Appeals court to consider worker's Jones Act status in case against Eldridge

Whether a maintenance worker on a boat is technically a seaman and able to sue under the Jones Act is an issue now being considered by the Texas Ninth District Court of Appeals.

In September 2006, Paul Bailey fell from the top deck of the Mr. Gabby, a push boat owned by marine contractor R.L. Eldridge Construction in Sabine Pass, after roughhousing co-workers tossed a string of firecrackers at him. Bailey, 22, sustained head injuries.

As the Southeast Texas Record reported, Bailey filed a lawsuit against Eldridge under the Jones Act in Jefferson County District Court on May 18, 2007.

In response, Eldridge Construction submitted a motion for summary judgment, arguing that out of the 62 days Bailey was employed only 13 of them were spent aboard a ship of any kind, which would exclude him from suing under the Jones Act.

The Jones Act is a federal statute that, among other things, allows injured sailors to obtain damages from their employers due to negligence caused by the ship owner, captain or fellow members of the crew.

In order for a worker to recover under the Jones Act, he must prove some negligence or fault on the part of the vessel's owners, operators, officers, or fellow employees or by reason of any defect in the vessel, its gear, tackle or equipment.

"Bailey did not contribute to the function of the vessel or to the accomplishment of its mission," Eldridge Construction argues in court papers, adding that on the day Bailey was injured he wasn't even supposed to be aboard the vessel in question.

On June 17, 2008, Judge Donald Floyd of the 172nd District Court granted Eldridge Construction's motion for summary judgment, ordering that the plaintiff take nothing from defendant.

Bailey appealed the trial court's ruling and now the case is set for submission on briefs before the Ninth District appeals court on June 18. The court denied Eldridge's request for oral arguments.

In his appellate brief, Bailey argues that he was sick the day he was injured and his supervisor had instructed him to go rest in the galley of the Mr. Gabby.

"Instead of going to the galley, Bailey walked unsupervised to the top deck of the vessel and plunged 15 feet to the bottom, landing on his head," the brief states.

The brief does not state why Bailey journeyed to the deck of the ship instead of the galley. Nor does the document mention the incident involving an exploding fire cracker near his face.

Bailey argues he spent more than half of his employment on the water as a deck hand, in contrast to the work records from Eldridge Construcction.

He is asking justices to reverse Judge Floyd's ruling and remand the case back to the court for further proceedings.

Bailey is represented in part by Stephen Foster, attorney for the Arnold & Itkin law firm.

Eldridge Construction is represented in part by attorneys John M. Ribarits and Hilary A. Frisbie.

R.L. 'Gabby' Eldridge founded Eldridge Construction in 1967 as a marine construction company to assist the need in repairing and new fabrication of private and oilfield construction, the company's Web site says.

Trial case No. E179-329
Appeals case No. 09-08-00309-CV