All That Floats is Not A Boat: Eastern District of Louisiana Jettisons Fifth Circuit’s Holmes Decision, Rules That Quarter Barge Is Not A Vessel

by Baker Donelson

The three men in the tub will no longer have recourse to the federal courts’ admiralty jurisdiction, at least not in the Eastern District of Louisiana. In Martin v. Fab-Con, Inc., 2014 WL 1246073 (E.D. La. Mar. 24, 2014) – a slip-and-fall suit by a Jones act seaman for negligence, unseaworthiness, and general maritime law negligence – the court held that the dumb quarter barge UNITY where the accident occurred was not a vessel for purposes of admiralty jurisdiction under 1 U.S.C. §3, resulting in dismissal of all but the Jones Act claims.

The Martin court specifically relied on the Supreme Court’s widely publicized decision last year in Lozman v. City of Riviera Beach, Fla., ––– U.S. ––––, 133 S.Ct. 735, 184 L.Ed.2d 604 (2013), which held that an unpowered house boat was not a vessel for purposes of admiralty jurisdiction under its newly minted “reasonable observer” standard – i.e. whether “a reasonable observer, looking to the [structure]‘s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.” Lozman, 133 S.Ct. at 741.

Under this standard, the Martin court held that the quarter barge at issue was not a vessel based on the following characteristics of the barge:

  • no rudder or steering mechanism;
  • no means of self-propulsion whatsoever (unlike the limited self-propulsion of the Super Scoop dredge in the Stewart v. Dutra decision, 543 U.S. 481 (2005), the Supreme Court’s pre-Lozman benchmark for vessel status);
  • remained stationary in location for several years;
  • lack of any evidence that the barge carried cargo over water;
  • connected to shore via gangways;
  • spudded in place in shallow water

And even though the UNITY was hired via a charter party, had a raked bow, intermittent on-board generators, and a deeper draft than the Lozman houseboat, these arguable vessel attributes could not overcome the “reasonable observer” test. In short, the Martin court held “that the reasoning and result of Lozman compel the conclusion that the UNITY is not a vessel within the meaning of 1 U.S.C. § 3.”

Additionally, the Martin court determined that it was no longer bound by the Fifth Circuit’s prior decision in Holmes v. Atlantic Sounding, 437 F.3d 441 (5th Cir.2006), which involved a virtually identical quarter barge. Notably, the Holmes decision had expanded the Fifth Circuit’s previously restrictive vessel definition in the wake of the Supreme Court’s expansive Dutra decision. The Martin court, however, noted that Lozman specifically criticized and undermined Holmes:

The Lozman majority found Holmes’s analysis “inappropriate and inconsistent with [Supreme Court precedent].” Lozman, 133 S.Ct. at 743. The Supreme Court explicitly rejected the reasoning that a quarterbarge can be considered a vessel because it can transport “its own furnishings and related personal effects.”

As a result, the Martin court held that Holmes is no longer operative, and that the Fifth Circuit’s pre-Holmes jurisprudence (i.e. Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 290, 294 n. 11 (5th Cir.1990)), which had formerly held that quarter barges are not vessels, was essentially revived by Lozman.

The Martin decision will certainly be seen as a controversial change in the law, and will no doubt be appealed. Moreover, the Martin decision is somewhat confusing insofar as it appears to have maintained the plaintiff’s Jones Act claims (to the exclusion of the general maritime law negligence and unseaworthiness claims) – notwithstanding that if the UNITY is not a vessel under 1 U.S.C. §3, it should not have qualified as a “vessel in navigation” (under the second factor of the Chandris test) for purposes of affording the plaintiff a Jones Act remedy.

In the meantime, however, Martin may provide jurisdictional arguments for defendants whose operations utilize ship-shape but otherwise non-mobile quarter boats or “floatels.” Martin also raises latent issues for marine financing of such hulls, as well as proper insurance coverages for those hulls and operations thereon. As the court noted in its discussion of Lozman the “anything that floats” approach to vessel status may have sunk.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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