Keith A. Boudreaux v. American Workover, Inc., Awi, Inc., Third-Party v. American Insurance Co., Third-Party

BROWN, CLARK, Before CHARLES GEE, RUBIN, GARZA, REAVLEY, POL- ITZ, RANDALL, TATE, SAM D. JOHN- SON, GARWOOD, WILLIAMS and Circuit Judges.

TATE, Circuit Judge: The sole issue this court whether before employee injured performing ma- while petroleum exploration rine and extraction drilling work aboard a vessel located off- shore but on state territorial waters is en- gaged within would have covered before the who been Long- 2(3) of the meaning of section amendment; is, who are workers Compen- Harbor Workers’ shoremen’s previously waters as “Act”), 33 U.S.C. (“LHWCA” Act sation defined.” in 1972. 902(3), as amended fully, reasons to be set forth more we For an am- suit in a question arises Congressional no intent to withdraw find a vessel defend- against workman phibious coverage injured of the Act from those injuries resulting from damages ant for navigable waters while in what ves- The negligence. by the vessel’s caused employment” was considered as “maritime of its the dismissal appeals sel defendant purposes prior for LHWCA to the 1972 the workman’s against demand third-party We, therefore, like pan- amendments.1 as the insofar indemnification employer for el, affirm the district court’s determination employer’s by caused injuries were in favor of the Act’s of this mari- whether precise issue The fault. injury. time the indemnifica- from employer is immune by the employer covered an Facts and Procedural Context tion demand employer LHWCA; is contended it following The issue before us arises in the immunity because its this be denied should context, procedural factual and which is maritime injured by although employee, fully panel opinion: in the more detailed waters, was in a vessel tort on injured over plaintiff Boudreaux was not in “maritime nevertheless navigable waters in the course of his em- by covered the Act. and thus not employer (“Aquatek”) His was ployment.2 decision, court, split in a panel A of this specialty mineral- performing a contractor involved was indeed held that the work drilling barge. work on a Bou- production the mean- employment” within operator sued the owner dreaux v. Ameri- ing of the LHWCA. Boudreaux (“AWI”) negli- drilling barge of the for its Workover, Inc., (5th Cir. 664 F.2d 463 can provide him with a safe gent failure to granted. was 1981). Rehearing en banc place to work.3 (5th 1982). 664 F.2d 480 Cir. third-party The district court dismissed express- issue rehearing, (the we reach the by On AWI owner demand defendant ly vessel) in Northeast Marine Terminal operator against Aqua- reserved of the n.25, 249, Co., (the Caputo, employer) Inc. v. tek for contribution or in- n.25, demnity the event Boudreaux recovered 53 L.Ed.2d —in against Aquatek Aquatek’s al- (1977): Congress people excluded “whether —based unquestionably (see part opinion) Boudreaux would have been 1. We note VII of this further by pursuant present injury to the Outer is covered under covered LHWCA Act, amended Act even under the test of “maritime Shelf Lands 43 U.S.C. Continental employment” adopted by post-1972 1333(b), specifically deci some which extends LHWCA § that, though injury injured opera- sions even occurs on there to waters, the duties of purpose exploring for the tions conducted injured significant must have a for, rela developing, removing transporting or See, tionship activity. traditional maritime of the natural resources subsoil seabed of Gilmore, Weyerhaeuser e.g., the outer continental shelf. denied, (9th 1975), cert. 429 U.S. (1976). Coverage 50 L.Ed.2d 148 paid compensation was LHWCA 3. Boudreaux upheld by of the this basis was Act on employer, Aqua- payments the insurer of his and, appeal panel majority present permits amended in the Act an tek. As facts, by panel similar another court employee bring negligent suit Co., Pippen 661 F.2d 378 v. Shell Oil against third-person parties, injury vessel sec- 1981). (We stayed the issuance of the mandate 905(b), subject 905(b), 33 U.S.C. to em- § tion present Pippen pending decision on en our any right ployer’s to be reimbursed from dam- rehearing.) banc recovery paid, age for benefits id. section did, employer’s 933. The insurer § U.S.C. in Louisiana’s 2. Boudreaux’s accident occurred fact, its claim for intervene herein assert on the outer territorial waters. Had it occurred reimbursement. shelf, waters, beyond state then continental coverage. requirement contributing negligence. The district That limited cover leged upheld the contention thus court age to workers whose “disability or death that, since it was liable to employer injury an upon from occurring resulted] compensation, it for LHWCA Boudreaux waters of the United States or in- contribution protected dock). (including any dry ...” LHWCA 5(b) the vessel section demnity 3(a), ch. 44 Stat. 1426. The 905(b) (quoted U.S.C. § Supreme Court decided that a worker who below). enactment, This added note 9 of his duty obliged go the course revision, expressly provides that an the 1972 on navigable briefly however or of an workman covered employer and who sporadically, suffered shall not be the vessel by the Act liable to historically locality, while in that indirectly” injuries “directly the pre-1972 Cal LHWCA. its employee negligence caused to Co., beck v. Travelers Insurance the vessel. 114, 82 8 (1962). S.Ct. L.Ed.2d 368 Thus, in the context litigation, of this Black, See Gilmore and The Law of Admi is central issue—whether Boudreaux cover- ralty, (esp. 421-22) (2d 1975); 6-19 § ed. by ed LHWCA as amended in so Larson, 4 The Law of Compen Workmen’s compensation as to entitled to the now be sation, 89.23(b) (esp. 16-168, 169) § and by employer’s to him his insurer being paid (1982). 89.26 § 3) (see whether maritime note a —concerns recognized as so employer, for LHWCA LHWCA, Under the 1972 revision of the amendments, prior purposes to the 1972 express with its intent to move the cover- liability immunity to be denied from (see age below), II simple landward this test contributing negligence-caused injury to to injury (generally, waters) on the navigable an in- employee,4 immunity expressly its By was modified. the 1972 amendments to by to tended the 1972 amendments be ac- Act, benefits, be entitled to its a employers persons corded entitled (a) disabled employee must be disabled as compensation injury in because of LHWCA “an injury result of occurring upon the employment. maritime It also concerns navigable waters of the United States” whether 1972 amendments withdrew (defined including adjoining areas), as also pre-1972 employees coverage maritime 3(a) Act, 903(a)5 section injured on the waters. U.S.C. § test; (b) —the engaged “situs” in Statutory I. The 1972 Provisions employment” “maritime at the time injury, 2(3) to 1972 section single requirement a situs U.S.C. Prior governed scope 902(3)6 of the LHWCA of its “status” § test. —the 4. See Miller v. Central 5. 33 master LHWCA member of the spect Lake, employee, chapter The remainder of the section building results cluding any terminal, building way, other employer Compensation U.S.C. to load or adjoining compensation from an (5th F.2d 1109 waters of the respect vessel).... but disability 903(a) provides: adjoining pier, loading, crew, only area shall be unload or 1982); Aparicio of a if the or death of a master or Dispatch, disability customarily unloading, shall be person occurring marine payable under United disability repair wharf, 1981). provides payable or Inc., engaged by repairing, railway, death of an used States dry upon or death v. Swan that no in re- small dock, (in- or 6. 33 tal officer or vessel under ing any longshoreman ployer any upon son harborworker gaged When small shipbuilder, does not crew of in maritime (3) (4) U.S.C. § engaged master The vessel ^[******] used any include master or term longshoring operations, term of whose eighteen employee. in this to load or employment, vessel, including relevantly provides: “employee” “employer” shipbreaker, á chapter— eighteen or tons, employees waters any person unload or or other employment, in whole or in a or tons net. ship repairman, means any governmen- means an of the United but such term member engaged person repair employed any includ- part, of a per- em- any any en- 902(3), for cov section based on the nature of the requirements These 1972 issue job, requirements, under the Act have been and the situs as defined erage Supreme 903(a), Court in the United States section based on geography, before must directly Two of them three of its decisions. apply. be satisfied before the LHWCA can whether land-based Ford, 73-74, involved the issue of 444 U.S. at at 332-33 S.Ct. pri- the LHWCA employees, (1979); Caputo, 432 U.S. S.Ct. revision, were or to the 1972 their employment” at the time of note, however, We must that the issue as Ford, injuries: P. C. Pfeiffer Co. Inc. Caputo to “maritime and' 69,100 (1979) 62 L.Ed.2d 225 S.Ct. regard was with Ford land-based em- Company, Terminal Northeast Marine ployees expanded waterfront situs of 249, Caputo, Inc. v. compensable accidents added the 1972 these, In both of 53 L.Ed.2d 320 amendment, as to whom the “maritime em- affording the Act a upheld, test ployment” designed to confine the remedial liberal construction view of its remedy employees in maritime-connected Although the issue in the third purpose. industries and to exclude from decision, Ship, Inc. v. Commonwealth Sun non-maritime within the expand- Pennsylvania, 447 ed shoreward legislative pur- zone. See (1980), peripheral 65 L.Ed.2d 458 poses in II below. The Court was there not present, that decision nevertheless employees injured concerned with on the persuasive support affords to our ultimate actual who were at the conclusion the 1972 revision was not time of the 1972 already revision considered amphibious intended to withdraw from to be in employment purposes rights beneficial to a worker’s com workers (Indeed, of the LHWCA. in Caputo, the pensation remedy previously permitted or expressly Court opinion noted that its did enjoyed by prior them under the LHWCA persons not concern covered before 1972 to its 1972 revision.7 injured amendment who were on navigable Ford, Caputo decisions, the first two n.25, waters. 436 at 266 U.S. 97 S.Ct. at employees newly concerned land-based cov- n.25.) 2358 by They analyzed ered the 1972 revision. It is conceded that the present the 1972 amendments of the LHWCA as worker, Boudreaux, was engaged in em- “replacing single requirement [i.e., situs ployment at the time of the accident that waters or their statutory compensable prior the LHWCA equivalent] two-part with a situs and status to the occurring amendment as Ford, on the navi- 73-74, standard.” at U.S. gable waters. 332; See Calbeck v. Travelers In- Caputo, supra, S.Ct. at 432 U.S. at 264-65,97 Company, supra. surance We have exam- S.Ct. at 2357. “To eligible be legislative ined the history compensation, person purposes a must be an of (see the 1972 2(3) below) ee as revision II by defined and the U.S.C. § [status] [33 jurisprudential 902(3)] context in who sustains on the which it § situs occurred 3(a) (see below), III defined and we 903(a)].” U.S.C. find no intention § to [33 Ford, 74,100 dilute the pre-1972 at meaning U.S. S.Ct. at 333. Situs of “maritime turns geography; employment”, status with regard on the mari- to ac- Id., job. tually injured time-connected nature of the navigable waters, as in- 73-83, 333-37; Caputo, cluding employees required to work on Thus, 432 U.S. at part See, 2358-63. such waters as of their duties. both the requirements, status e.g., as defined Nalco Corporation Shea, Chemical wharf, (including any adjoining pier, States fully 7. We discuss this decision more in VI dock, dry terminal, building way, marine rail- below.

way, adjoining customarily or other area employer loading, unloading, used an repairing, building vessel). or Thus, 1969). coverage. Congress we will intended to apply F.2d 572 simple, uniform conclude, coverage.” an on the of employee standard Ford, supra, 83-84, employment 100 S.Ct. at waters in course his Caputo stressed this “remedial 1972 revision’s “maritime em- satisfies the legislation liberally ‘must be construed in test, employment on the ployment” because with purpose, conformance its and in a way employment” within the water is “maritime incongruous avoids harsh and re- meaning of the LHWCA both before and ” post-1972 sults.’ decision, Id. third It satis- after its 1972 revision. therefore supra (to Ship, Sun fully discussed more waters) (when injury on the fies occurs below), in VI involved an attempt, similar 1972 “status” test as well as the “situs” present, to the expanded to construe the test. coverage provisions the 1972 revision as here, by limitation, way We must note having likewise somehow the effect of over- pre-1972 that no LHWCA case that we ruling interpretations 1927 Act that could involved the of a discover were beneficial to employees. person merely took him whose rejecting to effort deduce such an fortuitously to a maritime transiently intent from the (that amendments were injured, he locus where where other- designed expand coverage), to the Court except wise for this isolated incident his significant, found to be and indeed determi- employer’s business was both land-based native, the absence in the history and unconnected with maritime-related em- slightest intimation of any intent ployment.8 express We no opinion prior jurisprudential affect interpretations issue person, of such a (cid:127)with respect pre-existing coverage af- posed by the facts before us. forded the Act employees injured legislative purposes turning Before waterfront and seaward accidents. of the 1972 revision of the we must 719-22, U.S. at 100 S.Ct. 2436-37. approach note established Su- preme opinions. approach Court in its This Legislative II. Purposes History should, construction revision 1972 Amendments think, guide judicial we interpretation of 1972, the Congress amended the changes accomplished by the in the Act 1927, 92-576, LHWCA 1251, of P.L. 86 Stat. revision. Longshoremen’s and Harbor Workers’ Com- regard With to the landward extension of pensation Act Amendments of 1972. The coverage, the Court stated that the “lan- expansion landward, of coverage and the guage the 1972 of is broad Amendments consequent the addition of “maritime em- suggests expan- and that we should take an ployment” requirement, merely part were sive the coverage,” Capu- view of extended revision, of this Caputo 1972 by described as to, 268, 2359, 432 U.S. at 97 at S.Ct. significant “the first effort to reform the nature, and that the decision to focus on the 1927 judicial gloss Act and the that had not location of employment “also serves the 261, been to attached it.” 432 U.S. at 97 congressional purpose broader expanding stated, S.Ct. at 2356. As there Id.: exceptions ployee testing 8. Possible to this characterization of a motor boat on an inland riv- prior jurisprudence the concerning are v. Motor er —can Parker be construed as Sales, Inc., by inju- Boat 314 62 er the 86 covered Act insofar as maritime (1941) Corp., employees L.Ed. ries and Ellis v. Gulf because some of Oil his from time F.Supp. (D.N.J.1943), to time where tested boats on water land-dutied the in the course employment. employees of their whose work had never before taken them on the water were nevertheless allowed pre-1972 902(4), The § U.S.C. as does compensation resulting LHWCA for death from present, 902(4) (quoted the 33 U.S.C. § note present on the waters. For 6), pertinently employer described an purposes (since unnecessary it by to decide the “any employees as the Act one of whose issue), entirely broader Parker —where an employment, land- in maritime in whole or employee company part, based upon of a small boat sales waters of the Unit- * * accompanying was drowned while another em- ed States as “H.Rep.,” page cited with num Amend- USCAN the 1972 main concern The instance, For scope with the with regard was not sec ments ber]. accommodating the desires 905(b) with but changes, reports tion specifically (1) shipowners groups: interested three any intention to eliminate unsea stated with the decisions were discontented who against remedy worthiness the vessel af use to maritime workers allowing many longshoremen and other non-seamen forded recov- to “seaworthiness” doctrine of vessel, working on board a and to eliminate regard- shipowners damages er full liability of their employer to vessel fault; long- employers of the (2) less of own breach duty contributing their judicially who, another shoremen 25; S.Rep. 8-12, H.Rep. the accident. doctrine, to in- required be could created 4699, 4701-05, 4719. It is also of note thereby lose the demnify shipowners that n reports, stating these exclusivity of the of the intended benefit changes, specifically for the reasons identi (3) workers remedy; and compensation Supreme Court intended fy the decisions sched- improve benefit who wanted overruled, legislatively Ryan such as be inadequate parties. deemed ule Co., Inc. Stevedoring v. Pan-Atlantic objectives, two of these achieve the first To Steamship Corp., 350 U.S. alia, (1) provided, inter final enactment (1956) Shipping 100 L.Ed. 133 Seas Co. was limited liability vessel Sieracki, injuries by negligence and caused to those L.Ed. 1099.10 warranty of upon based “shall seaworthiness,” (2) employer “that now specifically leg- We turn to the 1972 shall not be liable the covered worker] [of 2(3), islative revision of section 33 U.S.C. [damages caused the vessel for such 902(3), quoted note and of section § directly indirectly.” negligence] or vessel 903(a), 3(a), quoted U.S.C. note 5. § 5(b), 905(b), as added § Section U.S.C. former, recalled, The it will be added the 92-576, 18.9 amendments, P.L. status, employment,” require- com legislation was enacted after ment for to be covered re submitted full of each House mittees Act; the latter broadened shore- pur summarizing general each ports, ward, naviga- to shoreside areas adjacent containing poses legislation waters. ble changes analysis of the section section To accommodate the shoreside broadened 92-1125, Report 92d provided. Senate No. situs, “employer,” the former definition of Congress, 2d cited Session [hereinafter 2(4), 902(4) section was amend- U.S.C. § number]; “S.Rep.,” by page House followed Report No. 92-1441, reprinted ^[1972] ed to broaden the definition of a maritime- Cong. employment employer. the Code & Ad.News 4698 Before [hereinafter 5(b), 905(b) pro- provide ship building repair Section U.S.C. in full the vessel or § 9. services, permitted such vides: no action shall be if injury by negligence the was of caused the injury person In the event of a persons building engaged providing ship in or by negligence chapter this caused under the liability repair services to the vessel. The of vessel, person, anyone a oth- of then such or the vessel under this shall be subsection damages by erwise entitled to recover reason upon warranty based the or of seaworthiness thereof, may bring against an such action injury a breach thereof at the the oc- time party the vessel as a in with third accordance remedy provided curred. The in this subsec- title, provision and the of section 933 this tion shall be exclusive of other remedies employer be liable to the vessel for shall not against except the available vessel remedies directly indirectly any damages or such chapter. contrary agreements or warranties to the employed person shall be If such was void. legisla- recognized 10. These had the decisions services, by provide stevedoring the vessel to tively-overruled longshoremen’s unseaworthi- injury permitted no such if the action shall be (Sieracki) legislatively- remedy ness and the by negligence persons was en- caused the (Ryan) right to indem- overruled of the vessel gaged providing stevedoring in services nity against the stevedore. by person employed the vessel. If such was eligible worker be amendment, employer an was defined would federal such com- only pensation provided to whether some of his his or her employer reference with worked, employee or employees part, “in whole in had least one in mari- however, navigable employment”; waters of United time upon “with the dock).” (including any dry ‘navigable After the definition of expanded waters’ States amendment, employer by defined the 1972 as Amendments to include such a area, large including employer geographical those in maritime it became neces- worked, sary who in whole or in affirmatively describe class of upon expanded shoreside areas as workers part, Congress compensate.” desired to navigable upon well as waters. As will 432 U.S. at 97 S.Ct. at 2357. shown, before 1972 the employ- because broadening reasons for the of cover- upon ee’s work waters had age to the shoreside areas the section simple test of been maritime 3(a) are amendment well-documented in the (see below), a change ment III in defini- reports: “[Cjoverage 2(3) section “employee,” tion an re- present stops Act at the edge; inju- water’s affirmatively, define quired order ries on land are covered by State Work- expanded shoreside employees which Compensation men’s laws. The result is a situs were now covered.11 disparity in payable benefits for death or are As the changes disability depending

These interrelated. side which Caputo, Supreme edge Court observed where- water’s State acci- amendments, before “so long worse, as the 1972 as dent occurs. make To matters most on naviga- the work-related occurred Compensation State Workmen’s pro- laws ”* * waters and the worker was not vide inadequate. ble benefits which are class,12 narrowly S.Rep. a member of a defined 12.13 In explaining broaden- amendment, noted, 2(3), Before the 1972 the definition As the amended section as re- 2(4) simply provided: ported by section the Senate and House committees unchanged, “employer” employer “employ and enacted The term means an now defined any employees employed affirmatively, text, ee” of whose are see note full 6 for as employment, part, “any person engaged or in employment, maritime upon whole in maritime waters of the United including any longshoreman er,” . .. harborwork- (including any dry dock). States By (Emphasis supplied.) etc. amendment, 2(4) the 1972 section' provide explains as amended to definition: 12. The Court in footnote “this nar- “employer” employer rowly referring The term an means defined class” as employees employed whose LHWCA’s exclusion of the or master member employment, part, crew, in whole or in person engaged of a of a the master to upon waters of the United repair load or unload or a small vessel under (including any wharf, adjoining pier, States dry net, eighteen tons dock, terminal, building way, marine rail- States; noting United that these exclusions are way, adjoining customarily or other area (see retained the 1972-revised Act second employer loading, unloading, used paragraph above). of note repairing, building vessel). (Emphasis supplied.) regard, 13. In this the Committee further ob- 2(3), Prior to the amendment section served: 902(3), “employee” negatively defined U.S.C. apparent It is if the Federal benefit follows: structure embodied in Committee bill is en- “employee” The term does not include a acted, disparity there would be a substantial any vessel, master of or member a crew of payable permanently in benefits longshoreman, depending to a disabled any person engaged by nor the master to which on side of repair any load or or unload small vessel edge occurred, the water’s the accident if eighteen tons net. permitted apply State laws are to continue to coverage The Act’s then resulted from an injuries occurring to on It is land. also to be “injury” employment, in the course of section cargo- noted that with the modem advent of 2(2), 902(2), “employer,” with an § U.S.C. techniques, handling such as containerization 2(4), 902(4), then defined in section 33 U.S.C. vessels, LASH-type and the of more use of employer, any meaning whose em- as ployees “an of longshoreman’s performed work on is employed employment, are in maritime land upon navigable than heretofore. part whole in or in waters S.Rep. (including any dry dock).” at 13. of United States coverage to withdraw was not intended areas extend to shoreside coverage to ing of in considered to be previously from those report navigable to adjacent purposes of employment” for that believes “The Committee stated: coverage. or LHWCA longshoreman to a payable compensation de- builder should repairman or ship a originated as Senate revision The 1972 of circumstance the fortuitous on pend draft of The committee Bill 2318. Senate on land or over injury occurred whether “employee,” sec- of an amended definition the Committee ... The intent of water. was enacted both 2(3) of the tion system to compensation a uniform permit change. explaining In Houses without otherwise be who would employees apply definition, the committee change in Senate activi- part of their this Act for new defi- report specifically noted sets report House 13. The S.Rep. at ty.” employees not exclude other nition “does similar substantially views in identical forth traditionally covered” supplied).14 (emphasis at 4707-08. language. H.R. report, committee S.Rep. at 16. The House explicit, states the new defini- although less addition, by the reason for engaged in any employee tion “includes 2(3), of the “mari- section amendment employment, any longshoreman or maritime “status”) require- (or time longshoring opera- person engaged in other Both explicit. as coverage is not ment (including tions, any any harborworker lan- in identical reports do state legislative shipbreak- ship repairman, shipbuilder, apparent reference guage, er)” (emphasis supplied).15 not intend to does change: “The Committee engaged in who are not employees cover reports legislative These committee building a unloading, repairing, or loading, any thus do not reflect intention to purpose vessel, they are in an just because injuries the Act’s withdraw navigable waters used adjoining workmen, Boudreaux, area such as Likewise the Committee activity... . such waters in the course of extending coverage un- employer has no intention with an at least some of ment em- who are not part der the Act to individuals worked in whole or in employees whose i.e., employer, is an by person particular, leg- a who waters. ployed employees reports question of whose do not or even re- person at least some islative a Calbeck, supra, part holding in some in whole or fer to the engaged, injuries S.Rep. the Act’s extended to “all employment.” form of by employees 13; (emphasis supplied). sustained H.Rep. at 4708 waters,” at 1202— anal- Nevertheless, section section significant light “a omission in of the care reports explain ysis by which reports which the took to iden- changes, it becomes man- the reason for the [committee] tify Supreme Court cases to be over- change the 1972 opinion ifest in our ” Inc., Ship, See Sun 2(3), . . section turned .. “employee,” definition of an analysis 2(3), 2(3), S.Rep. change H.Rep. analysis change 15. See full 14. See full 4711: 16: (a) 2(3) 2(a) Subsection amends the definition of the section Section amended 2(3) “employee” “employee” any person term contained in section Act to define an present merely employment. the Act. The ex- The defi- definition in maritime any longshoreman “employee” specifically from the cludes definition of nition includes crew, any person oper- person engaged longshoring or master or member of a or other unload, load, harborworker, engaged by ations, including ship any or master to repair any ship repairman, shipbuilder small new subsection breaker. It vessel. The or retains this exclusion and states that traditional- does not exclude other 2(3) any employee engaged part ly term includes in mari- covered but retains that employment, any longshoreman “employee” other time excludes from the definition of masters, operations, person engaged longshoring persons engaged crew members or (including any ship unload, repair ves- harborworker load or the master to shipbreaker). repairman, shipbuilder, eighteen (Empha- tons net. sels of less than supplied.) sis purposes to as upgrade It is fair “to at 2437. benefits” and at S.Ct. to U.S. think, coverage protect “extend to reading legisla- of the additional say, we that a workers,” (as S.Rep. at well as “resolve to specific and with reports, tive both overall the longstanding dispute over third-party reference to the by injured longshoremen” actions by abol- newly provided by the status test ishing (see 10) text at note the unseaworthi- 2(3), did not contem- to section amendment remedy ness and the vessel-indemnity Calbeck char- disturbing previous plate against stevedores, S.Rep. 2). at The thrust of LHWCA-covered acterization summary legislation is that the work- including amphibious as designed to coverage broaden and increase waters.16 injured navigable ers benefits.17 We cannot find that Calbeck’s thirty-five years In Calbeck ended well-accepted construction of the Act as judicial confusing and inter- unworkable injuries covering navigable waters was test that the Act pretations by simple its silently by a overruled remedial statute de- injuries on the waters signed to broaden coverage and “framed employers employed employees whose out of solicitude workers.” Sun on navigable one or workers to labor more Inc., 726,100 Ship, 447 U.S. at at 2439. supra, 447 at Ship, Sun waters. See so, To do as the Court observed in a similar 718,100 legislative at 2435. The context, “would blunt thrust of the 1972 no reports reflect dissatisfaction committee amendments, Congress’ and frustrate intent rule, readily not with this and it is credible to aid maritime laborers.” Id. years previous forty-five judicial that the culminating in interpretations Calbeck Jurisprudential III. Context of legislative- its were to be progeny intended Amendments to Act ly any mention of this altered without dras- jurisprudential The context in which the coverage tic to restrict of the Act. change 1972 amendments the Act were enacted view, only We are reenforced in this not plain person makes it that a who suffered reports as to the silence an injury that on navigable occurred intent, expla- such an but the consistent waters, such present plaintiff as the Bou- provisions new as “an nation for the exten- dreaux, was considered to be in “maritime areas,” S.Rep. coverage sion of to shoreside employment” for purposes of the Act. The 12, H.Rep. (emphasis at supplied). at 4707 quite recently Court has summarized this Report “Summary” The in its jurisprudential Ford, Senate context. See proposed legislation identifies its remedial 444 at and Sun Rather, designed parties, promulgate necessary the 1972 amendment was and to 16. admin- provide test when occurred in istrative reforms. newly provided extended shoreside locus the 1972 revision to exclude those expands bill The also of this employed in As maritime-related activities. injuries occurring contigu- Act to cover state, legislative reports in identical lan- longshore ship ous dock area related “Thus, guage: employed by a an individual repair work. work, person none whose longstanding The bill also resolves dis- part, whole or in is not pute third-party by injured long- over actions pier adjoining covered even if aon by providing may shoremen that such actions 13; S.Rep. H.Rep. waters.” brought against vessels on the basis of negligence, remedy but the based on unsea- addition, worthiness is eliminated. indem- “Summary” proposed legislation 17. The nity against stevedoring companies actions adopted ultimately LHWCA revi- prohibited. Agreements are between steve- S.Rep. sion is 1-2: set forth doring companies indemnify and vessels to principal purpose of S. 2318 is prohibited. the latter Longshoremen’s amend and Harbor Compensation up- Workers’ grade Act in order to (The paragraphs upward omitted deal with re- benefits, pro- extend vision the benefit structure and with admin- workers, provide specified tect additional changes.) istrative damages against cause of action for third 1044 character,” 718-19, yet “local in 100 Inc., 447 at U.S.

Ship, state law. thus amenable to relief under at 2435-36. S.Ct. 233, Garcia, 257 Fuel Co. v. U.S. Western Ford, id.: succinctly stated As (1921); 89, L.Ed. 210 Grant 42 S.Ct. 66 effort to simply an Act was pre-1972 Rohde, Ship v. 257 U.S. Smith-Porter Co. compensation gap in workmen’s fill 157, 469, (1922). 42 S.Ct. 66 L.Ed. 321 decision by this Court’s coverage created 1927, And, Congress finally suc- Jensen, 244 v. Pacific Co. in Southern extending protec- cessful in a measure of 524, 1086 205, 61 L.Ed. 37 S.Ct. U.S. marine workers excluded Jen- tion to compensa- which held that state (1917), by enacting compensation a federal sen longshore- not reach systems tion could and Harbor Longshoremen’s law —the edge. of the water’s injured seaward men Act, 33 Compensation Workers’ U.S.C. 3(a) single requirement situs § A seq.... 901 et § coverage. governs scope of its the Act law were thus linked Federal and state coverage to requirement limited That provide theoretically complete together re- “disability whose or death workers But the coverage for maritime laborers. occurring upon from an sulted] gave boundary at which state remedies of the United States navigable waters was far from way to federal remedies ” dock). Long- . .. (including any dry result, eases. As a obvious individual Harbor Workers’ Com- shoremen’s and compelled worker 509, 1927, 3(a), 44 ch. pensation Act of jurisdictional guess filing make a before Jensen and the light 1426. In Stat. claim; unnecessary price of error was the situs test purpose limited from the expense possible foreclosure sharp line be- understood to draw proper forum statute of limitations. injuries sustained over water tween Labor, Department 317 Davis U.S. Thus, in Nacire- those suffered on land. 249, 254, 225, 228, 87 L.Ed. 246 S.Ct. Johnson, Operating ma Co. during After a decade and a half 347, 351-352, 212, 218-220, there had not been formulated which (1969), this Court held that L.Ed.2d “any guiding, definite rule to determine injuries occur- the Act did not extend to power in advance of the extent of state pier to the land. Al- ring on a attached id., S.Ct., at at litigation,” recognized inequi- though the Court be- Court determined border might rigid result from adherence ties compensation federal state tween line, the Jensen the Court concluded “twilight was less a line than a schemes line land- invitation to move that “[t]he zone,” “employees in which must have Congress, ward must be addressed case rights their determined case Id., U.S.,] to this Court.” at [396 S.Ct., id., ...” at 229. Within at 354. S.Ct. zone, effectively Davis established a . Long- Congress responded with regime jurisdiction. of concurrent Com- shoremen’s and Harbor Workers’ Co., v. Travelers Insurance Calbeck (1972 Amendments of 1972 pensation Act 114, 82 8 L.Ed.2d 368 Act). (1962), overlapped further federal and jurisprudential The intermediate states of state law for marine workers. development issue between compre- Calbeck held that the LHWCA Operating Co. v. Jensen and Nacirema injuries hended “all sustained Johnson, Ship, supra, are described Sun navigable waters,” id., ees on at 2435. S.Ct., whether regard without began to narrow the Jensen Court the locus of an event was “maritime but [T]he local,” scope by identifying doctrine circumstances and hence within compensations provisions.18 subject litigation might state Black, (2d Admiralty, 404-23 ed. 18. For more detailed discussions of the evolu- The Law of LHWCA, generally tion of the see Gilmore & Ship, water. Thus, accepted pre-1972 as summarized Given this Sun mean- ing 2486: of term purposes Act, the for of the then within the intention 1972, then, of the 1972 inju- marine-related Before an jurisdictional amphibious of three amendments ries fell within one worker navigable landward. At the on the spheres they as moved simultaneously waters extreme, Jensen commanded furthest meets both the “situs” and the “status” fall injuries under that maritime (occupational) nonlocal noted, tests. As earlier the inju- but local” the LHWCA. “Maritime legislative purpose adding of the “maritime “upon navigable waters of ries employment” test was to limit the Act’s 903(a), States,” could United 33 U.S.C. § coverage in the newly extended shoreside compensated the LHWCA or be under areas employees to those who were injuries state law. And suffered under therein in course of maritime-related within beyond navigable waters —albeit employment. We can find sign no jurisdic- range admiralty of federal legislative history or purpose that the Con- only state tion —were remediable under gress intended by the 1972 amendments to Johnson, supra. law. Nacirema Co. change prior well-accepted under- injuries on employment-related That all standing that an injury navigable waters including those were navigable was compensable being as in “maritime em- local,” as “maritime but were characterized ployment.” to have been in maritime em- considered

ployment, only can be seen from the IV. Commentary Post-1972 Jurispru- see, era, of e.g., Nalco Chemi- decisions dence Shea, Corporation supra, cal 419 F.2d at 574,19 Following adoption by considering but also that under the of 1972 amend- (see 11), ments, pre-1972 coverage scheme of note the new “maritime employment” now, only employers Act applied status test has application arisen for in two employees “employed whose were in mari- situations. The bulk the litigation con- part employment, upon time in whole or in application cerns of the test in the new waters of the United States.” navigable extended shoreside application, Caputo as in Act, 2(4) 902(4). of the § Section U.S.C. (1977) (1979), and Ford which we have dis- statutory meaning And aside from its cussed at minority I above. A substantial LHWCA, purposes of the the term “mari- courts, of the decisions the lower how- employment” time even in a non- includes ever, attempted apply test status sense, technical, general employment upon injuries some formulation to work-related waters.20 i.e., on navigable to those con- waters — sidered thus, employment” prior as in “maritime pre-1972 jurisprudence, Under , although includ- but revision — ed, three or purposes inju- (only all work four instances one from this amphibious circuit), coverage ries of workers upheld. was nevertheless 1975); (7th Admiralty 1A 1-11 Benedict on F.2d at 574. §§ 1981). ed. engaged employment Persons in maritime may groups: be divided into two broad mem- 19. We were conclude that activities Quave’s navigation bers of the crew of a vessel in sufficiently scope fall within seamen, generally who are referred to as 902(4). of 33 U.S.C. It is that this noted variety doing local waterfront workers employers section the Act covers all ship to shore duties. whose in maritime p. Admiralty, 1A Benedict on note part.” This “in whole or in be- 1-2. significant comes here for activities Quave’s nothing On the basis that can there more were and it over water often over water sea, every employment maritime than the place. regu- that the fatal took His accident other sea or water should be large part travelling lar duties consisted in employment. considered as maritime directly drilling platforms to offshore p. Id. at 2-5. only seaplane. he could reach boat or a more The first decision to take majority we note

Preliminarily, view of the LHWCA restrictive commentators, including the view Weyer injuries on the actual water was Black, respected Gilmore highly Gilmore, F.2d 957 haeuser Co. v. exclude Act does not amended denied, 1975), cert. have been who would anyone (1976). Weyer 50 L.Ed.2d 148 Act; thus that original rejected the BRB’s construction haeuser is still navigable waters the injury upon affecting amendments as not the the 1972 the This view has also had compensable.21 employ construction of maritime pre-1972 the director of support of the consistent work-injuries that included all on the ment Programs, Compensation Workers’ Office of Instead, the Ninth Circuit held that water. en- charged with agency administrative the employment” means the term “maritime This court has the LHWCA.22 forcement that the “must have a realisti are entitled to the director’s views that held cally significant relationship to ‘traditional rely primari- These authorities deference.23 activity involving navigation history the remedi- ly on the ” commerce on waters.’ 528 F.2d sup- the 1972 amendments purposes al (a at 961 test it educed from Executive Jet the amended proposition that port of Aviation, Cleveland, Inc. 409 City U.S. anyone not exclude who would Act does 493, 249, (1972) 34 93 S.Ct. L.Ed.2d 454 —a to 1972. prior been covered have we inapposite purpose, decision find for this below). Thus, context, for reasons to be stated in V prior at least adjudicative test, Weyerhaeuser employ under some 1979, position this would appeared it injuries ees whose would have been covered adopted by the widely accepted. It was pre-1972 under the Act would not be enti entity (“BRB”), the Benefits Review Board coverage. Weyer tled to LHWCA The to hear by the 1972 amendments created relegated haeuser court Calbeck and the appeals of LHWCA administrative limbo,” pre-1972 other decisions “to based Furthermore, this “no exclusion disputes.24 conclusion that the 1972 amendments doctrine was traditionally those covered” “radically changed employ the basis for an Ju- initially embraced the courts St. compensation.” ee’s entitlement to federal Drilling, F.Supp. M 403 lien v. Diamond 528 F.2d at 960. (E.D.La.1975), v. Perini 1256 and Fusco Associates, (2d F.2d 659 years, River 601 Wey- North In recent the more restrictive vacated, 1028, 1979), accepted, 444 100 S.Ct. test has Cir. erhaeuser been least service, courts, 697, (1980) (“Fusco I”). given lip by many including 62 L.Ed.2d 664 Inc., 18, Dispatch, See, Black, supra 23. Miller v. 673 e.g., cit. n. See Central F.2d 21. Gilmore & 18, 428-30; Admiralty, supra (5th 1982); Bridge n. 773 Cir. Alford v. American 1A Benedict on 17, Norris, Division, 807, 19; Corp., Maritime U. S. Steel 809 The Law of §§ 66, (3d (5th 1981). panel Injuries supp. at 75 ed. The dissent inadvertent- Personal asserted, 10, Robertson, 1982); Injuries ly Marine Petroleum 664 F.2d at 473 n. that we must Simplification, give Workers: A Plea for Radical 55 deference to view of the Benefits Re- 973, Comment, Rather, (1977); Board. Tex.L.Rev. 986-87 view Alford, indicated in Miller and LHWCA, Director, Coverage 33 deference is owed to Broadened 683, Note, (1973); 694 54 to the BRB. La.L.Rev. N.C.L.Rev. 925, Contra, Larson, (1976). 4 940 The Law of 89.27, Compensation See, Root, Inc., 89.41 e.g., Workmen’s §§ Stewart Brown & Tucker, (1982); Coverage 356, and Procedure under Board Benefits Review Service [“BRBS”] Longshoremen’s Workers’ (1978), Harbor grounds aff'd other sub nom. Compensation Subsequent Root, Act Joyner, Brown Inc. v. 607 F.2d 1087 & Amendments, 1056, (1981). denied, 1979), Tul.L.Rev. (4th Cir. cert. 446 U.S. (1980); 64 L.Ed.2d 837 Gilmore v. Co., (1974), Weyerhaeuser 22. The Director has filed amicus briefs to this 1 BRBS 182-83 cases, one, including denied, 1975), effect in a number of rev’d 528 F.2d 957 cert. proposed published guidelines and he once 97 S.Ct. 50 L.Ed.2d 148 (1976). would accord with this conclusion. See 39 Fed.Reg. (May 1974). (1981) II”). proved (“Fusco Ironically, the case that Fusco II court this court. catalyst widespread for the ac- a reading to be the noted that such was consistent Weyerhaeuser of the restrictive ceptance with the construction of the term “mari- actual upon accidents regarding view given time employment” Weyer- Supreme Court’s decision water was court, haeuser position with the expanded Ford, actually a case that BRB, which, after having been reversed coverage. LHWCA shore-side the Ninth Circuit in Weyerhaeuser, had Ford, previous over of overruled its Subsequent the dissent decisions that had Supreme vacated justices, three Court held that amendments did not in Fusco I and remanded Second Circuit’s any way reduce traditional of Ford. light decision for reconsideration the LHWCA. Fusco, River Perini North Associates v. 1979, Weyerhaeuser Since II —Fusco 62 L.Ed.2d significant “realistically relationship to tra- remand, fact despite the On activity” ditional maritime test for deter- view of very expansive Ford took mining whether an engaged individual was coverage, despite fact that LHWCA the employment” in “maritime has frequently Wey so much the Ford did not as mention courts, employed by been the in- eases “significant relationship to navi erhaeuser volving both accidents on the seaward and navigable commerce on waters” gation or of the shoreward sides Jensen line. In this determining employ “maritime test circuit, Weyerhaeuser the test cit- has been ment,” Ford Second Circuit found that ed approvingly several decisions of holding in “rendered untenable” its had court, involving in cases accidents both on Noting Ford’s that the Fusco I. conclusion water;26 nevertheless, land and occupa term is an LHWCA was found in all of the concept, of a tional based on the nature might expected cases.27 As appli- activities, the Circuit read worker’s Second requires cation of a test that determination precluding any application Ford of the “as case-by-case under specialized facts of 1972, employ as amended in to an LHWCA instance, Weyerhaeuser each test —even significant ee activities do not bear a whose though recovery has ultimately up- been relationship navigation or to commerce produced held —has sharp disagreement as v. Perini waters.” Fusco Associates, 1111, particular whether under North River 622 F.2d facts the on- (2d 1980), Cir. water employment 1112-13 cert. denied25 449 indeed had the talisman- 28 1131, 953, 101 S.Ct. 67 119 “significant U.S. L.Ed.2d ic relationship.” II, modified, appears (5th 1981); In there 25. Fusco to have been F.2d 665 657 Cir. Trotti & Crawford, 1214, Thompson doubt whether the claimant would have been v. 1221 631 F.2d pre-1972 (5th 1980) (land); covered under the version of the Act. Cir. Odom Construction Co. case, government peti- opposed Labor, 110, Dep’t v. United States 622 F.2d (5th 1980) (land), denied, tions for certiorari because the failed to record 113 Cir. cert. U.S. 450 definitively 966, 1482, (1981). establish “that claimants 101 67 [t]he S.Ct. L.Ed.2d 614 pre-1972 been would have covered under II, Co., supra, Act.” Fusco Brief Federal 27. v. Atlantic Re- Thibodaux Richfield 580 spondent Opposition, (5th 1978), denied, F.2d Nos. 80-639 80- 841 Cir. cert. 442 651, 909, 2820, (1979), at 18. 99 61 L.Ed.2d 274 only employee Fifth Circuit case which an See, Inc., e.g., Dispatch, injured 26. Miller v. Central on water was deemed not to be covered supra, (water); LHWCA, F.2d at 781 v. 673 Boudreaux the amended did not discuss Workover, Inc., supra, Weyerhaeuser “significant American F.2d relationship 664 to tra Co., (water); Pippen 465-66 v. Shell Oil ditional maritime activities” test. See note 29 (water); Wiley 661 F.2d at 382 N. Gilliam v. below. Co., 1981) (5th Jackson F.2d 56-57 Cir. Industries, Carroll, See, (water); Hullinghorst Inc., e.g., Dispatch, Inc. Miller v. Central (5th 1981) (5th 1982) (pier), (BRB 650 F.2d Cir. cert. F.2d holds - denied, -, guard/driver that a on a vessel was not (1982); employment realistically Mississippi sig- L.Ed.2d 319 Marine Coast with a Cir.) (land), Bosarge, relationship 637 F.2d nificant to maritime activities —the that, considering employment of the Act note significance some It is of em- method waters be “maritime sometimes cumbersome despite borderline em- disputable in the II III above. For ployment.” involved See ology Weyerhaeu application em- case-by-case injured in of such the course ployees test, actually relationship” ser “significant into the further examination ployment, no coverage denied only three decisions their activities relationship “ waterward a workman it to involving activity to ‘traditional have apparently Jensen line would who and commerce on navigation ” under Act pre-1972 by the been Weyerhaeuser supra, waters,’ itself, by the Ninth Weyerhaeuser Calbeck: settled con- necessary, because 25) by the II note Fusco Circuit; (but see necessarily Act duties their struction II, Church to Fusco Second; and, adhering activity. such maritime constitute Associates, River v. Perini North ill supra However, noted, see as we text 1981), cert. granted, (2d F.2d 255 expansion to in- note of situs -, 71 L.Ed.2d U. S. required shoreside areas a different clude employing (Also, although not “employer” change both definition of rationale, one decision Weyerhaeuser expanded those within the situs to include acci an on-water coverage for court denied “employee” so and also the definition of worker, presumably field who an oil dent injured in the as to exclude those Calbeck, have been covered would were not en- expanded shoreside situs who disapproved by Ford subsequently basis As gaged employment. in maritime-related this circuit. subsequent decisions stated, Co., legislative reports committee v. Atlantic Richfield 580 Thibodaux revision to areas was (5th 1978).29 1972 include shoreside 841 Cir. F.2d “just intended to be- not cover and On- Between V. Distinction Shoreside injured they adjoining in an area cause Being Injuries as Water Insofar were not “en- navigable waters” or who Employment” “Maritime in whole or in in some form of gaged, part 13; employment.” S.Rep. to maritime intent legislative have found no We H.Rep. at 4708. accepted construction previously alter worker, reverses, ship repairman, shipbuilder, ship- expressing “how or amazement court employ breaker,” “actually was he in the the BRB could fail find Ms. Miller’s nor involved England maritime”); unloading, loading, repairing, shipbuilding, New ment as Prolerized 30, Board, 34 process, v. Benefits shipbreaking integral part Co. Review there- or an 1980) denied, (1st U.S. 101 of, cert. 452 unfortunately the time he met his death.” (AU (1981) 69 finds S.Ct. L.Ed.2d 952 F.2d at 845. 580 trans that claimant’s waterborne relation to Pretermitting a test was ever whether such portation was too at the his time of applicable amphibious to an worker af court remote for LHWCA —the water, we noted v. Dis- in Miller Central decision, ALJ’s firms the BRB’s reversal of the 1982) (em- patch, 673 F.2d 780 noting that remand after administrative added): phasis in ac BRB an order reversal ALJ entered test, require- Under the status the essential protest “while cordance with the order Board’s “engaged ment is that the must be claimant ing vehemently ruling was cor earlier that his employment.” Although in maritime “mari- rect,” 34). 637 F.2d at also the dissent See employment” specifically time is not defined case, panel opinion present from the Act, Supreme has indicated Court occupational majori (dissent F.2d at characterizes requirement rather that is ty’s employment conclusion that the claimant’s Ford, geographical. than P. C. Pfeiffer Co. “significantly activi was to maritime related” 78-81, 335-36, 444 U.S. at 100 S.Ct. “any “sweeping ties as a without declaration” 902(3) specifi- at 233-35. While § L.Ed.2d prior authority”). basis whatever of cally grants longshoremen, coverage to har- Thibodaux, regu- workers, etc., shipbuilders, the oil field worker bor the Act en- canal) larly (a transported by occupations beyond specifi- his compasses water those Ford, worksites. The that the worker court held cally listed. P. C. Pfeiffer Co. not n.7, n.7, “maritime at 77 at 334 spend part of the Act because he did not his supplied.) (Emphasis at 233 L.Ed.2d n.7.... “ ‘indisputably’ longshoreman, time a harbor jurisdiction there the delineate shoreside assertion of only those To based solely upon were intended to be legislatively provision ees who of 28 U.S.C. 1333(1) within the granting federal included district courts jurisdiction maritime- Weyerhaeuser equivalent civil “[a]ny admiralty case of relationship may appropri- test jurisdiction.” indeed or maritime The Court em- phasized ate.30 flights between points in States, the continental United “which are Weyer- with part company we Where land, principally over the fact that an air- of such a test to application is in its haeuser craft happens waters, in navigable to fall working while those land, rather than on is wholly fortuitous.” purposes as construed for LHWCA at 503. The Court in maritime since Cal- being held that noted, As restrict this ac- beck. earlier the mere alleged wrong fact is to so statutory construction do cepted “occurs” or “is located on” or over navi- complete any intent ex- absence of gable waters ... is of itself sufficient legislative history to do pressed so to turn an airplane negligence fact, case into a and, express in the face state- It tort.” is far more consist- drafters ment ent history with the and purpose of admi- employee new definition of afforded ralty to require also that the wrong bear 2(3) the amended section “does not ex- significant relationship to traditional employees traditionally other cover- clude maritime activity. We hold that unless S.Rep. at 16. II above. ed.” See exists, such relationship arising claims Weyerhaeuser “significant derived its re- airplane accidents are not cogniza- coverage, lationship” test for 528 F.2d at ble in admiralty in the legisla- absence of 961, by quotation direct from Executive Jet tion to contrary. Aviation, Cleveland, City Inc. v. 409 U.S. at 93 S.Ct. at 504. 34 L.Ed.2d decision to the inapposite That issue now Executive entirely Jet is thus inapposite before us. The sole issue in Executive Jet issues before us. Although the issue jurisdiction was whether there was federal there and here each involved a determina- a suit damages resulting over for tion of legislative from an in intent the of utilization waters, crash airplane navigable “maritime,” into the term two entirely different Thus, Industries, Hullinghorst project type Inc. v. Car- maritime that could be roll, (5th 1981), performed by typical 650 F.2d 750 we summa- Cir. a harborworker. See jurisprudential directly some of rized criteria that id. at 112. It furthered the maritime goals have evolved in the of Wyandotte port determination whether facility —the workers —when shoreside areas loading unloading ships. of See & Trotti newly Crawford, 1972 amendment —were Thompson supra v. F.2d 1214 [631 engaged employment” in “maritime within the (5th 1980)], clearly F.2d Cir. at 1220. It upholding coverage, intent. we “realistically significant relationship bore a stated, there 630 F.2d at 756: activity involving to ‘traditional maritime erecting scaffolding navigation Carroll’s work in navigable and commerce on ” integral part indisputably an of an maritime waters’. . .. Odom Construction v. Co. pier repair project, essential Labor, and indis- Dep’t supra, United States 622 F.2d step pensable repairs to be effected. It at 113. That the skills utilized Carroll merely project, not to that “incidental” “essentially were nonmaritime” in character Banks, 593, Corp. see Dravo v. F.2d 595- purpose is immaterial. It is the of the work (3rd 1977) (unskilled spread- Cir. laborer key; applied that is the “nonmaritime” skills ing shipyard salt on ice at project pur- to a maritime are maritime for employment), type maritime was it nor poses of the “maritime test job “peripherally related to maritime matters Mississippi the Act. Coast Marine v. Bo- Congress that said was not to be covered sarge, (5th 637 F.2d 997-98 & n.7 LHWCA, trans-shipment such as 1981); Thompson Crawford, Trotti & v. su- work,” cargo stored or clerical see Odom pra, 631 F.2d at 1221 nn. 16. See Odom Dep’t States Construction Co. United Dep’t Construction v. United Co. States Labor, supra 1980)], F.2d 110 [622 Labor, 112-13. integral step 622 F.2d at 113. It was an a concerned, (quoted above), at 2435-36 in III each with different both the statutes jurisprudential remedy in- concurrent state-federal legislative histories and for “mari- workers, over the course of decades.31 time but local” terpretations as well as the Jet, which involved no holding compre- Executive Unlike Calbeck LHWCA issue, legislation injuries by employees addressed hended “all sustained specific waters,” in its 1927 enact- navigable the LHWCA both here U.S. provided revision for years ment and its 1972 resulted after of tortu- injuries litigation ous attempting to solve the same navigable occurring “upon ment” problem: States,” waters of the United which the doctrine, Under the “maritime but local” interpreted had to include Court in Calbeck state, federal, a instead remedy of a injuries employment course of accorded workman Finally, waters. marine upon general if neither his employment

petroleum “fortuitously” workers are not nor his activities at the time of the accident water, required but are located on relationship “had direct navigation jobs, of their work there the nature or commerce.” Grant Smith-Porter Co. relationship. substantial Rohde, 469, 475-76, (1922). However, 66 L.Ed. 321 Prior VI. No Intention to Reduce Cover- remedy state would be disallowed —and the Injuries: age of On-Water The Con- remedy federal was exclusive —if the Court Ship tribution of Sun employment found that was “not [a] Ship, The rationale in Inc. v. Penn- Sun concern,” matter of purely local but instead sylvania, supra, supports our conclusion had “direct relation to commerce and navi legislative history of the 1972 gation.” Northern Coal & Dock Co. v. amendments reflects no intention to disturb Strand, 142, 144, 88, 89, prior interpretation Calbeck of the Act L.Ed. 232 Ship Sun describes the work-injuries waters uncertainties, hardships, requirement were incurred in maritime litigation by “jurisdictional guess,” purposes of the LHWCA. S.Ct. at that resulted necessity from the on a case case basis to Ship issue Sun was whether the determine amphibious whether an worker’s shoreside extension of the Act’s federal employment had sufficient “direct relation compensation displaced state to commerce navigation” so as to be compensation workers’ applicable laws compensable federal or the state injuries, those a concurrent state on-land remedies respectively. To solve this identi compensation remedy pre- available under problem, cal concurrent state and federal interpretations working- 1972 LHWCA recognized remedies were for “maritime injured men but in “maritime but local” activi- (Davis, local” land-based employees ties. The issue is the obverse of the III), discussed in while Calbeck present, which is: did the held that all 1972 revisions work-injuries any navigable reflect on the intent to remove a federal com- waters were pensation remedy compensable under the formerly available to LHWCA “without amphibious injured regard those to whether the workmen while locus of an event was working local,’ waters? ‘maritime but Neverthe- and hence within the less, similar; generically scope issue is as of state compensation provisions.” Sun recounted, 718-19, Ship 718,100 Ship, U.S. 100 S.Ct. at Sun U.S. at 2435. S.Ct. water, Sohyde notwithstanding injury 31. Our decision in Drill & Marine v. Production, Following Coastal States Gas 644 F.2d 1132 done or consummated on land. Ex- 1981) rationale, maybe distinguished considering leg- likewise as ecutive Jet’s inapposite concerning solely legislative issue, purposes as islative statute we Admiralty Sohyde intent of the Jurisdiction determined that the well in blow-out recognized possess relationship U.S.C. 740. That statute federal did not sufficient maritime admiralty jurisdiction permit admiralty jur- and over cases exercise of the federal injury by caused a vessel on isdiction under the cited statute. remedy by Congress amphibious afforded legislative history Ship examined Sun amendments the same 1972 reports of by workers Act.32 us. 447 U.S. at issue before as are We, similarly Ship, can find no Sun Citing the 719-725, at 2436-39. 100 S.Ct. expressed legisla- intent in the reflected intent to any absence of complete history tive to override interpre- Calbeclds Davis and Cal- the doctrines of abrogate injuries tation that sustained at work on the 1972 amend- beck, the held Court navigable waters were sustained in “mari- as fairly be understood could ments employment” within the meaning time jurisdictional monstrosity “resurrecting the Act; fact, legislative history here opinions clarifying before the that existed II contrary. indicates See above. We Calbeck,” Davis and attempting note that to determine by case that so 2436. The Court also noted case whether an on-water occurs in position “would adopt appellant’s “realistically signifi- with a jurisdiction- employees into the same thrust relationship cant to traditional maritime they by were rescued ac- peril al Travelers Insurance tivity involving navigation Davis and Calbeck v. and commerce 725, 100 at 2439—a 447 U.S. at Co.” waters,” by enunciated that “would blunt the thrust of the result Weyerhaeuser, supra, involves the same dif- amendments, Congress’ and frustrate disagreements ficulties and in determina- to aid maritime workers” intent (see, 28), tions e.g., note as did the unworka- legislation through this “remedial” enacted by ble case case determination the “mari- for the workers.” Id. “out solicitude time but local” test of whether the employ- Ship issue in related to whether Sun relationship ment a “direct naviga- had concurrent state-federal reme- pre-1972 commerce,” tion or see Grant Smith-Porter been diminished dy recognized by Davis had Rohde, supra, rejected that was by Davis Nevertheless, amendments. No more than was the Court Calbeck.. us, Ship’s reasoning, equally it seems to Sun Ship, willing are we Sun to believe that issue generically as to the similar applies Congress its 1972 remedial revisions the us, i.e., whether these same amend- before slightest sign intended —without pre-1972 have ments diminished CalbecWs “jurisdic- intent to do so—to resurrect recognition work-injuries naviga- of all monstrosity” tional created such test being waters as in “maritime ble content, of indeterminate fully terminated purposes interpre- ment” for of the Act —an clarifying interpretations of Davis complementary tation to the concurrent- (1942) and Calbeck remedy interpretation of the Act accorded One final note. We must be mindful that Davis, upon the identical equally based primary intent of the 1972 amendments effectuating the certain and effi- reasons of compensation only cient administration of the was not remedial as to work- Inc., only Ship, S.ct. 65 L.Ed.2d It is fair to state that the Second Circuit 458. Sun per opinion only nothing in its curiam v. Perini held Churchill 1972 Amend- Associates, (2d precludes offering North River 652 F.2d 255 ments a state from com- cert, - -, 1981), granted, pensation employee admittedly to an who is (1982), refusing expanded 71 L.Ed.2d 647 to re- covered under the situs of the Act. II, contrary question cede from Fusco reached a conclu- The distinct of which sion: covered under the Act is controlled analysis Ford, set forth in P. C. Pfeiffer Co. v. question certainly While the not free is supra, applied by doubt, and this Court Fusco II. Ship, from we decline to read Sun Gilmore, Weyerhaeuser See also Co. v. Inc.’s reaffirmation of Davis and Calbeck as cert, (9th denied, 1975), F.2d 957 creating change such a dramatic in the ana- lytical 97 S.Ct. 50 L.Ed.2d 148 set forth in Ford less than framework Ship, Indeed, Brennan, suggesting year We do not read Sun Inc. as a earlier. Justice writ- analysis apply Inc., ing Ship, the Ford should to for the Court in Sun stated injuries occurring juris- on the water itself. We line that circumscribes “[t]he reasoning “compound diction of the is therefore adhere to our Fusco II. LHWCA” ‘status’ and at 258. ‘situs’.” 447 U.S. at ers, strued and such a as to by increasing by way their benefits avoid the coverage jurisdictional Another extending pri- landward. dilemma which existed maritime em- principal purpose to free or to the 1972 amendments. See Sun by indemnity claims vessels on ployers of Ship, Pennsylvania, Inc. U.S. at injured, employees were which their 719-21, 725-26, 2436-37,- at employer’s compensa- that an thus to assure 462-64, 2439, 65 L.Ed.2d at 466-67. “shall be tion under the Act exclu- liability 673 F.2d at 784. liability” sive of all other for place and in injury, Coverage VII. section Afforded Even Under the employment-related 905(a), 905(a). Weyerhaeuser See text at 33 U.S.C. Test express legisla- notes 9 and 10 above. The We coverage further note that of the Act employers of tive intent was to immunize Weyerhaeu- is here afforded even under the injured on a vessel amphibious workers that, i.e., though ser injury even is test- — claims, as that indemnity such herein waters, navigable sustained on the for an by vessel-defendant third- asserted injured employee’s work-activity to be con- against plaintiff Bou- party demand sidered within the of the Act as employer. dreaux’s employment,” If we here determine that Boudreaux activities realistically signifi- must have a was not in “maritime relationship cant to traditional maritime ac- injury time on of his his tivity relating navigation to or commerce exposed employer is to the vessel’s indemni- waters. This is the conclusion ty action, Dispatch, see Miller v. Central panel herein, reached decision Inc., despite 673 F.2d at (Part I), relying F.2d at 464-66 upon a express undoubted and intent reflected holding under similar in Pippen facts legislative reports statutory lan- Co., 1981). Shell Oil F.2d guage exempt all employers to maritime decisions, In both these oil-production from such claim. The history specialty workers were at work on slightest reveals not intention other drilling barges (“vessels”). movable than indemnity this freedom from met, situs unquestionably test was and the granted claim the 1972 amendments was issue was whether these met the intended employers to benefit am- status or “maritime employment” test. vessels, phibious workers such as The substance of the reasoning in these employer present Boudreaux’s in- decisions is forth Pippen, set 661 F.2d at stance. To withdraw from Bou- 383-84: amphibious dreaux and other workers in- case, In the instant jured plaintiff Pippen expand waters to ’ was a operator. wireline At the employers exposure their such time of to indemni- claims, his ty preparing packers well as he was to set to vexatious suits on a case-by-case perforation. those (including basis based on The function of the ves- unseaworthiness), using indefinite sel on Pippen working criteria was to wells; employee’s inju- determine whether the drill gas consequently, Pippen’s ries were or were not the Act. work was essential to the function of the Miller, As we in this stated context su- Pippen’s vessel. More importantly, job pra, necessary completion drilling process. offshore

This result would As contrary run discussed above, clear to determine whether the Congressional intent under the 1972 status satisfied, necessary test is it is amendments include maritime workers examine exchange purpose employee’s the Act nature eliminat- ing the right sue for activities and to unseaworthiness. determine whether those Ship, v. Pennsylvania, realistically significant Sun Inc. activities had a relationship navigation L.Ed.2d at to 466. The LHWCA is liberally to be con- The “significant commerce. relationship” decisions, these and that pur- when the therefore their in- can be met requirement juries coverage were within the of the Act. is to employee’s activities pose of off- commerce. Since facilitate maritime suggestion is contempo- Some made that discovery, recovery, drilling shore (or —the raneous 1972 action rather gas natural of oil and and sale inaction) Congress indicates that did not commerce, it fol- maritime sea bottom —is oil-production consider maritime workers to work Pippen’s purpose lows Act, by be covered as amended in 1972. commerce. maritime was to facilitate failure, placed upon Congress’s Reliance is was Pippen’s work purpose of consideration, Since after to enact the “Tower desig- its perform to enable the vessel bill”, the “Marine Petroleum Workers’ Com- drilling since nated task —offshore However, Act of 1971”.33 pensation assum- —and was, addition, directed at ing legislative the work intent could be deduced from commerce, we are facilitating Congress’s maritime failure to enact legisla- related per- tion, work to conclude that no such inference could be compelled drawn here. realistically sig- had a The Tower bill was intended to by Pippen extend formed coverage petroleum LHWCA to all marine relationship to maritime com- nificant workers; primary purpose, extractive its Thus, Pippen merce. however, relegate was to to the LHWCA of his employment at the time compensation remedy those oil workers as- injury. signed as “members of the crew” to mova- Or, panel majority as summarized barges ble and thus greater entitled to the Boudreaux, at 466: damages afforded the Jones see ruling Pippen dispositive is The Robison, Company Offshore 266 F.2d 769 us, issue. In the case before present 1959)34 (5th Cir. As the Senate committee (like injured on Pippen) was Boudreaux show, hearings it was. conceded both performing waters while wire- industry and labor witnesses that non-crew duties that were an lining employment offshore oil workers were then entitled to essential contribution to the integral or LHWCA benefits if mineral-production function of the vessel waters, platforms or on fixed on the outer working. which he was The work upon shelf, continental and the effort of the bill realistically signif- “has a performed thus only coverage to extend a similar to traditional maritime icant connection oil-worker “crew” members on movable F.2d at activity”, Pippen, barges deny generous and to them the more employment” with- so as to be “maritime remedy.35 Jones Act seaman If infer- of the LHWCA. Congressional ence as to permissi- intent expressions upon jurisprudential surrounding ble from the circumstances are reached are ful- bill, these conclusions non-enactment of the Tower it is that opinions. the cited We see ly set forth Congress legislation felt that no new reiterate them here. it no need to Suffice required to afford LHWCA say, they fully support holdings non-crew oil-workers on navigable injured employees in- these cases that and that it did not wish deprive “significant relationship” met “crew” oil-workers of their volved more lucrative recovery. Act test of maritime enunciated Jones Introductory proposed 34. “Marine Petroleum Workers’ Statement of Senator John 33. See Cong., reprint- Compensation Tower on S. Marine Petroleum Workers’ Act” S. 92d 10,- Longshoremen’s Compensation Cong.Rec. and Harbor Workers’ Act ed Compensation Amendments of 1972: Hear- 490-91 Act Labor, ings Senate Before the Subcommittee on Welfare, See, on S. supra Committee on Labor and Public e.g., Hearings, Senate note Sess., Cong., 396, 402, 411, 451-53, S. and S. 92d 2d 473-76. See also id. at (1972) (hereinafter 487, 581-90, (considered at 24-27 cited as “Senate oil-produc- 602-13 Hearings”). tion workers on the water as in “maritime employment.” (1982). L.Ed.2d The issue Conclusion here, is there the same as and since it is stated, we conclude above For the reasons Court, to be the high now decided I see did not LHWCA amendments that the 1972 us little need for to debate it further. cover- way diminish the traditional naviga- at work age on of workers stated, Simply it is whether there are to the who under Act have been ble different requirements be “status” for em- to be “maritime and are considered coverage according the LHWCA to “situs” required Even were it ployment.” injury. acknowledge As and none employee” a require duties of a held, disputes, Supreme Court in P. C. to maritime com- “significant relationship Ford, Pfeiffer Co. v. Mi navigation”, plaintiff Bou- merce or 328, 62 (1979), L.Ed.2d that after within dreaux is nevertheless revision of LHWCA dual test LHWCA, persons because in the ma- governs coverage: (injury situs on naviga- who work drill- petroleum rine business on ble waters or recently adjoin- their included waters ing vessels areas) (work ing and status in maritime significantly related to mar- employment). According the majority to navigation itime and commerce. Accord- above, opinion whenever worker is judgment of the ingly, we AFFIRM the court, themselves, third-par- that the district held waters both the (Boudreaux’s ty employer) defendant and the requirements status situs of Pfeif- exempted indemnifying vessel ipso fer are facto satisfied. This is to say suit, (defendant party in Boudreaux’s whatever, any work no matter how plaintiffs herein) third-party by statutory nature, landside in becomes “maritime em- provisions according defense to ployment” performed if at a location actu- ers covered the Act. ally such waters that the status test

AFFIRMED. applied Pfeiffer is therefore to be to exclude nonmaritime only on GEE, Judge, with GAR- Circuit whom newly adjoining piers, included areas — WOOD, joins, dissenting: Judge, Circuit wharfs, and so on. Thus semantic leger- panel At the time of the in this decision test demain dual is Pfeiffer effec- appeal, prepared December I tively application cabined in to narrow stating length why filed a some I dissent fringe “adjoining areas” added thought panel views expressed 1972 amendments. opinion were incorrect. Boudreaux v. hold, my view, to largely So is Workover, Inc., American 664 F.2d reverse the principles laid down in Pfeiffer 1981). Judge opin- 469-80 Tate’s Supreme by the Court —a bold stroke in- sufficiently ion for en banc court holding, deed. In so we stand alone among panel similar his for the that I small see major us, maritime But circuits. repeat occasion what I here said there. these, each one degree clarity then, moreover, 22,1982, Since on February another, requires has held “status” the Supreme granted Court certiorari coverage that the work being done at the Associates, Churchill v. Perini River North cert, of a time nature traditionally (2d 1981), 652 F.2d 255 granted significant and bear some Director, sub rela- nom. Office of Workers' tionship Compensation Programs navigation v. Perini North and commerce Associates,-U.S.-, River waters.1 cert, Gilmore, Dynamics, denied, 1. First Circuit: v. Graziano General 528 F.2d (1981); 663 F.2d 340 Second Circuit: Churchill L.Ed.2d 148 Associates, supra; v. governed, it, Perini North River Third Eleventh will be Ias understand Banks, (1977); today Circuit: Dravo v. 567 F.2d our “Old Fifth Circuit” decision unless Ogden, affirmatively contrary. Fourth Circuit: Caldwell it acts to the (1980); Weyerhaeuser Ninth Circuit: me, therefore, weight of authori- To of our opinions

ty represented —as the dictates of reason— sister circuits—and panel to show in the sought

as I have contrary of to the

dissent cited above—are today. I therefore majority’s decision it, pretermitting from

respectfully dissent since the matter will

further discussion by the Court.

shortly be settled America, UNITED STATES Carnes, Dallas, P. Tex., Michael for de- Plaintiff-Appellee, fendants-appellants. Harrison, Christian Asst. Atty., U. S. Tyl- er, Tex., plaintiff-appellee. Butler, Judy John BUTLER Defendants-Appellants. 81-2320

No. Summary Calendar. RUBIN, Before JOHNSON GAR- WOOD, Judges. Circuit Appeals, Court United States Circuit. Fifth RUBIN, B. Judge: ALVIN Circuit July A husband and wife were convicted of conspiring to and of manufacture manu- 25,1982. Rehearing Aug. Denied P2P, facturing a controlled substance. The

husband also on two convicted counts telephone using in furtherance of the conspiracy. They assert that evidence was improperly admitted trial at their and that suppressed improperly evidence was con- Finding their sentencing. sidered at merit, neither contention we has affirm. many points Our resolution of wife, raised husband and John and Butler, is of no Judy precedential value and only parties. is of interest It has manuscript been issued to them in form. Our discussion of point they one raise precedential value and it forth is set below. judge The Butlers contend that the trial considering sentencing erred in the fruits of an unconstitutional search made at a at which they farmhouse were manufactur- ing a controlled A motion substance. suppress granted because affidavit fendant’s criminal- record were materially obtain the search warrant did not made to potential it is untrue. Although cause. doubt- Id. for factual inac probable show suppressed curacy present, evidence these ful that situations is not however, differed presentence reports revealed in the where a fourth amendment viola substantially testimony admitted tion is concerned. Additionally, as Lar trial, judge noted, stated explicitly the district ios court courts have been hesitant to exclusionary rule thought inap- he extend the exclusionary rule to situations he plicable and that would consider where the deterrent value is less than that suppressed evidence. See, in the actual trial a e.g., case. Calandra, 338, United v. States 414 U.S. v. Verdugo United rely Butlers The 348-52, 613, 620-22, 94 S.Ct. 561, 38 L.Ed.2d 599, (9th 1968), 610-13 Cir. States, 402 F.2d (1974) (refusing 571-73 to apply exclusion denied, 925, 931, cert. 397 90 25 ary presented rule to evidence grand jury (1969), which the Ninth Cir L.Ed.2d Houltin, proceeding); United v. States it improper judge cuit held for the trial 1027, (5th Cir.), F.2d 1032-33 (expressing Verdugo such evidence. The court consider doubt exclusionary whether rule should be not, however, lay did down a blanket rule applied testimony coconspirators un situations; rather, required for such it grants der immunity police where weighing of case-by-case potential de learned their knowledge illegal from police effect on In terrent misconduct. denied, wiretaps), 826, cert. 439 U.S. Verdugo blatantly was unconsti search (1978). Therefore, L.Ed.2d tutional and one count of the two-count the district court not did err under these indictment was dismissed once motion considering suppressed circumstances in suppress granted. The court distin sentencing evidence for purposes. guished an earlier case which resentenc ing required there because reasons, For judgments these are AF- evidence, independently adduced, admissible FIRMED.

on the same The also facts. court noted deterrent effect use of

exclusionary rule at sentencing would be

minimal if a conviction were obtained with suppressed.

out the evidence The Ninth judge

Circuit later held trial did not considering abuse his discretion at sen HOME LIFE COMPANY, INSURANCE tencing suppressed evidence to a due tech YORK, Plaintiff-Appellee NEW nical flaw in a search warrant’s underlying Cross-Appellant, Larios, v. affidavit. United States 640 F.2d (9th 1981). 941-42 Cir. EQUITABLE EQUIPMENT COMPANY, permitted We have broad inquiry INC., Defendant-Appellant sentencing into a defendant’s back Cross-Appellee. Barnett, ground, United States F.2d (5th No. Cir.), denied, 80-3874. cert. 60 L.Ed.2d 396 United States Court of Appeals, sentencing judge may consider evi Fifth Circuit. trial, dence inadmissible at United States v.

Gonzalez, (5th 1981), F.2d July prior appeal, convictions overturned Rehearing 25,1982. Aug. Denied Ochoa, United States v. 1981). Ochoa, we noted that a sentencing judge may prior not consider

convictions obtained without counsel assumptions

where of an uncounsélled de- GEE, GARZA,

Before RUBIN and Cir- Judges. cuit RUBIN, ALVIN B. Circuit Judge: single This case turns on a question of law: is an employer liable for the fraudu- misrepresentations lent of his employee made to further the employee’s peculations while apparently acting for the employer in the course of the employer’s business? Our jurisdiction being founded on diversity, as surrogate judges Louisiana we conclude that Louisiana courts would visit responsi- bility on the employer, we, and therefore, affirm judgment of the district court finding the employer Finding liable. the district court did not allow the party third the full measure damages of due, however, we reverse and remand for the entry judgment larger amount owing. we find I.

Home Life (“Home Insurance Company Life”) provided group medical benefits in- surance for the employees of Eq- Equipment uitable Company (“Equitable,” now Equitable Inc.). Shipyards, As is cus- tomary in administering group such poli- cies, Equitable provided the insurance ad- ministrator prepare and handle claims. performed These duties were Equita- employee, ble Bernard Sciambra. Equita- ble employees who made claims under the group medical filled out and signed the employee portion of the claim them, supplied form asked their physi- sign cian to part form, another of that and required attached supporting documents, Redf- & Simon, Peragine, Smith Brian, such as expense medical They bills. sub- Orleans, Jr., Brian, New eam, Morgan A. mitted the documents to pro- Sciambra for cross-appellee. defendant-appellant La., cessing. for It was duty Sciambra’s to verify Herman, Herman, employee-claimant covered, Herman & Russ M. Herman, Shelley Orleans, La., sign employer portion form, C. New and Coughlin, City, Thomas F. New York forward the regional form to Home Life’s plaintiff-appellee cross-appellant. There, office claims in Atlanta. Home processed any liability Life, further to Home but personnel alternatively claims

Life’s drafts, claim, against sought indemnity and Seiambra. prepared payment Upon them mail to Seiambra. returned trial, After a bench the district court Life’s receiving draft from Home At- judge judgment rendered Life in Home office, it to delivered lanta Seiambra $34,706.63 against the amount of Seiambra claimant. Equitable, Equitable against and and for mixture of Equitable submitted a valid Seiambra like amount. Seiambra Home Life. expressly negligence claims to exonerated of in hir- and fraudulent variety ing supervising in a and bogus claims were contrived of Seiambra altering only portions failing activity, to learn his fraudulent ways involved documents, solely such as cast supporting exag- but was on the basis of valid vicarious conclusions, in- gerating facts and liability. medical length and unit

creasing the of time rates II. involved, documents, fabricating of cost signatures physi- of claimants and forging Article 2320 of the Louisiana Civil perpetrator sole cians. Seiambra was the equivalent Code sets forth the Louisiana claims. In these the fraud on some false respondeat superi- rule common law cases, claims, when altered valid Seiambra provides or. part: That article in relevant were completely the claimants unaware of employers Masters and are answerable fraud, pocketed the pro- his Seiambra for the damage occasioned their ser instances, however, Sciam- ceeds. most overseers, vants in the exercise of the conspired with the claimant. When bra they functions in which are employed. payment Home Life’s draft on a fraudulent (West 1979). La.Civ.Code Ann. art. 2320 arrived, the signa- claim obtained Seiambra consider, therefore, We need only whether co-conspirator, draft, of ture his cashed the the harm Seiambra visited Home was split money and the with the named claim- “occasioned ... in the exercise of the func ant. tions in which employed.” [he was] Equitable’s When Home Life pre- raised Lewis, In LeBrane (La. v. 292 So.2d 216 high experience, miums as a result of a loss 1974), (now Justice Judge Tate of Tate this Equitable investigated and learned of court) held a supervisor’s that intentional Equitable Sciambra’s misdeeds. fired stabbing of recently discharged employee co-conspirators and were Seiambra. He his scope was within supervisor’s prosecuted for federal crimes. Seiambra employment, rendering thus employer imprison- was convicted and sentenced to liable for the injuries by super- inflicted He now his ment. has served time and has reaching conclusion, visor. Justice prison. been released from stated, Tate “the tortious conduct of the to Home Life has supervisor Some restitution been closely time, was so connected in place, made Seiambra and certain of his co-eon- and his employment- causation to spirators. But Home Life sustained a net as to regarded duties a risk of harm the money paid loss in connection with it fairly employer’s attributable busi- years. ness, out claims compared fraudulent over as with conduct motivated Life, therefore, Equitable personal Home sued by purely and entirely considerations action, jointly in the instant Seiambra for employer’s extraneous to the interests.” Id. recoupment Equitable loss. denied 218.1 appellate interpreted (2) reasonably

1. One Louisiana court has Whether was inci- [act] setting four-part performance employ- LeBrane as forth test dental to the employee duties; acting determine whether was ee’s scope employment: (3) employ- within the Whether the act occured on the premises; er’s and (1) primarily Whether act tortious (4) during Whether it occurred the hours of employment-rooted; employment. 2320, LeBrane, article cer- ment defined conduct was fraudulent Sciambra’s Miller, to his place and Equitable in time liable for his connected tainly judge court The district employment. conduct.3 claims fraudulent that 90% of the found holding accords with result This Equita- job-site, on at the concocted were Wiseman, (La.Ct.App. Riley So.2d was also conduct Sciambra’s ble’s time. held em- 1981). There the court duties to his causally related agency liable for the ployer-insurance found, judge district Equitable. As the damage resulting from the of bo- issuance were accom- claims of the fraudulent 90% employee: gus performance bonds its Equita- with through plished collaboration employee’s personally “although actions fraud- Most of the employee-claimants. ble motivated, closely were so interwoven with exaggerations of essen- ulent claims were employer’s his can be said business it can it be said that Nor tially valid claims. risk fairly to be ‘a of harm attributable “motivated conduct Sciambra’s ” employer’s (quot- business.’ Id. at 387 entirely ex- considerations purely personal Co., ing Mays v. Pico Fin. 339 So.2d 382 Le- employer’s interests.” traneous (La.Ct.App.1976), denied, writ 341 So.2d Brane, This a case at 218. is not 292 So.2d (La.1977)).4 his turned aside from employee an where responsibilities duties ordinary The result same wduld obtain under actions a crime. Sciambra’s perpetrate concept respondeat common su law to fit his nor- carefully contrived into were virtually which is perior identical events.2 and the usual course of duties mal concept liability civil law set Therefore, act- vicarious we that Sciambra was hold scope course of his forth article 2320.5 The Restatement ing in the cases”); Note, Corporation’s Liability (La.Ct.App. Keating, So.2d for Inten- Miller 1976) Supreme Change con- Torts Court Louisiana tional of its President —A . appeals, “Scope,” (1978) (“The applied Loy.L.Rev. test court of sidered the however, and stated: trend modern ployer’s ... has been to extend an em- suggest responsibility in LeBrane that did not mean to We for intentional torts of employer’s liabili- reasonably all cases vicarious in ty his which are connected employee employment.”). the intentional torts his with met four inclusive factors must be that these liability was our be found.... It before can [employer] 4. fact was without [T]he general evaluation circumstances knowledge employee’s] peculations of [the being which in LeBrane as one the tort and did as a thereof is not benefit result dispute relating em- evolved out of a liability likewise it from insufficient excuse reasonably ployment, one incident which consequences of his The test deceit. employee, as a to the steward’s duties hotel determining responsibility princi- of a closely and one which was connected agent pal type in this case is whether the (rather purely personal those duties matter) than a apparent authority was cloaked with the prompted regard the which us to perform the acts resulted in the loss incident as one where the risk of harm fairly actually and not he was with whether vested employer’s business. attributable to the authority. such (La. Keating, v. Miller 349 So.2d 268-69 Co., Supply Yoars v. New Orleans Linen 1977) . 1939). (La.Ct.App. So. Parker, Poydras (La. See So.2d 2. n.3, Ogima, 5. See Blanchard v. 253 La. (“the Ct.App.1980) fact mere that an (La. 1968) (“There 215 So.2d 905 n.3 is a contrary employer’s conduct is to his ex- ee’s parallel development history of vicarious directions, press wishes conclu- rules or is not liability juris- [the civilian common law] scope employment”). sive issue of with dictions almost simultaneous extensions responsibility by or limitations of statute or Equitable be that article 2320 is to asserts jurisprudence.... actually However, So the common strictly recent Louisiana construed. present departure law does from our not it. cases have so construed See LeBrane Comment, field.”); Lewis, (La.1974) (“aside law Tort Law civilian in this 292 So.2d 218 n.3 Supplementary opin- expressions in Louisiana —The Tort Articles from isolated ions, in intermediate 2317-2322, (1969) authority support 44 Tul.L.Rev. we find no modern holding strictly (“Louisiana jurisprudence equated requirement has employer phrase in tort ‘in functions in construed favor of the the exercise

Case Details

Case Name: Keith A. Boudreaux v. American Workover, Inc., Awi, Inc., Third-Party v. American Insurance Co., Third-Party

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 6, 1982

Citation: 680 F.2d 1034

Docket Number: 80-3287

Court Abbreviation: 3rd Cir.