Reversed and Remanded and Memorandum Opinion filed December 15, 2015.




                                     In The

                      Fourteenth Court of Appeals

                              NO. 14-15-00123-CV

                          KELVIN GOLD, Appellant
                                       V.
          HELIX ENERGY SOLUTIONS GROUP, INC., Appellee

                   On Appeal from the 270th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-59134

                                OPINION

      Appellant Kelvin Gold sued appellee Helix Energy Solutions Group, Inc.
(Helix) after Gold was injured aboard a watercraft, the Helix 534. The trial court
granted summary judgment to Helix on all of Gold’s claims. The parties join issue
on whether Helix established as a matter of law that Gold was not a Jones Act
seaman—specifically, whether the Helix 534 was a “vessel in navigation.” We
reverse and remand.
                            I.    SUMMARY JUDGMENT

      In two issues, Gold contends the trial court erred by granting summary
judgment to Helix because there is a fact issue about whether Gold was a Jones Act
seaman, i.e., a member of a crew of a vessel. First, we recite the standard of
review. Then, we review general principles for Jones Act seaman status. Next, we
review the record in the light most favorable to Gold. Finally, we hold that Helix
has failed to conclusively establish that Gold was not a Jones Act seaman.

A.    Standard of Review

      We review summary judgments de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A movant for a
traditional summary judgment, such as Helix, must show that there is no genuine
issue of material fact and an entitlement to judgment as a matter of law. See id. A
defendant, such as Helix, is entitled to summary judgment if the evidence
conclusively negates at least one essential element of the plaintiff’s cause of action.
See Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374, 381 (Tex. 2004).

      Evidence is conclusive only if reasonable people could not differ in their
conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005); Loya v.
Loya, No. 14-14-00208-CV, — S.W.3d —, 2015 WL 4546562, at *3 (Tex. App.—
Houston [14th Dist.] July 28, 2015, pet. filed). We review the evidence in the light
most favorable to the nonmovant, Gold, crediting evidence favorable to him if
reasonable jurors could and disregarding contrary evidence unless reasonable
jurors could not. See Mann Frankfort, 289 S.W.3d at 848. We indulge every
reasonable inference in Gold’s favor. See Kane v. Cameron Int’l Corp., 331
S.W.3d 145, 147 (Tex. App.—Houston [14th Dist.] 2011, no pet.).




                                          2
      Whether a plaintiff such as Gold is a Jones Act seaman is a mixed question
of law and fact. See Chandris, Inc. v. Latsis, 515 U.S. 347, 369 (1995). Summary
judgment on seaman status is appropriate when the facts and law will reasonably
support only one conclusion. See McDermott Int’l., Inc. v. Wilander, 498 U.S.
337, 356 (1991). “The inquiry into seaman status is of necessity fact specific; it
will depend on the nature of the vessel and the employee’s precise relation to it.”
Id. “The question of whether an injured employee was a seaman at the time of his
injury is normally a question for the trier of fact.” Willis v. Titan Contractors
Corp., 625 S.W.2d 69, 73 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d
n.r.e.); accord Chandris, 515 U.S. at 362 (“[T]he question of seaman status is
normally for the factfinder to decide . . . .”); Johnson v. Gulf Coast Contracting
Servs., Inc., 746 S.W.2d 327, 328 (Tex. App.—Beaumont 1988, writ denied)
(“Jones Act status is almost always a fact issue for the jury.”); see also Offshore
Co. v. Robison, 266 F.2d 769, 779–80 (5th Cir. 1959) (explaining that the term
“vessel” has “such a wide range of meaning, under the Jones Act as interpreted in
the courts, that, except in rare cases, only a jury or trier of facts can determine [its]
application in the circumstances of a particular case”).

B.    Principles of Jones Act Seaman Status

      The Jones Act provides that a “seaman” injured in the course of employment
may maintain an action for damages. See 46 U.S.C.A. § 688(a); Chandris, 515
U.S. at 354. Seamen are entitled to maintenance and cure when they are injured in
the service of a ship. See Chandris, 515 U.S. at 354. A seaman’s remedies grow
out of “the status of the seaman and his peculiar relationship to the vessel, and as a
feature of the maritime law compensating or offsetting the special hazards and
disadvantages to which they who go down to sea in ships are subjected.” Id. at 355
(quotation omitted).

                                           3
      The term “seaman” is not defined in the statute. Id. But, after enacting the
Jones Act, Congress enacted the Longshore and Harbor Workers’ Compensation
Act (LHWCA), which provides the exclusive remedy for injured land-based
maritime workers. Id. The LHWCA excludes from coverage a “master or member
of a crew of any vessel.” Id. (citing 33 U.S.C.A § 902(3)(G)). Courts have
construed the term “seaman” in light of the exclusion appearing in the LHWCA
because the remedies are mutually exclusive. See id. at 355–56. The LHWCA
exclusion “is simply ‘a refinement of the term “seaman” in the Jones Act.’”
Stewart v. Dutra Const. Co., 543 U.S. 481, 488 (2005) (quoting Wilander, 498
U.S. at 347). Thus, a Jones Act seaman is a “master or member of a crew of any
vessel.” See id. at 356 (citing Wilander, 498 U.S. at 347 (“[I]t is odd but true that
the key requirement for Jones Act coverage now appears in [the LHWCA].”)).

      The term “vessel,” for purposes of the Jones Act and LHWCA, “includes
every description of watercraft or other artificial contrivance used, or capable of
being used, as a means of transportation on water.” 1 U.S.C.A § 3; see Stewart,
543 U.S. at 491 (“[A]t 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.”). Under this definition, the key question “remains in all cases whether
the watercraft’s use ‘as a means of transportation on water’ is a practical possibility
or merely a theoretical one.” Stewart, 543 U.S. at 496. A structure falls within this
definition when “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 v. City of Riviera Beach, Fla., 133
S. Ct. 735, 741 (2013). This “purpose-based” test permits “consideration only of
objective evidence of a waterborne transportation purpose” as viewed by a
“reasonable observer.” Id. at 744–45 (noting that courts look at “the physical


                                          4
attributes and behavior of the structure, as objective manifestations of any relevant
purpose, and not the subjective intent of the owner”). The inquiry may involve
factual issues for the jury. See Stewart, 543 U.S. at 496.

       Although the United States Supreme Court has “sometimes spoken of the
requirement that a vessel be ‘in navigation,’” the Stewart Court clarified that the
“in navigation” requirement does not stand “apart from § 3, such that a ‘vessel’ for
purposes of § 3 might nevertheless not be a ‘vessel in navigation’ for purposes of
the Jones Act.” Id.1 Rather, the “in navigation” element of the vessel status of a
watercraft is “relevant to whether the craft is ‘used, or capable of being used’ for
maritime transportation.” Id. The “in navigation” aspect of vessel status is an
acknowledgement that “structures may lose their character as vessels if they have
been withdrawn from the water for extended periods of time.” Id.

       Consistent with earlier “in navigation” case law, a “vessel does not cease to
be a vessel when she is not voyaging, but is at anchor, berthed, or at dockside, even
when the vessel is undergoing repairs.” Chandris, 515 U.S. at 373–74 (citations
and quotations omitted). A watercraft does not move in and out of Jones Act

       1
          See also Cain v. Transocean Offshore USA, Inc., 518 F.3d 295, 300 (5th Cir. 2008)
(“The ‘in navigation’ requirement does not stand apart from § 3 . . . .”); Bunch v. Canton Marine
Towing Co., 419 F.3d 868, 871 (8th Cir. 2005) (“[I]in the context of the Jones Act, we look to
the section 3 definition of ‘vessel,’ rather than attempting to discern additional meaning from the
phrase ‘in navigation.’”). See generally David W. Robertson, How the Supreme Court’s New
Definition of “Vessel” Is Affecting Seaman Status, Admiralty Jurisdiction, and Other Areas of
Maritime Law, 39 J. Mar. L. & Com. 115, 124 (2008) (“[Stewart] has expanded the test for
seaman status by making clear that there is no separate ‘in navigation’ requirement.”).
        We disagree with Helix’s argument that the “in navigation” inquiry “remains a separate
and distinct question.” Helix quotes Stewart as holding that the § 3 definition of “vessel” “is
significantly more inclusive than that used for evaluating seaman status under the Jones Act.”
543 U.S. at 497. Stewart, however, was quoting the court of appeals’ decision and immediately
thereafter clarified, “The Court of Appeals’ approach is no longer tenable.” Id. In light of
Stewart itself and the authorities cited above, we conclude that the “in navigation” requirement is
“relevant” to a determination of whether a watercraft is a “vessel,” but “in navigation” is not a
separate element to be proven. See id. at 496.

                                                5
coverage depending on whether it was actually moving at the time of the plaintiff’s
injury. Stewart, 543 U.S. at 495–96. Vessels “undergoing repairs or spending a
relatively short period of time in drydock are still considered to be ‘in navigation.’”
Chandris, 515 U.S. at 374 (noting that six months was a “relatively short period of
time for important repairs”); see also Senko v. La Crosse Dredging Corp., 352 U.S.
370, 373 (1957) (“Even a transoceanic liner may be confined to berth for lengthy
periods, and while there the ship is kept in repair by its ‘crew.’ There can be no
doubt that a member of its crew would be covered by the Jones Act during this
period, even though the ship was never in transit during his employment.”).

       “At some point, however, repairs become sufficiently significant that the
vessel can no longer be considered in navigation.” Chandris, 515 U.S. at 374.
Thus, a vessel may cease to be a vessel for purposes of the Jones Act when it is
being “transformed through ‘major’ overhauls or renovations.”                         Id.    This
“underlying inquiry whether a vessel is or is not ‘in navigation’ for Jones Act
purposes is a fact-intensive question that is normally for the jury and not the court
to decide.” Id. at 373.2

C.     Summary Judgment Evidence

       Helix and Gold submitted summary judgment evidence including an
affidavit from Helix’s representative Jason Shropshire, a transcript of Shropshire’s
deposition, a transcript of Gold’s deposition, pictures of the Helix 534, a printout
from Helix’s website, and various Helix documents that refer to the Helix 534 as a

       2
          In addition to proving the existence of a vessel under the “broad[]” definition in § 3, a
plaintiff “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.” Stewart, 543 U.S. at 494–95. Helix, however, does not challenge the existence of
these other elements. As Helix argues on appeal, “summary judgment was granted on the
grounds that the HELIX 534 was not a vessel ‘in navigation,’ as opposed to any other elements
required to prove seaman status.”

                                                6
“vessel,” Gold as a “seaman,” and Helix as a “Jones Act employer.” We review
this evidence in the light most favorable to Gold.

         1.       Purchase of the Helix 534 and Gold’s Employment

         Helix purchased the Helix 534 for $85 million and took delivery of the ship
in Singapore in August 2012. The Helix 534 was a 534-foot-long drill ship that
Helix intended to convert to a well-intervention ship.               The renovation began
shortly after the ship arrived at the Jurong Shipyard in August 2012.

         Helix hired Gold in November 2012 as an “able bodied seaman.” According
to Shropshire, Gold was hired “a few months before we first anticipated leaving
the yard.” Gold immediately began working 28-day hitches aboard the ship. And,
Shropshire testified that had Gold not been injured, Gold’s “ultimate job would
have been offshore” in the Gulf of Mexico aboard the Helix 534.

         Gold first noticed some pain in his neck and numbness in his hand while
moving groceries aboard the Helix 534 shortly after he began working in
December 2012. He reported to the ship’s medic and ultimately saw his own
doctor in January 2013 in Houston while he was off the Helix 534.3 He was
diagnosed with a pinched nerve and received a steroid injection. He was on hitch
again in February, off in March, and on again in April. Gold reported to the Helix
534 medic again in April that he suffered more severe neck pain and tingling in his
hand while moving a heavy beam. Gold saw a doctor in Singapore and was
diagnosed with a “bulging disk or pinched nerve, herniated disk.” He flew back to




         3
             Helix flew Gold back and forth between Singapore and Houston while Gold was not on
hitch.

                                                 7
Houston, and Helix paid Gold maintenance and cure until November 2013 when
his employment ended.4

       2.     Renovations of the Helix 534

       In a November 2012 article from Helix’s website, Helix wrote that it
anticipated the renovation project would be complete by mid-2013. Shropshire
testified that Helix expected the repairs would be complete in as little as five or six
months, or just a few months after Gold began working on the ship.

       In the article, Helix wrote that its own vice president for commercial
engineering was “[o]verseeing the conversion process.” Shropshire later testified
that the “Jurong Shipyard was in charge of the conversion work,” which was
mostly done by contractors. However, Shropshire also testified that the “ultimate
control” of the Helix 534 would be under Helix’s vice president of capital
expenditures. The ship’s crew and captain were not supervising the repairs.

       Helix wrote on its website that the Helix 534 would “appear as she always
has” after the conversion project.            Despite increased capabilities for well
intervention, “Her status as a Mobile Offshore Drilling Unit (MODU) will be
maintained and her top hole drilling capability will remain.”

       By April 2013, the entire crew was aboard the Helix 534 working 28-day
hitches.5 Shropshire testified that the crew was brought on “towards the end of the

       4
        Shropshire acknowledged that maintenance and cure are the types of benefits owed to
seamen. In a letter dated October 1, 2013, Helix told Gold that Helix was his “Jones Act
employer.”
       5
         The crew included a captain (a master/OIN), a chief mate, several senior and junior
dynamic positioning officers, a bosun, a “bunch” of able bodied seamen, a couple of ordinary
seamen, a chief engineer, a first engineer, a second engineer, a third engineer, a few ETOs, a
couple of electricians, a couple of motormen, a couple of rig mechanics, a chief steward, some
food-preparation employees (such as stewards, bakers, and cooks), a rig superintendant, a
toolpusher, an assistant driller, crane operators, and others.

                                              8
conversion to familiarize themselves with the vessel.” Although the crew was
“assisting with some of the work being done on the conversion,” a lot of what the
crew was doing was familiarizing itself with the Helix 534 because Helix was “not
going to assign a green crew to a boat they’ve never been on and tell them to go to
work.”

       Ultimately, Helix realized that the conversion project would take more time
and cost more money than expected. The project took about twenty months and
cost $115 million. Shropshire testified that the initial estimated cost had been less
than $115 million. He was not certain if it was “80 million, 50 million, 60
million,” although it would not have been as low as $15 million. The conversion
took longer than anticipated because additional work was required, there was
trouble getting some parts, and there were “labor issues.”6

       Shropshire testified that during Gold’s employment, the Helix 534 lacked
self-propulsion, although Shropshire did not know “one way or the other” whether
the Helix 534 was practically capable of transportation on water “at all times”
during the renovation. Gold testified that the ship had engines, but they were not
working. Shropshire testified that the Helix 534 was dry-docked at the Jurong
Shipyard. Gold testified similarly that the ship was in dry dock the entire time
Gold was aboard the Helix 534, but he testified also that he was not aboard the
Helix 534 when it was on blocks. According to Gold, the ship was “tied up” and

       6
          In its motion for summary judgment, Helix included a list of about 30 items that were
repaired “and/or” replaced or overhauled, citing to Shropshire’s affidavit. Shropshire testified by
his affidavit, “The repair and/or replacement list contained within Defendants’ Motion for
Summary Judgment is accurate . . . .” This is not proper summary judgment evidence of the
repairs actually made to the Helix 534. See Quanaim v. Frasco Restaurant & Catering, 17
S.W.3d 30, 42 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“It is well settled that
neither the motion for summary judgment, nor the response, even if sworn, is ever proper
summary judgment proof.”). Even if we were to consider the list as evidence, however, it is not
dispositive of this appeal.

                                                9
“always moored to a dockside” when he was aboard. In September 2013, the
Helix 534 was dry-towed from Singapore to Galveston for further repairs.

       When confronted with various documents in which Helix referred to the
Helix 534 as a “vessel,” Shropshire testified, “I think everybody referred to it as a
vessel.” Shropshire attached images to his affidavit, including pictures of the
Helix 534 before and after the conversion and several pictures of the propeller of
the ship while the ship was on blocks. The before and after pictures appear
respectively as Exhibits A-5 and A-6:7




       7
          See Lozman, 133 S. Ct. at 739 (holding that a floating house boat was not a vessel and
referring to a photograph of the craft).

                                              10
D.    Analysis

      The summary judgment evidence in this case is not conclusive. On the one
hand, there is evidence that the Helix 534 was not merely “at anchor, docked for
loading or unloading, or berthed for minor repairs”—when it would certainly
remain a vessel. See Stewart, 543 U.S. at 494. On the other hand, there is
evidence that the Helix 534 was not “permanently out of the water” with only a
“remote possibility that [it] may one day sail again”—when it would certainly not
be a vessel. See id. Shropshire testified that the company believed the repairs
would be completed a few months after Gold was first injured on the ship, and
Gold’s injury occurred only a few months after the repairs began. The ship carried
a full crew on 28-day hitches because there was a significant likelihood that the
ship would sail again—it was anticipated to sail as early as five months after the
repairs began.
                                       11
      Helix points to the lack of self-propulsion and the placement of the Helix
534 in a dry dock during Gold’s employment, but these factors are not dispositive.
See Lozman, 133 S. Ct. at 741 (although relevant, “lack of self-propulsion is not
dispositive”); Senko, 352 U.S. at 373 (member of a crew may be covered by the
Jones Act while the ship is berthed for lengthy repairs even though the ship was
never in transit during the employee’s tenure); see also The Jefferson, 215 U.S.
130, 142–43 (1909) (holding that admiralty courts retain jurisdiction over vessels
undergoing repairs in dry docks; noting that a dry dock “differs from an ordinary
dock only in the fact that it is smaller, and provided with machinery for pumping
out the water in order that the vessel may be repaired” (quotation omitted)).
Although Gold testified that the Helix 534 was in the dry dock when he was
injured, he also testified that the ship was tied up, moored to a dockside, and not on
blocks. A reasonable inference from this testimony is that the Helix 534 was in the
dry dock, but the dock had not yet been emptied of water. The fact that the ship
was moored the entire time Gold was onboard is also not dispositive. See Senko,
352 U.S. at 373 (member of a crew of a berthed ship being kept in repair for a
“lengthy period[]” would “no doubt . . . be covered by the Jones Act during this
period, even though the ship was never in transit during his employment”).

      Helix also stresses evidence that the repairs to the Helix 534 ultimately took
about 20 months and cost $115 million.         These may be relevant factors for
assessing whether a vessel ceases to be a vessel because it is out of navigation for a
major overhaul. See McKinley v. All Alaskan Seafoods, Inc., 980 F.2d 567, 568–70
(9th Cir. 1992) (holding that the “hull of an oil drill ship” being converted into a
“seagoing fish and crab processing ship” was not in navigation when the employee
died seventeen months into the renovation project; noting that the hull was
purchased for $451,000 and cost over $14 million to repair). But here there is also


                                         12
evidence that Helix did not anticipate the repairs to be so lengthy and costly. In
particular, the repairs were estimated initially to take a “relatively short period of
time for important repairs”—as little as five months. See Chandris, 515 U.S. at
374 (six months). This evidence helps explain why Helix hired a full crew on 28-
day hitches to learn the ship and contribute to its function.

      Further, the reasons for the delayed repair schedule included “labor issues”
and delays in obtaining needed parts. Thus, the length of time for the ultimate
repair is not necessarily indicative of the scope of the project. See McKinley, 980
F.2d at 568 (two important factors are the “status of the vessel and the scope of
work to be completed”). Helix also wrote on its website that the Helix 534 would
maintain its drilling capabilities and would appear as it always had.            This
“conversion” could be characterized more as an upgrade compared to the project in
McKinley, where the hull of a drill ship was entirely repurposed into a seafood
processing ship. Related to the scope of the repair, in McKinley the cost of the
major overhaul was more than thirty-one times the value of the original “hull” the
company had purchased; here, however, the ultimate expenditure was about 1.35
times the value of the original “drill ship” Helix had purchased, and the initial
estimate was even lower.

      There is also evidence that “everybody” referred to the Helix 534 as a
vessel; and it would be reasonable for an observer to do so in light of the pictures
attached to Shropshire’s affidavit, including Exhibit A-5 above. A reasonable
observer, looking particularly to the physical characteristics of the Helix 534, could
“consider it designed to a practical degree for carrying people or things over
water.” See Lozman, 133 S. Ct. at 741. The Helix 534 did not appear to be the
type of watercraft that courts have held to be non-vessels as a matter of law. See
id. (houseboat that had been moved several times by tow but was not designed for

                                          13
transportation); Stewart, 543 U.S. at 493–94 (collecting cases; noting that a dry
dock was not a vessel because it was a fixed structure and permanently moored for
twenty years; a wharfboat was not a vessel because it had a permanent location and
was secured by cables to land with water, electricity, and telephone lines running
from land to the boat; a floating casino was not a vessel because it was moored to
the shore in a semi-permanent or indefinite manner; and a floating processing plant
was not a vessel because a large opening had been cut into the hull, rendering the
craft incapable of moving over water).

      Unlike the repairman injured in Helix’s cited authority, West v. United
States, Gold was not a land-based worker hired by an independent contractor to
make a ship seaworthy after it had been totally deactivated for several years. See
361 U.S. 118, 120–22 (1959) (holding that ship owner made no warranty of
seaworthiness to the land-based repairman). Similarly, Helix relies on Wixom v.
Boland Marine & Manufacturing Co., but the ship in that case had been
undergoing repairs for nearly two years before the plaintiff’s injury; the ship had
no captain or crew; and the responsibility of the ship was vested entirely in the
plaintiff’s employer, which was a third-party contractor and not the owner of the
ship. See 614 F.2d 956, 956–57 (5th Cir. 1980). The Helix 534, on the other hand,
was only undergoing repairs for a few months at the time of Gold’s initial injury in
December 2012 (and repairs were not expected to take much longer); the ship had
a full crew and a captain working 28-day hitches; and there is some evidence that
Helix remained in ultimate control of the ship through several of its vice
presidents.

      Helix also relies on the Fifth Circuit’s divided opinion in Cain v.
Transocean Offshore USA, Inc., where the court held that Stewart did not apply to
the separate question of whether a structure under construction can ever be a

                                         14
vessel. See 518 F.3d 295, 303 (5th Cir. 2008). That is, Stewart’s treatment of the
“in navigation” requirement as merely “relevant” for determining vessel status did
not apply to the question of “when a vessel-to-be becomes a vessel.” Id. Here,
however, Helix concedes that the Helix 534 was a traditional seagoing vessel
before undergoing repairs at the Jurong Shipyard.8                 To prevail on summary
judgment, therefore, Helix had to establish conclusively that the Helix 534 was not
a vessel in navigation at the time of Gold’s injuries.                   But Helix did not
conclusively prove that the Helix was totally deactivated or out of service for an
extended period of time before Gold’s injury. Accordingly, we think this issue
should be decided by a fact finder under the totality of the evidence presented.
See, e.g., Chandris, 515 U.S. at 373 (“[U]underlying inquiry whether a vessel is or
is not ‘in navigation’ for Jones Act purposes is a fact-intensive question that is
normally for the jury and not the court to decide.”).

       We hold that Helix failed to conclusively prove that the Helix 534 was not a
vessel in navigation for purposes of Gold’s claims. A reasonable fact-finder could
determine, based on the Helix 534’s physical characteristics and activities, that the
ship was designed to a practical degree for carrying people or things over water,
and the Helix 534’s use as a means of transportation on water was a practical
possibility.

       Gold’s issues are sustained.




       8
         Helix acknowledges in its brief that “the evidence in this case conclusively proves [the
Helix 534] was a traditional seagoing vessel which, when in service, is designed to move under
its own propulsion.”

                                               15
                               II.    CONCLUSION

      Having sustained Gold’s issues, we reverse the trial court’s judgment and
remand for further proceedings consistent with this opinion.




                                      /s/    Sharon McCally
                                             Justice


Panel consists of Justices Jamison, McCally, and Wise.




                                        16
