Thomas Lemelle v. St. Charles Gaming Company, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-255

THOMAS LEMELLE

VERSUS

ST. CHARLES GAMING COMPANY, INC.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-1884
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Marc
T. Amy, Shannon J. Gremillion and Phyllis M. Keaty, Judges.

REVERSED AND RENDERED. REMANDED.

Thibodeaux, Chief Judge, dissents and assigns written reasons.
Cooks, J., dissents for the reasons assigned by Judge Thibodeaux.

Robert E. Morgan
125 W. School Street
Lake Charles, LA 70605-1611
(337) 474-9625
COUNSEL FOR PLAINTIFF/APPELLEE:
Thomas Lemelle

Brian D. Wallace
Evans Martin McLeod
Clay Bland, Jr.
Phelps Dunbar, L.L.P.
365 Canal Street - Suite 2000
New Orleans, LA 70130-6534
(504) 566-1311
COUNSEL FOR DEFENDANT/APPELLANT:
St. Charles Gaming Company, Inc. d/b/a Isle of Capri Casino –
Lake Charles

James A. Blanco
Allen J. Mitchell, II
Mitchell & Blanco, LLC
Capital One Tower – Suite 1459
One Lakeshore Drive
Lake Charles, LA 70629
(337) 436-8686
COUNSEL FOR PLAINTIFF/APPELLEE:
Thomas Lemelle

James F. DeRosier
DeRosier Law Firm, L.L.C.
125 West School Street
Lake Charles, LA 70605
(337) 474-0820
COUNSEL FOR PLAINTIFF/APPELLEE:
Thomas Lemelle

AMY, Judge.

The defendant gaming company claims that the trial court erred in granting a

summary judgment in favor of the plaintiff, who was injured while intoxicated aboard

a riverboat casino owned by the defendant. Although the trial court determined that

the riverboat casino was a vessel for purposes of general maritime law in its ruling,

the defendant again urges its own motion for summary judgment on the issue of vessel

status. For the following reasons, we reverse the summary judgment entered by the

trial court and render summary judgment in favor of the defendant. We remand for

further proceedings.

Factual and Procedural Background

The plaintiff, Thomas Lemelle, alleges that he sustained injury when he fell on

a flight of stairs of the M/V Crown Casino, a riverboat casino owned by the defendant,

St. Charles Gaming Company, Inc. It is undisputed that Mr. Lemelle was a patron of

the Crown at the time of the April 22, 2008 accident and that subsequent testing

revealed that he was intoxicated when he fell. It is also undisputed that the Crown has

been moored dockside in Westlake, Louisiana since 2001.

Mr. Lemelle filed this suit, alleging negligence on the part of St. Charles in its

service of alcohol to patrons.1 He sought damages under the general maritime laws of

the United States, asserting that the application of maritime law pre-empts the

application of La.R.S. 9:2800.1, which limits liability for loss connected with the

service of alcoholic beverages.

Thereafter, St. Charles filed an exception of no cause of action and/or motion

for summary judgment asserting, among other things, that the Crown was not a vessel

for maritime purposes and, therefore, Mr. Lemelle‟s claim must be dismissed. Mr.

1
Mr. Lemelle also named St. Charles‟ insurer, American Guarantee and Liability Insurance
Company, as a defendant.

Lemelle responded with a motion for summary judgment seeking a declaration that

the Crown was a vessel for his maritime claim.

The parties‟ cross motions on the issue of vessel status focused on the fact that

the Crown entered into its service as a riverboat casino carrying passengers on gaming

cruises. However, in 2001, well before the 2008 accident at issue, the Louisiana

legislature amended La.R.S. 27:65 to prohibit a licensee of a gaming boat in the locale

at issue from conducting excursions. The parties‟ evidence indicates that the Crown

has been docked since that time, with no further cruises conducted. Instead, the

Crown has been moored in Westlake, secured to a concrete wharf by a system of lines

and cables. It is serviced by landside connections for cable, electricity, surveillance,

water, and sewage. The Crown is also connected to a shoreside pavilion by way of a

guest entrance consisting of a large steel structure controlled by hydraulic ramps,

which are attached to the pavilion.

Ultimately, the trial court heard arguments on the issue of whether the Crown

continued to be a vessel after it ceased excursion operations in 2001.2 The trial court

granted the motion filed by Mr. Lemelle, finding the Crown to be a vessel and general

maritime law applicable. It denied the motion for summary judgment filed by St.

Charles. Recognizing the partial nature of the summary judgment entered, the trial

court designated the partial final judgment as immediately appealable pursuant to

La.Code Civ.P. art. 1915(B)(1).

St. Charles appeals.

Discussion

In support of its contention that the Crown is not a vessel for maritime

purposes, St. Charles points out that the Crown has been indefinitely docked at its

2
Although St. Charles‟ pleading extended beyond the issue of vessel status, it appears that the
hearing conducted and the ruling rendered were focused solely on the issue of vessel status. We
consider that to be the sole issue before the court at this time.
2

Westlake location since the 2001 legislative amendment. It further points to

jurisprudence indicating that this same riverboat casino has been found not to be a

vessel. See Breaux v. St. Charles Gaming Co., Inc., 10-1349 (La.App. 3 Cir. 6/22/11),

68 So.3d 684, writ denied, 11-1661 (La. 10/7/11), 71 So.3d 322 and De La Rosa v. St.

Charles Gaming Co., 474 F.3d 185 (5th Cir. 2006). Further, it also asserts that this

court should take notice that the Crown‟s function is casino gaming rather than

maritime commerce.

As explained in Giorgio v. Alliance Operating Corp., 05-0002 (La. 1/19/06),

921 So.2d 58, a party asserting admiralty tort jurisdiction must establish that the

incident 1) occurred on navigable waters, i.e., a maritime locale, and that 2) it had a

maritime connection or flavor, i.e., a maritime nexus. In order to establish the

location component of this requirement, the inquiry considered in the present case, the

plaintiff must demonstrate “that the tort „occurred on navigable water‟ or that „an

injury suffered on land was caused by a vessel on navigable water‟”. De La Rosa, 474

F.3d 187 (quoting Strong v. B.P. Explor. & Prod., Inc., 440 F.3d 665 (5th Cir. 2006)).

The parties question the Crown‟s vessel status in this context.

As a starting point, we refer to 1 U.S.C. § 3 which provides that the term

“„vessel‟ includes every description of watercraft or other artificial contrivance used,

or capable of being used, as a means of transportation on water.”

The United States Supreme Court interpreted this definition of “vessel,”3 in its

determination of whether a dredge was a vessel for purposes of the Longshore and

Harbor Workers‟ Compensation Act in light of its limited propulsion capabilities.

Stewart v. Dutra Constr. Co., 543 U.S. 481, 125 S.Ct. 1118 (2005). In conducting its

analysis, the Supreme Court observed that “a watercraft is not „capable of being used‟

3
Stewart‟s interpretation of the term occurred within the context of the Longshore and Harbor
Workers‟ Compensation Act.
3

for maritime transport in any meaningful sense if it has been permanently moored or

otherwise rendered practically incapable of transportation or movement.” Id. at 1127

(emphasis added). The parties‟ arguments and evidence in this case center upon

whether the Crown was practically incapable of transportation or movement at the

time of the 2008 accident.

Notably, both a panel of the United States Court of Appeals, Fifth Circuit and a

panel of this court have concluded that the Crown does not qualify as a vessel as

interpreted in Stewart. In De La Rosa, 474 F.3d at 187, the Fifth Circuit observed that

Stewart framed the critical inquiry as whether a watercraft‟s use “„as a means of

transportation on water‟ is a practical possibility or merely a theoretical one.‟” The

Fifth Circuit concluded that the Crown‟s circumstances rendered it only theoretically

capable of sailing and, therefore, it was not a vessel for purposes of admiralty

jurisdiction. Instead, the Fifth Circuit observed that the Crown was:

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.

Id. at 187.

Similarly, in Breaux, 68 So.3d 684, a panel of this court recently considered the

Crown‟s status as a vessel in a case involving a 2004 accident. 4 The panel resolved

the case in keeping with De La Rosa and remarked that the plaintiff “was injured

while on a gaming boat permanently attached to the shore, not used in navigation, and

not performing any traditional maritime activity.” Id. at 687.

4
The trial court decision now under review was rendered prior to the release of Breaux in June
2011.
4

It is of no small moment that the Crown, the riverboat casino at issue in this

case, was the same riverboat casino involved in De La Rosa and in Breaux. While

Mr. Lemelle contends that additional facts were developed in this case that were not

available in the previous two cases, we do not find these facts warrant a different

outcome. Chiefly, Mr. Lemelle argues that the evidence demonstrates the Crown‟s

actual capacity to navigate insofar as testimony and log entries reveal that the

riverboat‟s engines were operated periodically around the time period of this accident.

However, reviewing this evidence, we find no evidence warranting a departure from

De La Rosa and Breaux.

Instead, the evidence leads to the conclusion that the Crown was practically

incapable of transportation or movement as described in Stewart, 543 U.S. 481, 125

S.Ct. 1118. The Crown has been affixed in its dockside location, to some degree,

since 2001 by lines and cables. It has not sailed since the 2001 legislation prohibiting

it from conducting cruises or excursions. In fact, since 2001, its crew size has been

reduced due to the lack of need to tie and untie the Crown onto the dock. According

to the testimony of the Crown‟s captain, the Coast Guard no longer inspects the

Crown. Rather, at the time of the captain‟s deposition, inspections were performed by

a state entity.

Mr. Lemelle asserts that the Crown‟s practice of operating its engine and

thrusters should be viewed as indicative of its actual capacity for transportation or

movement. Similarly, its navigation equipment is intact. However, the practice

referenced by Mr. Lemelle is not, in fact, used for navigation or transportation

purposes. Instead, the Crown‟s captain explained that the engines are used to ensure

that the riverboat casino will remain affixed to the dock when large tankers are

nearby. Similarly, the engines have been operated and the electrical sources have

been disconnected during hurricanes when the boat has been evacuated. However,
5

according to the captain, these practices are for safety purposes. While the captain

suggested that the numerous lines connecting the Crown to the land for utility

purposes could be disconnected within a short period of time, these impediments

undermine the practicality of the Crown returning to service as a means of

transportation or movement.

We further note that both De La Rosa and Breaux commented upon the

interplay of La.R.S. 27:65 and the physical barriers to movement. Pursuant to that

legislation, the Crown, as a gaming licensee, may only conduct its business while

docked. It may not conduct cruises or excursions. It is appropriate to consider this

legislation as bearing on the question of whether, under these facts, the Crown is

practically capable or incapable of either transportation or movement uses.

Furthermore, and while we follow De La Rosa and Breaux as authoritative

jurisprudence, we are aware that, in Board of Commissioners of the Orleans Levee

Dist. v. M/V BELLE OF ORLEANS, 535 F.3d 1299 (11th. Cir. 2008), the United

States Court of Appeals, Eleventh Circuit rejected the reasoning of De La Rosa,

instead finding that the Fifth Circuit inappropriately focused on the intent of the

shipowner. As an intermediate state appellate court, we are mindful that this court is

situated within the geographical confines of the Fifth Circuit. We also note that both

De La Rosa and Breaux only reference the legislation and the owner‟s intent as one of

several factors in determination of whether the riverboat casino is practically

incapable of movement or transportation. We find no reason to deviate from that

reasoning here. Rather, we conclude that De La Rosa and Breaux are sufficiently

consistent with 1 U.S.C. § 3, as interpreted by the Supreme Court in Stewart, to

adhere to those decisions in light of the facts developed in this case.

For these reasons, we reverse the trial court‟s determination that the Crown was

a vessel for general maritime law purposes and its entry of a partial final judgment in
6

this regard. Accordingly, we find it appropriate to grant St. Charles‟ motion for

summary judgment insofar as it sought a declaration that, in this case, the Crown is

not a vessel for general maritime law purposes. As the parties‟ presentation to the

trial court focused on this issue, we remand this matter for further proceedings

consistent with this opinion rather than granting St. Charles‟ request that Mr.

Lemelle‟s claim be dismissed.5

DECREE

The partial summary judgment entered in favor of the plaintiff, Thomas

Lemelle, is reversed. The denial of the motion for summary judgment filed by the

defendant, St. Charles Gaming Company, Inc., is also reversed. Summary judgment

is rendered in favor of St. Charles Gaming Company, Inc., declaring that the M/V

Crown Casino is not a vessel for general maritime purposes under the facts of this

case. This matter is remanded for further proceedings consistent with this opinion.

Costs of this proceeding are assessed to Mr. Lemelle.

REVERSED AND RENDERED. REMANDED .

5
Again, the parties‟ evidence and argument focused upon the Crown‟s status as a vessel. The trial
court‟s judgment did as well. To the extent that St. Charles filed an exception of no cause of action
and a motion for summary judgment that extended beyond this issue, we do not consider those
issues. Accordingly, we remand this matter so that the parties and the trial court might consider any
issues and procedural questions that remain.
7

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-255

THOMAS LEMELLE

VERSUS

ST. CHARLES GAMING COMPANY, INC.

THIBODEAUX, Chief Judge, dissenting.

These facts are undisputed. Crown was constructed as a completely

functional riverboat. Prior to 2001, the period during which Louisiana laws

prohibited dockside gambling, Crown with passengers regularly cruised the waters.

When in 2001 the gaming laws changed to allow dockside gambling, Crown was

moored on Calcasieu River, and it has remained moored ever since.

Crown is connected to an adjacent concrete wharf by nylon mooring

lines and steel cables. Crown is also connected to land by utility lines that supply

electricity, water, telephone, sewerage, cable television, and computer access.

There is also a guest entrance walkway—a steel structure controlled by hydraulic

ramps attached to the land-based pavilion. Despite all of the above-described

attachments to land, Crown can be ready to sail on its own in less than one hour.

Crown has a captain and a marine crew who maintain the riverboat in

proper operating order. All of the navigational tools and equipment as well as

Crown‟s engines are constantly checked and maintained in proper working order.

In short, Crown is a completely functional riverboat.

At the time of the incident, as was required by then-existing

legislation, Crown held a certificate of inspection issued by the United States Coast

Guard (USCG). Crown floats on its own in the Calcasieu River. In fact, Crown

can and, at times, does operate under its own power free from the shore-side

systems for as long as eight hours.

Once or twice a week, the Crown‟s captain activates and operates both

the port and starboard main engines of the vessel. This is done to hold Crown

against its dock because when large ocean-going ships dock at or leave from the

adjacent shipyard, it creates a significant disturbance of the waters.

Admiralty Jurisdiction

Admiralty jurisdiction in tort cases is conferred by 28 U.S.C. §

1333(1). See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513

U.S. 527, 115 S.Ct. 1043 (1995); De La Rosa v. St. Charles Gaming Co., 474 F.3d

185 (5th Cir. 2006). The party seeking admiralty jurisdiction “must satisfy

conditions both of location and of connection with maritime activity.” Strong v.

B.P. Exploration & Prod., Inc. 440 F.3d 665, 669 (5th Cir. 2006) (citation

omitted). There are two alternative ways 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.‟” De La Rosa, 474 F.3d at 187

(citation omitted). The connection test involves two additional inquiries: (a)

whether the incident had the potential to disrupt maritime commerce; and, (b)

whether the general character of the tortfeasor‟s activity giving rise to the incident

had a substantial relationship to traditional maritime activity. Jerome B. Grubart,

Inc., 513 U.S. 527, 115 S.Ct. 1043; Quinn v. St. Charles Gaming Co., Inc., 01-794

(La.App. 3 Cir. 2/6/02), 815 So.2d 963, writ denied, 02-694 (La. 4/12/02), 813

So.2d 412.

The first inquiry is whether Crown is a vessel.1 The next inquiry is

whether the location test can be satisfied by determining whether the tort occurred

1
While the De La Rosa court states that the examination of whether a watercraft is a
vessel needs to be performed in cases where the injury occurred on land, it applies this test in the
2

on a navigable waterway. Finally, it is necessary to examine whether the test of

connection to traditional maritime activity has been satisfied.

(1) The Location Test

(a) Is Crown a Vessel?

There are two sources of law in Louisiana: legislation and custom,

with legislation superseding custom in every instance. Doerr v. Mobil Oil Corp.,

00-947 (La. 12/19/00), 774 So.2d 119 (citing La.Civ.Code arts. 1, 3). “Judicial

decisions, on the other hand, are not intended to be an authoritative source of law

in Louisiana.” Id. at 128 (citing A.N. YIANNOPOULOS, LOUISIANA CIVIL LAW

SYSTEM § 35 (1977)). Because “„one of the fundamental rules of [the civil law

tradition] is that a tribunal is never bound by the decisions which it formerly

rendered: it can always change its mind,‟ 1 Marcel Planiol, Treatise on the Civil

Law § 123, (La. State Law Inst. trans.1959) (12th ed.1939), prior holdings by this

court are persuasive, not authoritative, expressions of the law.” Id. at 128-29

(citing A.N. YIANNOPOULOS, LOUISIANA CIVIL LAW SYSTEM § 35 (1977)). Thus,

“a prior judicial (mis)construction of a statute does not „insulate‟ the Louisiana

judge . . . from returning to the legislation itself to ascertain its correct meaning

and application.” Albert Tate, Jr., Civilian Methodology in Louisiana, 44 TUL. L.

REV. 673, 678 (1976).

As Justice Dennis explained, in Louisiana, legislation “is the primary

source of law, and precedent serves merely as an example of a prior judge‟s

interpretation and application of legislated law.” James L. Dennis, Interpretation

& Application of the Civil Code & the Evaluation of Judicial Precedent, 54 LA. L.

REV. 1, 3 (1993). Thus, “[i]t should be evident that the common-law or case-law

case where the plaintiff “was a customer on board . . . [Crown] when he tripped and fell.” 474
F.3d at 186 (emphasis added). By implication, the De La Rosa court applies the “vessel” test as
opposed to the “navigable water” test even though the accident occurred on a navigable
waterway. Therefore, for completeness purposes, I will address the issue of whether Crown is a
vessel.

3

theory of precedent is incompatible in many ways with the legal method of

deciding a case . . . .” Id. at 14. Furthermore, the civil law method should be

applied to determine “whether the case should be imitated in a subsequent

decision.” Id. at 15. Therefore, “if a judge ignores a clearly applicable Code rule

and follows another jurisdiction‟s case, his example of using the wrong starting

point or source of law should not be influential at all.” Id.

For the purposes of admiralty jurisdiction, “[t]he word „vessel‟

includes every description of watercraft or other artificial contrivance used, or

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

also Stewart v. Dutra Constr. Co., 543 U.S. 481, 125 S.Ct. 1118 (2005). “A

watercraft is not „capable of being used‟ for maritime transport in any meaningful

sense if it has been permanently moored or otherwise rendered practically

incapable of transportation or movement.” Id., 543 U.S. at 494, 125 S.Ct. at 1127

(emphasis added). Even though 1 U.S.C. § 3 requires that the watercraft is capable

of being used as a means of transportation on water, “[i]t does not require that a

watercraft be used primarily for that purpose.” Stewart, 543 U.S. at 495, 125 S.Ct.

at 1128 (citation omitted).

A ship does not move in and out of admiralty jurisdiction depending

on whether the ship is at an anchor, docked for loading or unloading, or berthed for

minor repairs. Id. Similarly, ships that are taken permanently out of the water do

not remain vessels because of the remote possibility that they may sail again in the

future. Id.

The following cases provide some guidance as to whether something

is or is not a vessel. A dredge, a massive floating platform that had a captain and a

crew, navigational lights, ballast tanks, and a crew dining area, but lacked self-

propulsion and was moved by a tugboat, was a vessel for maritime law purposes

4

when it lay idle because one of its scows had suffered an engine malfunction and

the other was at sea. Stewart, 543 U.S. 481, 125 S.Ct. 1118.

In De La Rosa, 474 F.3d 185, a case involving the same riverboat

whose vessel status is disputed in our case, the court held that Crown was not a

vessel. The Fifth Circuit reasoned that while Crown “was still physically capable

of sailing, such a use was merely theoretical” because “Defendants do not intend to

use it” as a sailing vessel and, instead, intend “to use it solely as an indefinitely

moored floating casino.” Id. at 187 (emphasis added).

A riverboat casino that conducted gaming cruises on Lake

Pontchartrain until 2001 and conducted all gambling dockside from 2001 until

Hurricane Katrina in 2005, was held to be a vessel for the purposes of establishing

admiralty jurisdiction. Bd. Of Comm’rs of Orleans Levee Dist. v. M/V Belle of

Orleans, 535 F.3d 1299 (11th Cir. 2008). There, the vessel was subject to USCG

certification and inspection. The riverboat had a captain and a crew, and they

maintained the boat‟s engines, generators, and equipment in working order at all

times prior to Katrina. After 2001, the riverboat was attached by steel cables to the

mooring system, and it was also connected to the shore-side source by electrical,

computer, and telephone cables.

The Eleventh Circuit distinguished its decision from that of the Fifth

Circuit‟s in De La Rosa, 474 F.3d 185. It reasoned that the Fifth Circuit articulated

an inappropriate test by focusing on the intent of the shipowner “rather than [on]

whether the boat has been „rendered practically incapable of transportation or

movement.‟” M/V Belle of Orleans, 535 F.3d at 1311 (quoting Stewart, 543 U.S.

at 494, 125 S.Ct. at 1127). The Eleventh Circuit explained that courts should not

consider the owner‟s intentions regarding the vessel because owner‟s intentions

were analogous to the boat‟s “purpose.” Id. Because the Supreme Court

5

specifically rejected any definition of “vessel” that relies on such purpose, the

owner‟s intentions were irrelevant. Id.

The Eleventh Circuit pointed out that under the Fifth Circuit‟s

reasoning, a boat may enter and leave admiralty jurisdiction on the basis of state

law and the individual thoughts of the boat owner. Id. Yet this conclusion is

untenable:

As the Louisiana legislature demonstrated by its actions in
2001, state law can change. Further, if legal navigability is
the test for vessel status, any ship with an expired Coast
Guard certification becomes a non-vessel, and those working
upon it and around it lose their protection under the Jones
Act or the LHWCA. Such a result is clearly not what the
Supreme Court intended.

Id. at 1311-12 (citation omitted).

I also note the thoughts of David Robertson, the W. Page Keeton

Chair in Tort Law and University Distinguished Teaching Professor, University of

Texas at Austin:

In 1 U.S.C. § 3 Congress states that “every description of
watercraft . . . capable of being used as a means of
transportation on water” is a vessel. . . . [T]he Stewart Court
effectively inserted the word “practically” into the statute.
But it inserted it immediately before the word “capable,” not
immediately before the word “used.” That is, the Stewart
Court did not say that merely theoretical future use can
prevent vessel status; rather it indicated that merely
theoretical present capability can.

David W. Robertson, How the Supreme Court’s New Definition of “Vessel” is

Affecting Seaman Status, Admiralty Jurisdiction, and Other Areas of Maritime

Law, 39 J. MAR. L. & COM. 115, 135 (2008) (footnote omitted).2

The primary and binding legal authority for this court is 1 U.S.C. § 3.

To be a vessel, the statute requires merely that a watercraft be capable of being

used as a means of transportation on water. It is the jurisprudence, a secondary and

2
See the article for an excellent summary of the history and jurisprudence on this subject.

6

non-binding authority in this state, which added considerations of practicality to

the statutory test. Among these secondary authorities, the Supreme Court‟s

guidance is certainly more persuasive than that of the Fifth Circuit. As dictated by

the Supreme Court in Stewart, our focus should be on whether Crown has been

“rendered practically incapable of transportation or movement.” 543 U.S. at 494,

125 S.Ct. at 1127 (emphasis added). While I agree with the Fifth Circuit that

Crown‟s use as a means of transportation over water may be theoretical, I conclude

that Crown‟s capability of use as a means of transportation over water at the time

of the accident was a practical one.

As the Eleventh Circuit correctly observed, a boat does not enter and

leave admiralty jurisdiction on the basis of state law or the individual thoughts of

the boat owner. M/V Belle of Orleans, 535 F.3d 1299. This is why that Crown has

been attached to the dock since 2001 is of limited, if any, consequence. If St.

Charles decides to sell Crown and move it somewhere, which it is in the process of

doing at this very time, there would be no dispute that Crown would become a

vessel immediately. Or, if Crown were to move with its crew to avoid a hurricane,

for example, would there be any question regarding its status as a vessel if a

member of its crew injured himself? Certainly, the question of whether something

is or is not a vessel cannot depend on the subjective whim of the owner.

Moreover, as the Eleventh Circuit also pointed out, a ship does not become a non-

vessel if its Coast Guard certification expires. Id. For the same reason, that Crown

may only conduct gambling dockside under the Louisiana statute has little bearing,

if any, on whether it is a vessel.

Finally, I am aware of this court‟s recent decision in Breaux v. St.

Charles Gaming Company, Inc., 10-1349, 11-128 (La.App. 3 Cir. 6/22/11),

__So.3d__. Breaux relied heavily on the Fifth Circuit‟s decision in De La Rosa

474 F.3d 185. As explained above, the De La Rosa court applied an incorrect test

7

to determine whether a watercraft is a vessel. Thus, Justice Dennis‟s sentiments

are especially germane: “if a judge ignores a clearly applicable Code rule and

follows another jurisdiction‟s case, his example of using the wrong starting point

or source of law should not be influential at all.” James L. Dennis, Interpretation

& Application of the Civil Code & the Evaluation of Judicial Precedent, 54 LA. L.

REV. 1, 15 (1993). I also note with approval and adopt Judge Saunders‟s reasoning

he so brilliantly articulated in his dissent in which I joined.

Moreover, the record in Breaux regarding the facts indicating that

Crown is a vessel was not nearly as developed as it is in this case. This may have

contributed to the conclusion in that case. Finally, as pointed out previously,

Louisiana is a state where jurisprudence has no binding authority on the court.

Thus, our main inquiry should be whether Crown is “capable of being used . . . as

a means of transportation on water.” 1 U.S.C. § 3. (Emphasis supplied).

The maintenance of a captain and a crew, the constant maintenance of

navigational tools and equipment, the regular operation of the engines, all point to

Crown‟s practical capability of being used as a means of transportation over water.

It is true that Crown is attached by various cables to land. Nevertheless, according

to Crown‟s captain, all of these attachments to land can be removed, and Crown

can be ready to sail in less than one hour. Thus, neither Crown‟s inherent

characteristics nor external barriers (such as those that would exist if, for example,

Crown were placed in dry dock) impede Crown‟s practical capability of being used

as a means of transportation over water. Based on these considerations, I find no

error in the trial court‟s conclusion that Crown is a vessel. The majority errs when

it concludes otherwise.

8

(b) Did the Tort Occur on Navigable Water?

There is no dispute that Crown was floating on the Calcasieu River at

the time Lemelle was served with allegedly excessive amounts of alcohol, which,

allegedly, caused his injuries. Calcasieu River is a navigable waterway. See W.

Cameron Port v. Lake Charles Harbor & Terminal Dist., 09-509 (La.App. 3 Cir.

5/12/10), 38 So.3d 577, writ denied, 10-1800 (La. 11/19/10), 49 So.3d 393.

Therefore, the location test is also satisfied in this alternative fashion.

(2) The Connection Test

The connection to traditional maritime activity test involves a

consideration of whether (a) the incident had the potential to disrupt maritime

commerce; and, (b) the general character of the tortfeasor‟s activity giving rise to

the incident had a substantial relationship to traditional maritime activity. Jerome

B. Grubart, Inc., 513 U.S. 527, 115 S.Ct. 1043.

(a) Potential to Disrupt Maritime Commerce

This inquiry requires the consideration of the incident giving rise to

the claim at an intermediate level of generality. Jerome B. Grubart, Inc., 513 U.S.

527, 115 S.Ct. 1043. This means that the court does not consider the particular

facts of the case but examines the general features of the incident to determine

whether this type of incident is likely to disrupt commercial activity. Sisson v.

Ruby, 497 U.S. 358, 110 S.Ct. 2892 (1990).

The connection test was discussed ably and extensively in Quinn, 815

So.2d 963. There, the estate of a motorist who was killed in collision with an

intoxicated casino patron sued the casino for providing excessive amounts of

alcohol to the patron. Quoting Jerome B. Grubart, Inc., 513 U.S. at 538-39, 115

S.Ct. at 1051, and applying the intermediate level of generality, this court ruled

that the provision of alcohol to passengers aboard a vessel without adequate

9

supervision could have a disruptive effect on maritime commerce as intoxicated

passengers fall overboard requiring search and rescue operations. Quinn, 815

So.2d 963.

Like the plaintiff in Quinn, Lemelle argues that he sustained injuries

as a result of excessive provision of alcohol aboard Crown. Applying the

intermediate level of generality, I have no difficulty concluding that there is a

potential to disrupt maritime commerce. Thus, this prong of the connection test

has been met.

(b) Substantial Relationship to Traditional Maritime Activity

The Quinn court also found the substantial relationship to the

maritime activity: “[t]he duties owed by vessel owners to their passengers have

long been found a traditional maritime concern.” Id. at 968 (citations omitted).

Having previously decided that Crown is a vessel, as in Quinn, 815

So.2d 963, Crown‟s owners owed a duty to Lemelle to ensure his safety, which is a

traditional maritime concern. Therefore, this prong of the connection test has also

been met.

For the foregoing reasons, I dissent. The trial court‟s summary

judgment in favor of Thomas Lemelle should be affirmed.

10