258 So. 3d 159
La. Ct. App.2018Background
- Deepwater Horizon spill led BP to hire response contractors; ORM subcontracted CTEH to provide cleanup personnel, including safety observer Nathanial Smith.
- On October 7, 2010 Smith was injured aboard the vessel Cristo when the Boomer II rear-ended the Cristo; Smith sued Lawson; Lawson pursued indemnity from ORM; ORM sought contractual indemnity and insurance from CTEH.
- Smith settled and dismissed all claims; remaining dispute is between ORM and CTEH over indemnity obligations tied to whether Smith is an LHWCA employee or a Jones Act seaman.
- CTEH moved for summary judgment asserting Smith is covered by the LHWCA (not the Jones Act) and the indemnity agreement is void under federal law.
- ORM opposed, submitting CEO affidavit and timesheets asserting (1) federal incident command gave government control over vessels (relevant to whether Smith worked on a fleet under common control) and (2) Smith spent >30% of his time aboard vessels, supporting seaman status.
- The trial court granted summary judgment for CTEH; the appellate court reversed, finding genuine issues of material fact as to control and temporal connection to vessels.
Issues
| Issue | Plaintiff's Argument (ORM) | Defendant's Argument (CTEH) | Held |
|---|---|---|---|
| Whether Smith is a Jones Act seaman or an LHWCA employee | Smith worked aboard vessels ~19 days (>30% by ORM's calc); duties exposed him to perils of the sea; vessels were effectively under federal/common control | Smith served on individual vessels under daily control of vessel operators; time aboard falls below ~30% guideline; thus LHWCA applies | Reversed trial court: genuine issues of material fact exist on control and temporal connection; summary judgment inappropriate |
| Who exercised control for response operations (affects fleet/common control analysis) | Incident Command System and federal on‑scene coordinators exercised ultimate control over vessels, creating common control for seaman analysis | Vessel-level operators (e.g., Cristo) controlled assignments and operations for the day | Genuine factual dispute exists; appellate court found evidence supporting both positions and remanded |
| Method to calculate time aboard vessels for seaman-status | Use all vessel time across assignments (ORM/Smith timesheets show ~39% aboard vessels) | Calculate time only on vessels under common control; if only Cristo counted, time aboard is minimal (~6%) | Court held the appropriate calculation depends on resolution of control issue; cannot be decided on summary judgment |
| Admissibility of ORM CEO affidavit | Affidavit of CEO Whipple based on personal knowledge of ORM business and incident command operations is admissible | CTEH objected to lack of personal knowledge; trial court received affidavit subject to objection | Appellate court found affidavit admissible and created a genuine fact issue; trial court’s objection handling not reversible error here |
Key Cases Cited
- Chandris, Inc. v. Latsis, 515 U.S. 347 (two‑part test for Jones Act seaman status: contribution to vessel function and substantial connection in duration and nature)
- Wisner v. Professional Divers of New Orleans, 731 So.2d 200 (seaman status not defeated solely by lack of common ownership when exposed to perils of the sea)
- Orgeron v. Avondale Shipyards, Inc., 561 So.2d 38 (LHWCA and Jones Act provide mutually exclusive remedies; factual disputes govern statute applicability)
- Waller v. American Seafoods Co., 700 So.2d 1306 (seaman-status determination is mixed law/fact; courts may decide only when temporal connection is clearly inadequate)