                      Revised July 30, 1999

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                           No. 98-30309



     HERMAN FIELDS,

                                          Plaintiff-Appellant,

          versus


     POOL OFFSHORE, INC.; ET AL.,

                                          Defendants,

     POOL COMPANY, incorrectly sued
     as Pool Offshore, Inc.,

                                          Defendant-Appellee.




      Appeal from the United States District Court for the
                  Eastern District of Louisiana

                          July 27, 1999

Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

     Plaintiff-appellant Herman Fields (Fields) brought a seaman’s

complaint for damages in state court, alleging negligence under the

Jones Act, 46 U.S.C. App. § 688, and the general maritime law.

Defendants-appellees Pool Company (Pool) and Oryx Energy Company

(Oryx) (collectively defendants) removed the case to federal court.
Fields’ motion to remand was denied, and the district court granted

summary judgment on behalf of Pool (but not Oryx).               This partial

summary judgment was then certified under Rule 54(b) and Fields

appealed.    We affirm.

                     Facts and Proceedings Below

     A spar is a nautical structure designed to float with the bulk

of the hull below the waves—something akin to a giant buoy.                   As

United   States   petroleum       resources    have    dwindled,   innovative

production    companies    have    attempted    to    exploit   oil   and    gas

resources in deeper ocean waters.           In an attempt to economically

extract petroleum from one of its deep water fields—located in the

Visosca Knoll area of the outer continental shelf about one hundred

miles off the Alabama coast—Oryx decided to design a production

platform based    around    a   spar.       Oryx’s    Neptune   Spar—which    is

apparently the first structure of its kind to be deployed off of

our coast—consists of a cylinder with a diameter of                seventy-two

feet, and a length of seven hundred five feet.              The section that

pokes above the surface has a production deck attached to it and

contains crew quarters, bilge pumps, life boats, and production

facilities.

     The Neptune Spar was installed at its current location in the

Visosca Knoll area in September 1996.          The Neptune Spar is anchored

above the field’s seven well heads by six chain wire lines which

connect to six pilings driven one hundred eighty feet into the



                                        2
seabed.     In addition, the structure is further fixed in place by

the network of pipes used to extract and transfer the petroleum.

A casing riser extends from each of the seven well-heads to the

spar, and two pipelines transport the spar’s product away from the

location.    The Neptune Spar has no organic means of propulsion.                   By

tightening    and     slackening   the       six   chains,   the    spar    can     be

maneuvered to position it closer to a particular well-head, but

such movement is only possible within a two hundred fifty foot

range.    According to affidavits in the record, this is the Neptune

Spar’s initial location and it will remain thus fixed in place

there until the petroleum resources beneath it are exhausted, an

event that is not predicted to occur for at least fifteen years.

     Fields     was     an    employee       of    Pool    who     worked      as    a

roughneck/derrickhand on Pool’s platform drilling “rigs.”                      These

rigs are     packages    of   drilling       equipment    that   are   moved    from

location to location as needed. Fields was permanently assigned to

rig no. 908, but when that rig was taken out of service he was

assigned to rig no. 10.        Oryx contracted for the services of rig

no. 10, and arranged for its transport to the Neptune Spar.                         On

February 20, 1997, while working on this rig aboard the Neptune

Spar, a section of the rig unexpectedly struck Fields in the head.

This accident allegedly caused “serious and permanent injuries to”

Fields’ “face, central nervous system and brain . . . resulting in

his permanent disability.”         Fields is a citizen of Mississippi;

Pool is a Texas corporation with its principal place of business in

                                         3
Texas; Oryx is a Delaware corporation with its principal place of

business in Texas.

     On    August   27,   1997,    Fields    filed   the   instant    seaman’s

complaint    in   Louisiana     state    court,   alleging    negligence     and

invoking the Jones Act and the general maritime law.            On October 8,

1997, the defendants filed a notice of removal on the basis of

diversity   of    citizenship     and,   alternatively,      under   the   Outer

Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq.               They

alleged that Fields’ Jones Act claim was fraudulently pled to

defeat removal jurisdiction in that Fields was not a Jones Act

seaman and had no substantial connection to any vessel and the

Neptune Spar was a fixed platform, not a vessel.               On November 8,

1997, Fields filed a motion to remand, arguing that removal was

precluded by the Jones Act, that Fields was a seaman and that the

Jones Act claim had not been fraudulently pled.               See 28 U.S.C. §

1445(a).    Defendants filed an opposition to the motion on November

25, 1997, and, in an order dated December 5, 1997, the district

court rejected Fields’ motion to remand, holding that as a matter

of law the Jones Act claim was baseless as Fields was not a seaman

and the Neptune Spar was a fixed platform, not a vessel.               On that

same day, Fields filed a motion requesting fifteen days’ leave to

respond to defendants’ response to Fields’ motion to remand.                This

motion was dismissed as moot.       On December 16, 1997, Pool moved for

summary judgment, arguing that, since Fields was Pool’s employee


                                         4
and was not a Jones Act seaman and the Neptune Spar was a fixed

platform on   the   outer   continental   shelf,   OCSLA,   43   U.S.C. §

1333(b), limited Fields’ remedies against Pool to compensation

under the Longshore and Harbor Workers’ Compensation Act ( LHWCA),

33 U.S.C. § 905.       Oryx did not join in the motion.            Fields

responded by claiming that material facts were in dispute regarding

the Neptune Spar’s potential vessel status and also moving for a

new trial and/or rehearing of the court’s prior determination that

the Neptune Spar was not a vessel as a matter of law.        On February

3, 1998, the district court granted summary judgment in favor of

Pool and denied Fields’ motion for new trial or rehearing.         Fields

moved for Rule 54(b) judgment on the grant of summary judgment.

The court granted the Rule 54(b) motion, and this appeal followed.

                              Discussion

     Neither below nor on appeal has Fields questioned the removal

on any basis other than that it is assertedly precluded by the

presence of his Jones Act claim.       It appears that the diversity of

citizenship and amount in controversy requirements of 28 U.S.C. §

1332(a) are met, and Fields has never contended otherwise.         Hence,

as no defendant is a citizen of the state in which the suit was

filed, removal on the basis of diversity was proper under 28 U.S.C.

§ 1441(a) & (b) if not barred by the Jones Act claim.       Moreover, if

the Jones Act did not preclude removal, it is also clear that it

would have been proper because of OCSLA, as the district court



                                   5
held. Tennessee Gas Pipeline v. Houston Casualty Insurance Co., 87

F.3d 150, 154-56 (5th Cir. 1996).1

      It is settled that as a general rule Jones Act cases are not

removable. Burchette v. Cargill, 48 F.3d 173, 175 (5th Cir. 1995).

The   Jones    Act,   46   U.S.C.   App.   §   688,   incorporates   general

provisions of the Federal Employers’ Liability Act, and the latter

expressly bars removal of suits thereunder.            28 U.S.C. § 1445(a).

However, a fraudulently pleaded Jones Act claim does not bar

removal.      Burchette, 48 F.3d at 175 (“‘defendants may pierce the

pleadings to show that the Jones Act claim has been fraudulently

pleaded to prevent removal’”, quoting Lackey v. Atlantic Richfield

Co., 990 F.2d 202, 207 (5th Cir. 1993)).          “While we have cautioned

against pretrying a case to determine removal jurisdiction,” the

district court is authorized “to use a summary judgment-like

procedure for disposing of fraudulent pleading claims.” Burchette,

48 F.3d at 176.       The court may deny remand where, but only where,

it determines, after resolving “all disputed questions of fact and

any ambiguities in the current controlling substantive law in


1
     While Fields’ general maritime law claim, brought in state
court under the savings to suitors clause, 28 U.S.C. § 1331(1), is
not one which “arise[s] under the Constitution, treaties, or laws
of the United States” for purposes of 28 U.S.C. § 1331 and does
not of itself furnish a basis for removal even though it could have
been filed originally in federal court, nevertheless this does not
preclude removal when there is some basis for original federal
jurisdiction other than admiralty, such as diversity of citizenship
or a statute. See Poirrier v. Nicklos Drilling Co., 648 F.2d 1063,
1066 (5th Cir. 1981); Tennessee Gas Pipeline, 87 F.3d at 153 & nn.
5 & 6.

                                      6
plaintiff’s   favor,”   that   there   is   “‘no   reasonable   basis   for

predicting that the plaintiff might establish liability’” under the

Jones Act.    Id.2

     In order to recover under the Jones Act, the plaintiff’s

complained-of injury must have been suffered while he was a seaman

and in the course of his employment.        Section 688(a) (authorizing

action by “[a]ny seaman who shall suffer personal injury in the

course of his employment”).    In order to be a seaman, an individual

(among other things) “must have a connection to a vessel in

navigation (or to an identifiable group of such vessels) that is

substantial in terms of both its duration and its nature.”         Harbor

Tug and Barge Co. v. Papai, 117 S.Ct. 1535, 1540 (1997) (quoting

Chandris, Inc. v. Latsis, 115 S.Ct. 2172, 2179 (1995) (citations

and internal quotation marks omitted)).

     Fields does not dispute that he has no possible Jones Act

claim if the Neptune Spar is not a vessel, and he claims no

substantial connection to anything else which he contends is a

vessel or fleet of vessels.3     And Fields has never contended that


2
     An additional basis on which to show fraudulent pleading—that
there has been an outright fraud in the pleading of jurisdictional
facts—is not involved or asserted in this case. See Burchette, 48
F.3d at 176 n.1.
3
     In his state court pleading, Fields alleged that at the time
of his injury he “was employed as a roughneck/derrickhand as a
member of the crew of Rig 10, in such a manner as to contribute to
the overall intended purpose of said vessel,” refers to “the
vessel, Rig 10,” and then alleges “the aforesaid vessel was in
navigation in the Gulf of Mexico”; the pleading does not allege

                                   7
if the district court correctly determined that the Neptune Spar is

not a vessel, it nevertheless erred in granting Pool’s motion for

summary judgment.

     A   vessel   is   “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.      In general, the

“greater the structure’s resemblance to conventional seafaring

craft, the greater the odds of securing vessel status”. Gremillion

v. Gulf Coast Catering Co., 904 F.2d 290, 293 (5th Cir. 1990).

Unusual appearance alone will not suffice to preclude vessel

status, however.    We have recognized “a variety of special purpose

structures, far removed from the conventional notions of ships and

seagoing barges, to be vessels.”        Manuel v. P.A.W. Drilling & Well

Service, Inc. 135 F.3d 344, 348 (5th Cir. 1998).          Fields argues

that the Neptune Spar is such a specialized structure, and thus,

interpreting all facts in his favor, must be viewed as a vessel.

Defendants argue, however, that the Neptune Spar can only be

characterized as a work platform under our precedent, and thus


that the Neptune Spar was a vessel or even mention it. However,
the undisputed evidence establishes that Rig 10 was nothing more
than a collection of several separate items of Pool’s drilling
equipment used by it to provide workover and drilling operations on
offshore platforms, and which had, prior to Fields’ injury, been
transported to and assembled on the Neptune Spar.       Fields was
injured while on the Neptune Spar utilizing this assembled
equipment. Rig 10 does not even float and cannot move on its own,
and it is obviously not a vessel. Fields’ only argument on appeal
is that the Neptune Spar is a vessel and furnishes the basis for
his claim of seaman status.

                                    8
escapes vessel classification.

     Courts    have    long    recognized    a   distinction    between   “work

platforms” that are designed for primarily stationary residence and

true vessels.        See Cope v. Vallette Dry-Dock Co., 7 S.Ct. 336

(1887) (floating dry dock is not a vessel).                    Looking to the

language of the statute, we have consistently defined vessel status

in reference to the importance of transportation as the craft’s

purpose. Manuel, 135 F.3d at 348.            In particular, we have focused

on three factors when trying to determine whether a structure is a

work platform beyond the realm of the Jones Act.                First, we ask

whether the structure was constructed to serve primarily as a work

platform.     Second, we look to whether or not the structure was

moored or otherwise secured at the time of the accident.                Lastly,

we attempt to ascertain whether the transportation function of the

structure     went    beyond    theoretical      mobility      and    occasional

incidental movement.        See Burchett, 48 F.3d at 176.

     In applying the three-factor test of work-platform status to

the Neptune Spar, it becomes apparent that it cannot be a vessel.

As the defendants’ affidavits indicated, there are no plans to even

consider moving       the   Neptune   Spar   until   the    current    field   is

exhausted. While nothing can ever be certain in the petroleum

industry, the unchallenged prediction of defendants is that the

field will remain productive for the next fifteen years.                   This

distinguishes the Neptune Spar from the types of specialized mobile


                                       9
drilling craft that we have previously classified as vessels.                 As

we have taken care to point out, while such drilling craft may stay

on a particular site, they always move on to the next location when

their work is done.       See Manuel, 135 F.3d at 346 (noting that

drilling vessel had been deployed at nineteen different sites over

the course of two years); Columb v. Texaco, Inc., 736 F.2d 218, 221

(5th Cir. 1984) (“highly mobile” submersible drilling barge was

“routinely” refloated and moved to the next location).                 See also

Blanchard v. Engine and Gas Compressor Services, Inc., 575 F.2d

1140, 1143 (5th Cir. 1978) (distinguishing work platform from

drilling   barge   rigs   because   there       was   no   intention   to   move

structures   “on   a   regular   basis,    as    is   done   with   submersible

drilling rigs”).        Unlike   these    vessels,     the   Neptune   Spar   is

designed not only to discover and open a field, but also to exploit

it—a goal that requires considerably greater commitment to a

particular location.      Given these undisputed facts, it would seem

readily apparent that the primary, indeed only, purpose of the

Neptune Spar is to serve as a work platform in a specific, fixed

location for the foreseeable future.

     The work platform status of the Neptune Spar is reinforced by

reference to the second factor. The Neptune Spar was not only

secured to the ocean floor at the time of the accident, it was

secured using an elaborate system that guarantees movement will be

a difficult and expensive undertaking.           We are not talking about a


                                    10
case in which a structure merely rests on the bottom or is secured

by   a   run-of-the-mill   anchor.         Here,   the    defendants      have   at

presumably considerable expense sunk massive (180 foot) pilings

into the ocean floor, and attached the spar to these pilings by

means of similarly impressive chain lines.               And like its sibling

conventional    fixed   production    platforms,         the    Neptune   Spar   is

further anchored in position by the underwater infrastructure of

extraction and exportation pipes that transport the petroleum from

wellhead to the platform and from the platform to the shore.                     In

this case, the infrastructure consists of two eight-inch pipelines

and seven nine-and-a-half-inch casing risers.                  This distinguishes

it from other structures whose commitment to a particular location

is   less   firmly   evidenced   by   the    strength      of     their   physical

attachment.    Cf. Hicks v. Ocean Drilling and Exploration Co., 512

F.2d 817, 823-24 (5th Cir. 1975) (evidence sufficient to sustain

jury finding that submersible petroleum storage barge sunk to the

bottom and then connected to nearby platform by pipe and catwalk,

but not in any way affixed into seabed, was a vessel)4 with


4
     In Hicks, the structure was sunk by the intake of easily-
dischargeable water ballast and lacked secure purchase on the sea
floor.   Its owners were also somewhat vague about their future
plans to possibly move the structure, admitting at one point that
such a move had been considered. Insofar as the first prong of the
work-platform test is concerned, the indeterminacy of the owners’
intentions in Hicks serves to distinguish it from the case before
us. We also note that two cases have explicitly recognized the
narrowing of Hicks. See Johnson v. Odeco Oil and Gas, 864 F.2d 40,
43 (5th Cir. 1989) (“Hicks is no longer the controlling standard”);
Gremillion, 904 F.2d at 294.

                                      11
Blanchard, 575 F.2d at 1143 (5th Cir. 1978) (compressor building

mounted on submersible barge was distinguishable from structure in

Hicks because barge was anchored with steel cables attached to

fixed pilings); Hemba v. Freeport McMoran Energy Partners, Ltd.,

811 F.2d 276, 278 (5th Cir. 1987) (rig attached by pilings driven

two hundred feet into the seabed was not a vessel).

     Any      lingering   doubt       would    seemingly      be    eradicated    by

examination of the third factor. While the Neptune Spar remains in

its current position, it will have extremely limited and purely

incidental mobility.          According to the defendants’ unchallenged

affidavits,     the    Neptune   Spar    can   be     moved   by   tightening     and

slackening     the    chain   lines     connected     to   the     pilings.      This

procedure is used to place the structure over one of the site’s

seven closely packed wellheads to perform needed work.                  Because of

the location of the pilings, however, this movement is limited to

250 feet in any direction.              This tightly-constrained range of

motion   is    not    inconsistent      with   work    platform     status.       See

Burchett, 48 F.3d at 177-78 (loading barge was a work platform

despite the fact it was regularly moved to align itself with boat

receiving goods); Cook v. Belden Concrete Products, Inc., 472 F.2d

999, 1002 (5th Cir. 1973) (construction barge that was regularly

towed into open water to launch completed craft was not a vessel).

While there remains some theoretical possibility of more lengthy

movement when the current field is exhausted, the mere possibility


                                         12
of movement so many years hence cannot render irrelevant the

structure’s current and long-term immobility.

     Under the three-prong test of work-platform status, then, the

Neptune    Spar   is   clearly    not   a    vessel.   While   we   have   also

referenced various other factors that might guide the inquiry into

vessel status,5 we have held that in work platform cases resort to

such an analysis is unnecessary if the three major factors indicate

that the structure is not a vessel.            See Burchett, 48 F.3d at 177

(additional factors are secondary and useful only in determining

close     cases).       As   we    have       noted,   fixed   offshore     oil

platforms—which obviously are not vessels, see Rodrigue v. Aetna

Casualty and Surety Co., 89 S.Ct. 1835, 1840-43 (1968) (“man-made

islands” not subject to admiralty law)—contain some of these

additional factors such as lifeboats and crew quarters.                    See

Johnson, 864 F.2d at 43 (noting factors could not be determinative

since “they routinely exist on structures, such as production

platforms, that are not vessels”). Application of these factors is

unnecessary in this case.

     Faced with the above analysis, Fields largely relies on two

points.    The first is the payment of maintenance to Fields by Pool


5
     The most comprehensive enunciation of these factors is 1)
intention to move on a regular basis; 2) ability of submerged
structure to be refloated; 3) the length of time the structure has
remained at its current location; 4) the presence of navigational
aids; 5) a raked bow; 6) life-boats and rescue equipment; 7) bilge-
pumps; 8) crew-quarters; 9) registration as a vessel with the Coast
Guard. See Johnson, 864 F.2d at 43.

                                        13
and statements by employees of Pool’s adjusters.                Maintenance is a

seaman’s remedy, and in special circumstances the payment of

maintenance may properly be admitted as evidence of seaman status.

See Savoie v. Otto Candies, Inc., 692 F.2d 363, 367-368 (5th Cir.

1982).6    No such circumstances are present here.                Moreover, the

payment of maintenance is at most only one factor out of many, see

id., and cannot by itself justify remand given the clarity of the

Neptune Spar’s work platform status.               This is especially so since

the decision to pay maintenance was made by Pool, not Oryx.                  Pool

does not own or run the Neptune Spar, and whatever inference might

theoretically have arisen had the owner Oryx—presumably intimately

familiar     with       the    nature        and     purpose     of    its   own

structure—designated maintenance as a remedy is greatly weakened

here.      The   fact   that   employees      of   Pool   may   have   implicitly

classified the Neptune Spar as a vessel is of marginal significance

at the very best.


6
     In Savoie, the plaintiff had worked as a deckhand on the
defendant employer’s vessel on October 21, 1979, and then worked on
his employer’s duck blinds on shore until some seven days later
when he was injured while so engaged. The issue was whether at the
time of the injury he was still a member of the vessel’s crew. The
defendant asserted he was not as it had “discharged” him from the
vessel. We held that the defendant’s payment of maintenance was
admissible to show that the “discharge” was not “intended to fully
terminate Savoie as a Candies seaman, as opposed to being merely a
routine formality when a seaman was temporarily rotated off the
ship and expected to soon return to his duties there in accordance
with normal practice” and that the maintenance “payments tended to
show that Candies regarded Savoie as being a seaman at the time of
the accident, notwithstanding his prior ‘discharge.’” Id. at 367.
No such special relevance is present here.

                                        14
      Fields also complains that the district court denied him an

adequate opportunity to respond to defendants’ arguments prior to

its determination that lack of vessel status precluded remand, and

compounded this error by refusing to reconsider that determination

in light of new evidence he presented in his opposition to summary

judgment.   In his initial motion for remand, Fields did not submit

any evidence indicating that the Neptune Spar might be a vessel

other than the payment of maintenance and statements by employees

of Pool’s adjusters.           In their response, defendants attached

affidavits from employees of Oryx which clearly establish that the

Neptune Spar is not a vessel.        Prior to the previously scheduled

hearing date on the motion to remand, Fields did not either submit

a response to defendants’ arguments or request more time to do so.

On the afternoon of the day the district court denied the motion to

remand, Fields requested an extension, which was denied as moot.

      Fields later filed a motion for reconsideration, and also

included as exhibits to his motion in opposition to Pool’s motion

for   summary   judgment   a    variety   of   print   outs—not   in   proper

affidavit form or appropriately authenticated—assertedly taken from

the Internet and from the petroleum industry press in order to

challenge the lower court’s denial of remand.          In granting summary

judgment for Pool, the district court refused to reconsider its

prior rejection of vessel status in light of this material. Fields

concedes that these determinations by the district court must be



                                     15
reviewed under an abuse of discretion standard.      Given the fact

that the only evidence Fields has been able to unearth up to this

point was publicly available and could have been attached to the

initial motion to remand or proffered in the wake of defendants’

response to that motion, we cannot say that the district court

abused its discretion in refusing to consider this tardily and

improperly presented material.7

     The district court thus properly determined that, as a matter

of law, the Neptune Spar is not a vessel.   The denial of the motion

to remand and the subsequent grant of summary judgment in favor of

Pool was thus proper.




                            Conclusion

     For the reasons stated, the judgment of the district court is



7
     In any case, the material hardly advances Fields’ cause. It
confirms that the Neptune Spar will remain at its present location
until the field is exhausted (some fifteen or more years)—the chief
factor precluding vessel status. It also indicates that the Neptune
Spar was transported to its current location in two pieces strapped
aboard a heavy lift ship and assembled on site, a strong indication
that long distance movement of the assembled spar is a difficult
undertaking.   Fields also makes a perfunctory challenge to the
district court’s denial of his motion (filed some three weeks after
his notice of appeal) to supplement the record with material not
theretofore filed with or otherwise before the district court.
Fields failed to enunciate a specific statement of the reasons that
required supplementation. As the district court noted, he thus
failed to comply with Local Rule 26.5.1(e) of the Eastern District
of Louisiana.    The denial of the motion was not an abuse of
discretion.

                                  16
     AFFIRMED.




17
