* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 12, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30941

ARTHUR J PRESTENBACH

Plaintiff-Appellant

v.

GLOBAL INTERNATIONAL MARINE INC

Defendant-Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:05-CV-5454

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Arthur Prestenbach brought suit under the Jones Act and the Longshore

and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (“LHWCA”),

seeking compensation for injuries he sustained while working on a barge-raising

project for Global International Marine, Inc. (“GIM”). The district court granted

summary judgment to GIM on all claims and we affirm for the reasons below. 
No. 06-30941

1 Prestenbach also filed a claim with the Department of Labor seeking LHWCA

employee compensationbenefits.The AdministrativeLaw Judge (“ALJ”) deniedPrestenbach’s

claim and found that he was not an employee or borrowed employee of GIM at the time of his

injury. Prestenbach v. Global International Marine, Inc., B.R.B. Nos. 06-0729 and 06-0729A

at 2 (May 31, 2007) [hereinafter Prestenbach I]. The Department of Labor Benefits Review

Board affirmed the ALJ’s decision in an opinion dated May 31, 2007.

2

FACTS AND PROCEEDINGS

Prestenbach was injured in November 2004 when he lifted a heavy, waterfilled hose on a barge on Little Lake, Louisiana. At the time of the injury,

Prestenbach was accompanied by three crew members provided by GIM. Two of

the employees spoke only Spanish, and the third, Gil Hebert, spoke English and

a little Spanish. Prestenbach alleges that GIM’s failure to provide him with a

fully English-speaking crew was negligence and caused his injury.

GIM is a marine transportation company. Prestenbach was hired as a

contractor to raise a sunken barge for GIM. As the district court noted,

Prestenbach is an “expert with 25 years experience in the field of plugging and

abandoning wellheads.” Prestenbach characterized the GIM project as a “oneshot”job. He was paid fifteen dollars an hour for the project, which was expected

to take three days. Before starting the project, Prestenbach requested insurance

coverage and a W-4 form. He received neither. GIM states that “Prestenbach .

. . classified himself as a ‘consultant, crane operator, and welder,’ and sent[GIM]

an invoice for his labor . . . under his company name of Arthur Prestenbach.”

Following the injury, Prestenbach brought suit in the Eastern District of

Louisiana alleging Jones Act negligence and vessel owner negligence under 33

U.S.C. § 905(b). He also sought LHWCA employee compensation benefits as an

injured employee of GIM. The district court granted summary judgment to GIM

on all counts, and Prestenbach filed a timely appeal to this court.1

STANDARD OF REVIEW

This court reviews the district court’s grant of summary judgment de novo.
No. 06-30941

3

Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir. 1995) (en banc).

Summary judgment is appropriate when there is no genuine issue of material

fact to be determined at trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 585–86 (1986). “Where the record taken as a whole

could not lead a rational trier of fact to find for the non-moving party, there is

no genuine issue for trial.” Id. at 587 (internal quotation omitted). When

evaluating a motion for summary judgment, the court should read the facts in

the light most favorable to the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 244, 255 (1986). 

ANALYSIS

I. Coverage under the Jones Act and the LHWCA

A. Jones Act

Prestenbach presents no genuine issue of material fact regarding his

status as a Jones Act seaman. Prestenbach admits that he is probably not a

Jones Act seaman “unless [the district court] were to conclude that the three or

so days spent at Little Lake on board the vessel during daylight hours is a

substantial connection to a vessel.” We affirm the district court’s conclusion that

Prestenbach was not a Jones Act seaman at the time of his injury. 

B. LHWCA

Prestenbach also claims that he is entitled to employee compensation

benefits under the LHWCA. The LHWCA was enacted to protect maritime

workers not covered by the Jones Act. See Chandris, Inc. v. Latsis, 515 U.S. 347,

355–56 (1995). The Fifth Circuit looks to two aspects of the claimant’s

relationship with the alleged employer to determine whether he is an “employee”

under the LHWCA. Oilfield Safety and Mach. Specialties, Inc. v. Harman

Unlimited, Inc., 625 F.2d 1248, 1253 (5th Cir. 1980). First, the court asks what

the nature of the claimant’s work is. Id. The court considers factors such as the

“skill required to do the work, the degree to which the work constitutes a
No. 06-30941

2 GIM employees also testified before the ALJ that this was the only sunken barge

project they had ever undertaken. See Prestenbach I at 10 n.10.

4

separate calling or enterprise, and the extent to which that work might be

expected to carry its own accident burden.” Id. Second, the court inquires about

the “relation of that work to the alleged employer’s regular business.” Id. The

court considers factors such as 

whether the claimant’s work is a regular part of the employer’s

regular work, whether the claimant’s work is continuous or

intermittent, and whether the duration of claimant’s work is

sufficient to amount to the hiring of continuing services as

distinguished from the contracting for the completion of a particular

job.

Id. 

Prestenbach admitted that raising the barge was a “one-shot” job, and that

he had the skill necessary to do it. As the district court noted, Prestenbach was

an “expert with 25 years of experience in the field of plugging and abandoning

wellheads.” Prestenbach billed GIM for his work using an invoice and classified

himself as a “consultant, crane operator, and welder.” These factors go to the

first prong of the Oilfield Safety analysis and show that the nature of

Prestenbach’s work in capping oil wells (which was related to this task of raising

a sunken barge) was a separate field which required special skill. 

The second prong of the Oilfield Safety test asks whether the job was a

regular part of the alleged employer’s work. The record reflects that that GIM

is in the business of marine transportation and the barge-raising project was not

part of its regular work.2 Prestenbach contracted only for the completion of one

job. While it is true that Prestenbach was paid fifteen dollars per hour for the

job, he billed GIM for his work via invoice instead of waiting for a paycheck as

a part-time employee would generally be expected to do.
No. 06-30941

3 Prestenbach argues that if he is not a LHWCA employee, his case is governed by Seas

Shipping Co. v. Sieracki, 328 U.S. 85, 95 (1946) or Kermarec v. Compagnie Générale

Transatlantique, 358 U.S. 625 (1959). This argument is without merit. Although Prestenbach

was not a GIM employee at the time of his injury, he was still a “person” within the meaning

5

There is no material issue of fact regarding the second prong ofthe Oilfield

Safety test. We therefore affirm the district court’s holding that Prestenbach was

an independent contractor and not an employee under the LHWCA. 

II. GIM’s duty of care

Prestenbach alleges that GIM is liable for vessel negligence under 33

U.S.C. § 905(b) because it provided an inadequate crew. He claims that the crew

GIM provided was inadequate because two of the crew members spoke only

Spanish and the third, Gil Hebert, spoke English and only a little Spanish. The

district court found Prestenbach’s claim to be meritless, and we agree. 

The Fifth Circuit extends 33 U.S.C. § 905(b) protection to independent

contractors covered by theLHWCA. See, e.g., Manuel v. Cameron Offshore Boats,

Inc., 103 F.3d 31, 33 (5th Cir. 1997). The three duties owed by a ship owner to

an independent contractor working on his vessel are: 

(1)the turnover duty, (2)the duty to protect against hazards arising

in areas or equipment under the vessel’s active control, and (3) the

duty to intervene when the vessel owner knows of a serious hazard

and the stevedore improvidently decides to ignore that risk.

Id. (citing Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156 (1981)). 

The district court concluded that GIM had not breached any of the duties

it owed to Prestenbach as an independent contractor covered by the LHWCA.

The court applied the three-part test in Scindia and said “[Prestenbach] has

acknowledged that there were no unseaworthy or negligent conditions on the

barge, the tug, the pump, or the sunken barge that contributed to or caused his

alleged injury.” The court characterized Prestenbach’s argument that his

injuries were caused by his inability to communicate with the Spanish-speaking

crew members as “a boot-strap hope to stay in [c]ourt.”3
No. 06-30941

of 33 U.S.C. § 905(b) (permitting “person[s] covered by this Act” to recover for injuries “caused

by the negligence of a vessel.”). 

Sieracki extended the traditional warranty of seaworthiness to those who, while not

technically seamen, were engaged in the same work. 328 U.S. 85, 95. The Sieracki line of cases

was superceded by the 1972 amendments to the LHWCA, which provided an exclusive

statutory remedy for non-seamen covered by the LHWCA. See Aparicio v. Swan Lake, 643 F.2d

1109 (5th Cir. 1981). Aparicio established that Sieracki remedies were still available to

longshoremen not covered by the LHWCA (because, for example, their injuries occurred in

foreign waters). Id. at 1116. Kermarec held that shipowners owed a duty of reasonable care

towards visitors and invitees aboard their vessels. 358 U.S. 625, 630. Neither case applies to

Prestenbach, who was an independent contractor covered by the LHWCA. 

6

Prestenbach admits thatthere were no hazardous conditions on the vessel

on which he was working. His only argument is that GIM did not provide an

adequate crew because two of the crew members spoke only Spanish and the

third crew member was an inadequate translator. Scindia negligence, however,

requires a finding that the vessel owner failed in its duty to turn over a ship in

good condition, to exercise reasonable care over any parts of the boat which

remained under his “active control,” and to intervene if the independent

contractor fails to protect other workers under his control from danger. See

Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98 (1994). These duties relate

primarily to the physical conditions of the ship. Prestenbach points to no cases

to support a finding of Scindia negligence because of an inadequate crew, let

alone one whose only alleged inadequacy was the presence of two members who

did not speak English. We hold that he cannot recover damages under 33 U.S.C.

§ 905(b). 

CONCLUSION

We affirm the ruling of the district court granting summary judgment in

favor of GIM. We hold that Prestenbach was not a GIM employee at the time of

his injury and that GIM is not liable to Prestenbach for vessel negligence under

33 U.S.C. § 905(b).