                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
           IN THE UNITED STATES COURT OF APPEALS 12, 2007
                                                July
                    FOR THE FIFTH CIRCUIT
                                                                              Charles R. Fulbruge III
                                                                                      Clerk


                                       No. 06-30941


ARTHUR J PRESTENBACH

                                                  Plaintiff-Appellant
v.

GLOBAL INTERNATIONAL MARINE INC

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:05-CV-5454


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Arthur Prestenbach brought suit under the Jones Act and the Longshore
and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (“LHWCA”),
seeking compensation for injuries he sustained while working on a barge-raising
project for Global International Marine, Inc. (“GIM”). The district court granted
summary judgment to GIM on all claims and we affirm for the reasons below.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                     No. 06-30941

                          FACTS AND PROCEEDINGS
      Prestenbach was injured in November 2004 when he lifted a heavy, water-
filled hose on a barge on Little Lake, Louisiana. At the time of the injury,
Prestenbach was accompanied by three crew members provided by GIM. Two of
the employees spoke only Spanish, and the third, Gil Hebert, spoke English and
a little Spanish. Prestenbach alleges that GIM’s failure to provide him with a
fully English-speaking crew was negligence and caused his injury.
      GIM is a marine transportation company. Prestenbach was hired as a
contractor to raise a sunken barge for GIM. As the district court noted,
Prestenbach is an “expert with 25 years experience in the field of plugging and
abandoning wellheads.” Prestenbach characterized the GIM project as a “one-
shot” job. He was paid fifteen dollars an hour for the project, which was expected
to take three days. Before starting the project, Prestenbach requested insurance
coverage and a W-4 form. He received neither. GIM states that “Prestenbach .
. . classified himself as a ‘consultant, crane operator, and welder,’ and sent [GIM]
an invoice for his labor . . . under his company name of Arthur Prestenbach.”
      Following the injury, Prestenbach brought suit in the Eastern District of
Louisiana alleging Jones Act negligence and vessel owner negligence under 33
U.S.C. § 905(b). He also sought LHWCA employee compensation benefits as an
injured employee of GIM. The district court granted summary judgment to GIM
on all counts, and Prestenbach filed a timely appeal to this court.1
                            STANDARD OF REVIEW
      This court reviews the district court’s grant of summary judgment de novo.



      1
         Prestenbach also filed a claim with the Department of Labor seeking LHWCA
employee compensation benefits. The Administrative Law Judge (“ALJ”) denied Prestenbach’s
claim and found that he was not an employee or borrowed employee of GIM at the time of his
injury. Prestenbach v. Global International Marine, Inc., B.R.B. Nos. 06-0729 and 06-0729A
at 2 (May 31, 2007) [hereinafter Prestenbach I]. The Department of Labor Benefits Review
Board affirmed the ALJ’s decision in an opinion dated May 31, 2007.

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                                  No. 06-30941

Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir. 1995) (en banc).
Summary judgment is appropriate when there is no genuine issue of material
fact to be determined at trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 585–86 (1986). “Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is
no genuine issue for trial.” Id. at 587 (internal quotation omitted). When
evaluating a motion for summary judgment, the court should read the facts in
the light most favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 244, 255 (1986).
                                   ANALYSIS
I.    Coverage under the Jones Act and the LHWCA
A.    Jones Act
      Prestenbach presents no genuine issue of material fact regarding his
status as a Jones Act seaman. Prestenbach admits that he is probably not a
Jones Act seaman “unless [the district court] were to conclude that the three or
so days spent at Little Lake on board the vessel during daylight hours is a
substantial connection to a vessel.” We affirm the district court’s conclusion that
Prestenbach was not a Jones Act seaman at the time of his injury.
B.    LHWCA
      Prestenbach also claims that he is entitled to employee compensation
benefits under the LHWCA. The LHWCA was enacted to protect maritime
workers not covered by the Jones Act. See Chandris, Inc. v. Latsis, 515 U.S. 347,
355–56 (1995). The Fifth Circuit looks to two aspects of the claimant’s
relationship with the alleged employer to determine whether he is an “employee”
under the LHWCA. Oilfield Safety and Mach. Specialties, Inc. v. Harman
Unlimited, Inc., 625 F.2d 1248, 1253 (5th Cir. 1980). First, the court asks what
the nature of the claimant’s work is. Id. The court considers factors such as the
“skill required to do the work, the degree to which the work constitutes a

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                                    No. 06-30941

separate calling or enterprise, and the extent to which that work might be
expected to carry its own accident burden.” Id. Second, the court inquires about
the “relation of that work to the alleged employer’s regular business.” Id. The
court considers factors such as
      whether the claimant’s work is a regular part of the employer’s
      regular work, whether the claimant’s work is continuous or
      intermittent, and whether the duration of claimant’s work is
      sufficient to amount to the hiring of continuing services as
      distinguished from the contracting for the completion of a particular
      job.
Id.
      Prestenbach admitted that raising the barge was a “one-shot” job, and that
he had the skill necessary to do it. As the district court noted, Prestenbach was
an “expert with 25 years of experience in the field of plugging and abandoning
wellheads.” Prestenbach billed GIM for his work using an invoice and classified
himself as a “consultant, crane operator, and welder.” These factors go to the
first prong of the Oilfield Safety analysis and show that the nature of
Prestenbach’s work in capping oil wells (which was related to this task of raising
a sunken barge) was a separate field which required special skill.
      The second prong of the Oilfield Safety test asks whether the job was a
regular part of the alleged employer’s work. The record reflects that that GIM
is in the business of marine transportation and the barge-raising project was not
part of its regular work.2 Prestenbach contracted only for the completion of one
job. While it is true that Prestenbach was paid fifteen dollars per hour for the
job, he billed GIM for his work via invoice instead of waiting for a paycheck as
a part-time employee would generally be expected to do.




      2
         GIM employees also testified before the ALJ that this was the only sunken barge
project they had ever undertaken. See Prestenbach I at 10 n.10.

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       There is no material issue of fact regarding the second prong of the Oilfield
Safety test. We therefore affirm the district court’s holding that Prestenbach was
an independent contractor and not an employee under the LHWCA.
II.    GIM’s duty of care
       Prestenbach alleges that GIM is liable for vessel negligence under 33
U.S.C. § 905(b) because it provided an inadequate crew. He claims that the crew
GIM provided was inadequate because two of the crew members spoke only
Spanish and the third, Gil Hebert, spoke English and only a little Spanish. The
district court found Prestenbach’s claim to be meritless, and we agree.
       The Fifth Circuit extends 33 U.S.C. § 905(b) protection to independent
contractors covered by the LHWCA. See, e.g., Manuel v. Cameron Offshore Boats,
Inc., 103 F.3d 31, 33 (5th Cir. 1997). The three duties owed by a ship owner to
an independent contractor working on his vessel are:
       (1) the turnover duty, (2) the duty to protect against hazards arising
       in areas or equipment under the vessel’s active control, and (3) the
       duty to intervene when the vessel owner knows of a serious hazard
       and the stevedore improvidently decides to ignore that risk.
Id. (citing Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156 (1981)).
       The district court concluded that GIM had not breached any of the duties
it owed to Prestenbach as an independent contractor covered by the LHWCA.
The court applied the three-part test in Scindia and said “[Prestenbach] has
acknowledged that there were no unseaworthy or negligent conditions on the
barge, the tug, the pump, or the sunken barge that contributed to or caused his
alleged injury.” The court characterized Prestenbach’s argument that his
injuries were caused by his inability to communicate with the Spanish-speaking
crew members as “a boot-strap hope to stay in [c]ourt.”3

       3
        Prestenbach argues that if he is not a LHWCA employee, his case is governed by Seas
Shipping Co. v. Sieracki, 328 U.S. 85, 95 (1946) or Kermarec v. Compagnie Générale
Transatlantique, 358 U.S. 625 (1959). This argument is without merit. Although Prestenbach
was not a GIM employee at the time of his injury, he was still a “person” within the meaning

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       Prestenbach admits that there were no hazardous conditions on the vessel
on which he was working. His only argument is that GIM did not provide an
adequate crew because two of the crew members spoke only Spanish and the
third crew member was an inadequate translator. Scindia negligence, however,
requires a finding that the vessel owner failed in its duty to turn over a ship in
good condition, to exercise reasonable care over any parts of the boat which
remained under his “active control,” and to intervene if the independent
contractor fails to protect other workers under his control from danger. See
Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98 (1994). These duties relate
primarily to the physical conditions of the ship. Prestenbach points to no cases
to support a finding of Scindia negligence because of an inadequate crew, let
alone one whose only alleged inadequacy was the presence of two members who
did not speak English. We hold that he cannot recover damages under 33 U.S.C.
§ 905(b).
                                      CONCLUSION
       We affirm the ruling of the district court granting summary judgment in
favor of GIM. We hold that Prestenbach was not a GIM employee at the time of
his injury and that GIM is not liable to Prestenbach for vessel negligence under
33 U.S.C. § 905(b).




of 33 U.S.C. § 905(b) (permitting “person[s] covered by this Act” to recover for injuries “caused
by the negligence of a vessel.”).
       Sieracki extended the traditional warranty of seaworthiness to those who, while not
technically seamen, were engaged in the same work. 328 U.S. 85, 95. The Sieracki line of cases
was superceded by the 1972 amendments to the LHWCA, which provided an exclusive
statutory remedy for non-seamen covered by the LHWCA. See Aparicio v. Swan Lake, 643 F.2d
1109 (5th Cir. 1981). Aparicio established that Sieracki remedies were still available to
longshoremen not covered by the LHWCA (because, for example, their injuries occurred in
foreign waters). Id. at 1116. Kermarec held that shipowners owed a duty of reasonable care
towards visitors and invitees aboard their vessels. 358 U.S. 625, 630. Neither case applies to
Prestenbach, who was an independent contractor covered by the LHWCA.

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