Petition — Barger v. Petroleum Helicopters, Inc.
Supreme Court brief1983
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IN THE
Supreme Court of the Hnited States
OcTOBER TERM, 1982
MARY E. BARGER
Plaintiff-Petitioner
V.
PETROLEUM HELICOPTERS, INC.
Defendant-Respondent
On Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
HuBERT OXForD, III
Mary ELLEN BLADE
BENCKENSTEIN, MCNICHOLAS,
OXFORD, RADFORD & JOHNSON
P. O. Box 150
Beaumont, Texas 77704
Attorneys for
Plaintiff-Petitioner
SE 1 LAE SN RRS EN
Alpha Law Brief Co., Inc —5606 Parkersburg—Houston, Texas 77036—223-3003
I
QUESTIONS PRESENTED
I. Whether any structure that is designed to float upon
the water and is capable of flotation upon the water
can be a vessel for purposes of the Jones Act.
II. Whether the Air Commerce Act, 49 U.S.C. § 1509
should be used to define “vessel” as that term is used
in the Jones Act 46 U.S.C. § 688 and § 801; the
Longshoremen & Harbor Workers Act 33 U.S.C.
§ 903 and §905(b) and the Outer Continental
Shelf Lands Act 43 U.S.C. § 1333(b).
LIST OF PARTIES
The undersigned, counsel of record for Plaintiff-Peti-
tioner Mary E. Barger, certifies that the following parties
have an interest in the outcome of this case:
(1) Mary E. Barger, and counsel, Benckenstein, Mc-
Nicholas, Oxford, Radford & Johnson of Beau-
mont, Texas.
(2) Petroleum Helicopters, Inc. and counsel, Lugen-
buhl, Larzelere & Ellefson of New Orleans, Louisi-
ana.
(3) Bell Helicopters, Inc. and counsel, Fulbright &
Jaworski of Houston, Texas.
(4) American Home Assurance Company, Intervenor
and counsel, Mehaffy, Weber, Keith & Gonsoulin
of Beaumont, Texas.
‘HUBERT OxForp, III
Il
TABLE OF CONTENTS
Page
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REPU OF THE CABS cc ccccscccccccscsvabscscce 1
STATEMENT OF JURISDICTION ............ee000: 2
SECO SHOP shane dicenucnscendeuecesesss 2
DEEN E GS BEE COE kevdccccdesseccvess¢ers 3
Con Es WE EN ca cab nededwcdeaeeieeaeeons 3
(2) Statement of Proceedings and Disposition in the
SEE UE ice ccevcheckesuccsvecescdsadeaus 4
PETE aia asus odacnescisenesiveesieevedhcieee 6
CL whvdnscbepeesavtsvastSeseabessbaesess 16
APPENDICES:
APPENDIX A—Fifth Circuit Opinion in Barger v. Pe-
troleum Helicopters (November 10, 1982) ........... A-l
APPENDIX. B—Fifth Circuit Opinion in Smith v. Pan
Air Corp. and Texaco v. Petroleum Helicopters (August
BD, BOGE) ccccccccceccvccesececseccasenccénseets B-1
APPENDIX C—Fifth Circuit Denial of Petition for Re-
hearing and Suggestion for Rehearing En Banc (Janu-
GY DG, DOUR) a sccececcscccccrarsvscereccnevvesaes C-1
APPENDIX D—Fifth Circuit Judgment in Barger v.
Petroleum Helicopters (November 10, 1982) ........ D-1
APPENDIX E—Fifth Circuit Corrected Opinion in Bar-
ger v. Petroleum Helicopters (November 10, 1982) ... E-1
APPENDIX F—Fifth Circuit Denial of Motion for
Leave to File Motion for Reconsideration of Petition
for Rehearing and Suggestion for Rehearing En Banc
CRiapchs D, ISEB) oc ccsceccccnescscevecssuccrnvcss F-1
APPENDIX G—District Court Opinion in Barger v.
Petroleum Helicopters (May 21, 1981) ..........+.. G-1
APPENDIX H—District Court Final Judgment in Bar-
ger v. Petroleum Helicopters (May 20, 1981) ....... H-1
IV
TABLE OF AUTHORITIES
CASES Page
Barger v. Petroleum Helicopters, Inc., 514 F.Supp. 1199,
692 F.24 337 (Sth Cir. 1962) on ciccccvccccssccseses 7,13, 14
Foremost Insurance Company v. Richardson, _US.__,
__S.Ct.__, 73 L.Ed.2d 300, 306 (S.Ct. 1982) ......... 8
Fox v. Taylor Diving & Salvage Company, 694 F.2d 1349
CO GO, BORE) ccc nvicevsennssercccuscssscvccecens 13
Grimes v. Raymond Concrete Pile Company, 356 U.S. 252,
778 S.Ct. 687, 2 L.Ed.2d 737 (1958) .....cecceeeeeees 12,13, 15
Guidry v. Continental Oil Company, 640 F.2d 523 ....... 13
Hicks v. Ocean Drilling & Exploration Company, 512 F.2d
817, G25 (Sth Clr. 1975) wocccccccccsersecccccccsees 13
Higginbotham v. Mobil Oil Corporation, 357 F.Supp. 1164
(W.D. La. 1973), 545 F.2d 422 (Sth Cir. 1977) ....... 15
Nelson v. United States, 639 F.2d 469 (9th Cir. 1980) ... 13,15
Norton v. Warner Company, 321 U.S. 565, 571, n.4, 64
S.Ct. 747, 751, 88 L.Ed. 931, 9387 ..rcccccccvccccsees 8
Offshore Drilling Company v. Robison, 266 F.2d 769 (Sth
Ch. 1959) .ncccvccccccvcccecccccccecseccccecece 11,12, 13,14
Smith v. Pan Air Corp., 684 F.2d 1102 (Sth Cir. 1982) ... 7
Sohyde Drilling & Marine v. Coastal States Gas Prod., 644
F.2d 1132 (Sth Cir. 1981) ....cccccccccscvccsvcssves 10
STATUTES
Bo le POPPE Per erst er eae ee ee 2,8,9
10 U.S.C, §76S1(B) on cccccccccccccvvevsccccccccecs 9
16 U.S.C. $772(a)(B) on. cree ncccccccvecerevcccvens 8
16 U.S.C. ST7IGCE) 2. ncccccccrcccsssvcccevccsseveoes 8
16 UBC. SOIG(E) on ncccccscccrcrsccsscvccescsccenes 9
18 U.S.C. 91081 2. ccccccccsvcccvscccsccvcevessccess 9
BS UBC. SOG vocscccvcsvccccccencssveuesiecevenans 9
19 U.S.C, $1401(a) oo. ccccccccccccvcvevcccsevcveces 9
22 U.S.C. $456(C) ...ccccccccvccccvccscccsesccsevers 9
26 U.S.C. §$4241(d)(3) once cceccvcccccesvevssvsevens 9
26 U.S.C. §S688(C) on. ce cre recrccceeceesesvenseoees 9
28 US.C. $1284 ...rcccccccccescvevscccscsesssccces 2
33 U.S.C. $908 .crccsccccsccccvcsevceccscvesscccces 2,6,7
33 U.S.C. $90S(b) ...ccccccccccscvcccvsecscssscceenrs 6
33 US.C. $UGOI 2. .cccccccccccccvcccccvcvsescsccccs 2
33 U.S.C. $1G01(1) on .ccccccccccvccevevcccvsesccves 7
43 U.S.C. $1333(b) ...ccccccccvcccccsevcscvevsccves 2,6,7
46 UBL. BERR cc cccnccvvccaccececerccsccsccccssess 2,6
4G USC. FBO .nrccrcccccvcccccveccvccscvesccccces 2,6
46 US.C. $802 ...ccccccccccvcccscccccsvsecsvsccvces 6
4G UBC. GOR cc cccvccctcccscccccncceccscecscccece 6
46 U.S.C. $ BBB nnn rvcccccccvcccccecccccvesccccecers 2,6
4D US.C. $9OL .ncccscccccccccccvcvccvscccscccccecs 9
49 US.C. $1809 .ncccssccccvcvsvvvcccvesesecccscees 2,6,7
49 US.C. $ 10102(26) ......ccceceeereccecesveccseees 9
eiicecieuetasincenate
IN THE
Supreme Court of the Hnited States
OCTOBER TERM, 1982
MARY E. BARGER
Plaintiff-Petitioner
V.
PETROLEUM HELICOPTERS, INC.
Defendant-Respondent
On Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
To The Honorable Justices Of The Supreme Court Of The
United States Of America:
Petitioner, MARY E. BARGER, would respectfuily
show:
OFFICIAL AND UNOFFICIAL REPORTS
The only reports of this case of which Petitioner is
aware are found in Volume 514, Federal Supplement at
2
page 1199 and Volume 692 Federal Reporter, Second
Series at page 337.
STATEMENT OF GROUNDS FOR JURISDICTION
This Petition arises from an appeal from a Judgment
entered on the 20th day of May, 1981, in the United
States District Court of the Eastern District of Texas,
Beaumont Division, the Honorable Joe J. Fisher presiding.
On appeal to the United States Court of Appeals for
the Fifth Circuit, the Judgment of the District Court
was reversed and remanded on the 19th day of Novem-
ber, 1982. Plaintiff-Petitioner’s Petition for Panel Rehear-
ing and Suggestion for Rehearing En Banc were denied
on January 6, 1983 and modified on January 13, 1983.
Plaintiff-Petitioner’s Motion for Reconsideration of Peti-
tion for Rehearing and Suggestion En Banc was denied
on March 9, 1983.
This Honorable Court has jurisdiction to consider this
Petition pursuant to 28 U.S.C. § 1254.
STATUTES INVOLVED
1 US.C. §3
33 U.S.C. § 903
33 U.S.C. § 1601
43 U.S.C. § 1333
46 U.S.C. § 688
46 U.S.C. § 801
46 U.S.C. § 888
49 U.S.C. § 1509
3
STATEMENT OF THE CASE
(1) Statement of Facts.
On April 23, 1976, the Decedent, WALTER BAR-
GER, pilot and navigator of a Bell 250A-1 amphibious
helicopter manufactured by BELL HELICOPTER, INC.,
Division of Textron, Inc. and owned by his employer,
PETROLEUM HELICOPTERS, INC., left Cameron,
Louisiana to fly forty (40) miles into the Gulf of Mexico
to carry offshore drilling workers to a platform. The crash
which killed WALTER BARGER and all of his passen-
gers was caused when the tailboom separated from the
remainder of the helicopter due to metal fatigue. This
particular amphibious helicopter was equipped with float-
type pylons below the fuselage. These flotation devices
were permanently affixed and not just emergency pon-
toons. Each and every time this craft took off or landed,
it took off or landed on these floats. PETROLEUM
HELICOPTERS, INC. and this flotable machine were
regularly engaged in the business of transporting pas-
sengers and equipment to offshore rigs. This particular
helicopter was designed to float on water, loaded or
empty, and was capable of being taxied on water with
people or cargo in it. These amphibious helicopters were
purchased by PETROLEUM HELICOPTERS, INC. for
the particular purpose of carrying people or equipment
on or over the water to offshore rigs and between offshore
rigs. Because of this helicopter’s flotation equipment and
capabilities, its flying capabilities were restricted from
those of normal aircraft to flight below certain altitudes
and certain temperature differentials, as well as lower
speeds. The flight manual which accompanies this heli-
copter places no limitations on how far the helicopter
4
may be taxied upon the water, nor does PETROLEUM
HELICOPTERS, INC. have such limitations, PETRO-
LEUM HELICOPTERS, INC.’s pilots are trained to take
off and land on water, as well as to taxi on water. This
amphibious helicopter did the greatest percentage of its
flying over water, as the Cameron, Louisiana base of
PETROLEUM HELICOPTERS, INC. is adjacent to the
water and the helicopter’s destinations are all in the Gulf
of Mexico. Ferrying crews over water to a rig or a plat-
form was the normal use of this helicopter; this helicopter
was doing the work normally done by crew boats. PE-
TROLEUM HELICOPTERS, INC. admitted that this
helicopter was fitted with pontoon-type landing gear for
the purpose of landing on navigable waters and was used
to carry crewmembers on or over the ocean to drilling
rigs.
(2) Statement of Proceedings and Disposition
in the Courts Below.
This suit was filed in the United States District Court
for the Eastern District of Texas, Beaumont Division
on April 21, 1977, for damages arising out of the death
of WALTER BARGER on April 23, 1976. Plaintiff
asserted a claim against PETROLEUM HELICOPTERS,
INC., employer of the Decedent, WALTER BARGER,
under the “Teneral Maritime Law and Jones Act (46
U.S.C. § 688) and the Death on the High Seas Act
(46 U.S.C. § 761). Plaintiff also asserted a claim against
BELL HELICOI’TERS INTERNATIONAL, INC./
TEXTRON (BELL) based on Texas Product Liability
Law applicable in Admiralty to the Death on the High
Seas Act. The case was tried to the District Court and
on May 31, 1981, the Honorabie Joe J. Fisher, District
5
Judge, entered Final Judgment and a Memorandum Opin-
ion under which PETROLEUM HELICOPTERS, INC.
was found eighty (80%) percent liable and BELL was
found twenty (20%) percent liable. The District Court
found that this particular helicopter, because of its pe-
culiar configuration, was a vessel and that the Decedent
was a member of the crew of that vessel. Judgment was
entered for Plaintiff and the Decedent, WALTER BAR-
GER, was found to be a Jones Act seaman.
On November 10, 1982, a three judge panel for the
United States Court of Appeals for the Fifth Circuit con-
sisting of Judges Brown, Rubin and Reavley issued an
Opinion written by Judge Rubin which reversed the
District Court, holding that the helicopter was not a vessel
under the Jones Act and that WALTER BARGER was
not a seaman. Judge Brown dissented from the majority
opinion and requested a polling of the entire panel for
an “en banc” rehearing. Plaintiff/Petitioner filed a Peti-
tion for Panel Rehearing and Suggestion for Rehearing
En Banc which were denied by the United States Court of
Appeals for the Fifth Circuit on January 6, 1983 and
later modified on January 13, 1983. Plaintiff/Petitioner’s
Motion for Leave to File a Motion for Reconsideration
of Petition for Rehearing and Suggestion for Rehearing
En Banc was denied on March 9, 1983.
BASIS FOR ORIGINAL JURISDICTION
IN THE DISTRICT COURT
The jurisdiction of the District Court was invoked
under Rule 9(h) of Federal Rules of Civil Procedure,
Admiralty Jurisdiction.
6
REASONS FOR GRANTING THE WRIT
I.
THE DECISION BELOW CREATES CONFUSION
AND INCONSISTENCIES IN THE FEDERAL MARI-
TIME LAW BY ITS STATUTORY CONSTRUCTION
OF THE JONES ACT, 46 U.S.C. §688 AND §801, THE
LONGSHOREMEN AND HARBOR WORKERS ACT
33 U.S.C. §903 AND §905(b), THE OUTER CONTI-
NENTAL SHELF LANDS ACT 43 U.S.C. §1333(b)
AND THE AIR COMMERCE ACT 49 U.S.C. §1509.
The Fifth Circuit in its Opinion below excluded the
amphibious helicopter piloted by the Decedent from the
meaning of the term “vessel” under the Jones Act, 46
U.S.C. § 688 and so held WALTER BARGER was not
a seaman/member of the crew of a vessel for Jones Act
purposes. The Jones Act is found in the Merchant Marine
Act of 1920 which also contains this provision at 46
U.S.C. § 888:
When used in this Act, unless the context otherwise
requires, the terms ‘person’, ‘vessel’, ‘documented
under the laws of the United States,’ and ‘citizen of
the United States’ shall have the meaning assigned
to them by § 801, § 802 and § 803 of this Section.
§ 801 referred to above contains this definition of the
term “vessel” to be used for all purposes in the Merchant
Marine Act of 1920:
The term ‘vessel’ includes all watercraft and other
artificial contrivances of whatever description and
at whatever stage of construction, whether on the
stocks or launched, which are used or are capable of
being used or are intended to be used as a means
of transportation on water. [Emphasis added].
7
Plaintiff/Petitioner contends that this is the proper
statutory definition to be applied in determining whether
a craft is a vessel for purposes of the Jones Act and that
this definition clearly encompasses the amphibious heli-
copter piloted by the Decedent here. Petitioner also con-
tends that numerous other Federal Statutes define vessel
in essentially the same manner.
Both the Longshoremen and Harbor Workers Compen-
sation Act (LSHWA), 33 U.S.C. § 903 and the Outer
Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1333
(b), exclude “a master or member of the crew of any
vessel” from longshore coverage and so leave seamen to
be covered by the Jones Act, yet neither the LSHWA nor
OCSLA expressly define the term “vessel”. However, the
LSHWA is contained within Title 33, Navigation and
Navigable Waters, which does contain a definition. 33
U.S.C. § 1601(1) states:
‘Vessel’ means every description of watercraft, in-
cluding non-displacement craft and seaplanes, used
or capable of being used as a means of transporta-
tion on water.
Despite these foregoing statutory definitions of the
term “vessel”, the Fifth Circuit relied upon the Air Com-
merce Act, 49 U.S.C. § 1509, to construe the meaning
of the term “vessel” for purposes of the Jones Act in
both Barger v. Petroleum Helicopters, Inc., 692 F.2d 337
(Sth Cir. 1982) and Smith v. Pan Air Corp., 684 F.2d
1102 (5th Cir. 1982), which was adopted by reference
in the Barger Opinion. Although the Fifth Circuit relied
upon the Air Commerce Act for its assertion that the
Navigation and Shipping Laws of the United States are
not to be construed to apply to seaplanes or other air-
craft, this Section makes an exception to its own pro-
visions where § 143 to § 147(d) of Title 33 provide
otherwise. § 143 to § 147(d) have been repealed, re-
vised, recodified and now appear in 33 U.S.C. § 1601
et seg. which is quoted above and which specifically
includes “non-displacement craft and seaplanes used or
capable of being used as a means of transportation on
water.” (Emphasis added).
The Fifth Circuit erred in its statutory construction of
the Jones Act by going outside the Navigation and
Shipping Laws to the Air Commerce Act, and even then
ignoring the exception included in the Air Commerce
Act which adopts the definition relied upon by Petitioner.
The major error made by the Fifth Circuit in its statu-
tory construction was ‘in failing to give controlling weight
to the definition of vessel contained in 1 U.S.C. § 3:
. ‘vessel’ includes every description of watercraft
or other artificial contrivance used, or capable of
being used, as a means of transportation on water.
This statutory definition was applied to the LSHWA
and Jones Act by the United States Supreme Court in
Norton vy. Warner Company, 321 U.S. 565, 571 n.4, 64
S.Ct. 747, 751, 88 L.Ed. 931, 937. The United States
Supreme Court once again recognized the encompassing
scope of this definition in its recent decision in Foremost
Insurance Company v. Richardson, U.S
S.Ct.___, 73 L.Ed.2d 300, 306 (S.Ct. 1982).
Many specialized Federal Statutes use the same word-
ing as 1 U.S.C. § 3, leaving no doubt that aircraft are
intended by Congress to be incorporated in the Maritime
Law when appropriate. See, Northern Pacific Halibut Act,
1937, 16 U.S.C. § 772(a)(h); Sockeye Salmon Fishing
Act of 1947, 16 U.S.C. § 776(f); The Whaling Conven-
9
tion Act of 1949, 16 U.S.C. § 916(e); The Tariff Act
of 1930, 19 U.S.C. § 1401(a).
Many other Federal Statutes are even more broad than
the language of 1 U.S.C. § 3 in defining the term “vessel”.
See the Armed Forces Act, 10 U.S.C. § 7651(b); the
Criminal Code, 18 U.S.C. § 3615; and the Internal Reve-
nue Code, 26 U.S.C. § 4241(d)(3) and 26 U.S.C.
§ 5688(c). The Criminal Code, 18 U.S.C. § 1081 defines
a vessel as:
... any ship, boat, barge or other watercraft or any
structure capable of floating on the water. (Em-
phasis added).
The Neutrality Act of 1939, 22 U.S.C. § 456(c) in-
cludes in its definition of vessel:
. every description of watercraft and aircraft
capable of being used as a means of transportation
on, under or over the water. (Emphasis added).
The thrust of the Fifth Circuit’s error in excluding all
aircraft, as a matter of law and not of fact, from the
definition of vessel under the Jones Act, is to limit the
weight given the trier of fact in Jones Act cases which
Congress did not intend. Instead, Federal legislation has
recognized the flexibility that must be contained in a de-
finition of vessel to suit different factual circumstances.
In Part 3 of the Interstate Commerce /¢ict, 49 U.S.C.
§ 10102(26) § 901, the term “vessel” is broadly defined as:
. . a watercraft or other artificial contrivance that
is used, or is capable of being used, or is intended
to be used, as a means of transportation by water.
If the Fifth Circuit's logic in limiting regulation of all
aircraft to the Air Commerce Act were to be strictly
OO
10
applied, would a cargo laden plane taxiing on the water
or a hovercraft going over the water between two
States escape the provisions of the Interstate Commerce
Act? Clearly, the only workable construction of the term
“vessel” in this situation would incorporate an aircraft
into the definition of vessel and Congress has clearly
allowed this flexibility by its use of terms such as “cap-
able,” or “intended”. The Fifth Circuit’s rejection of
WALTER BARGER’s helicopter as a vessel simply be-
cause it was an aircraft places unworkable restraints upon
the development of the Federal Maritime Law in dealing
with new technology and ignores the broad language
repeatedly used by Congress in defining this term.
Although the Fifth Circuit relies upon the Air Com-
merce Act for its interpretation of the term “vessel”, the
exclusion, if made, of this craft in the definition of one
act does not necessarily dictate its exclusion under the
Jones Act. This very issue was discussed in Sohyde Drill-
ing & Marine v. Coastal States Gas Prod., 644 F.2d 1132
(5th Cir, 1981). There, the Court noted that the defini-
tion of vessel under the Jones Act is far more expansive
and liberal than it may be under other acts of Congress.
When attempting to determine whether a structure is
or is not a ‘vessel’ within the scope of a particular
statutory enactment, the underlying intent of the
legislature should be ascertained, if at all feasible.
Notwithstanding that two statutes contain substan-
tially similar definitions of the term ‘vessel’ what may
reasonably qualify as ‘vessel’ for the purpose of one
statute might well thwart the purpose of the other
statute.
Sohyde, at 1137, n.5.
11
The propriety of the statutory test employed by the
Fifth Circuit in defining the term “vessel” under the Jones
Act justifies the Grart of Certiorari to review the Judg-
ment below.
II.
THE DECISION BELOW RAISES SIGNIFICANT
AND RECURRENT PROBLEMS CONCERNING EF-
FORTS TO MAINTAIN A UNIFORM FEDERAL
MARITIME LAW AS EVIDENCED BY CONFLICTS
IN PRINCIPLE WITH THE DECISIONS OF BOTH
THE UNITED STATES SUPREME COURT, NINTH
CIRCUIT AND OTHER FIFTH CIRCUIT DECI-
SIONS.
Reaching a workable definition of the term “vessel”
for Jones Act purposes has become a recurrent problem
in the Federal courts, and has become especially trouble-
some in recent years due to the advanced technology in
special purpose structures not seen heretofore in maritime
commerce, The Fifth Circuit has been called upon to
address this issue on a frequent basis, most often due to
the special problems presented by the offshore oil drilling
industry in the Gulf of Mexico. The landmark case of
Offshore Drilling Company v. Robison, 266 F.2d 769
(Sth Cir. 1959) recognized the need for a flexible defini-
tion in construing the term “vessel” for purposes of the
Jones Act:
Attempts to fix unvarying meanings have a firm legal
significance to such terms as ‘seaman,’ ‘vessel,’ ‘mem-
ber of the crew’ must come to grief on the facts.
These terms have such wide range of meanings under
the Jones Act as interpreted in the courts, that,
except in rare cases, only a juror or a trier of facts
can determine their application in the circumstances
2 i BO ee
12
of a particular case. Even where the facts are largely
undisputed, the question at issue is not solely a ques-
tion of law when, because of the conflicting infer-
ences that may lead to a different conclusion among
reasonable men, a trial judge cannot state an un-
varying rule in law that fits the facts. . . . within
broad limits of what is reasonable Congress has seen
fit to allow juries to decide who are seamen under
the Jones Act. There is nothing in the act that in-
dicates that Congress intended the law to apply only
to the conventional members of a ship’s company.
The absence of any legislative restriction has enabled
the law to develop naturally along the development
of unconventional vessels, such as the strange-look-
ing, specialized water craft designed for oil opera-
tions offshore and in the shallow coastal waters of
the Gulf of Mexico.
Offshore Drilling Company v. Robison, supra.
The Fifth Circuit in Robison went on to define vessel
as:
including special purpose structures not usually em-
ployed as a means of transport by water, but des-
signed to float on water.
Offshore Drilling Company v. Robison, supra. Thus the
Fifth Circuit incorporated the same flexibility in its defini-
tion of vessel as can be found in the statutory definitions
cited in the preceding section of this Petition.
The United States Supreme Court has also recognized
non-traditional craft as vessels under the Jones Act. See
Grimes v. Raymond Concrete Pile Company, 356 U.S.
252, 778 S.Ct. 687, 2 L.Ed.2d 737 (1958), in which
a Texas tower radar station was found to be a vessel.
Likewise, the Ninth and Fifth Circuits have recently held
13
even stranger craft to be vessels: an aquatic barrier in Nelson
v. United States, 639 F.2d 469 (9th Cir. 1980); a drag
line in Guidry vy. Continental Oil Company, 640 F.2d
523; and an oil storage facility in Hicks v. Ocean Drilling
& Exploration Company, 512 F.2d 817, 823 (Sth Cir.
1975). The only logic which connects these cases is not
to look at the ordinary use of the craft in question, but
whether it was designed or intended to float on water.
Even so, the Fifth Circuit in the case at bar ignored
the design and capabilities of this helicopter and instead
focused on what it called the “primary function” or
“primary design” of the craft as that of an aircraft. How-
ever, the primary function of a drilling rig is to drill oil
wells. Offshore Drilling Company v. Robison, supra. The
primary function of a Texas tower radar station is to
find or detect aircraft. Grimes v. Raymond Concrete Pile
Company, supra. The primary function of an aquatic
barrier is as a wave suppressor. Nelson v. United States,
supra. The primary function of a dragline is excavation
work. Guidry v. Continental Oil Company, supra. The
primary funciton of an oil storage facility is to store oil.
Hicks v. Ocean Drilling & Exploration Company, supra.
The Fifth Circuit has recently issued another Opinion
determining vessel status in Fox v. Taylor Diving &
Salvage Company, 694 F.2d 1349 (Sth Cir. 1983). In
Fox the Fifth Circuit held a non-navigable chamber used
to create an airtight compartment in which pipeline re-
pairs can be performed not to be a vessel, because its
function is that of a tool, not a vessel. Barger v. Petroleum
Helicopters, Inc., 514 F.Supp. 1199, 692 F.2d 337, was
cited as authority for this holding. However, to state the
function of a craft as a matter of law unreasonably
derogates the role of the fact finder. As noted above,
14
there may be more than one function of a craft. Plaintiff/
Petitioner contends that if one of the functions of a craft
is to float on water, that need not be its sole or primary
function to be a vessel.
The Trial Court in the Barger case found that the
BARGER helicopter was the functional equivalent of a
crew boat and that “BARGER'’s helicopter was con-
structed for the purpose of transporting men and materials
across the navigable waters of the Gulf of Mexico.”,
Barger, supra. At the time of the accident, the BARGER
helicopter was on its way “across water to the drilling
site.” Barger, supra. However, this finding of function
was ignored by the Fifth Circuit.
The Fifth Circuit also attempted to exclude the BAR-
GER helicopter from the definition of vessel by stating
that it was airborne and not floating at the time of the
accident. Whether or not the helicopter was airborne is
an unknown fact (since WALTER BARGER’s body was
never recovered), but, even so, neither was the drilling
platform in Offshore Drilling Company v. Robison, supra
afloat. In that case the drilling platform was hard aground
and the injured seaman ninety (90) feet above the sea.
No logical basis for distinction of the BARGER heli-
copter exists under the law of either the United States
Supreme Court, the Fifth Circuit or the Ninth Circuit.
The exclusion of the BARGER helicopter from the mean-
ing of the term “vessel”, merely because it was an “air-
craft” is arbitrary.
The result of the Fifth Circuit’s decision in Barger
is to exclude the navigator and pilot of this helicopter
from the coverage of the Jones Act, despite the same
exposure to the hazards of sea faced by WALTER BAR-
15
GER as all other seamen, and to place him under the
administration of the LSHWA. The Supreme Court of
the United States has recognized the important role of
helicopter transportation to the maritime industry in
Higginbotham yv. Mobil Oil Corporation, 357 F.Supp.
1164 (W.D. La. 1973), 545 F.2d 422 (Sth Cir. 1977),
rev'd on other grounds, 436 U.S. 618, 56 L.Ed.2d 581,
98 S.Ct. 2010. That this question will continue to trouble
not only the courts of the Fifth Circuit but other circuits
as well is obvious as the Outer Continental Shelf Lands
are further developed. That this irreconcilable reasoning
should arise within the Fifth Circuit, as well as conflict-
ing in principle with the United States Supreme Court
in Grimes v. Raymond Concrete Pile Company, supra,
and the Ninth Circuit in Nelson v. United States, supra,
is indicative of a need for guidance from this Court. The
number of “special purpose structure” cases filed under
the Jones Act grows each year; indeed, another helicopter-
pilot seaman case is currently pending against PETRO-
LEUM HELICOPTERS, INC. in the Eastern District
Court of Louisiana, Division M, Civil Action No. 83-
171-CA, styled Raymond Trott v. Petroleum Helicopters,
Inc., et al.
The Fifth Circuit itself was divided on the Rehearing
En Banc of this case, with 4 members voting in favor
of the rehearing with Justice Brown, one of the more
distinguished admiralty scholars of the Fifth Circuit Court
of Appeals, dissenting from the Opinion.
The special importance of achieving a Uniform Mari-
time Law in these conflicts in principle justify the Grant
of Certiorari to review the Judgment below.
16
CONCLUSION
For these reasons a Writ of Certiorari should issue to
review the Judgment and Opinion of the Fifth Circuit.
Respectfuily submitted,
HuBERT OXForp, III
Mary ELLEN BLADE
BENCKENSTEIN, MCNICHOLAS,
OXFORD, RADFORD & JOHNSON
P. O. Box 150
Beaumont, Texas 77704
(409) 833-9182
Attorneys for
Plaintiff-Petitioner
A-l
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 81-2262
MARY E. BARGER,
Plaintiff-Annellec, Cross-Appellant,
Vv
PETROLEUM HELICOPTERS, INC.,
Defendant-Appellant, Cross-Appellee.
Appeals from the United States District Court
for the Eastern District of Texas
( November 10, 1982 )
Before BROWN, RUBIN, and REAVLEY, Circuit Judges
RUBIN, Circuit Judge:
This case raises many of the issues we decided in Smith
v. Pan Air Corp., 684 F.2d 1102 (Sth Cir. 1982). We,
therefore, address in detail only one issue that distin-
guishes this case: as to claims against a helicopter pilot’s
employer for the death of the pilot while transporting
passengers to work on the outer Continental Shelf, is the
Longshoremen’s and Harbor Workers’ Compensation Act
the exclusive remedy? We conclude that such a pilot is
not covered by the Jones Act because an aircraft is not
a vessel, that the Outer Continental Shelf Lands Act
applies to the pilot, and that the LHWCA is the exclusive
remedy for those who have claims resulting from his
death.
A-2
Walter Barger, like Walter Kolb, one of the decedents
in Smith, was a helicopter pilot regularly engaged in
transporting oil field workers and equipment from Louisi-
ana to platforms located in the Gulf of Mexico on the
outer Continental Shelf. While he was flying a helicopter
carrying eleven passengers, the helicopter crashed into the
Gulf forty miles offshore, killing all aboard. Barger’s
widow and children seek damages in admiralty for his
death from his employer, Petroleum Helicopters,’ con-
tending that Barger was a Jones Act seaman and also
asserting maritime tort claims for the alleged unseaworthi-
ness of the helicopter. After trial on the merits, the district
court sustained both claims and awarded damages.
We held in Smith that the wrongful death claim of
Kolb’s beneficiaries against a third party, not the dece-
dent’s employer, arising from the crash of an aircraft
into the high seas, is properly within admiralty jurisdic-
tion by virtue of decisions so interpreting the Death on
the High Seas Act, 46 U.S.C.A. §§ 761-768 (West 1975
& Supp. 1982) (DOHSA). Smith, 684 F.2d at 1108-12.
The accident involved in Smith occurred on the outer
Continental Shelf, but we decided that § 1333(a) of the
OCSLA, 43 U.S.C. § 1333(a) (Supp. IV 1980), making
state law applicable as surrogate federal law to accidents
occurring on fixed platforms, does not supersede the
DOHSA so as to oust admiralty jurisdiction over the
plaintiff's claim.’
1. Suit was also filed against Bell Helicopter Textron, a division
of Textron, Inc., the manufacturer of the helicopter. Bell and the
plaintiff agreed that, if Bell were cast in judgment, Bell would pay
the plaintiff $225,000 and waive any right to appeal. The district
judge found Bell also liable and apportioned liability 20% to Bell and
80% to Petroleum Helicopters. Thus, no issues relating to the plain-
tiffs’ claims against Bell are before us.
2. See Smith, 684 F.2d at 1109-11. For similar reasons, we held
A-3
The wrongful death claim in this case, unlike the Kolb
claim in Smith, is asserted against the decedent's employer
Petroleum Helicopters. Section 1333(b) of the OCSLA
provides, “[w]ith respect to . . . death of an employee
resulting from any injury occurring as the result of opera-
tions conducted on the outer Continental Shelf for the
purpose of exploring for, developing, removing, or trans-
porting . . . 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.A.
§§ 901-950 (West 1978 & Supp. 1982) (LHWCA)].""
Section 933(i) of the LHWCA provides that this compen-
sation is the exclusive remedy of an injured employee
against his employer. 33 U.S.C.A. § 933(i). Therefore,
if Barger was covered by 43 U.S.C. § 1333(b), there can
be no recovery against his employer under general mari-
time law. Even if admiralty jurisdiction existed because
Barger's death resulted from an aircraft crash on the high
seas, see Smith, 684 F.2d at 1109, recovery would be
barred by § 933(i) and the claim would fail on the merits.
The Barger plaintiffs argue that Barger was a Jones
Act seaman, and therefore excluded from coverage under
that Petroleum Helicopters’s claim for property damage arising from
the same accident was likewise not ousted from admiralty jurisdiction
by the OCSLA., See id, at 1112.
3. The section continues:
For the purposes of the extension of the provisions of the Long-
shoremen’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. . .;
(2) the term “employer” means an employer any of whose
employees are employed in [exploring for, developing, remov-
ing, or transporting by pipeline the natural resources . . . of
the subsoil and seabed of the outer Continental Shelf].
43 US.C.A. § 1333(b) (West Supp. 1982).
A-4
43 U.S.C. § 1333(b). That section provides that the term
“employee” does not include “a master or member of
a crew of any vessel.” 43 U.S.C. § 1333(b)(1). For the
same reasons discussed in Smith, 684 F.2d at 1112-14,
we conclude that a helicopter cannot be considered a
“vessel,” and, therefore, that this exclusion from LHWCA
coverage does not extend to Barger.
Smith involved several claims. Jordan, whose claim
was asserted by his beneficiary (Smith), was flying a
plane. Kolb and Barger were both piloting helicopters.
Jordan's aircraft, like Barger’s had attachments enabling
it to land on and take off from water. Kolb’s helicopter
apparently had no such attachment. But each of these
aircraft, whether or not fitted with pontoons, was designed
primarily to fly through the air not to travel on water.
The dissent of our respected colleague apparently assumes
that a helicopter sans pontoons used for the self-same
purpose, to transport personnel to and from offshore plat-
forms, is not a vessel, Neither a plane nor a helicopter
undergoes a maraculous transformation from aircraft into
vessel when pontoons are attached to it, and their pilots
do not by this act become members of a “vessel's” crew.
The helicopter’s amphibian adaptations were designed
solely to permit it to take off from and land on water
and to taxi on water in order to position itself for loading
and unloading with a view to travel through the air. It
was an aircraft that might use the surface of the water
for a time to facilitate airborne commerce. An airplane
does not become an automobile because it has wheels
attached and can taxi on runways. The wheels no more
change aircraft into land vehicles than pontoons change
aircraft into vessels. Just as a vessel does not lose its nau-
tical quality merely because it is anchored for a time to
A-5
serve as a drilling platform, an aircraft does not become a
vessel because it is adapted to float and taxi on the water
for brief periods in order to perform incidental functions
that aid in its primary mission, The Jones Act was de-
signed to aid those who face the hazards of the sea, not
the perils of the air. Barger did not meet death from a
collision at sea or the action of the waves but as a result
of an aircraft disaster. See Symposium, Aircraft as Vessels
Under the Jones Act and General Maritime Law, 22 S.
Tex. L.J. 595, 600-03 (1982).
It remains only to be determined, then, whether the
claim against Barger’s employer is covered by the
OCSLA. This depends on (1) whether Barger’s death
was the “result of operations conducted on the outer
Continental Shelf for the purpose of exploring for, devel-
oping, removing, or transporting . . . the natural resources
. of the outer Continental Shelf,” and (2) whether
Barger’s employer, Petroleum Helicopters, was an “em-
ployer” within the intendment of 43 U.S.C. § 1333(b)
(2).
The first of these conditions is clearly met. In Stans-
bury v. Sikorski Aircraft, 681 F.2d 948 (Sth Cir, 1982),
a Chevron Oil Company employee was killed when the
Chevron-owned helicopter in which he was a passenger
crashed on the high seas over the Shelf. We held that
the compensation act provided Stansbury’s sole remedy
against his employer, Chevron, because Stansbury had
been inspecting work done under his supervision on a
fixed rig located on the Shelf. “His work furthered the
rig’s operations and was in the regular course of the
extractive operations on the [Shelf]. But for those opera-
tions, he would not have been in the helicopter. His
A-6
death, therefore, occurred ‘as a result of operations’ as
required by the OCSLA.” /d, at 951 (emphasis added).
Barger likewise would not have been killed in a heli-
copter crash in the Gulf of Mexico “but for” the fact
that he was employed to transport eleven workers to a
fixed platform on the Shelf. His work furthered mineral
exploration and development activities and was in the
regular course of such activities.
With respect to the second condition for OCSLA cov-
erage, the term “employer” means “an employer any of
whose employees are employed in [operations conducted
on the outer Continental Shelf for the purpose of explor-
ing for, developing, removing, or transporting . . . the
natural resources . . . of the outer Continental Shelf].”
43 U.S.C. § 1333(b)(2). Unlike the employer in Stans-
bury, Petroleum Helicopters, Barger’s employer, was not
itself engaged in mineral operations. However, helicopter
transportation of men and equipment from the mainland
to the offshore rigs and back plays an important role
in “developing” the Shelf. This transportation is an “oper-
ation conducted . . . for the purpose of” natural resource
development. Helicopter pilots involved in these opera-
tions perform the same function with respect to resource
development whether employed directly by a producer or
by a separate contractor, and should not be treated dif-
ferently on the basis of who their immediate employer is.
We decline to inject another element of inconsistency
into an area already beset by more than its fair share of
incongruous results.‘
4. See generally Robertson, /njuries to Marine Petroleum Work-
ers: A Plea for Radical Simplification, 5S Tex. L. Rev. 973, 973
(1977) (“Since the oil industry went offshore, the legal system has
struggled to produce a body of injury law that is rational, fair, in-
A-7
Aside from the fact that this case involves an employer
and employee, the only kind of claim to which the com-
pensation remedy applies, there is another important dis-
tinction between Barger’s claim and the claim in Smith.
The OCSLA compensation coverage provision already
quoted is expansive. It extends to every injury or death
“occurring as a result of operations . . . for the purpose
of exploring for, developing, removing, or transporting
. » . Matural resources.” 43 U.S.C.A, § 1333(b). The state
law extension clause, however, is considerably narrower,
providing only for the application of state law to “the
subsoil and seabed of the outer Continental Shelf, and
artificial islands and fixed structures erected thereon.” 43
U.S.C. § 1333(a). Thus state law is made applicable only
to workers in certain areas and not to all employees
engaged in mineral development, while the compensation
statute reaches any employee killed or injured while ex-
ploiting the Shelf's resources.
We, therefore, hold that Barger’s exclusive remedy
against his employer was LHWCA compensation.’ The
district court’s judgment is REVERSED and the case is
REMANDED for further proceedings not inconsistent
with this opinion.
ternally consistent, and acceptably productive of safety incentives.
The result has been chaos.”) (footnote omitted).
5. The district court held in the alternative that, even if Barger
were covered by the LHWCA, section 905(b) of that act gives a
covered employee the right to bring an action against the “vessel
owner” for negligence. Citing Smith v. M/V Captain Fred, 546 F.2d
119 (Sth Cir. 1977), the court noted that the “circumstances that the
vessel owner and the employer are the same entity does not preclude
such an action.” However, section 905(b) is simply irrelevant here
unless a helicopter is a “vessel.” We have concluded that it is not.
See text supra and Smith, 684 F.2d at 1112-13. Therefore, workers’
compensation remains Barger’s sole remedy against his employer.
———E——————— rh S.C
A-8
81-2262—MARY E. BARGER v. PETROLEUM
HELICOPTERS, INC.
JOHN R. BROWN, Circuit Judge, dissenting:
To the dual holding’ that the helicopter was not a
“vessel” and Barger, its pilot was not a “seaman”, I must
respectfully diss nt.
To narrow the point of difference, I wish to make clear
the extensive areas in which I am in full agreement with
Judge Rubin’s scholarly analysis. Without a doubt, 43
U.S.C. § 1333(b) of the Outer Continental Shelf Lands
Act (OCSLA) brings into play § 933(i) of the Long-
shoremen’s and Harbor Workers’ Compensation Act
(LHWCA) which prescribes the exclusive remedy for
injury and death cases by the Act. I quite agree that
Barger’s death was the “result of operations conducted
on the Outer Continental Shelf for the purpose of ex-
ploring for, developing, removing, or transporting . . .
the natural resources . . . of the Outer Continental Shelf
. .’, 43 US.C. § 1333(b), and that his employer,
Petroleum Helicopters, Inc., was engaged in such opera-
tions in performing the essential service of transporting
men and equipment from the mainland to the offshore
rigs.
1. The dual determination was based, in effect, on the almost con-
temporaneous holding of the Court as to the Smith claim in Smith v.
Pan Air Corporation, 684 F.2d 1102, 1112, n.39 (Sth Cir, 1982). Of
necessity, this dissent attacks that determination, Instead of concur-
ring specially because of a decision binding on me until altered by the
Court en banc, I am dissenting, since with the filing of this dissent
I will seek formally rehearing en banc, F.R.A.P. Rule 35, of the in-
stant case which will inevitably bring into question the correctness of
the Smith decision.
A-9
At the same time, I agree the case is not controlled by
the local law of the adjacent state (Louisiana) as “sur-
rogate” federal law under the OCSLA, 43 U.S.C. § 1333
(a)(2)(A). See text accompanying n.25, 684 F.2d at
1109. Rodrigue v. Aetua Casualty & Surety Co., 395
U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969).*
I also agree that the Kolb claim against the third party
in Smith for the death of a helicopter pilot in waters off
the Outer Continental Shelf was a maritime claim within
the jurisdiction of the admiralty. 684 F.2d 1111-12.
And I embrace wholeheartedly the Court’s conclusion
that the suit by the helicopter owner in the Kolb claim
of Smith for loss of a helicopter was within the admiralty
jurisdiction. 7d. at 1112. All of this means that for the
death of Barger the Longshoremen’s Act is the exclusive
remedy against the employer, Petroleum Helicopters, Inc.,
unless he was “. . . a master or member of the crew of
[a] vessel... .” 43 U.S.C. § 1333(b)(1).
This dramatizes the narrow, but significant, difference
in our views. The Court having held (i) in the Kolb third
party death action that the claim under DOHSA was
within the admiralty and it was so maritime as to be
beyond the reach of adjacent surrogate law, 43 U.S.C.
§ 1333(a)(2)(A); and having held (ii) in the claim for
the owner’s loss of the helicopter that the helicopter was
engaged “in maritime-type function, transporting persons
2. The Court states:
Unlike both Monk and the workers considered in Rodrigue, the
helicopter pilot was engaged in a maritime-type function, trans-
porting persons over the seas.
We hold, therefore, that admiralty jurisdiction over Kolb’s
claim against nonemployer third parties is not ousted by section
1333(a) of the OCSLA.
684 F.2d at 1111-12 (note omitted).
A-10
over the sea”, 684 F.2d at 1111, because the aircraft was
“being used in place of a vessel to ferry personnel and
supplies to and from offshore drilling structures, . . .” and
this bore “. . . the type of significant relationship to tradi-
tional maritime activity . . . necessary to invoke admiralty
jurisdiction . . .”, Jd. at 1112, the case suddenly loses its
admiralty character by the interposition of the Longshore-
men’s Act.
It is no answer that this is what Congress has prescribed
since the LHWCA provides itself that seamen are ex-
cluded. The helicopter is doing what a vessel would ordin-
arily do—transport persons and property to and from the
mainland and the offshore structure. The pilot is doing
what the master and crew of a vessel would do, namely,
operate the craft. Each activity is maritime and maritime
related. Each meets the exclusions and principles set forth
in Executive Jet Aviation, Inc. v. City of Cleveland, 409
U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), Injury
or loss to each in the OCSLA waters is within the admir-
alty. The factor which makes each within the admiralty is
the function and purpose of the use of the craft. All that
is lacking is a “vessel” in the usual traditional sense of a
thing which can float on or in water to carry persons or
things from one place to another.
But the normal physical characteristics to constitute
an object a “vessel” have never deterred the Supreme
Court or this Court from finding unusual, nontraditional,
odd, non-maritime structures to be “vessels”, and the
person serving to fulfill the mission of such structures to
be seamen under the Jones Act.
The classic case is Judge Wisdom’s celebrated decision
in Offshore Co. v. Robison, 266 F.2d 769 (Sth Cir.
A-11
1959). There, following significant Supreme Court de-
cisions, we held an oil field “roustabout” who did not
know how to, or what was meant by, the ability to “hand,
reef and steer,” to be a Jones Act seaman for injuries
received while a floating submersible rig was made fast
to the bottom of the bay by jack-up legs raising the deck
of the drilling barge way above the level of the water.
At the time of the injury the drilling platform was not
afloat. It was hard aground. The drilling barge could not
move, The only relation it had to the sea was its past—
when it was towed to a new location—or, its future—
when it would again be towed to another location.
Equally spectacular was the decision in Gianfala v.
Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775
(1955). Gianfala and his crew members slept ashore in
an oilfield camp and worked aboard a drilling barge
which was resting on the bottom of the bay at the time
of the injury. The Court held Gianfala to be a seaman
within the scope of the Jones Act. Even more spectacular
was Grimes v. Raymond Concrete Pile Co., 356 U.S. 252,
78 S.Ct. 687, 2 L.Ed.2d 737 (1958) in which the con-
tractor was building a “Texas tower” radar station for
location in the North Atlantic to be permanently affixed
to the floor of the ocean. After the tower was towed to
its offshore site, Grimes did only piledriving work. He
drowned when he fell out of a life ring used to carry him
from a tug to the tower. The Supreme Court reversed the
First Circuit and held that the “petitioner’s evidence pre-
sented an evidentiary basis for a jury’s finding whether or
not the petitioner was a member of the crew of any vessel”
to thus circumvent the equivalent of LHWCA coverage
under the Defense Bases Act. Jd. at 253.
A-12
Courts of Appeals and District Courts have extended
Robison to strange sorts of things to find them to be a
“vessel” and the injured person a seaman," and the so
called floating submersible drilling barges are invariably
hard aground, incapable of any movement—martime or
otherwise.* As a matter of physical, operative fact they
are just as land-bound, non-maritime as the fixed raised
drilling platform over which it is uncontradicted that none
is a vessel.
3. Nelson v. United States, 639 F.2d 469 (9th Cir, 1980) (a wave
suppressor, an aquatic barrier erected in the water to protect boats at
the Coast Guard station from heavy waves which is permanently af-
fixed to the sea floor held to be a vessel and the decedent, a piledriver,
was a seaman within the Jones Act); Guidry v. South Louisiana
Contractors, 614 F.2d 447 (Sth Cir. 1980) (elevated boom of a large
dragline was a vessel; case remanded for jury determination whether
injured party was Jones Act seaman); Hicks v. Ocean Drilling &
Exploration Co,, 512 F.2d 817 (Sth Cir, 1975) (submersible oil stor-
age facility resting on the bottom of the Gulf held to be a vessel and
plaintiff a seaman); Brinegar v. San Ore Construction Co., Inc., 302
F.Supp. 630 (E.D. Ark. 1969) (fuel tank pontoon vessel capsized at
time of accident held to be a vessel and plaintiff a Jones Act seaman).
4. Submersible drilling barge cases are legion and invariably in-
volve injuries occurring while the drilling barge is fixed on the ocean
floor and not floating or in movement. See Daughdrill v. Diamond M
Drilling Co., 447 F.2d 781 (Sth Cir. 1971); Neill v. Diamond M.
Drilling Co., 426 F.2d 487 (Sth Cir. 1970); Producers Drilling Co. v.
Gray, 361 F.2d 432 (Sth Cir. 1966); Harney v. William M. Moore
Building Corp., 359 F.2d 649 (2d Cir. 1966); Clary v. Ocean Drill-
ing and Exploration Co., 429 F.Supp. 905 (W.D. La. 1977); Mc-
Neese v. An Son Corp., 334 F.Supp. 290 (S.D. Miss. 1971); McCarty
v. Services Contracting Inc., 317 F.Supp. 629 (E.D. La.); Robichaux
v. Kerr McGee Oil Industries, Inc., 317 F.Supp. 587 (W.D. La.
1970); Rogers v. Gracey-Hellunw Corp., 331 F.Supp. 1287 (E.D. La.
1970); Hebert v. California Oil Co., 280 F.Supp. 754 (W.D. La.
1967); Ledet v. U.S. Oil of Louisiana, Inc., 237 F.Supp. 183 (E.D.
La. 1964); Oliver v. Ocean Drilling & Exploration Co., 222 F.Supp.
843 (W.D. La, 1963); Guilbeau v. Falcon Seaboard Co., 215 F.Supp.
909 (E.D. La. 1963).
A-13
The upshot of these decisions for our case is that because
the helicopter was regularly operated in the transportation
of persons and property to and from the mainland and the
offshore structures, it was engaged in maritime activities
so that the loss of the helicopter and the death of the pilot
were a maritime tort within the jurisdiction of the ad-
miralty. It is maritime because of the nature of the work
it regularly performed—the transportation of persons and
property. This is made positive by the Court’s treatment
of the pilot’s (Kolb’s) claim. The Court emphasized that
“his duties constantly carried him back and forth above
the high seas over the outer Continental Shelf.” 684 F.2d
at 1111. Disregarding the relationship of the death claim
to the OCSLA and the acknowledged separate jurisdic-
tion under DOHSA, the Court went on:
Even apart from this ‘special treatment’ accorded air-
plane crash victims, there would still be admiralty
jurisdiction over Kolb’s accident, as we show below
in regard to Petroleum Helicopters’ property claim
arising from the same accident. See Part IIC infra.
Id. And after stating in Part IIC that the “logic of Execu-
tive Jet appears to require extension of admiralty juris-
diction to nondeath claims arising on the high seas if the
aircraft flight has the essential maritime nexus,” Jd. at
1112, the Court eliminating the “if”, concluded:
Therefore, both the locality and maritime nexus re-
quirements being met, we hold that the Petroleum
Helicopters claim, like the Kolb death claim, may be
brought in admiralty. Jd.
To the Court’s quaere, Id. at 1113, n.41, the record in
this case and the trial court’s factual findings clearly re-
A-14
flect that the amphibious helicopter here come within the
broad, virtually indefinable Robison definition of a special
purpose craft.” The judge found that this amphibious heli-
copter was specially designed and built not only to take
off and land on water but also to taxi on the water. It
could move under its self-propulsion on the water to posi-
tion itself for the loading or unloading of cargo or passen-
gers. He characterized the craft as one designed to func-
tion as a crew boat without which the gigantic offshore oil
industry’s maritime operations, see Boudreaux v. Amcri-
can Workover, Inc., 680 F.2d 1034 (Sth Cir. 1982),
(en banc), could not function. Indeed this seems to have
been the sole function of this helicopter.°
More than that the helicopter literally met the Con-
gressional definition that “any artificial contrivance . . .
capable of being used, as a means of transportation on
water” constitutes a vessel.” 684 F.2d at 1113, n.40.
5. It must be emphasized that a Robison vessel determination
does not necessarily or automatically mean Jones Act status, so the
question is broader than: “Is the injured worker a Jones Act sea-
man?” See Dugas v. Pelican Construction Co., 481 F.2d 773 (Sth
Cir. 1973) (not a Jones Act seaman but entitled to seaman’s war-
ranty of seaworthiness).
6. The Supreme Court in Mobil Oil Corp. v. Higginbotham, 436
U.S. 618, 619, n.2, 56 L.Ed.2d 581, 583, n.2, 98 S.Ct. 2010, >
n.2, said “[t]he District Court bottomed admiralty jurisdiction on a
finding that the helicopter was the functional equivalent of a crew-
boat. The ruling has not been challenged in this Court.” (citation
omitted).
7. Since we are dealing directly with the usage of not on!) the
LHWCA but also more recently the 1953 OCSLA, 43 U.S.C. § 1333
(c)(1) as amended September 18, 1978, 43 U.S.C § 1333(b)(1), the
Court’s explanation, 684 F.2d at 1113, n.40, not only ignores these
historical facts (plus the substantial 1972 amendments to the
LHWCA) but also this Court’s express conclusion that we must
determine what Congress meant about a matter on which it could not
have thought because of technological non-existence. For example,
paeraeemes
A-15
Whatever the meaning of the full text of 49 U.S.C.
§ 1509(a) rather than the Court’s paraphrase of it, 684
F.2d at 1113, the fact is that in very recent actions
Congress has definitely included seaplanes (including
helicopters) within the meaning of the term “vessel”.
In the major overhaul of the International Regulations
for Preventing Collisions at Sea, 33 U.S.C. § 1601 et seq.
(1977), the Congress in 1977 did several significant
things. It repealed the long standing “Rules of the Road.”
It provided for a proclamation by the President and the
promulgation of the International Regulations for Pre-
venting Collisions at Sea (International Rules)."
discussing the technological advances made since Congress enacted
COGSA, this Court has stated:
Our principal task in this case is to determine what Congress
would have thought about a subject about which it never thought
or could have thought and one about which we have never
thought nor any other Court has thought. Technology has created
a maritime transportation system unlike any which was in ex-
istence in 1936 when Congress enacted COGSA. (note omitted).
Wirth Ltd. v. S/S ACADIA FOREST and LASH Barge, 537 F.2d
1272, 1276 (Sth Cir. 1976).
The question remains then, what did Congress mean in 1953 when
it enacted § 1333(b)(1) of the OCSLA, the statute which cuts off the
maritime claim for the death of the pilot. Moragne v. States Marine
Lines, Inc., 398 U.S. 375, 26 L.Ed.2d 339, 90 S.Ct. 1772 (1970).
8. The International Rules, see 33 U.S.C. § 1602 number 1
through 38.
Rule 3(a) states that:
(a) The word ‘vessel’ includes every description of water craft,
including nondisplacement craft and seaplanes, used or capable
of being used as a means of transportation on water.
Rule 3(e) states that:
(e) The word ‘seaplane’ includes any aircraft designed to ma-
noeuvre on the water.
Rule 31 reflects peculiar concern with seagoing aircraft:
Where it is impracticable for a seaplane to exhibit lights and
shapes of the characteristics or in the positions prescribed in the
Rules of this Part she shall exhibit lights and shapes as closely
similar in characteristics and position as is possible. (emphasis
supplied).
A-16
33 U.S.C. § 1601(1) leaves no doubt that all kinds
of seagoing aircraft are included within the term “vessel”.
It states:
‘vessel’ means every description of watercraft, in-
cluding nondisplacement craft and seaplanes, used
or capable of being used as a means of transporta-
tion on water... .
A helicopter comes within the statutory definition of a
“nondisplacement craft” and certainly fits the qualification
of a craft “used or capable of being used as a means of
transportation on water.” Jd. As a statutorily defined
“vessel”, a helicopter is also subject to the elaborate
system set up in 33 U.S.C. § 1608 for civil penalties.
There, investigative, enforcement and comprehensive
measures are provided, including liability of an operator
of a vessel and an in rem remedy against the craft.
Whatever Congress had or could have had in mind re-
garding the term “vessel” in 1920 when it first enacted
the Jones Act, it is now clear in 1982 and has been ever
since 1977 that Congress has no doubts. Congress means
to include any and all kinds of seagoing aircraft within
the term “vessel”, with the sole qualification that the craft
be used or capable of being used for transportation on
or over international waters, which these clearly were, or
other waters over which the United States has jurisdiction.
One final note on the term “vessel”. The Court stresses
that in Robison we were concerned with “special purpose
structures” which are designed to float and be towed
“across water to the drilling site despite their incapacity
for self-propulsion.” 684 F.2d at 1113. Wave barriers
permanently affixed to the sea floor, Nelson, 639 F.2d
A-17
469, the elevated boom of a dragline, Guidry, 614 F.2d
447, and a submersible oil storage facility, Hicks, 512
F.2d 817, and the “Texas Tower” for radar defense of
the nation, Gianfala, 356 U.S. 252, 2 L.Ed.2d 737, 78
S.Ct. 687, hardly fit that category.
Nor does fidelity to the principles of Robison require
that the flexible maritime law’s concern for those who
go down to sea, see Sea-Land Services, Inc. v. Gaudet,
414 US. 573, 39 L.Ed.2d 9, 94 S.Ct. 806 (1974)
(following Moragne)—whether in ships or today’s ver-
sion of the ship’s equivalent—should be denied effectua-
tion of the admiralty remedy which Kolb and all other
helicopter pilots, including Barger, have, because the
thing—the helicopter—whose use for substantial mari-
time purposes gives the controversy the prized character-
ization of a maritime claim, is not a vessel.°
I must therefore dissent.
9. That ascribing vessel status to a helicopter leaves some legal
problems unanswered, see 684 F.2d at 1114 (limitation of liability,
etc.), is no deterrence to the admiralty’s adaptability. Recall, for ex-
ample, that in the boundless Sicracki claims, founded on traditional
seamen’s work, longshoremen never received maintenance and cure.
Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L.Ed, 1099, S.Ct.
____. (1946).
B-1
APPENDIX B
Denyse Nettune Jordan SMITH, etc.,
Plaintiff-Appellant,
Vv.
PAN AIR CORP., et al.,
Defendants-Appellees.
Martha KOLB, etc., Plaintiff-Appellant,
V.
TEXACO, INC. and Pool Offshore Co.,
Defendants-Appellees.
PETROLEUM HELICOPTERS, INC. and
American Home Assurance Co.,
Plaintiffs-Appellants,
V.
POOL COMPANY OF TEXAS,
Defendant-Appellee.
Nos. 81-3522, 81-3675 and 81-3638.
United States Court of Appeals,
Fifth Circuit.
Aug. 23, 1982.
Suits were brought arising from two separate aircraft
crashes. In one case, the United States District Court for
the Eastern District of Louisiana, at New Orleans, George
Arceneaux, Jr., J., granted one defendant’s motion to
dismiss all admiralty claims against it, and appeal was
taken. In cases arising from the other crash, the United
States District Court for the Western District of Louisiana,
B-2
at Lafayette-Opelousas, John M. Shaw, J., dismissed ad-
miralty claims for death of pilot and loss of aircraft, and
appeals were taken. The Court of Appeals, Alvin B.
Rubin, Circuit Judge, held that: (1) claim for death of
pilot of seaplane which crashed in an inland Louisiana
marsh was not within maritime jurisdiction; (2) the sea-
plane was not a “vessel” and thus its pilot was not a
“seaman” and his survivors were not entitled to bring
claims under the Jones Act; (3) claim for death of heli-
copter pilot in crash of helicopter into the Gulf of Mexico
was within admiralty jurisdiction; (4) admiralty jurisdic-
tion over claim against nonemployer third parties for
death of the helicopter pilot was not ousted by the Outer
Continental Shelf Lands Act, though crash occurred after
rotor blade of helicopter struck crane ball on fixed plat-
form on the outer continental shelf to which the helicopter
had delivered a passenger; and (5) property damage claim
with respect to the helicopter could also be brought in
admiralty.
Affirmed as to claims arising from seaplane crash; re-
versed and remanded as to claims arising from helicopter
crash,
Orlando G. Bendana, Wayne H. Carlton, Jr., New
Orleans, La., for Smith.
Robert T. Myers, Brad G. Theard, Lawrence E. Ab-
bott, New Orleans, La., for Pan Air Corp.
Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans,
La., for Southeastern Aviation Underwriters, Inc.
Bailey & Leininger, B. Ralph Bailey, Donald D. Bann,
Metairie, La., Arthur Crais, New Orleans, La., for Shell
Oil Co,
B-3
Lugenbuhl, Larzelere & Ellefson, Russell D. Pulver,
Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans,
La., for Kolb.
Domengeaux & Wright, Wm. P. Rutledge, Lafayette,
La., for Petroleum Helicopters, Inc., et al.
Caffery, Qubre & Duzar, Patrick T. Caffery, New
Iberia, La., for Texaco, Inc.
Johnson & McAlpine, Ronald A. Johnson, John F.
Colowich, New Orleans, La., for Pool Offshore.
Appeal from the United States District Court for the
Western District of Louisiana.
Before RUBIN, REAVLEY and TATE, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge.
The scope of admiralty jurisdiction over suits arising
from aircraft crashes has never been fully explored by this
Circuit. These cases require us to consider the extent of
that jurisdiction. If there is jurisdiction, some of the cases
also involve the effect of the Outer Continental Shelf
Lands Act on such suits. Finally, one case raises the
question whether an aircraft is a “vessel” for Jones Act
purposes.
We first sketch briefly the facts in each case.
I.
81-3522 Smith v. Pan Air Corp.
Curtis C. Jordan was a pilot regularly engaged in flying
a plane to transport passengers engaged in mineral ex-
ploration and development activity to and from locations
B-4
in Louisiana and off its shores. Using a plane equipped
to take off from either land or water, he departed from
the New Orleans Lakefront Airport with two passengers,
one of them to be taken to a Shell Oil Company mineral
operation located in Louisiana near the mouth of the Mis-
sissippi River. It was not practicable, however, to reach
Shell’s site by land travel. Using water flotation equip-
ment, Jordan landed in a canal adjacent to Shell's facili-
ties. After the Shell-bound passenger disembarked, Jordan
took off from the canal, and almost immediately encoun-
tered a fog bank. Trying to escape the fog, he came
dangerously close to an antenna tower owned by Shell.
Although Jordan succeeded in avoiding the tower, the
plane struck a set of its supporting guy wires and crashed
onto Louisiana soil, killing Jordan instantly.’ Invoking
Fed.R.Civ.P. 9(h), his widow and child seek damages in
admiralty for his death from his employer, Pan Air, con-
tending that the plane was a “vessel” and that Jordan
was a member of its crew, hence entitled to the benefits
of the Jones Act, 46 U.S.C. § 688 (1976). The plaintiffs
also assert maritime tort claims for the alleged unsea-
worthiness of the plane. Finally, they invoke diversity
jurisdiction to support claims against Pan Air for the
alleged defective and unreasonably dangerous nature of
the aircraft, and against Shell for “gross negligence”.’
Finding claims arising from the aircraft crash not to be
within its maritime jurisdiction, the district court granted
Pan Air’s motion to dismiss all “admiralty claims” against
1. The second passenger was also killed in the crash. The claim
for damages arising out of his death has been dismissed.
2. It is not clear from the record whether this claim is also in-
tended to be within admiralty jurisdiction, or is based only on di-
versity.
B-5
it.’ In his opinion, the judge also concluded that Jordan
was not a Jones Act seaman.
81-3675 Kolb v. Texaco, Inc.
81-3638 Petroleum Helicopters, Inc. v. Pool Co.
Walter Kolb was a helicopter pilot regularly engaged
in transporting workers and equipment from the Loui-
siana mainland to and between drilling rigs and platforms
located in the Gulf of Mexico. He was assigned to trans-
port a passenger to work on a fixed platform located on
the outer Continental Shelf, owned by Texaco, whose well
was being “worked over” by Pool Company. A crane
owned by Texaco was situated on the platform; its crone
arm extended over the Gulf, and a crane ball hung from
the crane arm. After landing on the helipad and discharg-
ing the passenger, Kolb took off from the platform. As
he departed, the helicopter’s main rotor blade struck the
crane ball, causing the helicopter to crash into the Gulf.
Mrs. Kolb sued Texaco and the other company engaged
in work on the platform in admiralty for damages sus-
tained as a result of her husband’s death; Petroleum Heli-
copters sought recovery, also in admiralty, for the loss of
its aircraft. Mrs. Kolb has abandoned any claim under the
Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-
1356 (1976 & Supp. HII 1979) (OCSLA), that would be
determined by the application of Louisiana law. Petro-
3. Thus, the plaintiffs’ diversity claims against Pan Air, as well
as all claims against Shell, see note 2 supra, are still pending. The
district judge’s granting of Pan Air’s motion to dismiss the admiralty
claims is nevertheless an appealable order under 28 U.S.C. § 1292(a)
(3). Of course, to the extent that plaintiffs’ claim against Shell is
grounded in admiralty, our reasoning with regard to the admiralty
claims against Pan Air is equally applicable.
B-6
leum Helicopters invokes diversity as well as admiralty
jurisdiction. The district judge dismissed both claims, in-
sofar as they invoked admiralty jurisdiction, for want of
jurisdiction.*
Il.
In 1813, Justice Story, on Circuit, stated that “[iJ]n re-
gard to torts . . . the jurisdiction of the admiralty is ex-
clusively dependent upon the locality of the act.”® The
federal courts, therefore, defined the scope of maritime
jurisdiction over tort claims solely by reference to locality
until the Supreme Court reset the compass, at least with
regard to claims arising out of aircraft crashes, in 1972.
In Executive Jet Aviation, Inc. v. City of Cleveland, 409
U.S. 249, ©3 S.Ct. 493, 34 L.Ed.2d 454 (1972), the
Court fires considered whether the principles formulated
a century and a half earlier for those who go down to
the sea in ships apply to air transportation. We, therefore,
examine that decision with care.
Justice Stewart, writing for a unanimous court, spelled
out the holding of Executive Jet in concluding the opin-
ion: “in the absence of legislation to the contrary, there
is no federal admiralty jurisdiction over aviation tort
claims arising from flights by land-based aircraft between
points within the continental United States.” Id. at 274,
93 S.Ct. at 507, 34 L.Ed.2d at 471 (emphasis added).
This holding does not directly dispose of any of the claims
under review here, but its underlying rationale is crucial
4. Petroleum Helicopters’s diversity claim is still pending in dis-
trict court. Mrs. Kolb has apparently renounced any claim other than
for negligence under general maritime law.
5. Thomas v. Lane, 23 F.Cas. 957, 960 (C.C.D. Me. 1813) (No.
13,902).
B-7
and the quoted language suggests three of the questions
we must consider: (1) What is “legislation to the con-
trary”? (2) What is the meaning of the restrictive ad-
jectival phrase, “land-based aircraft”? (3) Does jurisdic-
tion extend to flights that are to or from points outside
the continental land mass?
A. The Smith Claim
At the outset, we note that the Smith claim comes
closest of those under review to falling directly under
Executive Jet's holding. No assertion has been made that
“legislation to the contrary’ exists to bring the Smith
plaintiffs’ claim within the admiralty jurisdiction. Further-
more, the flight that crashed was apparently “between
points within the continental United States.’ Therefore,
if Jordan’s aircraft were considered “land-based,” it is at
least possible* that the district judge could have dismissed
the Smiths’ admiralty claims under the literal language
of Executive Jet in its narrowest possible reading. For
the purposes of this appeal, however, we assume that
Jordan’s seaplane, which was capable both of landing on
and taking off from water in normal, nonemergency use,
was not a “land-based” aircraft. Therefore, to decide this
6. For our discussion of “legislation to the contrary” relevant to
these cases, see Part IIB infra.
7. The flight that Jordan had just completed was between New
Orleans and Shell’s facility, on land, near the mouth of the Mississippi
River—clearly “between points within the continental United States.”
Apparently, Jordan was returning to the New Orleans airport when
he crashed. Whether this is so, however, is immaterial, because we
find that there is no admiralty jurisdiction over the Smith claim on
a ground that would not be affected by the correctness of this assump-
tion. See text infra.
8. See note 7 supra.
case, we go beyond Executive Jet's precise holding to its
underlying rationale.
Smith argues that admiralty jurisdiction extends to all
claims having a functional relationship to maritime com-
merce, regardless of the locality of the tort. In Executive
Jet, a jet aircraft struck a flock of seagulls during takeoff
from a Cleveland, Ohio, airport and crashed into Lake
Erie. The plaintiffs sought to maintain a suit in admiralty
because the plane had crashed into navigable waters.
The Supreme Court first discussed the serious difficulties
with the traditional test for admiralty jurisdiction because
of that test’s focus solely on the locality of the accident.
The Court noted the difficulty of applying that test in
“perverse and casuistic borderline situations;” the virtual
absurdity of applying the test, and the “full panoply of
the substantive admiralty law,” to injuries to swimmers
at a public beach; and the inadvisibility of turning juris-
diction on the fortuity that the aircraft finally hit land
rather than navigable water, or vice versa.” After con-
sidering observations by courts, commentators, and the
American Law Institute and discussing congressional ex-
tension of admiralty jurisdiction to land structure injuries
caused by vessels, the Court stated: “in determining
whether there is admiralty jurisdiction over a particular
tort or class of torts, reliance on the relationship of the
wrong to traditional maritime activity is often more sen-
sible and more consonant with the purposes of maritime
law than is a purely mechanical application of the locality
test.”*°
9. See generally Executive Jet, supra, 409 U.S. at 253-60, 93 S.
Ct. at 497-501, 34 L.Ed.2d at 458-62.
10. /d, at 261, 93 S.Ct. at 501, 34 L.Ed.2d at 463.
B-9
{1] Some commentators, suggesting deficiencies and
inconsistencies in any test that relies on locality at all,
read Executive Jet as commanding, or at least permitting,
the determination of admiralty jurisdiction solely by the
relationship of the “wrong” to traditional maritime ac-
tivity.’ They note that, for example, the traditional mari-
time remedy of maintenance and cure has always been
extended to disabilities arising from injuries suffered on
land; that the Admiralty Extension Act expands maritime
jurisdiction to include damage to land structures caused
by vessels on navigable waters; and that “the doctrine of
unseaworthiness has been extended to permit a seaman or
a longshoreman to recover from a ship owner for injuries
sustained wholly on land, so long as those injuries were
caused by defects in the ship or its gear.”"*
11. See, e.g., Note, Admiralty Jurisdiction: Executive Jet in His-
torical Perspective, 34 Ohio St.L.J. 353, 369-70 (1973); Note, The
Other Halj of Executive Jet: The New Rationality in Admiralty Jur-
isdiction, 57 Tex.L.Rev. 977 (1979); Comment, Admiralty Tort Jur-
isdiction: Floundering on the Sea of Inconsistency, 27 U.Fla.L.Rev.
805, 815-17 (1975); Recent Developments—Admiralty Tort Jurisdic-
tion—Tort Claims Not Within Admiralty Jurisdiction Unless Requisite
Maritime Nexus Exists, 27 Vand.L.Rev. 343 (1974) (conceding mari-
time locality should at least be factor).
12. Executive Jet, supra, 409 U.S. at 260, 93 S.Ct. at 500, 34 L.
Ed.2d at 462-63 (citing Gutierrez v. Waterman S.S. Corp., 373 US.
206, 214-15, 83 S.Ct. 1185, 1190-91, 10 L.Ed.2d 297, 303-04 (1963)).
In addition, of course, the Jones Act extends to injuries suffered by
a crew member in the course and scope of his employment, even on
land. O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63
S.Ct. 488, 87 L.Ed. 596 (1943); Vincent v. Harvey Well Serv., 441
F.2d 146 (Sth Cir. 1971). Such claims are within the admiralty jur-
isdiction only by virtue of specific congressional extension of that
jurisdiction to them. See O'Donnell, supra, 318 U.S. at 40-41, 63 S.
Ct. at 490-91, 87 L.Ed. at 600-01; see also Panama R. v. Johnson,
264 U.S. 375, 386-91, 44 S.Ct. 391, 393-95, 68 L.Ed. 748, 752-54
(1924). The Outer Continental Shelf Lands Act, which we consider
more fully below, depends on national sovereignty and the commerce
clause; the cause of action it creates is one arising out of a general
B-10
[2] There are, however, patent difficulties in determin-
ing what kinds of “wrong” are related to traditional mari-
time activities. If we define the “wrong” as the negligent
act, then it is difficult to see how defects in the design
of an aircraft, faults in its manufacture or maintenance,
or pilot error are maritime. Yet we, as well as other
courts, have asserted admiralty jurisdiction over such
claims."* Those who advocate a “relationship of the
wrong” test really look not to the kind of wrong but to
the nature of the activity in which the victim and his
aircraft are engaged.
Moreover, nothing in Executive Jet indicates that the
Court adopted such a functional test. Instead, the entire
thrust of the opinion is that locality alone cannot sup-
port jurisdiction over maritime torts and that something
more is required. Thus, in reviewing commentary, the
federal statute, and federal court jurisdiction depends on the existence
of a federal question, 28 U.S.C.A. § 1331 (West Supp. 1982), not
admiralty. See e.g., Jn re Dearborn Marine Serv., Inc., 499 F.2d 263,
270 (Sth Cir. 1974).
13. See, e.g., Higginbotham v. Mobil Oil Corp., 545 F.2d 422, 424
n.l, 430 (Sth Cir, 1977) (stating, on page last cited, “Logic, expe-
rience and precedent compel us to reject the argument that airplane
crashes ordinarily occur in the absence of default by someone con-
nected with the design, manufacture, or operation of the craft”) (em-
phasis added), rev’d on other grounds, 436 U.S. 618, 98 S.Ct. 2010,
56 L.Ed.2d 581 (1978); Hornsby v. Fish Meal Co., 431 F.2d 865,
866-67 (Sth Cir, 1970) (pilot error); Hubschman v. Antilles Airboats,
Inc., 440 F.Supp. 828, 853-57 (D.V.I. 1977) (recovery against lessee
and operator of seaplane, plaintiff's employer, allowed under doctrine
of res ipsa loquitur under circumstances where negligence could only
have been land-based); cf. Roberts v. United States, 498 F.2d 520,
522-25 (9th Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.
Ed.2d 665 (1974) (claim in admiralty would have been allowed
against United States for alleged negligent direction of landing of
decedent’s aircraft, which crashed into sea short of runway, but for
running of applicable statute of limitations).
B-11
Court said, “commentators have actively criticized the
rule of locality as the sole criterion for admiralty juris-
diction, and have recommended adoption of a maritime
relationship requirement as well.”’* It continued, “this
Court has never explicitly held that a maritime locality
is the sole test of admiralty tort jurisdiction.”’* Then the
Court quoted its opinion in Atlantic Transport Co. v.
Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208
(1914):
Even if it be assumed that the requirement as to
locality in tort cases, while indispensable, is not
necessarily exclusive, still in the present case the
wrong which was the subject of the suit was, we
think, of a maritime nature and hence the District
Court, from any point of view, had jurisdiction. .. .
If more is required than the locality of the wrong
in order to give the court jurisdiction, the relation
of the wrong to maritime service, to navigation and
to commerce on navigable waters, was quite suf-
ficient.*®
In short, the Executive Jet Court expressed concern
about “the difficulties involved in trying to apply the
locality rule as the sole test of admiralty tort jurisdic-
tion,”’” concluding that “maritime locality alone is not
a sufficient predicate for admiralty jurisdiction in aviation
14. Executive Jet, supra, 409 U.S. at 257, 93 S.Ct. at 499, 34 L.
Ed.2d at 461 (emphasis added).
15. Jd. at 258, 93 S.Ct. at 499, 34 L.Ed.2d at 461 (emphasis
added).
16. Jd. at 258, 93 S.Ct. at 499, 34 L.Ed.2d at 461 (emphasis
added) (quoting Atlantic Transport, supra, 234 U.S. at 61, 62, 34 S.
Ct. at 735, 58 L.Ed. at 1212-13).
17. 409 U.S. at 259, 93 S.Ct. at 500, 34 L.Ed.2d at 462 (emphasis
added).
B-12
tort cases.”** The Court referred to the criterion it was
rejecting as the “locality-alone test,”’® and stated, “the
mere fact that the alleged wrong ‘occurs’ or ‘is located’
on or over navigable waters—whatever that means in
an aviation context—is not of itself sufficient to turn an
airplane negligence case into a ‘maritime tort.’ It is far
more consistent with the history and purpose of admiralty
to require also that the wrong bear a significant relation-
ship to traditional maritime activity.”*”
After these cases were briefed and argued, the Supreme
Court decided that admiralty jurisdiction extends to the
collision of two pleasure boats on navigable waters.
Foremost Insurance Co. v. Richardson, US. :
102 S.Ct. 2654, 2660, 73 L.Ed.2d 300 (1982), aff’g
641 F.2d 314 (Sth Cir. 1981). Although it stated, “the
Executive Jet requirement that the wrong have a signifi-
cant connection with traditional maritime activity is not
limited to the aviation context,” __. U.S. at ____, 102
S.Ct. at 2658, the Court quoted our opinion in Richard-
son for the proposition that “admiralty, jurisdiction re-
quires more than the occurrence of the tort on navigable
waters—. . . additionally there must be a significant re-
lationship between the wrong and traditional maritime
activity.”” Jd. at _.__, 102 S.Ct. at 2657 (emphasis
18. Jd. at 261, 93 S.Ct. at 501, 34 L.Ed.2d at 463 (emphasis
added).
19. Jd. at 265, 93 S.Ct. at 503, 34 L.Ed.2d at 466 (emphasis
added}.
20. Id. at 268, 93 S.Ct. at 504, 34 L.Ed.2d at 467 (emphasis
added). The Court also repeated its earlier warning in Victory Car-
riers, Inc. v. Law, 404 U.S. 202, 212, 92 S.Ct. 418, 425, 30 L.Ed.2d
383, 391 (1971), that “in determining whether to expand admiralty
jurisdiction ‘we should proceed with caution. .. .’” 409 U.S. at 272,
93 S.Ct. at 506, 34 L.Ed.2d at 470.
B-13
added) (quoting Richardson, 641 F.2d at 315). These
comments in both Executive Jet and Richardson \ead
ineluctably to the conclusion that maritime locality is still
an indispensable element of maritime jurisdiction, an
interpretation we have already adopted. See, e.g., Sohyde
Drilling & Marine Co. v. Coastal States Gas Producing
Co., 644 F.2d 1132, 1135 (Sth Cir.), cert. denied, ——
U.S.___., 102 S.Ct. 635, 70 L.Ed.2d 615 (1981); Moser
v. Texas Trailer Corp., 623 F.2d 1006, 1009, modified
per curiam in other respects, 630 F.2d 249 (Sth Cir.
1981).
[3] We conclude, therefore, that, because the Smith
claim arose from the crash of an aircraft in an inland
Louisiana marsh, the district court properly dismissed it
for want of maritime jurisdiction.
B. The Kolb Claim
[4] We next turn to the death claim in Kolk, which
arose out of a helicopter crash on the high seas over the
outer Continental Shelf. In this case, we consider the
meaning of the Court’s observation in Executive Jet that
admiralty jurisdiction is not conferred in aviation cases
absent, “legislation to the contrary.” We conclude that
the Court’s discussion in Executive Jet, supra, 409 US.
at 274, 93 S.Ct. at 507, 34 L.Ed.2d at 471, of “legisla-
tion to the contrary” and its illustration of such legisla-
tion by reference to the Death on the High Seas Act,
46 US.C.A. §§ 761-768 (West 1975 & Supp. 1982)
(DOHSA), indicate that the Kolb claim is within the
admiralty jurisdiction.
DOHSA, enacted in 1920 to overrule The Harrisburg,
119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), pro-
B-14
vides a cause of action for “the death of a person...
caused by wrongful act, neglect, or default occurring on
the high seas beyond a marine league from the shore[s]
of . . . the United States.”*' While the Act says nothing
about the jurisdiction of federal courts, the Court, with
apparent approval, noted in Executive Jet that federal
courts have repeatedly sustained maritime jurisdiction
over such cases.”* As the Court further noted, DOHSA
has not been limited by its literal terms to wrongful acts
on the high seas but extends to “torts . . . with a maritime
locality, in that the alleged negligence became operative
while the aircraft was on or over navigable waters, and
also with some relationship to maritime commerce, at
least insofar as the aircraft was beyond state territorial
waters and performing a function—transaceanic crossing
—that previously would have been performed by water-
borne vessels.”** Thus, the Court concluded on this point:
“[U]nder the Death on the High Seas Act, a wrongful-
death action arising out of an airplane crash on the high
seas beyond a marine league from the shore of a State
may clearly be brought in a federal admiralty court.”**
21. Section 761 reads in pertinent part as follows:
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 per-
sonal representative of the decedent may maintain a suit for dam-
ages in the district courts of the United States, in admiralty.
46 USC, § 761 (1976).
22. See cases cited in Executive Jet, supra, 409 U.S, at 263 & n.
13, 93 S.Ct. at 502 & n.13, 34 L.Ed.2d at 464 & n.13.
23. Executive Jet, supra, 409 U.S, at 264, 93 S.Ct. at 502, 34 L.
Ed.2d at 465.
24. Id. at 271 n.20 93 S.Ct. at 506 n.20, 34 L.Ed.2d at 469 n.20.
B-15
The Kolb death claim, then, could ordinarily be as-
serted in admiralty simply by virtue of the fact that it
arose from an aircraft crash “on the high seas beyond a
marine league from the shore of a State.” But because
Kolb’s accident occurred on the outer Continental Shelf,
we must determine the effect, if any, of the provisions of
the Outer Continental Shelf Lands Act, 43 U.S.C.
§§ 1331-1356 (1976 & Supp. III 1979) (OCSLA).
OCSLA makes the law of adjacent states, to the extent
such law is not inconsistent with federal law, applicable
as “surrogate” federal law to the subsoil and seabed of
the outer Continental Shelf and to the platforms erected
thereon.” In 1969, the Supreme Court decided, in Rod-
rigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89
S.Ct. 1835, 23 L.Ed.2d 360 (1969), that accidents oc-
curring on fixed platforms located on the outer Conti-
nental Shelf are governed by the OCSLA, which “de-
liberately eschewed the application of admiralty princi-
ples” to platforms; that Act requires the application of
state law. 395 U.S. at 355, 365-66, 89 S.Ct. at 1837,
1842, 23 L.Ed.2d at 369-70. While Rodrigue deals solely
with the body of substantive law applicable to platform-
related accidents, not with the jurisdiction of an admiralty
court to entertain the action and to apply state law prin-
25. 43 US.C. §1333(a) (Supp. III 1979) provides, in relevant
rt:
(2)(A)To the extent that they are applicable and not incon-
sistent with this subchapter or with other Federal laws and reg-
ulations of the Secretary now in effect or hereafter adopted, the
civil and criminal laws of each adjacent State, now in effect or
hereafter adopted, amended, or repealed are declared to be the
law of the United States for that portion of the subsoil and sea-
bed of the outer Continental Shelf, and artificial islands and
fixed structures erected thereon, which would be within the area
of the State if its boundaries were extended seaward to the outer
margin of the outer Continental Shelf... .
B-16
ciples, the opinion appears to assume that admiralty juris-
diction entails the governance of admiralty substantive
law.” In reaching the conclusion that DOSHA did not
apply, the Court repeatedly referred to accidents occur-
ring “on” fixed platforms,*’ and, indeed, most cases de-
cided under the Rodrigue principle involve an accident
which occurred, and an injury which was sustained, “on”
the platform.”* In several cases, however, we have ap-
plied OCSLA and, consequently, state law, to incidents
in which platform workers who were the victims of torts
originating on these artificial islands were not actually
injured or killed until they fell, jumped, or were pushed
26. The Court, for example, observed:
Thus the admiralty action under the Seas Act no more applies to
these accidents actually occurring on the islands than it would
to accidents occurring in an upland federal enclave or on a
natural island to which admiralty jurisdiction had not been
specifically extended. At a minimum, the legislative history
shows that accidents on these structures, which under maritime
principles would be no more under maritime jurisdiction than
accidents on a wharf located above navigable waters, were not
changed in character by the Lands Act.
395 U.S. at 366, 89 S.Ct. at 1842, 23 L.Ed.2d at 370 (emphasis
added). We, therefore, assume that admiralty jurisdiction is lacking
if the substantive law applicable is OCSLA-imposed state law.
27. See, e.g., 395 U.S. at 366, 89 S.Ct. at 1842, 23 L.Ed.2d at
370 (“Thus the admiralty action under [DOHSA] no more applies to
those accidents actually occurring on the [artificial] islands than it
wovld to accidents occurring . . . om a natural island to which ad-
miralty jurisdiction had not been specifically extended. At a minimum,
the legislative history shows that accidents on these structures, which
under maritime principles would be no more under maritime juris-
diction than accidents on a wharf located above navigable waters,
were not changed in character by the [OCSLA].”) (emphasis added).
28. See, e.g., Bonner v. Chevron U.S.A., 668 F.2d 817, 818 (Sth
Cir. 1982); Alford v. Pool Offshore Co., 661 F.2d 43, 44-45 (Sth
Cir. 1981); Terry v. Raymond Int'l, Inc., 658 F.2d 398, 400, 404-45
(Sth Cir. 1981), cert. denied, _U.S.__, 102 S.Ct. 1975, 72 L.Ed.2d
443 (1982); Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334, 336 &
n.l (Sth Cir. 1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 921, 66
L.Ed.2d 840 (1981).
B-17
into the surrounding seas.*’ In each of these cases, the
injured pariy was a platform worker and the original
impact occurred on the platform.
We have applied OCSLA-dictated state law in only one
case in which a platform worker was injured by a tort
whose initial impact was not sustained on the platform.
In In re Dearborn Marine Service, Inc., 499 F.2d 263
(5th Cir. 1974), cert. dismissed, 423 U.S. 886, 96 S.Ct.
163, 46 L.Ed.2d 118 (1975), a platform worker, Monk,
was on u “standby” vessel tied up seventy-five feet from
a platform when an explosion occurred on the platform.
With the explosion, a “flaming ball of oil” rose above the
platform. Carried by the wind, the ball of fire engulfed
the standby vessel, killing all aboard. Monk’s heirs sought
to maintain a suit against the platform defendants for
negligence under the DOHSA and general maritime law.
The district court sustained admiralty jurisdiction over
these claims. We reversed, concluding that Ҥ$ 1333(a) (2)
of the [OCSLA], when read against the background of
legislative history outlined in Rodrigue and the increasing
judicial and legislative dissatisfaction with strict locality
as the sole test of jurisdiction, precludes us from treating
Monk’s claim against [the platform defendants] as a suit
in admiralty.” 499 F.2d at 276.”
29, See, e.g., Oliver v. Aminoil, USA, Inc., 662 F.2d 349 (Sth
Civ. 1981) (per curiam); Bible v. Chevron Oil Co., 460 F.2d 1218
(Sth Cir.), cert. denied, 409 U.S, 984, 93 S.Ct. 325, 35 L.Ed.2d 248
(1972); Bertrand v. Forest Corp., 441 F.2d 809 (Sth Cir.), cert.
denied, 404 U.S. 863, 92 S.Ct. 106, 30 L.Ed.2d 107 (1971). In
Rodrigue itself, one of the decedents. Dore, was killed when he fell
nto a barge moored next to the platform. Rodrigue, supra, 395 US.
at 353, 89 S.Ct. at 1836, 23 L.Ed.2d at 363.
30. However, we sustained Monk’s admiralty claims against the
owner of the standby vessel, as well as the admiralty claims of the
B-18
Texaco and Pool argue that Kolb’s claim against them
is indistinguishable from Monk’s claim against the plat-
form defendants in Dearborn, in that in both cases, plat-
form-based negligence had its first impact on the decedent
on or over the high seas and not on the platform. Although
the two situations are alike in that regard, there is a crit-
ical difference between Monk’s status as a “platform work-
er” ard Kolb’s status as the pilot of an aircraft in navi-
gation.
[5] The basic thrust of the Dearborn opinion holding
Monk limited to state law remedies (as against the plat-
form defendants) is that Monk, as a platform worker, was
only fortuitously on a vessel at the time of the explosion
and that, otherwise, there was virtually nothing to dis-
tinguish between him and his fellow platform-workers who
perished on the platform.*’ Kolb, by contrast, cannot be
considered a “platform worker” under any standard. In-
stead, his duties constantly carried him back and forth
above the high seas over the outer Continental Shelf.
Moreover, Kolb’s death claim, considered apart from its
captain and crew members of that vessel against the platform de-
fendants. See 499 F.2d at 276, 286.
31. [C]Joncerns about the close relationships between platform
workers and their adjacent states and about the non-maritime
character of platform operations indicate to us that Congress did
not intend that application of state law necessarily should cease
at the physical boundaries of the platform. The same concerns
may be equally applicable to accidents fortuitously consummated
in the surrounding sea. While Monk’s death occurred on the high
seas, there is little to choose between his relationship to the
adjacent state and those of his fellow platform workers. He was
by all standards a platform worker. The time he spent aboard
the [standby ship] was primarily in pursuit of such platform-
related duties as filling out work reports and communicating with
his shoreside office.
Dearborn, supra, 499 F.2d at 273 (emphasis added).
B-19
relationship to the OCSLA,” was clearly within admiralty
jurisdiction. As we have already noted, the simple fact
that Kolb’s death occurred as a result of an aircraft crash
into the high seas is alone enough to confer jurisdiction
under the DOHSA. Even apart from this “special treat-
ment” accorded airplane crash victims, there would still
be admiralty jurisdiction over Kolb’s accident, as we show
below in regard to Petroleum Helicopters’ property claim
arising from this same accident. See Part IIC infra. In
products liability cases, admiralty jurisdiction has repeat-
edly been extended to cases in which death or injury oc-
curred on navigable waters even though the wrongful act
occurred on land.** The place where the negligence or
32. Cf. Kimble v. Noble Drilling Corp., 416 F.2d 847 (Sth Cir.
1969, cert. denied, 397 U.S. 918, 90 S.Ct. 924, 25 L.Ed.2d 99 (1970).
There, we upheld admiralty jurisdiction over a seaman’s injury claim
even though the injury was received on a fixed platform.
The Outer Continental Shelf Lands Act does not oust admiralty
law having a basis of applicablity independent from the location
of the platforms at sea; indeed, it specifically provides that the
general law of the upland state is made the applicable federal
law only to the extent that it is “not inconsistent with * * *
other Federal laws.” In Rodrigue, the Supreme Court recognized
this limitation. It simply reversed a holding that the Death on
the High Seas Act applied to workmen on oil platforms at sea
because “the Seas Act does not apply of its own force under
admiralty principles” to men working on land. The case at bar is
distinguishable in that the Jones Act and the general maritime
law do apply of their own force here, they would still apply,
in fact, even if we assumed that Kimble received his injuries
in the heart of the Louisiana mainland, so long as he was
acting at the time as a seaman in the service of his ship.
416 F.2d at 850 (first emphasis added).
33. See, e.g., Sperry Rand Corp. v. RCA, 618 F.2d 319 (Sth Cir.
1980); Pan Alaska Fisheries, Inc. v. Marine Constr. & Design Co.,
565 F.2d 1129 (9th Cir. 1977); cf. Kelly v. Smith, 485 F.2d 520
(Sth Cir. 1973) (admiralty jurisdiction sustained over injury to
boaters on the Mississippi River as a result of gunfire ashore), cert.
denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974).
B-20
wrongful act occurs is not decisive. The place injury occurs
and the function the injured person was performing at the
time are more significant. In these respects, the Kolb claim
is different from Monk’s claim in Dearborn and similar
to the claims of the vessel’s captain and crew members in
that case. Unlike both Monk and the workers considered
in Rodrigue, the helicopter pilot was engaged in a mari-
time-type function, transporting persons over the seas.**
[6] We hold, therefore, that admiralty jurisdiction
over Kolb’s claim against nonemployer third parties*® is
not ousted by section 1333(a) of the OCSLA.
C. The Property Damage Claim
Petroleum Helicopters’ claim for property damage to
its helicopter, sustained as a result of the same accident
which claimed Kolb’s life is patently not affected by
DOHSA. In Executive Jet, the Supreme Court left open
the question of jurisdiction over a tort claim arising in
the course of an aircraft’s performance of a “function
traditionally performed by waierborne vessels.”** It re-
ferred to situations in which such jurisdiction might be
arguable: a plane flying from New York to London that
crashed in mid-Atlantic’? and the mid-air collosion of
two aircraft used in spotting schools of fish resulting in
34. See Ledoux v. Petroleum Helicopters, Inc., 609 F.2d 824 (Sth
Cir. 1980) (per curiam), discussed in Part IIC, infra.
35. The question of the effect of the OCSLA on an admiralty
claim brought against a decedent’s employer is pending before the
court.
36. Executive Jet, supra, 409 U.S. at 271, 93 S.Ct. at 506, 34
L.Ed.2d at 469.
37. Id.
B-21
the “crash of those aircraft into the Gulf of Mexico within
one marine ‘eague of the Louisiana shore.”*
[7] The logic of Executive Jet appears to require ex-
tension of admiralty jurisdiction to nondeath claims aris-
ing on the high seas if the aircraft flight has the essential
maritime nexus. Not only is the locality-plus criterion
met, but judicial economy is also accompanied by sub-
mitting claims arising out of the same event to the same
forum. While high seas injuries may occur without death,
the Kolb-Petroleum Helicopters case is not atypical in that
both death and property damage claims are presented.
[8] The Kolb-Petroleum Helicopters crash had the
necessary watery locality. As to the essential maritime
nexus, we recently held, in Ledoux v. Petroleum Heli-
copters, Inc., 609 F.2d 824, 824 (Sth Cir. 1980) (per
curiam), that the “crash of [a] helicopter, while it [is]
being used to place of a vessel to ferry personnel and
supplies to and from offshore drilling structures, bears
the type of significant relationship to traditional maritime
activity which is necessary to invoke admiralty jurisdic-
tion.” Therefore, both the locality and maritime nexus
requirements being met, we hold that the Petroleum Heli-
copters Claim, like the Kolb death claim, may be brought
in admiralty.
Il.
[9, 10] As we have noted, admiralty jurisdiction for
Jones Act purposes, as opposed to admiralty jurisdiction
over claims asserted under the general maritime law, ex-
38. Jd. at 271 n. 22, 93 S.Ct. at 506 n.22, 34 L.Ed.2d at 469
n. 22 (emphasis added). The example suggests the necessity of a
watery locality, buttressing our conclusion in Part IIA.
oe
B-22
tends to injuries sustained on land. See note 12 supra.
In the Smith case, claims were asserted under both the
Jones Act and the general maritime law, and the district
court, somewhat ambiguously, dismissed all “admiralty
claims” for want of subject matter jurisdiction. As we
have already held, see Part IIA, supra, it was proper
to dismiss the non-Jones Act admiralty claims because
of the absence of a “watery locale.” Because Jones Act
claims may be asserted in admiralty even if the injury
occurs on land, it would have been improper to dismiss
them on the locality basis. As it appears, however, that
the district court dismissed the Jones Act claims, not
because of the absence of a maritime locality, but because
it believed that Jordan was not a “seaman,” see Part I
supra, we deem that “dismissal” as having been on the
merits for failure to state a cause of action. Thus viewing
the judgment, we agree with the district court’s conclu-
sion that Jordan’s seaplane was not a “vessel,” and that,
therefore, Jordan was not a “seaman” entitling his sur-
vivors to bring claims under the Jones Act.*°
The Congress that enacted the Jones Act was con-
cerned with overcoming the effects of The Osceola, 189
U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903), which
had denied crew members the right to relief in admiralty
for injuries arising from their employer’s negligence, while
recognizing the traditional unseaworthiness remedy. Con-
gress, following the example of the Federal Employers’
Liability Act, 45 U.S.C. §§ 51-60 (1976), enacted a tort
39. See 46 U.S.C. § 688. Although the Jones Act speaks in terms
of “any seaman,” it is now universally held that such a “seaman’’ is
equivalent to “the master or a member of the crew of any vessel.”
See, e.g., Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1345 (Sth
Cir. 1980).
B-23
remedy limited to members of the crew of a vessel instead
of the traditional workers’ compensation remedy, It can
hardly be thought that, in 1920, Congress intended or
believed that the term “vessel” included the primitive
aircraft then in use.
[11] We recognize, however, that statutes are not con-
fined in application to contemporary instances and that
their principles are to be extended to embrace new factual
situations and new technological developments. We have,
therefore, held that for Jones Act purposes, the term
“vessel” may include “special purpose structures not usu-
ally employed as a means of transport by water, but de-
signed to float on water,” even though such structures
were not conceived of until long after the Jones Act was
adopted. Offshore Co. v. Robison, 266 F.2d 769, 779
(Sth Cir. 1959).*° While it cannot be gainsaid that a
seaplane is “designed to float on water,”"' it is clear that
Robison and many cases following it** are concerned with
40. See aso 1 U.S.C. § 3 (1976), which states:
The word “vessel” includes every description of watercraft or
other artificial contrivance used, or capable of being used, as a
means of transportation on water.
Similarly, 46 U.S.C. § 801 (1976) defines the word “vessel” to in-
clude:
all water craft and other artificial contrivancies of whatever
description and at whatever stage of construction, whether on
the stocks or launched, which are used or are capable of being
or are intended to be used as a means of transportation on water.
As both these statutes derive from enactments occurring prior to the
invention of the airplane, it is certain, at least, that the original en-
acting Congresses did not have airplanes in mind when they defined
‘vessel,’
41. But quaere whether a seaplane should be thought of as a
“special purpose structure.” Robison, supra, 266 F.2d at 779 (em-
phasis added).
42. See, e.g., Davis v. Hill Eng’g, Inc., 549 F.2d 314 (Sth Cir.
1977) (derrick barge); Hicks v. Ocean Drilling & Exploration Co.,
B-24
“special purpose structures” employed by the offshore oil
drilling industry that are designed to “float” and be towed
across water to the drilling site despite their incapacity
for self-propulsion.
The primary function of a seaplane, by contrast, is
transportation through air, not on water.** The perils of
the air are great but they are different from the dangers
of the sea, to which those who work on water are exposed.
Thus, we do not find Robison’s language, directed to
another question, dispositive. Furthermore, when Con-
gress has legislated with seaplanes in mind, it has dis-
tinguished them from “vessels.” For example, section 1509
(a) of Title 49 of the United States Code incorporates a
provision of its predecessor, the Air Commerce Act of
1926, to the effect that the navigation and shipping laws
of the United States, inci:ding any definition of vessels,
are not to be construed to apply to seaplanes or other
aircraft. 49 U.S.C. § 1509(a) (1976).
512 F.2d 817 (Sth Cir. 1975) (submersible oil storage facility),
cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 639 (1976):
Neill v. Diamond M. Drilling Co., 426 F.2d 487 (Sth Cir. 1970)
(submersible drilling barge); Producers Drilling Co. v. Gray, 361
F.2d 432 (Sth Cir. 1966) (same).
43. Justice (then Judge) Cardozo explained more than sixty years
ago that an airplane designed to land and take off on water:
[I]s, indeed, two things—a seaplane and an aeroplane. To the
extent that it is the latter, it is not a vessel, for the medium
through which it travels is the air .. .; [t]o the extent it is the
former, it is a vessel, for the medium through which it travels
is the water... .
Reinhardt v. Newport Flying Service Corp., 232 N.Y. 115, 118, 133
N.E. 371, 372 (1921). We need not decide whether a seaplane may
ever be considered a ‘‘vessel,” e.g., if it were in the process of taxing,
taking off or landing on water when an accident occurred, for here
— with a tower erected on land, and the plane crashed
on land.
B-25
Virtually every court confronted with the question has
decided that a seaplane is not a vessel, either under the
Jones Act or in other contexts. For example, Judge
Christian, in a thorough and well-reasoned opinion, de-
cided in Hubschman that a seaplane is not a vessel for
Jones Act purposes. 440 F.Supp. 828, 852 (D.V.I. 1977).
In Wendorff v. State, 318 Mo. 363, 1 S.W.2d 99 (1977),
the Missouri Supreme Court held that a seaplane was an
aircraft, not a vessel, within the meaning of a life insur-
ance policy clause excluding coverage for death occurring
as the result of an airplane accident. Seaplanes have been
held not to be vessels for purposes of the Limitation of
Liability Act, 46 U.S.C. §§ 181-196 (1976). Noakes v.
Imperial Airways, Ltd., 29 F.Supp. 412 (S.D.N.Y. 1939);
Dollins v. Pan-American Grace Airways, 27 F.Supp. 487
(S.D.N.Y. 1939).*
An airplane flying through the ozone does not appear
to be a vessel within the meaning of an act addressed to
the relief of seamen. The definition is not altered by the
fact that the plane is equipped with gear that enables it
to begin and end an airborne trip on water.
For these reasons, we conclude that, in Smith the Jones
Act claim was properly dismissed for its lack of merit.
Jones was simply not a seaman or a member of the crew
of a vessel.*°
44. But see Lambros Seaplane Base v. The Batory, 215 F.2d 228
(2d Cir. 1954) (holding a seaplane to be a vessel within the ad-
miralty jurisdiction for purposes of salvage).
45. See Fragumar Corp. v. Dunlap, 685 F.2d 127 (Sth Cir. 1981)
(discussing difference between jurisdiction and merits).
=.
——
B-26
IV.
For the reasons given:
(1) The dismissal of Mrs. Smith’s suit for want of jur-
isdiction of the non-Jones Act admiralty claims is
AFFIRMED. The dismissal of the Jones Act claim
is treated as a dismissal on the merits and, as such,
is AFFIRMED.
(2) The dismissal of both Mrs. Kolb’s and Petroleum
Helicopters’s claim for want of jurisdiction is
REVERSED.
(3) The Kolb and Petroleum Helicopters cases are
REMANDED for further proceedings consistent
with this opinion.
C-1
APPENDIX C
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 81-2262
MARY E. BARGER,
Plaintiff-Appellee
Cross-Appellant,
We
PETROLEUM HELICOPTERS, INC.,
Defendant-Appellant
Cross-Appellee.
Appeals from the United States District Court for the
Eastern District of Texas
ON PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
(Opinion November 19, 1982, 5 Cir.,
198__, F.2d__)
(January 6, 1983)
(AMENDED JANUARY 13, 1983)
Before BROWN, RUBIN and REAVLEY, Circuit Judges
PER CURIAM:
The Petition for Rehearing is DENIED and the Court
having been polled at the request of one of the members
C-2
of the Court and a majority of the Circuit Judges who are
in regular active service not having voted in favor of it,
(Rule 35 Federal Rules of Appellate Procedure; Local
Fifth Circuit Rule 16) the Suggestion for Rehearing En
Banc is also DENIED.
Before CLARK, Chief Judge, BROWN, GEE, RUBIN,
REAVLEY, POLITZ, RANDALL, TATE, JOHN-
SON, WILLIAMS, GARWOOD, JOLLY and HIG-
GINBOTHAM, Circuit Judges.
JOHN R. BROWN, Circuit Judge, with whom POLITZ
and JOHNSON, Circuit Judges, join, dissenting:
For the reasons set forth in my dissent to the panel
opinion, I dissent to the failure of the Court to grant
rehearing en banc.
TATE, Circuit Judge, dissenting from denial of Sugges-
tion for Rehearing En Banc:
I join Judge Brown in dissenting from the denial of the
application for en banc rehearing. Without definitely con-
cluding now that I would reach the conclusions expressed
by Judge Brown in his dissent to the panel opinion, I feel
that they raise concerns of sufficient import to warrant
full consideration by the entire Court on this issue of
everyday importance to workers servicing our offshore
oil industry.
D-1
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 81-2262
D.C. Docket No. B-77-180-CA
(Filed Jan. 19, 1983)
MARY E. BARGER,
Plaintiff-Appellee, Cross-Appellant,
V.
PETROLEUM HELICOPTERS, INC.,
Defendant-Appellant, Cross-Appellee.
Appeal from the United States District Court for the
Eastern District of Texas
Before BROWN, RUBIN and REAVLEY,
Circuit Judges.
JUDGMENT
This cause came on to be heard on the record on ap-
peal and was argued by counsel;
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the judgment of
the said District Court in this cause be, and the same is
hereby, reversed; and that this cause be, and the same is
hereby remanded to the said District Court in accordance
with the opinion of this Court;
D-2
It is further ordered that plaintiff-appellee pay to the
defendant-appellant, the costs on appeal to be taxed by
the Clerk of this Court.
November 10, 1982
BROWN, Circuit Judge, dissenting.
ISSUED AS MANDATE: Jan. 19, 1983.
E-1
APPENDIX E
[CORRECTED]
Mary E. BARGER, Plaintiff-Appellee, Cross-Appellant,
V.
PETROLEUM HELICOPTERS, INC.,
Defendant-Appellant, Cross-Appellee.
NO. 81-2262.
United States Court of Appeals,
Fifth Circuit.
Nov. 10, 1982.
Widow and children of helicopter pilot who died while
transporting passengers to work on outer Continental
Shelf sought damages in admiralty and also asserted mari-
time tort claims for alleged unseaworthiness of the heli-
copter. The United States District Court for the Eastern
District of Texas at Beaumont, Joe J. Fisher, J., 514
F.Supp. 1199, sustained both claims and awarded dam-
ages. The pilot’s employer appealed. The Court of Ap-
peals, Alvin B. Rubin, Circuit Judge, held that Outer
Continental Shelf Lands Act applied to the helicopter
pilot, and Longshoremen’s and Harbor Workers’ Compen-
sation Act was exclusive remedy for those who had claims
resulting from his death.
Reversed and remanded.
Brown, Circuit Judge, dissented and filed opinion.
E-2
Appeals from the United States District Court for the
Eastern District of Texas.
Before BROWN, RUBIN and REAVLEY,
Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
This case raises many of the issues we decided in Smith
v. Pan Air Corp., 684 F.2d 1102 (Sth Cir. 1982). We,
therefore, address in detail only one issue that distin-
guishes this case: as to claims against a helicopter pilot's
employer for the death of the pilot while transporting
passengers to work on the outer Continental Shelf, is the
Longshoremen’s and Harbor Workers’ Compensation Act
the exclusive remedy? We conclude that such a pilot is
not covered by the Jones Act because an aircraft is not a
vessel, that the Outer Continental Shelf Lands Act applies
to the pilot, and that the LHWCA is the exclusive remedy
for those who have claims resulting from his death.
Walter Barger, like Walter Kolb, one of the decedents
in Smith, was a helicopter pilot regularly engaged in trans-
porting oil field workers and equipment from Louisiana
to platforms located in the Gulf of Mexico on the outer
Continental Shelf. While he was flying a helicopter carry-
ing eleven passengers, the helicopter crashed into the
Gulf forty miles offshore, killing all aboard. Barger’s
widow and children seek damages in admiralty for his
death, from his employer, Petroleum Helicopters,’ con-
1. Suit was also filed against Bell Helicopter Textron, a division
of Textron, Inc., the manufacturer of the helicopter. Bell and the
plaintiff agreed that, if Bell were cast in judgment, Bell would pay
the plaintiff $225,000 and waive any right to appeal. The district
judge found Bell also liable and apportioned liability 20% to Bell
and 80% to Petroleum Helicopters, 514 F.Supp. 1199. Thus, no issues
relating to the plaintiffs’ claims against Bell are before us.
E-3
tending that Barger was a Jones Act seaman and also
asserting maritime tort claims for the alleged unseaworthi-
ness of the helicopter. After trial on the merits, the dis-
trict court sustained both claims and awarded damages.
We held in Smith that the wrongful death claim of
Kolb’s beneficiaries against a third party, not the deced-
ent’s employer, arising from the crash of an aircraft into
the high seas, is properly within admiralty jurisdiction
by virtue of decisions so interpreting the Death on the
High Seas Act, 46 U.S.C.A. §§ 761-768 (West 1975 &
Supp. 1982) (DOHSA). Smith, 684 F.2d at 1108-12.
The accident involved in Smith occurred on the outer
Continental Shelf, but we decided that §4(a) of the
OCSLA, 43 U.S.C. § 1333(a) (Supp. IV 1980), making
State law applicable as surrogate federal law to accidents
occurring on fixed platforms, does not supersede the
DOHSA so as to oust admiralty jurisdiction over the
plaintiff's claim.’
The wrongful death claim in this case, unlike the Kolb
claim in Smith, is asserted against the decedent's em-
ployer, Petroleum Helicopters, Section 4(b) of the OCS-
LA provides, “[w]ith respect to . . . death of an employee
resulting from any injury occurring as the result of opera-
tions conducted on the outer Continental Shelf for the
purpose of exploring for, developing, removing, or trans-
porting . . . 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.A.
2. See Smith, 684 F.2d at 1109-11. For similar reasons, we held
that Petroleum Helicopter’s claim for property damage arising from
the same accident was likewise not ousted from admiralty jurisdiction
by the OCSLA. See id, at 1112.
E-4
$§ 901-950 (West 1978 & Supp. 1982) (LHWCA)].”
43 U.S.C.A. § 1333(b).* Section 933(i) of the LHWCA
provides that this compensation is the exclusive remedy
of an injured employee against his employer, 33 U.S.C.A.
§ 933(i). Therefore, if Barger was covered by 43 U.S.C.
§ 1333(b), there can be no recovery against his employer
under general maritime law. Even if admiralty jurisdiction
existed because Barger’s death resulted from an aircraft
crash on the high seas, see Smith, 684 F.2d at 1109,
recovery would be barred by § 933(i) and the claim
would fail on the merits.
[1] The Barger plaintiffs argue that Barger was a
Jones Act seaman, and therefore excluded from coverage
under 43 U.S.C. § 1333(b). That section provides that
the term “employee” does not include “a master or mem-
ber of a crew of any vessel.” 43 U.S.C. § 1333(b)(1).
For the same reasons discussed in Smith, 684 F.2d at
1112-14, we conclude that a helicopter cannot be con-
sidered a “vessel,” and, therefore, that this exclusion from
LHWCA coverage does not extend to Barger.
[2] Smith involved several claims, Jordan, whose claim
was asserted by his beneficiary (Smith), was flying a
plane. Kolb and Barger were both piloting helicopters.
3. The section continues:
For the purposes of the extension of the provisions of the Long-
— 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 . . .;
(2) the term “employer” means an employer any of whose
employees are employed in [exploring for, developing, remov-
ing, or transporting by pipeline the natural resources .. . of
the subsoil and seabed of the outer Continental Shelf].
43 U.S.C.A, § 1333(b) (West Supp. 1982).
E-5
Jordan's aircraft, like Barger’s, had attachments enabling
it to land on and take off from water. Kolb’s helicopter
apparently had no such attachment. But each of these
aircraft, whether or not fitted with pontoons, was designed
primarily to fly through the air not to travel on water.
The dissent of our respected colleague apparently as-
sumes that a helicopter sans pontoons used for the self-
same purpose, to transport personnel to and from offshore
platforms, is not a vessel. Neither a plane nor a helicopter
undergoes a miraculous transformation from aircraft into
vessel when pontoons are attached to it, and their pilots
do not by this act become members of a “vessel's” crew.
The helicopter’s amphibian adaptations were designed
solely to permit it to take off from and land on water
and to taxi on water in order to position itself for loading
and unloading with a view to travel through the air. It
was an aircraft that might use the surface of the water
for a time to facilitate airborne commerce, An airplane
does not become an automobile because it has wheels
attached and can taxi on runways. The wheels no more
change aircraft into land vehicles than pontoons change
aircraft into vessels. Just as a vessel does not lose its
nautical quality merely because it is anchored for a time
to serve as a drilling platform, an aircraft does not be-
come a vessel because it is adapted to float and taxi on
the water for brief periods in order to perform incidental
functions that aid in its primary mission, The Jones Act
was designed to aid those who face the hazards of the
sea, not the perils of the air. Barger did not meet death
from a collision at sea or the action of the waves but
as a result of an aircraft disaster. See Symposium, Air-
craft as Vessels Under the Jones Act and General Mari-
time Law, 22 S. Tex. L. J. 595, 600-03 (1982).
E-6
[3] It remains only to be determined, then, whether
the claim against Barger’s employer is covered by the
OCSLA. This depends on (1) whether Barger’s death
was the “result of operations conducted on the outer
Continental Shelf for the purpose of exploring for, de-
veloping, removing, or transporting . . . the natural re-
sources . . . of the outer Continental Shelf,” and (2)
whether Barger’s employer, Petroleum Helicopters, was
an “employer” within the intendment of 43 U.S.C. § 1333
(b)(2).
The first of these conditions is clearly met. In Stans-
bury v. Sikorski Aircraft, 681 F.2d 948 (Sth Cir, 1982),
a Chevron Oil Company employee was killed when the
Chevron-owned helicopter in which he was a passenger
crashed on the high seas over the Shelf. We held that the
compensation act provided Stansbury’s sole remedy against
his employer, Chevron, because Stansbury had been in-
specting work done under his supervision on a fixed rig
located on the Shelf. “His work furthered the rig’s opera-
tions and was in the regular course of the extractive opera-
tions on the [Shelf]. 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.” Id. at 951 (emphasis added). Barger likewise
would not have been killed in a helicopter crash in the
Gulf of Mexico “but for” the fact that he was employed
to transport eleven workers to a fixed platform on the
Shelf. His work furthered mineral exploration and de-
velopment activities and was in the regular course of
such activities.
With respect to the second condition for OCSLA
coverage, the term “employer” means “an employer any
E-7
of whose employees are employed in [operations con-
ducted on the outer Continental Shelf for the purpose
of exploring for, developing, removing, or transporting
.. . the natural resources . . . of the outer Continental
Shelf].” 43 U.S.C. § 1333(b)(2). Unlike the employer
in Stansbury, Petroleum Helicopters, Barger’s employer,
was not itself engaged in mineral operations. However,
helicopter transportation of men and equipment from the
mainland to the offshore rigs and back plays an important
role in “developing” the Shelf. This transportation is an
“operation conducted . . . for the purpose of” natural
resource development. Helicopter pilots involved in these
operations perform the same function with respect to re-
source development whether employed directly by a pro-
ducer or by a separate contractor, and should not be
treated differently on the basis of who their immediate
employer is. We decline to inject another element of in-
consistency into an area already beset by more than its
fair share of incongruous results.‘
Aside from the fact that this case involves an employer
and employee, the only kind of claim to which the com-
pensation remedy applies, there is another important dis-
tinction between Barger’s claim and the claim in Smith.
The OCSLA compensation coverage provision already
quoted is expansive. It extends to every injury or death
“occurring as a result of operations . . . for the purpose
of exploring for, developing, removing, or transporting
4. See generally Robertson, /njuries to Marine Petroleam Work-
ers: A Plea for Radical Simplification, 55 Tex. L. Rev. 973, 973
(1977) (“Since the oil industry went offshore, the legal system has
struggled to produce a body of injury law that is rational, fair, in-
ternally consistent, and acceptably productive of safety incentives.
The result has been chaos.”’) (footnote omitted).
E-8
. natural resources.” 43 U.S.C.A. § 1333(b). The
state law extension clause, however, is considerably nar-
rower, providing only for the application of state law to
“the subsoil and seabed of the outer Continental Shelf,
and artificial islands and fixed structures erected thereon.”
43 U.S.C. § 1333(a). Thus state law is made applicable
only to workers in certain areas and not to all employees
engaged in mineral development, while the compensation
statute reaches any employee killed or injured while ex-
ploiting the Shelf’s resources.
We, therefore, hold that Barger’s exclusive remedy
against his employer was LHWCA compensation.’ The
district court’s judgment is REVERSED and the case is
REMANDED for further proceedings not inconsistent
with this opinion.
5. The district court held in the alternative that, even if Barger
were covered by the LHWCA, section 905(b) of that act gives a
covered employee the right to bring an action against the ‘vessel
owner” for negligence. Citing Smith v. M/V Captain Fred, 546 F.2d
119 (Sth Cir. 1977), the court noted that the “circumstances that
the vessel owner and the employer are the same entity does not
preclude such an action,” However, section 905(b) is simply irrele-
vant here unless a helicopter is a “vessel.” We have concluded that
it is not. See text supra and Smith, 684 F.2d at 1112-13. Therefore,
a compensation remains Barger’s sole remedy against his em-
ployer.
E-9
JOHN R. BROWN, Circuit Judge, dissenting:
To the dual holding’ that the helicopter was not a
“vessel” and Barger, its pilot, was not a “seaman”, I
must respectfully dissent.
To narrow the point of difference, I wish to make clear
the extensive areas in which I am in full agreement with
Judge Rubin’s scholarly analysis. Without a doubt, 43
U.S.C. § 1333(b) of the Outer Continental Shelf Lands
Act (OCSLA) brings into play § 933(i) of the Long-
shoremen’s and Harbor Workers’ Compensation Act
(LHWCA) which prescribes the exclusive remedy for
injury and death cases by the Act. I quite agree that
Barger’s death was the “result of operations conducted
on the Outer Continental Shelf for the purpose of explor-
ing for, developing, removing, or transporting . . . the
natural resources . . . of the Outer Continental Shelf. . .”,
43 U.S.C. § 1333(b), and that his employer, Petroleum
Helicopters, Inc., was engaged in such operations in per-
forming the essential service of transporting men and
equipment from the mainland to the offshore rigs.
At the same time, I agree the case is not controlled by
the local law of the adjacent state (Louisiana) as “sur-
rogate” federal law under the OCSLA, 43 U.S.C. § 1333
(a)(2)(A). See text accompanying n.25, 684 F.2d at
1. The dual determination was based in effect on the almost con-
temporaneous holding of the Court as to the Smith claim in Smith
v. Pan Air Corporation, 684 F.2d 1102, 1112, n. 39 (Sth Cir. 1982).
Of necessity, this dissent attacks that determination. Instead of con-
curring specially because of a decision binding on me until altered
by the Court en banc, I am dissenting, since with the filing of this
dissent I will seek formally rehearing en banc, F.R.A.P. Rule 35, of
the instant case which will inevitably bring into question the correct-
ness of the Smith decision.
E-10
1109. Rodrigue v. Aetna Casualty & Surety Co., 395
U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969).
I also agree that the Kolb claim against the third party
in Smith for the death of a helicopter pilot in waters off
the Outer Continental Shelf was a maritime claim within
the jurisdiction of the admiralty. 684 F.2d 1111-12.
And I embrace wholeheartedly the Court’s conclusion
that the suit by the helicopter owner in the Kolb claim
of Smith for loss of a helicopter was within the admiralty
jurisdiction. 7d. at 1112. All of this means that for the
death of Barger the Longshoremen’s Act is the exclusive
remedy against the employer, Petroleum Helicopters, Inc.,
unless he was “. . . a master or member of the crew of
[a] vessel... .” 43 U.S.C. § 1333(b)(1).
This dramatizes the narrow, but significant, difference
in our views. The Court having held (i) in the Kolb third
party death action that the claim under DOHSA was
within the admiralty and it was so maritime as to be be-
yond the reach of adjacent surrogate law, 43 U.S.C.
§ 1333(a)(2)(A); and having held (ii) in the claim
for the owner’s loss of the helicopter that the helicopter
was engaged “in a maritime-type function, transporting
persons over the sea”, 684 F.2d at 1111, because the
aircraft was “being used in place of a vessel to ferry
personnel and supplies to and from offshore drilling struc-
tures,. . .” and this bore “. . . the type of significant rela-
2. The Court states:
Unlike both Monk and the workers considered in Rodrigue,
the helicopter pilot was engaged in a maritime-type function,
transporting persons over the seas.
We hold, therefore, that admiralty jurisdiction over Kolb’s
claim against nonemployer third parties is not ousted by section
1333(a) of the OCSLA.
684 F.2d at 1111-12 (note omitted).
E-11
tionship to traditional maritime activity . . . necessary
to invoke admiralty jurisdiction . . .”, Jd. at 1112, the
case suddenly loses its admiralty character by the inter-
position of the Lonshoremen’s Act.
It is no answer that this is what Congress has pre-
scribed since the LHWCA provides itself that seamen are
excluded. The helicopter is doing what a vessel would
ordinarily do—transport persons and property to and
from the mainland and the offshore structure. The pilot
is doing what the master and crew of a vessel would do,
namely, operate the craft. Each activity is maritime and
maritime related. Each meets the exclusions and prin-
ciples set forth in Executive Jet Aviation, Inc. v. City of
Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454
(1972). Injury or loss to each in the OCSLA waters is
within the admiralty. The factor which makes each within
the admiralty is the function and purpose of the use of
the craft. All that is lacking is a “vessel” in the usual
traditional sense of a thing which can float on or in water
to carry persons or things from one place to another.
But the normal physical characteristics to constitute
an object a “vessel” have never deterred the Supreme
Court or this Court from finding unusual, nontraditional,
odd, nonmaritime structures to be “vessels”, and the per-
son serving to fulfill the mission of such structures to be
seamen under the Jones Act.
The classic case is Judge Wisdom’s celebrated decision
in Offshore Co. v. Robison, 266 F.2d 769 ( 5th Cir.
1959). There, following significant Supreme Court deci-
sions, we held an oil field “roustabout” who did not know
how to, or what was meant by, the ability to “hand, reef
and steer,” to be a Jones Act seaman for injuries received
E-12
while a floating submersible rig was made fast to the
bottom of the bay by jack-up legs raising the deck of the
drilling barge way above the level of the water. At the
time of the injury the drilling platform was not afloat.
It was hard aground. The drilling barge could not move.
The only relation it had to the sea was its past—when
it was towed to a new location—or, its future—when it
would again be towed to another location.
Equally spetacular was the decision in Gianfala v.
Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775
(1955). Gianfala and his crew members slept ashore in
an oilfield camp and worked aboard a drilling barge
which was resting on the bottom of the bay at the time
of the injury. The Court held Gianfala to be a seaman
within the scope of the Jones Act. Even more spectacular
was Grimes v. Raymond Concrete Pile Co., 356 U.S. 252,
78 S.Ct. 687, 2 L.Ed.2d 737 (1958) in which the con-
tractor was building a “Texas tower” radar station for
location in the North Atlantic to be permanently affixed
to the floor of the ocean. After the tower was towed to
its offshore site, Grimes did only piledriving work. He
drowned when he fell out of a life ring used to carry
him from a tug to the tower. The Supreme Court re-
versed the First Circuit and held that the “petitioner’s
evidence presented an evidentiary basis for a jury’s find-
ing whether or not the petitioner was a member of the
crew of any vessel” to thus circumvent the equivalent of
LHWCA coverage under the Defense Bases Act. Jd. at
253, 78 S.Ct. at 688.
Courts of Appeals and District Courts have extended
Robison to strange sorts of things to find them to be a
E-13
“vessel” and the injured person a seaman,” and the so
called floating submersible drilling barges are invariably
hard aground, incapable of any movement—maritime or
otherwise.‘ As a matter of physical, operative fact they
are just as land-bound, nonmaritime as the fixed raised
drilling platform over which it is uncontradicted that
none is a vessel.
The upshot of these decisions for our case is that be-
cause the helicopter was regularly operated in the trans-
3. Nelson v. United States, 639 F.2d 469 (9th Cir. 1980) (a wave
suppressor, an aquatic barrier erected in the water to protect boats
at the Coast Guard station from heavy waves which is permanently
affixed to the sea floor held to be a vessel and the decedent, a pile-
driver, was a seaman within the Jones Act); Guidry v. South Louisi-
ana Contractors, 614 F.2d 447 (5th Cir. 1980) (elevated boom of a
large dragline was a vessel; case remanded for jury determination
whether injured party was Jones Act seaman); Hicks v. Ocean Drill-
ing & Exploration Co., 512 F.2d 817 (Sth Cir. 1975) (submersible
oil storage facility resting on the bottom of the Gulf held to be a
vessel and plaintiff a seaman); Brinegar v. San Ore Construction Co.,
Inc., 302 F.Supp. 630 (E.D. Ark. 1969) (fuel tank pontoon vessel
capsized at time of accident held to be a vessel and plaintiff a Jones
Act seaman).
4. Submersible drilling barge cases are legion and invariably in-
volve injuries occurring while the drilling barge is fixed on the ocean
floor and not floating or in movement. Sce Daughdrill v. Diamond
M. Drilling Co., 447 F.2d 781 (Sth Cir. 1971); Neill v. Diamond
M. Drilling Co., 426 F.2d 487 (Sth Cir. 1970); Producers Drilling
Co. v. Gray, 361 F.2d 432 (Sth Cir. 1966); Harney v. William M.
Moore Building Corp., 359 ¥.2d 649 (2d Cir. 1966); Clary v. Ocean
Drilling and Exporation Co., 429 F.Supp. 905 (W.D. La. 1977);
McNeese v. An Son Corp., 334 F.Supp. 290 (S.D. Miss. 1971);
McCarty v. Services Contracting Inc., 317 F.Supp. 629 (E.D. La.);
Robichaux v. Kerr McGee Oil Industries, Inc., 317 F.Supp. 587
(W.D. La. 1970); Rogers v. Gracey-Hellums Corp., 331 F.Supp.
1287 (E.D. La. 1970); Hebert v. California Oil Co., 280 F.Supp.
754 (W.D. La. 1967); Ledet v. U.S. Oil of Louisiana, Inc., 237 F.
Supp. 183 (E.D. La. 1964); Oliver v. Ocean Drilling & Exploration
Co., 222 F.Supp. 843 (W.D. La. 1963); Guilbeau v. Falcon Seaboard
Co., 215 F.Supp. 909 (E.D. La. 1963).
E-14
portation of persons and property to and from the main-
land and the offshore structures, it was engaged in mari-
time activities so that the loss of the helicopter and the
death of the pilot were a maritime tort within the juris-
diction of the admiralty. It is maritime because of the
nature of the work it regularly performed—the transpor-
tation of persons and property. This is made positive by
the Court’s treatment of the pilot’s (Kolb’s) claim. The
Court emphasized that “his duties constantly carried him
back and forth above the high seas over ilic outer Con-
tinental Shelf.” 684 F.2d at 1111. Disregarding the rela-
tionship of the death claim to the OCSLA and the ac-
knowledged separate jurisdiction under DOHSA, the
Court went on:
Even apart from this ‘special treatment’ accorded
airplane crash victims, there would still be admiralty
jurisdiction over Kolb’s accident, as we show below
in regard to Petroleum Helicopter’s property claim
arising from the same accident. See Part I[C infra.
Id. And after stating in Part ITC that the “logic of Execu-
tive Jet appears to require extension of admiralty juris-
diction to non-death claims arising on the high seas if the
aircraft flight has the essential maritime nexus,” Jd. at
1112, the Cc art eliminating the “if”, concluded:
Therefore, both the locality and maritime nexus re-
quirements being met, we hold that the Petroleum
Helicopters claim, like the Kolb death claim, may
be brought in admiralty. /d.
To the Court’s quaere, Id. at 1113, n. 41, the record
in this case and the trial court’s factual findings clearly
reflect that the amphibious helicopter here come within
E-15
the broad, virtually indefinable Robison definition of a
special purpose craft.° The judge found that this amphibi-
ous helicopter was specially designed and built not only
to take off and land on water but also to taxi on the
water. It could move under its self-propulsion on the
water to position itself for the loading or unloading of
cargo or passengers. He characterized the craft as one
designed to function as a crew boat without which the
gigantic offshore oil industry's maritime operations, see
Boudreaux v. American Workover, Inc., 680 F.2d 1034
(Sth Cir., 1982) (en banc), could not function. Indeed
this seems to have been the sole function of this heli-
copter.°
More than that the helicopter literally met the Con-
gressional definition that “any artificial contrivance . . .
capable of being used, as a means of transportation on
water” constitutes a vessel.’ 684 F.2d at 113, n. 40.
5. It must be emphasized that a Robison vessel determination
does not necessarily or automatically mean Jones Act status, so the
question is broader than: “Is the injured worker a Jones Act sea-
man?” See Dugas v. Pelican Construction Co., 481 F.2d 773 (Sth
Cir. 1973) (not a Jones Act seaman but entitled to seaman’s warranty
of seaworthiness).
6. The Supreme Court in Mobil Oil Corp. v. Higginbotham, 436
U.S. 618, 619, n. 2, 98 S.Ct. 2010, 2011, n. 2, 56 L.Ed.2d 581, 583,
n. 2, said “[t]he District Court bottomed admiralty jurisdiction on
a finding that the helicopter was the functional equivalent of a crew-
pion ag ruling has not been challenged in this Court.” (citation
omitted).
7. Since we are dealing directly with the usage of not only the
LHWCA but also more recently the 1953 OCSLA, 43 U.S.C. § 1333
(c)(1) as amended September 18, 1978, 43 U.S.C. § 1333(b) (1), the
Court’s explanation, 684 F.2d at 1113, n. 40, not only ignores these
historical facts (plus the substantial 1972 amendments to the
LHWCA) but also this Court’s express conclusion that we must
determine what Congress meant about a matter on which it could
not have thought because of technological non-existence’ For example,
.
E-16
Whatever the meaning of the full text of 49 U.S.C.
§ 1509(a) rather than the Court’s paraphrase of it, 684
F.2d at 1113, the fact is that in very recent actions Con-
gress has definitely included seaplanes (including heli-
copters) within the meaning of the term “vessel”. In the
major overhaul of the International Regulations for Pre-
venting Collisions at Sea, 33 U.S.C. § 1601 ef seq.
(1977), the Congress in 1977 did several significant
things. It repealed the long standing “Rules of the Road.”
It provided for a proclamation by the President and the
promulgation of the International Regulations for Pre-
venting Collisions at Sea (Internationa! Rules).”
discussing the technological advances made since Congress enacted
COGSA, this Court has stated:
Our principal task in this case is to determine what Congress
would have thought about a subject about which it never thought
or could have thought and one about which we have never
thought nor any other Court has thought. Technology has created
a maritime transportation system unlike any which was in exis-
tence in 1936 when Congress enacted COGSA. (note omitted).
Wirth Ltd, v. S/S ACADIA FOREST and LASH Barge, 537 F.2d
1272, 1276 (Sth Cir. 1976).
The question remains then, what did Congress mean in 1953 when
it enacted § 4(b)(1) of the OCSLA, the statute which cuts off the
maritime claim for the death of the pilot. Moragne v. States Marine
Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).
8. The International Rules, see 33 U.S.C. § 1602 number 1
through 38.
Rule 3(a) states that:
(a) The word ‘vessel’ includes every description of water craft,
including nondisplacement craft and seaplanes, used or capable
of being used as a means of transportation on water.
Rule 3(e) states that:
(e) The word ‘seaplane’ includes any aircraft designed to
manoeuvre on the water.
Rule 31 reflects peculiar concern with seagoing aircraft:
Where it is impracticable for a seaplane to exhibit lights and
shapes of the characteristics or in the positions prescribed in the
Rules of this Part she shall exhibit lights and shapes as closely
similar in characteristics and position as is possible. (emphasis
supplied).
E-17
33 U.S.C. § 1601(1) leaves no doubt that all kinds
of seagoing aircraft are included within the term “vessel”.
It states:
‘vessel’ means every description of watercraft, in-
cluding nondisplacement craft and seaplanes, used
or capable of being used as a means of transporta-
tion on water... .
A helicopter comes within the statutory definition of a
“nondisplacement craft” and certainly fits the qualification
of a craft “used or capable of being used as a means of
transportation on water.” Jd. As a statutorily defined
“vessel”, a helicopter is also subject to the elaborate
system set up in 33 U.S.C. § 1608 for civil penalties.
There, investigative, enforcement and comprehensive
measures are provided, including liability of an operator
of a vessel and an in rem remedy against the craft.
Whatever Congress had or could have had in mind
regarding the term “vessel” in 1920 when it first enacted
the Jones Act, it is now clear in 1982 and has been ever
since 1977 that Congress has no doubts. Congress means
to include any and ail kinds of seagoing aircraft within
the term “vessel”, with the sole qualification that the craft
be used or capable of being used for transportation on
or over international waters, which these clearly were,
or other waters over which the United States has juris-
diction.
One final note on the term “vessel”. The Court stresses
that in Robison we were concerned with “special purpose
structures” which are designed to float and be towed
“across water to the drilling site despite their incapacity
for self-propulsion.” 684 F.2d at 1113. Wave barriers
E-18
permanently affixed to the sea floor, Nelson, 639 F.2d
469, the elevated boom of a dragline, Guidry, 614 F.2d
447, and a submersible oil storage facility, Hicks, 512
F.2d 817, and the “Texas Tower” for radar defense of
the nation, Grimes, 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.
2d 737, hardly fit that category.
Nor does fidelity to the principles of Robison require
that the flexible maritime law’s concern for those who
go down to sea, see Sea-Land Services, Inc. v. Gaudet,
414 US. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974)
(following Moragne)—whether in ships or today’s ver-
sion of the ship’s equivalent—should be denied effectua-
tion of the admiralty remedy which Kolb and all other
helicopter pilots, including Barger, have, because the
thing—the helicopter—whose use for substantial mari-
time purposes gives the controversy the prized characteri-
zation of a maritime claim, is not a vessel.’
I must therefore dissent.
9, That ascribing vessel status to a helicopter leaves some legal
problems unanswered, see 684 F.2d at 1114 (limitation of liability,
etc.), is no deterrence to the admiralty’s adaptability, Recall, for
example, that in the boundless Sieracki claims, founded on traditional
seamen’s work, longshoremen never received maintenance and cure,
Seas Shipping Co. v. Sieracki, 328 U.S, 85, 66 S.Ct, 872, 90 L.Ed,
1099 (1946).
F-1
APPENDIX F
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 81-2262
(Filed March 9, 1983)
MARY E. BARGER,
Plaintiff-Appelle, Cross Appellant,
v.
PETROLEUM HELICOPTERS, INC.,
Defendant-Appellant, Cross Appellee.
Appeals from the United States District Court for the
Eastern District of Texas
Before BROWN, RUBIN and REAVLEY,
Circuit Judges.
BY THE COURT: —
IT IS ORDERED that appellee’s motion for leave to
file motion for reconsideration of petition for rehearing
and suggestion for rehearing en banc is DENIED.
G-1
APPENDIX G
Mary E. BARGER
v.
PETROLEUM HELICOPTERS, INC., and
Bell Helicopters International, Inc.,
Civ. A. No. B-77-180-CA.
UNITED STATES DISTRICT COURT,
E. D. Texas,
Beaumont Division.
May 21, 1981.
Action was brought against decedent’s employer, en-
gaged in business of transporting personnel to and from
oil drilling rigs, and manufacturer of helicopter, to re-
cover damages under the Jones Act arising from death of
helicopter pilot. The District Court, Joe J. Fisher, J., held
that where helicopter was physically designed for land-
ings, takeoffs, and movement on water, helicopter was
engaged in a maritime endeavor, and pilots were exposed
to such hazards of the sea as drowning and storms, heli-
copter was a vessel for purposes of the Jones Act, and
thus pilot, who had more than a mere transitory relation-
ship with employer’s fleet of helicopters, and whose duties
contributed to the function of the vessel in the most es-
sential way, was a seaman.
Ordered accordingly.
G-2
Hubert Oxford, III, Benckenstein, McNicholas, Oxford,
Radford, Johnson & Nathan, Beaumont, Tex., for plain-
tiffs.
Vance E. Ellefson, Lugenbuhl, Larzelere & Ellefson,
New Orleans, La., for defendant Petroleum Helicopters,
Inc., and intervenor American Home Assur, Co.
J. E. Wiliams, Jr., Fulbright & Jaworski, Houston, Tex.,
for defendant Bell Helicopters/Textron.
MEMORANDUM OPINION'
JOE J. FISHER, District Judge.
Just after sunrise on the morning of April 23, 1976,
the helicopter piloted by the Plaintiffs’ decedent, Walter
Barger, crashed into the Gulf of Mexico some 40 miles
off the coast of Louisiana. Barger and all eleven of his
passengers were killed. The Plaintiffs’ brought this suit
pursuant to Rule 9(h) of the Federal Rules of Civil
Procedure, the Jones Act, 46 U.S.C. § 688, the Death
on the High Seas Act, 46 U.S.C. § 761 et seq. (DOHSA),
and the general maritime law to recover for Barger’s
death. The Defendants are Petroleum Helicopters, Inc.
(PHI), Barger’s employer and the owner of the helicop-
ter, and Bell Helicopters/Textron (Bell), the helicopter’s
manufacturer, The cause of action against Bell is based
on Texas tort law applicable in admiralty through
DOHSA, see, e. g., Fosen v. United Technologies Corp.,
484 F.Supp. 490, 496 (S.D.N.Y.), aff'd, 633 F.2d 203
1. This Memorandum Opinion constitutes the findings of fact and
conclusions of law required by Rule 52, Fed. R. Civ. P.
2. The Plaintiffs are Mary Elizabeth Barger, the widow, and Eliz-
abeth Jane and Randy Michael Barger, the children.
G-3
(2d Cir. 1980), and is pendent to the federal statutory
and admiralty claims against PHI.* Trial was to the Court.
PHI is engaged in the business of transporting workers
to and from drilling platforms in, among other places,
the Gulf of Mexico off the coast of Texas and Louisiana.
It maintains offices in Sabine Pass, Texas, and Cameron,
Louisiana. Barger was employed by PHI as a pilot of one
of its helicopters. On the day in question, Barger was
operating a Bell 205A-1 PHI-owned helicopter bearing
aircraft registration number N8167J from Cameron to a
drilling rig owned by Blue Dolphin Corporation in the
Gulf of Mexico. Barger was ferrying eleven Blue Dolphin
employees to the rig. Approximately 40 miles offshore
and 5 to 6 miles from the Blue Dolphin rig, the tail boom
separated from the main body of the helicopter in flight,
causing it to spin uncontrollably and crash into the Gulf.*
3. The claims against Bell easily meet the requirements set out in
United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130,
1138-39, 16 L.Ed.2d 218 (1966), for the exercise of pendent juris-
diction: the federal claim must have sufficient substance to confer
subject matter jurisdiction; the state and federal claims must derive
from a common nucleus of operative fact; the nature of the plain-
tiffs’ claims is such that they would ordinarily expect to try them all
in one proceeding; and the decision to try the claims together must
be justified by considerations of judicial economy, convenience, and
fairness to the litigants. See Connecticut General Life Ins. Co. v.
Craton, 405 F.2d 41, 48 (Sth Cir. 1968). The exercise of discretion
in favor of pendent jurisdiction is particularly appropriate in ad-
miralty cases, Leather’s Best, Inc. v. SS. Mormaclynx, 451 F.2d 800,
808-11 (2d Cir, 1971).
4. The evidence shows that the tail boom serves two very im-
portant functions: it acts as a counterweight to the main body of the
helicopter, allowing the craft to fly on a level plane; and it provides
sideways thrust through a tail rotor to overcome the tendency of the
cabin to spin in a direction opposite to that of the blades. Therefore,
when the tail boom separated from the cabin of Barger’s helicopter,
the cabin began to tumble forward and, at the same time, to spin at
a rapid rate.
G-4
The tail boom separated when two of the four longeron
fittings that attach the tail to the cabin failed. The evi-
dence establishes that the upper left longeron fitting failed
due to corrosion’ and metal fatigue. The lower left longer-
on fitting failed immediately afterward, likewise due to
corrosion and metal fatigue. Prior to the time of the
crash, the two left fittings exhibited fatigue striations,
which are marks on a fatigue fracture made by an ad-
vancing crack. The fatigue portions of the cracks were
over an inch wide and an inch long in the upper left
fitting and almost an inch and a half to an inch in the
lower left. There were two cracks in each of the left
longeron fittings. These cracks had been present for at
least several hundred flight hours prior to the crash.
PHI had removed the tail boom from the helicopter
in question three years and 3,747 flight hours prior to the
crash. On reassembly, one of the bolts used was of an
incorrect type and five of other fasteners were installed
backwards.” Both the Bell instruction manual and PHI’s
own inspection and maintenance procedures required that
the longeron fittings be visually inspected every 100 flight
hours. PHI had knowledge that there could be problems
with these fittings in a corrosive environment by virtue
of its having submitted to Bell nearly three years earlier
a Malfunction Defect Report (MDR) along with a failed
5. PHI operates its helicopters in a very corrosive, salt water and
sea air environment.
6. The odd bolt was the closest to the fatigue area and of a
slotted type, designed for use with a screwdriver. A gouge or nick was
caused during installation when the screwdriver slipped from the head
of this bolt and banged into the forging. The fatigue area spread,
due to stress, from this gouge. Although the installation of incorrect
and backward bolts would not have, alone, caused the fittings to fail,
it is indicative of PHI’s grossly inadequate maintenance program.
G-5
upper left fitting.’ In early 1974, Bell reported to PHI
the cause of the failure, and orally advised a PHI em-
ployee that its inspection procedures should be modified
so as to more closely inspect the longeron fittings, without
providing specific instructions on how to do so.
PHI is the largest commercial helicopter firm in the
world and clearly has the requisite experience and exper-
tise to properly inspect and maintain its helicopters. In
particular, PHI’s mechanics are experts in the field of
helicopter repair and maintenance, are FAA certified, and
should be held to the standard of an expert. Martinez v.
Dixie Carriers, Inc., 529 F.2d 457, 464, 465-66 (Sth Cir.
1976). As such, PHI could have been reasonably ex-
pected to devise a proper method of inspecting the lon-
geron fitting on its helicopters, despite the lack of formal
instructions from Bell.* In fact, the Nationa! Transporta-
tion Safety Board inspector assigned to this crash found
that, prior to the crash, PHI had in fact established a
procedure to inspect these fittings. The failure of PHI’s
employees to discover the cracks and the gouge in the
two left longeron fittings during one of the 100 hour
inspections that took place while the cracks were in exis-
tence and visible for about 300 flight hours prior to the
crash constitutes negligence, which was a contributing
cause of the crash and the death of the Plaintiffs’ decedent.
The evidence indicates that the tail boom of helicopters
operating in a corrosive environment should be complete-
7. The evidence shows that the cause of the failure of the fitting
that was the subject of the earlier MDR was mechanically identical
to that of the upper left fitting on Barger’s helicopter.
8. Prior to the accident, in addition to the oral warning noted
above, Bell’s maintenance manual called for a “thorough and search-
ing” inspection of the helicopter, including the longeron fittings,
every 100 hours of flight time.
G-6
ly removed and carefully scrutinized at no more than
1,000 flight-hour intervals.” Such an inspection would have
readily disclosed the fatigue cracks in the left longeron
fittings. The failure of PHI to remove the tail boom from
Barger’s helicopter for a period in excess of 3,700 flight-
hours constitutes negligence, which was a contributing
cause of the crash made the basis of this suit. PHI’s
negligence in failing to perform this type of inspection
is particularly blameworthy, as it previously had knowl-
edge of the tendency of the longeron fittings to fail in
the environment in which its business is conducted.
[1] The quantum of negligence required to impose
liability under the Jones Act is very slight, and it need
only be a contributing cause of the incident giving rise
to the suit. Allen v. Seacoast Products, Inc., 623 F.2d
355, 361 (Sth Cir. 1980); Reyes v. Vantage Steamship
Co., 609 F.2d 140, 142 (Sth Cir. 1980): Davis v. Hill
Engineering, Inc., 549 F.2d 314, 329 (Sth Cir. 1977);
Bush v. Texaco, Inc., 504 F.Supp. 670, 672 (E.D. Tex.
1981). The Plaintiffs easily satisfied this featherweight
burden.
[2, 3] The duty to provide a reasonably seaworthy
vessel is absolute and is completely independent of the
employer’s obligation to exercise reasonable care. Michal-
ic v. Cleveland Tankers, Inc., 364 U.S. 325, 327, 81
S.Ct. 6, 9, 5 L.Ed.2d 20 (1960); Mitchell v. Trawler
Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 932, 4
L.Ed.2d 941 (1960). If, as the Plaintiffs contend, the
helicopter, under the facts of this case, was a vessel with-
in the meaning of the Jones Act and the general maritime
9. This procedure is relatively simple to perform and_ takes
approximately three hours to complete.
G-7
law, then it is abundantly clear that it was not reasonably
fit for its intended purpose and, therefore, unseaworthy.
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499,
91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971); Mitchell,
362 U.S. at 550, 80 S.Ct. at 933. The Court finds that
such unseaworthy condition was a proximate cause of
the crash.
[4] The helicopter was in normal use at the time of
the crash, and was in substantially the same condition as
when it was sold to PHI by Bell in 1970. The helicopter
was designed so that a part which is subjected to a great
amount of stress, the upper left longeron fitting, was
located in a position not readily accessible for inspection.
The evidence at trial shows that Bell could have designed
the 205A-1 to eliminate the joint requiring longeron fit-
tings completely, used fittings made of steel or some other
non-critical alloy, placed the fittings on the outside of
the craft for easy inspection, or provided an easily re-
movable inspection panel on the skin of the tail boom.
Moreover, the Court finds that the upper left longeron
fitting, which is subject to more stress while underway
than the other three fittings, was of insufficient strength
and design for the use for which it is intended. The
benefits, if any, from the use of longeron fittings as
described above are heavily outweighed by the risks such
design imposes upon the user of the product. Turner v.
General Motors Corp., 584 S.W.2d 844, 847 & n. 1 (Tex.
1979). As designed, the Bell 205A-1 helicopter was de-
fective and unreasonably dangerous within the meaning
of section 402A of the Restatement (Second) of Torts
(1965). McKisson v. Sales Affiliates, Inc., 416 S.W.2d
787, 789 (Tex. 1967); Bell Helicopter Co. v. Bradshaw,
G-8
594 S$.W.2d 519, 530 (Tex. Civ. App.—Corpus Christi
1979, writ ref’d n.r.e.). Such defective design was a pro-
ducing cause of the crash of April 23, 1976. General
Motors Corp. v. Hopkins, 548 S.W.2d 344, 351 & n. 3
(Tex. 1977).
The evidence unequivocally shows that Barger in no
way contributed to causing the accident. In addition, there
was nothing he could have done after the tail boom sepa-
rated to prevent the crash. The Court finds that, on the
occasion in question, the Plaintiffs’ decedent was not
negligent.
[5] The comparative fault of the Defendants will be
assessed at 80% for PHI and 20% for Bell. Pope &
Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202,
204, 98 L.Ed. 143 (1953); Leger v. Drilling Well Con-
trol, Inc., 592 F.2d 1246, 1249 (Sth Cir. 1979); Harri-
son v. Flota Mercante Grancolombiana, S.A., 577 F.2d
968, 982 (Sth Cir. 1978). Cf. United States v. Reliable
Transfer Co., 421 U.S. 397, 407, 95 S.Ct. 1708, 1713,
44 L.Ed.2d 251 (1975).
In order for the Plaintiffs to recover under the Jones
Act, 46 U.S.C. § 688,’° they must show that Barger was
10. The Jones Act provides, in pertinent part, that
Any seaman who shall suffer personal injury in the course
of his employment may, at his election, maintain an action for
damages at law, with the right of trial by jury, and in such
action all statutes of the United States modifying or extending
the common-law right or remedy in cases of personal injury to
railway employees shall apply; and in case of the death of any
seaman as a result of anv such personal injury the personal
representative of such seaman may maintain an action for dam-
ages at law with the right of trial by jury, and in such action
all statutes of the United States conferring or regulating the
right of action for death in the case of railway employees shall
be applicable.
G-9
a seaman. Swanson v. Marra Brothers, Inc., 328 U.S. 1,
5, 66 S.Ct. 869, 871, 90 L.Ed. 1045 (1946); Wixom
v. Boland Marine & Manufacturing Co., Inc., 614 F.2d
956, 957 (Sth Cir. 1980); Guidry v. South Louisiana
Contractors, Inc., 614 F.2d 447, 452 (Sth Cir. 1980);
Wilkerson v. Movible Offshore, Inc., 496 F.Supp. 1279,
1282 (E.D. Tex. 1980). The Fifth Circuit has fomulated
a three-part test for determining whether a given employee
is a seaman for purposes of the jones Act:**
(1) he must have a more or less permanent connec-
tion 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 oper-
ation or welfare in terms of its maintenance during
its movement or during anchorage for its future trips.
Guidry v. South Louisiana Contractors, Inc., 614 F.2d
at 452; Guidry v. Continental Oil Co., 640 F.2d 523,
528 (Sth Cir. 1981); Offshore Co. v. Robison, 266 F.2d
769, 779 (Sth Cir. 1959).
[6, 7] The question of seaman status is virtually always
an issue of fact for the factfinder. Gianfala v. Texas Co.,
350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955),
rev’ing per curiam 222 F.2d 382 (Sth Cir.); Landry v.
Amoco Production Co., 595 F.2d 1070, 1071 (Sth Cir.
1979). Moreover, “[t]here is nothing in the [Jones Act]
to indicate that Congress intended the law to apply only
to conventional members of a ship’s company.” Robison,
11. A seaman for purposes of the Jones Act is also a seaman
under the general maritime law and is, therefore, entitled to the war-
ranty of seaworthiness. Braen v. Pfeifer Oil Transportation Co., Inc.,
361 U.S. 129, 132, 80 S.Ct. 247, 249, 4 L.Ed.2d 191 (1959); The
Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903).
G-10
266 F.2d at 780. Assuming for the moment that the
helicopter in question was a vessel, there is no disputing
that Barger had a more or less permanent connection with
it. He had worked for PHI as a helicopter pilot from
January of 1970 until his death. His was much more than
a mere transitory relationship with PHI’s fleet of crafts.
Ardoin
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