finding that “an employee injured on the waters in the course of his employment satisfies the 1972 revision’s ‘maritime employment’ test”
How later courts described this case
- finding that “an employee injured on the waters in the course of his employment satisfies the 1972 revision’s ‘maritime employment’ test”
- noting that, had the drilling-vessel injury at issue taken place on the OCS, the operator’s indemnity claim against the injured contractor’s employer would clearly have been barred by the LHWCA
- stating that the 1972 definition of maritime employment includes all employment on navigable waters
Written by the judges who cited it.
The opinion
GEE, Circuit Judge, with whom GAR-WOOD, Circuit Judge,
joins, dissenting:
At the time of the panel decision in this appeal, December 7, 1981, I prepared and filed a dissent stating at some length why I thought the views expressed in the panel opinion were incorrect. Boudreaux v. American Workover, Inc., 664 F.2d 463, 469-80 (5th Cir. 1981). Judge Tate’s opinion for the en banc court is sufficiently similar to his for the panel that I see small occasion to repeat here what I said there. Since then, moreover, on February 22,1982, the Supreme Court granted certiorari in Churchill v. Perini North River Associates, 652 F.2d 255 (2d Cir. 1981), cert, granted sub nom. Director, Office of Workers' Compensation Programs v. Perini North River Associates,-U.S.-, 102 S.Ct. 1425 , 71 L.Ed.2d 647 (1982). The issue there is the same as here, and since it is now to be decided by the high Court, I see little need for us to debate it further.
Simply stated, it is whether there are to be different “status” requirements for LHWCA coverage according to the “situs” of the injury. As all acknowledge and none disputes, the Supreme Court held, in P. C. Pfeiffer Co. v. Ford, Mi U.S. 69, 100 S.Ct. 328 , 62 L.Ed.2d 225 (1979), that after the 1972 revision of the LHWCA a dual test governs coverage: situs (injury on navigable waters or their recently included adjoining areas) and status (work in maritime employment). According to the majority opinion above, whenever a worker is injured on navigable waters themselves, both the status and the situs requirements of Pfeif-fer are ipso facto satisfied. This is to say that any work whatever, no matter how landside in nature, becomes “maritime employment” if performed at a location actually on such waters and that the status test of Pfeiffer is therefore to be applied to exclude coverage as nonmaritime only on the newly included adjoining areas — piers, wharfs, and so on. Thus by semantic legerdemain the dual test of Pfeiffer is effectively cabined in application to the narrow fringe of “adjoining areas” added by the 1972 amendments.
So to hold, in my view, is largely to reverse the principles laid down in Pfeiffer by the Supreme Court — a bold stroke indeed. In so holding, we stand alone among the major maritime circuits. But for us, each of these, to one degree of clarity or another, has held that “status” requires for coverage that the work being done at the time of injury be of a nature traditionally maritime and bear some significant relationship to navigation and commerce on navigable waters. 1
*1055 To me, therefore, the weight of authority — as represented by the opinions of our sister circuits — and the dictates of reason— as I have sought to show in the panel dissent cited above — are to the contrary of the majority’s decision today. I therefore respectfully dissent from it, pretermitting further discussion since the matter will shortly be settled by the Court.
. First Circuit: Graziano v. General Dynamics, 663 F.2d 340 (1981); Second Circuit: Churchill v. Perini North River Associates, supra; Third Circuit: Dravo v. Banks, 567 F.2d 593 (1977); Fourth Circuit: Caldwell v. Ogden, 618 F.2d 1037 (1980); Ninth Circuit: Weyerhaeuser v.
Gilmore, 528 F.2d 957 , cert, denied, 429 U.S. 868 , 97 S.Ct. 179 , 50 L.Ed.2d 148 (1976). The Eleventh will be governed, as I understand it, by our “Old Fifth Circuit” decision today unless it affirmatively acts to the contrary. *1059 Miller v. Keating, 339 So.2d 40, 44 (La.Ct.App. 1976) . The Supreme Court of Louisiana considered the test applied by the court of appeals, however, and stated:
We did not mean to suggest in LeBrane that in all cases of an employer’s vicarious liability for the intentional torts of his employee that these four inclusive factors must be met before liability can be found.... It was our general evaluation of the circumstances of the tort in LeBrane as being one which evolved out of a dispute relating to the employment, one which was reasonably incident to the steward’s duties as a hotel employee, and one which was closely connected to those duties (rather than a purely personal matter) which prompted us to regard the incident as one where the risk of harm was fairly attributable to the employer’s business.
Miller v. Keating, 349 So.2d 265, 268-69 (La. 1977).