Circuit Court Rules a Barge "is" a Vessel

Published Feb 11, 2006 12:01 AM by The Maritime Executive

On October 28, 2005, the Fifth Circuit issued its decision in Holmes v. Atlantic Sounding Co., Inc., No. 04-30732.

The court ruled that a barge used to house dredge workers was not a vessel. The court explained that the recent United States Supreme Court decision in Stewart v. Dutra Construction Co., 543 U.S. 481 (2005), did not materially alter the Fifth Circuit's test for vessel status. There was a sharp dissent by Judge DeMoss.

The Fifth Circuit issued a revised opinion on November 16, 2005, reported at 429 F.3d 174. The revised opinion made no material change.

The Fifth Circuit on January 19, 2006 withdrew its prior opinion and issued a new opinion that ruled the barge IS a vessel -- 2006 WL 133537.

In essence, the court adopted Judge DeMoss' reasoning. The core of the decision is, "Thus, as long as a water-borne structure is practically capable of being used for transportation on navigable waters, it is a 'vessel.'"

Under the new test, the mere fact that a structure was not designed primary as a means of transportation on navigable waters, or that the structure is used primarily as a work platform, does not mean the structure is not a vessel. To paraphrase what the colorful Judge
Brown once said, three men in a tub is now an admiralty matter

Please note this decision could impact rulings in the Fifth Circuit in the offshore oil and gas area. For instance, "spars" heretofore have not been considered a "vessel". Under this new test, anything capable of "transportation" could be a vessel.

Sent the MarEx by:
Steve Roberts
Fulbright and Jaworski