Venice, Italy - May 20, 2016: Construction site for the realization of the movable bulkheads system called MOSE to save Venice from tides.

By R. Chauvin Kean

On October 19, 2016, the Louisiana Third Circuit Court of Appeal in Guidry v. ABC Ins. Co., 2016-61 (La. App. 3 Cir. 10/19/16); — So. 3d — affirmed that a welder injured while assisting in the construction of a bulkhead in Grand Isle, LA was a seaman and that the floating mat on which he was injured was an appurtenance of the barge.

Plaintiff, Ernest Guidry, was hired as a welder for Tanner Services, LLC, which was awarded a contract to construct a bulkhead made of king and sheet piles. The contract involved a land division and a marine division. Plaintiff was assigned to the marine division in order to assist in the welding of the various metal sheet piles as they were lowered via a crane barge stationed adjacent to the construction site. The marine division consisted of two tugs and three barges from which operations were centered.

The vast majority of Plaintiff’s work was spent on a “floating mat,” which was described as a raft or floating scaffolding that was affixed to the various piles via ropes, that were used to relocate and move the mat along the bulkhead as construction progressed. At various times, when necessary, the mat was lifted by the barge’s crane and stored on its deck. Plaintiff spent approximate 50-60% of his time on the floating mat, 30-40% of his time on the barge, and 10% on land.

During construction operations, a steel pile vibrating hammer, being lifted by the crane on the barge, fell onto Plaintiff as he worked on the floating mat below. Plaintiff suffered numerous injuries and filed suit for seaman benefits under the Jones Act and was awarded general and special damages. Plaintiff’s employer, Tanner Services, LLC, appealed.

Examining the trial court’s determination that Plaintiff was a seaman under Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995), the Third Circuit affirmed the holding based upon his duration of work on the barge and the floating mat. The Third Circuit also found that Plaintiff’s “duties contributed to the barges’ mission and function, the building of the bulkheads, and thus making them inherently vessel-related and fulfilling of the substantial nature requirement of the Chandris test.”

The most interesting portion of this opinion was the court’s determination that the floating mat was an appurtenance of the barge/vessel. Generally, “an appurtenance is any identifiable item that is destined for use aboard a specifically identifiable vessel and is essential to the vessel’s navigation, operation, or mission.” Clay v. ENSCO Offshore Co., 146 F. Supp. 3d 808, 813 (E.D. La Nov. 19, 2015). In Drachenberg v. Canal Barge Co., Inc., the seminal case from which the Fifth Circuit relied on two prior U.S. Supreme Court cases to base its opinion, the court announced various factors that could be used to determine if a piece of equipment was in fact an appurtenance to a vessel. 571 F. 2d 912, 918-21 (5th Cir. 1978). The guiding principle is predicated on the principle that one extending credit to a vessel has the right to assume that the entire vessel, including all her equipment essential to her function and mission, stands as security for the debt. Thus, the appurtenance must be essential to the vessel’s mission and purpose for which it was hired and must be used in conjunction with the vessel’s primary function at the time of the accident.

One essential element that was lacking in this case that is typically found in other appurtenance designations is physical connection to the vessel at the time of the accident. Although not essential to such determination, the U.S. Fifth Circuit has relied on the connection factor to determine that a piece of equipment that is temporarily attached to a vessel was so integral to the operations that it was in fact an appurtenance of the vessel. See, Drachenberg, 571 F. 2d at 920-921. Here, there are no facts in the opinion discussing whether the floating wooden mat was affixed to the barge at the time of the accident. In fact, the case facts state that the mat was primarily “tethered” to the bulkhead and moved by the rope system, without the mention of the barge’s interaction. The only mention of the mat’s physical connection to the barge is when, for certain reasons, the crane atop the barge would, on occasion, lift the mat out of the water for storage. Thus, this finding by the Louisiana Third Circuit greatly extends the classification of vessel appurtenances; mere wooden boards placed together to act as a platform adjacent to the bulkhead, without physically connection to the vessel at the time of the accident, was deemed an appurtenance of the vessel.

Ship owners and operators should take notice that the Louisiana Third Circuit has found that physical connection to a vessel does not necessarily determine if a piece of equipment is an appurtenance of a vessel. Here, the court held that but for the use of the floating mat, the bulkhead construction operations could not have been completed as tasked. This determination was amplified by a company representative’s testimony that declared that the mat was essential to the operations.

The consequence of ruling that the mat was an appurtenance to the vessel allowed the court to determine that all time spent on the floating mat could be contributed to the employee’s status as a seaman: his time and substantial connection to the vessel and its mission. Thus, because of the time Plaintiff worked “on the vessel” and its “appurtenance,” the employee was deemed a seaman. If appealed, the Louisiana Supreme Court may still find that Plaintiff was a seaman based upon Mr. Guidry’s percentage of time spent on the barge; thus, further appeal may not occur. This opinion is yet another example of the Louisiana Third Circuit developing new and more liberal views on maritime related issues in recent years.