     Case: 10-31221     Document: 00511667637         Page: 1     Date Filed: 11/16/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 16, 2011

                                     No. 10-31221                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



RODNEY G. HAMM,

                                                  Plaintiff - Appellee,
v.

ISLAND OPERATING COMPANY, INC.; RODAN MARINE SERVICES II,
L.L.C.,

                                                  Defendants - Appellants.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:08-CV-1710


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        This case is before us on an interlocutory appeal brought by Island
Operating Company, Inc. (IOC) and Rodan Marine Services II, LLC. At issue is
whether the applicable statute of limitations is three years under federal
maritime law or one year under the Outer Continental Shelf Lands Act
(OCSLA), 43 U.S.C. § 1333 et seq. Also at issue is whether IOC and Rodan are


       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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entitled to a jury trial. For the following reasons, we AFFIRM the order of the
district court denying IOC’s motion to dismiss and alternative motion for
summary judgment, and granting Hamm’s motion to have this case classified as
an admiralty suit and designated for a non-jury trial.
                          I. Facts and Proceedings
      In June 2007 Plaintiff Rodney G. Hamm suffered injuries to his back and
hips while working on the deck of the M/V Tara Louisa, a vessel owned and
operated by his employer, Rodan. At that time, the Tara Louisa was delivering
equipment to and picking up equipment from a permanent oil platform off the
coast of Louisiana, on the Outer Continental Shelf. A crane operated by IOC
was moving equipment to and from the platform and the Tara Louisa. Hamm
and a co-employee were helping to guide the equipment and to connect it to or
disconnect it from the crane. While he was performing this task, a cargo basket
became caught on the hook of the crane and swung toward Hamm, pinning him
between the cargo basket and the side of the vessel. Hamm sued a number of
defendants, including IOC and Rodan, in November 2008.
      Hamm asserted that his claims fall within the district court’s admiralty
jurisdiction. He elected a non-jury trial pursuant to Rule 9(h) of the Federal
Rules of Civil Procedure. In their answers, IOC and Rodan requested a jury
trial. The court clerk set the case for jury trial. Hamm moved to have the case
classified as an admiralty suit and designated for a non-jury trial. IOC moved
to dismiss or alternatively for summary judgment, based on Louisiana’s one-year
limitations period, which IOC asserts is the applicable substantive law under
OCSLA. Adopting the magistrate judge’s report and recommendation, the
district court granted Hamm’s motions and denied IOC’s.
      IOC and Rodan each filed a motion requesting that the district court
certify its order for interlocutory appeal under 28 U.S.C. § 1292(b). The district
court granted each motion, finding that its order involved controlling questions

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of law as to which there were substantial grounds for difference of opinion and
that an immediate appeal may materially advance the ultimate termination of
the litigation. We granted IOC’s and Rodan’s petitions for permission to bring
this appeal.
      On appeal, IOC argues that it is entitled to have Hamm’s claims against
it dismissed, or alternatively to have summary judgment granted in its favor, on
the ground that Hamm’s claims are time-barred under Louisiana’s one-year
statute of limitations. In the alternative, IOC argues that it is entitled to a jury
trial. Rodan argues that it is entitled to a jury trial if IOC is so entitled.
                            II. Standard of Review
      We review de novo a district court’s determination of a Rule 12(b)(6)
motion to dismiss. In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir.
2008). “When reviewing a motion to dismiss, we must accept all well-pleaded
facts as true and view them in the light most favorable to the non-moving party.”
Id. To survive a motion to dismiss, the non-moving party must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 569 (2007).
      We likewise review a district court’s ruling on a motion for summary
judgment de novo, applying the same legal standard as the district court. See
Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). Summary
judgment is proper if there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
“review the evidence and any inferences therefrom in the light most favorable
to the nonmoving party.” SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
      As the magistrate judge correctly observed, the relevant facts are
undisputed: Hamm “filed suit more than one year after the alleged accident
occurred . . . [Hamm] was injured on the deck of the vessel; the crane is mounted
on the platform; and [Hamm] made a Rule 9(h) designation.”

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                                III. Discussion
                                       A.
      IOC argues that Hamm’s claims against it are time-barred under
Louisiana’s one-year prescriptive period. See La. Civ. Code art. 3492. According
to IOC, Louisiana’s substantive law applies to Hamm’s claims against it because
OCSLA adopts the law of the adjacent state as the governing law for the Outer
Continental Shelf. See 43 U.S.C. § 1333(a)(2)(A). Hamm does not contest that
Louisiana law applies if OCSLA is the governing substantive law. Hamm
counters, however, that the district court correctly held federal maritime law to
be the applicable substantive law, and that under federal maritime law, Hamm
had three years within which to file suit. See 46 U.S.C. § 30106. We conclude
that the district court correctly held that federal maritime law is the applicable
substantive law.
      OCSLA’s choice of law provision states:
      To the extent that they are applicable and not inconsistent with this
      subchapter or with other Federal laws and regulations of the
      Secretary now in effect or hereafter adopted, the civil and criminal
      laws of each adjacent State, now in effect or hereafter adopted,
      amended, or repealed are declared to be the law of the United States
      for that portion of the subsoil and seabed of the outer Continental
      Shelf, and artificial islands and fixed structures erected thereon,
      which would be within the area of the State if its boundaries were
      extended seaward to the outer margin of the outer Continental Shelf
      ....

43 U.S.C. § 1333(a)(2)(A). This court applies a three-part test to determine
whether the law of the adjacent state governs as “surrogate federal law under
OCSLA[’s]” choice of law provision: “(1) The controversy must arise on a situs
covered by OCSLA (i.e. the subsoil, seabed, or artifical [sic] structures
permanently or temporarily attached thereto). (2) Federal maritime law must
not apply of its own force. (3) The state law must not be inconsistent with


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Federal law.” Union Tex. Petroleum Corp. v. PLT Engineering, Inc., 895 F.2d
1043, 1047 (5th Cir. 1990). We need only consider the second prong of this test
because we conclude, as did the district court, that federal maritime law applies
of its own force.
      Whether federal maritime law applies of its own force turns on whether
Hamm has alleged a maritime tort against IOC. See Strong v. B.P. Exploration
& Prod., Inc., 440 F.3d 665, 670 (5th Cir. 2006) (holding that because the
plaintiff “has alleged a traditional maritime tort, federal maritime law applies
of its own force”). We have previously stated that “[t]he test to determine the
existence of a cause of action in maritime tort is identical with that applied to
determine jurisdiction in admiralty.” May v. Transworld Drilling Co., 786 F.2d
1261, 1265 (5th Cir. 1986).
      The Supreme Court articulated the test for establishing admiralty
jurisdiction over tort claims in Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co.:
      [A] party seeking to invoke federal admiralty jurisdiction pursuant
      to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both
      of location and of connection with maritime activity. A court
      applying the location test must determine whether the tort occurred
      on navigable water or whether injury suffered on land was caused
      by a vessel on navigable water. The connection test raises two
      issues. A court, first, must “assess the general features of the type
      of incident involved,” to determine whether the incident has “a
      potentially disruptive impact on maritime commerce.” Second, a
      court must determine whether “the general character” of the
      “activity giving rise to the incident” shows a “substantial
      relationship to traditional maritime activity.”

513 U.S. 527, 534 (1995) (internal citations omitted). We must now apply this
test to the facts alleged in Hamm’s complaint.
      The location element is satisfied here because Hamm suffered his injury
on the deck of the Tara Louisa, a vessel afloat on navigable water. This court


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has repeatedly held that a tort occurs on navigable waters when the plaintiff
sustains his injury on navigable waters, even if the tortious act occurred on land.
See, e.g., Taylor v. Kennedy Engine, Inc., 861 F.2d 127, 128-29 (5th Cir. 1988)
(collecting cases).
      The connection element is also met.        First, we have little difficulty
concluding that the type of incident involved is potentially disruptive of
maritime commerce. Grubart instructs us to describe the type of incident at
issue “at an intermediate level of possible generality.” 513 U.S. at 538. The type
of incident here may be described as injury caused by a mishap during the
course of loading and unloading cargo and equipment to and from a vessel by
crane. Not only can such accidents injure seamen, as Hamm alleges occurred in
this case, but they might also damage vessels, thereby causing delay in the
shipment of goods in maritime commerce. Second, we conclude that the general
character of the activity involved—the loading and unloading of a vessel—is
substantially related to traditional maritime activity. See Drachenberg v. Canal
Barge Co., Inc., 571 F.2d 912, 917 (5th Cir. 1978) (holding that “unloading of the
ship’s cargo” is a “traditional maritime activity”).
      Because Hamm has alleged a maritime tort, federal maritime law applies
of its own force. Therefore, Louisiana law cannot apply as surrogate federal law
under OCSLA. Accordingly, the applicable limitations period is three years, see
46 U.S.C. § 30106, and Hamm’s claims against IOC are not time-barred.
                                        B.
      Alternatively, IOC argues that even if maritime law governs, it has a
Seventh Amendment right to a jury trial. It is well-established that the right to
trial by jury does not apply to admiralty suits. See, e.g., Parsons v. Bedford, 28
U.S. (3 Pet.) 443, 446-47 (1830).      Accordingly, IOC argues that although
maritime law governs, this is not an admiralty or maritime suit, but an OCSLA
suit in which maritime law applies pursuant to OCSLA’s choice of law provision,

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see 43 U.S.C. § 1333(a)(2)(A), as interpreted by PLT Engineering, Inc. 895 F.2d
at 1047 (holding that the law of the adjacent state does not govern under OCLSA
when, inter alia, “[f]ederal maritime law . . . appl[ies] of its own force”).
      IOC’s theory is unpersuasive. Our precedent recognizes that OCSLA and
its choice of law provision were not intended to displace general maritime causes
of action whenever a court has OCSLA jurisdiction. See Tenn. Gas Pipeline v.
Hous. Cas. Ins. Co., 87 F.3d 150, 154 (5th Cir. 1996). Moreover, even if the
district court properly concluded that it has both maritime jurisdiction and
jurisdiction under OCSLA (an issue we need not decide), IOC still has no right
to a jury trial because Hamm elected a non-jury trial under Rule 9(h) of the
Federal Rules of Civil Procedure. Rule 9(h) provides that “[i]f a claim for relief
is within the admiralty or maritime jurisdiction and also within the court’s
subject-matter jurisdiction on some other ground, the pleading may designate
the claim as an admiralty or maritime claim for purposes of Rule . . . 38(e),”
which allows for bench trials in maritime cases. See Fed. R. Civ. P. 38(e). In
situations like Hamm’s, “the election made available to the pleader pursuant to
Rule 9(h) is dispositive.” Harrison v. Flota Mercante Grancolombiana, S.A., 577
F.2d 968, 986 (5th Cir. 1978). It is undisputed that Hamm made his Rule 9(h)
election. Therefore, IOC has no right to a jury trial. It follows that Rodan also
has no right to a jury trial because its argument on appeal is that it is entitled
to a jury trial if IOC is so entitled.
                                  IV. Conclusion
      For the foregoing reasons, the district court’s order is AFFIRMED.




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