question is whether, in the course of his c u rrent job, he substantially contributes to the ve s s e l s ’ f u n c t i o ns and m aintains a s ubstantial connection with the fleet. 1 6 “[S]atisfying the firs t p r o n g of the [seaman] test is r e latively easy: the claimant need only show that he does the s hip’s work.” 1 7 U n der this s t a n d ard, there can b e little d oubt that Naquin did the s hip’s work and contributed to the function of EBI’s v essels. As EBI concedes, Naquin spent the majority of his time repairing, cleaning, painting, and maintaining t he 26–30 l i ft-boat vessels th at EBI operated out of the Houma shipyard. Moreover, the remainder of Naquin’s hours aboard EBI l ift-boats was spent operating t he m arine crane and securing

1 3 S ee Cha ndri s v . L a tsi s , 515 U

. S. 347, 355–56 ( 1995) ; 33 U

. S. C

. § 902( 3) ( G )

.
1 4 B ecker , 335 F. 3d at 387 ( quoting Cha ndri s , 515 U

. S. at 368)

.
1 5 See H a rbor Tug & Ba rge Co. v . P a p a i , 520 U

. S. 548, 558 ( 1997)

.
1 6 S ee id. ; Bertra nd v . I nt’l M oori ng & M

ari ne, Inc

. , 700 F. 2d 240, 245–46 ( 5 t h Cir. 1983)

.
1 7 B ecker , 335 F. 3d at 387–88 ( internal quotation m ark s and citation om itted )

. 6 Case: 12-31258 Document: 00512554952 Page: 6 Date Filed: 03/10/2014No. 12-31258

the deck for voyage. Equipment operators a nd mechanics performing such tasks are necessary to the function and operation of any vessel. 1 8 Turning t o the s econd p rong of the seaman test, Naquin i s only eligible for Jones Act coverage if his connection to the EBI l i ft-boat fleet is “substantial in terms of both duration and n a ture.” 1 9 As the S upreme Court has explained, the fundamental purpose o f the substantial connection requirement is “ to separate the sea-based maritime employees who a re entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to

a vessel in navigation, and t h e r e f o r e whose employment does not regularly
expose them to the perils of the sea.” 2 0 Thus, a w orker seeking se a m a n s t a tus must separately d emonst r ate that his connection to a vessel or fleet o f vessels is, t emporally, more than fleeting, and, substantively, mor e t han incidental. 2 1 These inquiries are not always d i s t i n c t , but are i n t errelated e lements of the same substantial connection requirement. 2 2 W e i ghing in on the durational aspect o f t h e v e s s e l

- c o n n e c t i o n r e q u i r e m e n t , the Supreme Court has endorsed this Court’s general rule of thumb:“A worker

w ho spends l ess than about 30 percent of his time in the service of a v essel i n

1 8 See, e. g. , id. at 388. See a l so Endea v or Ma ri ne Inc

. , 234 F. 3d at 291 ( f ind ing barge crane op erator to be a s eam an, becaus e “even a s hip rep airm an ( w h i c h is trad itional longs horem an w ork and is one of the enum erated occup ations und er the LH WCA) may qualif y f o r s e a m a n s tatus if he has the requis ite em p loym ent- related connection to the ves s el. ”) ; Boa tel , Inc. v . D el a m ore , 379 F. 2d 850, 853–54, 859 ( 5th Cir. 1967) ( f ind ing d ies el “m otorm an” to be a s eam an) ; a nd B ra ni f f v . Ja ckson A v e. - G retna Ferry, Inc

. , 280 F. 2d 523 ( 5th C ir. 1960) ( f ind ing f erry’s m aintenance s up erintend ent to be a s eam an)

.
1 9 See Cha ndri s , 515 U

. S. at 368.

2 0 Id

.
2 1 See i d

. at 369–71.

2 2 S ee i d

. 7 Case: 12-31258 Document: 00512554952 Page: 7 Date Filed: 03/10/2014No. 12-31258

n a vigation s hould not qualify as a seaman under the Jones Act.” 2 3 “ I n d e e d , application of t he 3 0 p e r c ent test is the very means by which a substantial temporal connection i s determined, regardless w hether a single vessel or group of vessels is at issue.” 2 4 In the instant case, Naquin s pe n t a p p r oximately 70 percent of his time r epairing and operating c ranes and o ther equipment on EBI’s fleet o f lift-boats. The e v i d e nce therefore clearly s upported the j ury’s implicit finding that Naquin h ad a c onnection to the EBI f leet that was s ubstantial in terms of duration. 2 5 Although vessel repair is classic seaman’s work, EBI a rgues that Naquin does not qualify as a seaman because his duties do not “regularly expose[ him] to the perils o f t he sea.” 2 6 T he purpose of this requirement is t o d i stinguish b e t w e e n land-based w o r kers who d o not f ace maritime dangers a nd the se a based workers who do face those dangers. 2 7 To support its argumen t t h a t Naquin was not sufficiently exposed to maritime perils to m erit seaman s tatus, EBI emphasizes that Naquin was rarely required to spend the night a board a vessel, tha t t h e v e s s els he worked upon
we r e o r d i narily d ocked, and t hat he almost never ventured b eyond the immediate canal area or o nto the open sea. However, c ourts have c onsistently rejected t he categorical assertion that workers who spend t heir t i me aboard vessels near t he shore d o not face maritime perils. W hile these near-shore workers may face fewer risks, they still remain e xposed t o the perils of a

2 3 See i d

. at 371.

2 4 Roberts v. Ca rdi na l Serv s. , Inc. , 266 F. 3d 368, 376 ( 5th Cir. 2011)

.
2 5 S ee Endea v or M

a ri ne , 234 F. 3d at 291.

2 6 See i d

. at 292.

2 7 See Pa pa i , 520 U. S. at 560. 8 Case: 12-31258 Document: 00512554952 Page: 8 Date Filed: 03/10/2014No. 12-31258

maritime work environment. 2 8 As the Supreme Court explained in Stewart v. Dutra : [I]t seems a stretch of the imagination to class the deck hands of a mud d r e d g e in the q uiet w aters o f a Potomac creek w ith the bold a nd skillful mariners who breast the a ngry w a ves of the Atlantic ; but such and so far-reaching are the principles which underlie the jurisdiction of the courts of admiralty that they adapt themselves to all the new kinds of property and new s e t s of operatives and new conditions which a r e brought i nto existence in the p rogress of t h e world. 2 9

T h i s c o u r t ’ s decision in Endeavor Marine is particular l y i n s t r u c t i v e . T h e r e , we considered whether a derrick barge crane operator had t h e r e quisite connection t o a v e ssel that w a s s u b stantial in t erms of nature. 3 0 The crane operator worked exclusively on a stationary crane barge used to load and unload carg o a t a M i s s issippi R iver dock facility. 3 1 He w as rarely required to board a moving vessel and he never traveled beyond the i m m ediate dock area. 3 2 Moreover, his primary jo b w a s t o operate the crane o n the barge and to repair and maintain the equipment on the barge. 3 3 The district c o urt found the employee’s connection to the b arge was n ot substantial in nature because “it did not take him to sea. His work brought him aboard t h e barge only a fter the vessel

2 8 See Stew a rt v . Dutra Constr. Co. , 543 U

. S. 481, 497 ( 2005) ; Endea v or M a ri ne , 234 F

. 3 d a t 2 9 1

. S ee a l so G ra b v . Boh Bros. Constr. Co. , L

. L. C

. , 506 F. Ap p ’x 271, 276 ( 5th C i r . 2013) ( unp ublis hed ) ( “[ T] he f act that [ the injured em p loyee] returned hom e d a i l y d i d not rem ove him f

rom his exp os ure to cognizable dangers of the s ea. ”)

.
2 9 543 U

. S. at 497 ( internal citation om itted )

.
3 0 234 F. 3d 287.

3 1 Id

. at 289.

3 2 Id

.
3 3 Id

. at 292 n. 4. 9 Case: 12-31258 Document: 00512554952 Page: 9 Date Filed: 03/10/2014No. 12-31258

w a s m oored or in the process of mooring.” 3 4 We reversed. Despite the fact that the crane operator was not literally “taken to sea” and did not face some of the maritime d angers faced by seamen on movin g v e ssels i n the open sea, we still concluded that h e w a s regularly exposed to the perils of the sea a nd qualified as
a seaman. 3 5 We see no basis to distinguish Endeavor Marine from t he instant case. 3 6 Like the crane operator i n that case, N a q uin’s primary job duties were performed doing the ship’s w ork o n vessels docked or at a n c h or in navigable water. In d oing this work, Naquin faced precisely the s ame type a nd degree of maritime perils f

a c e d b y the p ort-bound derrick barge c rane o perator in Endeavor Marine

. Additionally, we h ave dozens of cases finding oilfield workers and other “brown-water” workers on drilling barges a nd other vessels qualified

as seamen even t hough they s pent all t heir work time on these v e s s els

s ubmerged in quiet inland canals a nd w aterways. 3 7 Accordingly, we conc l u d e

3 4 Id. at 291.

3 5 Id

. at 292.

3 6 In Endea vor M

a ri ne the em p loyee s uf f ered his injury w hile w ork ing aboard a ves s el,
w h e r e as N aquin w as injured as he p erf orm ed land

- bas ed d uties

. This d is tinction is n o t r e l evant to our analys is of w hether N aquin qualif ies as a Jones Act s eam an becaus e t h a t inquiry is s tatus

- bas ed , and d oes not f ocus s olely up on the em p loyee’s activity at the tim e of the injury. See Cha ndri s , 515 U

. S. at 361 ( “It is theref ore w ell s ettled

. . . that the Jones Act inquiry is f

und am entally s tatus bas ed : Land

- bas ed maritim e w ork ers d o not becom e s eam en becaus e they hap p en to be w ork ing on board a ves s el w hen they are injured , and s eam en d o not los e Jones Act p rotection w hen the cours e of their s ervice to a ves s el [ or group of ves s els ] tak es them as hore. ”)

.

3 7 See, e. g. , Producers Dri l l i ng Co. v . G r a y , 3 6 1 F. 2d 432 ( 5th Cir. 1966) ( em p loyee p erf orm ed m aintenance work on s ubm ers ible d rilling barge in a navigable canal) ; C ol om b v . Texa co, Inc. , 736 F

. 2d 218 ( 5th Cir. 1984) ( em p loyee w ork ed aboard inland s ubm ers ible barge at the end of a canal of f inland w at ers w hich w ere eight f eet d eep ) ; La ndry v . A moco Producti on Co. , 595 F .2d 1070 ( 5th Cir. 1979) ( em p loyee w as a rous tabout w ho w ork ed aboard barges in inland w aters and m ars hes ) ; G ra b v. Boh Bros. Const. Co. , LLC , 5 0 6 F. A p p ’x 271 ( 5th Cir. 2013) ( p er curiam ) ( unp ublis hed ) ( em p loyees w ork ed aboard a crane barge in Lak e Ponchartrain. 10 Case: 12-31258 Document: 00512554952 Page: 10 Date Filed: 03/10/2014No. 12-31258

that N a quin’s connection to the EB I v essel fleet was substantial in t erms of nature. The record d e m o n s t r a tes that Naquin contributes to the function of a discrete fleet o f vessels and has a connection with the f leet that i s substantial in terms of b oth duration a nd nature. We therefore hold that the e vidence s upports the jury’s finding that Naquin is a seaman. 3 8 B. EBI next argues that t h e d i s t r i c t c o u r t a b used its d i scretion by erroneously instructing the jury on the issue of s eaman status. We apply a t wo-part test in considering a challenge to the district c ourt’s jury i nstructions: (1) First, the party challenging t he instructions must “demonstrate that the charge as a whole creates substantial a nd ineradicable doubt whether the j ury has b een p roperly guided in its d eliberations; and (2) S econd, even where a jury instruction was erroneous, “we will not r everse if we determine, b ased upon t he entire record, that the challenged i nstruction could n o t h a v e a ffected the outcome of the case.” 3 9 E B I l e v e ls a v ery specific complaint against the district court’s instruction: That t he district court erred b y presenti n g t h e two prongs of the

seaman test in reverse o r d e r , by “garbling” the s eparate requirements of the test, and failing to emphasize that a seaman’s connecti o n t o v e s sels must be substantial in terms of nature

. In the instant case, the district court charged the jury as follows: Under the governing law the plaintiff is a seaman if he proves by a preponderance of the e v idence the following: A, or first, that h e has a connection to a vessel in navigation, or to an identifiable group of

3 8 Becaus e the jury’s s eam an s tatus f ind ing w as s up ported by the evid ence, it f ollow s that the d is trict court d id not err in d enying E BI’s motions f or s um m ary jud gm ent, jud gm ent as a m atter of law , or a new trial. See F E D

. R. C I V

. P R OC

. 56( a)

.

3 9 N a v i ga nt Consul t i ng, Inc. v . Wi l ki nson , 508 F. 3d 277, 293 ( 5th Cir. 2007) ( internal citation om itted ). 11 Case: 12-31258 Document: 00512554952 Page: 11 Date Filed: 03/10/2014No. 12-31258

vessels, that is substantial in terms o f b oth its duration and nature, and secondly t hat his duty contributed t o the function of a vessel or identifiable group o f vessels, or to t h e a c c o m plishment of its mission. Despite a reversal of the test’s normal organization, t he above instruction is wholly consistent with our own art i c ulation of the s eaman test. 4 0 After reviewing the relevant ju r y c h a rge in its entirety, we do not a gree that the charge was c onfusing o r misleading. Quite the opposite, a careful review of the district court’s explana t i o n reveals a careful attempt t o e xplain a difficult-todefine concept to a jury of laymen

. T he court’s explanation points o ut that Naquin’s connection to the EBI fleet is o nly substantial if it was “an actual, regular connec t i o n”; that the connection must be “ more than a temporary or occasional connection”; and that t h e j ury should “focus on the nature and location of [Naquin’s] work.” I n fact, the c ourt’s instruction mirrors the S upreme Court’s explanation of the seaman status test in Chandris v. Latsis

. 4 1 Because the district court’s s e a m a n status instruction was clear and consistent with the usual articulation, we conclude t hat the district court did not err in its instruction on the issue of seaman status. C. EBI next argues that the e vidence i s insufficient t o support the jury’s finding o f n e g ligence. Specifically, EBI c ontends t hat it cannot be negligent because t here is no evidence indicating that EBI caused or could have foreseen the accident. The law of employer negligence is clear: Every employer has a duty to provide its employees with a reasonably safe work environment and work

4 0 See, e. g. , Becker , 335 F. 3d at 387–88.

4 1 515 U

. S. at 370–71.

12 Case: 12-31258 Document: 00512554952 Page: 12 Date Filed: 03/10/2014No. 12-31258

equipment. 4 2 B ecause EBI d esigned, constructed, operated, a nd maintained the defective L C-400 cr a ne which injured Naquin, EBI is l i able i f its negligent performance of any of those activities caused Naquin’s injuries. In this case, the t estimony at trial established t hat t he crane, w hich was manufactured by EBI, fell when the weld w hich bound the crane to its base failed. E BI’s witness t estified that the test block being moved by the crane was well within the r ated capacity of the LC-400 crane. Although Naquin was unable to prove precisely why the weld failed, it i s undisputed that EBI was t h e party who was responsible for the design of the crane a nd the i n t egrity of the w eld and who could have implemented more stringent w e l d safety standards. Relying
upon this circumstantial evidence, the j ury determined that EBI was n egligent. On a p p e a l , E BI argues that t he e xclusive reliance upon circumstantial evidence in this case is essentially a dependence on the doctrine of res ipsa loquitur

. 4 3 Because res ipsa was never specifically pled or asserted, EBI argues, the argument has been waived and Naquin cannot rely exclusively o n t he fact that EBI was responsible for the weld to establish its negligence. This court considered t his precis e a r g ument on nearly identical facts in Watz v. Zapata Off-Shore C o . 4 4 Sitting in admiralty, the Watz c ourt considered whether a chain manufacturer had been negligent when a defective weld in the chain c a used it to snap, injuring a s hipyard worker below. 4 5 At a bench trial, the district court inferred from the defective weld that c h ain manufacturer was

4 2 S ee Strong v. B. P. Exp l ora ti on & P rod. , Inc

. , 440 F. 3d 665, 669 (5th Cir. 2006)

.
4 3 U nd er res i

p sa l oqui tur , a jury is p erm itted to inf er negligence on the p art of the one w ho exercis ed control over an item w here that item has caus ed the d am age and other p laus ible exp lanat i o n s h a v e been reas onably ruled out. See Brow n v . O l i n Chem

. Corp

. , 231 F. 3d 197 ( 5th Cir. 2000)

.

4 4 431 F. 2d 100 ( 5th Cir. 1970)

.
4 5 Id

. at 103. 13 Case: 12-31258 Document: 00512554952 Page: 13 Date Filed: 03/10/2014No. 12-31258

negligent. 4 6 On appeal to this cou r t , t h e c hain manufacturer a rgued that the district court could n o t rely on what amounted to a theory of res ipsa when no such theory had been pled. 4 7 However, we rejected the chain m anufacturer’s contention, stating: Certainly [the plaintiff] bore the burden of proof to show Campbell’s [(the chain manufacturer)] negligence. But once it was proved that a defective weld had occurred d uring the manufacture of the chain by Campbell, w e believe that the district court sitting as a finder of fact could reasonab l y i n fer negligence from that circumstantial evidence. Campbell o b jects that t he p leadings and evidence d i d n ot sp e c i f i cally raise the doctrine of res i psa loquitur and the district court did not refer to it. The evidence credibly establ i s h ed that responsible chain manufacturers a ttempt to avoid defective w elds in the knowledge that t hey are dangerous. The finder of fact could reasonably infer that a defective weld would ordinarily not occur in the absence of negligence. We see no reas o n t o invoke the Latin phrase here. We s imply apply a r ule of circumstantial e vidence, n ot changing t he burden of proof or casting presumptions against t h e defendant. 4 8 There is no b asis o n which to d istinguish this case fro m the holding of Watz

. EBI was the o nly party responsible f o r welding the L C-400 crane to its base, a weld which w as indisputably defective and the direct c a use of Naquin’s injuries. We t h erefore hold that this evidence, though c ircumstantial, is sufficient to support the jury’s finding of negligence.

4 6 Id

. at 119.

4 7 Id

.
4 8 Id. EBI p oints out that its p ractice w as to hire a third p arty to ins p ect and tes t crane w eld s , but that the record s d ocum enting w ho had ins p ected the in s tant crane had been d es troyed by Hurricane K atrina. H ow ever, this d oes not d i s t inguis h the ins tant cas e f rom Wa tz , w here the chain m anuf acturer s im ilarly ins is ted that it had cond ucted tes t s o n the d ef ective chain but had d es troyed the d ocum entation in the ord inary cours e of bus ines s . 14 Case: 12-31258 Document: 00512554952 Page: 14 Date Filed: 03/10/2014No. 12-31258 D. E B I n e x t a rgues that the district court a bused its discretion when it admitted evidence of the death of Naquin’ s c ousin’s husband ( “the r elative”) because it found such evidence to be relevant to Naquin’s c l a i m f or emotional damages. The r elative was killed when the collapsing crane crushed part of the building in which he w a s w orking. Arguing that the relative’s death was irrelevant to any of t he issues at the t rial, EBI filed a m otion in limine to exclude any references to the death as prejudicial. The district court d enied the motion, concluding that though potentially prejudicial, the evidence w a s relevant to Naquin’s claims f

or emotional damages. At t he trial, much of Naquin’s claim for his emotional damages focused on his relative’s death, and the jury ultimately awarded him $1,000,000 for past and future emotional suffering. Because the death of Naquin’s relative i s unquestionably irrelevant to the issues of seaman status and EBI negligenc e , the only issue to which it might have been relevant is N aquin’s emotional damages. Howeve r , t he Jones Act does not indiscriminately permit compensation for emotional damages resulti n g f r o m the death of another person. I n C o n s o lidated Rail Corp. v. Gottshall , 4 9 t he Supreme Court was called
upon t o determine the extent to which an employer i s liable for e m o t i o n a l damages under the Federal E mployers’ Liability Act (“FELA”). 5 0 The negligence provision o f FELA is expressly incorporated into the Jones Act. S pecifically, the Gottshall Court c onsidered whether an e mployee could recover for emotional distress from his e m p loyer after witnessing a co-worker d ie due to the employer’s neglige n ce. 5 1 Recognizing that the emotional harm caused by an accident is

4 9 512 U

. S. 532 (1994)

.
5 0 45 U

. S. C. §§ 51–60.

5 1 Id

. at 536. 15 Case: 12-31258 Document: 00512554952 Page: 15 Date Filed: 03/10/2014No. 12-31258

p otentially limitless, the Court observed t h e need for l i mits o n those who can
recover such damages. 5 2 T he Court then surveyed the common law on the issue, identifying three major limiting t e s t s f o r e v aluating claims of n egligent i nfliction of emotional distress: (1) the “physical impact” t est, which o nly permits recovery for emotional damages i f the plaintiff sustains a physical impact; (2) the “zone of danger” test, which permits recovery if the p laintiff w as physically i mpacted

or within the zone of potential i mpact; and (3) the “relative bystande r ” test, which extends recovery to those in t he zone of danger as well as close r elatives of a v ictim who are physically near and who observe the injury. 53 Concluding that “FELA’s c entral focus [is] on physical perils,” the Court also recognized that “a near miss may be a s frightening as a d i rect h it.” 5 4 T herefore, the Court reasoned, the appropriate test for a war d i n g emotional damages under FELA—and by extension, t he Jones A ct—is whether t h e p l a intiff was in the “zone of danger.” 5 5 Turning to the instant case, there is n o question that Naquin was in the

zone of danger and may therefo re claim damages for his e motional harm. H o wever, we are still left with the question o f whether Naquin may assert a claim f or emotional harm a rising from the injury to his relative

. In other words, Naquin contends that a J ones Act plaintiff, once physically injured and entitled to emotional damages, is entitled to the full spectrum of emotion a l damages, including those arising from an injury to someone else. D e s p ite the simplistic a ppeal of Naquin’s argument, there is no cas e l a w
or reasoning to support it. Instead, the S upreme Court’s discussion of emotional

5 2 Id

. at 546.

5 3 Id

. at 547–49.

5 4 Id

. at 547, 555 ( internal citation om itted )

.
5 5 See i d

. at 555. 16 Case: 12-31258 Document: 00512554952 Page: 16 Date Filed: 03/10/2014No. 12-31258

damages in Gottshall emphasizes the limited s cope of damages availa b l e to individuals within the zone o f danger: the emotional h arm s uffered from being physically injured or t he emotional h arm suffered f rom a lmost being physically injured. 5 6 As described by the Supreme Court, the zone of danger test a llows a Jones Act plaintiff “to recover f o r e m otional injury caused by fear of physical injury to hi m s e l

f

. ” 5 7 More tellingly, the Gottshall Court e xplicitly rejected the relative bystander test, which would have permitted certain relatives t o recover for emotional damages caused by witnessing an injury to someone else. 5 8 As our
own court has previously recognized, it would b e a “major departure from the

e x isting jurisprudence” to “ allow recovery for injuries resulting n o t f r o m p h y s i c a l trauma, or the fear of physical trauma, to the pla i n tiff but from witnessing a ‘bad sight,’ i.e ., harm to another.” 5 9 Several other considerations bolster t h i s c o nclusion. If multiple people witness an injury to someone else, i t would be arbitrary to award emotional damages for seeing t hat person’s injury o nly to those people who also h a ppened to suffer an injury at the s ame time. Moreover, the Jones A c t only extends an action to recover for the death of a seaman t o his immediate family. 6 0 It would thus be i nconsistent w ith the Jones Act’s wr o n g ful death provision to permit anyone else to recover for the negligent death of a coworker.

5 6 Id

. at 555–56.

5 7 Id

. at 556 ( em p has is ad d ed )

.
5 8 Even if the Sup rem e Court had a d o p ted the “relative bys tand er” tes t, that tes t ord inarily requires a relations hip clos er than that of v ictim ’s s p ous e’s cous in. See, e. g
. , L A

. C I V

. C O DE art. 2315. 6 ( lim iting bys tand er em otional d am age claim s to a sp ous e, child , grand child , p arent, s ibling, or grand p arent)

.

5 9 See Pl a i sa nce v . Texa co, Inc

. , 966 F. 2d 166, 169 ( 5th Cir. 1992) ( en banc)

.
6 0 See 45 U

. S. C. § 51. 17 Case: 12-31258 Document: 00512554952 Page: 17 Date Filed: 03/10/2014No. 12-31258

This conclusion is also most consistent with this c ourt’s d ecision i n Gaston

v. Flowers Transp

. 6 1 In that case, we re j e c t ed an emotional damage claim by a Jones Act plaintiff who watched his half-brother get crushed to death between two vessels. 6 2 Although the Gaston p laintiff had not been p h ysically injured, we nonetheless d istinguished between plaintiffs who s u ffer e m o t i o n a l h a r m f r o m an event “directly a ffecting him ” and plaintiffs who suffer harm from “witnessing the death of another .” 6 3 We finally concluded, “whatever merit allowing recovery for purely emotional injury may have or may l ack, we see none in allowing mere crewmen-bystanders to recover for witnessing the misfortune of another.” 6 4 The Supreme Court’s d e c i s i on in Gottshall and our own reasoning in similar cases compel us to c onclude that emotional damages resulting purely from another person’s injury, and not a fear of injury t o o n e ’s s elf, are not compensable under t h e Jones Act. Such is the case even w hen the p laintiff has also been injured. To a ward damages for observing a “bad s ight,” e ven one which involves a family member, would contravene the zone of danger test’s intent to compensate for physical d angers. Accordingly, we h old t hat Naquin’s emotional dama g e s arising from the death of h is relative are not compensable under the Jones Act and the evidence regarding those damages should have been excluded from the trial. Because we cannot discern to w hat extent Naquin’s $1,000,000 award for

emo t i o n a l suffering was based upon the non-compensable h arm caused by the

6 1 866 F. 2d 816 ( 5th Cir. 1989)

.
6 2 Id

. at 819–21.

6 3 Id

. at 819.

6 4 Id. at 821. See a l so Ba rk e r v . H ercul es O

f f shore, Inc

. , 713 F

. 3d 208, 225 ( 5th Cir. 2013) (f ind ing that, becaus e p latf orm w ork er w ho w as p res ent w hen co- w ork er f ell to his d eath
w as not “in im m ed iate ris k of p hys ical harm , ” he w as not entitled to em otional d am ages )

. 18 Case: 12-31258 Document: 00512554952 Page: 18 Date Filed: 03/10/2014No. 12-31258

relative’s death, the e motional portion of his damages is t a i n t e d. 6 5 Moreover, most r eported decisions do not distinguish between physical and emotional pain and suffering awards, 6 6 so we cannot utilize our usual comparative framework f o r e valuating the reasonableness of Naquin’s physical damage award i n isolation. 6 7 The record also reveals that counsel f or Naq u i n in his closing argument leaned heavily on the emotional damages Naquin suffered as a result

6 5 EBI a l s o com p lains that the jury erred by aw ard ing m ental anguis h d am ages to N aquin for his d ep r e s s ion d es p ite the lack of corroborating m ed ical tes tim ony. “Any aw ard f or em otional injury greater than nom inal d am ages m us t be s up p orted by e vi d e n ce of the character and s everity of the injury to the p laintif f's em otional well- being. ” Sa l i na s v . O ’N ei ll , 286 F

. 3d 827, 830 ( 5th Cir. 2002)

. N o n e t h e l e s s, w e have als o previous ly recognized our unw illingnes s to “hold that med ical evid ence or corroborating tes tim ony is alw ays required f or an aw ard of m ental anguis h d am ages
. ” See M i gi s v. Pea rl e V

i si on, Inc

. , 135 F. 3d 1041, 1046 ( 5th Cir. 1998)

. Ins tead , w here a plaintif f’s m ental anguis h tes tim ony is corroborated by other
w itnes s es , circum stances , and f acts , w e do not neces s arily require exp ert m ed ical tes tim ony. See i d

. A lthough no exp ert tes tif ied concerning Naquin’s d ep res s ion, N aquin’s ow n tes tim ony regard ing his m ental anguis h w as s up p orted by the tes tim ony of his w if e, his v is its to d octors and s ocial w ork ers , and his p res crip tion us e of an anti- d ep res s ant drug f ollow ing the accid ent.

6 6 See, e. g ., Si m eon v. T. Sm i th & Son, Inc ., 852 F. 2d 1421, 1427 ( 5th Cir. 1988) ; Berna rd v . U

ni ted Sta tes , 794 F. Sup p . 608, 611 ( E

. D

. La. 1991) ; A ucoi n v . Sta te through D ep ’t of Tra nsp . a nd D ev . , 712 So. 2d 62 ( La. 1998)

.

6 7 U nd er this circuit’s “m axim um recovery rule, ” w e w ill up hold a jury aw ard if there is a d am age aw ard in at leas t one “f actually s im ilar cas e f rom the relevant juris d iction” that,
w hen increas ed by 50% , equals or e x c e e d s the challenged jury aw ard

. See M oore v . M / V A N G ELA , 353 F. 3d 376, 384 ( 5th Cir. 2003)

. 19 Case: 12-31258 Document: 00512554952 Page: 19 Date Filed: 03/10/2014No. 12-31258

of his relative ’ s d eath. 6 8 Because Naquin’s lost wages c laim is a lso founded partially upon his non-compensable emotional injury, it too is tainted. 6 9 Even putting t h e s e concerns aside, serious practical problems would be presented at t r i a l i f w e were to save some elements of the damage award and retry only other e l ements of damage. “[W]here, as her e , t h e j ury’s findings on questions relating t o liability were based on sufficient evidence and made in accordance with law, it [i]s p roper to o rder a new t rial only as to damages.” 7 0 We therefore retain the jury’s liability finding but order a new trial on damages. 7 1

6 8 During his clos ing argum ent, couns el for Naquin s aid the f o l l o w ing regard ing N aquin’s em otional d am ages d ue to the d eath of his relative:

. . . H e has trem end ous is s ues becaus e of [ the accid ent]

. I don’t k now that you could write any t h i n g more horrif ic than killing one of your relatives in an accid ent. Y ou k now , I hop e Larry gets a lot out of that. I think w hen you as sign a value to that, I think one thing y ou’re s ignalling ( sic) to him is w hether y ou’ve und ers tood it or not. I d on’t know how you p ut a value on a p ers on’s w ell- being m entally. I d on’t k now how you s it d ow n and try to get your head around s om eone w h o i s actually going to k ill them s elves

. That is extrem ely hard

. I would s ugges t one com p aris on again to hi s p as t w ages and f uture w ages
. If that little $550, 000 is w hat his p ock etbook is hurt, then w hat can you im agine his m ind has been through and his exp eriences have been hurt. I w ould s ugges t, again, tw o to three tim es that is very f air f o r t h i s m a n . Som e of you m ay f eel that’s a low f

igure. You m ay think w ho is this law yer w ho is trivializing w hat this man has been through. That’s up f or you all to d ecid e.

6 9 N aquin’s claim f

or f uture los t w ages s tem s s olely f rom his inability to accep t EBI’s of f er of s ed entary w ork due to his contin u i n g e m o t i o nal d is tres s . How ever, the los t w age cons equences of N aquin’s em otional d is tres s are only com p ens able to the extent his d is tres s is com pens able. Becaus e a s ubs tantial p ortion of his em otional dam ages are bas ed up on noncom p ens able em otional d i s tres s aris ing f rom the d eath of his relative, f uture w ages los t becaus e of that non- com p ens able em otional d is tres s are lik ew is e non- com p ens able. As the is s ue has been rais ed by EBI, w e s ep arately note the p rop er w ork

- lif e exp ectancy bas is for calculating f uture los t w ages on re m and : “It m ay be s how n by evid ence that a p articular p ers on, by virtue of his health or occup ation or other f actors , is lik e l y to live and
w ork a longer, or s horter, p eriod t h a n the average. Abs ent s uch evid ence, how ever, com p utations s hould be bas ed on the s tatis tical average. ” M a dore v . Ingra m Ta nk Shi p s, Inc

. , 732 F. 2d 475, 478 ( 5th Cir. 1984)

.

7 0 H a dra v. H

erm a n Bl um C

onsul ti ng Engi neers , 632 F. 2d 1242, 1246 (5th Cir. 1980)

.
7 1 Becaus e w e rem and the cas e f or a new trial on d am ages , we need not cons id er EBI’s f inal p oint of error, w hich alleges that the jury’s em otional d am age aw ard w as tainted by an 20 Case: 12-31258 Document: 00512554952 Page: 20 Date Filed: 03/10/2014No. 12-31258 IV. For t h e reasons stated above, we AFFIRM the judgment of the district court as it relates to liability, but VACATE the judgment of the district court as it relates to damages and REMAND for p roceedings consistent with this opinion.

AFFIRMED in part, VACATED and REMANDED in part.

inad v ertent d is cus sion of p revious ly- exclud ed tes tim ony. 21 Case: 12-31258 Document: 00512554952 Page: 21 Date Filed: 03/10/2014No. 12-31258

JONES, Circuit Judge, dissenting.

I c oncur in al l o f t h i s good o pinion except t he decision affirming Naquin’s status as a seaman. On this issue, I respectfully disagree.
I. Seaman Status Elements
To be a seaman, Naquin must satisfy the tw o - p r o n g t e st established in Chandris v . Latsis : (1) his d uties m ust c ontribute to the function of t he vessel

or to the acco m p l ishment of its mission; and (2) h e must have a connection to

a v essel in navi gation (or to an identifiable group o f such v essels) that is substantial in terms of both d u r a t i o n a n d nature. Chandris v. Latsis , 5 1 5 U .S. 347, 368 (1997). I agree with the majority that Naquin p asse s t h e first prong of the C h a n d ris test. In my view, h owever, Naquin does not satisfy the duration or nature componen t s o f Chandris ’ s second prong. Indeed, if a jury could h o l d N a q u i n i s a seaman, then it c o uld s o conclude as to any shore-based worker who maintained EBI’s on-board c ompu t e r s or went aboar d the lift-boats to g a s them up before they left the repair yard. Chandris and Sw. Marine , Inc

. v. Gi z o n i , 5 0 2 U.S. 81 (1991), broadly commit these cases to the jury, but they d o not prevent courts fro m e v e r distinguishing seamen from harbor workers as a matter of law. II. Duration Component As a general rule, the duration component of Chandris ’ s second prong is satisfied when an employee spends 30 percent or more of his time in service of

a “ vessel i n navigation.” Chandri s , 5 1 5 U

. S

. at 3 71. ( The Supreme Court

a d opted this c ircuit’s opinion in Barrett v. Chevron, U.S.A ., 781 F

. 2 d 1 0 6 7 (5th Cir. 1986) (en banc) on this rule of thumb.) But the Court noted,
This figure [30%] serves a s no more t h a n a guideline

. . . and departure f

rom it will ce r t a i n ly be justified in appropriate

22 Case: 12-31258 Document: 00512554952 Page: 22 Date Filed: 03/10/2014N o. 12-31258

cases . . . . A nd w here undisputed facts reveal th a t a maritime worker has a clearly in a dequate temporal connection to v essels in navigation, the court may take the question from the jury . . . . Chandris , 515 U.S. at 371.
The sole issue here is w hether Naquin’s w o r k a s a r epair supervisor on vessels d o c k e d in a c anal or i n drydock counts as service of a vessel in

n a vigation. Naquin spent 70 percent of his time employed in t h is c a pacit y . 1 In d e n y i n g EBI’s motion for summary judgment, t he district court took a statement from Chandris out of context to reach a conclusion that runs contrary to the “fundamental distinction” that C h andris recognized between land-based a nd sea-based maritime work e rs. Cf. id. a t 358. According to the district court, Naquin’s land-based repair time w as connected to a v essel in navigation because, as Chandris noted, a v e s s e l remains in navigation even when i t is temporarily moored or docked for repairs. Naquin v. Elevating Boats, LLC , 8 42 F. Supp. 2d 1 0 0 8 , 1 0 1 7 (E.D. L a. 2012) (citing Chandris , 515 U.S. at 3 73-74). The majority concludes without further discus sion that Naquin’s time repairing the lift-boat cranes satisfies the duration component.

In my view, this co n c lusion is irreconcilable with Chandris ’s “basic point,” which is that land-based employee s l i ke Naquin are not seamen. Chandris , 515 U.S. at 3 7 0 ( “ The Jones A c t remedy is reserved for sea-based maritime e mployees w h o se work regularly exposes them [to maritime per i l ] ”

.

. . . [T]he ultimate inquiry is whether th e worker i n question is a member of the vessel’ s c rew or simply a land-based employee .”) ( emphasis a dded); see also Heise v. Fishing Co. of Alaska , 79 F .3d 9 0 3 , 906 (9th Cir. 1996) (holding that a land-bas e d repairman assigned to perform routine, o ff-season

1 T h e r e s t o f N aquin’s hours w ere not connected w ith a ves s el in navigation. H e d ivid ed nearly all of his rem aining ti m e betw een the f abrication s hop and op erating a land

bas ed crane in the s hip yard

. 23 Case: 12-31258 Document: 00512554952 Page: 23 Date Filed: 03/10/2014N o. 12-31258

maintenance on a fishing vessel did n o t s atisfy Chandris ’s first prong where the “first b asic principle” behind Ch andris ’s definition o f seaman is that the term does “not include land-based workers”). Moreover, the passage in Chandris regarding t emporarily moored o r d ocked vessels is inappli c a b le to t h e present facts. U nlike the plaintiff i n Chandris , N a quin d id not sail o n a ship that w a s t emporarily docked. He worked almost exclusively on vessels that w ere moored, j a c k e d up, o r docked in t he shipyard undergoing repair, and found himself on a navig a b l e vessel only on rare occasions. 2 To allow Naquin to a c crue the 3 0 p ercent minimum temporal connection w hile solely working on docked vessels under repair essentially removes the duration component for other l and-based repairmen w ho are fortunate eno u g h t o work

on vessels that do not require l ong-term repairs. According to the m ajo r i t y , these repairmen c ould a lways claim that they spent their time working on vessels “in navigation” despite the fact they do all of t heir w ork on or tied to land, safely removed from maritime d a ngers. To me, this outcome defies logic and disregards the overarching purpo s e o f the Jones Act as stated in Chandris

. III. Nature Component
I also disagree with the majority’s analysis of the n ature compon e n t of Chandris ’s second prong. The majority c h a racterizes the facts that support the conc l u s i o n t h a t N aquin spent all o f his time dockside as a “categorical assertion” t hat does not demonstrate that Naquin was protected from maritime p erils. But in the next sentence, t h e majority categorically asserts that near-shore workers “ still remain exposed to t he per i l s o f t h e sea,” citing

no f acts show i n g t h a t N a quin, who spent nearly all of his time on boats

2 Naquin tes tif

ied that he w as aboard on a m oving ves s el les s than one p ercent of his tim e at work

. 24 Case: 12-31258 Document: 00512554952 Page: 24 Date Filed: 03/10/2014N o. 12-31258

moored to a d ock , fa c e d any maritime p e rils i n the ordinary course of his duties. This “moving right along” approach to t he particulars of Naquin’s employment runs c ontrary to the fact-specific inquiry that the Supreme Court has recommended for determining seama n s t a tus. See, e.g., McDermott Int’l, Inc. v. Wilander , 498 U.S. 337, 356 (1991) (holding that Jones Act s t a t u s turns on the employee’s “precise relation” to the vessel).
The majority then references several cases to s upport Naquin’s claim to seaman’s status, but they have no bearing on what circumst a n c e s , if a ny, entitle a dockside worker like Naquin to Jones Act coverage. The sole issue in Stewart v. Dut r a Constr. Co

. was whether t he d redge was a vessel for the
purposes of the J o n e s Act. The court did not address whether the harborbound worker, much less the land-based r e p a i r supervisor s uing in o ur case, faced m aritime peril. Stewart v. Dutra Const. C o ., 543 U. S

. 4 8 1 , 4 8 5 (2005). Similarly, the dispositive factor in Grab v. Boh B ros. Constr. Co

. , L.L.C

. , was not that the workers operated near the shore but that their work exposed them to sea-related dangers. The plaintiffs t r avelled daily to their worksite by c r e w b o at and h elped navigate a barge, w hich routinely had t o b e moved along the length of t he Lake P o n tchartrain bridge. Grab v. B oh Bros. Constr. Co ., L.L.C, 506 F. App’x 271, 274, 276 (5th Cir. 2013). N a q u i n ’s shore-side duties exposed him to no such maritime perils.
In my view, the majority also m isapplies Endeavor M ari n e . In that case, the district court held that plaintiff was not a seaman under Harbor Tug and Barge Co. v. P

apai b e c a u s e h is job did n ot literally “ take him to sea.” In

re Endeavor Marine I nc ., 234 F.3d 287, 289 (5th Cir. 2 000) (per curiam). We reversed, holding that the “going to sea” requirement is satisfied whenever the employee’s c onnection to the vesse l regularly exposes him to maritime

25 Case: 12-31258 Document: 00512554952 Page: 25 Date Filed: 03/10/2014N o. 12-31258

peri l s . I

d

. a t 2 91. Further, we ruled that the plaintiff f aced such perils. I

d

. at 292. The c ontrast between the work per f o r m e d b y the Endeavor Marine plaintiff and Naquin , however, seems clear. The Endeavor Marine plaintiff

was a derrick barge crane operator who l o a d e d and unloaded cargo v essels in t h e M i ssissippi River (not a c anal). Id

. at 288. His job required him t o t r a v e l

over water to his worksite and exposed him to the uniq u e ly m aritime dangers that arose when his b arge w a s m o o red to the cargo v essels that he was assigned to load o r unload. Id

. a t 2 8 9

. H e w as injured, moreover, when

s t r u c k b y a m ooring cable as he was handling the lines while w aiting for h i s barge to be positioned alongside t he cargo v essel. I d

. Naquin, on the ot h er hand, spent nearly all of his time dockside, repairing boats that were secured in the shipyard canal, or operating a lan d -based crane, or working in the shipyard fabricat i o n shop. His employment, in sum, was substantially similar t o that of o t her land-based employees whose seaman status has been denied by federal and state courts. 3 Finally, t he m ajority refers t o o u r “ b rown water” cases to show that employees who work on quiet waterways may recover under the Jones Act. All of these cases, however, involve e mployees who p erformed their work

3 See, e. g. , Cl a rk v. A m . M a ri ne & Sa l va

ge, LLC , 494 Fed

. Ap p ’x 32 ( 11th Cir. 2012) ( unp ublis hed ) ( af

f irm ing d is m i s s a l o f Jones Act claim brought by crane op erator w ho p erf orm ed m os t of his rep airs on land ) ; Schul t z v . Loui si a na D ock Co

. 94 F. Sup p . 2d 746 ( E. D

. La. 2000) ( ruling that rep airm an w ho ins p ected and rep aired m oored barges w as not a s eam an) ; Ri cha rd v . M i ke H ooks , Inc. , 799 So. 2d 462 ( La. 2001) ( revers ing low er courts and d is m is s ing land -bas ed rep airm an’s Jones Act claim )

. 26 Case: 12-31258 Document: 00512554952 Page: 26 Date Filed: 03/10/2014N o. 12-31258

while their vessel was operating on wat e r . 4 Thus, they o ffer no help to Naquin, who worked nearly always in the shipyard. IV. Conclusion With all r espect to the majority, I would hol d t h a t Naquin is not entitled to seaman s t atus and, therefore, r e verse the district court’s ruling that EBI was liable under the Jones Act.

4 See Producers D ri l l i ng Co. v . G ra y , 361 F. 2d 432 ( 5th Cir. 1966) ( af f irm ing s eam an s tatus w here em p loyee w ork ed on barge that traveled through navigable w aters ) ; C ol om b v . Texa co , Inc

. , 736 F

. 2d 218 ( 5th C ir. 1 9 8 4 ) ( hold ing that oilf ield w ork er as s igned to inland , s ubm ers ible barge was a s eam an) ; La ndry v . A moco Producti on Co

. , 595 F .2d 1070 ( 5th Cir. 1979) ( provid ing that w ork er em ployed as rous tabout aboard barges o n i n l a n d w aters is a s eam an) ; Boh Bros. Const. Co

. , LLC , sup ra ( ruling that em p loyees w ho w ork ed aboard a crane barge on Lak e Ponchartrain w ere s eam en)

.
27 Case: 12-31258 Document: 00512554952 Page: 27 Date Filed: 03/10/2014