                                                                                                                                    ACCEPTED
                                                                                                                                01-17-00629-CV
                                                                                                                     FIRST COURT OF APPEALS
                                                                                                                             HOUSTON, TEXAS
                                                                                                                              5/25/2018 1:21 PM
                                                                                                                          CHRISTOPHER PRINE
                                                                                                                                         CLERK


              Martin, Disiere, Jefferson&Wisdom L.L.P.
__________________________________________                                   __________________________________________
                                               ATTORNEYS AT LAW
                                                                                                         FILED IN
     808 Travis Street • 20th Floor • Houston, Texas 77002 • Phone: 713-632-1700 • Fax: 713-222-0101 • www.mdjwlaw.com
                                                                                              1st COURT OF APPEALS
                                                                                                  HOUSTON, TEXAS
                                                                                              5/25/2018 1:21:53 PM
                                                                                                    Robert T. Owen
                                                                                              CHRISTOPHER A. PRINE
                                                                                                          PARTNER
                                                                                                      Clerk
                                                                                                           Direct: 832-333-1627
                                                                                                   e-mail: owen@mdjwlaw.com



                                                  May 25, 2018

Christopher A. Prine
Clerk, First Court of Appeals
First Court of Appeals
301 Fannin Street
Houston, Texas 77002-2066
Via e-file

       Re:       Partin v. Superior Energy Services, Inc., No. 01-17-00629-CV, In the
                 First Court of Appeals, Houston, Texas

Dear Mr. Prine,

       Please distribute this post-argument letter to Chief Justice Radack and
Justices Jennings and Lloyd. This letter provides the Court with additional
information regarding the factual issues the Court explored with the parties during
the May 22, 2018 argument.

The Record Demonstrates There Are Genuine Issues Of Material Fact On Each
Of The Grounds Upon Which The District Court Granted Summary Judgment

      At oral argument, Justice Jennings asked Mr. Tillery to show the Court the
“rock solid” evidence conclusively establishing that Superior Energy was entitled
to summary judgment. There is no such evidence, and the record demonstrates
there are, at the least, genuine issues of material fact regarding the Arctic
Challenger’s status as a “vessel” and Mr. Partin’s status as a “seaman.”




                                                            1
The Arctic Challenger’s Status As A Vessel

       Mr. Partin suffered his accident in August 2013. See CR 115-18, 139. To
be entitled to summary judgment on the ground that the Arctic Challenger was not
a “vessel,” Superior was required to conclusively establish that the Challenger was
not a “vessel” on that date. In support of that position, at oral argument Mr. Tillery
argued (1) that the Arctic Challenger was incomplete because it had not completed
its sea trials and had not been delivered to Shell, and (2) that, even if the
Challenger was complete, it had been removed from navigation due to Shell’s
requests for major modifications.

      The Arctic Challenger Was Complete And Delivered To Its Owner/Operator

      The evidence demonstrates that the Arctic Challenger was “fully operational
and functional, and ready to be deployed” in March 2013, after the Challenger
received its Certificate of Inspection from the Coast Guard on October 11, 2012
and completed its March 2013 sea trial for the government and Shell. See CR 269,
487.

       Moreover, because it is undisputed, and indisputable, that Shell did not own
or operate the Arctic Challenger (see CR 269), Superior’s focus on the date the
Challenger was delivered to Alaska for use in Shell’s Arctic drilling operations is
not relevant to the Arctic Challenger’s status as a vessel. Indeed, the record
establishes that Greenberry Industrial, the contractor charged with constructing the
oil containment system for the Arctic Challenger, completed its work in 2012 and
delivered the Challenger to Superior, the Challenger’s lessor and operator. See CR
350-51, 618-19.

      The Arctic Challenger Had Completed Its Sea Trials, Was Fully Functional,
      And Ready To Deploy

      At oral argument, Mr. Tillery contended that the Arctic Challenger was not a
“vessel” because it was still undergoing sea trials in August 2013, pointing to a sea
trial occurring in 2015. However, the Superior corporate representatives
repeatedly testified that the Arctic Challenger was capable of being deployed
following its March 2013 sea trial and that the reason it was not actually deployed
was because Shell cancelled the 2013 and 2014 arctic drilling seasons. See, e.g.,
CR 487, 704. Moreover, as the evidence shows Superior’s contracts with Shell
required the Arctic Challenger to complete annual sea trials to continue to operate

                                          2
(see CR 768), under Superior’s theory the Arctic Challenger would never acquire
“vessel” status because there would always be another sea trial required to be
conducted in the future.

      The Arctic Challenger Was Not “Out Of Navigation” At The Time Of Mr.
      Partin’s Accident

       There is also a genuine issue of material fact regarding Superior’s position
that the Arctic Challenger was taken “out of navigation” at the time of Mr. Partin’s
accident. Superior’s corporate representatives testified that Shell did not ask
Superior to take the Arctic Challenger out of “deployable readiness stage” until
July 2014, nearly one year after Mr. Partin’s August 2013 accident. CR 712.
Superior’s corporate representative also testified the modifications requested by
Shell following the March 2013 sea trial were not “major,” and again, Superior
repeatedly testified that the Arctic Challenger was capable of being deployed after
it completed its March 2013 sea trial. See, e.g., CR 487, 491.

      Indeed, there is an abundance of evidence in the record showing that the
Arctic Challenger qualified as a “vessel” at the time of Mr. Partin’s accident.
Superior’s corporate representatives testified:

      Q.    What was the deadline [to complete the Arctic Challenger]?
      A.    I don’t recall the exact date, but it was the start of the . . . drilling
            season in the Arctic. So from the moment we got our certificate of
            inspection from the Coast Guard [on October 11, 2012], we were
            eligible to mobilize.

CR 523, 269.

      Q.    . . . In a general sense, these systems [referencing various systems on
            the Arctic Challenger] became operational at different points in time;
            would that be correct? . . .
      A.    So all of the systems came operational during the construction phase.
            All of the systems were operational by September 2012.

CR 684.




                                         3
       Q.     Your testimony is that as of – as of December 2012, the Arctic
              Containment System was fully functional and could do exactly what it
              was designed to do; is that correct?
       A.     Yeah. . . .
       Q.     But – well, that’s to the satisfaction of Shell?
       A.     That’s what I said, yes.

CR 705.

       Q.     . . . So then you got 12-12 and everything goes smoothly?
       A.     So we got our stamp from the government in March of 2013.
       Q.     So when you say “government stamp”?
       A.     So BSEE [Bureau of Safety and Environmental Enforcement] signed
              off that the system was operational and met their requirements.

CR 706.

       Q.     Okay. Is it [the Arctic Challenger] capable of being deployed to an
              emergency?
       A.     Yes.
       Q.     And when did that capability first manifest itself; when was that?
              What did that first?
       A.     Well, we got our first Coast Guard certificate of inspection in late
              2013. 1 But prior to that, it made several nonresponse deployments.
              But when we get out certificate of inspection . . . we are deemed ready
              to deploy to an emergency.

CR 423-24.

       Q.     When did it [the Arctic Challenger] become fully operational?
       A.     In December 2012 . . . the dome was damaged. We rebuilt the dome,
              did a deployment test for Shell, and did that successfully. And then
              they called off their drilling season, but we demonstrated it for them
              and BSEE.

CR 704.

1
 Superior’s corporate representative misspoke; it is undisputed, and indisputable, that the Coast
Guard issued its certificate of inspection on October 11, 2012. CR 269.


                                               4
      Q.    Mr. Peyton, earlier, if I understood your testimony, you said that the
            Challenger was fully operational and functional, ready to be deployed
            for spills sometime in the 2013, right?
      A.    Correct. That’s correct.
      Q.    Where there any major modifications to the system after that, after
            that point in time?
      A.    I don’t know if you would consider any modifications major, but there
            were modifications made on Shell’s request, our customer.

CR 487.

      Q.    So Shell didn’t want it to be deployed until all this stuff [requested
            modification] was taken care of?
      A.    No. This was their wish list. They didn’t – they would have deployed
            the vessel without any of this stuff. So it’s their wish list. Think of it
            in terms of if you’ve got a car, and you were driving it down the road,
            and you decided you want to put some fancy wheels on it. You can
            drive it with the old wheels, but you want the shiny ones, so you go
            out and you do that.

CR 491.

      It is Superior’s burden to conclusively establish that the Arctic Challenger
was not a “vessel” at the time of Mr. Partin’s accident. The summary judgment
evidence demonstrates, at the very least, there is a genuine issue of material fact
regarding that issue, and the district court could not properly grant summary
judgment on this ground.

Partin’s Duties & Connection To The Arctic Challenger

       As to Mr. Partin’s status, Mr. Tillery contended that there was no evidence
in the record that Mr. Partin spent more than 10% of his time working aboard the
Arctic Challenger. Counsel further contended that there was no evidence that Mr.
Partin’s duties contributed to the function of the ship.




                                         5
       However, in his deposition, Mr. Partin testified:

       Q.      . . . what sort of work did you do at Superior? Did you work on
               the ARCTIC CHALLENGER or on the ARCTIC
               CHALLENGER and in the warehouse like you had done
               previously?
       A.      Well, no. I mean, 90 percent of the work was done on the
               ARCTIC CHALLENGER.

CR 92 (emphasis added).2

       Q.      What were your job duties for the one year before your accident
               with Superior?
       A.      Well, I hired on with Superior as a member of the industrial
               crew. I was a crew member. I was the ship’s welder,
               responsible for – I think the outline of the job was to maintain
               the vessel and any other vessels in its fleet . . . .

CR 91.

       Q.      Beyond in the deployed state getting ready . . . standing by . . .
               did you have any other tasks related to the operation of the
               vessel?
       A.      I would say no. I was to aid in any way I could basically.

CR 239.

      Mr. Partin’s testimony conforms with the testimony of Superior’s corporate
representatives, who testified that Mr. Partin was responsible to (1) “weld on – on
the Arctic Challenger” (CR 485-86); (2) “make repairs” (CR 485-86); (3) “secure

2
  As the Court will recall from argument, the U.S. Supreme Court instructs that a party who
spends less than 30% of his time on board a vessel is generally not a “seaman.” Chandris, Inc. v.
Latsis, 515 U.S. 347, 371, (1995) (“We agree with the Court of Appeals that seaman status is not
merely a temporal concept, but we also believe that it necessarily includes a temporal element. A
maritime worker who spends only a small fraction of his working time on board a vessel is
fundamentally land based and therefore not a member of the vessel's crew, regardless of what his
duties are . . . Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb
for the ordinary case: A worker who spends less than about 30 percent of his time in the service
of a vessel in navigation should not qualify as a seaman under the Jones Act.”).


                                                6
items to the deck, making them ready for sea” (CR 485-86); and (4) in the event
that the Arctic Challengers’ tug’s towline was compromised, be “responsible for
responding to hook it [the towline] back up and ensure that the vessel didn’t
founder” (CR 439).

      The corporate representatives further testified:

      Q.     Was there an assessment by Superior that the Plaintiffs
             [including Mr. Partin] are all seaman?
      A.     They are members of the vessel crew, yes.

CR 430; see also CR 640-41 (noting that Mr. Partin was a part of the “vessel
crew.”).

      Q.     . . . did they [a group of plaintiffs, including Mr. Partin] play a
             big role in navigating, or did they play a big role in transit?
      A.     Navigating is a subsector of transit. These folks did not
             participate in the navigation process. They participated in
             ensuring the vessel was safe and ensuring the vessel was
             operational. . . . [T]hey all had a role to play.

CR 432-33.

      Q.     And you’re saying they’re a critical part of what?
      A.     The crew, the vessel crew. They play a critical role in the
             transit of the vessel . . . This vessel cannot go to sea without
             these people on it, these positions that these people held . . .
             They have to be on board in order for the vessel to operate.

CR 434.

      Q.     So apart from the dewatering, what else did – was essential to
             the transit of the vessel . . . ?
      A.     . . . they would also be responsible for all emergency response
             on board the vessel such as – and I’m not talking about the
             emergency response function the vessel services. I’m talking
             about if there was an emergency that threatened the
             seaworthiness of the vessel, they would have to respond to that
             emergency. . . . They are responsible for all of the traditional

                                          7
             boatswain mariner type – type duties such as . . . tying, securing
             things for sea, fastening items to the deck to make sure they
             don’t go flying around. Anchorage; so when it’s time to anchor
             the vessel, they would become heavily involved in that process.

CR 435.

      Q.     When you say seaworthiness, what do you mean?
      A.     I mean a situation that if allowed to persist would result in the
             loss of the vessel. Anything like that, they would address.
      Q.     Give me an example.
      A.     . . . so if the vessel were punctured, the hull was punctured and
             water was coming in, they would be the people to respond to
             stop the leak and to dewater the vessel . . .
      Q.     And any other examples of the danger to seaworthiness?
      A.     If there was a fire that broke out on board in any one of the
             many machinery paces that these folks are responsible to
             operate and maintain, they would respond to the fire.
      Q.     Anything else?
      A.     . . . if we suffered a stability situation because of improperly
             loading the vessel, they would be responsible for correcting that
             stability situation so that the vessel was stable . . . ensuring it’s
             not loaded too much on the port or starboard side.

CR 437-38.

       Such evidence, at the least, raises genuine issues of material fact regarding
whether Mr. Partin qualifies as a “seaman.” See Chandris, Inc. v. Latsis, 515 U.S.
347, 368 (1995) (holding the “employment-related connection to a vessel in
navigation” necessary for “seaman” status comprises two elements: (1) “the
worker's duties must contribute to the function of the vessel or to the
accomplishment of its mission,” and (2) “the worker must have a connection to a
vessel in navigation . . . that is substantial in both its duration and its nature”). The
district court could not have properly granted summary judgment on the ground
that Mr. Partin did not qualify as a “seaman.”




                                           8
Respectfully submitted,

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.


By: /s/ Robert T. Owen
    Robert T. Owen
    State Bar No. 24060370
    owen@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile

ATTORNEYS FOR APPELLANT
VINCENT PARTIN




      9
                        CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the above Letter has been
forwarded to opposing counsel via e-filing and e-mail on this 25th day of May,
2018.

      Lara Pringle                         Jefferson R. Tillery, pro hac vice
      lpringle@joneswalker.com             jtillery@joneswalker.com
      Jones Walker LLP                     Jones Walker LLP
      1001 Fannin St., Suite 2450          201 St. Charles Avenue, 50th Floor
      Houston, Texas 77002                 New Orleans, Louisiana 70170-5100
      (713) 437-1811 telephone             (504) 582-82338 Telephone
      (713) 437-1810 facsimile             (504) 589-82386 Facsimile
      (via e-File and e-Mail)              (via e-File and e-Mail)
                      (Attorneys for Superior Energy Services, Inc.)



                              /s/ Robert T. Owen
                              Robert T. Owen




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