FOR IMMEDIATE NEWS RELEASE                                                       NEWS RELEASE #004


FROM: CLERK OF SUPREME COURT OF LOUISIANA


The Opinions handed down on the 29th day of January, 2020 are as follows:


BY Boddie, J.:

 2019-CC-01238            DON CALDWELL, INDIVIDUALLY AND SHERONDA CALDWELL,
                          INDIVIDUALLY VS. ST. CHARLES GAMING COMPANY D/B/A
                          ISLE OF CAPRI CASINO-LAKE CHARLES (Parish of Calcasieu)

                          We granted this writ to review a decision by the Third Circuit Court of
                          Appeal granting plaintiff’s motion for summary judgment and holding the
                          Grand Palais Casino (“Grand Palais”) is a “vessel” for purposes of general
                          maritime law.1 The decision contradicts the court’s earlier decision in Benoit
                          v. St. Charles Gaming Company, LLC, 17-101 (La. App. 3 Cir. 11/8/17),
                          230 So. 3d 997, writ denied, 17-2051 (La. 2/2/18), 233 So. 3d 615, cert.
                          denied, ___ U.S. ___, 139 S. Ct. 104, 202 L. Ed. 2d 29 (2018), which held
                          the Grand Palais is not a vessel. After a de novo review of the record, and
                          for the reasons set forth below, we conclude the Grand Palais is a not vessel
                          under general maritime law. Therefore, we reverse the judgment of the court
                          of appeal and grant defendant’s motion for summary judgment, dismissing
                          plaintiff’s suit.

                          REVERSED AND RENDERED.

                          Retired Judge James H. Boddie, Jr., appointed Justice ad hoc, sitting for
                          Justice Marcus R. Clark.

                          Hughes, J., dissents with reasons.
01/29/20




                         SUPREME COURT OF LOUISIANA

                                      No. 2019-CC-1238

    DON CALDWELL, INDIVIDUALLY, AND SHERONDA CALDWELL,
                       INDIVIDUALLY

                                            VERSUS

    ST. CHARLES GAMING COMPANY d/b/a ISLE OF CAPRI CASINO-
                       LAKE CHARLES

    ON SUPERVISORY WRIT TO THE 14TH JUDICIAL DISTRICT COURT,
                    PARISH OF CALCASIEU

BODDIE, J., Justice ad hoc*

       We granted this writ to review a decision by the Third Circuit Court of Appeal

granting plaintiff’s motion for summary judgment and holding the Grand Palais

Casino (“Grand Palais”) is a “vessel” for purposes of general maritime law.1 The

decision contradicts the court’s earlier decision in Benoit v. St. Charles Gaming

Company, LLC, 17-101 (La. App. 3 Cir. 11/8/17), 230 So. 3d 997, writ denied, 17-

2051 (La. 2/2/18), 233 So. 3d 615, cert. denied, ___ U.S. ___, 139 S. Ct. 104, 202

L. Ed. 2d 29 (2018), which held the Grand Palais is not a vessel. After a de novo

review of the record, and for the reasons set forth below, we conclude the Grand

Palais is a not vessel under general maritime law. Therefore, we reverse the

judgment of the court of appeal and grant defendant’s motion for summary

judgment, dismissing plaintiff’s suit.

                       FACTS AND PROCEDURAL HISTORY

       Plaintiff was employed by Grand Palais Riverboat L.L.C. (“defendant”) 2 as a

technician on the Grand Palais, a riverboat casino, and was injured on April 9, 2015,


1
 Caldwell v. St. Charles Gaming Company, 2019-1238 (La. 10/15/19), 280 So. 3d 595.
2
 The applicant herein, defendant Grand Palais Riverboat, L.L.C., asserts in its answer that the
original petition incorrectly refers to it as St. Charles Gaming Company d/b/a Isle of Capri Casino-
_________________________

*Retired Judge James Boddie, Jr., appointed as Justice ad hoc, sitting for Justice Clark.
01/29/20


when the gangway attached to the riverboat malfunctioned and collapsed. Plaintiff

filed a petition for damages, alleging that the Grand Palais was a vessel under general

maritime law, 1 U.S.C. § 3, and that he was a seaman under the Jones Act, 46 U.S.C.

§ 30104, et seq., at the time of the accident.

       The Grand Palais was built as a riverboat casino in conformity with the

requirements of Louisiana law which authorize gaming activities to be conducted on

riverboat casinos that sail on designated waterways. See La. R.S. 27:41-113,

formerly La. R.S. 4:501-562. In 2001, the Grand Palais was moored to its current

location in Westlake by nylon mooring lines and steel wire cables, pursuant to La.

R. S. 27:65(B)(1)(c), which allows riverboat casinos to conduct gaming activities

while docked if the owner obtained the required license and paid the required

franchise fees.

       The Grand Palais has not moved since March 24, 2001. Necessary services

for the Grand Palais’s operation as a casino are provided via shore-side utility lines,

which supply electricity, water, sewage, cable television, telephone and internet

services. These utility lines have not been disconnected since 2001. Additionally,

the casino computer systems, including the slot machines, are located on land.

Guests enter the Grand Palais via a steel structure incorporated into the interior of

the land based hotel pavilion.

       Defendant filed a motion for summary judgment, arguing plaintiff is not a

seaman entitled to damages under the Jones Act, as he was not employed on a “vessel

in navigation,” relying in part on the court of appeal’s decision in Benoit.

       Plaintiff filed a cross motion for summary judgment, arguing he is employed

on a “vessel in navigation,” because there is no evidence the Grand Palais is


Lake Charles. The trial court judgment refers to defendant as Grand Palais Riverboat, L.L.C., while
the court of appeal opinion refers to it as St. Charles Gaming Company.

                                                2
01/29/20


incapable of navigation. Following a hearing, the trial court denied the cross motions

for summary judgment. Both plaintiff and defendant sought review with the court of

appeal.

      The court of appeal, sitting en banc, rendered a split (10-2) decision, denying

defendant’s application and granting plaintiff’s application. See Caldwell v. St.

Charles Gaming Company, 18-868, 18-915 (La. App. 3 Cir. 7/03/19), 279 So. 3d

940 (Pickett and Gremillion, JJ., dissenting). The majority acknowledged that the

court in Benoit reasoned the Grand Palais was no longer a vessel under general

maritime law, because, although originally designed to transport people over water,

the riverboat casino had been moored indefinitely for sixteen years, and dockside

gambling was its primary purpose. Id. at 2-3, 279 So. 3d at 941-42.

      Judge Saunders, writing for the majority, noted that he had dissented in Benoit

because the Grand Palais was designed for navigation, was capable of navigation

and had been used in navigation. Id. at 4, 279 So. 3d at 942. He concluded that the

“‘[f]requency of navigation is simply not part of the equation.’” Id. (quoting Benoit,

17-101, 230 So. 3d at 1002 (Saunders, J., dissenting)).

      The majority then examined the United States Supreme Court’s decision in

Stewart v. Dutra Const. Co., 543 U.S. 481, 125 S.Ct. 1118, 160 L. Ed. 2d 932 (2005).

In Stewart, the plaintiff was injured while employed on a dredge known as the

“Super Scoop,” which was being used to dig a trench under the Boston harbors. The

dredge was a floating platform with a bucket that removed silt from the ocean floor.

It had limited means of self-propulsion but was capable of navigating short distances

by manipulating its anchors and cables. The plaintiff was injured, and made claims

under the Jones Act and the Longshore and Harbor Workers’ Compensation Act, 33

U.S.C. §901-950. The lower courts denied the claims, finding the dredge was not a

vessel. The Supreme Court reversed, rejecting the argument that the dredge was not

                                          3
01/29/20


a vessel because its primary purpose was not navigation or commerce and it was not

in actual transit at the time of the plaintiff’s injury. See Caldwell, 18-868, 18-915 at

5-6, 279 So. 3d at 943-944 (discussing Stewart, 543 U.S. at 495, 125 S.Ct. 1118).

      The court of appeal majority also cited its prior opinion in Lemelle v. St.

Charles Gaming Co., 11-255 (La. App. 3 Cir. 1/4/12), 118 So. 3d 1, writ denied, 12-

339 (La. 4/27/12), 86 So. 3d 627, cert. granted judgment vacated, 568 U.S. 1141

(2013). In that case, a patron was injured on the M/V Crown Casino (“Crown”), a

riverboat casino that had been moored dockside since 2001. The patron sought

damages against the owner of the Crown under general maritime laws. The parties

filed cross motions for summary judgment as to the status of the Crown under

general maritime law. The trial court granted the patron’s motion, finding the Crown

to be a vessel. The court of appeal reversed. Judge Thibodeaux dissented, finding

the riverboat was capable of navigation, even though it was not being used for that

purpose. Thereafter, the U.S. Supreme Court granted certiorari and remanded the

case to the court of appeal for reconsideration in light of its opinion in Lozman v.

City of Riviera Beach, Florida, 568 U.S. 115, 133 S.Ct. 735, 184 L.Ed. 2d 604

(2013). However, the case settled prior to review by the court of appeal.

      Based on the aforementioned analysis, the court of appeal concluded the

Grand Palais is a vessel. The majority noted the defendant does not dispute that the

Grand Palais was a vessel prior to 2001. The majority reasoned that, at the time of

plaintiff’s accident, the Grand Palais had not been “disabled, removed from the

water, or sunk to the bottom of the lake enclosed in a coffer dam” and “defendant

works diligently to maintain the Grand Palais in a fully operational condition as

required by law.” Id. at 10-11, 279 So. 3d at 947. The majority held:

      In keeping with the decisions of the United States Supreme Court in
      Stewart v. Dutra Const. Co., 543 U.S. 481, 125 S.Ct. 1118, 160 L.Ed.2d
      932 (2005), and Lozman v. City of Riviera Beach, Fla., 568 U.S. 115,

                                           4
01/29/20


       133 S.Ct. 735, 184 L.Ed.2d 604 (2013), we find that the Grand Palais
       Casino was a vessel at the time of the alleged accident. Accordingly,
       we reverse and set aside the trial court’s ruling denying the motion for
       summary judgment filed by the plaintiffs, Don and Sheronda Caldwell,
       as to the issue of seaman status, and we hereby enter judgment granting
       summary judgment finding that plaintiff, Don Caldwell, was a seaman
       at the time of his accident on April 9, 2015.

Id. at 11, 279 So. 3d at 948.

       Judge Kyzar concurred with additional reasons, to which Judge Perry joined,

stating in part:

       One land based casino has now been authorized by the legislature, that
       being in New Orleans. All other casinos operating legally within the
       state, other than tribal casinos which are not under the state's
       jurisdiction, operate via authority of La. R.S. 27:41-113. Thus, if they
       are not, in fact, vessels capable of navigation upon water, they are in
       violation of law and are operating illegally. It is extremely obvious
       given this record that St. Charles Gaming Company, Inc. works very
       hard to keep the Grand Palais in compliance with La. R.S. 27:44 as a
       working riverboat so as to maintain its license to operate as a casino.
       The operators cannot have it both ways, to be a vessel for casino-
       licensing purposes but not a vessel for all other legal purposes, at least
       not applying the plain wording of the law as it currently exists.

       It is not for us to legislate, but to apply the law as written and to interpret
       the law only when necessary. If the legislature decides to end the
       pretense of the present state of riverboat gaming and allow for true
       dockside gambling, it has the power to do so with the stroke of the
       legislative pen.

Id., 279 So. 3d at 949 (Kyzar, J., concurring). Judge Pickett dissented for the reasons

assigned in Benoit, to which Judge Gremillion joined. Id., 279 So. 3d at 948 (Pickett,

J., dissenting).

       Defendant filed a writ application seeking review of the court of appeal’s

decision.

                                LAW AND DISCUSSION

       A motion for summary judgment is a procedural device used when there is no

genuine issue of material fact for all or part of the relief prayed for by a litigant.

Reynolds v. Bordelon, 2014-2371, pp. 2-3 (La. 6/30/15), 172 So.3d 607, 610; La.


                                             5
01/29/20


C.C.P. art. 966. A summary judgment is reviewed on appeal de novo, with the

appellate court using the same criteria that govern the trial court’s determination of

whether summary judgment is appropriate; i.e. whether there is any genuine issue of

material fact, and whether the movant is entitled to judgment as a matter of law. Id.

at 3, 172 So. 3d at 610.

      A motion for summary judgment will be granted “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to material fact, and that

mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The

burden of proof remains with the movant. However, if the movant will not bear the

burden of proof at trial on the matter that is before the court on the motion for

summary judgment, the movant’s burden on the motion does not require him to

negate all essential elements of the adverse party’s claim, action, or defense, but

rather to point out to the court that there is an absence of factual support for one or

more elements essential to the adverse party’s claim, action, or defense. Thereafter,

if the adverse party fails to produce factual support sufficient to establish that he will

be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of

material fact. La. C.C.P. art. 966(C)(2).

      Defendant argues the court of appeal’s majority decision conflicts with the

court’s prior decisions in Breaux, Lemelle, and Benoit. Defendant also argues the

decision conflicts with the U.S. Fifth Circuit Court of Appeals decisions in De La

Rosa v. St. Charles Gaming Co., 474 F. 3d 185 (5th Cir. 2006) (affirmed a summary

judgment for defendant, finding the sister ship moored in Lake Charles and used as

a casino is not a vessel in navigation under federal maritime law); Pavone v.

Mississippi Riverboat Amusement Corp., 52 F. 3d 560 (5th Cir. 1995) (affirmed a

summary judgment concluding the Biloxi Belle floating barge casino was not a

                                            6
01/29/20


vessel in navigation); and, Martin v. Boyd Gaming Corp., 374 F. 3d 375 (5th Cir.

2004) (affirmed a summary judgment for an employer, finding the Treasure Chest

Casino, a moored riverboat, was not a vessel in navigation).

          Defendant contends La. R.S. 27:44 has no application to a determination of

whether the riverboat casino is a vessel in navigation under federal admiralty law.3

          Finally, defendant argues the court of appeal erred in determining that plaintiff

is a “seaman,” entitled to recover benefits under federal law. Defendant contends

that whether the riverboat is a vessel does not determine the plaintiff’s status as a

seaman for admiralty jurisdiction. Rather, plaintiff must also prove the vessel is in

navigation, and that his employment has a substantial connection to navigation,

regularly exposing him to the “perils of the sea.” In support of its argument,

defendant cites the Supreme Court decision in Chandris, Inc. v. Latsis, 515 U.S. 347,

115 S. Ct. 2172, 132 L. Ed. 314 (1995). See also Richard v. Mike Hooks, Inc., 01-


3
    La. R.S. 27:44 provides, in pertinent part,

          (24) “Riverboat” means a vessel or facility which:

          (a) Carries a valid Certificate of Inspection issued by the United States Coast
          Guard with regard to the carriage of passengers on designated rivers or waterways
          within or contiguous to the boundaries of the state of Louisiana.

          (b) Carries a valid Certificate of Inspection from the United States Coast Guard
          for the carriage of a minimum of six hundred passengers and crew.


          (c) Has a minimum length of one hundred fifty feet.

          (d) Is of such type and design so as to replicate as nearly as practicable historic
          Louisiana river borne steamboat passenger vessels of the nineteenth century era.
          It shall not, however, be a requirement that the vessel be:


           (i) Steam-propelled or maintain overnight facilities for its passengers.


           (ii) Paddlewheel-driven or have an operable paddlewheel.


          (e) Is approved by the board and a portion of its designated gaming area is located
          within one thousand two hundred feet of a riverboat's licensed berth. Such
          facilities shall be inspected pursuant to R.S. 27:44.1(D)(1)(b).

                                                    7
01/29/20


145 (La. 10/16/01), 799 So. 2d 462 (This court found Richard was not a seaman as

his duties were not substantially related to his employer’s vessels in navigation.).

Defendant maintains that plaintiff had been working as a riverboat technician on the

Grand Palais since 2004, but had never sailed aboard it. Plaintiff’s duties included

chipping, grinding and painting, as well as fire team and rescue boat team. Plaintiff

worked regular daily shifts, did not sleep or eat on the Grand Palais, and held no

marine certification as part of his job qualifications.

      Plaintiff, on the other hand, contends the riverboat remains capable of

navigation, and thus it is a vessel. He argues the court of appeal correctly relied on

the Supreme Court decisions in Stewart and Lozman, as the only relevant issue for

navigation purposes is whether a watercraft can be used for transportation on water.

Plaintiff contends the depositions of the Grand Palais captains indicate that the

Grand Palais was capable of navigation at the time of the accident, and can be

returned to navigation by disconnecting the utility lines, nylon mooring lines, and

steel cables.

      Prior to its decision in this case, the jurisprudence from the Third Circuit Court

of Appeal had uniformly held that riverboat casinos that were permanently moored

were not vessels. See Breaux; Lemelle; and Benoit. In resolving the issue before us,

we find the appellate court’s reasoning in Breaux particularly persuasive. In an

opinion by Judge DeCuir, the court stated:

      In Stewart v. Dutra Constr. Co., 543 U.S. 481, 125 S.Ct. 1118, 160
      L.Ed.2d 932 (2005), the Supreme Court discussed “the distinction
      drawn by the general maritime law between watercraft temporarily
      stationed in a particular location and those permanently affixed to shore
      or resting on the ocean floor.” 543 U.S. at 493–494, 125 S.Ct. 1118.
      The Court explained and clarified the term “vessel in navigation” with
      the following analysis:
                   [T]he point was that structures may lose their
                   character as vessels if they have been
                   withdrawn from the water for extended periods
                   of time. . . Instead, the “in navigation”
                                           8
01/29/20


                 requirement is an element of the vessel status of
                 a watercraft. It is relevant to whether the craft is
                 “used, or capable of being used” for maritime
                 transportation. A ship long lodged in a drydock
                 or shipyard can again be put to sea, no less than
                 one permanently moored to shore or the ocean
                 floor can be cut loose and made to sail. The
                 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.
     543 U.S. at 496, 125 S.Ct. 1118 (citations omitted.) In support of its
     rationale, the Court discussed with approval the long-standing case of
     Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co.,
     271 U.S. 19, 46 S.Ct. 379, 70 L.Ed. 805 (1926), in which a wharfboat
     previously in navigation was no longer a “vessel” after it was
     permanently attached to the shore by cables and used as a floating
     platform to transfer freight and for storage. The Court also cited with
     approval Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d
     560 (5th Cir.1995), a case involving a floating casino permanently
     moored to the shore but otherwise capable of navigation. Finding the
     vessel was removed from navigation, the Pavone court described the
     casino as a work platform, which status precluded it from being a vessel
     for purposes of the general maritime law.
     Since the Stewart case was handed down, the United States Fifth Circuit
     decided De La Rosa v. St. Charles Gaming Co., 474 F.3d 185 (5th
     Cir.2006), which held that the M/V Crown, the same gambling boat at
     issue in the present case, is not a vessel for purposes of admiralty
     jurisdiction. St. Charles Gaming refers this court to other
     jurisprudence holding that, since the 2001 amendment to La.R.S.
     27:65, Louisiana’s permanently moored casinos are not vessels in
     navigation for purposes of maritime jurisdiction: Martin v. Boyd
     Gaming Corp., 374 F.3d 375 (5th Cir.2004), cert. denied, 543 U.S.
     1187, 125 S.Ct.1396, 161 L.Ed.2d 189 (2005); Hertz v. Treasure Chest
     Casino, LLC, 274 F.Supp.2d 795 (E.D.La.2003); Bourgeois v.
     Boomtown, LLC, 2009 WL 5909119 (La.App. 5 Cir. 5/21/09), writs
     denied, 09–1357 (La.9/25/09), 18 So.3d 68; cert. denied, 559 U.S. 972,
     130 S.Ct. 1699, 176 L.Ed.2d 182 (2010); In re Silver Slipper Casino
     Venture, 264 Fed.Appx. 363 (5th Cir.2008).

                                      ***
     We conclude the trial court erred in finding maritime jurisdiction in this
     case. Breaux was injured while on a gaming boat permanently
     attached to the shore, not used in navigation, and not performing any
     traditional maritime activity. Federal jurisprudence previously cited
     herein has interpreted maritime jurisdictional rules and definitions
     as they pertain to similar casinos, finding such casinos to be outside
     the definition of a “vessel in navigation.” We choose to follow that
     jurisprudence. As this court stated in Gaspard v. Transworld Drilling
     Co., 468 So.2d 692, 695 (La. App. 3 Cir.1985), “uniformity of general
                                          9
01/29/20


      maritime law is best served by following the rule established by our
      federal brethren.”

Breaux, 10-1349, at 3-4, 68 So. 3d at 686-87 (emphasis added).

      As explained in Breaux, the federal jurisprudence supports a finding that a

floating casino permanently attached to the shore is not a vessel in navigation for

purposes of general maritime law and admiralty jurisdiction. While the Grand

Palais, theoretically, is capable of navigation, defendant maintains the fact that it has

not left the dock since 2001 supports the conclusion that it is not being used for the

purpose of maritime transportation.

      Two years after Breaux, the Supreme Court rendered the opinion in Lozman.

Petitioner Lozman’s floating home was moored to a marina owned by the city of

Riviera Beach. After various disputes and unsuccessful efforts to evict Lozman from

the marina, the city brought a federal admiralty law suit in rem against the floating

structure, seeking a lien for dockage fees and damages for trespass. Lozman moved

to dismiss the suit for lack of admiralty jurisdiction. The District Court found the

floating home to be a “vessel” under the Rules of Construction Act, which defines a

“vessel” as including “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. §3,

and concluded admiralty jurisdiction was proper. The Eleventh Circuit Court of

Appeals affirmed, agreeing that the home was a “vessel” since it was capable of

movement over water despite Lozman’s intent to remain moored. Lozman, 568 U.S.

115, 119, 133 S.Ct. 735, 739-40.

       The Supreme Court reversed, holding federal admiralty law did not apply, as

the floating home was not a vessel capable of transportation. Justice Breyer, writing

for the Court, explained, in part,

      We focus primarily upon the statutory phrase “capable of being used ...
      as a means of transportation on water.” 1 U.S.C. § 3. The Court of
                                           10
01/29/20


      Appeals found that the home was “capable” of transportation because
      it could float, it could proceed under tow, and its shore connections
      (power cable, water hose, rope lines) did not “‘rende[r]”’ it “practically
      incapable of transportation or movement.” 649 F.3d, at 1266 (quoting
      Belle of Orleans, supra, at 1312, in turn quoting Stewart, 543 U.S., at
      494, 125 S.Ct. 1118). At least for argument’s sake we agree with the
      Court of Appeals about the last-mentioned point, namely that Lozman’s
      shore connections did not “‘render’” the home “‘practically incapable
      of transportation.’” But unlike the Eleventh Circuit, we do not find
      these considerations (even when combined with the home's other
      characteristics) sufficient to show that Lozman’s home was a “vessel.”

      The Court of Appeals recognized that it had applied the term “capable”
      broadly. 649 F.3d, at 1266. Indeed, it pointed with approval to language
      in an earlier case, Burks v. American River Transp. Co., 679 F.2d 69
      (C.A.5 1982), in which the Fifth Circuit said:

               “‘No doubt the three men in a tub would also fit
               within our definition, and one probably could make a
               convincing case for Jonah inside the whale.’” 649
               F.3d, at 1269 (brackets omitted) (quoting Burks,
               supra, at 75).

      But the Eleventh Circuit’s interpretation is too broad. Not every floating
      structure is a “vessel.” To state the obvious, a wooden washtub, a plastic
      dishpan, a swimming platform on pontoons, a large fishing net, a door
      taken off its hinges, or Pinocchio (when inside the whale) are not
      “vessels,” even if they are “artificial contrivance[s]” capable of
      floating, moving under tow, and incidentally carrying even a fair-sized
      item or two when they do so. Rather, the statute applies to an “artificial
      contrivance ... capable of being used ... as a means of transportation on
      water.” 1 U.S.C. § 3 (emphasis added). “[T]ransportation” involves the
      “conveyance (of things or persons) from one place to another.” 18
      Oxford English Dictionary 424 (2d ed. 1989) (OED). Accord, N.
      Webster, An American Dictionary of the English Language 1406 (C.
      Goodrich & N. Porter eds. 1873) (“[t]he act of transporting, carrying,
      or conveying from one place to another”). And we must apply this
      definition in a “practical,” not a “theoretical,” way. Stewart, supra, at
      496, 125 S.Ct. 1118. Consequently, in our view a structure does not
      fall within the scope of this statutory phrase unless a reasonable
      observer, looking to the home’s physical characteristics and activities,
      would consider it designed to a practical degree for carrying people
      or things over water.

Lozman, 568 U.S. at 120-21, 133 S.Ct. at 740-41 (emphasis added). Justice Breyer
                                         11
01/29/20


continued:

      The Court’s reasoning in Stewart also supports our conclusion. We then
      considered the application of the statutory definition to a dredge. 543
      U.S., at 494, 125 S.Ct. 1118. The dredge was “a massive floating
      platform” from which a suspended clamshell bucket would “remov[e]
      silt from the ocean floor,” depositing it “onto one of two scows”
      floating alongside the dredge. Id., at 484, 125 S.Ct. 1118. Like more
      traditional “seagoing vessels,” the dredge had, e.g., “a captain and crew,
      navigational lights, ballast tanks, and a crew dining area.” Ibid. Unlike
      more ordinary vessels, it could navigate only by “manipulating its
      anchors and cables” or by being towed. Ibid. Nonetheless it did move.
      In fact it moved over water “every couple of hours.” Id., at 485, 125
      S.Ct. 1118.

      We held that the dredge was a “vessel.” We wrote that § 3’s definition
      “merely codified the meaning that the term ‘vessel’ had acquired in
      general maritime law.” Id., at 490, 125 S.Ct. 1118. We added that the
      question of the “watercraft’s use ‘as a means of transportation on
      water’ is ... practical,” and not “merely ... theoretical.” Id., at 496, 125
      S.Ct. 1118. And we pointed to cases holding that dredges ordinarily
      “served a waterborne transportation function,” namely that “in
      performing their work they carried machinery, equipment, and crew
      over water.” Id., at 491–492, 125 S.Ct. 1118 (citing, e.g., Butler v. Ellis,
      45 F.2d 951, 955 (C.A.4 1930)).

      As the Court of Appeals pointed out, in Stewart we also wrote that §
      3 “does not require that a watercraft be used primarily for that
      [transportation] purpose,” 543 U.S., at 495, 125 S.Ct. 1118; that a
      “watercraft need not be in motion to qualify as a vessel,” ibid.; and
      that a structure may qualify as a vessel even if attached—but not
      “permanently” attached—to the land or ocean floor. Id., at 493–494,
      125 S.Ct. 1118. We did not take these statements, however, as
      implying a universal set of sufficient conditions for application of the
      definition. Rather, they say, and they mean, that the statutory
      definition may (or may not) apply—not that it automatically must
      apply—where a structure has some other primary purpose, where it
      is stationary at relevant times, and where it is attached—but not
      permanently attached—to land.

      After all, a washtub is normally not a “vessel” though it does not have
      water transportation as its primary purpose, it may be stationary much
      of the time, and it might be attached—but not permanently attached—
      to land. More to the point, water transportation was not the primary
      purpose of either Stewart’s dredge or Evansville’s wharfboat; neither
      structure was “in motion” at relevant times; and both were sometimes
                                          12
01/29/20


      attached (though not permanently attached) to the ocean bottom or to
      land. Nonetheless Stewart’s dredge fell within the statute’s definition
      while Evansville’s wharfboat did not.

      The basic difference, we believe, is that the dredge was regularly, but
      not primarily, used (and designed in part to be used) to transport
      workers and equipment over water while the wharfboat was not
      designed (to any practical degree) to serve a transportation function and
      did not do so. Compare Cope v. Vallette Dry–Dock Co., 119 U.S. 625,
      7 S.Ct. 336, 30 L.Ed. 501 (1887) (floating drydock not a “vessel”
      because permanently fixed to wharf), with Jerome B. Grubart, Inc. v.
      Great Lakes Dredge & Dock Co., 513 U.S. 527, 535, 115 S.Ct. 1043,
      130 L.Ed.2d 1024 (1995) (barge sometimes attached to river bottom to
      use as a work platform remains a “vessel” when “at other times it was
      used for transportation”). See also ibid. (citing Great Lakes Dredge &
      Dock Co. v. Chicago, 3 F.3d 225, 229 (C.A.7 1993) (“[A] craft is a
      ‘vessel’ if its purpose is to some reasonable degree ‘the transportation
      of passengers, cargo, or equipment from place to place across navigable
      waters’”)); Cope, supra, at 630, 7 S.Ct. 336 (describing “hopper-
      barge,” as potentially a “vessel” because it is a “navigable structure[,]
      used for the purpose of transportation”); cf. 1 Benedict on Admiralty §
      164, p. 10–6 (7th rev. ed. 2012) (maritime jurisdiction proper if “the
      craft is a navigable structure intended for maritime transportation”).

Id., 568 U.S. at 123-25, 133 S.Ct. at 742-43 (emphasis added).

      In the instant case, the court of appeal relied on language from Stewart for the

proposition that a craft capable for use in maritime transportation is a vessel.

However, the Court in Lozman refined this language, explaining that the statutory

definition of a vessel may or may not apply when the craft has some other primary

purpose. Id., 568 U.S. at 124, 133 S.Ct. at 742.

      The evidence submitted in support of the cross motions for summary

judgment indicates the following facts are not in dispute. The Grand Palais’s

primary purpose is dockside gambling. For over fourteen years, the Grand Palais

has not engaged in any maritime activity and has been moored at the same location

in Westlake, with all operations required for its gaming activities serviced via land

based utility lines. The side of the riverboat was integrated into the adjacent land


                                         13
01/29/20


based pavilion and hotel. Although the Grand Palais could be returned to service as

a vessel, albeit with some modifications, the evidence establishes that for a decade

and a half, it has been moored indefinitely to provide and maintain its primary

purpose of gaming activities.

       The court of appeal decision holding the Grand Palais is a vessel under general

maritime law is a significant change in the jurisprudence and conflicts with prior

state and federal jurisprudence. While we acknowledge the precedents from the

Supreme Court have created some latitude in determining whether a craft is a vessel,

both Stewart and Lozman make it clear that the question of the “watercraft’s use ‘as

a means of transportation on water’ is . . . practical,” and not “merely . . . theoretical.”

See Lozman, 568 U.S. at 124, 133 S.Ct. at 742 (citing Stewart, 543 U.S. at 496, 125

S.Ct. 118. Following our de novo review of the record, we conclude that although

the Grand Palais was originally designed to transport people over water, and

theoretically is capable of navigation, as a result of the changes to its physical

characteristics, purpose, and function spanning nearly a decade and a half, it is no

longer a vessel used in maritime transportation. Thus, we find the court of appeal

erred in holding otherwise and granting plaintiff’s motion for summary judgment on

the issue of seaman status.

                                        DECREE

       Accordingly, for the above reasons, we hereby reverse the judgment of the

court of appeal and grant defendant’s motion for summary judgment, dismissing

plaintiff’s suit.

REVERSED AND RENDERED




                                            14
01/29/20

                      SUPREME COURT OF LOUISIANA

                                 No. 2019-CC-01238

  DON CALDWELL, INDIVIDUALLY, AND SHERONDA CALDWELL,
                     INDIVIDUALLY

                                          VS.

                    ST. CHARLES GAMING COMPANY
              D/B/A ISLE OF CAPRI CASINO-LAKE CHARLES


              On Supervisory Writ to the 14th Judicial District Court,
                              Parish of Calcasieu


Hughes, J., dissents and assigns reasons.

      Respectfully, I would find that the plaintiff is a Jones Act seaman. Plaintiff’s

duties included chipping, grinding, and painting, as well as fire team and rescue boat

team, all normal maritime activities on a vessel. Plaintiff was injured when a

gangway attached to the vessel malfunctioned and collapsed.

      While the primary purpose of the vessel is no longer to transport passengers

or cargo, it is fully operational and capable of sailing, and not permanently moored

to shore.

      This vessel is not a mere floating platform, or houseboat, or floating dry dock

without an engine. It has a captain and crew and can sail at any time. The courts

seem to be slicing this question ever more thinly, but this riverboat has so many of

the qualities of a traditional vessel that I do not see how its status can be denied.
