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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-40022
JOHN GLEN PITRE,
Plaintiff-Appellant,
Cross-Appellee,
VERSUS
MESA OPERATING LIMITED PARTNERSHIP,
Defendant-Appellee,
Cross-Appellant,
PRODUCTION MANAGEMENT CORPORATION
and WAVELAND MARINE SERVICE,
Defendants-Appellees.
******************************************
No. 94-40305
JOHN GLEN PITRE,
Plaintiff-Appellee,
VERSUS
MESA OPERATING LIMITED PARTNERSHIP, ET AL.,
Defendants,
MESA OPERATING LIMITED PARTNERSHIP
and WAVELAND MARINE SERVICE,
Defendants-Appellants,
PRODUCTION MANAGEMENT CORPORATION, ET AL.,
Defendants-Appellees.

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* Local Rule 47.5.1 provides:
"The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and
burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1 There are four defendants. Oilfield Production
Contractors, Inc. (Oilfield Production) employed the plaintiff who
was, at the time of the accident, serving as a borrowed employee
for the second defendant, Mesa. The plaintiff also sued Waveland
Marine Services, Inc. (Waveland), the owner of the vessel, and
Production Management Corporation, Inc. (Production Management)
whose employees assisted Mesa employees in loading the cargo.
2
Appeal from the United States District Court
For the Western District of Louisiana
(92-CV-1256)
(May 17, 1995)
Before WISDOM, GARZA, REYNALDO G., and GARWOOD, Circuit Judges.
WISDOM, Circuit Judge:*
The plaintiff filed this personal injury suit against
four defendants, including the owner of a vessel, alleging
admiralty jurisdiction under 28 U.S.C. § 1333. After some
decisions regarding the merits of the case, the district court
determined that it lacked jurisdiction. We AFFIRM.
I.
On July 3, 1991, while working as a borrowed employee for
the defendant, Mesa Operating Limited Partnership (Mesa),1 the
plaintiff, John Pitre, allegedly sustained injuries when he slipped
on empty nitrogen bottles located in a "cargo basket" on the Mesa
dock in IntraCoastal City. The cargo basket filled with the empty

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2 The plaintiff does not appeal this decision.
3
nitrogen bottles had been transported from a Mesa platform offshore
to Intracoastal City by the M/V Arlington, a vessel owned by the
defendant, Waveland Marine Services, Inc. (Waveland). The bottles
were loaded into the cargo basket by employees of Mesa and
Production Management Corporation, another defendant. The cargo
basket was unloaded by Mesa's land crew with the aid of a land-
based crane. The crew of the M/V Arlington was involved with
neither the loading nor the unloading of the cargo basket.
Approximately seven hours after the cargo was unloaded from the
vessel, the plaintiff, while attempting to unload the empty
nitrogen bottles on his own, fell and allegedly sustained an injury
to his back.
The plaintiff filed suit in the Western District of
Louisiana seeking damages for his personal injuries. The stated
basis for jurisdiction was admiralty jurisdiction under 28 U.S.C.
§ 1333. Mesa filed a cross-claim against Waveland seeking
indemnity and a third party claim against Oilfield Production also
seeking indemnity.
The district court granted Mesa's summary judgment motion
which sought dismissal of the plaintiff's complaint because the
plaintiff was a borrowed employee and, as such, Mesa was immune
from the plaintiff's suit.2 The district court also granted
Waveland's summary judgment motions which sought dismissal of both
the plaintiff's complaint and Mesa's cross-claim for indemnity.
Then, on March 1, 1994, the district court entered an order

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3 This Court can hear an appeal of an interlocutory
decision in an admiralty case pursuant to 28 U.S.C. §1292.
4 This is a consolidated appeal which includes the
plaintiff and Mesa's appeals of the district court's summary
judgment decisions in favor of Waveland (civil action no. 94-40022)
and the appeals of Mesa and Waveland to the district court's
determination that it lacked subject matter jurisdiction (civil
action no. 94-40305).
5 DeCell and Associates v. FDIC, 36 F.3d 464 (5th Cir.
1994).
4
dismissing the entire case based on a determination that the court
lacked maritime or admiralty jurisdiction under 28 U.S.C. §1333.
Before the order regarding maritime jurisdiction, however, both the
plaintiff and Mesa appealed the district court's decision to grant
the summary judgment motions of Waveland on the plaintiff's
complaint and Mesa's cross-claim.3 Currently, Waveland and Mesa
appeal the district court's final order dismissing the entire case
for lack of subject matter jurisdiction.4
II.
We consider first whether the district court correctly
determined that it lacked subject matter jurisdiction. Both Mesa
and Waveland contend that there is admiralty jurisdiction over the
case under 28 U.S.C. § 1333 and the Admiralty Extension Act.
Subject matter jurisdiction is a question of law that we review on
a de novo basis.5
28 U.S.C. §1333 carries out Article III's grant of
admiralty jurisdiction:
The district court shall have original
jurisdiction exclusive of the courts of the
States, of:
(1) Any civil case of admiralty or maritime

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6 Christoff v. Bergeron Industries, Inc., 748 F.2d
297, 299 (5th Cir. 1984); see also Miller v. Griffin-Alexander
Drilling Co., 873 F.2d 809, 810-11 (5th Cir. 1989); Richendollar v.
Diamond M Drilling Co., Inc., 784 F.2d 580, 583 (5th Cir. 1986),
aff'd in part and rev'd in part, 819 F.2d 124 (5th Cir. 1987) (en
banc).
7 409 U.S. 249 (1972).
8 Christoff, 748 F.2d at 299. (citations omitted).
For a discussion of admiralty jurisdiction and how it developed
over time, see Warren J. Marwedel, Admiralty Jurisdiction and
Recreational Craft Personal Injury Issues, 68 Tulane. L. Rev. 423
(1994).
5
jurisdiction, saving to suitors in all cases all other
remedies to which they are otherwise entitled. . . .
Traditionally, a determination of admiralty jurisdiction in
personal injury cases rested solely on geography. That is, a case
was considered within the jurisdiction granted by §1333 only "if
the tort occurred on navigable waters".6 The Supreme Court,
however, altered this pure locality test in 1972 in its decision in
Executive Jet Aviation v. Cleveland where it set up a two-prong
test to determine whether a personal injury case was within
admiralty jurisdiction.7 The Court retained the situs test used
previously but also required that the "wrong bear a significant
relationship to traditional maritime activity".8 Thus, the current
test requires an examination of both the situs of the tort and its
relationship to maritime commerce.
In this case, the plaintiff's injuries were sustained on
the Mesa dock and not on navigable waters. Thus, the plaintiff's
claims against Mesa, Oilfield Production, and Production Management
are not within admiralty jurisdiction under §1333. The plaintiff's
case against Waveland, however, may fall within the jurisdiction

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9 46 U.S.C. §740. The Admiralty Extension Act applies
only to damage caused by a vessel on navigable waters. Thus, it
cannot extend §1333 to include the allegations that the negligence
of Mesa, Oilfield Production, and Production Management contributed
to the plaintiff's injuries. Both Mesa and Waveland, however,
argue that jurisdiction over the non-vessel defendants exists under
28 U.S.C. §1367 since the entire cases arises out of the same
nucleus of operative facts. This argument, of course, assumes that
the plaintiff's claim against the vessel falls within the
jurisdiction granted by §1333.
10 Margin v. Sea-Land Services, Inc., 812 F.2d 973 (5th
Cir. 1987). Mesa and Waveland argue strongly that their contention
that there is admiralty jurisdiction over the case against Waveland
is supported by an early Supreme Court case, Gutierrez v. Waterman
Steamship Corp., 373 U.S. 206 (1963). In Gutierrez, the Supreme
6
granted by §1333 in light of the Admiralty Extension Act which
provides:
The admiralty and maritime jurisdiction of the
United States shall extend to and include all
cases of damage or injury, to persons or
property, caused by a vessel on navigable
water, notwithstanding that such damage or
injury may be done or consummated on land.9
This Court has interpreted the Admiralty Extension Act,
and the Supreme Court cases following the Act, as requiring that
the alleged negligence of the vessel owner or crew contribute
directly to the plaintiff's injuries before admiralty jurisdiction
will be found. This Court has held that:
. . . to invoke jurisdiction under the
Admiralty Extension Act, a plaintiff injured
on shore must allege that the injury was
caused by a defective appurtenance of a ship
on navigable waters. It is not enough that
the plaintiff alleges he was engaged in
stevedoring activities and the accident would
not have occurred but for the presence of the
ship alongside the dock. The vessel or its
defective appurtenances must be the proximate
cause of the accident. This Court has refused
to extend the reach of the Act absent
proximate cause.10

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Court held that "a longshoremen suing for injuries sustained when
he slipped on beans that had become scattered about a dock during
their unloading from defective cargo containers properly raised a
claim within maritime jurisdiction under the Act." Margin, 812
F.2d at 975. That holding, however, has since been limited by the
Supreme Court's more restrictive view of the Admiralty Extension
Act in the later case of Victory Carriers, Inc. v. Law, 404 U.S.
202 (1971) where the Supreme Court stated "the decision in
Gutierrez turned, not on the function the stevedore was performing
at the time of his injury [unloading a ship] but, rather, upon the
fact that his injury was caused by the appurtenance of a ship . .
. ." Victory Carriers, 404 U.S. at 210-11.
11 Plaintiff's first amended complaint, Waveland's
Record Excerpts, item 7 at 1-2.
7
The issue here, then, is whether an appurtenance of the M/V
Arlington, or the M/V Arlington itself was the proximate cause of
the plaintiff's injuries.
The plaintiff alleges that the nitrogen bottles were
improperly loaded into the cargo basket by employees of Mesa and
Production Management. Specifically, he claims that the bottles
should have been secured in some manner, rather than just placed in
the cargo basket. As for the plaintiff's allegations against
Waveland, the vessel owner, the plaintiff contended in his
complaint that his accident was caused "in whole or in part" by the
negligence of Waveland's crew "in failing to properly transport the
nitrogen bottles to allow their safe offloading and handling at the
dock and/or in failing to insure that materials and equipment
transported onto the vessel were properly loaded and secured".11
In other words, the plaintiff's complaint against Waveland is that
the crew did not remedy a dangerous loading technique used by Mesa,
not that the basket was defective.

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12 Margin, 812 F.2d at 975-77.
8
Even assuming an allegation that the basket was
defective, the cargo basket is not an appurtenance to the M/V
Arlington. Waveland does not own the baskets and played no part in
the decision to use the basket to transport nitrogen bottles.
Also, as stated earlier, the bottles were loaded and unloaded by
employees of Mesa and Production Management, no member of the
Arlington crew participated. Thus, the baskets and their contents
were simply cargo carried by the Arlington but handled and managed
exclusively by Mesa and its sub-contractor.
Since we agree with the district court that the baskets
were not a defective appurtenance to the vessel which proximately
caused the plaintiff's injuries, it is unnecessary to consider the
second prong of the Executive Jet test, the relationship of the
tort to maritime commerce.12 There is no admiralty jurisdiction in
this case.
Further, we note that the district court's order
dismissing the case for lack of jurisdiction effectively vacated
the district court's previous orders regarding the merits of the
plaintiff's complaint or Mesa's cross-claim. Thus, neither Mesa
nor Waveland can rely on the summary judgments in their favor since
the district court lacked the constitutional power to decide the
merits of the case. Likewise, those judgments cannot be appealed
to this Court. Accordingly, we AFFIRM the district court's
decision to dismiss the case for lack of jurisdiction.

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