IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00458-SCT

SHIRLEY ANN THOMPSON

v.

CASINO MAGIC CORPORATION, MARDI GRAS

CASINO CORPORATION

DATE OF JUDGMENT: 03/22/96

TRIAL JUDGE: HON. JOHN H. WHITFIELD

COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: KENNETH R. WATKINS

ATTORNEYS FOR APPELLEES: GEORGE F. BLOSS, III

RICHARD WAYNE SLIMAN

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: AFFIRMED - 3/12/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 4/13/98

EN BANC.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

¶1. Shirley Thompson, an employee of defendant Casino Magic, suffered injuries on two separate

occasions while at work as a "change person." Shirley brought suit against Casino Magic Corporation

alleging that the Dubuque Belle and the Casino Magic barge were unseaworthy under the Jones Act,

46 U.S.C. app. § 688 (1994), and general maritime law of the United States of America. On October

23, 1995, Casino Magic filed a motion for summary judgement which was granted on March 28,

1996. The trial court determined that Thompson was not a "seaman" and the Magic Casino barge

was not a "vessel". Therefore the lower court found that Thompson was not entitled to Jones Act

remedies. Thompson filed a notice of appeal to this Court on April 18, 1996. This Court finds that

the lower court reached the right result because Thompson fails to attain seaman status.

¶2. Thompson began working for Casino Magic in Bay St. Louis as a "change person" on April 23,

1993. A change person makes change for casino patrons in the slot machine area. While counting the

money that she was assigned while aboard the Dubuque Belle on May 17, 1993, Thompson suffered

an injury when her vault or bank fell upon her. The day of the injury, Thompson, for the first time,

had been assigned to the Dubuque Belle. Casino Magic admits that the Dubuque Belle is a "vessel"
for purposes of the Jones Act, but denies that the Casino Magic barge is a "vessel".

¶3. Several weeks after Thompson began working at Casino Magic, the Dubuque Belle arrived and

moored adjacent to the Casino Magic barge to provide additional gaming and dining. The

uncontradicted affidavits of Tina Frederiksen and Matthew Semski stated that the Dubuque Belle was

not operated on a permanent basis but only used during the Summer of 1993 to handle overflow

crowds. The affidavits noted that no change persons were permanently assigned to the Dubuque

Belle, but rather, were assigned varying work locations prior to the beginning of every shift based on

personnel availability, the number of patrons, and several other factors. Workers' activities and

responsibilities remained the same regardless of the location assigned. Furthermore, workers were

deliberately rotated off the Dubuque Belle since it attracted fewer patrons and was thereby less

desirable to work.

¶4. After returning to work for two days, Thompson remained home for several months. Thompson

returned to work on November 11, 1993, and resumed her regular duties as change person. The

Dubuque Bell had sailed away by November 11th when she returned. On her first day back at work,

Thompson fainted and fell to the floor of the Casino Magic barge, injuring her neck and back. Factual

dispute exists as to whether this injury was caused by and related to the first injury. However, for

summary judgement purposes, this Court will assume that the second injury was caused by and

related to the first injury.

LEGAL ANALYSIS

I.

WHETHER THE COURT HAD AUTHORITY TO GRANT SUMMARY JUDGEMENT ON

WHETHER THOMPSON WAS "SEAMAN"?

¶5. Thompson contends that the circuit court improperly granted summary judgement because

whether an employee is a "seaman" is an issue of fact for a jury to determine. Thompson is partially

correct in her assertion. "However, seaman status may be decided on summary judgment where the

evidence does not support a finding, as a matter of law, that the claimant is permanently assigned to a

Jones Act vessel." Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 565 (5th Cir.

1995) (quoting Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292 (5thCir. 1990)). "And

where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to

vessels in navigation, the court may take the question from the jury by granting summary judgment or

a directed verdict." Chandris, Inc. v. Latsis, 515 U.S. 347, 371 (1995) (citation omitted). The facts

were undisputed here and the trial court properly granted summary judgment finding Thompson was

not a seaman.

II.

WHETHER THE COURT PROPERLY DETERMINED THAT THE CASINO BARGE WAS

NOT A "VESSEL" FOR PURPOSES OF THE JONES ACT?

¶6. Casino Magic concedes that the Dubuque Belle is a "vessel" for purposes of the Jones Act. It was

on this "vessel" that Thompson incurred her first injury. For summary judgement purposes, this Court
will assume that the second injury was caused by and related to the first injury. Therefore, this case

must be decided on the issue of Thompson's status of a "seaman" and not whether the Casino Magic

barge is a "vessel". The lower court determined that the Casino Magic barge was not a "vessel" for

purposes of the Jones Act, and therefore summary judgement was proper. This Court recently

determined that shore side casinos constructed out of navigable barges were not vessels for purposes

of federal maritime law. King v. Grand Casinos of Mississippi, Inc.- Gulfport, 697 So. 2d 439

(Miss. 1997). King defers to the Fifth Circuit federal court ruling that moored barges for gambling

are not vessels under federal maritime law. Pavone v. Mississippi Riverboat Amusement Corp., 52

F.3d 560 (5th Cir. 1995) consolidated with Ketzel v. Mississippi Riverboat Amusement, Ltd., 867

F.Supp. 1260 (S.D.Miss. 1994).

¶7. King affirmed summary judgement in favor of the casino when employees injured on the job

sought remedies under federal maritime law. Determining that shore side gambling casinos made on

navigable barges were not "vessels" for purposes of federal maritime law, King deferred to Pavone's

analysis of common attributes for nonvessels:

(1) The structure was constructed to be used primarily as a work platform;

(2) the structure is moored or otherwise secured at the time of the accident; and

(3) although the platform is capable of movement, and is sometimes moved across navigable

waters in the course of normal operations, any transportation function is merely incidental to

the platform's primary purpose.

Pavone, 52 F.3d at 570 (citations omitted). Even considering these attributes, to say a casino barge is

not a "vessel" under federal maritime law in all circumstances is overly broad and incorrect. These

barges are capable of moving on navigable waters and several casino barges have been moved due to

inclement weather as well as to relocate for business reasons. If an accident occurs during one of

these moves and a worker is injured during that move, it is possible that the worker may classify as a

"seaman" and his claim should not be barred because this Court has determined as a matter of law

that the casino barge is not a "vessel". This would fly in the face of the very purpose of the Jones Act,

namely to protect workers who do the ship's work and are regularly exposed to the perils of the sea.

Chandris, 515 U.S. at 369. Even the Court in Pavone addressed this issue when it stated,

We have nagging concerns nevertheless that vessel analyses of the kinds performed by the

district courts in the instant cases could be overbroad, albeit through inadvertence, and thereby

return to haunt us in slightly differing contexts in the future.[FN23] We conclude that the

correct result reached by the district courts in these cases can be achieved in a narrower--and

thus a jurisprudentially more principled--way, thereby avoiding the potentiality of undesirable

future side effects.

[FN23] For example, whether floating casinos, bars, restaurants, etc. would be Jones Act

vessels for purposes of accidents occurring while they were being towed to a new location or to

a shipyard or dry dock for work or repairs or to sheltered waters in avoidance of a hurricane.

The approach we adopt infra also avoids the conflict in "vessel" status among the Jones Act,

the general maritime law, state casino licensing classification, Coast Guard documentation, and

"dictionary" definitions.
Pavone, 52 F.3d at 568.

¶8. Thompson also claims that public policy demands that the casino barge be defined as a "vessel"

for maritime law in accordance with the Mississippi statutes which permit gambling. Miss. Code Ann.

§§ 97-33-25 (1994) and 27-109-1 (1990). King addressed this specific point and found it to be

without merit. King states:

The term "vessel" has an entirely different meaning in the context of federal maritime law than

in the context of the gaming licensing statutes of this State. Assuming that the Grand Casinos is

in fact a "vessel" for the purposes of this State's gaming regulations, said fact is nevertheless

utterly irrelevant to the issue of whether said casino constitutes a "vessel" for purposes of the

federal maritime law. The definition of "vessel" in § 27-109-1 makes no reference whatsoever

to the definition of "vessel" under either Jones Act legislation and/or under general maritime

case law, nor, of course, do the applicable maritime cases on point make reference to the

gaming statutes of this State in defining the term "vessel".

King, 697 So. 2d at 442-43. However, it should be made clear that in each case the trial court must

consider the factual circumstances of each particular case in light of the concerns expressed in this

opinion as well as by the Fifth Circuit's comments in Pavone v. Mississippi Riverboat Amusement

Corp. as quoted supra when determining if a particular barge is a vessel for purposes of federal

maritime jurisdiction. On the facts of this particular case, since Thompson is not a seaman, we need

not determine whether the Casino Magic Barge is a vessel for maritime purposes.

III.

WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THOMPSON

WAS NOT A "SEAMAN" FOR PURPOSES OF THE JONES ACT AND GENERAL

MARITIME LAW?

¶9. The Jones Act does not define "seaman." For years courts differed as to the appropriate test.

However, recently, the United States Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347

(1995), addressed the appropriate requirements for seaman status under the Jones Act, distinguishing

between the "ship's crew" and those members of the maritime community whose employment is

essentially land-based. After a rather lengthy historical discussion of the various approaches the

courts have taken when determining seaman status, the U.S. Supreme Court stated that there were

two essential requirements for seaman status:

First, as we emphasized in Wilander, "an employee's duties must 'contribut[e] to the function of

the vessel or to the accomplishment of its mission.' " 498 U.S., at 355 (quoting Robison, 266

F.2d, at 779). The Jones Act's protections, like the other admiralty protections for seamen, only

extend to those maritime employees who do the ship's work. But this threshold requirement is

very broad: "All who work at sea in the service of a ship" are eligible for seaman status. 498

U.S., at 354.

Second, and most important for our purposes here, a seaman must have a connection to a vessel

in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its

duration and its nature. The fundamental purpose of this substantial connection requirement is
to give full effect to the remedial scheme created by Congress and to separate the sea-based

maritime employees who are entitled to Jones Act protection from those land-based workers

who have only a transitory or sporadic connection to a vessel in navigation, and therefore

whose employment does not regularly expose them to the perils of the sea. See 1B A. Jenner,

Benedict on Admiralty, § 11a, pp. 2-10.1 to 2-11 (7th ed. 1994) ("If it can be shown that the

employee performed a significant part of his work on board the vessel on which he was injured,

with at least some degree of regularity and continuity, the test for seaman status will be

satisfied" (footnote omitted)). This requirement therefore determines which maritime employees

in Wilander 's broad category of persons eligible for seaman status because they are "doing the

ship's work," 498 U.S., at 355, are in fact entitled to the benefits conferred upon seamen by the

Jones Act because they have the requisite employment-related connection to a vessel in

navigation.

Chandris, 515 U.S. at 368-369. The U.S. Supreme Court went on to say that the lower courts'

various approaches to determining seaman status make the same point:

...The Jones Act remedy is reserved for sea-based maritime employees whose work regularly

exposes them to "the special hazards and disadvantages to which they who go down to sea in

ships are subjected." Sieracki, 328 U.S., at 104, 66 S.Ct., at 882 (Stone, C.J., dissenting). . . .

In our view, "the total circumstances of an individual's employment must be weighed to

determine whether he had a sufficient relation to the navigation of vessels and the perils

attendant thereon." Wallace v. Oceaneering Int'l, 727 F.2d 427, 432 (CA5 1984). The

duration of a worker's connection to a vessel and the nature of the worker's activities, taken

together, determine whether a maritime employee is a seaman because the ultimate inquiry is

whether the worker in question is a member of the vessel's crew or simply a land-based

employee who happens to be working on the vessel at a given time.

Chandris, 515 U.S. at 370. The U.S. Supreme Court concluded that a seaman must have a

substantial connection with a vessel in navigation both in duration and nature. Id.

¶10. The Court went on at length to explain seaman status was not a transitory state which changed

each day or hour, oscillating between Jones Act coverage and other remedies. Id. at 372. A seaman

injured on the land does not lose seaman status, just as a land-based employee is not a seaman and

member of the crew simply because he is injured on the vessel in navigation. Thus, the site of injury is

not the determinative factor. The status of the individual as a seaman is based on his/her substantial

status as a member of the crew, and the substantial relationship to the vessel and its navigation in the

water. Id. at 360-361. Simply put, "a maritime worker does not become a 'member of a crew' as soon

as a vessel leaves the dock." Id. at 361.

¶11. In the case sub judice, the trial court correctly determined that Thompson did not meet the

criteria of Chandris and concluded that she was not a "seaman." The uncontradicted affidavits of

Tina Frederiksen and Matthew Semski establish that the duties of a change person remained the same

regardless of the particular work assignment being the casino proper or the Dubuque Belle.

Thompson had a very temporal relationship with the Dubuque Belle because she worked on the

vessel only one day. However, had the injury not occurred on her first day on the Dubuque Belle, she

still would not have been considered part of the ship's crew. Thompson did not have a substantial
relationship with the nature of the Dubuque Belle's navigation nor did she expose herself to the perils

of sea because she never worked on the vessel while out at sea, but only while docked. Simply put,

Thompson was a land-based worker who happened to receive injury while aboard a vessel.

¶12. Thompson was not a seaman for two distinct reasons. First, Thompson's relationship to a ship in

navigation (the Dubuque Belle) was so temporal that she was not a seaman. The substantial

connection requirement is used to distinguish land-based and sea-based employment. Harbor Tug

and Barge Co. v. Papai, 117 S.Ct. 1535 (1997). The basis of a determination of seaman status is the

"employee's connection to a vessel in navigation." McDermott International, Inc. v. Wilander, 498

U.S. 337, 354 (1991). The same analysis is appropriate in the case sub judice. Thompson had no

duties while the boat was in motion, she slept at home, boarded off ship and was an hourly wage

earner. Therefore, Thompson was more like a casual worker on the water, not a seaman. Second, she

was not a seaman because she fails to classify as part of the crew with regard to the navigation and

operation of the Dubuque Belle at sea. Clearly, if the Dubuque Belle left the dock and sailed around

the Gulf of Mexico and Thompson was on board as a change person, she would probably be

considered a seaman. However, the Dubuque Belle remained moored when operating as an overflow

casino. The crew of the Dubuque Belle presumably stayed aboard to assure that various equipment

worked properly when the ship would again sail. These crew members retain seaman status.

However, Thompson did not participate in the ship's actual sailing in the sea. The Jones Act was

passed to provide further protection for persons who subjected themselves to the perils of the sea.

Clearly, Thompson, who never was at sea on the Dubuque Belle nor subjected herself to the perils of

the sea, can not be classified as a seaman.

IV.

WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT

ADDRESSING THE DOCTRINE OF UNSEAWORTHINESS IN MARITIME LAW?

¶13. Thompson contends that the trial court's grant of summary judgement failed to address her

maritime claim of unseaworthiness. However, the trial court implicitly addressed Thompson's

unseaworthiness claim by determining that Thompson was not a seaman. Unseaworthiness claims are

predicated on a determination that the claimant was a seaman. Therefore, this Court concludes that

this contention is without merit.

CONCLUSION

¶14. The trial court properly granted summary judgement in favor of Casino Magic because

Thompson is not a "seaman". Even considering the facts in the most favorable light to Thompson's

claims, including the factual premise that all of her injuries resulted from the initial injury while

assigned to the Dubuque Belle (and there is a factual dispute on this point), Thompson fails to attain

seaman status. Even if Thompson's injuries occurred on the Dubuque Belle the last day the Dubuque

Belle operated at the Grand Casino, Thompson's relationship to the navigation of the Dubuque Belle

was temporal and unsubstantial in nature. Therefore, the trial court properly granted summary

judgement in favor Casino Magic based on this determination alone. Accordingly, the judgment

below is affirmed.

¶15. AFFIRMED.
PRATHER, C.J., PITTMAN, P.J., BANKS, ROBERTS, SMITH, MILLS AND WALLER,

JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.