Petition for Writ of Certiorari — Avondale Shipyards, Inc. v. Orgeron

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NO. . | JOBEPH F. SPANIOL, JR.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

AVONDALE SHIPYARDS, INC.

Petitioner

VERSUS

CHESTER J. ORGERON, JR. and

his wife, CONNIE E. LYNN CAMUS ORGERON

Respondent

On Petition For Writ of Certioran

to the Supreme Court of the

State of Louisiana

PETITION FOR WRIT OF CERTIORARI

Edward J. Koehl, Jr.

Patrick H. Patrick

Jones, Walker, Waechter,

Poitevent, Carrere & Denegre

201 St. Charles Ave., 47th FI.

New Orleans, Louisiana 70170

Telephone: (504) 582-8000

Counsel for Petitioner

Pel Hughes Printing, Inc., 134 Carondelet St., New Orleans, LA (504) 523-2618

Il.

QUESTIONS PRESENTED FOR REVIEW

WHETHER, IN A GENERAL MARITIME LAW

VESSEL NEGLIGENCE ACTION BROUGHT IN

STATE COURT, THE LOUISIANA SUPREME

COURT MAY ADOPT AND APPLY A TEST FOR

VESSEL STATUS CONTRARY TO THE TEST

FOR VESSEL STATUS ESTABLISHED BY FED-

ERAL GENERAL MARITIME LAW.

WHETHER THE GENERAL MARITIME LAW

TEST FOR VESSEL STATUS AS SET FORTH IN

THE ROBERT W. PARSONS, 191 U.S. 17,248. Ct. 8

(1903) AND ITS PROGENY, OR THE STATU-

TORY DEFINITION OF VESSEL AS SET FORTH

IN 1U.S.C. §3, GOVERNS THE ISSUE OF VESSEL

STATUS IN THE GENERAL MARITIME LAW

CAUSE OF ACTION FOR VESSEL NEGLIGENCE

PRESERVED BY SECTION 5(B) OF THE LONG-

SHORE AND HARBOR WORKERS’ COMPEN-

SATION ACT, 33 U.S.C. §905(B).

TABLE OF CONTENTS

Questions Presented for Review ..............ccccsssscessseeeseeees i

Table of Contents .............. Feo AE nt ren Ee Re il

Table of Authorities ....c...ssssssssssssssssesssssssseessssseeeeen iv

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Appendix A-Decision of the Louisiana Supreme

Court in this matter, 2/5/90

Appendix B-Denial of Rehearing by the Louisiana

Supreme Court, 3/8/90

Appendix C-District Court's Reasons for

Judgment in this case, 8/31/88

Appendix D-Opinion of the Louisiana Court

of Appeal, 5th Circuit, in this case, 4/12/89

lil

Appendix E-Ducrepont v. Baton Rouge Marine

Enterprises, Inc., 877 F.2d 393, (Sth Cir. 1989)

Appendix F-Fleming v. Port Allen Marine

Service, Inc., 552 F.Supp. 27 (M.D.La.1982)

Appendix G-Mayfield v. Wall Shipyard, Inc.,

510 F. Supp. 605 (E.D. La.1981)

TABLE OF AUTHORITIES

CASES:

Atkins v. Greenville Shipbuilding Corp.,

411 F.2d 279 (Sth Cir.), cert. denied,

396 U.S. 846, 90S. Ct. 105 (1969) ..............ccccssscssees 16

Bernard v. Binnings Construction Co., Inc.,

741 F. 2d 824 (Sth Cir. 1984).......... cece 11, 13, 16, 18

Cook v. Belden Concrete Products, Inc.,

472 F. 2d 999 (Sth Cir.), cert. denied,

414 US. SEB, SOG. Ce, TIS CEPTS) o.receercsccoevarcereeee 13,16

Davis v. Cargill, Inc.,

808 F.2d 361 (Sth Cir. 1986)...............sescsseees 11, 15, 16

Director, OWCP v. Perini North River

Associates, 459 U.S. 297, 103 S. Ct. 634 (1983) ..15, 19

Ducrepont v. Baton Rouge Marine Enterprises,

Inc., 877 F.2d 393 (Sth Cir. 1989)

scsieteSctaaciaicesliabaitiaaegiidiaillaial 9, 10, 11, 14, 16, 17, 18, 19

Erie R.R. v. Tompkins,

SG UB Bs Ge BEF CEI cncicnccserccccccrccecsssescess 11

Evansville & Bowling Green Packet Co.

v. Chero Cola Bottling Co., 271 U.S. 19,

es id icieteiinisscsiatnaneantenintninnatvaniniina 15

Fleming v. Port Allen Marine Service, Inc.,

552 F. Supp. 27 (M.D. La. 1982)......4, 7, 10, 11, 17, 19

TABLE OF AUTHORITIES (continued)

Hurst v. Pilings & Structures, Inc.,

896 F.2d 504 (11th Cir. 1990) ..............cccccrcssssesscsscees 13

Jones & Laughlin Steel Corp. v. Pfeifer,

462 U.S. $23; 103 S. Cr. 2541 (19G3S) .........ccccccsccosesses 15

Kermarec v. Compagnie Generale Transatlantique,

358 U.S. 625, 628, 79 S. Ct. 406, 408-09 (1959) ........ 12

Keys Jet Ski, Inc. v. Kays,

Ba Bs Be Be CBO Ge, BOG ceenstivintnririicnccinctin 14,15

Knickerbocker Ice Co. v. Stewart,

253 U.S. 149,40 S$. Ce: 438 (1S20) .........ncerccncsersercceess 12

Lash v. Ballard Construction Co.,

707 F. Supp. 461 (W.D.Wash. 1989) 0.0... ceeeeee 17

May v. Transworld Drilling Co.,

786 F.2d 1261 (Sth Cir.), cert. denied,

479 US. 854, 107 S. Ct. 190 (1986) ones 13

Mayfield v. Wall Shipyard, Inc.,

510 F. Supp. 605 (E.D.La. 1981) ...... 4,7, 10, 11, 17, 19

Orgeron v. Avondale Shipyards, Inc.,

542 So. 2d 640 (La. App. 5th Cir. 1989) 00... 8, li

Parker v. South Louisiana Contractors, Inc.,

537 F.2d 113 (Sth Cir. 1976), cert. denied,

GF UB. Felts FF ew GR EATS CEB TAD cceccvsncicnctsissscccecess 13

TABLE OF AUTHORITIES (continued)

Richendollar v. Diamond M Drilling Co.,

819 F.2d 124 (Sth Cir.) (en banc), cert. denied,

484 U. S. 944, 108 S. Ct. 331 (1987) .............. 13, 14, 16

Romero v. International Term. Operating Co.,

DOO elke Soy OF as Gets Ge CEB IID carrceesserssncsseescessseees 12

Russell v. Atlantic & Gulf Stevedores,

rs Se Oe Se NG III baicecitecncnnneas vecrssnnnsnsanensenss 13

The Robert W. Parsons,

191 U.S. 17, 24S. Ct. 8 (1903) ..... 7, 12, 13, 14

STATUTES AND OTHER AUTHORITIES:

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vii

STATUTES AND OTHER AUTHORITIES (continued)

H. R. Rep. No. 1441, 92d Cong., 2d Sess.,

reprinted in 1972 U. S. Code Cong. &

es ee cnliaiinstattintctistinreiianenintntenatnannsannns 13

Supreme Court Rules 17.1 (b) & (C) .............ceees 10, 12

United States Constitution Art. ITI, §2, cl. 2 wc... 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

AVONDALE SHIPYARDS, INC.

Petitioner

VERSUS

CHESTER J. ORGERON, JR. and

his wife, CONNIE E. LYNN CAMUS ORGERON

Respondent

PETITION FOR WRIT OF CERTIORARI

DECISIONS BELOW

l. August 31, 1988, decision by trial courtin favor of ASI

(Appendix C).

2. April 12, 1989, decision by Louisiana Court of Ap-

peal, 5th Circuit, affirming trial court (Appendix D,

see also 542 So. 2d 640).

4 February 5, 1990, decision by Louisiana Supreme

Court, reversing and remanding (Appendix A, see also

556 So. 2d 582).

4. March 8, 1990, denial of petition for rehearing by

Louisiana Supreme Court (Appendi: B).

JURISDICTION

The judgment sought to be reviewed is the February 5,

1990, judgment of the Louisiana Supreme Court in Chester J.

Orgeron, Jr. and his wife, Connie E. Lynn Camus Orgeron v.

Avondale Shipyards, Inc., 89-C-1455 (Appendix A). Rehear-

ing in the Louisiana Supreme Court was timely sought by

petitioner and was denied without comment by the Louisiana

Supreme Court on March 8, 1990 (Appendix B).

Suit was originally brought by respondent in Louisi-

ana State District Court under the savings to suitors clause, 28

U.S.C. §1333(1). In this general maritime law case, respon-

dent Orgeron brought suit for damages allegedly caused by

the negligence of an alleged vessel; respondent invoked the

general maritime law cause of action preserved by section 5(b)

of the Longshore and Harbor Workers’ Compensation Act, 33

U.S.C. §905(b). Jurisdiction in this Court is founded upon this

Court’s final review of admiralty and maritime causes, United

States Constitution Art. III, §2, cl. 2, and 28 U.S.C. §§1257

and 2104.

STATUTES INVOLVED

This petition raises issues concerning the following

constitutional articles and statutes of the United States:

1. U.S. Const. Art. III §2, in pertinent part:

The judicial Power shall extend to all

Cases, in Law and Equity, arising under

this Constitution, the Laws of the

United States, and Treaties made, or

which shall be made, under their

Authority; .. . to all Cases of admiralty

and maritime Jurisdiction. . . .

2. Longshore and Harbor Workers’ Com-

pensation Act, Section 5(b), 33 U.S.C.

§905(b), reproduced in footnote 1.

3. 1U.S.C. §3:

The word “vessel” includes every

description of watercraft or other arti-

ficial contrivance used, or capable of

being used, as a means of transporta-

tion on water.

STATEMENT OF THE CASE

Avondale Shipyards, Inc., (ASI) operates shipbuild-

ing and vessel repair facilities in the State of Louisiana. ASI’s

Harvey Quick Repair Yard lies along the bank of the Harvey

Canal, a man-made, navigable canal adjoining the west bank

of the Mississippi River across from New Orleans.

The sole purpose of ASI’s Harvey facility is the repair

of vessels that belong to others. R. at 259-60, 328. To accom-

plish these repairs, the yard has five drydocks which lie in the

Harvey Canal adjacent to the yard's bulkhead. These drydocks

are typical of the genre: they are large, floating structures, with

flat, wide, hollow bottoms and hollow, vertical side walls

known as “wing walls.” The drydocks are free-floating and

can be moved about, but normally are lined up just offshore of

the yard’s bulkhead, with the wing walls perpendicular to

shore. R. at 327, 329-37; Exhibits P-11, D-34.

To facilitate its vessel repair work, the ASI Harvey

yard, like most other vessel repair yards, has built several

small, matchbox-shaped, floating structures known as “work

flats” or “pontoons.” These structures are identical in form

and function to the structures described in Mayfield v. Wall

Shipyard, Inc., 510 F. Supp. 605 (E.D.La. 1981) (Appendix

G) and Fleming v. Port Allen Marine Service, Inc., 552 F.

Supp. 27 (M.D. La. 1982) (Appendix F). These steel pon-

toons, of which eight were in use, vary in size from a length of

eighteen feet to sixty feet. All of the pontoons but one have a

depth (deck to bottom measurement) of two feet. The one

exception, a thirty-six foot by twelve foot pontoon, has a depth

of only one foot, three inches. Exhibit D-34.

The pontoons are rectangular in shape and square at

each end. Every angle in construction is a ninety-degree angle.

Obviously, the pontoons have no distinguishable bow orstern,

nor identifiable port or starboard sides. Exhibits D-1 to D-12.

The pontoons have no bilge pumps, no motive power, no

hatches, no below deck storage, no navigation lights, no crew

quarters or on-deck cabin structures of any nature, no raked

bow, and no Coast Guard or State vessel identification num-

bers. The pontoons are not registered with either the Coast

Guard or the State as vessels, nor are they subject to Coast

Guard vessel inspection. They are simply square, flat, steel

platforms that float. R. at 293-94, 296, 333, 339-40; Exhibits

D-1 to D-12, D-34.

Just as in Mayfield and Fleming, the pontoons are used

as floating work platforms in the repair of vessels at the yard.

R. at 261, 277-79, 311-13, 328, 394, 395. The pontoons are

normally positioned between the drydocks and the bulkhead.

In this position, the pontoons are used to work on the under-

side of the sterns of drydocked vessels. The drydocked vessels

are “overhung” or projected past the end of the drydock to

facilitate the removal of propeller shafts and rudders which

would otherwise be blocked from removal by the presence of

the drydock’s deck. R. at 241-45. Because the pontoons float,

the pontoons can be moved aside to allow the removal by

shore crane of a rudder or propeller assembly from adrydocked

vessel. R. at 321. The pontoons provide the shipyard workers

with access to the “overhung” rudders and shafts and serve as

a work platform or an extension of the drydock.

Respondent Orgeron worked as a welder and machin-

ist at ASI’s Harvey facility, performing tasks in the landside

shops and also directly on the hulls of drydocked vessels. R.

at 258, 291, 345. Orgeron was a ship repairman within the

meaning of 33 U.S.C. §902(3) and therefore was covered by

the Longshore and Harbor Workers’ Compensation Act

(LHWCA). Orgeron claims that on September 9, 1983, he fell

between two pontoons while effecting repairs on the stern of

an “overhung” drydocked vessel.

In addition to collecting LHWCA compensation

benefits, Orgeron sued ASI under the Jones Act and also under

the general maritime law “vessel negligence” action pre-

served by section 5(b) of the LHWCA, 33 U.S.C. §905(b).' As

a premise to both claims, Orgeron had to show that the pon-

‘At the time of Orgeron’s alleged injury, Section 5(b)

provided:

In the event of injury to a person covered under

this chapter caused by the negligence of a

vessel, then such person, or anyone otherwise

entitled to recover damages by reason thereof,

may bring an action against such vessel as a

third party in accordance with the provisions

of section 933 of this title, and the employer

shall not be liable to the vessel for such dam-

ages directly or indirectly and any agreements

or warranties to the contrary shall be void. If

such person was employed by the vessel to

provide stevedoring services, no such action

shall be permitted if the injury was caused by

the negligence of persons engaged in provid-

ing stevedoring services to the vessel. If such

person was employed by the vessel to provide

shipbuilding or repair services, no such action

shall be permitted if the injury was caused by

the negligence of persons engaged in provid-

ing shipbuilding or repair services to the ves-

sel. The liability of the vessel under this sub-

section shall not be based upon the warranty of

seaworthiness or breach thereof at the time the

injury occurred. The remedy provided in this

subsection shall be exclusive of all other

remedies against the vessel except remedies

available under this chapter.

Section 5(b) was amended in 1984 toeliminate a ship repairer’s

action against his employer as vessel owner. Section 5(b) now

reads:

Inthe event of injury to a person covered under

this chapter caused by the negligence of a

toons were “vessels” under general maritime law. Orgeron

abandoned his Jones Act claim prior to trial and pursued only

his “vessel negligence” claim against ASI as the owner of the

pontoons.

_ The Trial Judge applied the general maritime law test

for vessel status set forth in The Robert W. Parsons, 191 U.S.

17,248. Ct. 8 (1903), and therefore considered the design and

use of the pontoons in deciding whether or not they were

vessels under general maritime law. (Appendix C at 2). The

Trial Judge found that the work pontoons were not vessels

under general maritime law. This finding was based on the

design of the work pontoons, why they were made to float, and

the purpose for which they were used. R. at 205 (Appendix C

at 2). Thus, the Trial Judge entered judgment in favor of ASI.

This ruling was in harmony with two previously decided

federal cases directly on point, Mayfield and Fleming, both of

which also applied the general maritime law design and use

test in holding that work pontoons used as ancillaries to

drydocks in vessel repair operations were not “vessels” for

purposes of the "vessel negligence" action preserved by

vessel, then such person, or anyone otherwise

entitled to recover damages by reason thereof,

may bring an action against such vessel as a

third party in accordance with the provisions

of section 933 of this title, and the employer

shall not be liable to the vessel for such dam-

ages directly or indirectly and any agreements

or warranties to the contrary shall be void. If

such person was employed by the vessel to

provide stevedoring services, no such action

shall be permitted if the injury was caused by

the negligence of persons engaged in provid-

section 5(b) of the LHWCA.

The Louisiana Court of Appeal for the Fifth Circuit

affirmed. Orgeron v. Avondale Shipyards, Inc., 542 So. 2d

640 (La. App. 5th Cir. 1989) (Appendix D). The Court of

Appeal noted that the general maritime law jurisdictional test

for “vessel status” must be met in order for a plaintiff to sue

under the general maritime law cause of action

ing stevedoring services to the vessel. If such

person was employed to provide shipbuilding,

repairing, or breaking services and such

person’s employer was the owner, owner pro

hac vice, agent, operator, or charterer of the

vessel, no such action shall be permitted, in

whole orin partor directly or indirectly, against

the injured person’s employer (in any capac-

ity, including as the vessel’s owner, owner pro

hac vice, agent, operator, orcharterer) or against

the employees of the employer. The liability of

the vessel under this subsection shall not be

based upon the warranty of seaworthiness or a

breach thereof at the time the injury occurred.

The remedy provided in this subsection shall

be exclusive of all other remedies against the

vessel except remedies available under this

chapter.

As the language of the statute shows, by the 1984

amendment, only the “vessel negligence” action by a ship

repairer or builder against his or heremployer as vessel owner

is eliminated. All formerly applicable “vessel negligence”

actions remain in force. See infra at 15-16. Thus, the questions

raised by this petition are immensely important for maritime

industry and interests.

preserved by section 5(b). Applying this test, the Court of

Appeal held that the work pontoons did not qualify as vessels.

Subsequent to the Louisiana State Fifth Circuit’s

decision, but before the Louisiana Supreme Court’s decision,

the United States Fifth Circuit reaffirmed that the general

maritime law “design and use” test for vessel status applies in

a section 5(b) case. In Ducrepont v. Baton Rouge Marine

Enterprises, Inc.,877 F. 24.393 (Sth Cir. 1989) (Appendix E),

the Fifth Circuit held that a floating barge used as a work

platform and adjunct to a drydock is not a vessel.

The Louisiana Supreme Court granted writs in this

case and reversed, holding that ASI’s pontoons are “vessels,”

and therefore that Orgeron can sue his employer as “vessel

owner.” The Louisiana Supreme Court viewed its task not as

deciding whether the pontoons are “vessels” under the general

maritime law, but as whether the pontoons are “vessels” under

section 5(b) of the LHWCA (Appendix A at 1). The Louisiana

Supreme Court, treating Orgeron's suit as a statutory cause of

action, reasoned that the term “vessel” should be liberally

interpreted under the LHWCA (Appendix A at 5). Thus, the

Louisiana Supreme Court disregarded the general maritime

law test for vessel status applied in the federal courts and

which had also been followed by the state court of appeal and

the trial court in this matter. The Louisiana Supreme Court

instead adopted a solely statutory construction test for vessel

status, and held that ASI’s pontoons are “vessels” for purposes

of a suit brought under LHWCA section 5(b) because they are

“capable of being used as a means of transportation on

water,”’ (Appendix A at 6-7) (quoting 1 U.S.C. §3), even

though the pontoons were actually designed and used as work

platforms — floating extensions of ASI’s drydocks. The Lou-

isiana Supreme Court remanded for a determination of ASI's

liability as “vessel” owner.

~ ARGUMENT

This court should grant certiorari and resolve the

conflict that the Louisiana Supreme Court has created in the

important maritime law issue of what constitutes a “vessel.”

Two of the considerations in favor of granting certiorari are

presented by this petition. See Supreme Court Rules

17.1(b)&(c).

First, the decision by the Louisiana Supreme Court to

adopt a “liberal” statutory construction definition of “vessel”

conflicts with federal courts of appeals decisions on this issue,

which have instead applied the general maritime law test that,

in order to qualify as a vessel, a floating structure must be

designed and used primarily for navigation. Supreme Court

Rule 17.1(b). There is no doubt that even in the federal circuit

encompassing Louisiana, i.e., the Fifth Circuit, ASI’s pon-

toons would not be considered vessels as a matter of law if this

suit would have been brought in federal court. E.g., Ducre-

pont v. Baton Rouge Marine Enterprises, Inc., 877 F. 2d 393

(5th Cir. 1989)(Appendix E). In addition to the Fifth Circuit’s

Ducrepont decision, two section 5(b) cases directly and

squarely on point, involving identical claims as to the “vessel”

status of work pontoons used in shipyard operations, have

been decided in Louisiana federal district courts. Both cases,

following settled federal precedent, held that such work

pontoons are not vessels as a matter of general maritime law.

Fleming v. Port Allen Marine Service, Inc., 552 F. Supp. 27

(M.D. La. 1982) (Appendix F); Mayfield v. Wall Shipyard,

Inc., 510 F. Supp. 605 (E.D. La. 1981)(Appendix G); Fleming

and Mayfield were cited with approval by the United States

Fifth Circuit in Bernard v. Binnings Construction Co., Inc.,

741 F. 2d 824, 830 n. 22 (Sth Cir. 1984).

Thus, by conflicting with federal decisions on the

issue, the Louisiana Supreme Court’s decision in this case

raises two recurrent concerns of this Court. These are the

prevention of forum shopping and the preservation of uniform

maritime law.

The opportunity for forum shopping is undeniably

created by the Louisiana Supreme Court’s decision. If a

plaintiff brings a general maritime law tort suit in federal

court, including federal court in Louisiana, the general mari-

time law “vessel status” test will apply, and floating structures

whose transportation function, if any, is only incidental to

their primary use as work platforms will not be vessels as a

matter of law and therefore the suit will be dismissed. E. g.,

Ducrepont, 877 F.2d at 396; Davis v. Cargill, Inc., 808 F.2d

361, 362 (Sth Cir. 1986); Bernard v. Binnings Construction

Co.,Inc.,741 F.2d 824, 829, 831 (Sth Cir. 1984); Fleming, 552

F. Supp. at 30; Mayfield, 510 F. Supp. at 607. Conversely, if

the same plaintiff files suit in state court, then under the

Louisiana Supreme Court’s reasoning in Orgeron, any float-

ing structure that is even theoretically capable of the move-

ment of men or cargo in navigation will be a “vessel,” even

though the structure was designed and used as a work plat-

form.

A related concern is the uniformity of maritime law.

Decisions that promote forum shopping have been condemned

per se by this Court. See Erie R.R. v. Tompkins, 304 U.S. 64,

58 S. Ct. 817 (1938). However, when the offending decision

contravenes the uniformity of maritime law, the need for this

Court to resolve the conflict presents a uniquely federal

concern. The primary reason for the investment by the framers

of the constitution of jurisdiction over admiralty and maritime

cases in the federal courts was to preserve and to develop

uniform law to govern shipping and other maritime concerns.

E.g., Romero v. International Term. Operating Co., 358 U.S.

354, 373 & n.33, 79S. Ct. 468, 480 & n.33, (1959); Kermarec

v. Compagnie Generale Transatlantique, 358 U.S. 625, 628,

79 S. Ct. 406, 408-09 (1959); Knickerbocker Ice Co. v.

Stewart, 253 U.S. 149, 160-61, 40S. Ct. 438, 440 (1920). This

Court sits as the final arbiter, the final resolver of conflicts, the

harmonizer in maritime cases. Louisiana is a very important

state for maritime industry, with maritime terminals and

shipping spread throughout the coastal zone and up the Mis-

sissippi River, with a well-developed offshore oil industry,

and as home of the Port of New Orleans, the nation’s second

largest port. This Court must not allow the Louisiana State and

Federal Court systems, with concurrent jurisdiction over

cases such as the present, to apply differing, indeed, diamet-

rically opposed and outcome-determinative tests to the most

important issue in maritime law: whether a floating structure

is a “vessel.”

The second consideration in favor of this Court grant-

ing certiorari is that the Louisiana Supreme Court has decided

an important issue of federal law, i.e., what constitutes a

vessel, in a manner that conflicts with a decision of this Court.

Supreme Court Rule 17.1(c). In The Robert W. Parsons, 191

U.S. 17, 24 S. Ct. 8, (1903), this Court held that the test for

vessel status under the general maritime law is whether the

design and use of a water-borne structure is for navigation and

commerce. /d. at 30, 24S. Ct. at 12. This Court’s Parsons test

is not simply some ancient pronouncement that has now fallen

by the wayside; rather the Parsons test is followed and con-

sistently cited and quoted in vessel status cases. See, e.g.,

Hurst v. Pilings & Structures, Inc., 896 F. 2d 504, 506 (11th

Cir. 1990); Richendollar v. Diamond M Drilling Co., 819 F.

2d 124, 127 (Sth Cir.) (en banc), cert. denied, 484 U.S. 944,

108 S. Ct. 331 (1987); Bernard, 741 F.2d at 829; Cook v.

Belden Concrete Products, Inc.,472 F.2d999, 1001 (Sth Cir.),

cert. denied, 414 U. S. 868, 94 S. Ct. 175 (1973). The failure

of the Louisiana Supreme Court to follow the Parsons deci-

sion of this Court cannot be ignored. The Louisiana Supreme

Court’s decision is binding on the inferior courts of the state

and will lead to future decisions that will be contrary to this

Court’s Parsons decision and federal general maritime law.

Itis submitted that the Louisiana Supreme Court erred

in adopting a statutory test for vessel status in this matter and

by disregarding the federal case-law to the contrary. To begin

with, it is clear that the Louisiana Supreme Court incorrectly

construed Orgeron’s cause of action to be statutorily created

by section 5(b) of the LHWCA. Yet, it is well-settled and

uniformly recognized in the federal cases that a section 5(b)

suit is not a creature of statute. Rather, section 5(b) simply

preserves, with certain limitations, a tort action in general

maritime law that existed before the LHWCA. May v. Tran-

sworld Drilling Co., 786 F. 2d 1261, 1264 (Sth Cir.), cert.

denied, 479 U.S. 854, 107 S. Ct. 190 (1986); Russell v.

Atlantic & Gulf Stevedores, 625 F. 2d 71, 72 (Sth Cir. 1980);

Parker v. South Louisiana Contractors, Inc., 537 F. 2d 113,

117 (Sth Cir. 1976), cert. denied, 430 U.S. 906, 97 S. Ct. 1175

(1977). As Congress made clear in its report accompanying

the 1972 legislation that amended the LHWCA to add section

5(b), the effect of that section is to eliminate a covered

worker’s general maritime law unseaworthiness claim, while

preserving the judge-made, general maritime law action for

the negligence of a vessel. H.R. Rep. No. 1441, 92d Cong., 2d

Sess., reprinted in 1972 U.S. Code Cong. & Admin. News

4698.

As a judge-made, general maritime law cause of

action, the “vessel negligence” remedy preserved by section

5(b) of the LHWCA has depended upon the judge-made,

general maritime law definition of a vessel, i.e., the test set

forth in this Court’s Parsons case. E.g., Ducrepont, 877 F.2d

at 396. The Louisiana Supreme Court instead treated the issue

purely as one of interpreting the statutory meaning of the word

“vessel” in section 5(b), and utilized the very broad test set

forth in 1 U.S.C. §3, without reference to interpretative federal

case law. As clearly held by the Federal Fifth Circuit in Rich-

endollar, use of a statutory definition of vessel in a section

5(b) case is inappropriate. 819 F.2d at 126. In Ducrepont, the

Fifth Circuit reaffirmed that a statutory definition of “vessel”

is inappropriate, specifically rejecting the contention that the

“capability” standard set forth in 1 U.S.C. §3 can apply ina

section 5 (b) action. 877 F.2d at 395-96.

Further, the definitions provided in Title 1 of the

United States Code are for interpreting the meanings of words

in laws passed by Congress. See 1 U.S.C. §1. Thus, a proper

example for the use of 1 U.S.C. §3 would be in interpreting the

meaning of the word “vessel” in the Shipowners’ Limitation

of Liability Act, 46 U.S.C. §§181-188. See Keys Jet Ski, Inc.

v. Kays, 893 F.2d 1225, 1230 (11th Cir. 1990). However, as

to a non-Statutory general maritime law action such as that

preserved by section 5(b) of the LHWCA, a statutory defini-

tion has no applicability. Ducrepont, 877 F. 2d at 395-96;

Richendollar, 819 F.2d at 126.

Further, even applying 1 U.S.C. §3 in a statutory

limitation action, this Court has jurisprudentially engrafted

upon 1 U.S.C. §3 the requirement that the structure at issue not

simply be capable of use in navigation, but must also be so

used in order to qualify as a vessel. Evansville & Bowling

Green Packet Co. v. Chero Cola Bottling Co.,271 U.S. 19,21-

22, 46 S. Ct. 379, 380 (1926). In Keys Jet Ski, the Eleventh

Circuit also noted that 1 U.S.C. §3, taken literally, would lead

to such “absurd” consequences as a “styrofoam surf board, a

life preserver, oreven a conventional water ski” being deemed

vessels. 893 F.2d at 1230. Thus, the Louisiana Supreme Court

not only erred by adopting a statutory test for vessel status in

anon-statutory action, it compounded that error by disregard-

ing this Court’s precedent as to the proper and practical

interpretation of that statute.

The Louisiana Supreme Court also erroneously con-

cluded that the 1984 amendment to section 5(b) of the

LHWCA eliminates all actions by covered workers against

their employers as vessel owners (Appendix A at 1-2 n.1).

Actually, the 1984 amendment only eliminates actions by ship

repairers and ship builders against their employers as vessel

owners. Davis v. Cargill, Inc., 808 F. 2d 361 n.1 (Sth Cir.

1986); see also ante at footnote 1.

As to all other classes of maritime workers, the “dual

capacity” doctrine, see, e.g., Jones & Laughlin Steel Corp. v.

Pfeifer, 462 U.S. 523, 103 S. Ct. 2541 (1983), that allows

LHWCA employers to be sued by their employees as vessel

Owners, remains in force. Further, as recognized by this Court

in Director, OWCP v. Perini North River Associates, 459

U.S. 297, 103 S. Ct. 634 (1983), any worker who is injured in

the course of employment duties while on a vessel on navi-

gable waters will be deemed covered by the LHWCA, even if

not engaged in traditional longshore tasks.Thus, given the

Louisiana Supreme Court’s broad and novel interpretation of

what is a vessel, any worker who happens to be injured on

anything thatis floating, i.e., “capable” of use in navigation, will

have a “vessel negligence” cause of action against the owner

of that floating structure in the state courts of Louisiana.

Moreover, any worker other than a ship builderorrepairercan

maintain such an action even if the floating structure’s owner

is also the worker’s employer who would otherwise be subject

only to a workers’ compensation claim. Contrary to the

Louisiana Supreme Court’s implicit assertion, its decision

does not have limited application. Rather, the Louisiana

Supreme Court’s definition of vessel produces the ironic

result that workers other than shipyard workers can assert

federal maritime law tort actions against their employers in

Louisiana state court that would be dismissed as a matter of

law in federal court.

The Louisiana Supreme Court also erroneously rea-

soned that a different test for vessel status applies in suits by

LHWCA-covered workers from the test for vessel status

employed in suits by seamen, i.e., claims under the Jones Act,

46 U.S.C. §688, and under the general maritime law warranty

of seaworthiness. There is simply no support for this in the

federal case-law, and Ducrepont is to the contrary. The word

“vessel” does not even appear in the Jones Act, and the courts

have routinely applied the same general maritime law “design

and use” test to determine the existence of a vessel for

seamen’s Claims and LHWCA-covered workers’ claims. See,

e.g., Richendollar, 819 F.2d at 127 (section 5(b) case); Davis

v. Cargill, Inc., 808 F.2d 361, 362 (Sth Cir. 1986) (section 5(b)

case); Bernard, 741 F.2d at 829 (seaman’s case); Cook v.

BeldenConcrete Products, Inc.,472 F.2d 999, 1001 (Sth Cir.),

cert. denied, 414 U.S. 868, 94 S.Ct. 175 (1973) (seaman's

case); Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279,

282-83 (Sth Cir.), cert. denied, 396 U.S. 846, 90 S. Ct. 105

(1969) (unseaworthiness claim by longshoreman prior to

1972 amendment to LHWCA eliminating this action); Flem-

ing, 552 F. Supp. at 29-30 (section 5(b) case); Mayfield, 510

F.Supp. at 607 (section 5(b) case).

In Lash v. Ballard Construction Co., 707 F. Supp. 461

(W.D. Wash. 1989), the plaintiff argued, as in the present

matter, that different tests apply to the “vessel status” determi-

nation as between LHWCA cases and seamen’s cases. The

Lash Court correctly reasoned that although a seaman must

also show amore or less permanent attachment to a vessel, i.c.,

qualify as a crewmember, the underlying issue of whether a

structure is or is not a vessel in the first place is exactly the

same in both section 5(b) and seaman’s cases: whether the

structure is designed for and used in navigation, or is instead

a floating work station whose transportation function, if any,

is only incidental to its primary work platform function. /d. at

463, 465. The federal courts have uniformly applied the same

test of vessel status in seamen’s and section 5(b) cases, and

there is no logical or doctrinal reason to apply different tests.

ASI does not wish to be unduly critical of the Louisi-

ana Supreme Court, but the numerous errors in that court’s

opinion amply illustrate the haphazard and result-oriented

approach taken by the Louisiana Supreme Court to what is,

indeed, a serious issue of federal general maritime law. The

Louisiana Supreme Court criticized the Louisiana Fifth

Circuit’s decision in this case as purportedly improperly

relying on language in the United States Fifth Circuit’s deci-

sion in Ducrepont v. Baton Rouge Marine Enterprises, Inc.,

877 F. 2d 393 (5th Cir. 1989). (Appendix A at 11). This could

not have occurred because the Louisiana Fifth Circuit’s deci-

sion in this case was handed down on April 12, 1989, and

Ducrepont was not decided until over three months later, on

July 18, 1989.

ASI pointed out this glaring error along with the

Louisiana Supreme Court’s numerous other errors in ASI’s

petition for rehearing, but that petition was summarily denied.

Yet, when the West Reporter version of the Louisiana Su-

preme Court’s decision was printed, see 556 So. 2d 582, the

Louisiana Supreme Court tried to cover up this mistake by

saying that the Louisiana Fifth Circuit improperly relied on

language in Bernard v. Binnings Construction Co., Inc., 741

F. 2d 824 (Sth Cir. 1984). 556 So. 2d at 587. However, in the

West Reporter, the Louisiana Supreme Court attributes to

Bernard the same language that in fact is a direct quote from

Ducrepont, with only the quotation marks removed. Compare

Appendix A at 11 with 556 So. 2d at 587 and 877 F.2d at 395.

It should also be noted that nothing even similar to the

language attributed by the Louisiana Supreme Court in the

West Reporter to Bernard actually appears in the Bernard

opinion. Most telling of all, in the doctored version of the

Louisiana Supreme Court’s opinion appearing in the West

Reporter, although the citation in the text is changed to

Bernard, footnote 17 remains. Footnote 17 identifies the page

location of the previously quoted language of Ducrepont, the

true source of language that most assuredly was not relied

upon by the Louisiana Fifth Circuit, as it had not even been

written when the Louisiana Fifth Circuit issued its opinion.

One must question the seriousness with which the

Louisiana Supreme Court treated this significant issue of

federal general maritime law. One must also question whether

the Louisiana Supreme Court was truly concerned with fol-

lowing federal maritime law, given that Court’s sloppy at-

tempt to cover up an even sloppier error that goes to the heart

of the Court’s decision.

Further, the Louisiana Supreme Court, in incorrectly

treating the vessel status issue as a matter of statutory interpre-

tation under the LHWCA, cited this Court’s opinion in Direc-

tor, OWCP v. Perini North River Associates, 459 U.S. 297,

103 S. Ct. 634 (1983), as authority to apply a “liberal interpre-

tation.” (Appendix A at 5). Yet, itis manifest from this Court’s

Perini opinion that the “liberal interpretation” rule is for

questions of workers’ compensation payable under the

LHWCA, and has nothing to do with the tort remedies

preserved by section 5(b).

CONCLUSION

A simple comparison of the Louisiana Supreme Court’s

decision in this matter with the federal Ducrepont, Mayfield,

and Fleming decisions (copies of all are in the appendix),

demonstrates that the Louisiana Supreme Court has adopted

a completely contrary position to the federal courts on the

issue of what constitutes a vessel under general maritime law.

ASI submits that the Louisiana Supreme Court has erred, and

that its decision herein must be reversed. Most fundamentally,

such a conflict between the federal courts and the Louisiana

Supreme Court must not be allowed to exist on this important

issue in an area of federal maritime law over which the state

and federal courts exercise concurrent jurisdiction. It is im-

perative that this Court grant certiorari and set forth a uniform

test to be applied to the issue of vessel status in general

maritime law cases, whether pending in federal or state court.

Respectfully submitted,

EDWARD J. K , IR.

PATRICK H. PATRICK

- Jones, Walker, Waechter, Poitevent,

Carrere & Denegre

201 St. Charles Ave., 47th Floor

New Orleans, Louisiana 70170

Telephone: (504) 582-8000

Attorneys for petitioner,

Avondale Shipyards, Inc.

CERTIFICATE OF SERVICE

I hereby certify that three copies of the above and

foregoing have been forwarded to all counsel of record by

depositing same in the U. S. mail, postage prepaid and

properly addressed this 4th day of June, 1990.

fouls

EDWARD J

SUPREME COURT OF LOUISIANA

NO. 89-C-1455

CHESTER J. ORGERON, JR. and his wife,

CONNIE E. LYNN CAMUS ORGERON

versus

AVONDALE SHIPYARDS, INC.

On Writ of Review from the

Court of Appeal, Fifth Circuit,

State of Louisiana,

Parish of Jefferson

WATSON, Justice.

In this claim for damages under the Longshore and

Harbor Workers’ Compensation Act (LHWCA), the

threshold issue is whether the work barges on which plaintiff

was injured qualify as vessels under the Act. !

' 33 U.S.C. §905(b) stated:

In the event of injury to a person covered under this

chapter caused by the negligence of a vessel, then such

person, or anyone otherwise entitled to recover dam-

ages by reason thereof, may bring an action against

A-2

FACTS

On September 9, 1983, plaintiff, Chester J. Orgeron, Jr., was

employed in ship repair at Avondale’s Quick Repair Yard

which is located on a slip fronting the Harvey Canal. The slip

is dredged to a depth of twenty-five to twenty-seven feet. Both

the slip and the canal are part of the Intracoastal Waterway, a

navigable artery of commerce. Working at night, Orgeron fell

into an opening between two barges or pontoons. He alleged

negligence of Avondale or its vessels.

such vessel as a third party in accordance with the

provisions of section 933 of this title, and the employer

shall not be liable to the vessel for such damages

directly or indirectly and any agreements or warran-

ties to the contrary shall be void. If such person was

employed by the vessel to provide stevedoring serv-

ices, no such action shall be permitted if the injury was

caused by the negligence of persons engaged in pro-

viding stevedoring services to the vessel. If such

person was employed by the vessel to provide ship

building or repair services, no such action shall be

permitted if the injury was caused by the negligence of

persons engaged in providing ship building or repair

services to the vessel. The liability of the vessel under

this subsection shall not be based upon the warranty of

seaworthiness ora breach thereof at the time the injury

occurred. The remedy provided in this subsection

shall be exclusive of all other remedies against the

vessel except remedies available under this chapter.

‘The accident occurred on September 9, 1983 before the

1984 amendment to subsection (b) which eliminated a vessel

negligence action against an employer under this section.

A-3

The pontoons were floating work platforms which

also moved men and materials over the water comprising the

slip of the Harvey Quick Repair Yard. Lance S. Bourgeois, Jr.,

the yard superintendent, an employee of Avondale for over

forty years, testified that the pontoons/barges were ali built in

the Harvey Quick Repair Yard and designed to Avondale’s

specifications. Bourgeois acknowledged that the pontoons

transported workers’ tools and equipment from place to place.’

Although their transportation function was incidental

to their primary use, the barges had some design features not

common to fixed, stationary platforms. They were free float-

ing rather than permanently attached in one location; they

2 Q: But Mr. Bourgeois it’s capable of carrying

anchors and propellers around that yard and as

a matter of fact, it does carry anchors?

Yes, it carries the repair work that we do.

It carries heavy equipment around that yard;

doesn’t it?

No more than what it can handle on the

wheel and rudders.

Okay, but they are pretty heavy; aren’t they?

Some of them may be eight, nine hundred

pounds, maybe a ton.

Q: When these things move around the yard,

Mr. Bourgeois, don’t they have the work-

ers’ tools on them, sir?

A: They do have.

Q: These things are never permanently anchored

in place; are they, sir?

A: Not permanently, no.

Tr. 296-97.

PFO FF OF

A-4

were pulled or pushed where needed. Recessed valve bitts? on

the corners of the barge-shaped pontoons were used when

they were towed or moved or fastened together. The barges

carried men wearing life vests as well as equipment.‘ They

were subject to the perils of the sea, sometimes breaking loose

from their moorings.

Just prior to his accident, Orgeron, a ship repairman,

was working from one of Avondale’s largest barges, which

measured approximately sixty by twenty feet and had a two-

foot draft. When Orgeron arrived at his job, the barge was

abutting a smaller one. About four hours later, Orgeron took

a heating torch from a co-worker and turned to hand it to

another one. As he moved, he stepped into a gap which had

opened between the barges, injuring his back.

The trial court concluded that plaintiff failed to carry

his burden of proving that the structures on which he was

working qualified as vessels under the Act. Because plaintiff

did not prove vessel status, the court did not consider negli-

gence, causation or damages. The court of appeal affirmed’ on

the ground that the structures were work platforms, which

> “A single or double post of metal or wood fixed on the

deck of a ship and around which mooring lines or other

lines are made fast.” Webster’s Third New Interna-

tional Dictionary 223 (1976).

Q: Were life vests ever used by anyone on these

barges?

A: You were always required to use life vest when

you was on that pontoon and it was moving.

Tr. 352.

> 542 So.2d 640 (La.App. 5 Cir. 1989).

A-5

incidentally performed some transportation functions. A writ

was granted to consider the judgment of the court of appeal.®

LAW AND CONCLUSION

The Longshore and Harbor Workers’ Compensation

Act provides compensation benefits to maritime employees

for disability or death occurring on the navigable waters of the

United States during the loading, unloading, repairing or

building of a vessel.’ Until passage of the LHWCA in 1927,

this category of worker was frequently without remedy. As a

humanitarian and remedial measure, the LHWCA must be

liberally construed. Director, OWCP v. Perini North River

Association, 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed. 2d 465

(1983).

The LHWCA and the Jones Act® furnish mutually

exclusive remedies. Swanson v. Marra Bros., 328 U.S. 1, 66

S.Ct. 869, 90 L.Ed. 1045 (1945). The Jones Act only applies

to seamen who are members of a vessel’s crew and aid in its

navigation. Senko v. LaCrosse Dredging Corp., 352 U.S. 370,

77 S.Ct. 415, 1 L.Ed. 2d 404 (1957). A Jones Act seaman must

have a more or less permanent attachment to a vessel or fleet

of vessels,’ while recovery under Section 905(b) of the LHWCA

can be based upon transitory contact with a vessel.

550 So. 2d. 619 (La. 1989).

33 U.S.C. §903(a).

46 U.S.C. §688.

Barrett v. Chevron, U.S.A., Inc., 781 F.24 1067

(5th Cir. 1986).

Oo oO ON OD

A-6

Injured workers have a lesser recovery under the com-

pensation remedy of the LHWCA than seamen have under the

negligence action furnished by the Jones Act. Seamen have

the right to maintenance and cure, the liberal remedy afforded

by the Jones Act and a strict liability cause of action for unsea-

worthiness. The warranty of seaworthiness only applies to

vessels “in navigation,” and the injured worker must be

engaged in traditional ship’s work. Under the 1972 amend-

ments to the LHWCA, longshore and harbor workers no

longer have a remedy for unseaworthiness. However, in

addition to a compensation claim against his employer, a

longshore or harbor worker may bring an action under 33

U.S.C. §905(b) against a vessel owner as a third party to

recover damages for an injury caused by negligence of the

vessel.!°

Ship repair is defined as maritime employment in the

LHWCA. See Director, OWCP v. Perini North River Assoc.,

459 U.S. 297, 103 S.Ct. 634, 74 L.Ed. 2d 465 (1983). In con-

struing the Act’s terms, “other statutes having other purposes”

are of little aid. South Chicago Coal & Dock Co. v. Basset, 309

U.S. 251, 260, 60 S.Ct. 544, 549, 84 L.Ed. 732, 737. Thus, the

Jones Act '' definition of the word vessel should not be

substituted for the word vessel in Section 905(b) of the

LHWCA.

Under general maritime law, a vessel is “every de-

scription of watercraft or other artificial contrivance used or

'0 Ina negligence suit against a vessel under 33 U.S.C.

§905(b), liability of the vessel is not “based upon the

warranty of seaworthiness.”

'! 46 U.S.C. §688.

A-7

capable of being used as a means of transportation on water.’

This is the capability test for vessel status.

“Since Congress, in its use of the term ‘vessel’ in

§§902(21) and 905(b), did not provide a definition different

from the generally acknowledged one found in section 3, we

may presume, as other courts have, that it intended to adopt

this commonly-used term. ...[C]ases decided under the Jones

Act, 46 U.S.C. §§541-713 (1976), have looked to a different

test in determining what is a vessel for Jones Act purposes . .

. A craft need not be actually engaged in navigation or com-

merce in order to come within the definition of ‘vessel.’ The

question is one of residual capacity.” McCarthy v. The Bark

Peking, 716 F.2d 130, 134, 134 n.2, 135 (2d Cir. 1983), cert.

denied, 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760

(1984).

After McCarthy, Judge Tate considered vessel status

under Section 905(b) in Hall v. Hvide Hull No. 3,746 F.2d 294

(Sth Cir. 1984), cert. denied, 474 U.S. 820, 106 S.Ct. 69, 88

L.Ed.2d 56 (1985). Hall held that an incomplete ship floating

on navigable waters during its construction is a vessel for

purposes of a tort action under Section 905(b). Hall followed

Lundy v. Litton Systems, Inc., 624 F.2d 590 (Sth Cir. 1980),

cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337

(1981) and Burks v. American River Transportation Co., 679

F.2d 69 (Sth Cir. 1982).'* Footnote 10 of Hall points out that

2 1U3X%. $3.

‘3 Hall distinguished Lowe v. Ingalls Shipbuilding, A

Div. of Litton, 723 F.2d 1173 (Sth Cir. 1984) and

Hollister v. Luke Construction Co., 517 F.2d 920 (5th

Cir. 1975), which did not involve Section 905(b)

actions.

A-8

the question of whether a vessel is also “in navigation” under

the Jones Act is a different issue from the question of vessel

status under Section 905(b). Following footnote 29 of Perini,'*

Hall decided that the remedies of Act-covered employees

14 Footnote 29 of Perini states:

Perini cites our decision in Executive Jet Aviation, Inc.

v. City of Cleveland, 409 U.S. 249, 34 L.Ed. 2d 454, 93

S.Ct. 493 (1972), and argues that the LHWCA is

premised upon admiralty jurisdiction, which requires

a connection between an employee and traditional

maritime activity. Perini’s reliance on Executive Jet is

misplaced. In that case, the only issue before the Court

was whether federal admiralty jurisdiction extended

to tort claims arising out of the crash of an airplane into

navigable waters on a flight “within the continental

United States, which [is] principally over land.” /d., at

266, 93 S.Ct., at 493, 34 L.Ed. 2d, at 454. Jurisdiction

in Executive Jet was predicated on 28 U.S.C. §1333(1)

[28 U.S.C.S. §1333(1)], which provides that the fed-

eral district courts have original and exclusive juris-

diction of “[a]ny civil case of admiralty or maritime

jurisdiction.”

The explicit language of Executive Jet makes it clear

that our discussion was occasioned by “the problems

involved in applying a locality-alone test of admiraity

tort jurisdiction to the crashes of aircraft” ina situation

where “the fact that an aircraft happens to fall in navi-

gable waters, rather than on open land, is wholly for-

tuitous.” 409 U.S., at 265, 266, 93 S.Ct., at 503, 504,

34 L.Ed. 2d, at 465, 466. Although the term “mari-

time” occurs both in 28 U.S.C. §1333(1) [28 U.S.C:S.

A-9

injured on navigable waters were not affected by Executive Jet

Aviation v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed. 2d

454 (1952). Under Executive Jet, there is admiralty jurisdic-

tion only when a wrong occurs on navigable waters, situs, and

bears a significant relationship to traditional maritime activ-

ity, nexus.'> See Herb’s Welding, Inc. v. Gray, 470 U.S. 414,

105 §.Ct. 1421, 84 L.Ed.2d 406 (1985). Historically, ship con-

siruction is not regarded as a traditional maritime activity: a

ship under construction has not evolved into vessel status.

Richendollar v. Diamond M Drilling Co., Inc., 819

F.2d 124 (Sth Cir.), cert. denied, 484 U.S. 944, 108 S.Ct. 331,

98 L.Ed.2d 358 (1987) and Drake v. Raymark Indus., Inc.,

772 F.2d 1007 (ist Cir. 1985), cert. denied, 476 U.S. 1126,

106 S.Ct. 1994, 90 L.Ed.2d 675 (1986), held that a Section

905(b) cause of action must satisfy the Executive Jet require-

ments for admiralty jurisdiction. Richendollar, and en banc

opinion from the Fifth Circuit authored by Judge Politz,

decided that a ship being constructed on land was nota vessel

within the admiralty jurisdiction of the federal courts because

§1331(1)] and in §2(3) of the Act, these are two

different statutes “each with different legislative his-

tories and jurisprudential interpretations overthe course

of decades.” Boudreaux v. American Workover, Inc.,

680 F.2d 1034, 1050 (CAS 1982) (footnote omitted).

In addition, Churchill, as a marine construction worker,

was by no means “fortuitously” on the water when he

was injured. 459 U.S., at 320, 103 S.Ct., at 648-49, 74

L.Ed. 2d, at 482-83.

'S As aresult of Richendollar, Hallis no longer areliable

precedent with regard to jurisdiction. Molettv. Penrod

Drilling Co., 872 F.2d 1221 (Sth Cir. 1989).

A-10

it was not in or on navigable waters and was incapable of

flotation.

On its facts, Hall can be distinguished from Richen-

dollar. The Hail hull was floating in navigable waters, and the

Richendollar drilling rig was on land with holes in its hull. The

Hall hull met the capability test: the Richendollar rig did not.

Richendollar points out that the configuration of a watercraft

is of secondary importance because size, form, equipment and

~ means of propulsion do not determine jurisdiction.

After Richendollar, the Fifth Circuit decided Rosetti v.

Avondale Shipyards, Inc., 821 F.2d 1083 (Sth Cir. 1987), cert.

denied, 484 U.S. 1008, 108 S.Ct. 703, 98 L.Ed. 654 (1988),

which held that an unfinished vessel, floating but still under

construction, was not a vessel for purposes of admiralty

jurisdiction or Section 905(b), because it was incomplete and

therefore incapable of navigation or its special purpose use on

or in the water. Rosetti and Hall cannot be reconciled: the

companion cases both involved floating hulls which were still

under construction.

Richendollar and Drake rejected Hall’s treatment of

the Executive Jet jurisdictional issue. However, that debatable

question is not decisive here.'* Richendollar and Rosetti do

not control this issue of vessel status, because the barges on

which Orgeron was working were not under construction.

‘© Since ship construction is defined as maritime em-

ployment in the LHWCA, it is questionable whether

the traditional view that ship construction is not a

subject of maritime jurisdiction should apply to any

part of the Act. See Perini and Hall.

A-11

They were finished products used in the construction of other

vessels. The barges were capable of navigation, were afloaton

navigable waters and performed a transportation function.

Orgeron himself was engaged in ship repair, which has

generally been regarded as a traditional maritime activity.

Ducrepont v. Baton Rouge Marine Enterprises, Inc.,

877 F.2d 393 (Sth Cir. 1989) considered vessel status sepa-

rately under the Jones Act and Section 905(b) of the LHWCA,

because the term vessel in the LHWCA is not synonymous

with the term vessel in the Jones Act. The structure at issue in

Ducrepont was a cargo barge which had been converted into

a stationary work platform and, like the platform in Davis v.

Cargill, Inc., 808 F.2d 361 (Sth Cir. 1986), was analogized to

a dry dock. The Davis platform was permanently moored,

anchored to the riverbed and equipped with a permanently

attached landing extension.

In affirming the trial court, the court of appeal here

relied on language in Ducrepont which stated that the work

platform at issue “was moored at the time of the accident; and

any transportation function it performed was merely inciden-

tal to its primary purpose of serving as a work platform.””” The

court of appeal failed to note that this language was used in the

analysis of a barge as a Jones Act vessel and not as a Section

905(b) vessel. In context, this language does not apply to the

question of whether the Ducrepont work platform was a

Section 905(b) vessel. The issue of whether the barge per-

formed a transportation function as a primary or incidental

'7 877 F.2d 395.

A-12

matter relates to vessel status under the Jones Act.'®

Ducrepont held that a barge is not a §905(b) vessel

when itis firmly moored, seldom moved, not used for naviga-

tion and in use as a dry dock or stationary work platform.

However, a barge is a vessel within the meaning of the

LHWCA even when it has no motive power. Nortonv. Warner

Co.,321 U.S. 565, 64S. Ct. 747, 88 L.Ed. 931, 1944 AMC 337

(1944); The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8,

48 L.Ed. 73 (1903); Ellis v. United States, 206 U.S. 246, 27

S.Ct. 600, 51 L.Ed. 1047 (1907). The fact that these barges

were pushed or pulled into various locations rather than self-

propelled does not remove them from the category of 905(b)

vessels. Richendollar.

In the Fifth Circuit, the test for vessel status under

Section 905(b) of the LHWCA is the capability testin 1 U.S.C.

§3, as modified by Richendollar, Rosetti and Ducrepont.

Richendollar and Rosetti hold that a Section 905(b) vessel

must satisfy the Executive Jet requirements for admiralty ju-

risdiction, a maritime situs and a significant relationship to

traditional maritime activity. Ducrepont requires that a struc-

'8 The court of appeal also relied on Bernard v. Binnings

Construction Company, Inc., 741 F.2d 824 (Sth Cir.

1984), which involved vessel status under the Jones

Act. Bernard held that a work pontoon which was not

designed for navigation and notin navigation, was not

a Jones Act vessel as a matter of law. Since Bernard

turned on the Jones Act “in navigation” issue, which

is extraneous to the LHWCA, the court of appeal erred

in considering Bernard.

A-13

ture be sufficiently mobile to serve some transportation func-

tion for vessel status under Section 905(b).

The barges being used as work platforms by Orgeron

and his co-workers were capable of transportation on water

and they were floating on navigable water. The situs test is

met, because Orgeron’s accident occurred both on and in

navigable water. The nexus test is met because the barges were

being used for ship repair, a traditional maritime activity

classified as maritime employment by the LHWCA. The

barges have vessel status because they were used for transpor-

tation on navigable waters.

In Ducrepont, the stationary work platform was firmly

moored and seldom moved. These barges were not stationary

and were frequently moved. In fact, the injury occurred when

the barges drifted apart. Avondale’s barges meet the capabil-

ity standard of 1 U.S.C. §3. Additionally, they were designed

and used for transportation as well as work platforms.

The trial court erred in concluding that these pontoons/

barges were not vessels. They meet the statutory standard.

They were clearly capable of transportation and moved peri-

odically around the stretch of navigable water fronting the

Harvey Quick Repair Yard. They performed a transportation

function.

Since the trial court did not reach the issues of negli-

gence, causation and damages, the case is remanded to the

court of appeal for consideration of those questions on the

record.

A-14

For the foregoing reasons, the judgment of the court of

appeal is reversed and the case is remanded for further

proceedings consistent with this opinion.

REVERSED AND REMANDED.

Appendix B

Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE

NEWS RELEASE # 208

FROM:

CLERK OF SUPREME COURT OF

LOUISIANA

On the 8th day of March, 1990, the following action was

taken by the Supreme Court of Louisiana in the cases listed

below:

REHEARINGS DENIED:

87-B- 2002 LOUISIANA STATE BAR v. MICHAEL J.

C/W RILEY, SR.

87-B- 2727

89-B- 1459

88-C- 3035 JOSHEDA WASHINGTON, ET AL v.

LOUISIANA POWER & LIGHT

COMPANY, ET AL (Parish of Orleans)

DIXON, C.J. - would grant a rehearing.

CALOGERO, J. - would grant a rehearing.

WATSON, J. - would grant a rehearing.

89-C - 1276 CLARK HOLLOWAY v. STATE OF

C/W LOUISIANA THROUGH

DEPARTMENT OF TRANSPORTATION

AND DEVELOPMENT C/W CHARLES

89-C - 1304. R.FACUNDUS v. STATE OF

LOUISIANA THROUGH DEPARTMENT

89-C- 1310 TRANSPORTATION AND

DEVELOPMENT (Parish of East Baton

89-C - 1455

89-C - 1534

89-CA- 2426

B-2

Rouge)

(Two Applications)

CALOGERO, J. - would grant a rehearing.

DENNIS, J. - would grant a rehearing.

CHESTER J. ORGERON AND HIS WIFE

CONNIE E. LYNN CAMUS v.

AVONDALE SHIPYARDS INC. (Parish of

Jefferson)

STATE OF LOUISIANA, DEPARTMENT

OF TRANSPORTATION AND

DEVELOPMENT v. ROGER DIETRICH,

et al (Parish of Natchitoches)

LEMMON, J. - would grant a rehearing.

FIRST NATIONAL BANK OF

COMMERCE, ON ITS OWN BEHALF,

AND AS SUCCESSOR IN INTEREST TO

THE BANK OF NEW ORLEANS AND

TRUST COMPANY v. THE CITY OF

NEW ORLEANS, BOBBY MAJOR, JR.,

IN HIS CAPACITY AS DIRECTOR OF

FINANCE FOR THE CITY OF NEW

ORLEANS, AND RICHARD BRUNE, IN

HIS CAPACITY AS CITY TREASURER

FOR THE CITY OF NEW ORLEANS

(Parish of Orleans)

(p. 1 of 1 page)

Appendix C

24TH JUDICIAL DISTRICT COURT

FOR THE PARISH OF JEFFERSON

STATE OF LOUISIANA

NO: 299-602 DIVISION “N”

CHESTER J. ORGERON JR.

and HIS WIFE, CONNIE E. LYNN CAMUS

VERSUS

AVONDALE SHIPYARDS, INC.

FILED:

DEPUTY CLERK

REASONS FOR JUDGMENT

STATEMENT OF CASE

Plaintiff sues under the Longshore and Harborwork-

ers Compensation Act, 33 U.S.C. 905(b), for injuries sus-

tained in a fall at Avondale Shipyards.

FINDINGS OF FACT

The plaintiff worked for defendant at its Harvey Quick

Repair Yard on the north bank of the Harvey Canal in

Jefferson Parish, Louisiana. He worked both in the landside

shops in the yard and on the hulls of vessels drydocked there.

To facilitate the vessel repair work, the defendant built several

small floatable structures called “work barges,” “work flats,”

or “pontoons.” These structures were made of steel, were

rectangular in shape, had a two foot or less draft and varied in

size from 60' x 20' to 18' x 10’. They were usually positioned

between the drydocks and the bulkhead in order to work on the

hulls or stern of drydocked vessels. These structures were

never used to haul men or machinery in the Harvey Canal and

C-2

never left the confines of the yard mene by accidentally

breaking free.

On September 9, 1983, Chester Orgeron was standing

on a pontoon. Another pontoon was alongside. He was work-

ing on the overhanging stern of the vessel “Gale C.” The

pontoons separated and Chester Orgeron fell between them,

and partially into the water, injuring his back. He is currently

receiving Workman’s Compensation benefits as a result of

this accident.

CONCLUSIONS OF LAW

Torecover damages under LSHWCA 905(b), plaintiff

must first prove, by a preponderance of the evidence, that the

structure upon which he was injured was a vessel. He has

failed to carry this burden. In reaching this conclusion the

Court considered the design of the structure, why it was made

to float, and the purpose for which the structure was used. In

this case, these structures were not used, designed or intended

for transportation of passengers, cargo or equipment from

place to place across navigable waters. They functioned

primarily as work platforms and as 77 extension, arm or

ancillary of the drydock. These structures are not vessels. Due

to the failure of plaintiff to prove vessel status, the Court did

not consider negligence of defendant or cause of injuries to

plaintiff.

For the above reasons the Court finds in favor of

defendant, Avondale Shipyards, Inc., and dismisses plaintiff’ s

suit, with prejudice, and at the plaintiffs’ costs.

C-3

GRETNA, LOUISIANA

This day of August, 1988.

James L. Cannella, Judge

Division “N”

Appendix D

CHESTER J. ORGERON AND FIFTH CIRCUIT

HIS WIFE, CONNIE E. LYNN CAMUS COURT OF

VERSUS APPEAL

AVONDALE SHIPYARDS, INC. STATE OF

LOUISIANA

NO. 88-CA-895

APPEAL FROM THE

24TH JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON, NO. 299-602, DIVISION “N”

THE HONORABLE JAMES L. CANNELLA, JUDGE

SOL GOTHARD

JUDGE

(Court composed of Judges Fred S. Bowes, H. Charles Gaudin,

and Sol Gothard)

OWEN J. BRADLEY

MICHAEL R. GUIDRY

1001 Maison Blanche Building

New Orleans, Louisiana 70112

Attorneys for Plaintiffs/Appellants

EDWARD J. KOEHL, JR.

PATRICK H. PATRICK

Jones, Walker, Waechter,

Poitevent, Carrere & Denegre

201 St. Charles Avenue

47th Floor

New Orleans, Louisiana 70170

Attorneys for Defendant/Appellee

AFFIRMED

D-2

This appeal is from denial of a claim under the Long-

shore and Harbor Workers' Compensation Act (LHWCA), 33

U.S.C. Sec. 905 (b).

The plaintiff, Chester J. Orgeron, Jr., was injured on

September 9, 1983, when he fell between two “pontoons” or

“work barges” in Avondale’s Harvey Quick Repair Yard, in

the Harvey Canal. He was employed as a ship repairman by

Avondale Shipyards, Inc. and was working at night, standing

on the larger of two abutting pontoons that were tied up and

being used as a work platform under the stern of a ship.

Unaware that the pontoons had separated, he stepped through

the opening and was injured.

Orgeron filed suit against his employer, Avondale,

under the LHWCA, alleging that Avondale as owner of the

barges (pontoons) was negligent in failing to equip the barges

with proper and safe equipment to secure and keep the barges

together. After a bifurcated trial of liability only, the judge

took the matter under advisement and entered judgment in

favor of Avondale. The crux of his reasons for judgment was

the plaintiff’s failure to carry his burden of proof that the

structure on which he was hurt was a vessel, as required for

recovery under the statute.

The appellant raises as issues: (1) whether or not the

Avondale work barges (pontoons) were vessels for purposes

of 33 U.S.C. Sec. 905(b); and (2) whether or not Avondale was

negligent in its capacity as a vessel owner.

turisdiction Under Section 905(b

Under Section 905(b) a person otherwise covered

under the LHWCA may bring a maritime tort action against

D-3

the vessel upon which he was injured for the negligence of the

vessel.’ The statute was amended in 1984 to prohibit suits

against the employer in any capacity. At the time of Orgeron’s

injury, however, suit could be brought against the owner of a

vessel who was also the employer of the injured worker, as is

the case here. Chiasson v. Rogers Terminal and Shipping

Corp., 679 F.2d 410 (Sth Cir. 1982). A recenten banc decision

by the U.S. Fifth Circuit, Richendollar v. Diamond M Drilling

Co. Inc., 819 F.2d 124 (Sth Cir. 1987), on reconsideration, set

Out its conclusions as to the determination of maritime juris-

diction and the requisites for a maritime tort action under 33

U.S.C. Sec. 905(b). The court stated, at 125:

... We reiterate today when it enacted Sec. 905(b),

Congress did not create a new or broader cause of

action in admiralty than that which previously existed,

but rather, it curtailed available third party tort actions,

and in doing so it neither expanded nor constricted

maritime jurisdiction. We hold that in order for a

waterborne structure to qualify as a “vessel” under

Sec. 905(b), it must be a vessel for purposes of mari-

time jurisdiction. Such a vessel must be capable of

navigation or its special purpose use on or in water. We

further hold that to be cognizable under Sec. 905(b), a

tort must Occur on or in navigable waters subject, of

course, to the special provisions of the Admiralty

Extension Act, and there must be the traditional

admiralty nexus. ...

{Footnotes omitted. ]

'For a history of the statute, see Drake v. Raymark

Industries, Inc., 772 F.2d 1007 (1st Cir. 1985).

D-4

Earlier on, the court had said in Offshore Company v. Robison,

266 F.2d 769, 779 (Sth Cir. 1959), a Jones Act case:

Attempts to fix unvarying meanings have a firm

legal significance to such terms as “seaman”, “ves-

sel”, “member of a crew” must come to grief on the

facts. These terms have such a wide range of meaning,

under the Jones Act as interpreted in the courts, that,

except in rare cases, only a jury or trier of facts can

determine their application in the circumstances of a

particular case. Even where the facts are largely undis-

puted, the question at issue is not solely a question of

law when, because of conflicting inferences that may

lead to different conclusions among reasonable men,

a trial judge cannot state an unvarying rule of law that

fits the facts... .

The appellant argues that the characteristics of the

craft from which he fell conforms to the definition of vessel in

1 U.S.C. Sec. 3: “The word ‘vessel’ includes every description

of water-craft or other artificial contrivance used, or capable

of being used, as a means of transportation on water.” His

position is that capability of transportation is the only test for

905(b) claims and that the tests for Jones Act claims? are

different and inapplicable.

2A Jones Act seaman must satisfy the following criteria:

...(1) he must have a more or less permanent con-

nection 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 opera-

tion or welfare in terms of its maintenance during its

movement or during anchorage for its _ future

i i ee

D-5

The appellee contends that the test for vessel status in

all maritime claims is the same: whether or not the design and

use of a water-borne structure is for navigation and commerce.

Obviousiy, the testincorporates the requirement that a craft be

capable of transportation on water. The Robert W. Parsons,

191 U.S. 17, 24 S.Ct. 8, 48 L-Ed 73 (1903); Bernard v.

Binnings Const. Co., Inc., 741 F.2d 824 (Sth Cir. 1984).

The Bernard court made no distinction between the

criteria for vessel status in the Jones Act and the general

maritime law’ and determined that the small, raft-like struc-

ture, a “work punt”, at issue was not a vessel.

The Fifth Circuit had recognized in Offshore v. Robi-

son, supra, and later in Cook v. Belden Concrete Products,

Inc., 472 F.2d 999 (Sth Cir. 1973) and Bernard v. Binnings

Const. Co. Inc., supra, that such special purpose vessels as

submersible drilling barges and floating dredges designated

for navigation and commerce are vessels within the general

maritime jurisdiction. The Bernard court distinguished three

common factors in cases where special purpose water-borne

structures were determined not to be vessels:

...(1) the structures involved were constructed

and used primarily as work platforms; (2) they were

moored or otherwise secured at the time of the acci-

trips . . . . [Citations omitted.]

Bernard v. Binnings Const. Co., Inc., supra, at

827.

*This finding was noted with approval in Richendollar v.

Diamond M Drilling Co., Inc., 819 F.2d 124 (Sth Cir.

1987).

D-6

dent; and (3) although they were capable of movement

and were sometime moved across navigable waters in

the course of normal operations, any transportation

function they performed was merely incidental to their

primary purpose of serving as work platforms... .

Bernard v. Binnings Const. Co., Inc., supra, at 831.

The testimony at trial indicates that the pontoons were

rectangular, built of metal with a depth of two feet. They had

no living quarters, bilge pumps, below deck storage, naviga-

tion lights or motive power. They were used only in Avondale’s

Quick Repair facility in a section of the Harvey Canal that is

about 1,000 feet in length. The pontoons were used as work

platforms which were slipped under the overhangs of boats for

repair or overhaul. They were pulled in and out of position

either by hand-held ropes or by a crane oa the facility’s train

track. They could carry as much as a ton of equipment or such

parts of ships as propellors or anchors but carried no cargo and

were Only moved about within the facility waters from job to

job.

The purpose and use of the pontoons was that of work

platforms for repairs, and any “transportation” was incidental

to that function. Accordingly, we find the trial court correctly

determined that the structures were not vessels and the appel-

lant cannot maintain a claim under 33 U.S.C. 905(b). Having

found Orgeron has failed to prove the prerequisite for his

maritime tort claim, we pretermit consideration of the negli-

gence claim against Avondale.

For the reasons assigned above, the judgment ap-

pealed from is affirmed.

AFFIRMED

Appendix E

Ellis J. DUCREPONT,

Plaintiff-Appellant,

Vv.

BATON ROUGE MARINE ENTERPRISES, INC., Et Al.,

Defendants-Appellees.

No. 87-3632.

United States Court of Appeals,

Fifth Circuit.

July 18, 1989.

Rehearing and Rehearing En Banc

Denied Sept. 5, 1989.

Ship repairer brought negligence action to recover for

injuries sustained when he slipped on ladder while leaving

barge after performing repair work. The United States District

Court for the Eastern District of Louisiana at New Orleans,

Martin L.C. Feldman, J., 666 F.Supp. 882, granted summary

judgment as to Jones Act and maritime claims and dismissed

Longshore and Harbor Workers’ Compensation Act claim

after bench trial. On appeal, the Court of Appeals, Gee, Circuit

Judge, held that: (1) structure could be nonvessel for Jones Act

purposes even if it did not meet all criteria common to

structures previously found not to be Jones Act vessels, and

(2) district court should have ruled that barge did not meet

definition of “vessel” under Longshore and Harbor Workers’

Compensation Act as well as under Jones Act.

Affirmed.

1. Seamene2

Shipping<-84(1)

To qualify as seaman under Jones Act or general

maritime law, plaintiff must show that he was

E-2

permanently assigned to or performed substantial

part of his work aboard vessel; similarly, for

purposes of vessel negligence claim under Long-

shore and Harbor Workers’ Compensation Act,

plaintiff must show that he was injured as a result

of negligence of vessel. Jones Act, 46U.S.C.A.App.

§688; Longshore and Harbor Workers’ Compen-

sation Act, § 5(b), 33 U.S.C.A. § 905 (b).

. Shippinge—1

Structure may be nonvessel for Jones Act pur-

poses even if it fails to meet each criteria common

to structures previously found not to be Jones Act

vessels. Jones Act, 46 U.S.C.A.App. § 688.

. Shippinge-1

Barge that was used primarily as work platform

but was not constructed as such, that performed

any transportation function merely incidentally to

its primary purpose of serving as work platform,

and that was moored at time of accident was not

“vessel” for Jones Act purposes. Jones Act, 46

U.S.C.A.App. § 688.

. Shippinge-1

Barge that was originally navigable but was firmly

moored to provide painting services, that was

seldom moved, and that required assistance of

motorized vehicle when it was moved was not

“vessel” within meaning of Longshore and Harbor

Workers’ Compensation Act. Longshore and

Harbor Workers’ Compensation Act, § 5(b), 33

U.S.C.A. § 905(b). ;

E-3

See publication Words and Phrases for other judicial

constructions and definitions.

Terrence J. Lestelle, Donald G. Kelly, New Orleans,

La., for plaintiff-appellant.

Elton E. Duncan, III, Lawrence E. Abbott, New Or-

leans, La., for Baton Rouge Marine & Employers Ins.

Frederick T. Haas, III, Robert E. Durgin, New Or-

leans, La., for Commercial Union Ins.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before GEE, SMITH, and DUHE, Circuit Judges.

GEE, Circuit Judge:

Plaintiff filed suit against his employer, Baton Rouge

Marine Enterprises, Inc. (Marine), and its insurers, seeking

recovery under the Jones Act and general maritime law or,

alternatively, under Section 5(b) of the Lonyshoremen’s and

Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.

§905(b). The defendant moved for summary judgment on the

ground that the barge was not a vessel under either the Jones

Act or § 905(b) and that the plaintiff was, therefore, limited to

compensation recovery under the general provisions of the

LHWCA. The district court, 666 F.Supp. 882, concluded that

as a matter of law the structure upon which the plaintiff was

injured was not a vessel under the Jones Act or general

maritime law. The district court therefore dismissed the

plaintiff’ s Jones Act/general maritime law claims. The district

court also concluded, however, that summary judgment as to

E-4

the structure’s status as a vessel under § 905(b) was inappro-

priate. Consequently, the district court permitted the §905(b)

claim to proceed.

Following a bench trial, the district court granted the

defendant’s Rule 41(b) motion to dismiss the plaintiff's §

905(b) claim. The court assumed without deciding that the

structure on which the plaintiff was injured was a vessel under

§ 905(b), but held that the 1984 amendments to the LHWCA

barred the plaintiff’s negligence claim against his employer.

We disagree with the district court’s assumption that the

structure upon which the plaintiff was injured was a vessel

under § 905(b). The district court therefore correctly dis-

missed the plaintiff’s § 905(b) claim, although for the wrong

reason. Consequently, we affirm the judgment of the district

court.

I. Facts

The defendant was in the business of cleaning, repair-

ing and fleeting barges for a variety of companies. The

plaintiff, an employee of the defendant, was allegedly injured

when he slipped and fell while leaving his employment aboard

a barge owned by the defendant. This barge, originally de-

signed as a cargo barge, was used as a stationary work

platform from which the defendant conducted its repairing

and cleaning operations. The barge housed two boilers used to

clean neighboring barges, had no means of self-propulsion,

and was usually moored to the shore by wires. On occasion the

barge was tugged a short distance from shore due to the level

of the water.

The plaintiff was vice-president of supervision. His

duties included overseeing the cleaning and repair activities

conducted by the defendant, performing office work and

‘cites

E-5

maintaining one of the barge’s boilers. The plaintiff spent

approximately seventy percent of his working time aboard the

barge engaged in one of these activities. In addition, he spent

somewhere between ten and fifteen percent of his total em-

ployment running a tug for the defendant in furtherance of the

cleaning and repair activities. The tug was used to move

barges which the defendant was servicing to the work plat-

form for cleaning and repair. It was also used to move the work

platform in-river when necessary. The barge was not used

during the last month of the plaintiff’s employment. In its

place the plaintiff used one of several small boats.

The plainuff contends that the barge had a regular

crew of which he was a member. Lunches were prepared and

served on board. All those performing work on the barge,

however, commuted to work. The barge was equipped with

lights that could be used to mark its location for vessels

travelling on the river. It was not, however, equipped with

navigational lights or equipment. During the time the defen-

dant was in business the barge was never moved from its

location of the bank of the Mississippi Kiver and never

underwent a United States Coast Guard marine inspection.

Il. Discussion

A. Vessel status under the Jones Act/General Maritime

Law and Section 5(b).

[1] To qualify as a seaman under the Jones Act or General

Maritime Law the plaintiff must show that he was perma-

nently assigned to or performed a substantial part of his work

aboard a vessel. See Barrett v. Chevron, U.S.A.,Inc.,781 F.2d

1067 (Sth Cir. 1986) (en banc).

E-6

Similarly, for purposes of a § 905(b) vessel

negligence claim under the LHWCA, a plain-

tiff must show that he was injured as a result of

the negligence of a vessel. See Rosetti v. Avon-

dale Shipyards, Inc., 821 F.2d 1083 (Sth

Cir. 1987) cert. denied-U.S.- 108 S.Ct. 703, 98

L.Ed.2d 654 (1988). In this case the district

court held that the barge on which the plaintiff -

was injured was, as a matter of law, nota Jones

Act vessel, but that the barge was a vessel for

§ 905(b) purposes. Consequently, the district

court granted summary judgment for the de-

fendant on the plaintiff’s Jones Act claim but

denied summary judgment on the plaintiff’s

§905(b) claim.

We have consistently held “that dry docks and analo-

gous structures whose primary purpose is to provide a work

platform, even if the structures are afloat, are not Jones Act

vessels as a matter of law.” Bernard v. Binnings Construction

Co.,Inc.,741 F.2d 824, 830 (Sth Cir.1984). See, also, Watkins

v. Pentzien, Inc., 660 F.2d 604 (Sth Cir.1981) and Wagues-

pack v. AetnaLife & Casualty Co., 795 F.2d523 (Sth Cir.1986).

In Bernard the court noted that:

A review of ... [decisions holding that floating

work platforms are not vessels] indicates three factors

common to them: (1) the structures involved were

constructed and used primarily as work platforms; (2)

they were moored or otherwise secured at the time of

the accident; and (3) although they were capable of

movement and were sometimes moved across navi-

gable waters in the course of normal operations, any

transportation function they performed was merely

E-7

incidental to their primary purpose of serving as work

platforms. Bernard, 741 F.2d at 831.

[2,3] The barge at issue in this case was used primar-

ily as a work platform. Additionally, it was moored at the time

of the accident; and any transportation function it performed

was merely incidental to its primary purpose of serving as a

work platform. It was not, however, constructed as a work

platform. Nonetheless, the district court correctly concluded

that the barge was not a vessel for Jones Act purposes.

Bernard did not attempt to set forth minimum criteria neces-

sary to place a floating structure outside the scope of the

definition of “vessel” under the Jones Act. Rather, it merely

listed criteria common to structures previously found not to be

Jones Act vessels. To require that a structure meet each

criterion in order to qualify as a non-vessel under the Jones Act

would result in the conclusion that two identical structures

engaged in identical work, one of which was constructed as a

work platform and one constructed as a barge, had different

vessel status under the Jones Act. We do not believe that such

an absurd resultis required by Bernard. We therefore hold that

a structure may be a non-vessel for Jones Act purposes even

if it fails to meet each criterion noted in Bernard and affirm the

district court’s conclusion that the barge was not a Jones Act

vessel.

[4] In assuming that the barge was a vessel under §

905(b), the district court relied on our decision in Burks v.

American River Transportation Company, 679 F.2d 69, 75

(Sth Cir.1982). In Burks we held that the definition of vessel

set forth in Title 1 of the United States Code, § 3, provides the

meaning of vessel “‘as the term is used in the LHWCA.” This

section states: “The word ‘vessel’ includes every description

of watercraft or other artificial contrivance used, or capable of

E-8

being used, as a means of transportation on water.”

Had this holding been our last pronouncement on the

definition of the term “vessel” as used in the LHWCA, the

district court’s ruling that the barge was a vessel under §

905(b) would have been sustainable. Before trial in this case,

however, we handed down our decision in Davis v. Cargill,

Inc., 808 F.2d 361, 362 (Sth Cir.1986). In Davis we held that

for purposes of.§ 905(b), “As a matter of law, a floating dry

dock is not a vessel when itis moored andin use as adry dock.”

(citations omitted) (emphasis in original)

In reaching this conclusion we stated: Although the

plaintiff was injured while on a work platform and not

a dry dock, the similarities between the two compel

our holding that this platform, like a moored dry dock

used for that purpose, is not a vessel within the

meaning of § 905(b). According to the affidavits

submitted to the district court by the defendants, the

platform was originally a navigable surplus dry cargo

barge. It has since been converted for use as a perma-

nently moored platform from which painting and

sandblasting services are provided to barges and is no

longer designed or used for navigation. The platform

is anchored to the riverbed, and is moved only once or

twice a year to compensate for tide changes, and even

then, ... cannot be moved without the assistance of

motorized vessels. The district court therefore prop-

erly granted summary judgment in favor of the defen-

dants on the ground that the work platform on which

the plaintiff was injured was not a ‘vessel’ within the

meaning of § 905(b).” Id. at 362. (emphasis added)

The similarities between the Davis case and the instant

E-9

case are many and obvious. The barge in this case, like the

platform in Davis, was originally a navigable barge. Both

were firmly moored to provide painting services, were not

used for navigation, were seldom moved, and when moved

required the assistance of a motorized vessel. Therefore,

under Davis it is clear that the barge on which the plaintiff was

injured was not a vessei within the meaning of §905(b).

Further, before the entry of judgment in this case we

had issued our opinion in Richendollar v. Diamond M Drilling

Co., 819 F.2d 124, 125 (5th Cir.1987) (en banc), in which we

held that “in order for a waterborne structure to qualify as a

‘vessel’ under § 905(b), it must be a vessel for purposes of

maritime jurisdiction.” As is noted above, the barge in this

case is not a vessel under general maritime law. Consequently,

under our holding in Rosetti it cannot be a vessel for purposes

of § 905(b). The district court, therefore, erred in denying the

defendant’s motion for summary judgment on the plaintiff's

§ 905(b) claim.

Because we find that the district court erred in denying

the defendant’s motion for summary judgment, we need not

consider the plaintiff’s contention that the court erred in

granting the defendant’s Rule 41(b) motion to dismiss. The

judgment of the district court is, therefore,

AFFIRMED.

Appendix F

Grace G. FLEMING, et al.

PORT ALLEN MARINE SERVICE, INC.

and ABC Company.

Civ. A. No. 82-29-B.

United States District Court,

M.D. Louisiana.

Dec. 9, 1982.

Tutrix of sole surviving child of welder brought action

against employer for its alleged negligence in causing the

welder’s death and against an unidentified owner of barge

being repaired. The District Court, Polozola, J., held that

exclusive remedy of tutrix was under Longshoremen’s and

Harbor Workers’ Compensation Act.

Suit dismissed.

1. Workers’ Compensation —262, 2085

Small floating work platform adjacent to dry dock

upon which welder was working at time of his death

was not primarily designed to serve in navigation;

thus, platform was not a “vessel,” and exclusive rem-

edy of tutrix of welder’s sole surviving child was

under the Longshoremen’s and Harbor Workers’

Compensation Act. Longshoremen’s and Harbor

Workers’ Compensation Act, §§ 1 et seq., 5(a, b), 33

U.S.C.A. §§ 901 et seq., 905(a, b).

2. Federal Civil Procedure 392

Although in action to recover damages arising

from death of welder, owner of barge being repaired

F-2

was unidentified but named as defendant, district

court would give plaintiff 15 days from date of opin-

ion within which to amend complaint to name proper

defendant.

Stanley K. Hurder, Baton Rouge, La., for plaintiffs.

Edward F. Kohnke, IV, New Orleans, La., for defen-

dants.

POLOZOLA, District Judge.

This matter is before the court on the motion of the

defendant, Port Allen Marine Service, Inc. (PAM), for sum-

mary judgment. No oral argument is required on this motion.

The plaintiff, Grace G. Fleming, filed this action as

tutrix of Renata M. Gibson, the sole surviving child of Leroy

Moore, who drowned while working as a welder for PAM at

PAM’s barge and towboat repair facility. While standing on

a small floating work platform adjacent to the drydock which

was holding a vessel upon which he was performing repair

work, Moore fell overboard and drowned. The plaintiff has

sued PAM for its alleged negligence in causing Moore’s death

and has also sued the unidentified owner of the barge being

repaired, which was denominated as the ABC Company in

plaintiff’s complaint.

PAM has now filed a motion for summary judgment.

PAM contends plaintiff’s suit should be dismissed on the

ground that plaintiff’s sole remedy against PAM is under the

Longshoreman and Harbor Worker’s Compensation Act,

Title 33, U.S.C. Section 901 et seq. Compensation has been

F-3

awarded to the plaintiff by an administrative law judge pursu-

ant to the LHCA and PAM has complied with the order. Thus,

PAM argues that plaintiff's suit for negligence is barred by 33

U.S.C. § 905(a). The principal issue raised by the plaintiff in

opposition to this motion is whether the struciure upon which

Moore was working when he drowned may be properly

characterized as a “vessel”. If the structure is a vessel, plaintiff

may bring this suit under 33 U.S.C.§$05(b).

For reasons which follow, the Court finds that the

structure on which Moore was working at the time of his death

is not a vessel. Therefore, plaintiff has no claim for negligence

against PAM. 33 U.S.C. § 905(a).

PAM maintains a shipyard on the Intercoastal Water-

way near Port Allen, Louisiana, for the construction of new

barges and the repair and cleaning of barges and other vessels.

Moore worked at this facility as a tacker. At the time of his

death he had been working either upon a small floating work

flat or a nearby drydock. For purposes of this motion the Court

will assume that Moore was on the work platform or pontoon

when his accident occurred. There is no dispute that Moore

met the status and situs requirements of the LCHA and was a

covered employee of PAM under that Act. The only issue

before the Court is the legal characterization of the work flat.

The work flat in question was a steel structure which

measured approximately 20 feet in length by 12 feet in width

by 28 inches in depth. It had no self-propulsion system, no

navigation lights, and no means to store materials below deck.

The work flat was not equipped with any hatches, and had oniy

two small openings in the deck to facilitate removal of water

from its interior. It was used solely to provide an auxiliary

work surface for use in PAM’s ship repair activities. In this

F-4

role the work flat did hold men and materials on the water. Its

primary role was to serve as a place for welders to stand as they

repaired ships. When movement of the structure was required,

the flat was pulled around the PAM shipyard by a tugboat.

However, the flat never left the PAM facility and was used

exclusively within PAM’s shipyard.

The Court must begin its consideration of the appli-

cable law by reviewing the often-cited case of Offshore Co. v.

Robison, 266 F.2d 769, 779-780 (5 Cir.1959), a Jones Actcase

which provided:

“Attempts to fix unvarying meanings have [sic] a firm

legal significance to such terms as ‘seamen’, ‘vessel’, ‘member

of a crew’ must come to grief on the facts. These terms have

such a wide range of meaning, under the Jones Act as inter-

preted in the courts, that, except in rare cases, only a jury or

trier of facts can determine their application in the circum-

stances of a particular case. Even where the facts are largely

undisputed, the question at issue is not solely a question of law

when, because of conflicting inferences that may lead to

different conclusions among reasonable men, a trial judge

cannot state an unvarying rule of law that fits the facts.”

However, despite the above language, the Fifth Cir-

cuit has not hesitated to affirm lower court decisions which

granted summary judgment with respect to vesse] status

where it was warranted. E.g. Atkins v. Greenville Shipbuild-

ing Corp., 411 F.2d 279 (5 Cir.) cert. denied 396 U.S. 846, 90

S.Ct. 105, 24 L.Ed.2d 96 (1969); Cook v. Belden Concrete

Products, Inc., 472 F.2d 999 (5 Cir.) cert. denied 414 U.S.

868, 94 S.Ct. 175, 38 L.Ed.2d 116 (1973). The Atkins and

Cook cases are particularly applicable to the issue now before

F-5

the Court.

In Atkins v. Greenville Shipbuilding Corp., supra, the

Fifth Circuit held as a matter of law thata floating drydock was

not a vessel. The Court affirmed a summary judgment which

had been rendered against a welder covered by the LHCA who

tried to escape the exclusive remedy provision of § 905(a) by

relying on the unseaworthiness doctrine set forth in Seas

Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed.

1099 (1946). In holding the floating drydock was not a vessel

the Fifth Circuit stated: “Mere flotation on water does not

constitute a structure a ‘vessel’ for purposes of salvage nor

warranty of seaworthiness. The elements of risk and exposure

to the hazards of the sea, necessary for the operation of and

common to both principles, is absent upon floating drydocks.”

411 F.2d at 283.

The plaintiff in Cook v. Belden Concrete Products,

Inc., supra, was injured while working on a floating construc-

tion platform upon which concrete barges were fabricated.

The platform measured 180 feet by 54 feet, had no motive

power, and was equipped with pipes and pumps to facilitate

flooding its interior compartments for the purpose of sub-

merging the platform and launching the completed barges

manufactured upon it. The flat deck barge was occasionally

moved to different positions along its owner’s dock to pick up

materials. After a set of barges was completed, the deck barge

would be towed into deeper water to launch the completed

barges. The plaintiff in Cook contended that Azkins did not

control because the platform in Cook was capable of limited

movement and was, in the normal course of its service, towed

from point to point in the navigable waters off the defendant’s

yard. However, the Fifth Circuit held that permanence of

fixation is not the criterion governing the status of floating dry

F-6

docks and similar structures. Quoting from The Robert W.

Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73 (1903),

the Fifth Circuit stated that “the “determinative factors upon

the question of jurisdiction [are] the purpose for which the

craft was construed and the business in which it is engaged.’”

472 F.2d 1011. After reviewing the record the court held that

the platform was not designed for transportation of passen-

gers, Cargo, or equipment across navigable waters. The court

also found that although some movement was necessarily a

part of the regular operation of the structure, the capability to

sustain such movement did not establish that the craft was

constructed for the purpose of navigation. Under the facts of

the case, the court in Cook found as a matter of law that the

platform was not a vessel.

As in the Cook case, this Court finds as a matter of law

that the structure upon which Moore was working at the time

of his death was not a vessel.

A careful review of decisions from other circuits and

from district courts within the Fifth Circuit also support the

Court’s conclusion. Thus, in Powers v. Bethlehem Steel Cor-

poration, 477 F.2d 643 (1 Cir.) cert. denied, 414 U.S. 856, 94

S.Ct. 160, 38 L.Ed.2d 106 (1973) a Jones Act plaintiff was

injured upon a 25 by 5 foot “raft” or “float”. Workmen used

the float as a place to stand while they chipped, sandblasted

and poured concrete around piles in water. The workmen

would move the float from its docking at a pier to the worksite

by poling or pulling on iines. The float was used to carry the

workmen and their equipment to the worksite. The First

Circuit affirmed the judgment of the lower court which found

the float was not a vessel, stating:

... A stage designed to be used in connection with

F-7

painting or repairing the side of a vessel would not

become [a vessel] merely because it was capable of

floating on the water, though it were used by workmen in

thus painting and repairing, while the same was on the

water, rising and falling with the tide, or because it could

be moved alongside or around such vessel, and while

' being moved was capable of holding persons and prop-

* * * * * * *

The purpose and business of the present craft was not

the transportation of passengers, cargo, or equipment

from place to place across navigable waters. It was tied to

the pier or its pilings virtually all of the time. Nearly as

long as the pier was wide, it was used to provide a stable

platform for men repairing defective piles. While so used,

it was lashed with the other raft to piles, planks being

placed from raft to raft, and was indistinguishable from a

permanent floating dock... Its occasional ‘voyages’ -

when towed by workboat from one pier to another - were

no different from the dragging of a section of floating dock

from one location to another. 477 F.2d at 647.

See, also, Buna v. Pacific Far East Line, Inc., 441

F.Supp. 1360 (N.D.Cal.1977); Mayfield v. Wall Shipyard,

Inc., 510 F. Supp. 605 (E.D.La.1981); Berfect v. American

Commercial Barges Lines, 509 F.Supp. 734 (E.D.La.1981).

The plaintiff relies on Slatton v. Martin K. Eby Con-

struction Co., Inc., 506 F.2d 505 (8 Cir. 1974). However, the

Court finds that the Slatton case is not applicable and is

F-8

distinguishable on its facts from the case now before this

Court.

[1] In summary, the Court finds the platform upon

which Moore was working at the time of his death was not

primarily designed to serve in navigation. Therefore, the

Court finds as a matter of law that the platform is not a vessel.

Thus, plaintiff’s exclusive remedy against PAM is under the

Longshoreman & Harbor Worker’s Compensation Act. For

these reasons, PAM’s motion for summary judgment will be

granted.

[2] The plaintiff has also sued another defendant as the

ABC Company. This defendant has not been named or served

with the complaint. Ordinarily, the Court would dismiss a suit

against an unnamed, unserved “ABC Company” defendant.

However, the Court will give plaintiff 15 days from the date

of this opiniori within which to amend the complaint to name

the proper defendant herein. If the plaintiff fails to amend the

complaint within 15 days, the Court shall dismiss plaintiff’ s

suit in its entirety.

Therefore:

ITIS ORDERED that the motion of Port Allen Marine

Services, Inc. for summary judgment be and it is hereby

GRANTED.

IT IS FURTHER ORDERED that plaintiff shall have

15 days from the date of this order to amend the complaint to

name the proper defendant herein for the “ABC Company”. If

plaintiff fails to timely amend the complaint as required by

this order, plaintiff's suit shall be dismissed in its entirety.

Appendix G

Victoria Ann Joseph MAYFIELD, Individually and as

personal representative of decedent, Keith Mayfield, and

for and on behalf of her minor child

Jeannine Marie Mayfield

WALL SHIPYARD, INC.

and Aetna Life and Casualty Company

Civ. A. No. 80-2298.

United States District Court,

E.D. Louisiana.

March 4, 1981.

An action was brought under the Longshoremen’s and

Harbor Workers’ Compensation Act to recover damages for

injuries caused by alleged vessel negligence. The District

Court, Duplantier, J., held that: (1) the steel pontoon upon

which an explosion occurred was not a “vessel,” where it was

not designed for use as a vessel and was not being used as a

vessel; (2) evenif the pontoon were a vessel, the widow did not

carry the burden of proving that decedent’s death was caused

by the employer’s negligence as a vessel owner; and (3) the

widow failed to establish that the decedent’s death was caused

by vessel negligence.

Judgment for defendants.

1. Shippinge-84(3 1/4)

In action to recover under section of

Longshoremen’s and Harbor Workers’ Compen-

sation Act for injury caused by negligence of

vessel, threshold question is whether pontoon on

which decedent was standing at time of accident

G-2

was “vessel.” Longshoremen’s and Harbor Work-

ers’ Compensation Act §§ 1 et seq., 5(b), 33

U.S.C.A. §§ 901 et seq., 905(b).

2. Shippinge—84(3 1/4)

For purposes of action to recover under

Longshoremen’s and Harbor Workers’ Compen-

sation Act section allowing recovery for negli-

gence of vessel, steel pontoon float upon which

accident occurred was not “vessel,” where pon-

toon was not designed for use as vessel and was not

being used as vessel. Longshoremen’s and Harbor

Workers’ Compensation Act §§ 1 et seq., 5(b), 33

U.S.C.A. §§ 901 et seq., 905(b).

See publication Words and Phrases for other judi-

cial constructions and definitions.

3. Shipping<—84(1)

Under section of Longshoremen’s and Harbor

Workers’ Compensation Act section allowing

recovery for injury caused by negligence of vessel,

employee can sue vessel upon which he is injured,

even though owner of that vessel was also his

employer, and for employer shipowner to be li-

able, injury must be attributable to him in his ca-

pacity as vessel owner, not as ship repairer or

builder. Longshoremen’s and Harbor Workers’

Compensation Act §§ 1 et seq., 5(b), 33 U.S.C.A.

§§901 et seq., 905(b).

4. Shipping84(1)

In action under Longshoremen’s and Harbor Work-

ers’ Compensation Act section allowing recovery

G-3

for injury caused by negligence of vessel, where

widow of decedent did notcarry burden of proving

that decedent's death was caused by employer’s

negligence as “vessel owner,” employer would

not be liable even if pontoon upon which explo-

sion occurred was vessel. Longshoremen’s and

Harbor Workers’ Compensation Act §§ 1 et seq.,

5(b), 33 U.S.C.A. §& 901 et seq., 905(b).

. Negligencee—10

Cornerstone of doctrine of negligence is behavior

which should be recognized as involving unrea-

sonable danger to others; there must be foresee-

able risk chat injury will occur, sufficiently great to

lead reasonable person to anticipate and guard

against it; in absence of such foreseeability, there

is no negligence.

. Shippinge—86(2 3/4)

In action under Longshoremen’s and Harbor Work-

ers’ Compensation Act section allowing recovery

of injuries caused by negligence of vessel, evi-

dence established that any negligence of deceased’s

employer would be shipyard negligence, rather

than vessel negligence, where alleged escape of

gas from ship repair equipment was not connected

in any way to employer’s ownership of pontoon

upon which explosion occurred. Longshoremen’s

and Harbor Workers’ Compensation Act §§ 1 et

seq., 5(b), 33 U.S.C.A. §§ 901 et seq., 905(b).

. Shipping<-84(1)

In action under Longshoremen’s and Harbor Work-

ers’ Compensation Act section allowing recovery

G-4

for injuries caused by negligence of vessel, vessel

negligence could not be based upon employer’s

failure to inspect pontoon and insure its safety,

before it was used by decedent, where there was no

foreseeable risk that gas could accumulate in

compartments of pontoon and cause explosion.

Longshoremen’s and Harbor Workers’ Compen-

sation Act §§ 1 et seq., 5(b), 33 U.S.C_A.§§901 et

seq., 905(b).

8. Shipping<—86(2 3/4)

In action under Longshoremen’s and Harbor Work-

ers’ Compensation Act section allowing recovery

for injuries caused by negligence of vessel, widow

failed to prove by preponderance of evidence that

cause of explosion was gas which had accumu-

lated below deck of pontoon, and, therefore, it had

not been established that explosion had connec-

tion with “vessel,” and there could be no vessel

negligence. Longshoremen’s and Harbor Work-

ers’ Compensation Act §§ 1 et seq., 5(b), 33

U.S.C.A. §§ 901 et seq., 905(b).

David E. Caruso, Jr., Law Offices of Frederick J.

Gisevius, Jr., New Orleans, La., for plaintiffs.

Bert M. Cass, Jr., A. Wendel Stout, Deutsch, Kerrigan

& Stiles, New Orleans, La., for defendant Wall Shipyard.

Lloyd W. Hayes, Adams & Reese, New Orleans, La.,

for defendant Aetna Life and Casualty Co.

PD i ee ili ee eee, al

G-5

DUPLANTIER, District Judge.

Plaintiff, Victoria Ann Mayfield, brought this suit as

personal representative and widow of Keith Mayfield, on

behalf of herself and her minor child. Keith Mayfield was

killed in an accident which occurred while he was working for

defendant Wall Shipyard, Inc. Plaintiff asserted claims against

Wall and its insurer under the Jones Act and 33 U.S.C. §

905(b), in the alternative. The court granted a motion for

summary judgment filed by the defendants on the Jones Act

claim, holding that the decendant was not a member of a crew

of a vessel and therefore not entitled to the protection afforded

by the Jones Act. Theclaim under 33 U.S.C. § 905(b) was tried

to the court without a jury.

[1] The threshold question is whether the pontoon on

which the decedent was standing at the time of the accident

was a vessel. To assert a 905(b) claim the injury must have

been caused by the negligence of a vessel. Unless the pontoon

was a vessel, there is no basis for asserting a claim under

905(b); plaintiff’s only claim would be under the

Longshoremen’s and Harbor Workers’ Compensation Act, 33

U.S.C. § 901 et seq., under which she is receiving benefits.

Because we find that the pontoon in question was nota vessel,

plaintiff’s suit must be dismissed.

[2] The structure at issue was a steel pontoon float, ap-

proximately twenty feet long, six to ten feet wide and four feet

deep. It had no means of self-propulsion, no navigation lights,

no equipment, no anchors, no raked bow, no railings, no crew

quarters, no feeding facilities and no bilge pumps. It had no

hatches, and nothing was ever stored beneath its deck. The

only access to the area below the deck was through two small

holes into which hoses could be inserted to pump out water

ieiineeiaietitidia S

G-6

which might accumulate below deck. It was simply a rectan-

gular steel floating platform which was shaped like a match-

box.

The two most important factors in determining whether

a structure is a vessel are the purpose for which the craft is

constructed and the business in which it is engaged. Blan-

chard v. Engine & Gas Compressor Services, Inc., 575 F.2d

1140 (Sth Cir. 1978); Hicks v. Odeco, 512 F.2d 817 (Sth Cir.

1975). The pontoon was not designed for use as a vessel but

rather only to facilitate the repair of ships and barges at the dry

dock facility. The structure was aot used as a vessel. It had two

principal uses: to serve as an extension of a dry dock to allow

access to those portions of barges being repaired which

extended beyond the dry dock work surface, and to move

material from one location to another within the shipyard.'

The pontoon had never travelled outside of the shipyard and

was never moved with men on it. To get on the pontoon,

workers would walk to the end of the dry dock and step on the

pontoon after it had been moved to the area of the dry dock

where it was needed, usually the end of the dry dock.

{n its barge and boat repairing business, defendant

uses nine of these pontoons, all of which it built itself. One or

more is usually stationed near each of its five dry docks. These

pontoons have several characteristics of a typical barge used

in commerce, the type which clearly is a 905(b) or Jones Act

‘On the occasion of the accident which caused plaintiff’s

death, the pontoon was being used to move steel plates from

the dock area to the side of the barge under repair; the plates

were too heavy and cumbersome to move through the dry

dock area.

G-7

vessel: they float, they can be moved by use of a “tug” (in this

case a work boat, often a small 20 foot boat), and as noted

previously, they are periodically used to carry on their decks

material such as steel plates from one location in the shipyard

to another, a distance usually of less than two hundred feet.

Such similarities are not sufficient, however, to classify these

pontoons as “vessels” within the provision of § 905(b) or the

Jones Act.

Considering the totality of the physical characteristics

of the pontoon, its intended purpose, and the business it was

engaged in, the court concludes that the structure on which the

decedent was standing at the time of the accident was not a

vessel.

[3] Even if the court were to find that the pontoon in

question was a vessel, the plaintiff's suit would have to be

dismissed, because she has failed to carry the burden of

proving vessel negligence. Under 905(b), an employee can

sue the vessel on which he is injured, even though the owner

of that vessel was also his employer. Smith v. Captain Fred,

546 F.2d 119 (Sth Cir.1977). For the employer/shipowner to

be liable under 905(b), the injury must be attributable to him

in his capacity as vessel owner, not as ship repairer or builder.

33 U.S.C. § 905(b). The distinction is between vessel negli-

gence and shipyard negligence.

[4] For the purposes of the plaintiff’s 905(b) claim,

defendant Wall Shipyard wears two hats: it is the owner of the

pontoon on which the accident occurred and it is the operator

of the shipyard by which the decedent was employed. Because

plaintiff has notcarried the burden of proving that the decedent’s

death was caused by its negligence as a “vessel” owner, Wall

Shipyard would not be liable under 905(b) even if the pontoon

G-8

were a vessel.

[5] The cornerstone of the doctrine of negligence is

behavior which should be recognized as involving unreason-

able danger to others; there must be a foreseeable risk that the

injury will occur, sufficiently great to lead a reasonable person

to anticipate and guard against it. In the absence of such

foreseeability, there is no negligence.

[6] The exact chain of events leading up to the accident

in this case is unclear. The only expert who testified, a chemist

employed by defendant Aetna, speculated that flammable

gases or vapors may somehow have leaked into the compart-

ments of the pontoon, though “how or when it may have

entered the compartment is not known” (Plaintiff’s Exhibit 7,

p. 4). If the expert’s speculation is accepted that the explosion

was Caused by the ignition of gas which had accumulated in

the compartments below the deck of the pontoon, that accu-

mulation would have been the result of Wall’s actions as a

shipyard operator, not as a “vessel” owner. The area below the

deck of the pontoon was never used to carry anything. The

probabie sources of the gas were manifolds or hoses contain-

ing MAPP, a gas used for burning and cutting metal in the ship

repair operation. Both the manifolds and the hoses are pieces

of equipment which were used by Wall in their capacity as

shipyard operators. Any negligence would be shipyard negli-

gence, for which Wall would not be liable under 905(b). The

alleged escape of the gas from the ship repair equipment is not

connected in any way to Wall’s ownership of the pontoon on

which the explosion occurred.

[7] Plaintiff would contend that Wall’s “vessel” neg-

ligence lies in its failure to inspect the pontoon and insure its

safety, before it was used by the decedent. For Wall to owe this

G-9

duty to inspect, there must be a foreseeable risk that the gas

could accumulate in the compartments of the pontoon and

cause the explosion. That foreseeability does not exist in this

case. As “vessel” owner, Wall had no way of anticipating that

gas might accumulate in the pontoon. The only openings on

the. pontoon through which the gas migh: enter the compart-

ments were the two eight inch holes on the deck. The likeli-

hood that a particularly malodorous gas could escape from the

ship repair equipment and enter the compartments in suffi-

cient quantity to create a risk of explosion and yet not be

detected by its odor, is not sufficiently great to lead a reason-

able man to anticipate and guard against it. This tragic explo-

sion was 2 freak accident which Wall as vessel owner could

not have foreseen, and therefore owed no duty to guard

against.

[8] Moreover, plaintiff has failed to prove by a prepon-

derance of evidence that the cause of the explosion was gas

which had accumulated below the deck of the pontoon. There

are not sufficient facts proven for the court to hold that the

cause of the explosion was gas which had accumulated in the

hold. The speculation that this was the cause of the explosion

is based on the chemist’s examination of the pontoon in the

scrap yard after it had been retrieved from the canal where it

had sunk after the explosion. The chemist speculated that the

explosion of the gases in the compartment of the pontoon

caused the deck of the larger compartment to be separated

from the pontoon.

While it is certainly a possibility that the explosion

was caused by the accumulation of gas in the hold, the plaintiff

has failed to carry the burden of proving that this was the

cause. The deck of the pontoon could have come off when the

pontoon was being raised after it sank or while it was being

G-10

towed before the sinking; there is no proof that it came off as

a result of the explosion. It is just as likely that the explosion

was Caused by the ignition of MAPP in the air in the vicinity

of the pontoon. At the time of the explosion the fuel gas was

being used in cutting and burning operations on the barge at

the dry dock where the pontoon was stationed. The explosion

occurred as soon as the decedent commenced his electric

welding operation, while he was standing on the deck of the

pontoon. Thus the fumes or vapors which ignited may have

been in the air around the pontoon, rather than inside of it. In

this situation the explosion would have had no connection

with the “vessel”, except that the pontoon served as the situs.

Thus there would be no “vessel” negligence. Claims under

905(b) cannot be based on strict liability. Hess v. Upper Mis-

sissippi Towing Corp., 559 F.2d 1030 (Sth Cir. 1977).

For the foregoing reasons, the plaintiff’s sole remedy

is under the compensation provisions of the Longshoremen’’s

and Harbor Workers’ Compensation Act, under which plain-

tiff is now receiving payments.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.