1 Easley v. Southern Shipbuilding Corp. (Easley I), 936 F.2d 839 (1991).

2 ––– U.S. ––––, 112 S.Ct. 486, 116 L.Ed.2d 405 (1991). United States Court of Appeals,

Fifth Circuit.

No. 91–3021

Summary Calendar.

Steven L. EASLEY, Plaintiff–Appellant,

v.

SOUTHERN SHIPBUILDING CORPORATION, Defendant–Appellee.

July 7, 1992.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOHNSON, SMITH, and WIENER, Circuit Judges.

ON REMAND FROM THE UNITED STATES SUPREME COURT

WIENER, Circuit Judge:

This court previously affirmed the grant of a summary judgment by the district court for the

East ern Dist rict of Louisiana, on facts set out in greater detail in our opinion. 1 As a result of it s

recent pronouncement regarding the status of seamen vis-à-vis longshoremen and harbor workers,

the Supreme Court vacate d our decision i n E asley I, remanding it for reconsideration in light of

Southw est Marine, Inc. v. Gizoni. 2 We do so now.

I.

FACTS

Steven Easley was employed by Southern Shipyards for approximately twenty years. At the

time of his accident , Easley was working as a mechanic. His duties included repairing land-based

locomotive cranes, stationary cranes, and yard equipment; cutting grass; working in the compressor

room; and maintaining Southern's dry dock. Easley also worked occasionally as a substitute deck

hand aboard the D/B SOUTHERN NO. 6 (the NO. 6), a derrick barge owned by Southern and most3 46 U.S.C.App. § 688 (1988).

4 33 U.S.C. § 901 et seq. (1988). often used in salvage operations. Easley claims to have worked—and for purposes of this appeal we

assume that he did work—eleven and a half percent of his time on the NO. 6. Easley was injured in

May o f 1989 while substituting for a regular crewman as a deck hand on the NO. 6 on a one-day

salvage job on the Mississippi River.

Easley filed suit against Southern, alleging that he was a seaman and entitled to recover under

the Jones Act 3 for injuries received as a result of Southern 's negligence. In granting Southern's

motion for summary judgment on the question of seaman status, the district court reasoned that as

Easley did not perform a substantial part of his work on a vessel he was not eligible for seaman status.

Easley then amended his complaint, claiming negligence under § 905(b) of the Longshore and Harbor

Workers' Compensation Act (LHWCA). 4 The district court granted Southern's motion for summary

judgment on the § 905(b) claim too, finding that Easley was a ship repairer, one of several classes of

workers expressly excluded from coverage under § 905(b). We affirmed the district court, and Easley

applied to the Supreme Court for a writ of certiorari. When the Court released its opinion in G izoni,

it granted Easley's writ and remanded the case to us for reconsideration consistent with that opinion.

II.

ANALYSIS

Our affirmation in Easley I of the district court's limitation on Easley's recovery followed two

p arallel lines of reasoning. One line involved the relationship between Easley's status under t he

LHWCA and his asserted status as a seaman under the Jones Ac t . The second line involved the

relationship between Easley's regular job as a ship repairer and his desire to proceed with a negligence

action against Southern under § 905(b) of the LHWCA. We discuss these two lines of reasoning

below in inverse order to determine the effect of Gizoni on each.5 Gay v. Barge 266, 915 F.2d 1007, 1010 (5th Cir.1990). Section 2(3) of the LHWCA lists

occupational titles that are "employees" under the Act. Section 5(b) of the Act gives workers a

negligence action against the owner of a vessel, but excludes classes of workers, one of which is

ship repairers, if they are employed by the vessel and are injured by the negligence of someone

similarly employed.

6 33 U.S.C. § 905(b).

7 812 F.2d 977, 983 (5th Cir.), reh'g denied, 823 F.2d 552 (1987), cert. denied, 484 U.S.

1059, 108 S.Ct. 1013, 98 L.Ed.2d 978 (1988). A. Analysis Unaffected by Gizoni

Our second line of reasoning in Easley I —concerning the ability of a ship repairer to bring

a negligence action under § 905(b) of the LHWCA—was unaffected by the Gizoni decision. This

court has stated in the context of the LHWCA that "[i]f the employee's permanent duties, or hi s

interim duties over an appreciable period of time, are such that he would be a covered ship repairer

within the meaning of § 902(3) of the LHWCA, then he is barred from bringing [a negligence] suit

against his employer under § 905(b)." 5 When, in a situation involving an employer who is the

shipowner, there has been a primary determination that the worker is not a seaman for purposes of

the Jones Act but that he is covered by the LHWCA, and a secondary determination that the worker's

trade is that of ship repairer or any of the other occupations listed in § 905(b), the worker is barred

by the terms of that section from maint aining a negligence action against his employer, assuming that

"the injury was caused by t he negligence of persons engaged in providing shipbuilding or repair

services." 6 This analysis remains correct; it was not affected by Gizoni.

B. Analysis Overruled by Gizoni

By contrast, the Gizoni decision implicit ly overruled this circuit's position on the inabilit y of

a worker whose job description is listed in § 902(3) of the LHWCA to claim Jones Act coverage as

a seaman. We had held, in P izzitolo v. Electro–Coal Transfer Corp., 7 that if a worker's occupation

was one "expressly enumerated in the [LHWCA]" and the worker met the Act's situs requirement,

no inquiry would be made into the worker's status as a seaman—thus, there could be no negligence

act io n under the Jones Act. The worker would be limited to compensation under the LHWCA8 112 S.Ct. at 490 (citing App. to Pet. for Cert. I–2).

9 Id. at 492 (quoting McDermott Int'l, Inc. v. Wilander, ––– U.S. ––––, 111 S.Ct. 807, 818,

112 L.Ed.2d 866 (1991)).

10 111 S.Ct. at 818.

11 Id. because, as discussed earlier, these workers cannot bring a negligence action under § 905(b).

When, in Gizoni, the Supreme Court held that a worker whose oc cupation was l i sted i n §

902(3) was not a ut o mat ically barred from claiming coverage under the Jones Act, it overruled

Pizzitolo. The district court in G izoni had granted summary judgment because "Gizoni was a harbor

worker precluded from bringing his action by the exclusive remedy provisions of the LHWCA, 33

U.S.C. § 905(a)." 8 The Supreme Court stated that the district court's holding, though "in line with

Fift h Circuit precedent, ... ignores the fact that some maritime workers may be Jones Act seaman

performing a job specifically enumerated under the LHWCA." The Court stated further that " "[i]t

is not the employee's particular job that is determinative, but the employee's connection to a vessel.'

" 9

C. Easley's Status

The Gizoni decision nullifies the facet of our Easley I analysis which held that because

Easley's position was one listed in § 902(3) of the LHWCA, he could not be covered by the Jones

Act. G izoni does not, however, foreclose the abilit y of the district court to grant summary judgment

regarding seaman status for workers whose jobs, like Easley's, are thus listed, when undisputed facts

(other than such a listing) support such a judgment. G izoni relies extensively on McDermott

International, Inc. v. Wilander, 10 in which the Supreme Court stated that, although the jury is to find

the facts and apply the legal standard of seaman status to the facts thus found, the trial court "must

not abdicate its duty to determine if there is a reasonable basis to support" a jury's conclusion that

seaman status existed. 11 The Wilander Court continued, "summary judgment or a directed verdict12 Id. at 818 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250–51, 106 S.Ct.

2505, 2510, 2511–12, 91 L.Ed.2d 202 (1986)).

13 The district court granted summary judgment regarding seaman status four months before

Wilander was decided.

14 111 S.Ct. at 817 (emphasis added).

15 Id. at 818.

16 Id.

17 Id. at 817 (quoting Lawson, 94 F.2d 190, 192 (5th Cir.1938)). is mandated where the facts and the law will reasonably support only one conclusion." 12 Thus, after

Gizoni, the question for this court in our plenary review of a grant of summary judgment on the issue

of seaman status—ultimately an issue of fact—is whether application of the legal standard set out in

Wilander 13 to the undisput ed hist orical facts of the case under consideration makes summary

judgment for the defendant proper because the law will not reasonably support another conclusion.

The Wilander Court declared that th e key to the issue of "seaman status is

employment-related c onnection to a vessel in navigation. " 14 To grant summary judgment for the

defendant, a court must determine that there is no reasonable basis in fact to support a jury verdict

that the plaintiff's connection to the vessel in question is sufficient to bestow seaman status. 15

Although the Court did not precisely define the boundaries of the seaman status, it held that

"a necessary element of the connection is that a seaman perform the work of the vessel." 16 The Court

also quoted Maryland Casualty Co. v. Lawson, stating " "[t]here is implied a definite and permanent

connection with the vessel, an obligation to forward her enterprise.' " 17 In the instant case, the district

c ourt held as a matter of law that Easley could not be a seaman. For the purposes of its

consideration, the court assumed the truth of Easley's allegation that he worked eleven and a half

percent of his time on the NO. 6 and spent his remaining time performing his primary responsibilities

of land-based work. On that basis the court held that, as Easley failed to perform a "substantial part18 See Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir.1986) (en banc).

19 Walker v. Sears Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988).

20 266 F.2d 769 (5th Cir.1959), cited approvingly in Wilander, 111 S.Ct. at 817; see also

Lawson, 94 F.2d at 192. of his work on a vessel," he was not a seaman as a matter of law. 18

This court reviews the grant of summary judgment de novo, using the same criteria relied on

by the district court in the first instance. 19 For the purposes of the case s ub judice, we must decide

whether, as a matter of law, summary judgment is proper when a permanently assigned land-based

worker nevertheless works eleven and a half percent of his employment time on one of his employer's

vessels, performing traditional seaman duties.

For purposes of this inquiry, it is important to note that just as the worker's performance of

non-maritime wor k does not prohibit seaman status, his performance of traditional maritime work

does not confer seaman status. Based on the summary judgment evidence in the record of this case,

viewed in the light most favorable to the non-movant, we find that as to the NO. 6 Easl ey did not

have the "employment-related connection to a vessel in navigation" required by Wilander, and

therefore could not be deemed a seaman for purposes of coverage under the Jones Act. Irrespective

of the traditional marit ime nature of Easley's work on the occasions when he was aboard the NO. 6,

the irregularity of his intermittent stints of short duration on that vessel , sporadically interspersed

between long periods of perf o rming his regular land-based functions, eschews the substantial and

enduring relationship to the vessel envisioned in Gizoni, Wilander, and Lawson. Easley's connection

to the NO. 6 was simply too attenuated to constitute seaman status.

To understand fully the concept of "employm ent -related connection to a vessel in

navigation," we look to this circuit's traditional definition of a Jones Act seaman announced decades

ago in Offshore Co. v. Robison. 20 To be covered as a seaman under the Jones Act, a worker must:21 See Palmer v. Fayard Moving & Transp. Corp., 930 F.2d 437, 439 (5th Cir.1991) (holding,

after the Wilander

decision, that a worker who spent nineteen percent of her time aboard a vessel

was not covered by the Jones Act as a matter of law); Barrett, 781 F.2d at 1074–75 (en banc)

(holding a worker "who performed no more than twenty to thirty percent of his work on vessels"

not to be a seaman); Ward v. Reeled Tubing, Inc., 637 F.Supp. 33, 37–38 (E.D.La.1986)

(holding worker who spent twenty percent of his time on vessels was not a seaman). (1) be permanently assigned to a vessel in navigation or perform a substantial part of his work on the

vessel; and (2) contribute to the mission of the vessel. Easley was not permanently assigned to the

NO. 6; he was a land-based employee. Neither did he perform a substantial part of his work on the

vessel. Clearly neither R obison nor Wilander and Gizoni envision a "snapshot" test for seaman status,

inspecting only the situation as it exists at the instant of injury; a much more enduring relationship

is contemplated in the jurisprudence. At least three cases in this circuit involved workers who spent

greater percentages of their employment time on vessels than did Easley, yet the worker in each case

was held not to be seaman as a matter of law. 21 We do not imply that the quantum or percentage of

a worker's time spent on a vessel in navigation is either the sole factor or the determinative factor in

the search for seaman status. But considering this circuit's consistent precedent, it is impossible for

us to conclude that Easley, who spent at most eleven and a half percent of his time on a vessel, was

a seaman for purposes of the Jones Act, particularly when viewed in light of other factors affecting

his connection with the subject vessel.

III.

CONCLUSION

Upo n revisiting this appeal as instructed by the Supreme Court on remand following the

Court's Gizoni decision, we still find no reversible error in the district court's summary judgment to

the extent t hat it held that Easley was not a Jones Act seaman. Consequently, the holding of the

district court that Easley is not entitled to bring a negligence action either as a seaman under the Jones

Act or as a shipbuilder under § 905(b) of the LHWCA is AFFIRMED.