1

United States Court of Appeals,

Fifth Circuit.

Nos. 94-30156, 94-30446.

David BURCHETT and Cheryl Burchett, Plaintiffs-Appellants,

v.

CARGILL, INC., Defendant-Intervenor-Appellee, Appellant,

v.

MARINE EQUIPMENT MANAGEMENT CORPORATION, Defendant-Appellee.

March 29, 1995.

Appeals from the United States District Court for the Eastern

District of Louisiana.

Before GARWOOD, DAVIS and REYNALDO G. GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiffs David and Cheryl Burchett appeal the dismissal of

their Jones Act and unseaworthiness actions against Cargill, Inc.

("Cargill") and their § 905(b) action against Marine Equipment

Management Corporation ("MEMCO"). We affirm.

I.

David Burchett, a crane operator employed by Cargill, was

injured when he slipped and fell on the cover deck of the K-2, a

midstream bulk cargo transfer unit owned and operated by Cargill.

The K-2, located in the Mississippi River near Convent, Louisiana,

is used to transfer bulk products, usually grain, from river barges

to ocean-going vessels. The K-2's structure was built on top of a

330 x 75 foot barge in 1981. The K-2 is permanently moored to the

bottom of the Mississippi River, approximately 500 feet from the

river's east bank. It has been in this position since 1982.
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The K-2 has no engines, thrusters, or any other independent

mode of locomotion other than a winch and cable system used to

reposition the K-2 alongside the ocean-going vessel. The K-2's

backward and forward mobility is limited to the length of the

cables (1,200 feet), and it has no capacity to move laterally. The

K-2 has a raked bow, a ballast system, anchor lights, life boats

and jackets, and a radar unit used to monitor weather conditions.

Although it has an eating area and locker rooms for the crew, the

crew does not sleep aboard the K-2 but rather is transported to and

from shore daily. The K-2 is not registered as a vessel with, nor

has it ever been inspected by, the U.S. Coast Guard.

During the cargo transfer process, the ocean-going vessel

maneuvers itself to the west side of the K-2. Tugs then push the

grain barges into position on the east side of the K-2. Cargill

personnel then transfer the grain from the cargo holds of the

barges to the cargo holds of the ocean-going vessel. Throughout

this process, the K-2 remains stationary except for some minor

adjusting to align the K-2's offloading spouts over the cargo holds

of the vessel.

To offload the cargo from the barge, Cargill personnel first

remove the hatch covers from the cargo barge with a crane and stack

them on the K-2's cover deck. When the offloading process is

complete, a second crane on the K-2 cover deck replaces the covers

on the barge. According to Mr. Burchett, on October 1, 1992,

Cargill personnel removed the hatch covers from a cargo barge owned

by MEMCO and stacked them on the cover deck of the K-2. Burchett
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testified that he slipped when he stepped on one of the hatch

covers. He contends the covers were slippery because dew and

soybean dust had accumulated on them during the offloading process.

He also complains that the covers were not painted with non-skid

paint.

David and his wife Cheryl originally filed this action in

state court, asserting Jones Act and unseaworthiness claims against

both Cargill and MEMCO. Cargill and MEMCO removed the case to

federal court on the basis of diversity, asserting that plaintiffs'

Jones Act claims were baseless. The plaintiffs moved to remand the

action to state court on the ground that Jones Act cases are

non-removable. The district court denied the motion to remand and

subsequently entered summary judgment in favor of Cargill on the

grounds that the K-2 was not a vessel and, therefore, Burchett was

not a seaman under the Jones Act. Cargill later filed an

intervention seeking reimbursement from MEMCO for the compensation

benefits paid to Burchett under the Longshoremen and Harbor

Workers' Compensation Act ("LHWCA").

After plaintiffs' motion to remand was unsuccessful, they

amended their complaint against MEMCO, withdrawing the Jones Act

claim and adding a negligence claim under § 905(b) of the LHWCA and

the general maritime law. The district court subsequently granted

summary judgment in favor of MEMCO as well, on the grounds that the

summary judgment evidence revealed that MEMCO had no liability

under § 905(b). Plaintiffs now appeal.

II.
 

1An additional ground for fraudulent pleadings—that there

has been an outright fraud in the plaintiff's pleadings of

jurisdictional facts—is not at issue in this case. See Dodson v.

Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992). 

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A.

Plaintiffs argue first that the district court erred in

refusing to remand their action to state court because Jones Act

suits are not removable. As a general rule, we agree that Jones

Act cases are not removable. Johnson v. ODECO Oil & Gas Co., 864

F.2d 40, 42 (5th Cir.1989); 46 App.U.S.C. § 688 (incorporating

general provisions of Federal Employers' Liability Act, including

28 U.S.C. § 1445(a), which bars removal). However, this court has

recognized that in certain circumstances "defendants may pierce the

pleadings to show that the Jones Act claim has been fraudulently

pleaded to prevent removal." Lackey v. Atlantic Richfield Co., 990

F.2d 202, 207 (5th Cir.1993). In Lackey, we held that, like

fraudulent joinder cases, defendants sued under the Jones Act can

defeat remand upon showing that plaintiffs' claims against

non-diverse defendants "are baseless in law and in fact and "serve[

] only to frustrate federal jurisdiction.' " Id. (quoting Dodd v.

Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir.1964)).

The burden of persuasion on a removing party in such a case,

however, is a heavy one: "The removing party must show that there

is no possibility that plaintiff would be able to establish a cause

of action."1 Id. While we have cautioned against pretrying a case

to determine removal jurisdiction, we have recognized the district

court's authority to use a summary judgment-like procedure for
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disposing of fraudulent pleading claims. See B., Inc. v. Miller

Brewing Co., 663 F.2d 545, 549 n. 9 (5th Cir.1981). Accordingly,

in determining whether a plaintiff's claims are baseless, the

district court must resolve all disputed questions of fact and any

ambiguities in the current controlling substantive law in favor of

the plaintiff. See Carriere v. Sears Roebuck & Co., 893 F.2d 98,

100 (5th Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112

L.Ed.2d 35 (1990); Bobby Jones Garden Apartments, Inc. v. Suleski,

391 F.2d 172, 177 (5th Cir.1968). A denial of remand is

permissible where the district court "determine[s] that as a matter

of law there was no reasonable basis for predicting that the

plaintiff might establish liability." Miller Brewing, 663 F.2d at

551 (fraudulent joinder case) (citations omitted).

B.

Defendants contended below that plaintiffs had no possibility

of sustaining a Jones Act claim because the K-2 is not a vessel.

In support of this assertion, defendants submitted an affidavit

outlining in some detail the relevant facts about the nature and

use of the K-2. None of the facts that are pertinent to our

inquiry were disputed by plaintiffs. The district court concluded

that the K-2 is not a vessel as a matter of law and thus that

"plaintiffs' allegations of seaman's status are baseless."

The existence of a vessel is a fundamental prerequisite to a

Jones Act claim and is central to the test of seaman status.

Daniel v. Ergon, Inc., 892 F.2d 403 (5th Cir.1990); Blanchard v.

Engine & Gas Compressor Servs., Inc., 575 F.2d 1140, 1141 (5th
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Cir.1978). Plaintiffs, therefore, cannot possibly recover on their

Jones Act claim unless the K-2 is a vessel. Johnson, 864 F.2d at

42-43.

 In determining whether a structure is a vessel, the

touchstones are "the purpose for which the craft is constructed and

the business in which it is engaged." Blanchard, 575 F.2d at 1142.

We have been called upon on a number of occasions to determine

whether a structure, used as a floating platform in ship repair or

longshoring operations, was a vessel. Several of these cases have

identified three factors usually present when floating platforms

are not vessels:

(1) the structures involved were constructed and used

primarily as a work platforms; (2) they were moored or

otherwise secured at the time of the accident; and (3)

although they were capable of movement and were sometimes

moved across navigable waters in the course of normal

operations, any transportation function they performed was

merely incidental to their primary purpose.

Bernard v. Binnings Constr. Co., Inc., 741 F.2d 824, 831 (5th

Cir.1984); see also Ellender v. Kiva Constr. & Eng'g, Inc., 909

F.2d 803, 806, (5th Cir.1990); Daniel, 892 F.2d at 407; Ducrepont

v. Baton Rouge Marine Enters., Inc., 877 F.2d 393, 395 (5th

Cir.1989).

The K-2 satisfies all three of these factors. It was

constructed to serve as a base or platform to transfer bulk cargo

from barge to ship. It was not only securely moored at the time of

the accident but had been securely moored at the location for a

decade. The limited movement of the K-2, along its mooring lines,

to align the K-2's offloading spouts over the cargo holds of the
 

2In Johnson, this court recited three factors closely

related to the three listed above: (1) intention of the owner to

move the structure on a regular basis, (2) ability of the

submerged structure to be refloated, and (3) the length of time

the structure has remained stationary. 864 F.2d at 43 (citing

Hemba v. Freeport McMoran Energy Partners, Ltd., 811 F.2d 276,

278 (5th Cir.1987)). Johnson also listed the following

additional factors: (1) navigational aids, (2) a raked bow, (3)

lifeboats and other life-saving equipment, (4) bilge pumps, (5)

crew quarters, and (6) registration as a vessel with the Coast

Guard. Id. (citing Bernard, 741 F.2d at 832). 

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vessel is certainly incidental to its primary purpose of shifting

the cargo from one vessel to another.

We read the cases as establishing the above factors as the

most important considerations in resolving whether a work platform

is a vessel. See Daniel, 892 F.2d at 407-08. Some of the cases

suggest an expanded list that also may be considered.2 While this

list may be helpful in resolving close cases, we do not find these

factors useful in deciding a case such as this where all three

Daniel factors are satisfied and the structure has been

continuously moored and used as a floating platform for a number of

years.

Plaintiffs' principal argument on appeal is that this court's

decision in Michel v. Total Transp., Inc., 957 F.2d 186 (5th

Cir.1992) compels reversal of the district court. In Michel, we

held that a similar midstream bulk transfer rig was a vessel.

However, the structure at issue in Michel, the GEMINI, is readily

distinguishable from the K-2. Instead of remaining stationary, the

GEMINI was towed to a mid-stream position alongside the moored

ocean-going vessel. The GEMINI then anchored and the cargo barge

was secured to the side of the GEMINI opposite the ocean going
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vessel. Thus, unlike the K-2, which has been permanently moored to

the river bed since 1982, GEMINI was a free-floating structure that

moved freely along a six-mile stretch of the Mississippi River to

wherever the ocean-going vessel was moored. See id. at 190.

The capacity of the K-2 to be towed on navigable waters and

transport cargo does not make it a vessel. We have routinely held

that floating work platforms and dry docks, even if equipped for

travel across navigable waters, are not vessels when permanently

moored and used as work platforms or dry docks. See, e.g.,

Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 n. 8 (5th

Cir.1990) (citing cases); Johnson, 864 F.2d at 43 (oil platform

and storage facility towed to its location in 1961 and secured into

place by concrete was not a vessel); Hemba, 811 F.2d at 278

(structure moved only twice in twenty years and attached to gulf

bottom by pilings driven into ocean floor was not a vessel); Davis

v. Cargill, Inc., 808 F.2d 361, 362 (5th Cir.1986) (former cargo

barge, anchored to river bed, to which ships would moor for

painting services was not a vessel); Blanchard, 575 F.2d at 1147

(gas compressor building mounted on floating barge which had not

been moved since it was installed in 1952 was not a vessel);

Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279, 283 (5th

Cir.) (" "A fixed structure such as this drydock is not used for

the purposes of navigation ... any more than is a wharf or

warehouse when projecting into or upon the water.' " (quoting Cope

v. Vallette Dry-Dock Co., 119 U.S. 625, 627, 7 S.Ct. 336, 336, 30

L.Ed. 501 (1887)), cert. denied, 396 U.S. 846, 90 S.Ct. 105, 24
9

L.Ed.2d 96 (1969).

As these cases indicate, the fact that the K-2 has remained in

place for ten years makes it a non-vessel despite our holding in

Michel. For example, in Johnson, this court in affirming summary

judgment distinguished the structure in question from a similar

structure which had been deemed a vessel in an earlier case on the

basis that the structure at issue had "remained in the same place

for twenty-four years ..., and it remains there even today."

Johnson, 864 F.2d at 43. Likewise, in Daniel, this court

distinguished a floating platform that had been moored to shore

since 1979 from a similar platform that moved from jobsite to

jobsite, stating: "Unloading cargo onto a stationary structure is

not ... a transportation function." Daniel, 892 F.2d at 408.

The occasional minimal movement of the K-2 along its cables to

reposition its offloading spouts over the cargo holds of the vessel

does not undermine this conclusion. "[S]ome movement, both

perpendicular and lateral, is necessarily part of the regular

operation of floating dry docks and similar structures. However,

capability to sustain such movement has been held insufficient to

establish that such craft are constructed for the purpose of

navigation." Cook v. Belden Concrete Prods., Inc., 472 F.2d 999,

1002 (5th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 175, 38

L.Ed.2d 116 (1973).

This court's decision in Leonard v. Exxon Corp., 581 F.2d 522

(5th Cir.1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60

L.Ed.2d 397 (1979), is particularly instructive in this regard. In
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Leonard, the plaintiff worked on a platform made of four flat-deck

barges. Three of the barges were placed end-to-end and lashed

together. The three-barge structure was permanently moored to the

shore by cables. A crane was positioned on the fourth barge, which

was located between the shore and the other three barges. This

barge served as a crane platform and as an access ramp to the other

three barges and was connected to shore by a wooden ramp. To

permit the crane to service the other three barges, the three barge

structure would occasionally be moved slightly forward or backward

until it was properly positioned. See id. at 524. The court

concluded that the platform was not a vessel as a matter of law,

reasoning that any transportation function it performed was purely

incidental. Id.

The similarity between the K-2 and our numerous work platform

cases compels our conclusion that the K-2 is not a vessel as a

matter of law. In sum, we agree with the district court that

denial of remand was proper because plaintiffs could not possibly

establish that the K-2 was a vessel, an essential element of their

Jones Act claim.

C.

Plaintiffs argue next that Cargill was not entitled to summary

judgment. Because we have already concluded that the K-2 is not a

vessel as a matter of law, plaintiffs' Jones Act and general

maritime law actions against Cargill must fail. "Summary judgment

will always be appropriate in favor of a defendant against whom

there is no possibility of recovery." Carriere, 893 F.2d at 102.
 

3We have held that these principles also apply to

LHWCA-covered employees of independent contractors other than

stevedores. Hill v. Texaco, Inc., 674 F.2d 447 (5th Cir.1982). 

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III.

Plaintiffs, and Cargill as an intervenor, argue next that the

district court's grant of summary judgment in favor of MEMCO was

improper. We, of course, review a grant of summary judgment de

novo. Abbott v. Equity Group, Inc., 2 F.3d 613, 618 (5th

Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1219, 127 L.Ed.2d

565 (1994). Summary judgment is appropriate where the record

reflects that "there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law." Fed.R.Civ.P. 56(c).

Plaintiffs' amended complaint seeks recovery against MEMCO

under § 905(b) of the LHWCA, which allows a longshoreman injured as

a result of the negligence of a vessel to bring an action for

damages against the vessel. 33 U.S.C. § 905(b). Plaintiffs claim

that MEMCO's failure to install non-skid surfaces on its hatch

covers constitutes actionable negligence under § 905(b).

 In Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451

U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court

articulated the scope of a vessel's duty under § 905(b). Scindia

established that "the primary responsibility for the safety of the

longshoremen rests upon the stevedore."3 Randolph v. Laeisz, 896

F.2d 964, 970 (5th Cir.1990). However, vessel liability may still

arise

1) if the vessel owner fails to warn on turning over the ship
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of hidden defects of which he should have known.

2) for injury caused by hazards under the control of the ship.

3) if the vessel owner fails to intervene in the stevedore's

operations when he has actual knowledge both of the hazards

and that the stevedore, in the exercise of "obviously

improvident" judgment means to work on in the face of it and

therefore cannot be relied on to remedy it.

Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 15 (5th

Cir.1992).

The district court held that the summary judgment evidence

negated a finding of liability under any of the above Scindia

scenarios. Assuming, without deciding, that an injury to a

longshoreman on a wharf or platform by a piece of a vessel, its

gear or equipment can give rise to § 905(b) liability against the

vessel owner, we agree with the district court that the summary

judgment evidence demonstrates that MEMCO has no liability under

Scindia.

MEMCO asserts that it cannot be liable under the first Scindia

duty of failure to warn of a hidden defect because the slippery

hatch cover was an open and obvious danger. A defendant generally

has not breached its duty to turn over a safe vessel if the defect

causing the injury is open and obvious. Id. at 16. The courts

have created a narrow exception to this rule where a longshoreman's

only options when facing an open and obvious danger are unduly

impracticable or time-consuming. Id.

The summary judgment evidence reveals that Burchett was aware

of the accumulation of soybean dust and dew on the hatch cover and

knew that it would cause the cover to be slippery. In fact,
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Burchett admitted in his deposition that he had seen a co-worker

slip under the same conditions. He further admitted that none of

the steel hatch covers he had encountered previously had non-skid

surfaces and that he had also seen men slip and fall under similar

conditions on fiberglass covers with non-skid surfaces. The

summary judgment evidence also does not indicate that Burchett was

obliged to climb onto the hatch cover. Burchett testified in his

deposition that he climbed onto the hatch cover only because the K2 crew was shorthanded that day. According to Burchett, a crane

operator would not need to climb onto the hatch covers under

ordinary circumstances.

For similar reasons, MEMCO cannot be liable under Scindia's

second scenario, which imposes liability for injury caused by

hazards under the vessel owner's control. The vessel has a duty to

"exercise due care to avoid exposing longshoremen to harm from

hazards they may encounter in areas, or from equipment, under the

active control of the vessel during the stevedoring operation."

Scindia, 451 U.S. at 167, 101 S.Ct. at 1622. The summary judgment

evidence showed that the hatch cover was removed from MEMCO's "dumb

barge" and stacked on the cover deck of the K-2 by Cargill

personnel. No MEMCO personnel were present at any time during the

offloading process. The dust accumulated on the cover as a result

of Cargill's offloading operation. Cargill also controlled the

number of men working on the K-2 cover deck. Thus, MEMCO neither

controlled nor created the circumstances leading to Burchett's

injury.
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As to the third Scindia scenario, which imposes on the vessel

a duty to intervene, the vessel must have "actual knowledge that it

could not rely on the stevedore to protect its employees and that

if unremedied the condition posed a substantial risk of danger."

Randolph, 896 F.2d at 971. As indicated above, MEMCO had no

personnel present at the job site who could have had knowledge of

any peculiar dangers related to Cargill's unloading operations.

See Helaire v. Mobil Oil Co., 709 F.2d 1031, 1038-39 (5th

Cir.1983).

IV.

For the reasons stated above, we affirm the judgment of the

district court.

AFFIRMED.