                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 00-31455
                          Summary Calendar


ANTHONY DUNKLIN; BENITA DUNKLIN; THERESA BUTLER, Individually and
on behalf of Lucille Griffin; SUSAN ANN CUBIE, Individually and
on behalf of Velma Griffin Cubie; GEORGE CUBIE, JR., Individually
and on behalf of Velma Griffin Cubie; CHRISTOPHER CUBIE,
Individually and on behalf of Velma Griffin Cubie; ANTHONY CUBIE,
Individually and on behalf of Velma Griffin Cubie; MARIA CUBIE,
Individually and on behalf of Velma Griffin Cubie; TIMOTHY CUBIE,
Individually and on behalf of Velma Griffin Cubie; WILLIE J.
GRIFFIN, Individually and on behalf of Lucille Griffin; PAULINE
JACKSON, Individually and on behalf of Lucille Griffin,

                                          Plaintiffs - Appellants,
 versus

LOUISIANA RIVERBOAT GAMING PARTNERSHIP, doing business as
Isle of Capri Casino; LOUISIANA DOWNS INC, doing business as Isle
of Capri Casino; C S N O INC; L R G P HOLDINGS INC; XYZ INSURANCE
COMPANY; ELLIOTT BURT; BRIAN STENZ; BRUCE PORTER; KELVIN PINESET,

                                          Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                        USDC No. 99-CV-2354
                       --------------------
                            May 22, 2001

Before SMITH, BENAVIDES, AND DENNIS, Circuit Judges.

PER CURIAM:*

     Plaintiffs appeal from a dismissal of their complaint

pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject-matter

jurisdiction.   We affirm, albeit for reasons different from those

of the district court.    See United States v. Real Property

     *
        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that this opinion should not be published and is not precedent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.
                            No. 00-31455
                                 -2-

Located at 14301 Gateway Blvd. W., 123 F.3d 312, 313 (5th Cir.

1997) ("we will not reverse a judgment of the district court if

it can be affirmed on any ground, regardless of whether the

district court articulated the ground").

       Plaintiffs brought suit against the owners of the LADY OF

THE ISLE casino in the district court for the Western District of

Louisiana.    The LADY OF THE ISLE casino was allegedly negligent

in serving Rodney Baker alcohol after he was to the point of

visible intoxication.    Further, a valet for the defendant gave

Baker the keys to his car and allowed him to drive.      After

leaving the casino, the car was involved in a fatal accident

killing Baker and one of his passengers.      Plaintiffs sought to

recover tort damages against the casino under federal admiralty

law.

       “‘A party seeking to invoke federal admiralty jurisdiction

over a tort claim must satisfy conditions both of ‘location’ and

of ‘connection’ with maritime activity.’” Egorov,Puchinsky,

Afanasiev & Juring v. Terriberry, Carroll & Yancey, 183 F.3d 453,

455 (5th Cir. 1999)(quoting Jerome B. Grubart, Inc. v. Great

Lakes Dredge and Dock Co., 513 U.S. 527, 531-32 (1995)).         The

“location prong” can be satisfied if (1) the tort occurred on

navigable water or (2) the injury suffered on land was caused by

a vessel on navigable water.    Id. at 456.

       Plaintiffs cannot satisfy the requirement that their land-

based injuries were caused by a vessel on navigable water.         The

undisputed evidence submitted by the parties in support of and in

opposition to the Rule 12(b)(1) motion shows that the LADY OF THE
                           No. 00-31455
                                -3-

ISLE is not a vessel in navigation under general maritime law.1

See Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560,

570 (5th Cir. 1995).

     In Pavone, this Court held that the BILOXI BELLE, an

“indefinitely moored, shore-side, floating casino[]” was not a

“vessel” for purposes of the Jones Act or general maritime law.

52 F.3d at 570.   This Court chose not to analyze the vessel

status of floating casinos under traditional maritime


     1
       Both parties submitted evidence to the magistrate judge on
the issue whether the LADY OF THE ISLE was a vessel in
navigation. The following are the undisputed facts: (1) the LADY
OF THE ISLE is moored to land by lines tied to steel pilings; (2)
the LADY OF THE ISLE has her own power source, but also receives
from land additional shoreside lines, including water, telephone,
electric, sewer, cable T.V., computer and data processing lines,
which are connected indefinitely and semi-permanently to shore;
(3) the LADY OF THE ISLE sits in an enclosed pond in a cofferdam,
which was created with a weir gate system and then closed by use
of fill and steel sheeting; (4) since her placement in the
cofferdam, the LADY OF THE ISLE has never been used as a seagoing
vessel to transport passengers, cargo, or equipment across
navigable waters;(5) to unmoor her and move her into the Red
River, the cofferdam would have to be dismantled, (including
redredging access to the river and removing barricades, steel
sheeting, and rock) requiring weeks of work, permits from the
Army Corps of Engineers and other governmental agencies, and a
cost of between $500,000 and $1,000,000; (6) the LADY OF THE ISLE
is not required to sail; (7) the only transit the LADY OF THE
ISLE has ever had was her initial delivery from the ship yard to
her present location;(8) the LADY OF THE ISLE has a captain for
each of three watches; (9) a log is kept; (10) there is a
continuously manned pilot house on board with navigational
equipment, engine controls, and navigational radar; (11) the LADY
OF THE ISLE is powered by diesel engines, which are tested weekly
to ensure that they are operational; (12) she is inspected by the
Coast Guard every three months and is subject to unannounced
inspections; (13) she has her own generators capable of
generating electricity despite using shore-based utilities; (14)
the Coast Guard requires that the LADY OF THE ISLE have on board
a master, chief mate, a chief engineer, one oiler and eight
seamen; however, the number of crewmen required has decreased
since the LADY OF THE ISLE is not in transit and remains in the
cofferdam; (15) the LADY OF THE ISLE is 251.6 feet long, 72 feet
in breadth, and her hull is 14 feet deep.
                           No. 00-31455
                                -4-

methodology, choosing instead to apply the analysis used for

vessels withdrawn from navigation and those used as work

platforms, with a focus on the putative vessel’s status at the

time pertinent to the alleged injury.     Id. at 568.

      To determine the BILOXI BELLE’s status, this Court used the

following factors set forth in Bernard v. Binnings Construction

Co., 741 F.2d 824, 831 (5th Cir. 1984), for analyzing work-

platform cases: (1) was the structure involved constructed and

used primarily as a work platform; (2) was the structure moored

or otherwise secured at the time of the accident; and (3)

although capable of, and at times engaging in, movement over

navigable water, was the structure’s function as a means of

transportation merely incidental to its primary purpose of

serving as a work platform.   Id. at 568-69.   This Court also

recognized the later expansion of Bernard’s first factor to

encompass a structure that had not originally been constructed as

work platform, “as long as it was primarily used as a work

platform at the time of the accident and met the other factors.”

Id. at 569 (citing Ducrepont v. Baton Rouge Enterprises, Inc.,

877 F.2d 393, 395 (5th Cir. 1989).

     Applying these factors, this Court undertook the following

analysis:

     Here, the semi-permanently or indefinitely moored barge
     supporting the BILOXI BELLE casino was constructed ab
     initio to be the floating site of a restaurant and bar
     (not a key factor given [] [the] recognition that
     original construction as a work platform is not a
     prerequisite). From its inception the instant barge
     was used first as a floating restaurant and bar until
     its conversion to a casino and its renaming as the
     BILOXI BELLE, after which it has been used only for
     casino purposes. Upon its arrival in Mississippi from
                           No. 00-31455
                                -5-

      Texas, the BILOXI BELLE was moored to the shore in a
      semi-permanent or indefinite manner, and continued to
      be thus moored before, during and after the accidents
      in question. The BILOXI BELLE is susceptible of being
      moved, and in fact was moved across navigable waters
      one time in the course of “normal operations” (assuming
      that movement to avoid the threat of a hurricane on a
      single occasion can be deemed “normal operations”),
      which one-time movement was purely incidental to the
      barge’s primary purpose of physically supporting a
      dockside casino structure.

Id. at 570 (citation omitted).    This Court therefore held that at

the time of the alleged injuries, the BILOXI BELLE “(1) was

removed from navigation, and (2) was a work platform” and was

thus not a vessel for Jones Act purposes or general maritime law.

Id.   Defendants argue that Pavone is controlling.

      Using Pavone’s analysis, the LADY OF THE ISLE can be

distinguished from the BILOXI BELLE because she does have

operational engines, a captain, a crew, navigational aids, her

own generators, and a continuously manned pilot house.    Like the

BILOXI BELLE, however, the LADY OF THE ISLE is semi-permanently

moored to the shore by lines tied to steel pylons.    The LADY OF

THE ISLE also has numerous shore-side utility lines connected to

her in a semi-permanent fashion.    The parties present conflicting

evidence regarding whether the LADY OF THE ISLE was built with

the intention to cruise, however, as noted in Pavone, that factor

is not necessarily dispositive.    52 F.3d at 569, 570.   The LADY

OF THE ISLE, moreover, had been relieved of the statutory duty to

cruise since 1993; a duty previously imposed on other riverboat

casinos in the state.2

      2
        La. Rev. Stat. Ann. 27:65B(1)(b)(i)(West Supp. 2001)
formerly read: “For the purposes of this Chapter, on or after
September 15, 1993, in any parish which borders the Red River
                             No. 00-31455
                                  -6-

       Whatever its original purpose, the LADY OF THE ISLE has

clearly been withdrawn from navigation.     Since her arrival in

Bossier City, the LADY OF THE ISLE has been semi-permanently

moored to the shore including during the time of the accident.

Although she was originally required to leave the cofferdam every

five years for a hull inspection, that requirement has since been

waived by the Coast Guard.    Even had the Coast Guard not waived

that requirement, this type of movement would be incidental to

the LADY OF THE ISLE’s primary purpose of serving as a casino.

Should the LADY OF THE ISLE leave the cofferdam, such a move

would require massive amounts of time and money.     Under Pavone,

the LADY OF THE ISLE is not a “vessel” under general maritime

law.

       Accordingly, we AFFIRM the judgment of the district court.

Because we affirm the dismissal of plaintiffs’ complaint for lack

of subject-matter jurisdiction, we do not reach plaintiffs’

request for additional discovery for purposes of summary

judgment.




beginning five miles south of the Kansas City Southern
Company/Louisiana Arkansas Crossing Railroad Bridge in Rapides
Parish and ending five miles north of the Mid-South Company
Railroad Bridge in Caddo Parish, gaming may be conducted while a
riverboat is docked.” On March 27, 2001, the statute was amended
to read “gaming shall be conducted while a riverboat is docked
and no cruises or excursions shall be conducted,” and La. Rev.
Stat. Ann. 27:66 was enacted to allow certain riverboat casinos
in other parishes to remain docked. H.R. 2, 2001 Leg., 1st
Extraordinary Sess. (La. 2001).
