                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                                                             October 31, 2006
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk


                               05-41563



     DAVID DE LA ROSA,

                                          Plaintiff-Appellant,

                                  v.

     ST. CHARLES GAMING COMPANY, INC; GRAND PALAIS
     RIVERBOAT INC, doing business as Isle of Capri
     Casino; CROWN CASINO M/V,

                                          Defendants-Appellees.



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




Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.

BENAVIDES, Circuit Judge:


     The Isle of Capri Casino offers gaming and other entertainment

on board two boats that are afloat on Lake Charles, located in Lake

Charles, Louisiana.   The boats are indefinitely moored to a dock,

adjacent to a land-based hotel.        On August 21, 2003, Appellant

David De La Rosa was a customer on board one of these boats, the

M/V CROWN CASINO (“CROWN CASINO”), when he tripped and fell.

Believing that his fall was caused by improper installation or
maintenance of the carpeting outside the elevator, De La Rosa sued

St. Charles Gaming Co., Grand Palais Riverboat, Inc., and the M/V

CROWN    CASINO    (hereinafter       referred     to      collectively     as

“Defendants”), claiming unseaworthiness in admiralty and negligence

under Louisiana’s “slip and fall” statute.              The Defendants moved

for summary judgment on both counts, and the district court granted

that motion.      With regard to the admiralty claim, the court

reasoned that the CROWN CASINO was not a “vessel” for purposes of

general maritime law, and thus the court had no jurisdiction.               De

La Rosa now appeals that ruling.1         We agree with the district court

and AFFIRM.

     We review the district court’s grant of summary judgment de

novo, applying the same standards as the district court.               Degan v.

Ford Motor Co., 869 F.2d 889, 892 (5th Cir. 1989).

     “It   is   settled   that   a   party    seeking    to   invoke   federal

admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort

claim must satisfy conditions both of location and of connection

with maritime activity.”     Strong v. B.P. Exploration & Production,

Inc., 440 F.3d 665, 669 (5th Cir. 2006).          To satisfy the location

test, the plaintiff must show that the tort “occurred on navigable

water” or that an “injury suffered on land was caused by a vessel

on navigable water.”      Id. (emphasis added).         The sole question at



     1
      De La Rosa did not appeal the ruling on his negligence claim,
so it is not before this Court.

                                      2
issue here is whether or not the CROWN CASINO is a “vessel” for

purposes of admiralty jurisdiction.

       A vessel is a watercraft that is “used, or capable of being

used, as a means of transportation on water.”                1 U.S.C. § 3.     We

have    previously   held   that   “indefinitely         moored,    shore-side,

floating casinos,” such as the one here, are not vessels under

general maritime law.       Pavone v. Mississippi Riverboat Amusement

Corp., 52 F.3d 560, 570 (5th Cir. 1995).                    De La Rosa argues,

however, that the Supreme Court’s recent decision in Stewart v.

Dutra   Constr.   Co.,    543   U.S.   481     (2005),      has   broadened   the

definition to encompass structures like the CROWN CASINO.               We have

already recognized that Stewart expanded the definition of vessel

to include more unconventional watercrafts than we had previously

thought. Holmes v. Atl. Sounding Co., Inc., 437 F.3d 441, 448 (5th

Cir. 2006). However, we did not address whether Stewart overturned

Pavone by categorizing indefinitely moored gaming boats as vessels.

We consider that question now, and we find that it does not.

       Under Stewart, a watercraft is not “‘capable of being used’ .

. . in any meaningful sense if it has been permanently moored or

otherwise    rendered    practically       incapable   of    transportation    or

movement.”    543 U.S. at 494.     The crucial question is “whether the

watercraft’s use ‘as a means of transportation on water’ is a

practical possibility or merely a theoretical one.”                  Id. at 496

(citations omitted).

       In this case, we are satisfied that although the CROWN CASINO

                                       3
was still physically capable of sailing, such a use was merely

theoretical.   The evidence presented to the district court reveals

that the CROWN CASINO is indefinitely moored to the land by lines

tied to steel pilings.    It receives water, telephone lines, sewer

lines, cable television and data processing lines from land-based

sources. It has not been used as a seagoing vessel since March 28,

2001, when it was moored at its present location on Lake Charles,

and the Defendants do not intend to use it as such.   Rather, their

intent is to use it solely as an indefinitely moored floating

casino.   Its operations are entirely gaming-related, and not

maritime in nature.

     All of these facts were before the magistrate judge who

originally recommended that the court grant Defendants’ motion for

summary judgment.     They were also before the district judge, who

accepted and agreed with the magistrate’s recommendation. Now they

are before us, and we reach the same conclusion.        Even after

Stewart, an indefinitely moored floating casino like the CROWN

CASINO is not a “vessel” for purposes of admiralty jurisdiction.2

     The district court’s decision to grant Defendant’s motion for


     2
      With regard to the impact of Stewart, we also note that
Justice Thomas, the author of the Stewart opinion, cited our
decision in Pavone to support the view that “ships taken
permanently out of the water as a practical matter do not remain
vessels merely because of the remote possibility that they may one
day sail again.” 543 U.S. at 494. Although the CROWN CASINO was
not literally taken out of the water, neither was the floating
casino in Pavone, and we therefore consider the Supreme Court’s
reliance on Pavone to be instructive in this case.

                                  4
summary judgment is hereby AFFIRMED.




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