SOUTHEAST TEXAS RECORD

A maintenance laborer who occasionally works on a boat is technically not a seaman and unable to sue under the Jones Act, the Texas Ninth District Court of Appeals ruled on Monday, Aug. 31.

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 to the suit, 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.

"Bailey did not contribute to the function of the vessel or to the accomplishment of its mission," Eldridge argued 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, arguing 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 plaintiff's appeals brief states.

Justices sided with Eldridge, ruling that the Jones Act is for seamen, not "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," the appeals opinion, authored by Justice Charles Kreger, states.

"Even viewing the evidence in the light most favorable to Bailey, it is clear that Bailey was a land-based worker and any connection he had to a vessel in navigation was merely sporadic or transitory," the opinion states.

"Simply put, Bailey's employment did not regularly expose him to the perils of the sea. Eldridge submitted evidence establishing that Bailey was not a seaman as a matter of law. The evidence submitted by Bailey is insufficient to create a genuine issue of material fact with regard to the challenged element of his status as a 'seaman' under the provisions of the Jones Act. We affirm the judgment of the court below and overrule Bailey's sole issue on appeal."

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

Eldridge Construction was 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