Supreme Court of Texas.
HELIX ENERGY SOLUTIONS GROUP, INC., Helix Well Ops, Inc., and Helix Offshore International, Inc., Petitioners,
Kelvin GOLD, Respondent
Argued January 11, 2017
OPINION DELIVERED: June 16, 2017
*429 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
Attorneys & Firms
Susan Noe Wilson, Bland & Partners, PLLC, Houston, for Petitioners.
Kurt Brynilde Arnold, Arnold & Itkin, LLP, Houston, for Respondent.
Justice Brown joined.
The Jones Act provides a compensation scheme designed to mitigate the unique perils faced by “seamen”—maritime workers with a substantial connection to a “vessel in navigation.” Id. at 358, 115 S.Ct. 2172.
Despite recent clarifications on the subject, questions remain. Be that as it may, we are not without enough clarity to guide our resolution of today’s case. That task requires us to determine whether a certain ship—taken out of service, subjected to a 20-month conversion process, and unable to engage in transportation during the entirety of the claimant’s onboard employment—was “out of navigation” and thus outside the Jones Act. We must determine also whether that question can be answered as a matter of law.
We answer both questions in the affirmative; the vessel was out of navigation as a matter of law. We accordingly reverse the court of appeals, which found a fact question, and we reinstate the trial court’s summary judgment in favor of the ship’s owner.
In August 2012, Helix Energy Solutions Group purchased the HELIX 534 for $85,000,000. Prior to the purchase, the 534 was laid up in a shipyard. And upon purchase, another vessel towed the 534 to the Jurong Shipyard in Singapore. The 534 served her previous owner as a drill ship, a ship that drills wells. But Helix purchased the 534 with plans to convert her into a well-intervention ship, a ship that services pre-existing offshore wells.
Work began upon the 534’s arrival in Singapore. Due to the extent of the conversion, Helix turned the 534 over to the control of contractors at the shipyard for completion of the bulk of the overhaul; though, Helix employees assisted with minor repairs. The conversion involved, among other things, removing obsolete equipment, configuring and installing well-intervention equipment, and overhauling the engines, thrusters, generators, and in-line propulsion equipment. The work done on the propulsive components rendered the 534 unable to navigate on her own for a substantial portion of the conversion process.
Though Helix initially expected the conversion to take five or six months (ending in mid 2013), unanticipated work, labor issues, and trouble procuring certain parts delayed the conversion. In September 2013, with work still to be done, Helix dry-towed1 the 534 from Singapore to Galveston, Texas. In April 2014, 20 months after work began, the 534 entered well-intervention service for the first time under Helix’s control. In total, the 20-month conversion cost $115,000,000, or roughly 135% of the 534’s purchase price.
Today’s dispute involves a particular Helix employee, Kelvin Gold. In November 2012, near the beginning of the project, Helix hired Gold as an “able bodied seaman,” anticipating that he would serve as an offshore worker. Consequently, Gold’s responsibility was to familiarize himself with the craft and to assist with the overhaul (painting, cleaning, taking inventory, etc.). Gold served two alternating 28-day hitches between early December 2012 and March 2013, along with a partial hitch in late April 2013. During the entire time Gold worked aboard the 534 (almost five months), the ship lacked the ability to navigate *431 on her own due to the overhaul of her engines.
Gold reported injuries suffered aboard the 534 in December 2012 and in April 2013. Gold then stopped work aboard the 534 in April 2013, and his employment ceased in November 2013. Helix paid Gold “maintenance and cure” benefits, benefits available to an injured Jones Act seaman. But Helix terminated the payments after Gold allegedly failed to follow his doctor’s orders.
Gold then sued Helix and Helix’s affiliated entities for additional maintenance-and-cure benefits as well as actual and punitive damages. Gold claimed these remedies under the Jones Act as a “seaman” aboard a “vessel in navigation.” Helix disagreed that the Jones Act applied to Gold’s lawsuit and moved for summary judgment on the ground that the 534, while undergoing a major overhaul, was not a vessel in navigation. The trial court agreed and granted Helix’s motion.
Gold appealed, and the court of appeals reversed. Id.
We granted Helix’s petition for review.
II. Standard of Review
We review a trial court’s grant of summary judgment de novo. Id.
Furthermore, “we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Id. at 815.
Here, Helix bore the burden to conclusively negate the “seaman” element of Gold’s Jones Act claim.
III. The Jones Act
The Jones Act provides that,
A seaman injured in the course of employment ... may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.
Chandris, 515 U.S. at 355, 115 S.Ct. 2172 (internal quotations and citations omitted).
So who qualifies as a seaman? The Jones Act does not define the term, which left courts to apply the “general maritime law [that existed] at the time the Jones Act was enacted.” Roper v. United States, 368 U.S. 20, 22–23, 82 S.Ct. 5, 7 L.Ed.2d 1 (1961).
After decades of navigating a labyrinth of definitions and admiralty buzzwords, the Supreme Court identified two basic components of Jones Act coverage: the maritime worker must (1) be a crew member who does the “ship’s work” and (2) have a substantial connection to a vessel in navigation. Chandris, 515 U.S. at 368, 115 S.Ct. 2172. But, like most aspects of admiralty law, there is more to this standard than meets the eye.
A. Crew Member Who Does the Ship’s Work
The Supreme Court has clarified that the worker’s duties must “contribut[e] to the function of a vessel or to the accomplishment of its mission.” Wilander, 498 U.S. at 355, 111 S.Ct. 807. The requirement thus looks to the nature of the person—what does he or she do in relation to the watercraft?
Here, Gold was employed in anticipation of being an offshore worker, and his duties plainly “contribute[d] to the function” of the 534. Chandris, 515 U.S. at 368, 115 S.Ct. 2172. Helix does not contend that it is Gold’s job description that renders him outside Jones Act coverage—Helix says simply that the 534’s conversion took her out of navigation. The present dispute therefore does not hinge on Gold’s particular duties while aboard the 534.
B. Substantial Connection with a Vessel In Navigation
A Jones Act seaman must bear a requisite connection—one that is “substantial in terms of both its duration and its nature”—to a vessel in navigation. Id. Whether the 534 was a vessel in navigation is implicated directly by Helix’s motion for summary judgment.
What is a vessel in navigation? Again, Congress provided some helpful context for the phrase. In Section 3 of the Rules of Construction Act, Congress defined the word “vessel” to mean “every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” Lozman v. City of Riviera, 568 U.S. 115, 145, 133 S.Ct. 735, 184 L.Ed.2d 604 (2013).
Though the vessel-in-navigation issue is couched as a singular requirement, two distinct situations can arise. This distinction plays an important role in conceptualizing the crux of today’s dispute and in deciding its ultimate outcome.
1. The Design of the Structure
The first potential question under the in-navigation framework involves the type of structure—is it designed to function in the manner of a seafaring “vessel,” or does it merely happen to float? A classic example of this dilemma is Billiot v. Great Lakes Dredge & Dock Co., Civ. A. No. 92-2813, 1993 WL 322906, at *3 (E.D. La. Jun. 29, 1993) (a barge configured solely for use as a work platform was not a vessel in navigation).
The conversion of the 534 presents no such controversy. Prior to Helix’s purchase of the 534, the craft functioned as a seafaring vessel. She transported maritime workers in the course of her well-drilling role—precisely the type of function performed by a Jones Act vessel. And the 534’s conversion, though it gave her an added well-servicing capacity, did nothing to change her transportation-facilitating design. In plain English, the 534 was, is, and (unless transformed into something like a stationary casino) will be a boat. Helix does not suggest otherwise.
2. Major Overhauls
Different entirely, though also under the vessel-in-navigation umbrella, is the principle that “major renovations can take a ship out of navigation, even though its use before and after the work will be the same.” Wixom v. Boland Marine & Man. Co., 614 F.2d 956, 957 (5th Cir. 1980) (a three year, $25,000,000 conversion that included major structural changes such that the ship’s engine and propellers were inoperable for “at least some of the time” rendered the ship out of navigation).
Yet, at the same time, “a vessel does not cease to be a vessel when she is not voyaging, but is at anchor, berthed, or dockside,” even when she “is taken to a drydock or shipyard to undergo repairs in preparation to making another trip.” Romero v. Cajun Stabilizing Boats, Inc., 307 Fed.Appx. 849, 851 (5th Cir. 2009) (holding that a vessel that was dry-docked for several weeks for routine repairs remained in navigation as a matter of law).
The dichotomy, phrased in the Court’s language from West, 361 U.S. at 122, 80 S.Ct. 189). Over the years, courts have utilized various proxies in evaluating the extent of overhauls, but no exhaustive list or uniform approach has emerged.
It bears emphasis too that the distinction between routine, temporary repairs and major overhauls is not an arbitrary one. The distinction makes good sense in the greater context of the Jones Act, which codified “a feature of maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to sea in ships are subjected.” 33 U.S.C. § 902(3) (covering those non-seamen engaged in maritime employment, such as longshoremen “and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker”).
Finally, we must address the impact of West, 361 U.S. at 118, 80 S.Ct. 189).
But Stewart, 543 U.S. at 496, 125 S.Ct. 1118.
Practical versus theoretical capability to transport over water is, to say the least, a rather nebulous standard. How exactly such a standard should be applied to a variety of conceivable circumstances remains to be seen. Yet by reaffirming Stewart—at a minimum3—sanctioned out-of-navigation treatment for those major overhauls that render ships incapable of self-transportation.
C. The Propriety of Summary Judgment Under the Jones Act
Before diving into the court of appeals’ analysis and the summary-judgment evidence, we pause to consider the circumstances in which judgment as a matter of law is appropriate, if ever, on the threshold issue of seaman status. A plaintiff’s status as a seaman under the Jones Act is a mixed question of law and fact. City of Keller, 168 S.W.3d at 814 (explaining that “[b]y definition, [conclusive] evidence can be viewed in only one light, and reasonable jurors can reach only one conclusion from it”).
Stewart fell decidedly on the routine-repair side of the spectrum, and, with no factual disputes to send to the jury, the Court displayed no hesitation in deciding the question as a matter of law. So long as (1) the relevant facts are not in dispute in the present case and (2) the 534 falls decidedly on the major-overhaul side of the spectrum, neither should we.
Helix first takes issue with three aspects of the court of appeals’ decision: (1) the court’s reliance on certain subjective evidence of vessel status; (2) the court’s requirement that an out-of-navigation ship be “ ‘permanently out of the water’ with only a ‘remote possibility that [she] may one day sail again’ ” and (3) the court’s requirement that a ship be “totally deactivated or out of service for an extended period of time” before the claimant’s injury. 482 S.W.3d at 648, 650. And second, Helix argues that the undisputed evidence proves conclusively that the 534 was out of navigation for purposes of Gold’s employment. We take the issues in turn.
A. Objective Versus Subjective Evidence
The court of appeals stressed certain evidence in identifying an issue worthy of jury determination, including that “ ‘everybody’ referred to the Helix 534 as a vessel.” Lozman, 568 U.S. at 121, 133 S.Ct. 735). Gold likewise points to various communications between Helix and Gold that refer to Gold as an “able bodied seaman.” Gold argues these references prove that he was, in fact, a seaman under *437 the Jones Act. Helix counters that reliance on these labels is improper.
Reliance on these subjective labels presents two problems. First, as Helix suggests, the subjective labels of “vessel” and “able bodied seaman” are the type of evidence the Supreme Court cast aside in Chandris, 515 U.S. at 374, 115 S.Ct. 2172.
But there is a more fundamental problem with denying summary judgment based on these labels. Even if these labels were probative, they would be probative only of issues ancillary to the true dispute in this case—the effect of the 534’s conversion. Let us assume that a collective reference to the 534 as a “vessel” did support the court of appeals’ conclusion that the 534 was “designed to a practical degree to carrying people or things over water.” McKinley, 980 F.2d at 570 (“It is clear that major renovations can take a ship out of navigation, even though its use before and after the work will be the same.”).
Nor are Helix’s references to Gold as an “able-bodied seaman” probative of the dispositive issue. No doubt, Gold was hired to do a seaman’s work. But in order to be a “seaman” under the Jones Act, one must possess more than the right job description; one must belong to a vessel, and that vessel must be in navigation. Chandris, 515 U.S. at 368, 115 S.Ct. 2172. If, at the end of the day, Helix conclusively negated the “in-navigation” piece of the equation, the other variables become immaterial.
B. Permanency of the Ship’s Time Out of Water
In finding a lack of conclusive evidence, the court of appeals cited Stewart and delineated what it thought to be the dichotomy between minor repairs and major overhauls:
On the one hand, there is evidence that the Helix 534 was not merely at anchor, docked for loading or unloading, or berthed for minor repairs—when it would certainly remain a vessel. On the other hand, there is evidence that the Helix 534 was not permanently out of the water with only a remote possibility that [it] may one day sail again—when it would certainly not be a vessel.
Stewart and in effect tied in-navigation status to whether a ship is expected to sail again. Helix maintains that the court’s standard cannot comport with the well-established rule that major overhauls take ships out of navigation. After all, do not a vast majority of overhauls occur for the very purpose of returning a ship to seaworthiness?
We agree with Helix that the court of appeals misconstrued Stewart Court differentiated *438 between the practical and the theoretical:
A ship and its crew do not move in and out of Jones Act coverage depending on whether the ship is at anchor, docked for loading or unloading, or berthed for minor repairs, in the same way 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.
id. Instead of reading the passage in context—as an exaggeration to illustrate a conceptual distinction—the court of appeals treated the passage as enunciating the standard for judgment as a matter of law.
But, if mere expectation that a ship will return to sea was enough to create a fact question on in-navigation status, the precedential value of countless major-overhaul cases would crumble. As Helix points out, major overhauls often occur with the precise goal of returning a ship to sea. See, e.g., West, 361 U.S. at 118, 122, 80 S.Ct. 189).
C. Status of the Watercraft Prior to Injury
The court of appeals correctly outlined Helix’s burden of proof in this case: “Helix had to establish conclusively that the Helix 534 was not a vessel in navigation at the time of Gold’s injuries.” Id. Helix argues that this secondary requirement—that the ship be deactivated for a significant time prior to injury—is improper because it makes Jones Act coverage depend on the timing of the plaintiff’s injury, a factor that has no bearing on a vessel’s in-navigation status.
Helix is correct. Whether an overhaul takes a vessel out of navigation is not decided by looking at the timing of the plaintiff’s injury. The court of appeals cited no authority for its temporal prerequisite, and, indeed, none exists. For good reason: in an overhaul case, the in-navigation inquiry depends on the status of the ship and the extensiveness of the overhaul. Chandris, 515 U.S. at 374, 115 S.Ct. 2172. If the project is extensive enough to take a vessel out of navigation, it matters not whether the claimant suffered his or her injury early or late in the process.
Additionally, the court of appeals’ approach is in direct conflict with Id. at 349–50, 115 S.Ct. 2172.
But Id. at 375, 115 S.Ct. 2172.
The Court’s in-navigation discussion is telling; the analysis had nothing to do with the timing of Latsis’ injury. Nor did the id. at 374, 115 S.Ct. 2172.
D. Helix’s Entitlement to Summary Judgment
Finally, we reach the dispositive question: was the 534 a “vessel in navigation” during the course of its conversion? We hold as a matter of law that she was not.
1. The Summary-Judgment Evidence
First, as we must ask in any summary-judgment case, are there any relevant7 factual disputes? The answer here is no. Helix submitted an affidavit from a corporate representative, Jason Shropshire, that outlines the physical characteristics of the 534, the extent and cost of the repairs, and the 534’s ability (or lack thereof) to navigate during the course of Gold’s time onboard. The 534 was laid up at the time of its purchase. Helix purchased the 534 for $85,000,000 and orchestrated the watercraft’s conversion from a drill-ship to a well-intervention ship. That task was so extensive that it required the 534 be turned over to contractors (though Helix assisted in the more minor repairs) at the Jurong shipyard. The conversion lasted 20 months and cost $115,000,000. And finally, the conversion rendered the 534 unable to navigate on her own—she needed the assistance of tugs or tows to move on the water—during the entirety of Gold’s time onboard.
The deposition testimony of Gold does not call into question any of the objective characteristics of the 534 established above. In fact, Gold’s testimony reaffirms that the 534’s engines were inoperable and that the ship lacked the ability to self-propel during his time onboard. As a result, *440 Helix’s evidence pertaining to “the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done” went unrebutted. West, 361 U.S. at 122, 80 S.Ct. 189.
For comparative purposes, this case is unlike 543 U.S. at 496, 125 S.Ct. 1118.
Consequently, we hold that Helix conclusively established the above matters concerning the 534 and the extent of her conversion, leaving this Court—as a decider of questions of law—to apply the relevant admiralty framework and determine whether the 534’s conversion took her out of navigation.
2. Was the 534 a “Vessel In Navigation”
Our reading of the overhaul jurisprudence indicates that the 534’s conversion places her decidedly in the category of ships rendered out of navigation. Again, the yardstick for our analysis is “status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done.” West, 361 U.S. at 122, 80 S.Ct. 189. The distinction lies between routine, transitory repairs incurred in the ordinary course of a seagoing vessel and overhauls more properly characterized as land-based endeavors.
The Supreme Court and others have utilized various considerations for evaluating the extensiveness of any conversion: (a) the significance of the work performed; (b) the cost of conversion relative to the value of the ship; (c) whether contractors exercised control over the work; (d) the duration of the repairs; and (e) whether the repairs took the ship out of service. See, e.g., 543 U.S. at 496, 125 S.Ct. 1118.
The Supreme Court has not elaborated on how precisely these cogs fit together. Nor need we for the purposes of this case; all of the relevant considerations indicate that the 534 was not a vessel in navigation during Gold’s employment.
The work performed on the 534 was significant. Not only did the propulsive equipment and other components require repair or replacement, but the ship was purchased with the express goal of conversion. A change in the function of the ship—from a drill-ship to a well-intervention ship—required the addition of new equipment and removal of obsolete equipment. In terms of West, 361 U.S. at 122, 80 S.Ct. 189 (gauging the extent of repairs by the necessity to turn over a ship to the hands of contractors). The 20-month duration and $115,000,000 cost of the overhaul likewise demonstrate its extent.
Moreover, the 534 was out of service for the entire duration of the overhaul. In fact, the 534 was laid up, taken out of the water, at the time Helix purchased her. Helix immediately began converting the craft to a well-intervention ship, and the 534 did not enter service until after her transformation. The status of the 534 before and after the conversion illustrates that Helix did not incur this construction project in the ordinary course of putting the 534 to a seagoing use. Cf. Romero, 307 Fed.Appx. at 851 (finding a vessel briefly dry-docked for routine repairs to be in navigation).
These undisputed facts bear a close resemblance to Id. at 572.
The court of appeals, however, distinguished the 534’s conversion from Id.
Boiled down to its essence, the court observed that the 534’s conversion was less extensive than the one at issue in Chandris, 515 U.S. at 374, 115 S.Ct. 2172. Naturally then, the out-of-navigation cases that qualify for judgment as a matter of law will likewise vary in degree—no two overhauls will ever be identical. One can always conceive of a bigger, more extensive conversion than the one at hand, but that is no reason to withhold summary judgment in a case falling clearly on the major-overhaul side of the spectrum.
And in any event, the Supreme Court has sanctioned summary judgment in a case with a less extensive conversion than the one we face today. In McKinley (or any other case for that matter) as a prerequisite for summary judgment. Neither should we.
What’s more is that Chandris overhaul too could be considered a mere “upgrade,” yet the Supreme Court did not foreclose summary judgment.
Finally, and perhaps most importantly in light of id. (holding the ship out of navigation as a matter of law).
In summary, all of the Supreme Court’s indicators of the extensiveness of the overhaul reveal that the 534’s conversion warrants out-of-navigation treatment as a matter of law. So too does the 534’s conversion warrant out-of-navigation treatment under Stewart’s capability-of-transportation standard. All in all, because Gold must have had a substantial connection to a vessel in navigation, and because he had no vessel in navigation upon which to connect, Gold is not a Jones Act seaman in this lawsuit.
3. Response to the Dissent
The dissent concludes: “[T]he summary judgment evidence establishes the 534 was not practically capable of engaging in transportation at least from the time Gold began working on the ship in December 2012 until the time he last worked aboard the ship in April 2013”—a period of almost five months. Post at 448. That is precisely how we view the evidence: Helix proved conclusively that an overhaul rendered the 534 practically incapable of navigation during Gold’s entire time onboard. We therefore disagree not about whether certain evidence is conclusive, but about whether certain conclusive proof satisfies the threshold for summary judgment.
The dissent acknowledges that the overarching in-navigation question hinges on a ship’s practical ability to engage in maritime transportation. Post at 445. And the dissent recognizes that Helix proved such inability during Gold’s time onboard the 534. Yet the dissent would withhold summary judgment because conclusive proof for this length of time is not proof for a sufficiently “extended period[ ] of time” to remove a vessel from navigation as a matter of law. Post at 451 (quoting Stewart, 543 U.S. at 496, 125 S.Ct. 1118) (internal quotations omitted). Instead, the dissent suggests we must evaluate the ability of the 534 to self-navigate for some longer, yet undefined “relevant time period” extending before and after Gold’s time aboard the ship. Post at 445. To do otherwise, the dissent says, would constitute an improper “snapshot” analysis. Post at 448. We disagree on both counts.
First, by implying that nearly five months is not a sufficiently “extended period of time” the dissent’s approach effectively elevates the duration of the overhaul (and an inability to self-navigate) to the status of a precondition. Yet no such rule exists. The most the dissent can do is cite Chandris thus presents no independent, time-based hurdle to summary judgment.
Nor does Chandris Court have left open the possibility of summary judgment for a shorter, six-month repair?
To be sure, the duration of an overhaul (and a ship’s corresponding inability to navigate) is a helpful proxy—one of many considerations—for evaluating the overhaul’s extent. See Stewart, 543 U.S. at 496, 125 S.Ct. 1118, it matters not whether the ship’s inability to navigate lasted five months, or six months, or a few years. Not only do we have no precedential basis for saying otherwise, any limit we might impose would be inherently arbitrary.
Second, the dissent suggests that our choice to focus on the period of Gold’s onboard employment is inappropriate under the Supreme Court’s repudiation of a “snapshot” test. The dissent claims instead that we should evaluate some other, more expansive “relevant period” for the 534’s capacity for transportation. We would then find, the dissent says, that Helix failed to prove that the ship lacked propulsion during an extended period before and after Gold came onboard. Ultimately, the dissent’s approach misunderstands the “snapshot” dilemma.
Acknowledged first in Id. at 495–96, 125 S.Ct. 1118 (emphasis added and quotations and citations omitted).
Our analysis of Gold and the 534 presents no conceivable snapshot dilemma. As a matter of plain English, it is hard to imagine how observing the 534’s status throughout the entirety of Gold’s purported *444 Jones Act connection—almost 5 months—can fairly be considered a “snapshot.” And fortunately, there is no need to ponder the term’s meaning; the Supreme Court made explicit that the type of prohibited snapshot is one that focuses on the “instant of injury,” Stewart, 543 U.S. at 495–96, 125 S.Ct. 1118. When courts look with tunnel vision to the day of the injury, they risk mischaracterizing the status of an otherwise seaworthy ship. Our analysis does no such thing; we evaluate the extensiveness of the renovation as a whole8 and the status of the 534 during Gold’s entire time onboard, not just on the day (or days) of his injury. We do not cherry-pick a point in time that does not adequately characterize the true status of the ship; the 534 remained stagnant—incapable of self-transit—throughout the entire time Gold claims Jones Act coverage.
Snapshots aside, no case supports the dissent’s contention that we must require conclusive proof of incapacity for transportation throughout some relevant time before and after the claimant’s connection to the ship. Instead, Id. at 373, 115 S.Ct. 2172. We conclude (and the dissent recognizes) simply that the 534 was practically capable of maritime transportation for no time during which Gold could claim a Jones Act connection to the ship. That proof meets the threshold for summary judgment.
Admiralty law is not always a model of clarity—the Jones Act is no exception. Yet we can nevertheless discern one rule of law with confidence: major overhauls that render watercraft practically incapable of transportation are sufficient to remove those crafts from “vessel in navigation” status. As the Supreme Court has said time and again, analyzing that issue will often involve fact questions worthy of jury consideration. But here, absent any such disputes about relevant facts, and faced with conclusive proof above and beyond the threshold for summary judgment, we hold as a matter of law that the 534 was not in navigation and therefore that the Jones Act did not apply during the course of Gold’s employment.
Because the court of appeals held otherwise, we reverse, and we reinstate the trial court’s summary judgment in favor of Helix.
Justice Boyd joined.
Justice Boyd, dissenting.
When reviewing a grant of summary judgment, we consider the evidence in the light most favorable to the nonmovant—in this case, Kelvin Gold—and indulge every reasonable inference and resolve any doubt against the movant—in this case, Helix Well Ops, Inc., Helix Energy Solutions Group, Inc., and Helix Offshore International, *445 Inc. (collectively, Helix). Chandris, Inc. v. Latsis, 515 U.S. 347, 372–73, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995).
Because Helix failed to meet its burden under the summary judgment standard to prove that the HELIX 534 (the 534) was out of navigation for time periods relevant to dates on which Gold claims to have been injured, I would affirm the judgment of the court of appeals.
I. Summary Judgment Evidence
The Court reaches its decision based on both summary judgment evidence and, necessarily, inferences from that evidence. The evidence includes deposition testimony from Kelvin Gold and Jason Shropshire, the Director of Contracts and Risk for Helix Energy Solutions Group, Inc.; an affidavit from Shropshire; pictures of the 534 while it was being repaired and converted; pictures of the ship before and after its repair and conversion; various Helix documents referencing Gold; and a printout from Helix’s website discussing the 534. For the most part, I agree with the Court’s view of what the summary judgment evidence establishes. To review, those matters are set out below.
The 534 was an older drill ship when Helix purchased it for $85 million. It had engine problems and needed major repairs that included removing and replacing old equipment. The ship was towed to the Jurong shipyard in August 2012, where Helix placed it under the shipyard’s control for repairs and conversion to a well intervention ship. The work a well intervention ship does and is equipped to do is different from that of a drill ship. The repair and conversion work in the shipyard was supervised by both the shipyard and a Helix representative who was responsible for capital expenditures.
Helix hired crew personnel, including Gold, while the repairs and conversion were ongoing so they could begin familiarizing themselves with the 534. Helix wanted the ship to be ready to work once the repairs and conversion were completed.
Gold was employed by Helix from November 2012 through November 2013. The only ship he worked on while employed by Helix was the 534. He began working on the ship in early December 2012, and worked 28-day “hitches” in December and February, as well as part of a hitch in April. Gold testified that when he worked on the 534, it did not have operable engines, lacked ability for self-propulsion, and was always moored dockside in the *446 shipyard. His duties while working on the ship included familiarizing himself with the ship and equipment aboard the ship, together with minor maintenance and repair work. The 534 did not serve as either a drill or well intervention ship during the time Gold worked on it in December, February, and early April.
Helix underestimated the extent of necessary repairs and the difficulty of the conversion, as well as the time necessary to accomplish them. Difficulties in obtaining parts, such as engine equipment, also caused the repairs and conversion to take longer and cost more than originally anticipated. The ship was dry-towed to the Galveston shipyard in September 2013. Repair and conversion work “topside” and on the engines continued in Galveston until April 2014, when the work was completed. When the 534 left the Galveston shipyard, it began working as a well intervention ship. The total repair and conversion cost amounted to approximately $115 million.
II. “In Navigation” is a Matter of Degree
In Id. at 373, 115 S.Ct. 2172.
The facts proved by summary judgment evidence and set out above establish that the 534 was not practically capable of transportation from the time Gold began working on it in December 2012, when he reported his first injury, until early April 2013, when he reported that he aggravated his injury, that is, he was injured a second time, and stopped working on the 534. However, just how long it was not practically capable of transportation before he began work and how long it remained that way after the date he reported his second injury was not conclusively established, despite the Court’s position otherwise.
In response to Helix’s motion for summary judgment, Gold, in part, referenced Shropshire’s deposition testimony. Shropshire testified that the 534 was “not a vessel in navigation or commerce. It was under repair, under conversion.” The first statement is the type of subjective, conclusory opinion that the Supreme Court cautioned courts about considering in id. at 741 (lack of self-propulsion is not dispositive but may be a relevant physical characteristic). But he did not specify at what point the components were removed or whether they were lacking to begin with, whether the 534 was without them for the entire time it was in the Jurong shipyard and while Gold was working on the ship, whether they remained lacking after Gold reported his second injury and stopped working on the ship in April 2013, and if *447 so, for how long. He testified that he did not know if the 534 was physically incapable of sailing for the entire time between December 2012 and April 2013. In response to specific questions about when the engines were taken off and when they were put back on, the best Shropshire could do was state, “I believe this was done very early on.” He did not know when the in-line propulsion equipment was removed or replaced.
The Court bases its conclusion that the 534 was not in navigation either at the time Gold reported he was injured in December 2012 (the first injury) or in April 2013 (the second injury) on evidence that (1) the propulsive equipment and other components required repair or replacement; (2) the ship was purchased with the express goal of conversion; (3) the 534’s function changed; (4) new equipment was added and obsolete equipment was removed; (5) the conversion work took place at the hands of a contractor; (6) the duration of the project was twenty months and cost $115 million; (7) the 534 was out of service for the entire duration of the overhaul; and (8) the 534’s conversion rendered the ship practically incapable of transportation for months at a time. Ante at 442.
Items (1) through (5) are factual matters not in dispute. But none of them address the determinative question: was the 534 practically incapable of navigation for some relevant period of time as of each of the two different dates on which Gold claimed to have been injured.
Item (6) references the extensive time and cost to accomplish the conversion, but those facts cover the entire time of repair and conversion and are not limited to a relevant time period surrounding Gold’s injury in December and its exacerbation in April. Item (7) is not conclusively established by the evidence, but even if it were, being “out of service” does not equate to being out of navigation. There are many reasons a vessel could be out of service, such as the owner let the crew take extended time off due to a lack of business. The Court would be correct as to item (8) if it said “practically out of service” for months at a time; but being out of service does not equate to being out of navigation, as noted in regard to item (7), and as the Court recognizes in its opinion. Ante at 434 (citing Chandris, 515 U.S. at 373–74, 115 S.Ct. 2172).
As to all of these matters referenced by the Court, it must be remembered that although in a trial a factfinder might infer from them that the 534 was not in navigation for the time periods relevant to Gold’s injury dates, this was a summary judgment proceeding. That being so, the inferences flow the other way—against Helix’s position that the ship was out of navigation.
Reviewing the summary judgment record in a chronological manner, the first stop is the Court’s statement that the 534 “was laid up, taken out of the water, at the time Helix purchased her.” Ante at 441. All the evidence as to the ship’s status when it was purchased came from Shropshire, who offered the conclusion that it was not in navigation and he “believe[d] it was laid up.” But he provided no explanation for what he meant by “laid up,” and there is no other summary judgment evidence about what the term means, whether it was out of water, or what the 534’s status was before Helix purchased it. Nor did Shropshire testify about facts underlying his “belief,” how long he believed the ship had been “laid up,” or even whether he believed it had been laid up for lack of work, or because its crew had been laid off, or for repairs or refurbishing of some nature. The 534 could have been laid up for any number of reasons, only some of which would have made it physically and *448 practically incapable of transportation. Properly applied in this summary judgment proceeding, the inferences are that before the December date on which Gold claims to have been injured the 534 was laid up or inactive for reasons other than its being physically incapable of sailing and transporting people or materials.
As to the time after Gold no longer worked on the 534 because of his second claimed injury, there is no factual evidence whatsoever as to the ship’s condition. Gold’s testimony is as close as the factual summary judgment evidence gets to that time period. But he unquestionably had no knowledge of the 534’s physical condition after he stopped working, left the ship, and returned to his home in the United States. And Shropshire did not address the condition of the 534 after the date on which Gold reported that his second injury occurred, except to say the ship was piggybacked to Galveston several months later, in September 2013, where it stayed until it began voyaging in the spring of 2014. The fact that the 534 was “piggybacked” from Singapore to Galveston in September might support an inference by a factfinder in a trial that the 534 was not practically capable of sailing when that piggyback transfer occurred. But the same inferences cannot be drawn in support of the summary judgment motion. Its being piggybacked is not evidence that it was physically incapable of sailing and transporting on its own. Again, properly applied in the summary judgment context, inferences must be drawn against the conclusion that the 534 was out of navigation after Gold last worked; that is, the inference that must be applied is that it became physically capable of navigation shortly after Gold last worked on it in April, regardless of whether it actually sailed or was in navigation. Similarly, as to the time the repairs and conversion were being completed in the Galveston shipyard, Shropshire’s testimony that he “believed” some work on the topside had to be finished and that there were some generator issues might support an inference by a factfinder in a trial that the 534 was physically incapable of sailing during that time. But that inference cannot be drawn in support of a summary judgment.
To reiterate, inferences that might be made in favor of the position of a movant for summary judgment do not substitute for evidence, nor will they support a summary judgment. To the contrary, all inferences must be drawn against the position argued for by a movant for summary judgment. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012).
All that having been said, I agree with Helix that the summary judgment evidence establishes the 534 was not practically capable of engaging in transportation from the time Gold began working on the ship in December 2012 until the time he last worked aboard it in April 2013. Gold’s testimony was clear about that. However, determination of in navigation vessel status is not made by considering only what a watercraft was doing or what was happening on it at a particular day or time by means of a “snapshot” look at the circumstances. Chandris, 515 U.S. at 373–74, 115 S.Ct. 2172). The Court recognizes this and says that its view of the evidence does not present a “snapshot” problem. Ante at 443. I disagree.
Neither seaman status nor vessel in navigation status can be evaluated by “inspecting only the situation as it exists at the instant of injury” because “a more enduring relationship is contemplated in the jurisprudence.” Chandris, 515 U.S. at 373, 115 S.Ct. 2172.
Given that guidance, the question in this case boils down to evidence about how long before the date of Gold’s December injury the 534 was not practically capable of navigation, if it was not; and how long after the date of his April injury the 534 was not practically capable of navigation, if it was not. The evidence of neither is conclusive. To be more pointed, it is nonexistent, even without inferences being drawn against Helix as required in summary judgment proceedings. Shropshire’s testimony is closest to being some evidence, but the best he could testify to regarding when the engines were removed from the 534 was “early on.” That could have meant in December, just before Gold started work. Shropshire did not elaborate, either in his deposition or in his affidavit in support of Helix’s motion for summary judgment. Neither did he testify about the condition of the 534 during the time immediately after the date on which Gold claims to have been injured in April 2013. So, if a reasonable period of time extends beyond more than a few days before Gold’s first claimed injury in December or a few days after his second claimed injury in April, then the evidence simply was not conclusive that the 534 was out of navigation within the meaning of the Jones Act as to both the December injury and the April injury.
So, what is a “relevant” time frame for purposes of the question before us? Even though the Supreme Court has not articulated a specific time frame to be applied in determining if a ship is out of navigation, it has noted that six months of repair work “seems to be a relatively short period of time for important repairs on oceangoing vessels.” 515 U.S. at 374–75, 115 S.Ct. 2172.
In Id. at 374–75, 115 S.Ct. 2172. *450 The same can be said here: while Helix might have been able to prove the status of the 534 before Gold’s claimed December injury date and after his claimed April injury date, it did not do so. Which is not to say Helix could not do so if the case were to be remanded to the trial court.
The Court relies on Id.
The Supreme Court affirmed the trial court’s denial of recovery, holding that the Mary Austin was not in maritime service because it was undergoing major repairs and complete renovation. Id.
Here, there is no evidence of how long the 534 had been “laid up”—whatever Shropshire meant by that characterization—when Helix purchased it. There certainly was not evidence the 534 had been out of navigation for several years, or even months. Nor was there evidence, for example, that its water system had been drained before Helix purchased it.
The same is true for Stewart, 543 U.S. at 496, 125 S.Ct. 1118 (the proper test is simply whether a watercraft’s capability to be used as a means of transportation is a practical possibility as opposed to a theoretical one).
In contrast to McKinley, 980 F.2d at 570–71.
Finally, in Id.
The evidence presented in this case is similar to that in Butler, meaning that the evidence only establishes that the 534 was inoperable for some months. It fails to conclusively establish that the 534 was practically incapable of transportation for the days and weeks before the December date on which Gold claims to have been injured, or the days and weeks after the date on which he claims to have been injured in April.
The Court states that focusing on a time element elevates the duration of the repairs and conversion to the “status of a precondition.” Ante at 442. I disagree. There certainly is not a rule requiring a particular duration of repair or conversion work before a court may grant summary judgment on the vessel in navigation issue. But the focus must be on whether a ship’s capability to be used as a means of transportation “is a practical possibility or merely a theoretical one,” over an “extended period[ ] of time.” Chandris, 515 U.S. at 373–74, 115 S.Ct. 2172. Here, the evidence regarding the ship’s status or practical capability to transport persons or things before December and after early April simply is not such as to support summary judgment when properly considered under summary judgment standards and relevant Supreme Court authority. It may be that Helix could yet provide such evidence. But under the record before us, it has not.
I agree with the court of appeals that the trial court erred in granting summary judgment for Helix. I would affirm its judgment.
Dry-towing involves placing a ship aboard a second ship and piggybacking the ship across the water.
The Supreme Court did not make explicit in West’s procedural maze).
We need not hypothesize about whether Stewart makes it a necessary (as opposed to merely a sufficient) condition to out-of-navigation status that an overhaul render a ship incapable of transportation on her own. As discussed more fully below, the 534’s overhaul did, in fact, render her incapable of self-transportation during the entirety of Gold’s onboard employment.
See, e.g., West, 361 U.S. at 122, 80 S.Ct. 189 (finding an out-of-service ship subjected to a major overhaul out of navigation as a matter of law).
See, e.g., Saunders v. Gulf Coast Fabrication, Inc., No. 1:02CV42WJG-JMR, 2006 WL 1766722, at *4 (S.D. Miss. Jun. 23, 2006) (holding a vessel was not in navigation when uncontested affidavits established that it was “incomplete, under construction and sitting ashore supported by concrete and wood supports”).
For instance, the Court noted also that “[a] ship long lodged in drydock or shipyard can again be put to sea, no less than one permanently moored to the shore or ocean floor can be cut loose and made to sail.” Stewart, 543 U.S. at 498, 125 S.Ct. 1118.
Gold’s evidence concerning the subjective labels of “vessel” and “able bodied seaman,” discussed previously, supra Section III.A, is irrelevant to the ultimate issue: whether the 534’s overhaul took her out of navigation.
Of course, the remainder of the project is material to our analysis—the 534’s entire 20-month overhaul informs our evaluation of the conversion’s extensiveness and solidifies the conclusion that the project is among those “complete overhaul[s]” worthy of out-of-navigation treatment. See West, 361 U.S. at 122, 80 S.Ct. 189.