Opinion issued July 14, 2016




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-15-00504-CV
                           ———————————
                       INOCENTE CEPEDA, Appellant
                                       V.
            ORION MARINE CONSTRUCTION, INC., Appellee


                   On Appeal from the 190th District Court
                            Harris County, Texas
                      Trial Court Case No. 2012-24614


                                  OPINION

      Inocente Cepeda sued Orion Marine Construction, Inc., alleging that he was

injured aboard a skiff transporting him from a dredge in the Houston Ship Channel

to dry land. Cepeda pleaded claims for negligence under the Jones Act as well as

maintenance and cure, unseaworthiness, and negligence under the general maritime
law of the United States. The trial court rendered a partial summary judgment

against Cepeda on all of his claims but the one for negligence under general maritime

law on the basis that he was not a seaman at the time of the accident as a matter of

law and therefore could not recover for negligence under the Jones Act or for

maintenance and cure or unseaworthiness. We reverse and remand.

                                 BACKGROUND

       In April 2012, Cepeda captained one of Orion Marine’s dredges. On April 4,

when Cepeda’s dredge was operating in the Houston Ship Channel, Cepeda’s

supervisor, Jorge Cordova, came aboard and fired Cepeda from his position as

captain. Cepeda disputes that his termination was effective immediately, and

maintains that Cordova told him he was eligible for another position on the vessel.

But it is undisputed that Cepeda then gathered his personal belongings and on

Cordova’s order boarded a skiff, which Cordova piloted to a Baytown landing.

Cepeda claims that he was injured en route, when the skiff struck a log floating in

the water. Cordova denied that any accident took place.

      Orion Marine moved for partial summary judgment on Cepeda’s Jones Act

claim and his claims for maintenance and cure and unseaworthiness, contending that

Orion Marine’s termination of Cepeda’s employment before the accident foreclosed

him from being a seaman as a matter of law, and seaman status is an element of these

causes of action. The trial court rendered a partial summary judgment disposing of



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Cepeda’s claims for negligence under the Jones Act and for maintenance and cure

and unseaworthiness under general maritime law.

      Cepeda proceeded to trial on his negligence claim under general maritime law;

the jury rendered a defense verdict. The trial court entered a take-nothing final

judgment on the jury’s verdict.

                                   DISCUSSION

      On appeal, Cepeda contends that the trial court erred in concluding that he

was not a seaman as a matter of law. Orion Marine maintains that Cepeda was not

a seaman at the time of the accident because it had terminated his employment on

the dredge, before Cepeda and Cordova boarded the skiff, and thus no employer-

employee relationship existed at the time that Cepeda claims that he was injured.

      A.     Standard of Review

      When a state court presides over an admiralty case, it “essentially occupies

the same position occupied by a federal court sitting in diversity: the state court must

apply federal maritime law but follow state procedure.” Mar. Overseas Corp. v.

Ellis, 971 S.W.2d 402, 406 (Tex. 1998). Thus, we review the trial court’s partial

summary judgment and its legal conclusions de novo. City of Austin v. Whittington,

384 S.W.3d 766, 788 (Tex. 2012); Buck v. Palmer, 381 S.W.3d 525, 527 (Tex.

2012).




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      B.     Applicable Law

      To recover for negligence under the Jones Act or for maintenance and cure or

unseaworthiness under general maritime law, one must be a “seaman.” 46 U.S.C.

§ 30104; McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 341–43 (1991).

“Seaman” is a term of art under general maritime law that Congress later

incorporated into the Jones Act. Stewart v. Dutra Constr. Co., 543 U.S. 481, 487–

88 (2005). Whether a person qualifies as a seaman under the proper legal standard

is a question of fact for the jury, unless reasonable minds could not differ. Wilander,

498 U.S. at 356; see also Kenning v. Bludco Barge & Towing Co., 892 S.W.2d 164,

167 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (holding that summary

judgment on seaman status is proper when there is no factual dispute).

      C.     Analysis

      In The Michael Tracy, 295 F. 680 (4th Cir. 1924), the court of appeals

addressed a scenario similar to the present one. In that case, the plaintiff had been

paid and discharged. Id. at 680. After retrieving his belongings, he attempted to

disembark from the ship via an unsecured ladder and fell and broke his arm. Id. In

ruling that the plaintiff was entitled to maintenance and cure despite his discharge,

the Fourth Circuit held that “the obligation of the ship to furnish maintenance and

cure attaches to accidents which happen in the brief interval between the time a

seaman is paid off and formally discharged and the subsequent time at which, in



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ordinary course, he actually gets physically away from her.” Id. at 681. The court

concluded that the plaintiff “went on her as a seaman, and for the purpose in hand

did not cease to be one until he was safely off her.” Id.

      The United States Supreme Court subsequently endorsed the Fourth Circuit’s

decision in Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724 (1943). In Aguilar, the

Court addressed whether shipowners owed maintenance and cure to seamen injured

during land travel to and from the ship while on shore leave. Id. at 726. Citing The

Michael Tracy, the Court held that they did, reasoning that seamen departing or

returning from shore leave were as entitled to maintenance and cure as a “seaman

quitting the ship on being discharged.” Id. at 736. The Court saw “no significant

difference” between injuries sustained while going to and from the ship and those

suffered while “quitting the ship.” Id. at 737. In Aguilar, the Court was called on

to decide something other than a seaman’s post-discharge recovery rights. But the

rationale for the Court’s decision rests in part on the discharge rule articulated in The

Michael Tracy. See id. at 736–37. We therefore regard this language in Aguilar,

made deliberately and after mature consideration, to be persuasive, if not

authoritative. See Elledge v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869,

870 (Tex. 2007).

      Subsequent decisions reinforce our view that Aguilar endorsed The Michael

Tracy without reservation. Since Aguilar, both the Supreme Court and the lower



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federal courts have repeated the rule that a seaman’s remedies persist after discharge

during the interval in which he disembarks the ship and safely returns to dry land.

See Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 132 (1959) (under Jones Act “a

seaman is as much in the service of his ship when boarding it on first reporting for

duty, quitting it on being discharged, or going to and from the ship while on shore

leave, as he is while on board at high sea”); Vincent v. Harvey Well Serv., 441 F.2d

146, 148 (5th Cir. 1971) (same); Ausborn v. Scott Chotin, Inc., 697 F. Supp. 251,

252 (E.D. La. 1988) (same); Dangovich v. Isthmian Lines, Inc., 218 F. Supp. 235,

236 (S.D.N.Y. 1963) (same).

      If there was doubt about the scope or continuing vitality of The Michael

Tracy’s discharge rule, the First Circuit eliminated it in LeBlanc v. B.G.T. Corp.,

992 F.2d 394 (1st Cir. 1993). In LeBlanc, the plaintiff, an engineer aboard a

commercial fishing vessel, was fired while at sea. Id. at 395–96. Once the ship

docked, he was ordered to remove his belongings. Id. at 396. Shortly afterward, the

plaintiff slipped and broke his foot in the engine room. Id. The trial court held that

he was not entitled to maintenance and cure as a matter of law, because “that remedy

cannot attach after termination of employment.” Id. The First Circuit reversed,

concluding that The Michael Tracy’s “statement of the law continues to shine

brightly, undimmed by time.” Id. at 400. Thus, it held that a fired seaman remains

entitled to maintenance and cure “after termination of employment so long as the



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triggering event takes place within the period of time reasonably needed for the

accomplishment of tasks in general furtherance of winding up the seaman’s

employment—the prototypical examples being removing one’s belongings, quitting

the ship, or implementing direct orders given at the time of discharge.” Id.

      We conclude that The Michael Tracy’s discharge rule—endorsed by the

Supreme Court in Aguilar, restated with approval by the Court in Braen and in other

federal decisions, and reaffirmed in LeBlanc—is blackletter maritime law.1 See

THOMAS J. SCHOENBAUM, ADMIRALTY & MARITIME LAW § 4–30 n.1 (5th ed. 2012)

(citing LeBlanc for rule that “the right to maintenance and cure remains even after

the seaman’s employment is terminated” in some circumstances); 2 MARTIN J.

NORRIS, THE LAW OF SEAMEN § 26:31 (4th ed. 1985 & Supp. 2002) (reporting the

holdings of The Michael Tracy and LeBlanc as the law).

      Orion Marine nevertheless contends that subsequent Supreme Court

decisions—Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), in particular—forecloses

seaman status to discharged employees like Cepeda. In Chandris, an engineer

developed an eye injury on the day he left port aboard one of his employer’s ships.

Id. at 350. His job was based out of an office on dry land, but his responsibilities


1
      We are aware of a single modern decision to the contrary—Fisher v.
      Cleveland Cliffs Iron Co., 1975 A.M.C. 1570 (W.D. Pa. 1975). In the 40-plus
      years since it was decided, Fisher has been cited once, by LeBlanc, which
      concluded the decision was unsupported by the weight of authority. 992 F.2d
      at 400 n.6.

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required him to spend a certain amount of time at sea, aboard ships in his employer’s

fleet. Id. at 350. In this context, the Court concluded that a two-part test governs

seaman status: (1) the employee’s duties must contribute to the function of the ship

or the accomplishment of its mission; and (2) the employee must have a connection

to the ship in navigation, or an identifiable group of ships, that is substantial in both

its duration and its nature. Id. at 368.

      Orion Marine reasons that because an employment relationship between the

seaman and the shipowner is intrinsic to the test articulated in Chandris, Orion

Marine’s termination of Cepeda precluded him from being a seaman at the time of

the alleged accident. But Chandris addressed whether an employee ever enjoyed

the status of seaman, not whether or when an acknowledged seaman lost that status

after being fired at sea before he reached the shore. See id. at 350–51. In discussing

the second element of the test for seaman status, the Court observed that changes in

an employee’s work assignments can alter status as a seaman. Id. at 372. It did so,

however, for the purpose of advising that these changes could result in an employee

gaining or losing seaman status. Id. The Court did not revisit, let alone disavow,

the rule for discharged employees stated in The Michael Tracy, endorsed by the

Court in Aguilar, and applied in LeBlanc.

      We have no quarrel with the proposition that the right to recover under the

Jones Act or for maintenance and cure or unseaworthiness arises from an employer-



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employee relationship between seamen and shipowners. Federal maritime law

makes it clear that this is so. See Chandris, 515 U.S. at 364–69. But it has long been

the rule that a discharged seaman may recover as a seaman if injured in the process

of quitting the ship. The Michael Tracy, 295 F. at 681. In this case, Orion Marine

fired Cepeda from his position as captain while at sea and paid him at least through

the end of the next day. It is undisputed that the only work that Cepeda performed

at the time was as a seaman. If a seaman is terminated while he is at sea, then he

remains a seaman for purposes of the Jones Act, maintenance and cure, and

unseaworthiness claims until he returns to dry land. See id.; LeBlanc, 992 F.2d at

399–400. We hold that the trial court erred in granting partial summary judgment

against Cepeda, based on its determination that Cepeda lacked status as a seaman.

      Orion Marine does not dispute Cepeda’s contention that the error was

harmful. A different causation standard applies to the negligence claim under

general maritime law that was tried to a jury than the causation standards that apply

to Cepeda’s causes of action for negligence under the Jones Act and for maintenance

and cure. See Noble Drilling (US) Inc. v. Fountain, 238 S.W.3d 432, 440 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied) (a featherweight causation standard is

applied under the Jones Act); Marine Transp. Corp. v. Methodist Hosp., 221 S.W.3d

138, 147 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (shipowners are liable for

maintenance and cure regardless of whether they are at fault). The trial court



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submitted a traditional common law proximate cause instruction. Because Cepeda’s

negligence cause of action under the Jones Act and his cause of action for

maintenance and cure are not subject to proximate cause, we cannot conclude that

the error in granting partial summary judgment was later rendered harmless by the

jury’s verdict. See Dutton v. S. Pac. Transp., 576 S.W.2d 782, 786 (Tex. 1978)

(holding that error in substituting proximate cause for statutory causation

requirement was harmful error).

      Cepeda’s unseaworthiness claim likewise is not foreclosed by the jury’s

adverse verdict. To recover for unseaworthiness, Cepeda must prove that the

unseaworthy condition of the vessel proximately caused his injuries. Offshore

Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 658 (Tex. App.—Houston [1st Dist.]

1998, no pet.). But an unseaworthiness claim is not a negligence claim. See id.

(“Because the defendant’s duty to provide a seaworthy vessel is completely

independent of its duty to exercise reasonable care, the plaintiff does not have to

prove the defendant was negligent.”). Here, the trial court only submitted a general-

maritime negligence claim to the jury and the jury’s consideration of proximate

cause therefore was limited to Orion Marine’s performance of its duty of reasonable

care. The jury did not consider whether any condition of the skiff in which Cepeda

traveled proximately caused his injuries. Accordingly, we cannot conclude that the




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error in granting summary judgment on Cepeda’s unseaworthiness claim was later

rendered harmless by the jury’s negligence verdict either.

      In light of our disposition, we need not reach Cepeda’s second issue,

challenging the trial court’s rulings excluding evidence in which Cepeda disputed

that he was fired while aboard ship before the accident.

                                 CONCLUSION

      We reverse the trial court’s partial summary judgment and remand this case

for further proceedings consistent with this opinion. The remainder of the final

judgment is unaffected by this opinion.




                                               Jane Bland
                                               Justice

Panel consists of Justices Higley, Bland, and Massengale.




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