Jеthro BARRETT, Plaintiff, v. CHEVRON, U.S.A., INC., E.B.B. Co., Inc., and Lift Barge, Inc., et al., Defendants-Appellees, v. MARYLAND CASUALTY CO., Intervenor-Appellant.
No. 82-3693
United States Court of Appeals, Fifth Circuit.
Feb. 4, 1985
Rehearing En Banc Granted April 9, 1985.
129
IV.
For the foregoing reasons, we grant the Commissioner‘s motion for leave to file out of time and award him costs of $92.80, doubled to $185.60, and damages (attorney‘s fees) of $1,374.13.
Motion GRANTED. Double costs and damages, totalling $1,559.73, AWARDED.
E. Grady Jolly, Circuit Judge, dissented and filed opinion.
Gee, Circuit Judge, specially concurred and filed opinion.
from the district court. Accordingly, we decide thе fee issue ourselves.
Thomas J. Grace, Charles V. Guilbault, New Orleans, La., for Life Barge, et al.
Lloyd C. Melancon, New Orleans, La., for Chevron U.S.A.
Before GEE, WILLIAMS and JOLLY, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
In this appeal we must determine whether the injured plaintiff was a seaman. This action was brought by Jethro Barrett, a welder‘s helper, who was injured in the course of his employment while participating in the repair of an offshore structure. With the exception of the intervenor-insurer, Maryland Casualty Co., in its capacity оf compensation insurer, all parties have reached a settlement. The only remaining question is whether Maryland is entitled to reimbursement against the settlement proceeds for payments made to Barrett. Under the settlement agreement, Maryland waived any right to reimbursement in its capacity as Jones Act insurer. We affirm the holding of the district court that Barrett was a Jones Act seaman, and that Maryland has thereby waived any right of reimbursement pursuant to the settlement agreement.
I. FACTS
In 1979, Tilden J. Elliott Contractor, Inc. (“Tilden“) contracted with Chevron, U.S.A., Inc. to provide welding crews for maintenance and repair work to offshore platforms and other structures in Chevron‘s Bay Marchand Field located in the Gulf of Mexico off the coast of Louisiana. Plaintiff, Barrett, was an employee of Tilden who performed services as a welder‘s helper under the contract between Tilden and Chevron. On one particular assignment, Tilden was to perform welding services on a caisson located approximately ten to twelve miles оffshore. The caisson was a small fixed structure, measuring only ten by fifteen feet, comprised basically of one producing well which was tied into the underwater pipeline system in the field. Barrett was a member of the Tilden welding crew assigned to perform welding operations on the caisson.1
Because of the small size of the caisson, a jack-up barge, the D/B FALCON, was positioned alongside the caisson in order to provide space on which the necessary equipment and materials for the Tilden crew сould be placed and to provide a work area for the crew. The D/B FALCON was the only barge assigned to the Chevron Bay Marchand Field. The vessel would remain stationary at one job site until an assignment was completed, and then move on to the next site.
The Tilden crew was assigned to the caisson to remove old parts and to fabricate and attach new parts. The only work performed on the caisson itself was the cutting of the old pipe from the caisson and replacing it with the new pipe. The old parts, after removal, were brought by one of the D/B FALCON‘S two cranes back to the D/B FALCON where they were measured and new pipes were fabricated. Barrett spent seventy to eighty percent of his time on the D/B FALCON assisting in the measuring and fabricating of new pipe sections.
During the fourteen day offshore hitch, the Tilden crews were provided living quarters on a large fixed platform called Mike‘s Structure. Each morning, the crew boat M/V LADY JUNE, owned and operated by E.B.B. Company, transported the crew members from Mike‘s Structure to their respective work sites. Crew members ate lunch at the job site and at the end of each day‘s shift, were transported back to Mike‘s Structure to eat and sleep.
On the morning of May 23, 1979, Barrett, along with the rest of the Tilden crew, was transported by the crew boat M/V LADY JUNE to the caisson under repair. Crew members were transferred from the M/V
Barrett brought a personal injury action originally against Chevron, owner of the production platform, E.B.B. Company, Inc., owner and operator of the M/V LADY JUNE, and Lift Barge, Inc., owner and operator of the D/B FALCON. Barrett alleged that the D/B FALCON crane operator, an employee of Lift Barge, caused the personnel basket to strike the deck of the M/V LADY JUNE with greater than usual force resulting in injury to Barrett. Barrett claimed that his injury was subsequently aggravated by lifting the pipe on board the D/B FALCON. Barrett and his wife2 then filed a second suit for the aggravation of the injury against Tilden and Lift Barge. Plaintiffs sought damages under the Jones Act and general maritime law for negligence and unseaworthiness, and maintenance and cure. The two actions were eventually consolidated.
Over a three-year period following Barrett‘s injury, Maryland Casualty Company made payments to Barrett totalling $50,000. These payments were made pursuant to an insurance policy between Maryland and Tilden, Barrett‘s employer. Maryland intervened in the consolidated action as the insurer of Tilden, seeking reimbursement of what Maryland characterized as compensation and medical benefits paid to on or behalf of Barrett. With the еxception of Maryland‘s intervention for reimbursement of compensation, all claims were settled in the sum of $150,000. Under the terms of the settlement, Maryland waived any right to reimbursement in its capacity as Jones Act insurer, reserving only the right to recovery as insurer of claims under the Longshoremen‘s and Harbor Workers’ Compensation Act,
Maryland maintains that the payments to Barrett were intended as longshoremаn‘s compensation, and that Maryland was entitled to reimbursement for these benefits against Barrett‘s settlement proceeds. In a non-jury trial, the court found that Barrett was a Jones Act seaman and that Maryland was not entitled to reimbursement of the benefits it had paid him.3 Maryland‘s appeal followed.
Barrett‘s Seaman Status.
An injured person claiming the benefits of the Jones Act,
We first consider whether Barrett had a more or less permanent connection with a vessel in navigation. Maryland contends that Barrett‘s primary connection was with the caisson rather than with the jack-up barge D/B FALCON. The caisson on which Barrett was carrying out repairs at the time of his injury was a fixed structure. Fixed platforms are treated as artificial islands and, as such, are not vessels. Workers assigned to such platforms therefore do not qualify for seaman classification. Bertrand v. Shell Oil Co., 489 F.2d 293, 295 (5th Cir.1974); Bertrand v. Forest Oil Corp., 441 F.2d 809, 811 (5th Cir.), cert. denied, 404 U.S. 863 (1971). Thus, Barrett can only qualify as a seaman if he was more or less permanently assigned to the D/B FALCON, and not to the platform.
Barrett spent approximately seventy to eighty percent of his time on the D/B FALCON while the caisson was under repair. Clearly, he did not spend a substantial part of his time on the caisson itself. Yet Maryland аrgues that for purposes of determining seaman status, workers involved in platform-related assignments should be classified the same as workers who actually carry out their assignments on the platform itself. Although Barrett may have been physically present on the jack-up barge, Maryland points out that his work was primarily related to the repair of a fixed platform, and that Barrett should therefore not be deemed a seaman. By this argument, Maryland seeks to extend the fixed platform worker‘s non-seaman status to those who work on vessels or other structures in connection with fixed platform activities.
Although individuals working on fixed platforms do not have seaman status, no decision has gone so far as to exclude from the definition of seaman an individual working near or adjacent to such platforms where these workers actually perform a substantial part of their work on a Jones Act vessel. Because the benefits afforded seamen are generally considered preferable to remedies available to non-sеaman maritime workers, denying seaman status to platform workers has been narrowly restricted to workers who performed a substantial part of their duties on a fixed platform. See Robertson, Injuries to Marine Petroleum Workers: A Plea for Radical Simplification, 55 Tex.L.Rev. 973, 982-996 (1977).
Decisions such as Roberts v. Williams-McWilliams Co., Inc., 648 F.2d 255 (5th Cir.1981), control this case. Roberts was a welder who worked on a barge located in the Gulf of Mexico employed in the fitting, fabricating, and repair of dolphins. A dolphin is a flotation device to which vessels arriving at an offshore platform tie uр. It serves the dual function of permitting passage to and from the platform and protecting the platform from damage. During the day, Roberts performed his duties on the barge alongside the dolphin and at night was taken by crew boat back to sleeping quarters on another barge. Roberts was injured when he slipped and fell aboard the barge that served as his sleeping quarters. The court held that Roberts was a seaman as a matter of law and that the district court erred in denying Robert‘s motions for directed verdict and judgmеnt n.o.v. This was so even though the structure under
The facts in this case even more convincingly establish the plaintiff‘s seaman status then do the facts in Roberts. Roberts worked near a sizeable fixed platform, the caisson here was an entirely isolated structure too small to accommodate workers on it. The fiction of the artificial island would have doubtful application to such a structure.
We next consider whether Barrett was more or less permanently assigned to the D/B FALCON. The word “permanent” has never been given a literal interpretation under the Jones Act, and we have held that the permanency requirement of the seaman status test should not be given a “wooden application.” Prinzi v. Keydril, Co., 738 F.2d 707, 709 (5th Cir.1984); Davis v. Hill Engineering, Inc., 549 F.2d 314, 327 (5th Cir.1977); Brown v. ITT Rayonier, Inc., 497 F.2d 234, 237 (5th Cir.1974). The permanency test has been characterized as being “more frequently an analytical starting part than a self-executing formula.” Brown, 497 F.2d at 237. The purpose of the permanency requirement is to ensure that a party seeking seaman status has more than a transitory connection with a vessel or a specific group of vessels. Ardoin v. J. Ray McDermott & Co., 641 F.2d 277, 281 (5th Cir.1981); Davis v. Hill Engineering, Inc., 549 F.2d at 326.
Maryland argues that our decision in Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir.1980), is dispositive on the permanency issue and precludes classification of Barrett as a seaman. Longmire was a roughneck on an offshore drilling crew assigned to a drilling platform on the Outer Continental Shelf. The drilling installation consisted of a drilling platform permanently affixed to the ocean floor and a tender which was anchored alongside and connected to the drilling platform, the tender provided crew quarters, mess facilities, and drilling equipment. All drilling was conducted entirely on the drilling platform, and Longmire‘s duties were primarily performed on the platform. Longmire occasionally worked on the tender to perform general maintenance work or to move supplies to and from the drilling platform. At the time Longmire was injured, no drilling was underway. The crew was in the process of dismantling the drilling rig to move it to another location in the Gulf. On the day of his injury, Longmire had spent his entire shift aboard the tender preparing for the transfer of the rig.
In Longmire, summary judgment denying plaintiff seaman status was affirmed. The Court relied primarily on Longmire‘s own admission that his primary responsibilities related to drilling operations that were performed on the drilling platform, and that his work aboard the tender was only incidental to his duties on the drilling platform. Id. at 1346. Therefore, Longmire was neither permanently assigned to the tender nor did he perform a substantial part of his work thereon. Although Longmire‘s duties necessarily carried him on to the tender from time to time, a substantial part of his work was performed on the drilling platform. The Court refused to find that his presence on the tender at the time of his injury automatically endowed him with seaman status.
This case presents a reverse image of Longmire. In Longmire, the plaintiff, although actually injured on the tender adjacent to the drilling platform, worked primarily on the platform. Barrett, however, performed a high percentage of his duties on the jack-up barge and not on the adjoining caisson. In Longmire, a drilling platform large enough to accommodate workers was serviced in part by the tender. The caisson in this case was too small to accommodate any members of the crew, so the crew, including Barrett, had to perform their functions primarily from the jack-up barge.
Maryland also contends that Barrett‘s connection with the D/B FALCON was temporary and fortuitous in that Barrett was required to work on the barge for that particular assignment only because of the unusually small size of the caisson. Although it is true that the barge was only
Maryland also argues that Barrett did not perform duties upon the D/B FALCON that contributed to the function or mission of that vessel, as required to qualify as a seaman. See Bernard, 741 F.2d at 827. Robison, 266 F.2d at 779. This contention is quite far-fetched, and we have no difficulty in concluding that Barrett satisfied this element of the seaman tеst. In Davis v. Hill Engineering, Inc., 549 F.2d 314, 326 (5th Cir.1977), we affirmed a jury verdict in favor of a welder‘s helper working on an offshore construction project at the time of his injury. In the course of his work on the project, Davis spent a significant amount of time onshore fabricating pipe in preparation for the construction project. After onshore construction was completed, Davis went to the offshore construction site aboard a derrick barge. Davis was to remain on the barge during the course of the construction phase, an estimatеd twenty to thirty days. Davis was not called upon to perform maintenance or other chores on the barge. The barge was a special purpose vessel used to transport men, equipment, and material from one location to another and to load and unload equipment. It was also used to lift heavy components into place during the course of offshore construction. Davis assisted in the loading and unloading operations which the court found directly contributed to the special purрose and mission of the barge. Similarly, in this case, the D/B FALCON served as a work space for the fabrication of pipe as well as for transporting materials between the caisson and the barge. By participating in the fabrication of the pipe, Barrett clearly contributed to the specific mission of the D/B FALCON.
It has long been a policy of The Jones Act that its provisions be liberally construed. Cortes v. Baltimore Insular Line, 287 U.S. 367 (1932); Addison v. Gulf Coast Contracting Services, Inc., 744 F.2d 494, 501 (5th Cir.1984); Robison, 266 F.2d at 780. We conclude that the district court‘s characterization of Barrett as a seaman is consonant with this purpose.
The Settlement Agreement.
Maryland Casualty intervened in this action to claim credit for payments made to Barrett which Maryland characterized as longshoreman compensation benefits. Maryland specifically claims reimbursement against Barrett‘s settlement proceeds.6 Maryland made payments to Barrett pursuant to its policy with Tilden over a three-year period. Under the section of the policy entitled “Coverage A: Workmen‘s Compensation“, Maryland was obligated to make payments to injured maritime workers who were entitled to benefits under the LHWCA. Under the section of the policy entitled “Coverage B: Employers’ Liability Policy,” Maryland was obligated to pay injured maritime workers “transportation, wages, maintenance and
Maryland claims that it made payments to Barrett in its capacity as compensation insurer under “Coverage A” of the policy, and not as Jones Act insurer. As indication of this intent, Maryland points out that many of the checks sent to Barrett were marked “Workmen‘s Compensation Insurance.” Maryland alsо points out that under “Coverage B“, the Jones Act portion of the insurance policy, Maryland was only obligated to pay benefits up to $25,000. Because Maryland had made payments in excess of this limitation, Maryland argues that its intention to make payments as longshoreman compensation insurer was clearly demonstrated.
As Tilden‘s insurer, Maryland was obligated to make payments to injured workers regardless of their classification as longshoremen or seamen. The question of whether a maritime worker is a Jonеs Act seaman is normally one of fact, and frequently the status of the maritime worker will not be known until the issue is litigated. See Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1345 (5th Cir.1980). If Maryland had not waived rights to reimbursement in the capacity as Jones Act insurer, it would actually have been to its benefit for Barrett to be characterized as a seaman because the applicable portion of the insurance policy was subject to a limitation of liability. But we need not address any question of rights Maryland may have had to seek reimbursement in the absence of a sеttlement agreement. The fact remains that Maryland chose to waive certain rights under the settlement agreement. Its claim that the result in this case is unfair is belied by its own knowledge of the seaman status issue which was posed by the terms of its insurance policy. Because Maryland made the wrong decision as to seaman status it cannot shift the burden of that erroneous decision to others as it is trying to do in this case.
As a seaman, Barrett was not entitled to the benefits of the LHWCA. McDermott, Inc. v. Boudreaux, 679 F.2d 452, 454 (5th Cir.1982), Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 274 (5th Cir.1966). Any benefits he received from Maryland must thus be characterized as recovery under the “Coverage B” section of the policy. It is true that under the Jones Act portion of the policy, Maryland‘s liability was limited to $25,000, but under the clear terms of the settlement agreement, Maryland had waived all rights to reimbursement of benefits paid to Barrett.
AFFIRMED.
E. GRADY JOLLY, dissenting:
Case by case, plaintiff by plaintiff, we dilute the requirements to meet seaman status.
It is said here that the plaintiff is “permanently” attached to the FALCON. Yet only on intermittent occasions did it become necessary for the plaintiff to boаrd any vessel, much less the specific vessel FALCON, in order to perform his work. Indeed, the facts show that the plaintiff‘s employer contracted with Chevron to provide maintenance and repair only on fixed platforms. His “attachment” to a vessel, when it briefly occurred, did not even relate to the amount of time necessary to complete a project, but rather related to the number of days of his particular work hitch. At the end of his several-day work hitch, he almost always said his goodbyes to whatever vessel he left, if any, because he was not likely to return since his new assignment was usually to another platform. In such new assignment, it was very probable that no barge, much less the FALCON, awaited him because seventy to eighty percent of his work was performed on platforms large enough not to require a vessel to provide the space for work. The majority seems to ignore this fact by failing to evaluate the nature and quality of the plaintiff‘s work assignment over the course of his employment; rather, the majority conсludes that he is “permanently attached” by evaluating his work assignment on only one of many work hitches. And so we find that the plaintiff‘s eight-day association with the FALCON is “permanent.” Someone has been away from a dictionary too long.
Before today, I had never thought that paying passengers aboard a cruise ship “contributed to the mission of the vessel” by occupying the space they had bought for a two-week cruise. Somehow I had never thought that a novelist who writes aboard a cruise vessel during his two-week voyage is a Jones Act seaman. But he may be as “permanently assigned” as Jethro Barrett is here, and he is working in the spacе provided and thus contributing to the “mission” of the vessel as much as Jethro Barrett is here.
Because I do not ascribe to the word “permanence” the meaning the majority gives it, and because I do not follow the reasoning that the plaintiff contributed to the mission of the FALCON, and because I think it is regrettable to stretch words and logic beyond their reasonable ductility in the name of “liberal construction,” I respectfully dissent.
GEE, specially concurring:
While I concur in the majority opinion, I write separately to voice my agreement with the generаl thrust of the dissent. It is indeed true, as Judge Jolly observes, that recent decisions of our court “dilute the requirements to meet seaman status.” Nevertheless, convinced that they are already sufficiently expanded so as to cover Mr. Barrett‘s circumstances, I concur.
ON SUGGESTION FOR REHEARING EN BANC
Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS and HILL, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the applications for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banс,
IT IS ORDERED that this cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.