Petition — Transocean Contractors, Inc. v. Reed

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NO. OCT 25 1983

Pte L. STEVAS

In the ss =

Supreme Court of the United States

OCTOBER TERM, 1983

TRANSOCEAN CONTRACTORS, INC., ET AL

Petitioner

VERSUS

NORRIS REED

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Joel E. Gooch,

St. Paul Bourgeois, IV

ALLEN, GOOCH, BOURGEOIS, BREAUX

AND ROBISON

Post Office Drawer 3768

Lafayette, Louisiana 70502

(318) 233-5056

Attorneys for Petitioner,

Transocean Contractors, Inc.

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTION PRESENTED

Petitioner submits that its application for a Writ of

Certiorari presents the following question for review.

Whether the rule applied by the Fifth Circuit, as

adopted in Bertrand v. International Mooring & Marine,

Inc., 700 F.2d 240 (5th Cir. 1983), for determining seaman

status under the Jones Act fails to consider the essential

element of whether the individual worker’s duties aided in

the navigation of the vessel on which he was working, con-

trary to this Court’s decision in South Chicago Coal &

Dock Company v. Bassett, 309 US 251 (1940), and in con-

flict with the Third Circuit decision in Simko v. C&C

Marine Maintenance Company, 594 F.2d 960 (3rd Cir.

1978), cert. denied 444 US 833 (1979).

ii

LIST OF PARTIES

The following are the parties to this proceeding in the

United States Court of Appeals for the Fifth Circuit.

Norris Reed, plaintiff-appellant

Transocean Contractors, Inc., defendant-appellee

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TABLE OF CONTENTS

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APPENDIX A—Judgment of the United States

District Court for the Western District of

Louisiana, dated July 1,1982................. A-l

APPENDIX B—Opinion of the United States

Court of Appeals for the Fifth Circuit

Ge ts OOO coc cee lL Aa

APPENDIX C—Affidavit of Ivan Jones, dated

June 24, 1981 with attachments...............

iv

TABLE OF AUTHORITIES

Cases: Page

Bertrand v. International Mooring Marine, Inc.,

517 F.Supp. 342 (W.D. La. 1981), 700 F.2d

240 (6th Cir. 1963) .............. 4, 9, 10, 12, 13, 15

Guidry v. Continental Oil Co.,

Sap Pe ween Ger. TDG]) «. ew. ee ete ce 8

Mckhie v. Diamond Marine Co.,

A OD Gog eo see i oF whe pete 9

Offshore Co. v. Robison,

8 kB YS: SD ara 9

Simko v. C & C Marine Maintenance Co.,

594 F.2d 960 (3rd Cir. 1978), cert. denied,

444 U.S. 833 (1979)............ 8, 10, 13, 14, 15, 17

South Chicago Coal & Dock Co. v. Bassett,

60 S.Ct. 544 (1940)...... 8, 10, 11, 12, 13, 15, 16, 17

Statutes and Other Authorities:

SS SES ETERS oF 1

pees At, 68 UBC. GOOG. ¢ oo. vce sce tie as 2, 4, 7

United States Longshoremen’s and Harbor Workers’

Compensation Act, 33 U.S.C. §§901-50......... 2,3

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

RR ome ae cates W's Gale Sat 2

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

TRANSOCEAN CONTRACTORS, INC., ET AL

Petitioner

VERSUS

NORRIS REED

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DECISIONS BELOW

The United States District Court for the Western

District of Louisiana, Opelousas Division, did not prepare

a written opinion, but the judgment of the Court is attach-

ed. The opinion of the United States Court of Appeals for

the Fifth Circuit is unreported, but is attached in the

Appendix.

JURISDICTION

Petitioner seeks a writ to the United States Court of

Appeals for the Fifth Circuit to review its decision and

order filed July 27, 1983. This Court has jurisdiction pur-

suant to 28 U.S.C. $1254(1).

‘ eee ee

Ce SMa

2

STATUTES INVOLVED

This petition raises issues under the Jones Act, 46

U.S.C. §688, the Longshoremen’s & Harbor Workers’ Com-

pensation Act, 33 U.S.C. §§901-50, and the Outer Continen-

tal Shelf Lands Act, 43 U.S.C. §1333.

This petition specifically raises issues under the

following provisions of the Jones Act:

Recovery for Injury to or Death of Seaman

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 exten-

ding 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 any such personal injury the personal represen-

tative of such seaman may maintain an action for

damages 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.

This petition raises issues under the following provi-

sions of the United States Longshoremen’s & Harbor

Workers’ Compensation Act:

Coverage

(a) Compensation shall be payable under this

Chapter in respect of disability or death of an

employee, but only if the disability or death

results from an injury occurring upon the

3

navigable waters of the United States (including

any adjoining pier, wharf, dry-dock, terminal,

buildingway, marine railway, or other adjoining

area customarily used by an employer in loading,

unloading, repairing, or building a vessel. No

compensation shall be payable in respect of the

disability or death of—(1) a master or member of

a crew of any vessel, or any person engaged by

the master to load or unload or repair any small

vessel under 138 tons net...

33 U.S.C. §903

This petition also raises issues under the following

provisions of the Outer Continental Shelf Lands Act:

Longshoremen’s & Harbor Workers’

Compensation Act Applicable; Definitions

(b) With respect to disability or death of an

employee resulting from any injury occurring as

the result of operations conducted on the outer

Continental Shelf for the purpose of exploring for,

developing, removing, or transporting by pipeline

the natural resources, or involving rights to the

natural resources, of the subsoil and seabed of the

Outer Continental Shelf, compensation shall be

payable under the provisions of the Longshore-

men’s & Harbor Workers’ Compensation Act. For

the purpose of the extension of the provisions of

the Longshoremen’s & Harbor Workers’ Compen-

sation Act under this section—(l1) the term

“employee’’ does not include a master or member

of a crew of any vessel, or an officer or employee

of the United States or any agency thereof or of

any state or foreign government, or of any

political subdivision thereof...

4

STATEMENT OF THE CASE

This case arose out of an accident which occurred on

or about April 2, 1980. The Plaintiff, Norris Reed, was an

anchor-handling superintendent employed by Transocean

Contractors, Inc. (hereinafter referred to as ‘“Transocean’’).

He was a member of an anchor-handling crew which was

preparing to place anchors connected to a semi-submersible

rig, the Diamond M New Era.

As a result of the accident, a suit was filed by Norris

Reed against Transocean, in the United States District

Court for the Western District of Louisiana, seeking

damages under the Jones Act, 46 U.S.C. §688. Transocean

moved for summary judgment claiming that Norris Reed

was not a seaman as a matter of law.

On September 15, 1981, the District Court granted

defendants’ Motion for Summary Judgment, holding that

Norris Reed was a longshoreman and not a Jones Act

seaman. Written reasons were not assigned. A Rule 54(b)

judgment was executed July 1, 1982 in conformity with the

Court’s ruling on Transocean’s Motion for Summary Judg-

ment. Norris Reed appealed. The Fifth Circuit Court of Ap-

peal rendered a decision involving similar facts in a case

reported under the title Bertrand v. International Mooring

& Marine, Inc., 700 F.2d 240 (5th Cir. 1983), after the ap- ~

peal of Norris Reed was taken. On July 27, 1983, the Fifth

Circuit reversed and remanded the case for further pro-

ceedings in light of its decision in Bertrand (supra). Transo-

cean is now petitioning for a Writ of Certiorari.

FACTS

Transocean is an oilfield service corporation which

5

engages in several oil related services including the anchor-

ing and mooring of offshore drilling barges and vessels. On

April 2, 1980, the plaintiff, Norris Reed, was employed as

an anchor-handling superintendent by Transocean. The

typical anchor-handling crew consists of a superintendent,

an operator, a welder, a leaderman, and two or three rig-

gers. The crew's work is ordinarily performed from vessels

which are provided by customers of Transocean; the

anchor-handling crew would work aboard whatever vessel

the customer had designated for the job. These vessels

were generally offshore oil service vessels which were hired

by various customers to perform services such as deliver-

ing personnel, equipment, food and substances required to

maintain the offshore facilities in operation. These vessels

carry their own regular crew which consisted of a master,

a cook, deckhands and mechanics. When anchor-handling

services were required by a customer of Transocean, such

a vessel under contract to Transocean’s customer, and not

under contract to Transocean, would be pressed into ser-

vice in order to carry the anchor-handling crew of Transo-

cean out to the location where their special service was to

be performed, and once on location, to act as a temporary

platform from which their services were to be performed.

The anchor-handling crew members remained aboard

this work vessel for the duration of their work assignment,

which ranged anywhere from several hours to several days.

The anchor handlers were assigned to work on the vessels

on a completely random basis, were on each vessel for a

limited time and were aboard each vessel for the limited

purpose of performing a single task, that of lowering or

raising an anchor belonging, not to the vessel upon which

they workea, but to a semi-submersible drilling rig, neither

owned, operated nor chartered by Transocean.

6

At the time of this accident, the plaintiff was the

superintendent of the anchor-handling crew, and was

aboard the Gulf Fleet #37, a work boat vessel owned by

Gulf Fleet Marine Corporation. Prior to boarding the Gulf

Fleet #37, the plaintiff and his crew were unaware of which

vessel they would be boarding, knowing only that they and

their equipment would be transported to the location where

their services were to be performed by a vessel arranged,

not by Transocean, but by Transocean’s customer. Upon

arrival at the work location, while aboard the Gulf Fleet

#37, Mr. Reed was taken aboard the Diamond M New Era,

the semi-submersible drilling vessel whose anchors were to

be place’ by the Transocean crew. After approximately 30

to 60 minutes aboard the Diamond M New Era for the pur-

pose of discussing where the anchors would be placed, Mr.

Reed was transferred back to the Gulf Fleet #37 by means

of a personne] basket. It was during the course of this

transfer from the semi-submersible drilling vessel to the

Gulf Fleet #37 vessel, that the accident occurred.

Prior to this particular job aboard the vessel, Gulf

Fleet #37, Mr. Reed had worked aboard a number of similar

vessels. Affidavits and work summaries pertinent to Mr.

Reed indicate quite clearly that Mr. Reed always worked

from different vessels when performing his work, that

these vessels were not owned, chartered or operated by his

employer, Transocean, that his reassignment to any par-

ticular vessel (if it occurred) was fortuitous in nature and

that his work on any particular vessel was for a short

period of time and not permanent in nature. Specifically,

the work record of Mr. Reed shows a pattern of working

aboard some 20 to 23 different vessels during his period of

employment with Transocean, remaining aboard each

vessel for anywhere from several hours to less than one

week. By Mr. Reed’s own testimony, the actual work of

7

placing the anchors takes approximately eight hours to ac-

complish. It is uncontradicted that Mr. Reed’s return to

this particular vessel for purposes of conducting anchor-

handling services therefrom, would be totally fortuitous in

nature. Once the work of setting out the anchors is com-

pleted, the work vessel, provided by Transocean’s

customers, would continue on with its normal duties of ser-

vicing the offshore facilities.

Mr. Reed points out that the vessels that he and his

crew board for purposes of completing his work, are indeed

supply boats, vessels customarily used to transfer supplies

from land to offshore locations. When he and his crew

boards such a vessel, as was done on this particular occa-

sion, he and his crew are not required to drive the vessel,

moor it, wash it down, clean it, paint it, or do anything else

in connection with the operation or navigation of the

vessel. The vessel is used solely as a temporary platform

from which their specialized and limited service is perform-

ed. Upon completion of this specialized task, the anchor

handling crew leaves the vessel, this job being finished.

However, the vessel and its crew continue the job of servic-

ing the offshore facilities.

ARGUMENT

The Jones Act provides a cause of action for “any

seaman who shall suffer personal injury in the course of his

employment” 46 U.S.C. §688. The Longshoremen’s and

Harbor Workers Compensation Act, on the other hand,

restricts the benefits of the Jones Act to a master or a

member of a crew of any vessel. The issue raised by this

petition is whether the rule applied by the Fifth Circuit for

determining the status of Norris Reed (anchor handler)

under the Jones Act improperly omitted consideration of

8

whether or not the anchor handler’s duties aided in the

navigation of the vessel upon which he worked, contrary to

the holding in South Chicago Coal & Dock Company v.

Bassett, 309 US 251 (1940), and in conflict with the Third

Circuit decision of Simko v. C&C Marine Maintenance

Company, 594 F.2d 960 (3rd Cir. 1979), cert. den., 444 US

833 (1979).

The District Court granted summary judgment on

the issue of Jones Act status in favor of Transocean, con-

cluding that Norris Reed was a longshoreman. Written

reasons for judgment were not given by the District Court

and therefore the actual basis for the decision is unknown.

However, shortly before the summary judgment was heard

in this matter by the District Court, that Court decided a

similar motion in the matter entitled Deborah Bertrand v.

International Mooring & Marine (Civil Action #800569).

Therein, the District Court found that none of the plaintiffs

had a more or less permanent connection with the par-

ticular vessel or with a specific group of vessels. The Court

therefore, concluded that to be a member of the crew of

numerous vessels would require that the group or fleet act

together under one control or gather closely together and

form are ognizable unit or fleet. In support of this conclu-

sion of law, the Court referred to the following language in

Guidry v. Continental Oil Company, 640 F.2d 523 (5th Cir.

1981), in which the Fifth Circuit made it clear that the rela-

tionship between the individual and an identifiable vessel

or group of vessels must be substantial in point and time,

not spasmotic:

The key is that there must be a relationship bet-

ween the claimant and a specific vessel or iden-

tifiable groups of vessels.

9

Guidry’s deposition was quite explicit. His

assignment to any particular structure was ran-

dom. At no time was he assigned to work on a par-

ticular rig on a continuing or regular basis. See,

e.g. Stokes v. B.T. Oilfield Services, Inc., 617

F.2d 1205, 1207 (5th Cir. 1980); Kenner v.

Transworld Drilling Co., 468 F.2d 729, 732 (Sth

Cir. 197 2). Indeed, of the 40 different rigs Guidry

was assigned to during his career, 13 were non-

vessel fixed platforms, 7 were on land, and of the

remaining 20 movable rigs, he was on 13 only

once and never did he return to a specific rig more

than 3 times.

The Bertrand (supra) decision was appealed to the

Fifth Circuit, where it was overruled, using what is referred

to as the McKie test,! as modified by the so-called Robison

test”. The McKie test provides as follows:

The essential and decisive elements of the defini-

tion of a ‘‘member of a crew’”’ are that the ship be

in navigation; that there be a more or less perma-

nent connection with the ship; and that the

worker be aboard primarily to aid in navigation.?

The Robison test as applied by the Fifth Circuit in

the Bertrand (supra) decision permits a factual finding of

seaman status under the Jones Act:

(1) if there is evidence that the injured workman

was assigned permanently to a vessel...or per-

formed a substantial part of his work on the

| MeKie v. Diamond Marine Co., 204 F.2d 132 (Sth Cir.

1963).

2 Offshore Co. v. Robison, 266 F.2d 769 (Sth Cir. 1969).

3 MeKie v. Diamond Marine Co., supra, p. 136.

10

vessel; and (2) if the capacity in which he was

employed or the duties which he performed con-

tributed to the function of the vessel or to the ac-

complishment of its mission, or the operation or

welfare of the vessel in terms of its maintenance

during its movement or during anchorage for its

future trips.4

With respect to this petition, the pertinent part of

the Fifth Circuit's holding in Bertrand (supra), appears in

the following passage:

The two criteria of Robison are conjunctive. E.G.,

Davis v. Hill Engineering, Inc., 549 F.2d 314, 328

(5th Cir. 1977). Plaintiffs satisfy the second part

because the performance of the anchorhandlers’

duties clearly contributed to the accomplishment

of the vessel’s mission, the relocation of the drill-

ing barge.°

It is obvious that the Fifth Circuit applied its

holding in Bertrand (supra) to the facts of the instant case.

In this respect, the test applied by the Fifth Circuit and

consequently, the conclusion reached with respect to deter-

mining status under the Jones Act in the instant case is

contrary to the test applied by the Supreme Court in

Bassett (supra) and the Third Circuit decision in Simko

(supra).

In Bassett, an employee of South Chicago Coal &

Dock Company was drowned while serving his employer on

a vessel in navigable waters of the United States. The issue

was whether or not the deceased's widow was entitled to

* Bertrand v. International Mooring & Marine, Inc., 700 F.2d 240,

244 (Sth Cir. 1983).

5 id, p. 246.

1]

benefits under the Longshoremen's and Harbor Workers’

Compensation Act or whether she was excluded from the

benefit program because her decedent had been a member

of the crew of the vessel upon which he had worked. The

Court of Appeals described the worker's chief task as that

of:

. facilitating the flow of coal from his boat to the

vessel being fueled—removing obstructions to

the flow with a stick. He performed such addi-

tional tasks as throwing the ship's rope and

releasing or making the boat fast. He performed

no navigational duties. He occasionally did some

cleaning of the boat. He did not work while the

boat was enroute from the dock to the vessel to be

fueled.®

The Court of Appeals also thought it significant that:

His only duty relating to navigation was the in-

cidental task of throwing the ship's line; that his

primary duty was to free the coal if it stuck in the

hopper while being discharged into the fuel of the

vessel while both boats were at rest; that he had

no duties while the boat was in motion...

In affirming the judgment of the Court of Appeals, this

Court made the following comments concerning the

Longshoremen’s and Harbor Workers’ Compensation Act:

This Act, as we have seen, was to provide com-

pensation for a class of employees at work on a

vessel in navigable waters who, although they

5 South Chicago Coal and Dock Co. v. Bassett, 309 U.S. 251, 255

(1940).

7 Id.

12

might be classed as seamen (International Steve-

doring Co. v. Haverty, supra), were still regarded

as distinct from members of a ‘crew’. They were

persons serving on vessels, to be sure, but their

service was that of laborers, of the sort performed

by longshoremen and harbor workers and thus

distinguished from those employees on the vessel

who are naturally and primarily onboard to aid in

her navigation... These duties, as the Court of Ap-

peals said, did not pertain to navigation, aside

from the incidental task of throwing the ship's

rope or making the boat fast, a service of the sort

which could readily be performed or aided by a

harbor worker...8

The factual parallels between Bassett, supra, and

this case are striking. In both cases plaintiffs were aboard

their respective vessels to perform a special mission

unrelated to the navigational duties of the vessel from

which each worked. In both cases the vessel's special mis-

sion was that of helping another vessel to which the plain-

tiffs were not assigned. In both cases plaintiffs performed

incidental tasks of throwing the ship's line or cleaning the

boat. In both cases plaintiffs had no duties while the vessel

was underway. In both cases plaintiffs would fall under the

provisions of the LHWCA if not found to be crewmembers.

In neither case were the plaintiffs ‘naturally and primarily

onboard to aid in navigation of the vessel upon which they

worked.”

The results in the instant case is different from the

results in Bassett, because the Fifth Circuit appiied a dif-

ferent test, as adopted in Bertrand (supra), which conflicts

with the Bassett test. In Bassett, the test applied was

whether or not the employee was on the vessel naturally

Bid, p. 260

Biss

13

and primarily to aid in her navigation. In contrast, the test

applied by the Fifth Circuit in Bertrand, and adopted in the

instant case, was whether or not “the capacity in which the

employees were employed, or the duties which they per-

formed contributed to the function of the vessel or to the

accomplishment of its mission, or to the operation or

welfare of the vessel in terms of its maintenance during its

movement or during anchorage for its further trips’.

The Fifth Circuit test applied to the instant litiga-

tion, by adopting Bertrand (supra), is substantially broader

than the test applied by this Court in Bassett and,

therefore, necessarily produces incompatible results in

similar factual situations, thereby jeopardizing the desired

goal of uniformity of federal law.

Not surprisingly, the same disparity of tests and

results exist between the Fifth Circuit and the Third Cir-

cuit, as evidenced by the opinion in Simko v. C&C Marine

Co., 594 F.2d 960 (3rd Cir. 1978), cert. den., 444 U.S. 833,

(1979). In Simko the plaintiff was hired by C&C Marine

Maintenance Company as a laborer. He was assigned the

job of assisting in the cleaning and minor repair of barges

brought to C&C’s facilities along the Ohio River by a varie-

ty of barge companies. During the course of cleaning one of

the barges, Simko fell overboard and drowned. Again, one

of the issues was whether or not Simko’s wicow was entitl-

ed to benefits under the Longshoremen’s and Harbor

Worker’s Compensation Act or whether she was entitled to

bring a claim under the Jones Act. In finding that the

evidence presented at trial was insufficient to permit the

submission of the Jones Act clain, to the jury the Third Cir-

cuit said the following:

This Court has previously held that among the

14

“decisive elements necessary of proof in deter-

mining who is ‘a member of a crew’ within the

meaning of the Jones Act’”’ is a requirement ‘‘that

the worker be aboard the ship primarily to aid in

navigation.”’ Griffith v. Wheeling Pittsburg Steel

Corp., 521 F.2d 31, 36 (3rd Cir. 1975), cert. den.,

423 U.S. 1054, 96 S.Ct. 985, 46 L.Ed.2d 643

(1976). The estate’s Jones Act claim was submit-

ted to the jury on the theory that Simko, at the

time of his death, was a member of the crew of

either ACBL number 2699 or C&C's crane barge,

to which number 2699 was moored. However, the

evidence introduced at trial could not support a

jury finding that Simko was aboard either barge

primarily to aid in its navigation.

Testimony introduced at trial shows that Simko

was hired by C&C as a laborer and that his func-

tion was to assist in the cleaning of barges

moored to C&C's crane barge. He shoveled debris

from their interiors, squirted the decks with

waterhoses, and helped in carrying pumps and

other equipment used in the cleaning opera-

tions...in Griffith this Court held that a worker in-

jured while engaged in loading a barge at a steel

mill along the Ohio River had not been aboard

that barge primarily to aid in its navigation, and

thus we affirmed the District Court’s entry of

summary judgment against the plaintiff on a

Jones Act claim...the focus applied by this Court

in Griffith to the nature of the duties performed

by the putative Jones Act claimant is consistent

with the leading Supreme Court opinion in this

area, Senko v. LaCrosse Dredging Corp., 352 U.S.

370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957).

The Third Circuit held that the proper test of seaman

g Simko, supra, pp. 964-965.

15

status, which Simko had not met, was whether he perform-

ed significant navigational functions with respect to that

vessel on which he worked. 1!

Again, the similarities between the plaintiff in Simko

and the plaintiff in this case are that they were both on

board vessels to perform non-navigable tasks with respect

to the vessels on which they worked. The disparate results

reached by the respective circuits in Simko (supra), and in

this case, underscore the importance of petitioner's applica-

tion for a writ. The Third Circuit applies a test, consistent

with Bassett, which emphasizes the traditional notion that

seamen have something to do with navigating vessels. The

Fifth Circuit has applied a test here which would give such

status to longshoremen or other persons who are obviously

harbor workers. The Fifth Circuit test distills to the simple

proposition that a worker who spends a large percentage of

his time aboard a vessel, even though he has not particular

affiliation with any single vessel or identifiable group of

vessels, whose work contributes to the accomplishment of

the function of those vessels, is a seaman under the Jones

Act. No doubt many longshoremen spent as ;reat a percen-

tage of their time working aboard vessels as did these an-

chor handlers, and there can be no doubt that the operation

of loading and unloading cargo is essential to the function

of the great majority of commercial vessels operating in the

United States waters. There is no way to distinguish bet-

ween such workers and Jones Act seamen if the test ap-

plied is the one used by the Fifth Circuit in the Bertrand

(supra) decision and adopted in the instant litigation.

As this Court noted in Bassett, Congress obviously

intended to draw a line of demarcation between seamen

10 Id, p. 965.

16

and workers subject to the jurisdiction of the

Longshoremen’s and Harbor Workers’ Compensation Act.

The fact that this plaintiff was performing his activities on

the outer continental shelf rather than in port or in a harbor

does not modify that Congressional intent. In adopting the

Outer Continental Shelf Lands Act, Congress specifically

provided that the LHWCA should apply to injury or death

of any employee resulting from operations conducted on

the Outer Continental Shelf. The Fifth Circuit’s decision in

the instant litigation, by virtue of its adoption of Bertrand

(supra) disregards that intent and disregards the admoni-

tion in Bassett that the proper distinction between seamen

and harbor workers (or OCS workers) be observed. By

adopting the compensation regime of the LHWCA in the

Lands Acts, Congress has made generous prov’sions for

this plaintiff, and it is neither necessary nor desirable to ex-

tend and expand the definition of a seaman under the Jones

Act to achieve any worthwhile judicial objective.

CONCLUSION

This Court's decision in Bassett (supra) establishes a

reasonable test for determining which maritime workers

are crew members of a vessel, entitled to bring an action

under the Jones Act, and which workers are covered under

the Longshoremen’s and Harbor Workers’ Compensation |

Act. The decision has drawn a line of demarcation between

the two statutes, making them complement rather than

conflict with each other, in accordance with Congressional

intent. This test is based upon whether the worker is on

board a vessel ‘‘naturally and primarily in aid of navigation

of that vessel.’’ The Fifth Circuit, on the other hand, has

adopted a much broader test for the Jones Act which looks

at whether the capacity in which the worker was employed

or the duties which he performed contributed to the

17

function of the vessel or to the accomplishment of its mis-

sion, or to the operation or welfare of the vessel in terms of

its maintenance during its movement or during anchorage

for its future trips. Consequently, this case as recently

decided by the Fifth Circuit, by virtue of its adoption of the

Bertrand (supra) principles, is incompatible and irrecon-

cilable with this Court's decision in Bassett (supra) as well

as the Third Circuit’s decision in Simko (supra). The logical

result of the Fifth Circuit’s decision is to make a Jones Act

seaman of virtually any maritime worker who is aboard a

vessel for a significant amount of his total work time, so

long as his work is not unrelated to the vessel’s function.

This defies the intent of Congress with respect to these two

statutes and will only lead to disharmony. For these

reasons, petitioner urges this Court to grant a Writ of Cer-

tiorari for the purpose of conforming the disparate tests

which have evolved in ths area of law.

Respectfully submitted,

Joel E. Gooch

St. Paul Bourgeois, IV

ALLEN, GOOCH, BOURGEOIS,

BREAUX AND ROBISON

1015 St. John Street

Post Office Drawer 3768

Lafayette, Louisiana 70502

(318) 233-5056

Attorneys for Transocean

Contractors, Inc.

18

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I am a member of the

bar of this Court and that three copies of the foregoing

Petition for Writ of Certiorari have been served by

depositing those copies in the United States mail, postage

prepaid, addressed to the following parties at the addresses

indicated:

Norris Reed, through his counsel! of record,

Thomas K. Regan,

Post Office Drawer 688,

Crowley, Louisiana 70526

The foregoing service was made on behalf of Transo-

cean Contractors, Inc., on October 25, 1983.

JOEL E,. GOOCH

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APPENDIX “A”

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

NORRIS REED

VERSUS 7 CIVIL ACTION NO. 801456 S

DIAMOND M DRILLING COMPANY, ET AL

JUDGMENT

THIS matter came on for hearing on September 15,

1981, on a Motion for Summary Judgment filed on behalf

of Transocean Contractors, Inc., seeking a declaration that

Norris Reed was, as a matter of law and fact, a

Longshoreman and not a seaman, and the Court, after hear-

ing oral arguments, in reviewing the pleadings, briefs, and

affidavits filed by the parties herein, concur and grant the

Motion of Transocean Contractors, Inc., and thereby

dismiss Transocean Contractors, Inc. from this lawsuit; ad-

ditionally, this Court finds that there is no just reason for

delay in the entry of final judgment and therefore,

IT IS ORDERED ADJUDGED AND DECREED

that the cause of action of Norris Reed as against Transo-

cean Contractors, Inc. be dismissed and that final judg-

ment be entered as to the dismissal of Transocean Contrac-

tors, Inc., within the meaning of Rule 54(b).

SIGNED this Ist day of July, 1982, at Opelousas,

Louisi

/s/ John Shaw

JUDGE

A-2

APPENDIX “B”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-3502

Summary Calendar

NORRIS REED,

Plaintiff-Appellant,

versus

DIAMOND M DRILLING COMPANY,

Defendant,

and

TRANSOCEAN CONTRACTORS, INC.

Defendant-Appellee.

Appeal from the United States District Court for the

Western District of Louisiana

(July 27, 1983)

Before GEE, RANDALL, and TATE, Circuit Judges.

PER CURIAM:

The judgment of the districat court is vacated and

the cause is remanded to that court for further considera-

tion in the light of Bertrand v. International Mooring &

Marine, Inc., 700 F.2d 240 (5th Cir. 1983).

VACATED AND REMANDED.

A-3

APPENDIX “C”

STATE OF LOUISIANA AFFIDAVIT

PARISH OF ST. MARY

BEFORE ME, a Notary Public in and for the

aforesaid Parish and State, did appeal IVAN JONES, who,

after being duly sworn, did depose and state:

“That he is employed by Transocean Cortractors,

Inc., as Manager of the Anchor Handling Division, and as

Manager of said Division is in charge of finalizing the

various jobs that Transocean Contractors, Inc. performs

insofar as anchor handling is concerned, and further, that

he decides which crew is to be sent out on particular jobs,

directs the crew to a location where the job is to be com-

menced and finally, is in charge of the records kept by

Transocean Contractors, Inc. with respect to anchor handl-

ing, job dispatching, etc. In his capacity as Manager of the

Anchor Handling Division of Transocean Contractors, Inc.

and as custodian of the records pertinent to that Division’s

operation, the following facts are stated, based upon his

personal knowledge.

That Norris Reed, in April of 1980, was an employee

of Transocean Contractors, Inc., assigned to the anchor

handling section of the Company. that it is the customary

practice of the anchor handling section, upon procurement

of a job from an Operator such as Tenneco, Mobil, Chevron,

Tidex, CNG, etc., to contact various employees of the com-

pany who worked in the anchor handling section and put

together a crew. The anchor handling crew for a particular

job, assembled as aforesaid described, consists of various

employees which will vary from job to job. There is no

A-4

specific crew in the Anchor Handling Division who

customarily worked together on each and every job. But

once the crew is assembled, they are directed to a location

where they will board a vessel, provided by the Operator,

who has requested the anchor handling services. The vessel

that is boarded is not operated or leased by Transocean

Contractors, Inc. Transocean Contractors, Inc. does not

own or operate any workboats or anchor handling boats

from which their employees provide anchor handling ser-

vices. If any of the Transocean anchor handling crews

board a vessel on more than one occasion, performing

subsequent jobs, the boarding of that vessel again, is coin-

cidental. Transocean Contractors, Inc., has no control over

the selection of the vessel provided by the company for

whom the anchor handling services are being performed.

A review of the records of Transocean Contractors,

Inc., from January 26, 1980 through the date of Mr. Reed’s

accident reveals that Mr. Reed performed anchor handling

services on thirty-five (35) occasions, as per the Attach-

ment for a very short period of time and with the exception

of a few of the vessels, all the vessels were different. In ad-

dition, Mr. Reed also performed work on stationary

platforms.

While Mr. Reed was aboard any of the vessels pro-

vided by the Operator who hired Transocean to perform an-

chor handling services, Mr. Reed would not be required to

participate in the operation or maintenance of that vessel

or the vessel’s navigation.

ls

IVAN JONES

A-5

SWORN TO AND SUBSCRIBED before me this

24th day of June, 1981 at Morgan City, Louisiana.

[a(Durio J. Duplechein. J

NOTARY PUBLIC

A-6

ATTACHMENT

JOB # COMPANY VESSEL PERIOD

813 Tenneco m/v San Hose Island 2/27-3/5

821 Arco

Sabine Pass m/v Calico Jack 3/7-3/9

825 McMoran

Belco Pet. m/v Hatteras Seahorse 3/12-3/21

848 Tenneco Aquamarine 503 4/7-4/8

851 Mobil m/v Ionian Seahorse &

Gulf Miss 4/19-5/15

867 C.A.G.C. m/v Gulf Fleet 26 5/21-5/23

869 Arco m/v Gulf Fleet 23 5/23-5/28

851 Mobil m/v Ionian Seahorse &

Gulf Miss 260 6/5

851 Mobil m/v Ionian Seahorse &

Gulf Mill 260 6/7

864 CNG Platform Job 6/8-6/12

893 CNG m/v Mark G 6/30-7/4

875 Gulf Oil m/v Ajean Seahorse 7/7-7/11

900 Arco

Sabine Pass m/v Francois LeCleur 7/11-7/14

851 Mobil m/v Ionian Seahorse &

Gulf Miss 260 8/2-8/5

926 CNG m/v Botruc 11 8/28-8/30

926 CNG m/v Botruc 11 9/7-9/9

945 Atlantic

Richfield m/v Dick Ewell 9/9-9/10

952 Conoco m/v Cayman Island 9/12-9/21

962 Shell Oil m/v Pete Tide II 9/22-9/25

964 Tenneco m/v Aquamarine 503 9/30-10/4

947 Mobil m/v Banda-Sea 10/6-10/9

987 CNG m/v Botruc 11 10/23-10/26

990 Tidex m/v Power Tide 10/29

991 Seahorse m/v Hatteras Seahorse 10/30-11/6