Petition — Stansbury v. Chevron U.S.A. Inc.

NUMBER: 82-824

ALEXANDER L. 6TEVAS,

CLERK

UNITED STATES SUPREME COURT

1982-1983 TERM

EFFIE ROY STANSBURY, Personal Representative

of the Estate of Larry R. Stansbury,

Plaintiff-Applicant

VERSUS

SIKORSKI AIRCRAFT, Defendant,

CHEVRON, USA, Defendant~-Responden*

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GARY E. THEALL

THEALL & FONTANA

POST OFFICE BOX 877

ABBEVILLE, LA 70510

318-893-7142

QUESTIONS PRESENTED FOR REVIEW

1. Where an employer-owned helicopter

crashes into the high seas above the outer

continental shelf, killing an employee, do

the survivors of the employee have a remedy

under the Death On the High Seas Act?

2. Does the Outer Continental Shelf

Lands Act ("Shelf Act") apply to the high

seas despite its express language to the

contrary?

3. Does the Shelf Act, by adopting the

Longshoremen's and Harbor Workers’ Compen-

sation Act ("“Longshoremen's Act"), deprive

the widow and child of a remedy which they

otherwise would have had, despite the express

language in the Shelf Act to the contrary?

4. Under the facts of this case, do the

survivors of the employee have a remedy under

the general maritime law?

5. If the Longshoremen's Act applies,

does it include land-based executive

personnel who are not platform workers?

ale

TABLE OF CONTENTS

Questions Presented For Review. .

Table of Contents. ... .

Reports of Opinions Below.

Statemert of Jurisdiction.

Statutes Involved. ... .«

Statement of the Case. . .

Argument . > . 7 * 7: * * 7.

Appendix

Trial Court Memorandum Opinion

Fifth Circuit Opinion.

Text of Statutes...

Certificate of Service ...+. «+ -

REPORTS OF OPINIONS BELOW

1. The Memorandum Opinion of the trial

judge dated June 9, 1981, is not reported. A

copy of the opinion appears in the Appendix —

to this Petition.

2. The opinion of the Fifth Circuit

Court of Appeals is reported at 681 F. 2d

948.

STATEMENT OF JURISDICTION

Petitioner seeks review of the judgment

of the Fifth Circuit Court of Appeals dated

July 22, 1982. Petitioner did not file an

application for rehearing.

The helicopter crash occurred on the

highs seas above the outer Continental Shelf

outside the jurisdiction of any state.

Jurisdiction is based on the following

statutes:

Federal Question Jurisdiction 28 U.S.C.A.

§1331.

Death On the High Seas Act 46 U.S.C.A.

$761 et seq.

General Maritime Law 28 U.S.C.A. §1333-

Outer Continental Shelf Lands Act 43

U.S.C.A. §1331 et seq.

STATUTES INVOLVED

1. Death on the High Seas Act, 46

U.S.C.A. §§761 et seq.

2. Outer Continental Shelf Lands Act, 43

U.S.C.A. §§1331 et seq. ("Shelf Act").

3. Longshoremen's and Harbor Workers’

Compensation Act, 33 U.S.C.A. §§901 et seq.

(“Longshoreman's Act").

[See Appendix for pertinent text.]

STATEMENT OF THE CASE

This case presents questions of great

importance to the coastal states. These

questions should be answered by the United

States Supreme Court, and have not previously

been answered.

Larry R. Stansbury was employed by

Chevron, USA, as chemical and process fore-

man. He was based on land in the Lafayette

office of Chevron, nowhere near any pier,

wharf, dry dock, terminal, buildingway,

marine railway, or any area adjoining navi-

gable waters. He was a salaried employee on

the executive level. His duties included

supervision and coordination of painting

projects on land and offshore; supervision of

painting contractors; allocating supplies;

keeping records; preparing budgets. He was

considered supervisory personnel. He did no

manual labor, just visual inspection and

paperwork. The paperwork was done in his

office on land in Lafayette. The manner in

4

which he accomplished his duties was left to

his discretion. He worked Monday through

Friday, eight hours per day. He was out of

his office three or four times per week to

inspect sites, some of which were on land and

some offshore. He was assigned a permanent

company car. He was not permanently assigned

to any platform or land rig. He normally

returned to his home at the conclusion of

each workday. He sometimes returned home

directly from a rig site without going back

to his office first.

On July 18, 1980, Stansbury was on a

platform in the Gulf of Mexico. He had

finished his duties, and was awaiting a

helicopter to carry him back to shore. He

telephone his wife, and told her that he had

completed his duties and had missed one

helicopter ride, but would catch the next.

He wanted to go straight home since he and

his wife were to dine that night with a

relative from Germany who was visiting in

Abbeville. Shortly thereafter, Stansbury

5

boarded a Sikorsky helicopter owned by his

employer. While flying over Eugene Island

Block 296, Gulf of Mexico, the helicopter

crashed into the high seas more than a marine

league off the coast of the state of

Louisiana. Stansbury and others were killed

in the crash. Some of the injured parties

were not employees of Chevron.

Suit was filed in September, 1980, by the

personal representative of the estate of

Larry R. Stansbury on behalf of herself as

surviving spouse and on behalf of Frankie

Gale Stansbury, infant daughter of the dece-

dent, alleging that decedent was killed in a

helicopter crash on the high seas more than a

marine league off the coast of Louisiana.

The suit was brought under the provisions of

the Death on the High Seas Act, the Jones

Act, General Maritime Law, and all other

applicable laws, against Chevron, USA (owner

of the helicopter and employer of the dece-

dent), and against Sikorsky Aircraft (manu-

facturer of the helicopter).

6

Defendant Chevron, USA, filed a motion

for summary judgment on the ground that dece-

dent was not a Jones Act seaman, and that the

Longshoremen's and Harbor Workers’ Act

provided the exclusive remedy.

Plaintiff filed a motion for summary

judgment to the effect that she had a remedy

under the Death on the High Seas Act, since

the death occurred on the high seas more than

@ marine league from shore. Affidavits and

depositions were filed into the record by

both sides.

The trial court granted Chevron's motion

for summary judgment and dismissed them from

the case with full prejudice. Plaintiff's

motion for summary judgment as to a remedy

under the Death on the High Seas Act was

denied. On appeal, the Fifth Circuit

affirmed in an opinion which failed to

address the claim under the Death on the High

Seas Act.

ARGUMENT

APPLICABILITY OF DEATH ON THE HIGH SEAS ACT

The opinion of the Fifth Circuit Court of

Appeals held that the decedent was not a

seaman, and therefore the exclusive remedy of

his survivors is under the Longshoreman's

Act. The opinion fails to discuss the avail-

ability of a remedy under general maritime

law or the Death on the High Seas Act, 46

U.S.C.A. §§ 761 et seq., which provides in

part:

Whenever the death of a

person shall be caused by wrongful

act, neglect, or default occurring

on the high seas beyond a marine

league from the shore of any State,

or the District of Columbia, or the

Territories or dependencies of the

United States, the personal represen-

tative of the decedent may maintain a

suit for damages in the district

courts of the United States, in

admiralty, for the exclusive benefit

of the dededent's wife, husband,

perent, child, or dependent relative

against the vescel, person or co

ration which would hawe been liable

if death had not ensued.

This act has been held on numerous occasions

to apply to crashes of aircraft into the high

seas, provided there is a maritime connec-

8

tion. Roberts v. U.S., 498 F. 24 520 (9th

Cir, 1974), cert. denied, 95 S. Ct. 656;

Higginbotham v. Mobil Oil Corp., 357 F.

Supp. 1164, 360 F-Supp. 1140, 545 F. 24 422,

494 (5th Cir. 1977), 56 L. Ed 24 581, 578 F.

2d 565; and numerous other cases.

The Death on the High Seas Act was

enacted in 1920 to provide a wrongful death

action on the high seas. The need for this

act existed because state wrongful death

statutes were already being applied by the

courts in territorial waters, yet no

remedy existed for wrongful death on the high

seas. {Since that time, however, the Supreme

Court has recognized a wrongful death action

in both territorial waters and the high seas

under general maritime law. Moragne v.

States Marine Lines, Inc., 398 U.S. 375, 90

S. Ct. 1772 (1970).]

A case which is very important to a

proper analysis of the issues presented

herein is The Linseed King, 285 U.S. 502, 52

S. Ct. 450 (U.S. 1932). The defendant corpo-

9

ration owned a vessel which it usea to

transport its employees from one side of the

Hudson River to its plant on the other side.

The vessel, which was not equipped to run in

ice, collided with an ice floe and sank,

resulting in considerable loss of life.

Survivors of the employees sued the employer

in the admiralty court. The employer argued

that their exclusive remedy was state work-

men's compensation. The court disagreed:

The petitioners maintain, first,

that the state statute providing

workmen's compensation is inappli-

cable te the maritime torts here in

question and that they were entitled

to relief under the maritime law or

the death statutes of New York

adopted as part of that systen.

«++ As we think the first contention

well founded we have no occasion to

pass upon the second.

Kellogg & Sons undertook the

interstate carriage of passengers by

water on a launch operated by its

servants. This was a maritime

matter. The ferriage was for the

facilitation of the company's busi-

ness and for its convenience as well

as that of the employees. The injury

to the passengers resulted rom

negligence of the company's agents in

the navigation of the launch. It was

a maritime tort. «+eAs the tort,

though maritime, was committed upon

the waters of the state of New York,

10

the personal representatives of those

who lost their lives were entitled

to sue in admiraity and to recover as

provided by the state statute giving

a remedy for death by wrongful act.

52 S. Ct. at 453. Ignoring the effect of the

Longshoreman's Act for the time being, the

Linseed King makes it clear that an employee

does have a remedy against his employer under

maritime tort and under the Death of the High

Seas Act (the high seas counterpart of the

state death statutes).

Under the Death on the High Seas Act, the

only requirements are 1) death 2) by wrongful

act consummated on the high seas 3) more than

a marine league from shore. All of those

requirements are met in this case.

Stansbury's widow and child must be held to

have a remedy under the Death on the High

Seas Act, unless the court finds that the

Longshoreman's Act, as adopted by the Outer

Continental Shelf Lands Act, somehow operates

to extinguish this remedy which would other-

wise exist.

1l

Applicability of General Maritime Law

In addition to the remedy under the Death

on the High Seas Act, the survivors also have

a remedy under general maritime . law.

Moragne, supra, clearly established a wrong-

ful death action under general maritime law.

The crash of an aircraft into the high seas,

when there is a maritime connection, has been

held to be cognizable in admiralty as a mari-

time tort. Noel v. United Aircraft Corp.,

204 F. Supp. 929 (Del. 1962); Wilson v.

Transocean Airlines, 121 F. Supp 85 (Cal.

1954). As discussed above, the Linseed King

makes it clear that an employee can sue his

employer for maritime tort. Stansbury ''s

survivors must therefore also be held to have

a Moragne remedy, unless this court finds

that the Longshoremen’s Act, as adopted by

the Lands Act, somehow operates to extinguish

this remedy which would otherwise exist.

Inapplicability of the Shelf Act

The Outer Continental Shelf Lands Act, 43

U.S.C.A. $$1331 et seq. ("Shelf Act")

12

adopted in 1953, extended the jurisdiction of

the United Sates to the submerged lands of

the outer continental shelf. The act is

replete with references which make it clear

that the act affects only the subsoil and

seabed of the shelf, and not the seas. The

act defines “outer Continental Shelf" as all

submerged lands lying seaward and outside of

the area of lands beneath navigable waters.

43 U.S.C.A. §1331. The jurisdiction of the

United States is extended to the subsoil and

seabed of the outer Continental Shelf. 43

U.S.C.A. §1332(1). Extremely pertinent is

§1332(2), which provides:

This subchapter shall be construed in

— a manner that the character of

waters above the Outer

Seer norte She as high seas

g g

therein shall not be affected.

(Emphasis added. )

The Constitution and laws of the

United States are extended to the subsoil and

seabed of the outer Continent:.1 Shelf, and to

artifical islands attached to the seabed. 43

13

U.S.C.A. §1333(a)({1). The laws of the adja-

cent states, insofar as not inconsistent with

Federal law, are adopted for the subsoil and

seabed and artificial islands thereon. 43

U.S.C-A. §1333(a)/2). The Longshoreman's Act

is adopted as the worker's compensation on

the outer Continental Shelf and the artifi-

cial islands. 43 U.S.C.A. §1333(b).

The drafters of the act could not

have been more clear in expressing the

congressional intent not to affect the law as

it related to the high seas. One of the

primary laws which the Congress must have had

in mind is the Death on the High Seas Act.

General maritime law is also unaffected by

the Lands Act. This result has been reached

in several cases.

In Guess v. Read, 290 F.2d 622 (5th

Cir. 1961), a helicopter crashed into the

high seas off Louisiana, killing plaintiff's

decedent. The issue was whether the

Louisiana Direct Action Statute could be

14

invoked to allow a direct action against the

insurer. The court held no:

The Continental Shelf Act was enacted

for the purpose, primarily, of

asserting ownership of and

jurisdiction over the minerals in and

under the Continental Shelf.

Jurisdiction was asserted over “the

subsoil and seabed" of the outer

Continental Shelf. ...It is only for

“that portion of the subsoil and

seabed of the outer Continenial

Shelf, and artificial islands and

fixed structures erected thereon”

that the State law applies. ...This

does not include the sea above the

Bubsoil and seabed and does not

include the air above the sea. That

s is e intent is further shown

by the provision that the Act “shall

be construed in such a manner that

the character as high seas of the

waters albove the outer Continental

Shelf and the right to navigation and

fishing therein shall not be

affected."

(Emphasis added.) In other words, the Court

held that the adoption of State law by the

Shelf Act did not make state law applicable

to the high seas, since the Act itself

applies only to the subsoil and seabed.

Applying this result to the instant case, the

conclusion is unavoidable that the Shelf Act

is inapplicable.

15

The Lands Act specifically provides that

the adoption of the Longshoremen's Act was

not intended to exclude the application of

other laws. This is provided in 43 U.S.C.A.

§1333 (f):

Provisions as non-exclusive

(f) The specific application by

this section of certain provisions of

law to the subsoii and seabed of the

outer Continental Shelf and the

artifical islands, installations, and

other devices referred to in

subsection (a) of this section or tc

acts or offenses occurring or

committed thereon shall not give rise

to any inference that the application

to such islands and structures, acts,

or offenses of any other provision of

law is not intended.

Inapplicability of the Longshoremen's. Act

It goes without saying that if the Lands

Act is inapplicable, the Longshoreman's Act

is also inapplicable. However, in the event

that the court should find that the Lands Act

is applicable, which is denied, there are

compelling reasons why the Longshoreman's Act

still does not apply.

First, Stansbury was a land-based

employee. He had his own office in

16

Lafayette, Louisiana, nowhere near a “pier,

wharf, dry dock, terminal, buildingway,

marine railway, or any area adjoining navi-

gable waters customarily used for loading and

unloading vessels" as required by the Act.

33 U.S.C.A. §§ 902(4), 903. He was out of

his office three or four times per week,

sometimes inspecting land sites, and some-

times offshore sites. He was assigned a

permanent company car. He normally returned

home at the conclusion of each eight-hour

work day. He was not assigned to any parti-

cular iand or offshore rig.

Secondly, Stansbury was executive, super-

visory personnel, and not a laborer. He was

a chemical and process foreman. His duties

consisted of supervision and coordination of

painting projects on land and offshore;

supervision of painting contractors; allo-

cating supplies; keeping records; preparing

budgets. He did no manual labor, just visual

inspection and paperwork. The manner in

which he accomplished his duties was left to

17

his discretion. He was not a longshoreman,

harbor worker, or any kind of manual laborer

by any stretch of the imagination.

Thirdly, the Longshoreman's Act has never

been interpreted as exclusive. Fven before

the 1972 amendments, the “twilight zone"

existed in which a worker could elect the

state remedy and reject the Longshoreman's

coverage. Davis ¥. Department of Labor, 317

U.S. 249, 63 S. Ct. 225 (1942). As recently

as last year, the Supreme Court held that the

1972 landward extension of the Longshoreman's

Act was intended to supplement, rather than

supplant, state law. Sun Ship, Inc. v.

Pennsylvania, 100 S. Ct. 2432 (1980). By

analogy, the extension of the Longshoreman's

Act would supplement, rather than supplant,

maritime law. Nowhere is there any indica-

tion the Longshoreman's Act was intended to

deprive parties of maritime rights which they

had prior to the passage of the Lands Act and

the 1972 amendments to the Longshoreman's

Act. For the court to hold that Stansbury'‘s

18

survivors’ exclusive remedy is under the

Longshoreman's Act would be to hold that they

have lost maritime rights which they clearly

had before the passage of these Acts.

Fourthly, the cases relied upon by

defendant do not require a finding that this

is a Longshoreman's case. In Nations vy.

Morris, 483 F. 24 577 (Sth Cir. 1973), the

plaintif£ was assigned to a fixed platform

and was injured by a fellow servant on the

platform. The court held that the Longshore-

man's Act provided the exclusive remedy

against the employer and fellow servant.

There were no issues of Death on the High

Seas, Moragne death action, land-based execu-

tive personnel, or any other issues that we

have in the instant case. Nations is not

controlling. In another case relied upon by

defendant, Billings v. Chevron, USA, 618 F.

24 1108 (Str Cir. 1980), The plaintiff worked

as a roustabout on a platform, ate and slept

on the platform, and his duties consisted of

loading and unloading vessels. The court

19

held that he was not a Jones Act seaman.

Again there are no common issues between

Billings and Stansbury. Billings is not

controlling. Likewise, all of the other

cases relied upon by defendant involve

platform events. This is not a platform

case.

Fifthly, if this court should hold that

the Longshoreman’s Act applies to this death

on the high seas, it would mean that state

law also applies to the high seas. This is

true because the same section of the Shelf

Act adopts both state law and the Longshore-

man’s Act, so that if one applies, they both

apply. This would directly contradict Guess,

supra, ‘hich held that state law does not

apply on the high seas above the Continental

Shelf.

Finally, it is submitted that it is not

clear that decedent was acting within the

course and scope of his employment at the

time of the helicopter crash, and therefore

it was improper: for the judge to grant

20

summary judgment, even if the court should

find that the Longshoreman's Act is appli-

cable, which is denied.

21

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFPAYETTE-OPELOUSAS DIVISION

EFFIE ROY STANSBURY, PERSONAL

REPRESENTATIVE OF THE ESTATE

OF LARRY R. STANSBURY

vs. CIVIL ACTION NUMBER 801459

SIKORSKI AIRCRAFT and SECTION &

CHEVRON, USA

MEMORANDUM OPINION

This cause came for hearing before the

Court on April 21, 1981, upom Cross Motions

for Summary Judgment filed on behalf of

plaintiff and Chevron, USA. The Court

reviewed the briefs, heard oral argument and

Genied the plaintiff's Motion for Summary

Judgment and granted the defendant's Motion

for Summary Judgment for the reasons stated

below.

The plaintiff in this cause of action is

the personal representative of the Estate of

Larry R. Stansbury. On July 18, 1980, the

decedent was employed by Chevron, USA as a

22

Chemical and Process Foreman. He was

assigned to and worked o.* of the Lafayette,

Louisiana office of Chevron, USA and normally

returned to his family and residence in

Abbeville, Louisiana, at the conclusion of

each day's work. On the above date, Mr.

Stansbury was a passenger in a helicopter

owned by Chevron and manufactured by Sikorski

Aircraft. The helicopter was flying over the

Gulf of Mexico, off the coast of Louisiana.

Shortly aiter departing from a structure in

Eugene Island Block 305, the helicopter

crashed into the Gulf of Mexico, causing the

death of Mr. Stansbury.

The issue which was before the Court was

whether plaintiff's decedent was a seaman

under the provisions of the Jones Act, 46

U.S.C. §688. In order to determine whether

or not someone is a seaman, they must meet

three requirements:

1. The vessel involved must be in

navigation;

2. There be a more or less permanent

connection with that vessel; and,

3. The worker must be aiding in the

navigation of the vessel.

Beard v. Shell Oil Co., 606 F.2d 515 (5th

Cir. 1979); Davis v. Hill ineering, 549

F.24 314 (Sth Cir. I977); Oe vehers 4 v.

re v. Sea Drillin ation, 610

o Yr > >

It is clear from the affidavit submitted

by the defendant and the record that the

decedent had no permanent connection to any

vessel. He had no function whatsoerer with a

vessel as it related to aiding navigation.

Decedent was simply a chemical and process

foreman who died in the crash of a helicopter

which was in airflight from an offshore

structure back to land.

Inasmuch as this Court has found that the

decedent has not met the test for seaman

status, any cause of action against his

employer, Chevron, USA, is subject to the

provisions of the Outer Continental shelf

Lands Act, 43 U.&S.C. §1301, et seq. Under

this statute, the death or disability of an

employee is compensable under the provisions

of the Longshoremen's and Harbor Workers’

24

Compensation Act 33 U.S.C. §901, et. seq.

This Act provides that it is the

employer's responsibility for injuries and

death suffered by its employees. Conse-

quently, an employer is not subject to suit

in tort by an injured employee. The Act

provides, in part:

"(i) The right to compensation or

benefits under this chapter shall be the

exlusive remedy to an employee when he is

injured, or to his eligible survivors or

legal representatives if he is killed, by the

negligence or wrong of any other person or

persons in the same employ: Provided, that

this provision shall not affect the liability

of a person other than an officer or employee

of the employer." 33 U.S.C. §933 (i).

Opelousas, Louisiana, June 9 , 1981.

S/ JOHN M. SHAW

UNITED STATES DISTRICT JUDGE

25

EFFIE ROY STANSBURY, Personal Representative

of the Estate of Larry R. Stansbury,

Plaintiff- Appellant,

Vv.

SIKORSKI AIRCRAFT, Defendant,

CHEVRON USA, Defendant~-Appellee.

No. 81-3270

United States Court of Appeals

Fifth Circuit.

July 22, 1982.

Appellant Effie Roy Stansbury is the

personal representative of the Estate of

Larry R. Stansbury, her deceased husband. On

July 18, 1980, the decedent was employed by

Chevron as a chemical and process foreman.

His office was in Lafayette, Louisiana, but

his duties included traveling three to four

times per week to drilling sites both off-

shore and on land to supervise and inspect

painting projects. The offshore drilling

rigs were “fixed” rigs. He was not perma-

nently attached to any platform or land

26

rig and normally returned home at the conclu-

sion of each work day. On July 18, 1980,

Stansbury inspected a paint job on a platform

in the Gulf of Mexico. After he finished his

duties, he boarded a Sikorski helicopter

owned by Chevron. While flying over Eugene

Island Block 296, Gulf of Mexico, the heli-

copter crashed into the sea, causing the

death of Stansbury.

In September 1980, Mrs. Stansbury filed

suit on behalf of herself as surviving spouse

and her daughter under Death on the High Seas

Act (DOHSA), the Jones Act, and general mari-

time law against Chevron and Sikorski Air-

craft. Chevron filed a motion for summary

judgment alleging that Stansbury was not a

Jones Act seaman and that, therefore, Long-

shoremen's and Harbor Workers’ Compensation

was the exclusive remedy under the Outer

Continental Shelf Lands Act, 43 U.S.C.A.

$1331, et seq. (OCSLA). The district court

granted the motion and Mrs. Stansbury

appealed, claiming that her husband

27

was a Jones Act seaman and that she has a

cause of action under DOHSA and general

maritime law. We hold that the

Longshoremen's and Harbor Workers’

Compensation is the exclusive remedy against

Chevron and affirm the judgment of the

district court.

The Outer Continental Shelf Lands Act

incorporates the remedies of the

Longshoremen's and Harbor Workers’

Compensation Act, 33 U.S.C.A. §§901 et seq.

(LHWCA), for employees injured while involved

in drilling operations in the Outer

Continental Shelf (OCS):

(b) Longshoremen's and Harbor Workers’

Compensation Act applicable; definitions.

With respect to disability or death of an

employee resulting from any injury

eccurring as a result of operations,

conducted on the outer Continental Shelf

for purpose of exploring for, developing,

removing, or transporting by pipeline the

natural resources, or involving rights to

the natural resources, of the subsoil and

seabed of the outer Continental Shelf

compensation shall be payable under the

provisions of the Longshoremen's and

Harbor Workers’ Compensation Act (33

U.S.C. §§901 et seq.). For the purposes

of the extension of the provisions of the

Longshoremen's and Harbor Workers’

Compensation Act under this section--

(1) the term “employee” does not

include a master or member of a crew

of any vessel, or any officer or

employee of the United States or any

agency thereof or of any state or

foreign government, or of any

political subdivision thereof;

(2) the term “employer" means an

employer any of whose employees are

employed in such operation; and

(3) the term “United States" when

used in a geographical sense includes

the outer Continental Shelf, and arti-

ficial islands and fixed structures

thereon. 43 U.S.C. $1333(3)(b).

We have construed this section to apply

to injuries occurring as a result of the

operations described without regard to the

physical situs of the injury. Nations v.

Morris, 483 F.2d 577, 584 (Sth Cir. 1973),

cert. denied, 414 U.S. 1071, 94 &.Ct. 584, 38

L.Ed.2d 477 (1973). Because OCSLA provides

its own status requirement--"“employed in

operations for purpose of exploring for,

developing, removing, or transporting by

pipeline the natural resources, or involving

rights to natural resources, of the subsoil

and seabed of the Outer Continental

Shelf"--Stansbury need not be engaged in

29

“maritime employment" as is required under

the LHWCA. Thus, there is no need for an

employee to whom OCSLA applies to indepen-

dently satisfy the two-fold situs and status

test for LHWCA coverage. Longmire v. Sea

Drilling Corp., 610 F.2d 1342 (5th Cir.

1980). The OCSLA incorporated only the

remedies, not the criteria, of the LHWCA.

This includes 33 U.S.C. §933(i) which

provides that the workers’ compensation is

the exclusive remedy of an injured employee.

Stansbury meets the status criteria set

out in OCSLA. Chevron is engaged in Oocs

extractive operations and thus meets the

definition of employer. Stansbury was

inspecting work done under his supervision on

a fixed rig located on the ocs.! His work

ad ;

l. OCSLA does not exclude supervisory

personnel from its definition of employee.

Since the definition of employees did exclude

government employees and Jones Act seamen, it

follows that supervisory workers would also

have been excluded in this section if

Congress so intended. Further, this court

has held that a construction site foreman was

covered by the LHWCA. Gilliam v. Willey N.

Jackson Co., 659 F.2d ’ - Cc re

29a

furthered the rig's operations and was in the

regular course of the extractive operations

on the OCs. But for those operations, he

would not have been in the helicopter. His

death, therefore, occurred “as a result of

operations” as required by the OCSLA.

The only exemptions from OCSLA-LHWCA

coverage are for government employees and

Jones Act seamen. See Higginbotham v. Mobil

Oil Corp., 545 F.2d. 422, 432 n.11 (5th Cir.

1977), cert. denied, 434 U.S. 830, 98 S. Ct.

110,54 L.Ed.2d 89 (1977). Stansbury was not

a gcvernment employee. At trial, Mrs.

Stansbury argued that her husband was a Jones

Act seaman. At oral argument, however,

appellant's counsel conceded that there was

no evidence that Stanbury had seaman status.

The criteria to establish seaman status was

set out in Watkins v. Pentzien, Inc., 660

F.2d 604, 606 (5th Cir. 1981), cert. denied,

--U.8.--, 102 s. ct. 2010, 72 L.

Ed .2d-~-(1982):

(1) He must have a more or less

permanent connection with (2) a vessel

in navigation and (3) the capacity in

which he is employed or the duties

which he performs must contribute to

the function of the vessel, the

accomplishment of its mission or its

operation or welfare in terms of its

maintenance during its movement or

Guring anchorage for its future

trips.

Whether a person is a seaman under these

criteria is normally a question for the jury.

Id. The issue may be resolved by summary

judgment, however, where the undisputed

material facts establish as a matter of law

that an individual is not a Jones Act seaman.

Id. Stansbury’s inspection work was on land

rigs and fixed drilling rigs in the OCS. A

fixed vessel in the OCS is not a vessel in

navigation for purposes of the Jones Act.

Rodrigue v. Aetna Casualty & Surety Co., 395

U.S. 352, 355, 89 &.Ct. 1835, 1837, 23

L.Ed.24 360 (1969); Callahan v. Fluor Ocean

Services, Inc. 482 F.2d 1350, 1351 (5th Cir.

1973). Therefore, summary judgment was

properly granted. Because Longshoremen's and

Harbor Workers’ Compensation is the exclusive

29¢

remedy under the Outer Continental Shelf

Lands Act, Mrs. Stansbury may not bring an

action under DOHSA or general maritime

law.2 The judgment of the district court

is |

AFFIRMED.

2. Wothing said in Executive Jet Aviation

Inc. v. City of Cleveland, 405 0.5. 245, 35

Ss. ct. 753 34° L.Bd.2a 454 (1972), or

Rodri » Supra, weakens our conclusion.

OCSLA adopted *s and Harbor

Workers's Compensation to cover “maritime,

non-maritime or ambiguous amphibious” claims

for injuries to persons employed in natural

resource operations on the OCS. See ations

Ve i r 483 F.2d at 585. OCSLA

5 requirement and the status Bw =

relates to OCS extractive operations rather

than to traditional maritime employment.

APPENDIX OF STATUTES

Death on the High Seas Act

$761. Right of action; where and by whom

brought

Whenever the death of a person shall be

caused by wrongful act, neglect, or default

occurring on the high seas beyond a marine

league from the shore of any State, or the

District of Columbia, or the Territories or

Gependencies of the United States, the

personal representative of the decedent may

maintain a suit for damages in the district

courts of the United States, in admiralty,

for the exclusive benefit of the decedent's

wife, husband, parent, child, or dependent

relative against the vessel, person, or

corporation which would have been liable if

Geath had not ensued.

Quter Continental Shelf Lands Act

$1331. Definitions

When used in this subchapter--

(a) The term “outer Continental shelf"

means all submerged lands lying seaward and

outside of the area of lands beneath navi-

gable waters as defined in section 1301 of

this title, and of which the subsoil and

seabed appertain to the United States and are

subject to its jurisdiction and control;

$1332. Congressional declaration of policy

It is hereby declared to be the policy of the

United States that--

(1) the subsoil and seabed of the outer

Continental Shelf appertain to the United

Stated and are subject to its jurisdiction,

control, and power of disposition as provided

in this subchapter;

(2) this subchapter shall be construed in

such a manner that the character of the

waters above the outer Continental Shelf as

high seas and the right to navigation and

fishing therein shall not be affected;

$1333. Laws and regulations governing

lands--Constitution and United States laws;

laws of adjacent States; publication of

31

projected State lines; international boundary

disputes; restriction on the State taxation

and jurisdiction

(a) (1) The Constitution and laws and

civil and political jurisdiction of the

United States are extended to the subsoil and

seabed of the outer Continental Shelf and to

all artificial islands, and all installations

and other devices permanently or temporarily

attached to the seabed, which may be erected

thereon for the purpose of exploring for,

developing, or producing resources therefrom,

or any such installation or other devices

(other than a ship or vessel) for the purpose

of transporting such resources, to the same

extent as if the outer Continental Shelf were

an area of exclusive Federal jurisdiction

located within a State: Provided, however,

That mineral leases on the outer Continental

Shelf shall be maintained or issued only

under the provisions of this subchapter....

(b) With respect to disability or death

of an employee resulting from injury occur-

32

ring as the result of operations conducted on

the outer Continental Shelf for the purpose

of exploring for, developing, removing, or

transporting by pipeline the natural

resources, or involving rights to the natural

resources, of the subsoil and seabed of the

outer Continental Shelf, compensation shall

be payable under the provisions of the

Longshoremen's and Harbor Workers’ Act. For

the purposes of the extension of the

provision of the Longshoremen's and Harbor

Workers’ Compensation Act under this

section--

(1) the term “employee” does not include

a master of member of a crew of any vessel,

or an officcr or employee of the United

States or any agency thereof or of any State

or foreign government, or of any political

subdivision thereof,

(2) the term “employer” means an employer

any of whose employees are employed in such

operations; and

(3) the term “United States” when used in

a@ geographical sense includes the outer

Continental Shelf and artifical islands and

fixed structures thereon....

(f) The specific application by this

section of certain provisions of law to the

subsoil and seabed of the outer Continental

Shelf and the artifical islands, instal-

lations, and other devices referred to in

subsection (a) of this section or to acts or

offenses occurring or committed thereor shall

not give rise to any inference that the

application to such islands and structures,

acts, or offenses of any other provision of

law is not intended.

Longshoremen's and Harbor Workers’

Compensation Act

$902. Definitions

When used in this chapter--

(1) The term “person” means individual,

partnership, corporation, or association.

(2) The term “injury” means accidental

injury or death arising out of and in the

34

course of employment, and such occupational

Gisease or infection as arises naturally out

of such employment or as naturally or

unavoidably results from such accidental

injury, and includes an injury caused by the

willful act of a third person directed

against an employee *ecause of his employ-

ment.

(3) The term “employee” means any person

engaged in maritime employment, including any

longshoreman or other person engaged in long-

shoring operations, and any harborworker

including a ship repairman, shipbuilder, and

shipbreaker, but such term does not include a

maste- or member of a crew of any vessel, or

any person engaged by the master to load or

unload or repair any small vessel under

eighteen tons net.

(4) The term “employer” means an employer

any of whose employees are employed in mari-

time employment, in whole or in part, upon

the navigable waters of the United States

including any adjoining pier, wharf, dry

35

dock, terminal, building way, marine railway,

or other adjoining area customarily used by

an employer in loading, unloading repairing,

or building a vessel).

$903. Coverage

(a) Compensation shall be payable under

this chapter in respect of disability or

death of an employee, but only if the disabi-

lity or death results from an injury occur-

ring upon the navigable waters of the United

States (including any adjoining pier, wharf,

dry dock, terminal, building way, marine

railway, or other adjoining area customarily

used by an employer in loading, unloading,

repairing, or building a vessel). Wo compen-

sation shall be payable in respect of the

disability or death of--

(1) A master or member of a crew of any

vessel, or any person engaged by the master

to load or unload or repair any small vessel

under eighteen tons net; or

(2) An officer or employee of the United

States or any agency thereof or of any State

36

or foreign government, or of any political

subdivision thereof.

§905. Exclusiveness of liability

(a) The liability of an employer pre-

scribed in section 904 of this title shall be

exclusive and in place of all other liability

of such employer to the employee, his legal

representative, husband or wife, parents,

dependents, next of kin, and anyone otherwise

entitled to recover damages from such

employer at law or in admiralty on account of

such injury or death, except that if an

employer fails to secure payment of compensa-

tion as required by this chapter, an injured

employee, or his legal representative in case

death results from the injury, may elect to

claim compensation under the chapter, or to

maintain an action at law or in admiralty for

damages on account of such injury or death.

In such action the defendant may not plead as

a defense that the injusy was caused by the

negligence of a fellow servant, or that the

employee assumed the risk of his employment,

37

or that the injury was due to the contribu-

tory negligence of the employee.

E.

RNEY FOR PETITIONER,

ROY STANSBURY

CERTIFICATE OF SERVICE

I hereby certify that three copies of the

foregoing Petition for Writ of Certiorari

have been served on each party to this cause

by depositing the same in the United States

Mails, postage prepaid, and addressed as

follows:

CHEVRON, USA

c/o Mr. Lloyd C. Melancon

McLoughlin, Barranger, Provosty and

Melancon

912 Pere Marquette Building

150 Baronne Street

New Orleans, LA 70112

SIKORSKY AIRCRAFT

c/o Mr. R. K- Christovich

Christovich & Kearney

1900 American Bank Building

New Orleans, LA 70130

39