United States Court of Appeals Fifth Circuit F I L E D REVISED NOVEMBER 16, 2005 IN THE UNITED STATES COURT OF APPEALS October 25, 2005

Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk

No. 04-30732

ADDIE HOLMES,

Plaintiff-Appellant,

versus

ATLANTIC SOUNDING COMPANY INC; WEEKS MARINE INC; ABC INSURANCE CO; XYZ INSURANCE CO,

Defendants-Appellees;

----------------------------------------------------- Cons. No. 04-30750

ADDIE HOLMES,

Plaintiff-Appellant,

versus

ATLANTIC SOUNDING COMPANY INC; ABC INSURANCE CO INC,

Defendants-Appellees.

-------------------------- Appeals from the United States District Courts for the Western District of Louisiana --------------------

Before WIENER, DEMOSS, and PRADO, Circuit Judges.

WIENER, Circuit Judge: In this consolidated appeal of two state actions that were

removed to different district courts, Plaintiff-Appellant Addie

Holmes appeals the denial of her motion to remand and the dismissal

of her Jones Act and general maritime law personal injury suit

against defendants-appellees, Atlantic Sounding Co., Inc.

(“Atlantic”), her nominal payroll employer, and Weeks Marine, Inc.

(“Weeks”), for which she was actually performing services at the

time in question. The dispositive issue —— whether an unpowered

floatable structure like Weeks’s quarterbarge BT-213 (“the BT-

213”), on which Holmes was working when injured, is a vessel for

Jones Act purposes —— is not one of first impression in this

circuit. We resolved this issue in Gremillion v. Gulf Coast

Catering Co.,1 answering the question in the negative; however, the

Supreme Court’s recent decision in Stewart v. Dutra Construction

Co.2 calls into question the analysis underlying our holding in

Gremillion. We therefore must determine what effect, if any,

Stewart has on this aspect of our vessel jurisprudence. We affirm.

I. FACTS

Holmes sued defendants-appellees Atlantic and Weeks

(collectively, “appellees”) in Louisiana state court seeking

damages for injuries that she allegedly sustained on her first day

of work as a cook aboard the BT-213. Holmes is a Louisiana

1

(5th Cir. 1990). 2 —— U.S. ——,

(2005).

2 domiciliary. Both Atlantic and Weeks are New Jersey corporations

with their principal place of business in Cranford, New Jersey.

The BT-213 is 140 feet long and 40 feet wide. It is, in

effect, a floating dormitory, a barge on the deck of which a two-

story, 50-bed “quarters package” is mounted. Weeks causes the BT-

213 to be moved from place to place to house and feed employees

during dredging projects at various locations. The BT-213 has

sleeping quarters on both stories, as well as toilet facilities, a

fully-equipped galley, locker rooms, freshwater deck tanks, diesel-

powered electrical generators, and a gangway with railings. The

BT-213’s entire “crew” consists of two cooks and two janitors.

There is no record evidence that they are transported on the BT-213

while it is moved from one site to another.

The BT-213 is towed by tugs between project locations. It is

sometimes towed by itself and, at times, together with other

barges. Weeks temporarily installs battery-operated running lights

on the BT-213 when it is to be towed by itself. When the BT-213 is

not in use, it is held in a boat slip at Weeks’s facility in Houma,

Louisiana. At the time of Holmes’s accident, the BT-213 was moored

in a private boat slip at Holly Beach in Cameron Parish while the

crew of Weeks’s dredge worked in the Gulf of Mexico. The BT-213

arrived at Holly Beach in August 2002 and had not moved before

Holmes’s accident the following month.

The BT-213 has never been inspected by or registered with the

Coast Guard. It is not intended to transport personnel, equipment,

3 passengers, or cargo, and no evidence in the record reflects that

it has ever done so or is capable of doing so. It is not fitted

out with winches, running lights, a radar, a compass, engines,

navigational aids, Global Positioning System, lifeboats, or

steering equipment such as rudders. It is incapable of self-

propulsion; has no captain, engineer, or deckhand; has no bilge

pumps or wing tanks; and has never been offshore.

On the other hand, the BT-213 has a raked bow on each end, and

“two end tanks where the rakes are . . . for flotation.” It has a

radio that is used primarily to communicate with the dredge. It is

equipped with bits or bollards that are used to tie it to the shore

or to other vessels or structures. It is sometimes moored by

anchors and is equipped with life rings and portable water pumps.

Holmes alleges that when she attempted to place her belongings

in her locker on the BT-213, both the locker and a television set

that was on top of it fell on her as she opened the locker door.

She alleges further that the accident caused injuries to her neck,

shoulder, ears, and nose and caused dizziness as well.

Holmes sued Atlantic and Weeks in Louisiana state court,

asserting claims under the Jones Act3 and general maritime law.

She later filed a second suit in Louisiana state court against only

Atlantic, seeking maintenance and cure.

3

.

4 These cases were removed to different federal district courts.

In their respective removal notices, Atlantic and Weeks advanced

that Holmes fraudulently pleaded a Jones Act claim to prevent

removal to federal court and that diversity jurisdiction existed

under

. Holmes responded with motions to remand

both suits. The magistrate judge ordered the parties to brief the

issue of Jones Act liability.

After discovery and briefing were complete, the magistrate

judge issued reports and recommendations in both suits, proposing

that the district courts deny Holmes’s motions to remand and enter

judgments in favor of Weeks and Atlantic. The magistrate judge

concluded that (1) the BT-213 is not a vessel for purposes of the

Jones Act, (2) Holmes could not establish any possibility of

recovery under the Jones Act, and (3) as diversity jurisdiction

existed, removal was proper. Holmes timely objected to the

magistrate judge’s report and recommendation.

In June 2004, the district court to which Holmes’s maintenance

and cure suit against Atlantic had been removed adopted the report

and recommendation and issued a partial final judgment in favor of

Atlantic. After Holmes conceded that no other viable claims

remained, the district court amended the partial final judgment to

reflect its finality.

One month later, the district court to which Holmes’s Jones

Act and general maritime law suit against Weeks and Atlantic had

been removed adopted the magistrate judge’s report and

5 recommendation, denied Holmes’s motion to remand, and dismissed her

Jones Act claim. The court certified the partial final judgment

under Federal Rule of Civil Procedure 54(b). Holmes timely filed

notices of appeal in both courts. We consolidated the appeals of

these two cases.

II. ANALYSIS

A. Standard of Review

We review the denial of a motion to remand de novo.4 We also

review a district court’s grant of summary judgment de novo.5

Whether an unconventional craft is a vessel is an issue that is

generally resolved as a matter of law, although we have recognized

that “at the margin, fact issues may be presented.”6

B. Issues

1. Removal

Generally, Jones Act cases are not removable from state

court.7 A fraudulently pleaded Jones Act claim does not, however,

4 S.W.S. Erectors, Inc. v. Infax, Inc.,

(5th Cir. 1996) (citing Allen v. R & H Oil & Gas Co.,

(5th Cir. 1995). 5 S.W.S. Erectors, Inc.,

(citing Lee v. Wal- Mart Stores, Inc.,

(5th Cir. 1994)). 6 Manuel v. P.A.W. Drilling & Well Serv.,

(5th Cir. 1998) (citing Ducote v. Keeler & Co., Inc.,

(5th Cir. 1992)). 7 See Burchett v. Cargill, Inc.,

(5th Cir. 1995).

6 bar removal.8 A defendant may “‘pierce the pleadings to show that

the Jones Act claim has been fraudulently pleaded to prevent

removal.’”9 The district court may use a “summary judgment-like

procedure” to determine whether a plaintiff has fraudulently

pleaded a Jones Act claim.10 “The court may deny remand where, but

only where, resolving all disputed facts and ambiguities in current

substantive law in plaintiff’s favor, the court determines that the

plaintiff has no possibility of establishing a Jones Act claim on

the merits.”11

To qualify as a seaman under the Jones Act, an employee must

first demonstrate that his duties “‘contribute to the function of

the vessel or to the accomplishment of its mission.’”12 Second, “a

seaman must have a connection to a vessel in navigation (or an

identifiable group of vessels) that is substantial in terms of both

its duration and its nature.”13 Atlantic and Weeks contend only

that the BT-213 is not a vessel under the Jones Act. Accordingly,

if Atlantic and Weeks carry their burden and demonstrate that there

8 See

9

(quoting Lackey v. Atlantic Richfield Co.,

(5th Cir. 1993)). 10 Id. at 176. 11 Hufnagel v. Omega Serv. Indus., Inc.,

(5th Cir. 1999) (citing Burchett,

). 12 Chandris, Inc. v. Latsis,

(1995) (quoting McDermott Int’l, Inc. v. Wilander,

(1991)). 13

7 exists no genuine issue of material fact as to the BT-213’s vessel

status, removal was proper, as was dismissal. For the following

reasons, we find that the BT-213 is not a vessel for Jones Act

purposes. Accordingly, we uphold the district court’s denial of

Holmes’s motions to remand.

2. Our Pre-Stewart “Vessel” Jurisprudence

“The existence of a vessel is a ‘fundamental prerequisite to

Jones Act jurisdiction’ and is at the core of the test for seaman

status.”14 The term “vessel” has, however, escaped precise

definition. The exotic watercraft that have been deemed vessels

and the heavy inquiry that surrounds each analysis of an

unconventional craft’s status has led even this court to recognize

that the “three men in a tub would . . . fit within our definition

[of a Jones Act seaman], and one probably could make a convincing

case for Jonah inside the whale.”15

Historically, we have noted that the term “vessel” connotes a

structure designed or used for “transportation of passengers, cargo

or equipment from place to place across navigable waters.”16 “As

a general principle, where the vessel status of an unconventional

14 Daniel v. Ergon, Inc.,

(5th Cir. 1990) (quoting Bernard v. Binnings Constr. Co.,

(5th Cir. 1984)). 15 Burks v. Am. River Transp. Co.,

, 75 (5th Cir. 1982). 16 Cook v. Belden Concrete Prods.,

(5th Cir. 1973).

8 craft is unsettled, it is necessary to focus upon ‘the purpose for

which the craft is constructed and the business in which it is

engaged.’”17 “The greater the structure’s resemblance to

conventional seafaring craft, the greater the odds of securing

vessel status.”18

To evaluate the purpose for which a craft is constructed, we

have considered: (1) whether the owner assembled or constructed the

craft to transport passengers, cargo, or equipment across navigable

waters; (2) whether the craft is engaged in that service; (3)

whether the owner intended to move the craft on a regular basis;

(4) the length of time that the craft has remained stationary; and

(5) the existence of other “objective vessel features,” such as:

(a) navigational aids; (b) lifeboats and other life-saving

equipment; (c) a raked bow; (d) bilge pumps; (e) crew quarters; and

(f) registration with the coast Guard as a vessel.19

To determine the business in which the craft is engaged,

“evaluating the craft’s transportation function is the key to

determining the craft’s status.”20 When the transportation function

of the craft is merely incidental to the craft’s primary purpose,

17 Gremillion v. Gulf Coast Catering Co.,

(5th Cir. 1990) (quoting Blanchard v. Engine & Gas Compressor Servs., Inc.,

, 1142 (5th Cir. 1978)). 18

19 Manuel,

; Gremillion,

. 20 Manuel,

(emphasis added).

9 we have consistently held that the craft is not a vessel.21 On the

other hand, when the transportation function of the craft is “an

important part of the business in which the craft was engaged,” we

have generally found the craft to be a vessel, even if it has also

served as a work platform.22 We have attributed three common

attributes to 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.23

3. Stewart

With this backdrop in mind, we turn to the recent Supreme

Court opinion in Stewart v. Dutra Construction Co.24 to determine

any possible effect on our vessel jurisprudence. In Stewart, the

plaintiff sued Dutra Construction Co. (“Dutra”) under the Jones Act

and the Longshore Harbors Workers’ Compensation Act (“LHWCA”) after

he injured himself on Dutra’s dredge, the Super Scoop.25 The Court

described the Super Scoop as follows:

21 See

22 See

23 Pavone v. Miss. Riverboat Amusement Corp.,

(5th Cir. 1995); Gremillion, 904 F,2d at 294. 24 —— U.S. ——,

(Feb. 22, 2005). 25 See

.

10 The Super Scoop is a massive floating platform from which a clamshell bucket is suspended beneath the water. The bucket removes silt from the ocean floor and dumps the sediment onto one of the two scows that float alongside the dredge. The Super Scoop has certain characteristics common to seagoing vessels, such as a captain and a crew, navigational lights, ballast tanks, and a crew dining area. But it lacks others. Most conspicuously, the Super Scoop has only limited means of self-propulsion. It is moved long distances by tugboat. . . . It navigates short distances by manipulating its anchors and cables.26

The district court granted summary judgment in favor of Dutra

“because the Super Scoop’s primary purpose was dredging rather than

transportation and because it was stationary at the time of

Stewart’s injury.”27 The district court held, as a matter of law,

that (1) the Super Scoop was not a vessel, and (2) Stewart could

not establish seaman status. The court of appeals affirmed.28 The

Supreme Court granted certiorari and reversed.

The Supreme Court granted certiorari “to resolve confusion

over how to determine whether a watercraft is a ‘vessel’ for

purposes of the LHWCA.”29 The Court stated that

provides the controlling definition of “vessel” for LHWCA

purposes:30 “every description of watercraft or other artificial

contrivance used, or capable of being used, as a means of

26

. 27

. 28

29

. 30 See

.

11 transportation on water.”31 Although the issue on which the Court

granted certiorari would appear at first to limit Stewart’s

precedential force to LHWCA cases only, we cannot read Stewart so

narrowly. Indeed, the Court’s opinion refers to the Jones Act and

the LHWCA interchangeably and nowhere limits § 3’s definition of

“vessel” to the LHWCA, either expressly or implicitly.

Other language in the opinion supports our conclusion that the

Court used Stewart to define “vessel” for purposes of both

statutes. After noting that the Jones Act does not define “seaman”

and that the LHWCA does not define “vessel,” the Court stated:

The Shipping Act of 1916 defines the term “vessel” for purposes of the Jones Act. See 46 U.S.C. App. § 801. However, the provisions of the Jones Act at issue here, § 688(a), speaks not of “vessels,” but of “seamen.” In any event, because we have identified a Jones Act “seaman” with reference to the LHWCA’s exclusion, see

(3)G) (“a master or member of a crew of any vessel”), it is the LHWCA’s use of the term “vessel” that matters. And, as we explain, the context surrounding Congress’ enactment of the LHWCA suggests that Rev. Stat. § 3, now

, provides the controlling definition of the term “vessel” in the LHWCA.32

Further, the Court observed that its earlier cases “show[ed] that

at the time Congress enacted the Jones Act and the LHWCA in the

1920’s, it was settled that § 3 defined the term ‘vessel’ for

purposes of those statutes.”33 The most telling indication that the

31

(emphasis added). 32

at 1124 n. 1. 33

.

12 Court considers Stewart’s holding applicable to the Jones Act is

found in the following language:

Applying § 3 brings within the purview of the Jones Act the sorts of watercraft considered vessels at the time Congress passed the Act. By including special-purpose vessels like dredges, § 3 sweeps broadly, but the other prerequisites to qualifying for seaman status under the Jones Act provide some limit, notwithstanding § 3’s breadth. A maritime worker seeking Jones Act seaman status must also prove that his duties contributed to the vessel’s function or mission, and that his connection to the vessel was substantial both in nature and duration. Thus, even though the Super Scoop is a “vessel,” workers injured aboard the Super Scoop are eligible for seaman status only if they are “master[s] or member[s]” of its crew.34

It is clear, then, that Stewart defines “vessel” for purposes of

both the Jones Act and the LHWCA. Given Stewart’s significant

broadening of the set of unconventional watercraft that must be

deemed vessels, however, we are convinced that the Court employed

the foregoing language to confirm that there still exist limits on

a potential plaintiff’s seaman status under the Jones Act.

As Stewart’s definition of “vessel” applies equally to the

Jones Act and the LHWCA, § 3 clearly controls the definition of

“vessel” for purposes of both acts. Thus, as long as a water-borne

structure is practically capable of being used for transportation

on navigable waters, it is a “vessel.”35 Convinced that our case

34 Id. at 1127. 35 See Stewart,

.

13 law was consistent with § 3’s definition of a vessel,36 we

confected a list of factors and requirements from § 3’s definition

to aid us in determining whether an unconventional watercraft

merits vessel status.37 We must therefore determine today the

effect, if any, that Stewart has on the continued efficacy of these

factors and requirements.

We hold that Stewart does not fundamentally alter our “vessel”

jurisprudence. One of the driving forces behind the Court’s grant

of certiorari in Stewart was to reject both the district court’s

and the court of appeals’ reliance on two particular factors: (1)

whether the primary purpose of the watercraft was navigation or

commerce; and (2) whether the watercraft was in transit at the time

of Stewart’s injury.38 The Court explicitly held that “[n]either

prong of the Court of Appeals’ test is consistent with the text of

§ 3 or the established meaning of the term ‘vessel’ in general

maritime law.”39

36 See Manuel,

(“A ‘vessel’ traditionally refers to structures designed or utilized for transportation of passengers, cargo or equipment from place to place across navigable waters. This is consistent with the statutory definition which defines the word ‘vessel’ as including ‘every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.’” (citing

) (other citations and quotations omitted)). 37 See text accompanying notes 17-24. 38 See

. 39

.

14 In rejecting the first prong, the Court quoted § 3’s

definition of vessel: “Section 3 requires only that a watercraft be

‘used, or capable of being used, as a means of transportation on

water’ to qualify as a vessel. It does not require that a

watercraft be used primarily for that purpose.”40 In rejecting the

second prong —— that the craft be in navigation at the time of

injury —— the Court noted that in Chandris it had rejected such a

“snapshot” test: “Just as a worker does not oscillate back and

forth between Jones Act coverage and other remedies depending on

the activity in which the worker was engaged while injured, neither

does a watercraft pass in and out of Jones Act coverage depending

on whether it was moving at the time of the accident.”41

We conclude that Stewart’s modification of our “vessel”

jurisprudence is narrow. Specifically, we may no longer rely on

whether (1) the transportation function of the watercraft is

primary or incidental to the its purpose and (2) the watercraft was

in motion at the time of the injury.42 Indeed, Stewart’s holding

40 Id. at 1128 (emphasis in original). 41 Id. (citations and quotations omitted). 42 With regard to the second prong, the Court noted that a vessel may still lose its status as such if it has been “withdrawn from the water for extended periods of time.” Id. Thus, this circuit’s jurisprudence holding that certain craft are not vessels because they have been withdrawn from navigation for a considerable amount of time is still good law. See id.; Pavone,

(holding that indefinitely-moored casino not a vessel for Jones Act purposes).

15 appears to affect our definition of nonvessels more than that of

vessels.43

The Court’s language in Stewart demands this conclusion. In

rejecting the court of appeals’ reliance on the second prong, the

Court noted:

Granted, the Court has sometimes spoken of the requirement that a vessel be “in navigation,” but never to indicate that a structure’s locomotion at any given moment mattered. Rather, the point was that structures may lose their character as vessels if they have been withdrawn from the water for extended periods of time. . . . Instead, the “in navigation” requirements is an element of the vessel status of the watercraft. It is relevant to whether the craft is “used, or capable of being used” for maritime transportation.44

The emphasized language supports our conclusion that Stewart’s

holding stands for the proposition that § 3 is merely the starting

point for a determination whether an unconventional watercraft is

a vessel for Jones Act and LHWCA purposes. Indeed, the Stewart

Court recognized that it has always “construe[d] § 3’s definition

[of vessel] in light of the term’s established meaning in general

maritime law,” explicitly confirming that “§ 3 should be construed

consistently with the general maritime law.”45 The Stewart Court’s

use of the term “element” in describing the “in navigation”

requirement strongly suggests that, even though § 3’s definition of

43 See supra note 24 & accompanying text.

S. Ct. at 1128 (citations omitted) (emphasis added). 45

.

16 vessel is paramount, the general maritime law will continue to

dictate the discrete factors and requirements that emanate from §

3’s starting point. Nothing in Stewart rejects the majority of the

other factors and requirements; it rejects only those two on which

we and the First Circuit heretofore relied, as previously confected

from § 3 in our analyses underlying our determination of vessel

status in Jones Act or LHWCA cases. Accordingly, we hold that our

“vessel” jurisprudence rests relatively intact, modified only by

the Stewart Court’s rejection of the two prongs relied on by the

First Circuit in that case.

The dissent reads Stewart as stripping the vessel/non-vessel

analysis of all these requirements and factors that we previously

confected from § 3's definition of “vessel.”46 Thus stripped, the

46 The dissent points to the Second Circuit’s recent decision in Uzdavines v. Weeks Marine, Inc.,

(2d Cir. 2005), which “undertook the analysis that is required of us to correct prior precedent no longer vital after Stewart.” Slip op. at ___ (DeMoss, J., dissenting). True, the Uzdavines court did modify the Second Circuit’s vessel/non-vessel jurisprudence in light of Stewart (as do we here), but it did so in a manner that fails to provide support for the dissent. The Second Circuit’s discussion of Stewart’s impact on its vessel/non-vessel jurisprudence is pure dicta, as the Uzdavines petitioner had conceded that in light of Stewart the bucket dredge at issue qualified as a vessel. See Uzdavines,

. It was therefore unnecessary for that court to address the effect of Stewart on its vessel/non-vessel jurisprudence. Furthermore, even if the Second Circuit’s modification of its pre-Stewart vessel/non-vessel jurisprudence was not dicta, Uzdavines’ support for the dissent’s position would at best be tenuous. The Uzdavines court purported to hold that Stewart “supersedes the three-part test” used by the Second Circuit to define a non-vessel.

That three-part test was almost identical to the three common attributes that this circuit attributed to non-vessels. See Tonnesen v. Yonkers Contracting

17 dissent’s vessel/non-vessel analysis reduces to just two parts: (1)

a rule (if a craft is used or is practically capable of being used

as a means of maritime transportation, then that craft is a

vessel); and (2) an exception to that rule (if a craft is

permanently moored or otherwise rendered incapable of

transportation or movement, then that craft is not a vessel).47 The

dissent’s rule properly focuses the vessel/non-vessel analysis on

a craft’s practical capability of engaging in maritime

transportation.48 The dissent’s exception to the rule strays off

course, however, by overemphasizing the significance of a craft’s

being permanently moored or otherwise rendered incapable of

movement.

Co.,

(2d Cir. 1996) (adopting, with slight modification, this circuit’s description of the three common attributes of non-vessels); see also supra text accompanying note 23 (describing the three common attributes of a non-vessel). And, as we readily acknowledge today, Stewart’s greatest impact is on our non-vessel definition. See supra text accompanying note 43. Our opinion is thus in accord with Uzdavines. 47 See slip op. at ___ (DeMoss, J., dissenting). 48 Our disagreement on this point just goes to how that rule should be applied, i.e., whether the determination of a craft’s practical capability of engaging in maritime transportation should be determined with reference to our pre-Stewart factors and requirements. We hold that it should; the dissent disagrees. The dissent contends that the only relevant question with regards to this rule is whether the craft at issue is, in fact, practically capable of engaging in maritime transportation. But that question alone cannot control the outcome of this case, as Holmes, whose burden it was, failed to adduce sufficient evidence to show the BT- 213's practical capability of engaging in maritime transportation.

18 To be sure, the frequency and duration of the mooring and

moving of a putative vessel is one of the several pre-Stewart

elements for testing vessel status that remains valid in the post-

Stewart world.49 But, contrary to the dissent’s reasoning, the

Stewart Court’s discussion of the effect of a craft’s permanently

static condition on its vessel/non-vessel status does not signal

that a craft must be permanently moored or otherwise rendered

incapable of movement to qualify as a non-vessel. Rather, the

Court’s discussion is a didactic reminder to all inferior federal

courts that, even after Stewart broadened the test for vessel

status, limits as to what constitutes a vessel still exist. In

other words, crafts that are permanently affixed to the shore and

are theoretically —— but not practically —— capable of

transportation, are not “vessels” within the meaning of the Jones

Act and the LHWCA. The obverse, though, does not follow: The Court

neither says nor implies a per se rule that either the absence of

permanent mooring or the frequency of movement (or the absence of

both) automatically bars non-vessel status.

4. The Quarterbarge BT-213

When the undisputed facts of this case are plugged into our

“vessel” jurisprudence, we find inescapable the conclusion that the

BT-213 is not a “vessel,” even in light of the modifications

announced in Stewart. The principal dispute here turns on whether

49 See supra text accompanying notes 42-45.

19 this appeal is controlled by Manuel —— as Holmes contends —— or by

Gremillion —— as appellees contend.

At first blush, it would appear that Gremillion is

dispositive. In Gremillion, we held that the quarterbarge MINDY

was not a vessel for purposes of the Jones Act and general maritime

law. We reached this conclusion because:

A. the significance of Q/B MINDY’s transportation function was purely incidental to its primary mission of providing living facilities; B. it did not transport cargo; C. it was not designed for navigation; D. it was not engaged in navigation at the time of the injury; E. there was no evidence that suggested that the barge provided housing on the open sea; F. the barge’s motive power was provided externally through towboats as it had no engine, rudders, or navigational equipment; and G. it was not registered with the Coast Guard as a vessel.50

We conceded, however, that other factors weighed in favor of vessel

status: (1) The barge had a raked bow, was equipped with navigation

lights, and had life-saving equipment and crew quarters; (2) the

owner intended to move it on a recurring basis; (3) the barge

possessed the ability to be refloated after years of deterioration;

and (4) the barge remained static only for a relatively short

time.51 In our analysis, we recognized that even though the MINDY

possessed several attributes of a vessel, our objective factors

50

(emphasis added). 51 See

at 294 n. 9.

20 “are not to be applied mathematically but [only] as useful guides

in determining vessel status.”52

Apart from the above emphasized factors on which the

Gremillion panel relied and that the Stewart Court rejected, the

other factors are present here and weigh against vessel status.

The BT-213 does not transport cargo, equipment, or personnel.

Indeed, although she relies heavily on the fact that the BT-213 was

moved 14 times between January 4, 2001, and September 12, 2002,

Holmes points to no record evidence that transportation occurred in

any of these 14 moves. Holmes mistakenly conflates

“transportation” with “movement.” If the sole test for vessel

status were “capable of being moved,” then anything that floats ——

even an inner tube or a canoe, perhaps (which, in the broadest

sense, are also capable of § 3 transportation) —— would constitute

a vessel for Jones Act or LHWCA purposes.

Neither was the BT-213 designed for navigational or

transportation purposes. There is no record evidence that the BT-

213 ever provided housing on the open sea. Further, the BT-213,

like the MINDY, relies exclusively on tugs to move it. Unlike the

Super Scoop in Stewart, which could navigate short distances by

manipulating its anchors and cables, the record is devoid of

evidence that the BT-213 is capable of any self-propulsion

whatsoever. The BT-213 has never been registered with or inspected

52 Id.

21 by the Coast Guard. The purpose for which the BT-213 was

constructed and the business in which it has engaged exclusively is

housing. As noted earlier, the record contains no evidence that

the BT-213 ever transported —— or was even capable of transporting

—— anything; not passengers, not cargo, not equipment.53 Indeed,

unlike the dredge in Stewart, the BT-213 does not “serve[] a

waterborne transportation function,” as it does not perform its

work by carrying machinery, equipment, and crew “over water.”54

Holmes insists that it is Manuel, not Gremillion, that

controls this case. Holmes argues that our vessel jurisprudence

was previously modified by Southwest Marine, Inc. v. Gizoni55 and

53 In Gremillion, we observed a common theme that exists in our jurisprudence granting vessel status to “special purpose vessels,” such as the BT-213: “Despite the outward appearance of the structure at issue, if a primary purpose of the craft is to transport passengers, cargo, or equipment from place to place across navigable waters, then that structure is a vessel.”

. Although the use of the term “primary” has been modified by Stewart, any possible transportation function of the watercraft is still a factor to be taken into consideration when determining vessel status. See also Brunet v. Boh Bros. Constr. Co., Inc.,

(5th Cir. 1983) (holding that barge consisting of several interlocking flexi-float platforms and designed to transport crane across navigable waters was vessel); Producers Drilling Co. v. Gray,

(5th Cir. 1966) (holding submersible drilling barge designed to transport drilling equipment to drill site qualified as vessel as a matter of law); Offshore Co. v. Robison,

(5th Cir. 1959) (holding that genuine issue of material fact existed as to whether drilling barge on which a drilling rig was mounted and transported qualified as vessel). 54

; see supra note 20 and accompanying text. 55

(1991).

22 that we recognized this modification in Manuel. Holmes’s reliance

on Gizoni and Manuel is misplaced.

In Manuel, we held that the Rig 3, a workover rig, was a

vessel for purposes of the Jones Act and general maritime law.56

Using our two-prong test set out above, we determined that (1) the

business in which Rig 3 engaged —— transporting across navigable

waters all of the equipment necessary to plug and abandon oil wells

—— weighed in favor of vessel status; and (2) the purpose for which

the floatable structure of the rig was built —— to transport the

workover rig and its attendant equipment from place to place ——

also weighed in favor of vessel status.57 That is not the case

here. The BT-213 has never transported —— nor was it designed or

built to transport —— anything between project locations.58

56

. 57 See

58 Indeed, the BT-213 more closely resembles other floating structures that this circuit has held are not vessels. See, e.g., Gremillion,

(holding that shoreside quarterboat barge serving as floating hotel did not merit vessel status); Daniel v. Ergon, Inc.,

(5th Cir. 1990) (holding that floating barge moored to shore, remaining in place for seven years, and used as work platform to clean and strip cargo and gas from barges, and that possessed no propulsion, crew quarters, or navigation lights did not qualify as vessel); Ducrepont v. Baton Rouge Marine Enters., Inc.,

(5th Cir. 1989) (holding that barge moored to shore and used as stationary work platform not a vessel); Bernard v. Binnings Constr. Co., Inc.,

(5th Cir. 1984) (holding that work punt —— a floating iron platform —— not a vessel because it was not designed for navigation nor did it have any significant transportation function). One caveat: Most of these cases relied —— at least in part —— on the incidental (as opposed to primary) transportation function of the floating platform, a factor rejected by Stewart.

23 At oral argument, Holmes advanced that the BT-213 does

transport equipment from place to place; specifically, that the

room-and-board modules —— presumably attached to the hull —— is

moved from dredge job to dredge job, implying that this

superstructure is “equipment.” We reject this specious argument.

First, neither party briefed exactly what constitutes “equipment”

for purposes of the Jones Act’s transportation requirement. In

fact, if we were to hold that such housing —— if not permanently

then at least indefinitely attached to a bare hull or work platform

—— constitutes “equipment” for purposes of vessel transportation,

we would be greatly expanding the concept of equipment in this

context. Indeed, we would be hard-pressed to conclude that any

other appurtenance attached to the watercraft would not fall within

that rubric. Our traditional understanding of “equipment,” as that

term is used in our Jones Act and LHWCA cases, is an item or items

loaded onto a vessel at one location and moved —— “transported” ——

to another location to perform a specific function, such as

machines and equipment loaded onto a vessel onshore and delivered,

for example, to an offshore drilling station or production

platform. As we understand the case law, “equipment” does not

include the appurtenances that contribute exclusively to the

mission or function of the putative vessel itself. Here, the

living module is no more transported equipment than are the BT-

213’s gangway, life rings, and water pumps.

24 Although Holmes is correct that Gizoni modified our case law,

making suspect any holding, such as Gremillion’s, that was handed

down before Gizoni, her reliance on this modification is inapposite

to the case before us. In Gizoni, the Court treated the issue

whether “a maritime worker whose occupation is one of those

enumerated in the [LHWCA] may yet be a ‘seaman’ within the meaning

of the Jones Act and thus be entitled to bring suit under that

statute.”59 Affirming the Ninth Circuit, the Supreme Court held

that genuine issues of material fact existed as to whether (1) the

plaintiff was entitled to recover under both statutes, (2) the

floating platform on which Gizoni worked was a vessel in

navigation, and (3) the employee was a member of the crew.60

The Manuel panel recognized Gizoni’s effect on our

jurisprudence:

We must also note that many of our work platform cases were decided before the Supreme Court’s decision in Southwest Marine, Inc. v. Gizoni, where the Court concluded that genuine issues of material fact existed “regarding whether the floating platforms [upon which plaintiff worked] were vessels in navigation” and whether the plaintiff had a sufficient connection to these platforms to qualify as a seaman. The floating platforms consisted of a pontoon barge, tow float barges, a rail barge, a diver’s barge, and a crane barge. None of the barges had means of steering, navigation lights or aids, living facilities, or motor power. The barges were moved around the shipyard by tugboat and were used to transport equipment, materials, supplies, and vessel components

59

. 60 See

.

25 around the shipyard and on to and off of the vessels under repair.61

Thus, not only were the barges in Gizoni used to transport

equipment, material, and supplies to other vessels, but the Court

upheld only the Ninth Circuit’s determination that a genuine issue

of material fact existed as to the barges’ status, and that the

parties disputed those facts. There are no disputed facts here, so

dismissal was proper. Neither, as noted above, was the BT-213 ever

used to transport anything within the intendment of § 3 or the

Jones Act. Gizoni and Manuel are thus distinguishable. All this

leads us to conclude that the majority of factors that remain

relevant post-Stewart weigh heavily in favor of the BT-213’s

nonvessel status.

III. CONCLUSION

For the foregoing reasons, we affirm the district courts’

denials of Holmes’s motions to remand and their dismissals of her

Jones Act and general maritime claims.

AFFIRMED.

61

n. 8 (citations omitted) (alteration in original) (emphasis added).

26 DeMOSS, Circuit Judge, dissenting:

With respect for the majority’s careful analysis on a close

question of law, I dissent. The Supreme Court’s decision in

Stewart requires our Circuit to reevaluate precedent that defines

“vessel” and the tests by which we mark the contours of the term.

On the rare occasion of a unanimous, on-point opinion from the

Supreme Court, we must be careful to apply its demands on our

Circuit’s canon, even if those demands require the broadening of

our jurisprudence. The Supreme Court need not explicitly overrule

our case law in order to require that we tailor it. Stewart so

requires.

Stewart requires that we enlarge Gremillion, and our Circuit’s

factors and requirements “confected” from § 3's vessel definition.

See Stewart,

. It necessarily follows from the

broad language and broad “practically capable of being used for

transportation” analysis of Stewart that more types of water crafts

are now and will be vessels, as a matter of law, than would have

been so defined in this Circuit previously. See

The majority

implies that this is so, see Manuel,

, but we do not

satisfy Stewart’s broad vessel landscape merely by concluding that

our pre-Stewart vessel jurisprudence is consistent with § 3, as a

starting point for the vessel determination. It must not only be

consistent with § 3 but also eliminate the additional factors and requirements eschewed by Stewart, not just the “purpose” and

“transit at the moment of injury” factors explicitly rejected

there.

The majority ably explains why Stewart must apply to the Jones

Act as well as to the LHWCA. See Stewart,

; see

also Stewart v. Dutra Constr. Co. Inc., No. 02-1713,

(1st Cir. Aug. 9, 2005) (applying the reasoning of

Stewart to define vessel under the Jones Act in the same manner as

under the LHWCA); Uzdavines v. Weeks Marine, Inc., No. 03-40084,

(2d Cir. Aug. 3, 2005) (making

the extension, that Stewart requires, of § 3's definition for

vessel to the Jones Act).

I also agree with the majority that Stewart primarily

corrected two errors of the lower courts in that case: (1) their

reliance on the primary purpose of the craft and (2) their reliance

on whether the craft was in transit at the time of injury. The

conclusion is inescapable that our pre-Stewart jurisprudence

countenancing these two rejected factors is necessarily erroneous

as well. See, e.g., Manuel,

(providing factors

for determining the purpose of the craft’s construction);

Gremillion,

(citing Blanchard, 575 F.2d at 1142)

(concluding that the purpose of the craft’s construction is

28 necessary to determination of vessel status).62 In Uzdavines, the

Second Circuit undertook the analysis that is required of us here

to correct prior precedent no longer vital after Stewart, and in

which I believe the majority has too broadly determined how much of

our vessel precedents survives.

(concluding the Second Circuit’s former test that included an

element of “primary purpose” does not survive Stewart).

Stewart does more than reject the “primary purpose” and

“moment of injury snapshot” tests. See Stewart,

. While § 3 remains the fundamental definition for determining

a craft’s status as a vessel, the additional factor to be

considered beyond § 3's plain text is the one now emphasized by

Stewart — any craft’s practical use or capability of being used as

a means of maritime transportation — and not all of the factors

previously considered in our Circuit that create a more narrow set

of vessels than is now contemplated by the Supreme Court.

The quarters barge is practically, not just theoretically, “used, or capable of being used, as a means of transportation on water.”

Undisputed facts confirm the BT-213 quarters barge is

practically capable of transporting equipment, including supplies

for crew members of the barge and for the crew of the dredges, from

place to place to accommodate the different location of dredging

62 I note that Gremillion’s language of bias for the “traditional craft” cannot co-exist with Stewart’s broad “capable of being used for transportation” definition. Compare Gremillion,

, with Stewart,

.

29 activities. Fourteen such movements appear in the record, creating

a pattern of actual use that far exceeds the much lower threshold

of capability of use that Stewart would permit for vessel status.

See

The BT-213 is also undeniably capable of transporting

personnel and cargo. That she was constructed for the purpose of

floating and providing movable housing is no longer of moment in

our vessel analysis; and the analysis of Stewart does not require

that the quarters barge perform a transportation function, but

rather that it be practically capable of such use. While the

majority relies upon our two-prong test, including specifically

that the BT-213 was not designed nor built to transport, Stewart

requires us to apply a different set of questions. The majority’s

reliance on a lack of equipment transportation, while compelling in

its rejection of Holmes’s argument that the housing superstructure

is not traditional equipment under maritime law, fails to account

for the much broader conception of vessel transportation

countenanced in Stewart. Moreover, the majority’s analysis on the

point of equipment transportation implies that practical

transportation requires “delivery,” when no such requirement

exists. Instead, Stewart’s reliance on The Alabama,

(S.D. Ala. 1884), recognizes that capacity for navigation is the

key to understanding capacity for transportation. Stewart,

.

30 Here, the combination of the quarters barge’s repeated

movement — albeit not by self-propulsion — and the quarters barge’s

equipment with the housing supplies, the “quarters package,” as

well as navigational instruments, a railed gangway, and land lines,

used only for temporary mooring, all weigh in favor of determining

that the craft is practically capable of being used as maritime

transportation. The BT-213 is capable of “travers[ing] waters,

carrying with it workers like [Holmes].”

.

The quarters barge is not “permanently moored” or rendered “practically incapable of transportation or movement.”

The broad language of Stewart’s vessel definition is not

entirely unchecked. A limit to the “capable of being used as a

vessel” standard exists if the craft is, again in terms of

practicality, rendered “incapable of transportation or movement.”

(emphasis added). The BT-213 does not cross this drawn

line. “A ship [does] not move in and out of Jones Act coverage

depending on whether the ship is at anchor, docked for loading or

unloading, or berthed for minor repairs, in the same way that ships

taken permanently out of the water as a practical matter do not

remain vessels merely because of the remote possibility that they

may one day sail again.”

.

The BT-213 is not sufficiently similar to other permanently

fixed, grounded, or converted crafts that fall within Stewart’s

exception and have traditionally, because of that permanent

disability, in this Circuit avoided classification as a vessel.

31 See Gremillion,

(finding the quarters barge there

was not a vessel where the barge had been “partially sunk into a

shoreside mudbank” and was “used exclusively as a stationary

housing facility in shallow coastal and inland waters”) (emphasis

added); See also Pavone,

(concluding “indefinitely

moored, shore-side, floating casinos” must be added to grouping of

crafts that are not vessels because of practical incapability of

movement or navigation).

Instead, the BT-213 more closely parallels the unique category

of craft, such as a jack-up drilling rig, that has dual elements of

navigation capacity and work platform function. See Manuel,

(citing, as examples, Colomb v. Texaco, Inc.,

(5th Cir. 1984), and Brunet v. Boh Bros. Constr. Co.,

(5th Cir. 1983)). The BT-213 falls between the

clear categories of traditional self-propelled vessel and of

permanently moored craft or craft rendered practically incapable of

transportation; and as such, it remains within Stewart’s broad

scope of vessel status.

I cannot say I would have drafted as broad a framework for

analysis as has the Supreme Court, but in light of Stewart, I

cannot agree that our prior vessel jurisprudence is as unaffected

as the majority resolves. I would vacate the district courts’

denials of Holmes’s motions to remand and remand to the state court

32 for further proceedings consistent with the legal determination

that the BT-213 is a vessel under the Jones Act.

33