De La Rosa v. St Charles Gaming Co , 474 F.3d 185 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
October 31, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
05-41563
DAVID DE LA ROSA,
Plaintiff-Appellant,
v.
ST. CHARLES GAMING COMPANY, INC; GRAND PALAIS
RIVERBOAT INC, doing business as Isle of Capri
Casino; CROWN CASINO M/V,
Defendants-Appellees.
Appeal from the United States District Court for the
Eastern District of Texas
Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.
BENAVIDES, Circuit Judge:
The Isle of Capri Casino offers gaming and other entertainment
on board two boats that are afloat on Lake Charles, located in Lake
Charles, Louisiana. The boats are indefinitely moored to a dock,
adjacent to a land-based hotel. On August 21, 2003, Appellant
David De La Rosa was a customer on board one of these boats, the
M/V CROWN CASINO (“CROWN CASINO”), when he tripped and fell.
Believing that his fall was caused by improper installation or
maintenance of the carpeting outside the elevator, De La Rosa sued
St. Charles Gaming Co., Grand Palais Riverboat, Inc., and the M/V
CROWN CASINO (hereinafter referred to collectively as
“Defendants”), claiming unseaworthiness in admiralty and negligence
under Louisiana’s “slip and fall” statute. The Defendants moved
for summary judgment on both counts, and the district court granted
that motion. With regard to the admiralty claim, the court
reasoned that the CROWN CASINO was not a “vessel” for purposes of
general maritime law, and thus the court had no jurisdiction. De
La Rosa now appeals that ruling.1 We agree with the district court
and AFFIRM.
We review the district court’s grant of summary judgment de
novo, applying the same standards as the district court. Degan v.
Ford Motor Co., 869 F.2d 889, 892 (5th Cir. 1989).
“It is settled that a party seeking to invoke federal
admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort
claim must satisfy conditions both of location and of connection
with maritime activity.” Strong v. B.P. Exploration & Production,
Inc., 440 F.3d 665, 669 (5th Cir. 2006). 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.” Id. (emphasis added). The sole question at
1
De La Rosa did not appeal the ruling on his negligence claim,
so it is not before this Court.
2
issue here is whether or not the CROWN CASINO is a “vessel” for
purposes of admiralty jurisdiction.
A vessel is a watercraft that is “used, or capable of being
used, as a means of transportation on water.” 1 U.S.C. § 3. We
have previously held that “indefinitely moored, shore-side,
floating casinos,” such as the one here, are not vessels under
general maritime law. Pavone v. Mississippi Riverboat Amusement
Corp., 52 F.3d 560, 570 (5th Cir. 1995). De La Rosa argues,
however, that the Supreme Court’s recent decision in Stewart v.
Dutra Constr. Co., 543 U.S. 481 (2005), has broadened the
definition to encompass structures like the CROWN CASINO. We have
already recognized that Stewart expanded the definition of vessel
to include more unconventional watercrafts than we had previously
thought. Holmes v. Atl. Sounding Co., Inc., 437 F.3d 441, 448 (5th
Cir. 2006). However, we did not address whether Stewart overturned
Pavone by categorizing indefinitely moored gaming boats as vessels.
We consider that question now, and we find that it does not.
Under Stewart, a watercraft is not “‘capable of being used’ .
. . in any meaningful sense if it has been permanently moored or
otherwise rendered practically incapable of transportation or
movement.” 543 U.S. at 494. The crucial question is “whether the
watercraft’s use ‘as a means of transportation on water’ is a
practical possibility or merely a theoretical one.” Id. at 496
(citations omitted).
In this case, we are satisfied that although the CROWN CASINO
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was still physically capable of sailing, such a use was merely
theoretical. The evidence presented to the district court reveals
that the CROWN CASINO is 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.
All of these facts were before the magistrate judge who
originally recommended that the court grant Defendants’ motion for
summary judgment. They were also before the district judge, who
accepted and agreed with the magistrate’s recommendation. Now they
are before us, and we reach the same conclusion. Even after
Stewart, an indefinitely moored floating casino like the CROWN
CASINO is not a “vessel” for purposes of admiralty jurisdiction.2
The district court’s decision to grant Defendant’s motion for
2
With regard to the impact of Stewart, we also note that
Justice Thomas, the author of the Stewart opinion, cited our
decision in Pavone to support the view that “ships taken
permanently out of the water as a practical matter do not remain
vessels merely because of the remote possibility that they may one
day sail again.” 543 U.S. at 494. Although the CROWN CASINO was
not literally taken out of the water, neither was the floating
casino in Pavone, and we therefore consider the Supreme Court’s
reliance on Pavone to be instructive in this case.
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summary judgment is hereby AFFIRMED.
5