808 F.2d 361

Melinda A. DAVIS, Plaintiff-Appellant, v. CARGILL, INC., Cargo Carriers, Inc., and Vessel “A” In Rem, Defendants-Appellees.

No. 86-3146

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 4, 1986.

Michael C. Palmintier, Baton Rouge, La., for plaintiff-appellant.

W. Arthur Abercrombie, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for defendants-appellees.

Before GEE, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Melinda Davis appeals the district court’s entry of summary judgment on her claim brought under 33 U.S.C. § 905(b).1 Davis was injured while working for Cargo Carriers, Inc., as a longshore worker.2 The ba*362sis for the district court’s grant of summary judgment was its conclusion that Davis was not injured while working on a “vessel” within the meaning of section 905(b). We affirm.

Davis’ work place was a surplus dry cargo barge that had been converted to a platform to which vessels were moored for painting and sandblasting. The platform floated on the water but was anchored to the riverbed and equipped with a permanently attached landing extension. Other modifications had also been made, including the cutting of a door into the hull and installation of sandtanks and air compressors in the hull. The platform is moved only to accommodate the changing tide of the river.

The plaintiff relies on Hall v. Hvide Hull No. 3, 746 F.2d 294 (5th Cir.1984), in which we held that an incomplete hull that had been launched and, although moored to the shore, was afloat in navigable water was a vessel within the meaning of section 905(b). Id. at 299. Hall, however, cannot be viewed as overruling previous case law from this circuit wherein we have “clearly embraced the proposition that, as a matter of law, a floating dry dock is not a vessel when it is moored and in use as a dry dock.” Keller v. Dravo Corp., 441 F.2d 1239, 1244 (5th Cir.1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972). See also Chahoc v. Hunt Shipyard, 431 F.2d 576, 577 (5th Cir.1970), cert. denied, 401 U.S. 982, 91 S.Ct. 1198, 28 L.Ed.2d 333 (1971); Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279, 282-83 (5th Cir.), cert. denied, 396 U.S. 846, 90 S.Ct. 105, 24 L.Ed.2d 96 (1969). In Atkins, we noted that in Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501 (1887), the Supreme Court in determining whether a dry dock was a vessel for purposes of salvage stated: “A fixed structure, such as this drydock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a wharf or a warehouse when projecting into or upon the water.” Atkins, 411 F.2d at 283 (quoting Cope, 119 U.S. at 627, 7 S.Ct. at 337).

Although the plaintiff was injured while on a work platform and not a dry dock, the similarities between the two compel our holding that this platform, like a moored dry dock used for that purpose, is not a vessel within the meaning of section 905(b). According to affidavits submitted to the district court by the defendants, the platform was originally a navigable surplus dry cargo barge. It has since been converted for use as a permanently moored platform from which painting and sandblasting services are provided to barges and is no longer designed or used for navigation. The platform is anchored to the riverbed, and is moved only once or twice a year to compensate for tide changes, and even then, according to Davis’ brief, cannot be moved without the assistance of motorized vessels. The district court therefore properly granted summary judgment in favor of the defendants on the ground that the work platform on which the plaintiff was injured was not a “vessel” within the meaning of section 905(b).

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

AFFIRMED.

Davis v. Cargill, Inc.
808 F.2d 361

Case Details

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Davis v. Cargill, Inc.
Decision Date
Dec 4, 1986
Citations

808 F.2d 361

Jurisdiction
United States

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