Plaintiff, Ralph Hall, was injured on November 4, 1981 while employed as an “offshore rigger” by defendant Transocean Contractors (“Transocean”). At the time of plaintiff’s injury, Transocean was under contract with defendant Diamond M Company (“Diamond M”) to provide the labor and small tools necessary to move the Century, a submersible drilling rig owned by Diamond M and then situated in the Gulf of Mexico.
To assist in moving the drilling rig, Diamond M chartered a vessel, the M/V Point Fortune, specially outfitted with powerful winches for lifting from the ocean floor the heavy anchors which held the drilling rig in place. Hall was assigned to the anchorhandling crew aboard the vessel and also lived and ate on the vessel. He was injured when one of the cables with which he was working knocked him to the deck of the M/V Point Fortune.
Hall brought suit for negligence under the Jones Act and for maintenance and cure under the general maritime law against his employer, Transocean, and Diamond M, which he alleges to be his pro hac vice employer. He also sued the vessel in rem and Diamond M as its charterer under the general maritime law for unseaworthiness. Thereafter, Hall brought a motion for summary judgment to be recognized as a seaman entitled to maintenance and cure. The district court denied the motion for summary judgment on maintenance and cure; however, plaintiff was instructed to move for an expedited evidentiary hearing on that claim. Following the hearing, the *1248 trial judge ruled as a matter of law that the plaintiff was not a seaman within the meaning of the Jones Act and denied his motion for maintenance and cure. Diamond M then moved for summary judgment on the claims against it on the grounds that Hall was not its borrowed servant and that it neither owned nor operated the vessel. The motion was granted and plaintiff appealed.
On appeal, Hall argues, first, that the trial court applied an improper standard in determining his status as a seaman for purposes of maintenance and cure, and, second, the trial court erred in determining as a matter of law on summary judgment that Hall was not Diamond M’s borrowed servant.
SEAMAN’S STATUS
Although he was hired as an offshore rigger, at the time of his employment Hall agreed to work onshore if there was no work available offshore. Up until the date of his injury, plaintiff had worked 128 hours on land and 227 hours offshore. On land, he performed various odd jobs, including painting and sandblasting around the Transocean yard. He spent a few days working at a duck camp. While offshore, he worked exclusively as an anchorhandler. Transocean’s employment records indicate that Hall was on his third trip offshore when he was injured. He had worked once previously on the M/V Point Fortune for a few days and before that on another vessel for two days. Testimony at the hearing indicated that the anchor-moving jobs usually lasted from two to five days. The anchorhandlers remained on the vessel supplied to Transocean the entire time. Because various vessels were supplied to Transocean by its customers, there was no single vessel or particular fleet of vessels to which the anchorhandlers might be assigned.
Only seamen are entitled to the benefits of maintenance and cure. The standard for determining seaman status for purposes of maintenance and cure is the same as that established for determining status under the Jones Act.
Stokes v. B.T. Oilfield Services, Inc.,
The question of seaman status is a mixed question of law and fact.
Holland v. Allied Structural Steel Co., Inc.,
The district judge apparently believed that Hall satisfied the second prong of the
Robison test.
In his reasons, the district judge wrote that “plaintiff was subjected to the perils of the sea as are blue water seamen, and was engaged in classical seaman’s work____” It was the first prong of the test that Hall failed to satisfy. Specifically, the trial judge found that Hall had not been “assigned permanently to a vessel” as that phrase had come to be understood. Although he recognized that the worker may be a member of a crew of numerous vessels, he found, relying on
Bertrand v. International Mooring & Marine, Inc.,
The holding and reasoning of the district court in
Bertrand,
upon which the district court relied, has now been overruled. In
Bertrand v. International Mooring and Marine, Inc.,
BORROWED SERVANT
The second issue before us is whether the trial court erred in holding as a matter of law on the record before it that Hall was not a borrowed servant of Diamond M.
We recently explained that “[t]he borrowed servant doctrine is the functional rule that places the risk of a worker’s injury on his actual rather than his nominal employer. It permits the injured worker to recover from the company that was actually directing his work. It may also determine which of the possible employers ultimately bears the cost of the injury.”
Baker v. Raymond International, Inc.,
Among the considerations for determining whether a servant has been borrowed by another employer are:
(1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation?
(2) Whose work is being performed?
(3) Was there an agreement, understanding, or meeting of the minds between the original and borrowing employer?
(4) Did the employee acquiesce in the new work situation?
(5) Did the original employer terminate his relationship with the employee?
(6) Who furnished tools and place for performance?
(7) Was the new employment over a considerable length of time?
(8) Who has the right to discharge the employee?
(9) Who had the obligation to pay the employee?
Gaudet v. Exxon Corp.,
In support of its motion for summary judgment, Diamond M argued that the following facts were established by the record: (1) plaintiff was an employee of Transocean; (2) Diamond M did not own or operate the M/V Point Fortune; (3) plaintiff took orders only from the Transocean foreman, Ike Thibodeaux, and not from anyone from Diamond M; (4) no one from Diamond M was aboard the vessel when plaintiff was injured; and (5) Diamond M never directly paid Ralph Hall nor was there any agreement between Diamond M and Transocean for Diamond M to do so.
No contravailing evidence was submitted with plaintiff’s opposition memorandum. Instead, he relied on an affidavit previously filed in the record to establish genuine issues of material fact.
On this record, the district judge found “that plaintiff has in no way established that he is Diamond M’s ‘borrowed servant.’ ” In ruling on a motion for summary judgment, “the court must indulge every
reasonable
inference from those facts in
*1250
favor of the party opposing the motion.”
AT & T Co. v. Delta Communications Corp.,
Among the 24 paragraphs of plaintiffs affidavit are the following statements:
“(3) The specified vessels to which I have been assigned as a member of the crew include the M/V Fortune, on which I have spent a substantial part of my time while employed by Transocean Contractors, Inc., and Diamond M Company.”;
“(4) The time which I spent aboard the M/V Fortune has been spent as a crew member of the M/V Fortune, working for Diamond M Company and Transocean Contractors, Inc., as a seaman.”
“(13) At the time I was injured, I was working for Transocean Contractors, Inc., and doing work of Diamond M Company at the time of my injury.”
The record also indicates that Diamond M provided the M/V Point Fortune for Trans-ocean’s use and that at the time of his injury plaintiff was engaged in moving a Diamond M rig. Finally, although plaintiff testified at the hearing on maintenance and cure that he took orders only from Ike Thibodeaux, the Transocean foreman, the record is unclear as to whether Thibodeaux received his instructions from Diamond M personnel.
Accordingly, we REVERSE the judgment of the district court, and we REMAND this case for further proceedings not inconsistent with this opinion.