                      REVISED APRIL 30, 2002
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 00-30993




                         MILFRED J. NUNEZ

                            Plaintiff - Appellee - Cross-Appellant


                              VERSUS


                    B & B DREDGING, INC. ET AL

                           Defendants

                     CLARENDON AMERICA INSURANCE COMPANY

                           Defendant - Appellant - Cross-Appellee



          Appeals from the United States District Court
       For the Eastern District of Louisiana, New Orleans

                          April 23, 2002


Before GARWOOD, JOLLY and DAVIS, Circuit Judges

W. EUGENE DAVIS, Circuit Judge:

     The question in this case is whether a land-based employee who

is permanently assigned to work in the service of a vessel but who

spends only 10% of his time working aboard the vessel may enjoy

seaman status.   We hold that such an employee is not a seaman.
                                            I.

      Milfred J. Nunez was employed by B&B Dredging, Inc. (B&B) for

two years.     During the last 18 months of his employment, his work

was in relation to the M/V DREDGE BATON ROUGE.                    He first worked on

the construction of the M/V DREDGE BATON ROUGE in the shipyard.

After she was commissioned and began dredging work, he followed the

dredge as dredge dump foreman.                  In this role, Nunez oversaw the

discharge of dredge soil on or near the bank of the waterway in

which    the     dredge     was      operating.         This   included         building,

monitoring, and changing dredge spoil sites, where the dredge

empties silt into piles on the shore.                  Although he traveled across

water to the dredge twice a day to report to his supervisor and

occasionally ate meals onboard, it is uncontested that Nunez

performed 90% of his work on land.

      On September 4, 1997, the M/V BATON ROUGE had been engaged for

about    three     months       in   dredging      a    section    of     the     Florida

Intercoastal Waterway for the U.S. Army Corps of Engineers.                         While

performing his duties on that date as dump foreman, Nunez began to

sink into the silt.         In order to escape, he climbed onto the back

of a track hoe, but when he attempted to walk across the left

track, the housing of the track hoe rotated, causing the body of

the     machine    to     hit     Nunez’s       left   shoulder     and    throw     him

approximately twenty feet in the air.                     Nunez suffered serious

injuries as a result.

      Nunez sued B&B and its insurer, Clarendon America Insurance

                                            2
Company (Clarendon), asserting claims for negligence under the

Jones   Act,1   and   unseaworthiness,      maintenance,   and   cure    under

general   maritime    law.2    B&B   and    Clarendon   moved    for   summary

judgment, arguing that Nunez was not a seaman under the Jones Act,

which the court denied.       Then Nunez moved for summary judgment on

the same issue; the court granted the motion, holding that Nunez

was a seaman as a matter of law.          After a trial, the court awarded

Nunez damages and entered final judgment.          B&B and Clarendon then

lodged this appeal.

                                     II.

      B&B argues that the district court erred by finding that Nunez

was a seaman as a matter of law.              We agree with B&B for the

reasons that follow.

                                     A.

      Over 40 years ago this Circuit in Offshore Company v. Robison,

established a test for seaman status.3          We stated that:

      there is an evidentiary basis for a Jones Act case to go to

  1
      46 U.S.C. §§ 688 et seq.
  2
    Nunez also sued the owner, operator, and insurer of the track
hoe. The owner settled with Nunez before trial. After trial, the
district court held that the operator of the track hoe had not
abandoned his relationship with the hoe’s owner and had worked in
furtherance of the business of both the owner and B&B. Thus, the
court held both companies jointly liable for his negligence, and
since the owner had already settled for its half, it reduced
Nunez’s damage award by half. Nunez cross-appeals this reduction.
Our holding on the issue of seaman status renders this cross-appeal
irrelevant.
  3
      Robison, 266 F.2d 769, 779 (5th Cir. 1959).

                                      3
      the jury: (1) if there is evidence that the injured workman
      was assigned permanently to a vessel (including special
      purpose structures not usually employed as a means of
      transport by water but designed to float on water) or
      performed a substantial part of his work on the vessel; and
      (2) if the capacity in which he was employed or the duties
      which he performed contributed to the function of the vessel
      or to the accomplishment of its mission, or to the operation
      or welfare of the vessel in terms of its maintenance during
      its movement or during anchorage for its future trips.4


      The Supreme Court in a series of cases beginning in 1991

essentially   accepted   this   Circuit’s   seaman   status   test.5   In

Chandris v. Latsis,6 the Court established a two-part test to

determine seaman status that essentially tracked this Circuit’s

test in Robison and this Court’s 1986 en banc opinion in Barrett v.

Chevron.7

      The Supreme Court stated the test as follows:

      First ... an employee's duties must contribute to the
      function of the vessel or to the accomplishment of its
      mission ... Second, and most important for our purposes
      here, a seaman 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




  4
    Id. at 779. See also Palmer v. Fayard Moving and Transp. Corp.,
930 F.2d 437, 439 (5th Cir. 1991) (noting that the Supreme Court
endorsed the Robison test in McDermott Int'l., Inc. v. Wilander,
498 U.S. 337, 354-55, 111 S.Ct. 807, 817 (1991)).
  5
    See Wilander; Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115
S.Ct. 2172, 2190 (1995); and Harbor Tug and Barge Co. v. Papai, 520
U.S. 548, 554, 117 S.Ct. 1535, 1540 (1997).
  6
      Chandris, 515 U.S. 347, 115 S.Ct. 2172 (1995).
  7
      Barrett, 781 F.2d 1067 (5th Cir. 1986) (en banc).

                                   4
       nature.8

       It is uncontested that Nunez’s job as dump foreman contributed

to the function and mission of the vessel.         An essential function

of a dredge is to remove soil and silt from the seabed of the

waterway where the dredge is working.        That spoil must be disposed

of in an orderly fashion on the shore for the dredge to perform its

function.    Because Nunez was performing this essential job that

allowed the dredge to perform her work, the first prong of the

Supreme Court’s seaman status test is satisfied. We therefore turn

our attention to the second prong: whether Nunez’s connection to

the dredge BATON ROUGE was substantial in terms of both its

duration and its nature.

                                     B.

       We are satisfied that the Supreme Court’s analysis in Chandris

v. Latsis resolves this question.          In Chandris, plaintiff Latsis

sued his employer and sought recovery as a seaman under the Jones

Act.    Latsis was a salaried engineer responsible for maintaining

and    updating   the   electronic   and   communications   equipment   on

Chandris’s fleet of six passenger ships.         He planned and directed

ship maintenance from shore and was also required to take voyages

on the ships in the fleet to perform his job.         He also spent some

time supervising the vessels’ refurbishment in the shipyard.

  8
    Hufnagel v. Omega Service Industries, Inc.,        182 F.3d 340, 346
(5th Cir. 1999), quoting Harbor Tug, 520 U.S. at       554, 117 S.Ct. at
1540 (1997) (quoting Chandris, 515 U.S. at 368,        115 S.Ct. at 2190
(1995)) (citations and internal quotation marks        omitted).

                                     5
      The Court clarified what ”employment related connection to a

vessel in navigation” is necessary for a maritime worker to qualify

as a seaman under the Jones Act.

      The Court first discussed the fundamental purpose of the

requirement that a seaman have a substantial connection to his

vessel:

           ... [M]ost important for our purposes here, a
           seaman 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. The fundamental purpose
           of this substantial connection requirement is to
           give full effect to the remedial scheme created by
           Congress and to separate the sea-based maritime
           employees who are entitled to Jones Act protection
           from those land-based workers who have only a
           transitory or sporadic connection to a vessel in
           navigation, and therefore whose employment does not
           regularly expose them to the perils of the sea.
           This   requirement   therefore   determines   which
           maritime employees in Wilander’s broad category of
           persons eligible for seaman status because they are
           “doing the ship’s work,” are in fact entitled to
           the benefits conferred upon seamen by the Jones Act
           because they have the requisite employment-related
           connection to a vessel in navigation.9


      The Court emphasized that the worker’s connection to the

vessel must be substantial in both its duration and nature.       The

Court explained:

      The duration of a worker’s connection to a vessel and the
      nature of the worker’s activities, taken together,
      determine whether a maritime employee is a seaman because
      the ultimate inquiry is whether the worker in question is
      a member of the vessel’s crew or simply a land-based

  9
    Chandris, 515 U.S. at 368-69, 115 S.Ct. at 2190 (internal
citation omitted).

                                   6
       employee who happens to be working on the vessel at a
       given time.10

       The   Court    disagreed   with     the    Court     of    Appeals   that   the

seaman’s connection to a vessel had no temporal requirement. The

Court stated “a maritime worker who spends only a small fraction of

his working time onboard a vessel is fundamentally land based and

therefore not a member of the vessel’s crew, regardless of what his

duties are.”11       The Court stated further that “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% of his

time in the service of a vessel in navigation should not qualify as

a seaman under the Jones Act.”12

       Nunez points to the Robison test authorizing a finding that

the employee has the requisite connection to a vessel if he was:

...”assigned     permanently      to   a       vessel...”    or    ...”performed    a

substantial part of his work on the vessel.”                 He argues that this

test is disjunctive and because he was permanently assigned to the

dredge BATON ROUGE as the dump foreman the district court correctly

found that he had the requisite connection to a vessel.                            We

disagree. This interpretation ignores the Supreme Court’s teaching

in Chandris that a seaman’s connection with a vessel includes a

temporal requirement, i.e. that the worker spend a substantial part

  10
       Id. at 370, 115 S.Ct. at 2190-91.
  11
       Id. at 371, 115 S.Ct. at 2191.
  12
       Id.

                                           7
of his work time aboard the vessel.                   Were we to accept Nunez’s

argument, we would remove this requirement.                  In other words, Nunez

would have us adopt a rule -- contrary to Chandris’s directions --

that any worker whose duties contribute to the function or the

mission of the vessel is a seaman without regard to whether that

worker ever sets foot on the vessel.             Such an interpretation would

introduce a host of land-based employees as potential Jones Act

seamen simply because their work supports the vessel’s mission.

       In Palmer v. Fayard Moving and Transp. Corp., a land-based

employee such as Nunez sought recovery under the Jones Act.13                    Ms.

Palmer, the    plaintiff      in   that       case,    was   a   land-based   public

relations officer whose job was entirely devoted to promoting a

single vessel,    the   M/V    FRANCIS         FAYARD.       Ms.   Palmer’s   duties

included writing letters promoting the use of the vessel, acting as

liaison with clients, researching the history of the ship, and

setting up trips on the vessel.           She spent approximately 19% of her

working hours aboard the ship preparing the social areas of the

ship and cleaning it before and after social events.                   Despite the

fact that Palmer – like Nunez – spent 100% of her time furthering

the mission or function of the vessel, we concluded that she was

not eligible for seaman status because the time she spent aboard

the vessel was insubstantial.

       If we were to accept Nunez’s argument, we would expand the


  13
       Palmer, 930 F.2d 437 (5th Cir. 1991).

                                          8
ranks of potential Jones Act seamen to all land-based employees who

further the mission or function of the vessel, from salesmen to

payroll clerks to corporate executives.    Neither the law of the

Supreme Court or of this Circuit will permit such a bizarre result.

                               III.

     For a worker such as Nunez who divides his work time between

the shore and the vessel, he must demonstrate that he spends a

substantial part of his work time aboard the vessel in order to

demonstrate that he has the requisite connection to a vessel in

order to qualify for seaman status.   Nunez spent approximately 10%

of his work time aboard the dredge BATON ROUGE.   Because this is an

insubstantial part of his work time, he does not qualify for seaman

status.   Because Nunez is not a seaman as a matter of law, we

reverse the judgment of the district court and render judgment in

favor of B&B.

     REVERSED AND RENDERED.




                                9
