Lеroy Michel (“Michel”) filed this action against his employer, Total Transportation, Inc. and its insurer, Assuranceforeningen Gard (collectively, “TTI”), to recover damages under the Jones Act (46 U.S.C.App. § 688) and general maritime law for unseaworthiness and in the alternative, under 33 U.S.C. § 905(b), the Longshore and Harbor Workers’ Compensation Act (LHWCA) for personal injuries he suffered in the course of his employment. Michel’s wife, Cindy Michel, asserted a claim for loss of consortium under general maritime law. After a bench trial, the district court found that the GEMINI was a special purpose vessel, Michel was a “seaman” еntitled to the remedies of the Jones Act, TTI was negligent under the Jones Act and the LHWCA, and the GEMINI was unseaworthy. The district court awarded Michel $534,000 in damages, 1 and $35,000 to Cindy Michel for loss of consortium. TTI appeals asserting that the Jones Act does not apply. Michel cross-appeals the $250,000 award for loss of future earnings and earning capacity. We reverse the award of damages for loss of consortium and otherwise affirm the judgment.
Michel was permanently assigned to the GEMINI, a special purpose barge, owned by TTI. The GEMINI was designed to transfer bulk cargo, usually grain, midstream from river barges to ocean-going vessels. The GEMINI performs this unique transfer function on a six mile stretch of the Mississippi River. The GEMINI is moved into position midstream by a tug or push-boat. When working, the GEMINI is held in position by side deck winches, whose cables are lashed onto the ocean-going vessel. The ocean-going vessel is moored to a mooring buoy and anchored in the river. The cargo barges are secured alongside the GEMINI. The GEMINI’S two large cranes scoop the grain out of the barge holds and place it in the hopper on the GEMINI where the grain is weighed, tested, then deposited into the hold of the oсean-going vessel. The GEMINI can be equipped with navigation aids when necessary. Michel’s regular duties on the GEMINI involved driving a tractor inside the cargo holds of river barges to sweep them clean of all the grain. His duties also included handling cables and lines, operating deck machinery, as well аs cleaning and painting the GEMINI.
On October 7, 1989, Michel was pressure-washing the grain dust off of the hopper on the GEMINI. He was suspended in a basket from one of the large cranes normally used to transfer cargo from the barges. The basket was attached to the crane by a holding line. Because the crane was not designed for carrying personnel, a “headache ball” was attached to the holding line approximately three feet above Michel’s head in order to provide additional weight so that the crane would operate more easily. The combined weight of the basket, Michel, and the headache ball to-talled less than 1,000 pounds. As the crane’s load descended, the basket settled upon a suspended dust pipe, but the headache ball continued to lower, striking Michel’s hand and pinning it to the side of the basket. The basket then tipped, and Michel was thrown clear landing on the roof *189 of a small work shed. As a result, Michel suffered multiple fractures to his right hand, and left elbow.
I. WAS MICHEL A JONES ACT SEAMAN?
In relevant part, the Jones Act provides that “[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages аt law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply_” 46 U.S.C. App. § 688(a).
2
To qualify as a seaman under the Jones Act, the plaintiff must show that he was permanently assigned to or performed a substantial part of his work aboard a “vessel”.
Gremillion v. Gulf Coast Catering Company,
The Supreme Court has recently stated that the determination of who is a seaman is “better characterized as a mixed question of law and fact, rather than а pure question of fact.”
McDermott Int’l, Inc. v. Wilander,
— U.S.-,
As to the trial court’s underlying factual findings and factuаl inferences deduced there from, we are bound by the clearly erroneous standard of Rule 52(a) of the Federal Rules of Civil Procedure. However, as to the legal conclusion reached by the district court based upon this factual data, ... we may review this as an issue of law.
Robicheaux v. Radcliff Material, Inc.,
A. THE GEMINI
The GEMINI is a “spеcial purpose structure” not readily identifiable as a ship. The seminal Fifth Circuit case on this subject,
Offshore Co. v. Robison,
In order to qualify as a Jones Act seaman [the plaintiff] must have worked on a “vessel.” The Jones Act does not define the term “vessel,” and we have repeatedly held that the term is incapable of precise definition. However, we may rely on the purpose for which the craft was built and the business in which it was engaged to guide our inquiry. Other factors, like the structure’s size, its ability to float, its permanent fixation to the shore or the bottom, and its movеment or its ability to move across navigable waters are inconclusive. Further, structures whose primary function is non-navigational or non-transportational may still qualify as vessels if the structure was involved in navigation at the time of the injury.
*190
Ellender v. Kiva Construction & Engineering, Inc.,
In
Bernard v. Binnings Const. Co. Inc.,
TTI argues that since the purpose of the GEMINI is the transfer of cargo (primarily grain) from river barges to oceangoing vessels, it is essentially a floating grain elevator and, therefore, performs stevedoring services, i.e. the transfer and stowage of cargo. According to TTI, the GEMINI’S transportation function is incidental to its primary stevedoring purpose, therefore, its capability of and occasional movement across navigable waters is not determinative of vessel status. TTI compares the GEMINI to the numerous special purpose structures for which the Fifth Circuit has denied vessel status:
(1) The structures involved were constructed and used primarily as work platforms;
(2) They were moored or otherwise secured at the time of the accident; and
(3) Although they were capable of movement and were sometimes moved across navigable waters in the course of normal operations, any transportation function they performed was merely incidental to their primary purpose of serving as work platforms.
Bernard,
We agree with the district court that the GEMINI’S transportational function is not “merely incidental”: to its primary purpose as a work platform. The district court correctly concluded that the GEMINI is
designed to move cargo from vessel to anothеr ... she does move cargo, albeit not for great distances. If one wants to look at it as a continuous transportation by water of grain ... from some inland port upriver to some foreign port, she’s an integral part of that journey,.... If one views this as a continuous voyage, she’s a necessary link in a continuous voyage, the cargo of which never hits shore. In that sense, one could certainly call her a vessel, ... Michel at 241-242.
The district court concluded that aboard the GEMINI, Michel was “exposed to the typical perils of the sea as any other river seaman.” Michel at 239. We agree with these conclusions and hold that the GEMINI is a “vessel” under the Jones Act.
B. MICHEL
To determine whether Michel is a “seaman” under the Jones Act, we specifically look at his connection to the vessel, GEMINI.
“[McDermott Int'l, Inc. v.] Wilander jettisoned any lingering notion that a maritime worker need aid in the navigation of a vessel in order to qualify as а “seaman” under the Jones Act. ‘The key to seaman status is employment-related connection to a vessel in navigation.... It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship’s work.’ ” Southwest Marine,112 S.Ct. at 492 (quoting McDermott,111 S.Ct. at 817 ).
In addition, Michel must show that he “was assigned permanently to a vessel ... or performed a substantial part of his work on the vessel; ...”
Robison,
*191 We hold that Michel was permanently assigned to the GEMINI and was doing the vessel’s work. His job related to the basic functions of the GEMINI and encompassed the range of incidental duties typical of a sеaman, handling cable lines and assisting in the general cleaning and maintenance of the GEMINI. The district court found that on the day of the accident, “the work that [Michel was] doing is exactly what seaman do. They chip paint, they clean the vessel, .... [t]hey do general maintenance work on that vеssel.” Michel at 243. In light of McDermott and Southwest Marine, the district court’s conclusion that Michel is a seaman is correct.
II. LOSS OF CONSORTIUM
Whether or not damages are available for loss of consortium is a legal question, reviewable
de novo. Pullman-Standard v. Swint,
TTI argues that the district court’s award of damages to Michel’s wife for loss of consortium was invalid under the Supreme Court’s dеcision in
Miles v. Apex Marine Corp.,
— U.S.-,
Michel argues that we are still bound by the holding in
Cruz v. Hendy Int’l Co.,
In
Miles,
the Supreme Court stressed the importance of uniformity concerning the claims available under the Jones Act and general maritime law. “It would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially-created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence.”
Id.,
III. LOSS OF FUTURE EARNINGS AND EARNING CAPACITY
We review the district court’s finding of damages under the clearly erroneous standard.
Wakefield v. United States,
In his cross-appeal, Michel argues that the district court’s award of $250,000 for loss of future earnings and earning capacity was clearly erroneous because the awаrd was based on an overly optimistic view of Michel’s ability to overcome his physical restrictions and earn income comparable to the wages he received from TTI, $11.50 an hour and $17.25 an hour for overtime. Michel’s vocational expert claimed that Michel will be able to return to employment paying slightly above minimum wage. TTI’s vocational expert claimed that Michel will be able to return to work earning substantially above the minimum wage. Economic reports presented by both sides calculated a wide range of damage figures for lost future income, from $823,133 down to $150,395.
The district judge correctly concluded that as fact finder, he was free to accept or reject the experts’ reports and could reach his own conclusion regarding lost earning capacity.
See, Leefe v. Air Logistics, Inc.,
After our review of the record in this case, we conclude that the district judge’s award for lost future earnings and earning capacity was not so overly optimistic concerning Michel’s ability to return to gainful employment as to be clearly erronepus.
IV. CONCLUSION
The award of damages for loss of consortium is REVERSED, otherwise the judgment of the district court is AFFIRMED.
Notes
.These damages consist of the following components:
1. $100,000 for pain, suffering and disability from date of accident;
2. $150,000 for future pain, suffering and disability;
3. $34,000 for past wage loss, including fringe benefits; and
4. $250,000 for loss of future earnings and earning capacity.
. The "statute ... modifying ... the common law right ... in cases of personal injury to railway employees" was the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., which provides that:
“Every common carrier ..., shall be liable in damages to any person suffering injury while he is employed by such carrier ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier,...." 45 U.S.C. § 51.