               IN THE SUPREME COURT OF TEXAS
                                        444444444444
                                           NO . 16-0075
                                        444444444444



          HELIX ENERGY SOLUTIONS GROUP, INC., HELIX WELL OPS, INC.,
            AND H ELIX O FFSHORE INTERNATIONAL, INC ., PETITIONERS,

                                                v.


                                KELVIN GOLD, RESPONDENT

           4444444444444444444444444444444444444444444444444444
                           ON PETITION FOR REVIEW FROM THE
                 COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444


        JUSTICE JOHNSON , joined by JUSTICE GREEN , JUSTICE LEHRMANN , and JUSTICE BOYD ,
dissenting.


       When reviewing a grant of summary judgment, we consider the evidence in the light most

favorable to the nonmovant—in this case, Kelvin Gold—and indulge every reasonable inference and

resolve any doubt against the movant—in this case, Helix Well Ops, Inc., Helix Energy Solutions

Group, Inc., and Helix Offshore International, Inc. (collectively, Helix). City of Lorena v. BMTP

Holdings, L.P., 409 S.W.3d 634, 645 (Tex. 2013). While the material summary judgment evidence

in the record is for the most part undisputed, it is not conclusive. And “[u]ndisputed evidence and

conclusive evidence are not the same—undisputed evidence may or may not be conclusive, and

conclusive evidence may or may not be undisputed.” City of Keller v. Wilson, 168 S.W.3d 802, 816

(Tex. 2005). Evidence qualifies as conclusive only if it rises to the level that reasonable people
could not differ in the conclusions they would draw from it. Id. Whether evidence reaches that level

necessarily depends on the facts and evidence of each case. Id. Here, that means the “vessel in

navigation” determination for purposes of the Jones Act may only be removed from the jury’s

consideration if the evidence conclusively establishes that for some relevant time period surrounding

the time of a worker’s injury, the watercraft on which the worker was injured was not practically

capable of transportation. See Stewart v. Dutra Constr. Co., 543 U.S. 481, 496 (2005). Of course,

what comprises a relevant time period must in itself be considered in light of the specific

circumstances and facts of each case. See id.; Chandris, Inc. v. Latsis, 515 U.S. 347, 372–73 (1995).

       Because Helix failed to meet its burden under the summary judgment standard to prove that

the HELIX 534 (the 534) was out of navigation for time periods relevant to dates on which Gold

claims to have been injured, I would affirm the judgment of the court of appeals.

                                I. Summary Judgment Evidence

       The Court reaches its decision based on both summary judgment evidence and, necessarily,

inferences from that evidence. The evidence includes deposition testimony from Kelvin Gold and

Jason Shropshire, the Director of Contracts and Risk for Helix Energy Solutions Group, Inc.; an

affidavit from Shropshire; pictures of the 534 while it was being repaired and converted; pictures of

the ship before and after its repair and conversion; various Helix documents referencing Gold; and

a printout from Helix’s website discussing the 534. For the most part, I agree with the Court’s view

of what the summary judgment evidence establishes. To review, those matters are set out below.

       The 534 was an older drill ship when Helix purchased it for $85 million. It had engine

problems and needed major repairs that included removing and replacing old equipment. The ship

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was towed to the Jurong shipyard in August 2012, where Helix placed it under the shipyard’s control

for repairs and conversion to a well intervention ship. The work a well intervention ship does and

is equipped to do is different from that of a drill ship. The repair and conversion work in the

shipyard was supervised by both the shipyard and a Helix representative who was responsible for

capital expenditures.

       Helix hired crew personnel, including Gold, while the repairs and conversion were ongoing

so they could begin familiarizing themselves with the 534. Helix wanted the ship to be ready to

work once the repairs and conversion were completed.

       Gold was employed by Helix from November 2012 through November 2013. The only ship

he worked on while employed by Helix was the 534. He began working on the ship in early

December 2012, and worked 28-day “hitches” in December and February, as well as part of a hitch

in April. Gold testified that when he worked on the 534, it did not have operable engines, lacked

ability for self-propulsion, and was always moored dockside in the shipyard. His duties while

working on the ship included familiarizing himself with the ship and equipment aboard the ship,

together with minor maintenance and repair work. The 534 did not serve as either a drill or well

intervention ship during the time Gold worked on it in December, February, and early April.

       Helix underestimated the extent of necessary repairs and the difficulty of the conversion, as

well as the time necessary to accomplish them. Difficulties in obtaining parts, such as engine

equipment, also caused the repairs and conversion to take longer and cost more than originally

anticipated. The ship was dry-towed to the Galveston shipyard in September 2013. Repair and

conversion work “topside” and on the engines continued in Galveston until April 2014, when the

                                                 3
work was completed. When the 534 left the Galveston shipyard, it began working as a well

intervention ship. The total repair and conversion cost amounted to approximately $115 million.

                            II. “In Navigation” is a Matter of Degree

       In Chandris, the Supreme Court recognized that at some point when a ship is temporarily

withdrawn from sailing so it can be repaired, the repairs become sufficiently significant such that the

vessel is no longer in navigation. 515 U.S. at 373–74. Likewise, major renovations can take a ship

out of navigation even though it will again be used in transportation after the renovations are

accomplished. Id. at 374. The bottom line according to the Court in Chandris: whether a ship

undergoing repairs qualifies as a vessel in navigation is a matter of degree. Id. The point where the

“degree” is reached—where repairs and modifications move a vessel from one in navigation to one

not in navigation—“is normally for the jury and not the court to decide.” Id. at 373.

       The facts proved by summary judgment evidence and set out above establish that the 534 was

not practically capable of transportation from the time Gold began working on it in December 2012,

when he reported his first injury, until early April 2013, when he reported that he aggravated his

injury, that is, he was injured a second time, and stopped working on the 534. However, just how

long it was not practically capable of transportation before he began work and how long it remained

that way after the date he reported his second injury was not conclusively established, despite the

Court’s position otherwise.

       In response to Helix’s motion for summary judgment, Gold, in part, referenced Shropshire’s

deposition testimony. Shropshire testified that the 534 was “not a vessel in navigation or commerce.

It was under repair, under conversion.” The first statement is the type of subjective, conclusory

                                                  4
opinion that the Supreme Court cautioned courts about considering in Lozman v. City of Riviera

Beach, 133 S. Ct. 735, 744 (2013). The second statement contains factual information about the

534’s condition, but it does not indicate anything about a specific time frame. Shropshire stated in

his affidavit that the 534 lacked any ability for self-propulsion and needed the assistance of tugs or

tows to be moved. See id. at 741 (lack of self-propulsion is not dispositive but may be a relevant

physical characteristic). But he did not specify at what point the components were removed or

whether they were lacking to begin with, whether the 534 was without them for the entire time it was

in the Jurong shipyard and while Gold was working on the ship, whether they remained lacking after

Gold reported his second injury and stopped working on the ship in April 2013, and if so, for how

long. He testified that he did not know if the 534 was physically incapable of sailing for the entire

time between December 2012 and April 2013. In response to specific questions about when the

engines were taken off and when they were put back on, the best Shropshire could do was state, “I

believe this was done very early on.” He did not know when the in-line propulsion equipment was

removed or replaced.

       The Court bases its conclusion that the 534 was not in navigation either at the time Gold

reported he was injured in December 2012 (the first injury) or in April 2013 (the second injury) on

evidence that (1) the propulsive equipment and other components required repair or replacement;

(2) the ship was purchased with the express goal of conversion; (3) the 534’s function changed;

(4) new equipment was added and obsolete equipment was removed; (5) the conversion work took

place at the hands of a contractor; (6) the duration of the project was twenty months and cost $115

million; (7) the 534 was out of service for the entire duration of the overhaul; and (8) the 534’s

                                                  5
conversion rendered the ship practically incapable of transportation for months at a time. Ante at

___.

       Items (1) through (5) are factual matters not in dispute. But none of them address the

determinative question: was the 534 practically incapable of navigation for some relevant period of

time as of each of the two different dates on which Gold claimed to have been injured.

       Item (6) references the extensive time and cost to accomplish the conversion, but those facts

cover the entire time of repair and conversion and are not limited to a relevant time period

surrounding Gold’s injury in December and its exacerbation in April. Item (7) is not conclusively

established by the evidence, but even if it were, being “out of service” does not equate to being out

of navigation. There are many reasons a vessel could be out of service, such as the owner let the

crew take extended time off due to a lack of business. The Court would be correct as to item (8) if

it said “practically out of service” for months at a time; but being out of service does not equate to

being out of navigation, as noted in regard to item (7), and as the Court recognizes in its opinion.

Ante at ___ (citing Chandris, 515 U.S. at 373–74).

       As to all of these matters referenced by the Court, it must be remembered that although in

a trial a factfinder might infer from them that the 534 was not in navigation for the time periods

relevant to Gold’s injury dates, this was a summary judgment proceeding. That being so, the

inferences flow the other way—against Helix’s position that the ship was out of navigation.

       Reviewing the summary judgment record in a chronological manner, the first stop is the

Court’s statement that the 534 “was laid up, taken out of the water, at the time Helix purchased her.”

Ante at ___. All the evidence as to the ship’s status when it was purchased came from Shropshire,

                                                  6
who offered the conclusion that it was not in navigation and he “believe[d] it was laid up.” But he

provided no explanation for what he meant by “laid up,” and there is no other summary judgment

evidence about what the term means, whether it was out of water, or what the 534’s status was before

Helix purchased it. Nor did Shropshire testify about facts underlying his “belief,” how long he

believed the ship had been “laid up,” or even whether he believed it had been laid up for lack of

work, or because its crew had been laid off, or for repairs or refurbishing of some nature. The 534

could have been laid up for any number of reasons, only some of which would have made it

physically and practically incapable of transportation. Properly applied in this summary judgment

proceeding, the inferences are that before the December date on which Gold claims to have been

injured the 534 was laid up or inactive for reasons other than its being physically incapable of sailing

and transporting people or materials.

        As to the time after Gold no longer worked on the 534 because of his second claimed injury,

there is no factual evidence whatsoever as to the ship’s condition. Gold’s testimony is as close as

the factual summary judgment evidence gets to that time period. But he unquestionably had no

knowledge of the 534’s physical condition after he stopped working, left the ship, and returned to

his home in the United States. And Shropshire did not address the condition of the 534 after the date

on which Gold reported that his second injury occurred, except to say the ship was piggybacked to

Galveston several months later, in September 2013, where it stayed until it began voyaging in the

spring of 2014. The fact that the 534 was “piggybacked” from Singapore to Galveston in September

might support an inference by a factfinder in a trial that the 534 was not practically capable of sailing

when that piggyback transfer occurred. But the same inferences cannot be drawn in support of the

                                                   7
summary judgment motion. Its being piggybacked is not evidence that it was physically incapable

of sailing and transporting on its own. Again, properly applied in the summary judgment context,

inferences must be drawn against the conclusion that the 534 was out of navigation after Gold last

worked; that is, the inference that must be applied is that it became physically capable of navigation

shortly after Gold last worked on it in April, regardless of whether it actually sailed or was in

navigation. Similarly, as to the time the repairs and conversion were being completed in the

Galveston shipyard, Shropshire’s testimony that he “believed” some work on the topside had to be

finished and that there were some generator issues might support an inference by a factfinder in a

trial that the 534 was physically incapable of sailing during that time. But that inference cannot be

drawn in support of a summary judgment.

       To reiterate, inferences that might be made in favor of the position of a movant for summary

judgment do not substitute for evidence, nor will they support a summary judgment. To the contrary,

all inferences must be drawn against the position argued for by a movant for summary judgment.

Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2015).

       All that having been said, I agree with Helix that the summary judgment evidence establishes

the 534 was not practically capable of engaging in transportation from the time Gold began working

on the ship in December 2012 until the time he last worked aboard it in April 2013. Gold’s

testimony was clear about that. However, determination of in navigation vessel status is not made

by considering only what a watercraft was doing or what was happening on it at a particular day or

time by means of a “snapshot” look at the circumstances. Stewart, 543 U.S. at 483, 495 (citing



                                                  8
Chandris, 515 U.S. at 373–74). The Court recognizes this and says that its view of the evidence

does not present a “snapshot” problem. Ante at ___. I disagree.

       Neither seaman status nor vessel in navigation status can be evaluated by “inspecting only

the situation as it exists at the instant of injury” because “a more enduring relationship is

contemplated in the jurisprudence.” Chandris, 515 U.S. at 363. And in explaining what the “in

navigation” requirement means in relation to the determination of whether a ship is a vessel, the

Supreme Court clarified that “structures may lose their character as vessels if they have been

withdrawn from the water for extended periods of time.” Stewart, 543 U.S. at 496 (emphasis added).

The Supreme Court has not articulated specific time standards for measuring whether a watercraft

is in or out of navigation; as noted previously, its guidance is that “in navigation” for Jones Act

purposes is normally a jury question. Chandris, 515 U.S. at 373.

       Given that guidance, the question in this case boils down to evidence about how long before

the date of Gold’s December injury the 534 was not practically capable of navigation, if it was not;

and how long after the date of his April injury the 534 was not practically capable of navigation, if

it was not. The evidence of neither is conclusive. To be more pointed, it is nonexistent, even

without inferences being drawn against Helix as required in summary judgment proceedings.

Shropshire’s testimony is closest to being some evidence, but the best he could testify to regarding

when the engines were removed from the 534 was “early on.” That could have meant in December,

just before Gold started work. Shropshire did not elaborate, either in his deposition or in his

affidavit in support of Helix’s motion for summary judgment. Neither did he testify about the

condition of the 534 during the time immediately after the date on which Gold claims to have been

                                                 9
injured in April 2013. So, if a reasonable period of time extends beyond more than a few days before

Gold’s first claimed injury in December or a few days after his second claimed injury in April, then

the evidence simply was not conclusive that the 534 was out of navigation within the meaning of the

Jones Act as to both the December injury and the April injury.

        So, what is a “relevant” time frame for purposes of the question before us? Even though the

Supreme Court has not articulated a specific time frame to be applied in determining if a ship is out

of navigation, it has noted that six months of repair work “seems to be a relatively short period of

time for important repairs on oceangoing vessels.” Chandris, 515 U.S. at 374. In Chandris, the

Court compared the entire length of time a ship underwent repairs in several different cases, citing

McKinley v. All Alaskan Seafoods, Inc., 980 F.2d 567, 571 (9th Cir. 1992)—where a repair period

of seventeen months and involving major structural changes took the vessel out of navigation—and

Wixom v. Boland Marine & Manufacturing Co., 614 F.2d 956 (5th Cir. 1980)—where the repair

project lasted three years. 515 U.S. at 374–75.

        In Chandris, as with the case before us, there was “relatively little evidence” bearing on the

ship’s status during the repairs. Id. at 374. The Court concluded “it is possible that Chandris could

be entitled to partial summary judgment or a directed verdict concerning whether the [ship] remained

in navigation while in drydock; the record, however, contain[ed] no stipulations or findings by the

District Court to justify its conclusion that the modifications to the [ship] were sufficiently extensive

to remove the vessel from navigation as a matter of law.” Id. at 375. The point in Chandris is not

that six months of repairs is always either a sufficient or an insufficient time period to prove that a

ship is not a vessel in navigation as a matter of law. Rather, Chandris advances the principle that

                                                   10
determination of a vessel’s status is not to be removed from the jury where there is “relatively little

evidence” on the vessel’s status during the repairs, despite there being evidence that the repairs are

“actually quite significant.” Id. at 374–75. The same can be said here: while Helix might have been

able to prove the status of the 534 before Gold’s claimed December injury date and after his claimed

April injury date, it did not do so. Which is not to say Helix could not do so if the case were to be

remanded to the trial court.

       The Court relies on West v. United States, which concerned a worker injured on the S.S. Mary

Austin, a ship that had been “in total deactivation for several years” and whose pipes, boilers, and

tanks had been completely drained. 361 U.S. 118, 119 (1959). The ship was ordered reactivated,

and a contractor was hired to prepare the ship for sea duty. Id. The contractor was charged with

“cleaning and repairing all water lines, replacement of all defective or missing plugs and other parts,

and the testing of all lines before closing and placing them in active operating condition.” Id. The

contractor had complete responsibility for and control over the repairs. Id. The United States placed

a crew of six men on board to serve solely as inspectors. Id. at 119–20. The Mary Austin was towed

to the contractor’s repair docks in Philadelphia and turned over for performance of the repair

contract. Id. at 120. One of the contractor’s shore-based employees was injured while working

aboard the ship and sued. Id.

       The Supreme Court affirmed the trial court’s denial of recovery, holding that the Mary Austin

was not in maritime service because it was undergoing major repairs and complete renovation. Id.

at 122. The Court relied on the following facts: (1) “for several years, the Mary Austin was

withdrawn from any operation whatever while in storage with the ‘moth-ball fleet’”; (2) the water

                                                  11
had been drained and an antirust preservative was injected into the ship’s water system; (3) the ship

was towed to Philadelphia for the specific purpose of delivery to the contractor to render her

seaworthy; (4) the representation of the repair contract specifications was that the ship was not

seaworthy for a voyage and “the major repairs called for therein would be necessary before one

would be undertaken”; (5) the sole purpose of the ship’s being at the contractor’s repair dock was

to make it seaworthy; (6) the totality of the repairs “included compliance with the hundreds of

specifications in the contract calling for the repairing, reconditioning, and replacement, where

necessary, of equipment so as to make fit all the machinery, equipment, gear, and every part of the

vessel.” Id. at 120–21. Additionally, the contractor was in control of the repairs rather than the

shipowner. Id. at 122. The repairs were not simply minor ones, nor even significant ones. They

were “a complete overhaul of such nature, magnitude, and importance as to require the vessel to be

turned over to a ship repair contractor and docked at its pier for the sole purpose of making her

seaworthy.” Id.

       Here, there is no evidence of how long the 534 had been “laid up”—whatever Shropshire

meant by that characterization—when Helix purchased it. There certainly was not evidence the 534

had been out of navigation for several years, or even months. Nor was there evidence, for example,

that its water system had been drained before Helix purchased it.

       The same is true for McKinley v. All Alaskan Seafoods, Inc., which the Court references. 980

F.2d at 567. In that case, the movant for summary judgment presented evidence detailing the work

done on the ship, which the court summarized, then noted that its summary did not “fairly reflect the

magnitude of the reconstruction.” Id. at 570–71. Additionally, McKinley was decided on “whether

                                                 12
the vessel has been placed in navigation for its intended purpose.” Id. at 571 (citing Garret v. Dean

Shank Drilling Co., 799 F.2d 1007, 1009 (5th Cir. 1986)). But the Supreme Court has since moved

away from the “intended purpose” test. See Lozman, 133 S. Ct. at 744–45 (holding that the

determination of vessel status should be based on the views of a reasonable observer and not the

subjective intent of the owner); see also Stewart, 543 U.S. at 496 (the proper test is simply whether

a watercraft’s capability to be used as a means of transportation is a practical possibility as opposed

to a theoretical one).

        In contrast to West and McKinley, the evidence Helix presented lacks details as to the status

of the 534, the pattern of the repairs, and the extensive nature of the work contracted to be done. See

West, 361 U.S. at 122; see also McKinley, 980 F.2d at 570–71.

        Finally, in Chandris, the Court favorably cited Butler v. Whiteman, in which the Court

reversed a judgment of the court of appeals affirming a directed verdict for the owner of a tugboat

in a case brought under the Jones Act by the widow and children of an employee that drowned.

Chandris, 515 U.S. at 373–74 (citing Butler v. Whiteman, 356 U.S. 271, 271 (1958)). In a per

curiam opinion without discussion of the facts of the case, the Court held, in part, that the trial

evidence presented a fact question regarding whether the tug was in navigation. Butler, 356 U.S. at

271. Justice Harlan, in dissent, addressed the condition of the tug in brief fashion. He concluded

that for some months before the decedent’s death the tug had been withdrawn from navigation

because it was inoperable. Id. at 272 (Harlan, J., dissenting). As to the underlying facts, he said only

that when the decedent died the boat was undergoing rehabilitation in preparation for a Coast Guard

inspection. Id. The court of appeals elaborated on facts concerning the boat’s condition little more

                                                  13
than did Justice Harlan. Harris v. Whiteman, 243 F.2d 563, 564 (5th Cir. 1957). Its opinion stated

only that the tug was “a ‘dead ship’ on which no steam had been raised during the year 1953 and

which had no Coast Guard certificate permitting it to operate” at the time the decedent drowned in

October 1953. Id.

       The evidence presented in this case is similar to that in Butler, meaning that the evidence

only establishes that the 534 was inoperable for some months. It fails to conclusively establish that

the 534 was practically incapable of transportation for the days and weeks before the December date

on which Gold claims to have been injured, or the days and weeks after the date on which he claims

to have been injured in April.

       The Court states that focusing on a time element elevates the duration of the repairs and

conversion to the “status of a precondition.” Ante at ___. I disagree. There certainly is not a rule

requiring a particular duration of repair or conversion work before a court may grant summary

judgment on the vessel in navigation issue. But the focus must be on whether a ship’s capability to

be used as a means of transportation “is a practical possibility or merely a theoretical one,” over an

“extended period[] of time.” Stewart, 543 U.S. at 496. The Court correctly points out that the

Supreme Court left open the possibility for summary judgment for the shipowner in Chandris when

a six-month renovation was involved. Ante at ___. But in Chandris the Court also explained that

repairs or work on a ship must be sufficiently significant in both magnitude and duration that a

reasonable person could only conclude that it was out of navigation at the time of injury. Chandris,

515 U.S. at 373–74. Here, the evidence regarding the ship’s status or practical capability to transport

persons or things before December and after early April simply is not such as to support summary

                                                  14
judgment when properly considered under summary judgment standards and relevant Supreme Court

authority. It may be that Helix could yet provide such evidence. But under the record before us, it

has not.

                                         III. Conclusion

       I agree with the court of appeals that the trial court erred in granting summary judgment for

Helix. I would affirm its judgment.



                                             ________________________________________
                                             Phil Johnson
                                             Justice


OPINION DELIVERED: June 16, 2017




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