                      United States Court of Appeals,

                              Fifth Circuit.

                               No. 91–3110.

    Leroy MICHEL, Jr. and Cindy Michel, Plaintiffs–Appellees,
Cross–Appellants,

                                      v.

     TOTAL TRANSPORTATION, INC. and Assuranceforeningen Gard,
Defendants–Appellants, Cross–Appellees.

                              April 2, 1992.

Appeals from the United States District Court for the Eastern
District of Louisiana.

Before THORNBERRY, KING and DeMOSS, Circuit Judges.

     DeMOSS, Circuit Judge:

     Leroy    Michel     ("Michel")   filed    this      action     against     his

employer,     Total      Transportation,      Inc.       and      its    insurer,

Assuranceforeningen Gard (collectively, "TTI"), to recover damages

under the Jones Act (46 U.S.C.App. § 688) and general maritime law

for unseaworthiness and in the alternative, under 33 U.S.C. §

905(b), the Longshore and Harbor Workers' Compensation Act (LHWCA)

for personal injuries he suffered in the course of his employment.

Michel's    wife,   Cindy   Michel,   asserted       a   claim     for   loss   of

consortium under general maritime law.           After a bench trial, the

district court found that the GEMINI was a special purpose vessel,

Michel was a "seaman" entitled to the remedies of the Jones Act,

TTI was negligent under the Jones Act and the LHWCA, and the GEMINI

was unseaworthy.       The district court awarded Michel $534,000 in

damages,1 and $35,000 to Cindy Michel for loss of consortium.                   TTI

     1
      These damages consist of the following components:
          1. $100,000 for pain, suffering and disability from
appeals asserting that the Jones Act does not apply.                  Michel

cross-appeals the $250,000 award for loss of future earnings and

earning capacity.       We reverse the award of damages for loss of

consortium and otherwise affirm the judgment.



       Michel was permanently assigned to the GEMINI, a special

purpose barge, owned by TTI.         The GEMINI was designed to transfer

bulk    cargo,    usually   grain,    midstream   from   river   barges    to

ocean-going vessels.        The GEMINI performs this unique transfer

function on a six mile stretch of the Mississippi River.                  The

GEMINI is moved into position midstream by a tug or push-boat.

When working, the GEMINI is held in position by side deck winches,

whose    cables   are   lashed   onto   the   ocean-going   vessel.       The

ocean-going vessel is moored to a mooring buoy and anchored in the

river.    The cargo barges are secured alongside the GEMINI.              The

GEMINI's two large cranes scoop the grain out of the barge holds

and place it in the hopper on the GEMINI where the grain is

weighed, tested, then deposited into the hold of the ocean-going

vessel.    The GEMINI can be equipped with navigation aids when

necessary.   Michel's regular duties on the GEMINI involved driving

a tractor inside the cargo holds of river barges to sweep them

clean of all the grain.      His duties also included handling cables


            date of accident;

            2. $150,000 for future pain, suffering and disability;

            3. $34,000 for past wage loss, including fringe
            benefits; and

            4. $250,000 for loss of future earnings and earning
            capacity.
and lines, operating deck machinery, as well as cleaning and

painting the GEMINI.



     On October 7, 1989, Michel was pressure-washing the grain dust

off of the hopper on the GEMINI.   He was suspended in a basket from

one of the large cranes normally used to transfer cargo from the

barges.   The basket was attached to the crane by a holding line.

Because the crane was not designed for carrying personnel, a

"headache ball" was attached to the holding line approximately

three feet above Michel's head in order to provide additional

weight so that the crane would operate more easily.    The combined

weight of the basket, Michel, and the headache ball totalled less

than 1,000 pounds.     As the crane's load descended, the basket

settled upon a suspended dust pipe, but the headache ball continued

to lower, striking Michel's hand and pinning it to the side of the

basket.   The basket then tipped, and Michel was thrown clear

landing on the roof of a small work shed.      As a result, Michel

suffered multiple fractures to his right hand, and left elbow.



                I. WAS MICHEL A JONES ACT SEAMAN?



     In relevant part, the Jones Act provides that "[a]ny seaman

who shall suffer personal injury in the course of his employment

may, at his election, maintain an action for damages at law, with

the right of trial by jury, and in such action all statutes of the

United States modifying or extending the common-law right or remedy

in cases of personal injury to railway employees shall apply...."
46 U.S.C.App. § 688(a).2       To qualify as a seaman under the Jones

Act, the plaintiff must show that he was permanently assigned to or

performed    a   substantial   part    of   his   work   aboard   a   "vessel".

Gremillion v. Gulf Coast Catering Company, 904 F.2d 290 (5th

Cir.1990).       "The   existence     of    a   vessel   is   a   "fundamental

prerequisite to Jones Act jurisdiction' and is at the core of the

test for seaman status.         Unfortunately, the term "vessel' has

escaped precise definition, which helps to explain why special-use

structures ... may qualify at times as Jones Act vessels, despite

traditional notions in maritime jurisprudence to the contrary."

Id. at 292 (citations omitted).



     The Supreme Court has recently stated that the determination

of who is a seaman is "better characterized as a mixed question of

law and fact, rather than a pure question of fact."                   McDermott

Int'l, Inc. v. Wilander, ––– U.S. ––––, 111 S.Ct. 807, 818, 112

L.Ed.2d 866 (1991), quoted in Southwest Marine Inc. v. Gizoni, –––

U.S. ––––, ––––, 112 S.Ct. 486, 492, 116 L.Ed.2d 405.             Nonetheless,

"[t]he inquiry into seaman status is of necessity fact-specific;

it will depend on the nature of the vessel, and the employee's

precise relation to it."       Id.    We review findings of mixed law and


     2
      The "statute ... modifying ... the common law right ... in
cases of personal injury to railway employees" was the Federal
Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., which
provides that:

            "Every common carrier ..., shall be liable in damages
            to any person suffering injury while he is employed by
            such carrier ... resulting in whole or in part from the
            negligence of any of the officers, agents, or employees
            of such carrier,...." 45 U.S.C. § 51.
fact in the following manner:


     As to the trial court's underlying factual findings and
     factual inferences deduced there from, we are bound by the
     clearly erroneous standard of Rule 52(a) of the Federal Rules
     of Civil Procedure.    However, as to the legal conclusion
     reached by the district court based upon this factual data,
     ... we may review this as an issue of law.

Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 666 (5th
Cir.1983).

                              A. THE GEMINI


     The GEMINI is a "special purpose structure" not readily

identifiable as a ship.       The seminal Fifth Circuit case on this

subject, Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959),

involved a floating drilling platform.        The court referred to this

structure as a "special purpose structure," since it was not

usually   employed   as   a   means   of   transport   by   water   but   was

nonetheless designed to float on water.         Id. at 779.    Later cases

narrowed this definition so that it is no longer enough just to

show that the structure is designed to float on water:


     In order to qualify as a Jones Act seaman [the plaintiff] must
     have worked on a "vessel." The Jones Act does not define the
     term "vessel," and we have repeatedly held that the term is
     incapable of precise definition. However, we may rely on the
     purpose for which the craft was built and the business in
     which it was engaged to guide our inquiry. Other factors,
     like the structure's size, its ability to float, its permanent
     fixation to the shore or the bottom, and its movement or its
     ability to move across navigable waters are inconclusive.
     Further, structures whose primary function is non-navigational
     or non-transportational may still qualify as vessels if the
     structure was involved in navigation at the time of the
     injury.


Ellender v. Kiva Construction & Engineering, Inc., 909 F.2d 803,

806 (5th Cir.1990) (citations omitted and emphasis added).
     In Bernard v. Binnings Const. Co. Inc., 741 F.2d 824 (5th

Cir.1984), we noted that we are seldom presented with direct

evidence of the purpose which a vessel's designer may have had in

mind.   Therefore, we developed a list of objective features, which

suggest that a structure's intended purpose is transportation

across navigable waters.               "These features are:               (1) navigational

aids;      (2)     raked    bow;        (3)       lifeboats         and   other    lifesaving

equipment;         (4)    bilge    pumps;          (5)       crew    quarters;          and   (6)

registration as a vessel with the Coast Guard."                           Id. at 832 n. 25.

The district court found that the GEMINI had all of these features

describing       the    GEMINI    as    having          a   raked    bow,    a    Coast    Guard

registry, a first-preferred ship mortgage, crew feeding quarters,

a locker room with showering and toilet facilities, an elaborate

ballast system, bilge pumps, and other complex machinery and

equipment built into her hull.                     Michel v. Total Transportation,

Inc.,   No.    91–3110      (E.D.La.      January            4,   1991)     at   232,     239–41

(hereinafter, Michel ).



     TTI argues that since the purpose of the GEMINI is the

transfer of cargo (primarily grain) from river barges to oceangoing

vessels,      it   is     essentially         a    floating         grain    elevator         and,

therefore, performs stevedoring services, i.e. the transfer and

stowage of cargo.          According to TTI, the GEMINI's transportation

function      is   incidental       to    its       primary         stevedoring      purpose,

therefore,       its     capability      of       and       occasional      movement      across

navigable waters is not determinative of vessel status.                                       TTI

compares the GEMINI to the numerous special purpose structures for
which the Fifth Circuit has denied vessel status:


     (1)   The structures involved were          constructed     and   used
           primarily as work platforms;

     (2) They were moored or otherwise secured at the time of the
          accident; and

     (3) Although they were capable of movement and were sometimes
          moved across navigable waters in the course of normal
          operations, any transportation function they performed
          was merely incidental to their primary purpose of serving
          as work platforms.

Id. at 806.

     We    agree   with   the   district    court   that   the   GEMINI's

transportational function is not "merely incidental":              to its

primary purpose as a work platform.        The district court correctly

concluded that the GEMINI is


     designed to move cargo from vessel to another ... she does
     move cargo, albeit not for great distances. If one wants to
     look at it as a continuous transportation by water of grain
     ... from some inland port upriver to some foreign port, she's
     an integral part of that journey,.... If one views this as a
     continuous voyage, she's a necessary link in a continuous
     voyage, the cargo of which never hits shore. In that sense,
     one could certainly call her a vessel, ... Michel at 241–242.


The district court concluded that aboard the GEMINI, Michel was

"exposed to the typical perils of the sea as any other river

seaman."   Michel at 239.   We agree with these conclusions and hold

that the GEMINI is a "vessel" under the Jones Act.



                                B. MICHEL



     To determine whether Michel is a "seaman" under the Jones Act,

we specifically look at his connection to the vessel, GEMINI.
     "[McDermott Int'l, Inc. v.] Wilander jettisoned any lingering
     notion that a maritime worker need aid in the navigation of a
     vessel in order to qualify as a "seaman" under the Jones Act.
     "The key to seaman status is employment-related connection to
     a vessel in navigation.... It is not necessary that a seaman
     aid in navigation or contribute to the transportation of the
     vessel, but a seaman must be doing the ship's work.' "
     Southwest Marine, 112 S.Ct. at 492 (quoting McDermott, 111
     S.Ct. at 817).


In addition, Michel must show that he "was assigned permanently to

a vessel ... or performed a substantial part of his work on the

vessel;    ..."   Robison, 266 F.2d at 779.



     We hold that Michel was permanently assigned to the GEMINI and

was doing the vessel's work.           His job related to the basic

functions of the GEMINI and encompassed the range of incidental

duties typical of a seaman, handling cable lines and assisting in

the general cleaning and maintenance of the GEMINI.          The district

court found that on the day of the accident, "the work that [Michel

was] doing is exactly what seaman do.         They chip paint, they clean

the vessel,....       [t]hey   do   general   maintenance   work   on   that

vessel."    Michel at 243.      In light of McDermott and Southwest

Marine, the district court's conclusion that Michel is a seaman is

correct.



                        II. LOSS OF CONSORTIUM



     Whether or not damages are available for loss of consortium is

a legal question, reviewable de novo.         Pullman–Standard v. Swint,

456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982).
     TTI argues that the district court's award of damages to

Michel's wife for loss of consortium was invalid under the Supreme

Court's decision in Miles v. Apex Marine Corp., ––– U.S. ––––, 111

S.Ct. 317, 112 L.Ed.2d 275 (1990).   In Miles, the Court held that

"there is not recovery for loss of society in a general maritime

action for the wrongful death of a Jones Act seaman."       Id. 111

S.Ct. at 326.   TTI contends that the difference between a wrongful

death action and a personal injury claim is insignificant, and that

the rationale of Miles applies equally to this case.       TTI also

argues that the Miles court limited the kinds of damages available

in general maritime law death actions to those damages Congress

deemed appropriate under the Jones Act, therefore, the same limits

should apply to general maritime law personal injury actions.



     Michel argues that we are still bound by the holding in Cruz

v. Hendy Int'l Co., 638 F.2d 719 (5th Cir.1981) that the spouse of

a seaman whose injuries are attributable to the unseaworthiness of

a vessel has a general maritime cause of action for loss of his

society.   Id. at 721.   Michel asserts that the Miles holding did

not affect the validity of Cruz because Miles involved a wrongful

death claim and Cruz involved a personal injury claim.   Michel also

argues that a claim for loss of consortium in a personal injury

action was allowed at common law when the Jones Act became law;

and therefore, Congress intended to incorporate this type of

recovery into the Jones Act.   "We assume that Congress is aware of

existing law when it passes legislation."   Miles, 111 S.Ct. at 325

(citing Cannon v. University of Chicago, 441 U.S. 677, 696–97, 99
S.Ct. 1946, 1957–58, 60 L.Ed.2d 560 (1979)).



       In     Miles,   the   Supreme     Court   stressed    the   importance     of

uniformity concerning the claims available under the Jones Act and

general maritime law.         "It would be inconsistent with our place in

the constitutional scheme were we to sanction more expansive

remedies in a judicially-created cause of action in which liability

is without fault than Congress has allowed in cases of death

resulting from negligence."            Id., 111 S.Ct. at 326.        We choose to

follow the lead of Miles and hold that damages recoverable in

general maritime causes of action for personal injury of a Jones

Act seaman do not include loss of consortium.                To the extent that

Cruz differs with this holding, we think that it does not survive

Miles.        We   join   several   Louisiana     district     courts     who    have

considered the issue and have held that Miles applies to claims for

loss of society or consortium in personal injury cases brought

under    general       maritime   law.     See,   e.g.,     Dunbar   v.    American

Commercial Barge Lines Co., 771 F.Supp. 151, 152 (M.D.La.1991);

West     v.    Zapata     Gulf    Marine    Corp.,   766     F.Supp.      502,    503

(E.D.La.1991);          Cater v. Placid Oil Co., 760 F.Supp. 568, 570

(E.D.La.1991);         Breland v. Western Oceanic, Inc., 755 F.Supp. 718,

719 (W.D.La.1991);           and Anglada v. Tidewater, Inc., 752 F.Supp.

722, 725 (E.D.La.1990).



            III. LOSS OF FUTURE EARNINGS AND EARNING CAPACITY



       We review the district court's finding of damages under the
clearly erroneous standard.   Wakefield v. United States, 765 F.2d

55, 57 (5th Cir.1985).   We will judge a district court's finding to

be clearly erroneous when, after reviewing the entire evidence, we

are "left with the definite and firm conviction that a mistake has

been committed."   United States v. United States Gypsum Co., 333

U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).



     In his cross-appeal, Michel argues that the district court's

award of $250,000 for loss of future earnings and earning capacity

was clearly erroneous because the award was based on an overly

optimistic view of Michel's ability to overcome his physical

restrictions and earn income comparable to the wages he received

from TTI, $11.50 an hour and $17.25 an hour for overtime.   Michel's

vocational expert claims that Michel will be able to return to

employment paying slightly above minimum wage.     TTI's vocational

expert claimed that Michel will be able to return to work earning

substantially above the minimum wage.    Economic reports presented

by both sides calculated a wide range of damage figures for lost

future income, from $823,133 down to $150,395.



     The district judge correctly concluded that as fact finder, he

was free to accept or reject the experts' reports and could reach

his own conclusion regarding lost earning capacity.   See, Leefe v.

Air Logistics, Inc., 876 F.2d 409, 411 (5th Cir.1989) (jury's

damage award for future lost wages need not fall within estimates

given by expert testimony);   Haas v. Atlantic Richfield, 799 F.2d

1011, 1017 (5th Cir.1986) (economic experts' calculations of future
lost earnings is only a suggested guideline for the trier of fact).



     After our review of the record in this case, we conclude that

the district judge's award for lost future earnings and earning

capacity was not so overly optimistic concerning Michel's ability

to return to gainful employment as to be clearly erroneous.



                          IV. CONCLUSION



     The award of damages for loss of consortium is REVERSED,

otherwise the judgment of the district court is AFFIRMED.
