Petition for Writ of Certiorari — Harris v. Traylor Bros., Inc.

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Sunreme Court, U.S,

80-3 2% [i* FILED

7} JUL 13 1990

JOSEPH F. SPANIOL, JR,

CLERK

NO.

oo". a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

BERNARD HARRIS AND ROBERT BOYD, PETITIONERS

VERSUS

TRAYLOR BROS., INC. AND EMPLOYER'S

FIRE INS. CO., RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

VINET & VINET

Denise A. Vinet

Louisiana Bar No. 17185

11817 Bricksome Avenue

Suite A

Baton Rouge, LA 70816

Telephone: (504) 292-7410

Bie

QUESTION PRESENTED

Is a "vessel" under the Jones Act a

different issue from the questions of vessel

status under Section 905 (b) of the Longshore

and Harbor Workers' Compensation Act.

PARTIES

Bernard Harris - Petitioner

Robert Boyd - Petitioner

Traylor Brothers, Inc. - Respondent

Employers Fire Ins. Co. -

Respondent

Denise A. Vinet - Attorney for

petitioners

Joseph B. Guilbeau - Attorney for

Respondent

Robert Redwine - Attorney for

Respondent

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

OPINIONS BELOW .....+ + « « «

JURISDICTION .....+ +. «© « «

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED . .. + + © © © © © © «© © «

STATEMENT OF THE CASE .... -

REASONS FOR GRANTING THE WRIT

CONCLUS ION o 7 . 7 - . s oe a e *

PROOF OF SERVICE AND FILING ....

APPENDIX

INDEX TO APPENDICES

SUBJECT

Opinion of the Court of

Appeals in Bernard Harris

and Robert Boyd vs. Traylor

Brothers, Inc. and Employers

Fire Ins. Co., Summary

Calendar, #89-3365 and

89-3707 (5th Cir. 1990)

Opinion of the District

Court for the Eastern

District of Louisiana

dated June 2, 1989

Judgment of District

Court dated June 22, 1989

Opinion of the Court dated

March 22, 1989 ——

PAGE

Opinion of District Court

dismissing 905(b) claim of

Bernard Harris dated May

+ a: | ee

Orgeron vs. Avondale

Shipyards, Inc., 556 So.2d

582 (LA 1990)... , Ss

Affidavit of Robert Boyd

dated May 3, 1989 .... .

Affidavit of Bernard Harris

dated May 3, 1989... .

Affidavit of Bernard Harris

dated March 18, 1988

Affidavit of Robert Boyd

dated March 18, 1988

Deposition of Robert Boyd

Deposition of Benjamin

Williams .....

Deposition of Bernard

Harris a

100

107

109

115

118

TABLE OF AUTHORITIES CITED

CASES

Bernard vs. Binnings Construction

Co., Inc., 741 F 24 824 ......

Chester J. Orgeron, Jr. v. Avondale

Shipyards, Inc. 556 So.2d 582 (LA. 1990).

Durcreport vs. Baton Rouge Marine

Enterprises, Inc., 877 F. 2d 393

(Sem Gals SEO) « & 2 -e Soe es

Richendollar vs. Diamond M. Drilling,

819 F 2d (Sth Cir.) :-* 6 6 «© Sao

STATUTES

33 U.S.C. §905(b)

46 U.S.C. §688

Rule 56 of Federal Judicial Procedure

and Rules

IN THE SUPREME COURT

OF THE

UNITED STATES OF AMERICA

October Term, 1990

Bernard Harris, Robert Boyd, Petitioners

vs.

Traylor Bros., Inc. and Employer's

Fire Ins. Co., Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners, Bernard Harris and Robert

Boyd, respectfully pray that a Writ of

Certiorari issue to review the judgment and

opinion of the United States Court of Appeals

for the Fifth Circuit affirming the district

Court's Motion for Summary Judgment when

taking into account that the affidavits filed

by petitioners show that the work barges are

"vessels" within the meaning of §905(b) of

the LHWCA.

OPINIONS BELOW

The unpublished opinion of the Court of

Appeals is reported as Bernard Harris vs.

Traylor Bros., Inc. and Employer's Fire Ins.

Co., Summary Calendar #89-3365 (5th Cir.

1990) consolidated with Robert Boyd versus

Traylor Bros., Inc. and Employer's Fire Ins.

Co., Summary Calendar #89-3707 (5th Cir.

1990) and appear in Appendix A to this

petition. The unpublished written opinion of

the District Court for the Eastern District

of Louisiana appears in Appendix B to this

Petition.

JURISDICTION

The Court of Appeals' opinion in this

matter was filed on April 17, 1990. This

Court's jurisdiction is invoked under Title

28, U.S.C. § 905(b).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Jones Act, 46 U.S.C.A. App. § 688

Longshore and Harbor Workers' Compensation

Act, 33 U.S.C. § 905(b).

STATEMENT OF THE CASE

Bernard Harris and Robert Boyd were

employed by Traylor Brothers in the

construction of the Gramercy Bridge across

the Mississippi River. At the time of the

accident that gave rise to their claims

Harris was working as a welder and Boyd was

working as a crane operator at the Pier #2

location. The center of operations for both

was crane barge N-49, a flat deck barge

anchored in the Mississippi River

approximately 12 feet from the caisson.

Harris and Boyd were injured when they

were forced to jump into the Mississippi

River as the M/V Cargill struck Pier #2. As

a result the caisson filled with water and in

turn a huge water surge resulted causing the

crane to plunge into the river. They contend

that had their employer provided a radio

communication system and/or an escape boat

they would not have been injured.

Bernard and Harris made claims for

negligence, unseaworthiness, and maintenance

and cure under the Jones Act, and for vessel

negligence under Section 905(b) of the

Longshore and Harbor Worker's Compensation

Act.

Traylor moved for Summary judgment on

all claims. The Trial Court and Court of

Appeals granted the motions for summary

judgments on all claims stating that the

barge was not a vessel for purposes of both

the Jones Act and a 905(b) claim.

REASONS FOR GRANTING WRIT

Certiorari shou.ld be granted when a

state court of last resort has decided a

federal question in a way that conflicts

with the decision of another state court of

last resort or of a United States Court of

Appeals. -

The Court of Appeals for the 5th Circuit

conflicts with the most recent Louisiana

Supreme Court case entitled Chester J.

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

Camus Orgeron versus Avondale Shipyards,

Inc., 556 So.2d 582 (LA. 1990) (Appendix F)

The United States Court of Appeals Court

concluded that a vessel under the Jones Act

should be treated the same as a vessel under

the Longshore and Harbor Workers’

Compensation Act §905(b). However, in

Orgeron, supra, the Court noted that the

Jones Act definition of the word vessel

should not be substituted for the word vessel

in Section 5(b) of the Longshore and Harbor

Workers' Compensation Act.

The Orgeron facts show that Orgeron

worked on work platforms which moved men and

materials within the work area of the ship in

the Harvey Quick Repair Yard. The

transportation function was incidental to

their primary use. The barges were free

floating and were pushed and pulled wherever

needed within the job location. 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.

The Court of Appeals used the term

vessel synonymous with the Jones Act and the

Longshore and Harbor Workers' Compensation

Act. The factors used to determine both

were:

l. The structures involved were

constructed and used primarily as

work platforms;

Be 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 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.

The issue of whether the barge performed

&@ transportation function as a primary or

incidental matter relates to vessel status

under Jones Act. Ducreport vs. Baton Rouge

Marine Enterprises, Inc., 877 Fd 2d 393 (Sth

Cir. 1989) Ducrepont requires that a

structure be sufficiently mobile to serve

some transportation function for vessel

status under Section 905(b).

Richendollar vs. Diamond M. Drilling,

819 F 2d (5th Cir.) cert. denied 484 U.S.

944, 108 S. Ct. 331, 98 L.Ed 2d 358 (1987)

points out that the configuration of a water

craft is of secondary importance because

size, form, equipment and means of propulsion

do not determine jurisdiction.

A conflict exist between the Louisiana

State Supreme Court and the United States

Federal Court of Appeals. The United

States Court of Appeals in the case at hand

uses one test to determine both Jones Act

vessel status and Longshore and Harbor

Workers' Compensation Act 905(b) vessel

status.

The test to be used is the capability

test which is "every description of water

craft or other articial controversy capable

of being used as a means of transportation on

water. 10U.S.C. §3

The Court of Appeal cited Richendollar

which decided that a ship being constructed

on land was not a vessel within the admiralty

jurisdiction because it was not in or on

navigable waters and was incapable of

flotation. It relied on Bernard vs. Binnings

Construction Co., Inc., 741 F 2d 824, to

affirm Richendollar, however, it failed to

note that the language used was in the

analysis of a barge as a Jones Act vessel and

not as a Section 905(b) vessel.

As in the Orgeron case, the barge in the

case at hand was being used as a work

platform by Harris and Boyd and was capable

of transportation on water. It was also free

floating. In fact, the barge was used to

carry men and equipment around the job

location and other job locations as cited in

the affidavits.

10.

The barge was positioned with four

anchors and swayed constantly in the middle

of the Mississippi River. These men were in

constant fear of being hit by barges and had

experienced several near misses prior to the

collision. See Appendix G, H, I, J, K, Lb and

A vessel should not be treated as one in

the same for Jones Act and 905(b) purposes.

Longshoremen do not go out on the high seas

as a practical matter.

Summary judgment is appropriate where

the only rational inference to be drawn from

the evidence is that there is no genuine

issue of material fact. Rule 56 of Federal

Civil Judicial Procedure and Rules.

A genuine issue of material fact exist

taking all affidavits and depositions filed

into account. Of utmost sapectance is the

improper test used to decide this case.

Harris and Boyd were on barges that meet the

capability test. They were subject to the

11.

same perils of the sea of any seamen or other

longshoremen.

This Court should grant Certiorari here

to explicitly rule that the capability test

is the proper burden of proof under 905(b)

claims and, further, to resolve the conflict

between the 5th Circuit Court of Appeals and

the Louisiana Supreme Court.

CONCLUSION

For the reasons set forth above, a writ

of certiorari should issue to review the

judgment and opinion of the Court of Appeals

and Louisiana Supreme Court in this matter.

Respectfully submitted,

VINET & VINET

11817 Bricksome Ave.,

Suite A

Baton Rouge, LA 70816

Telephone: (504) 292-7410

Nehise net

/ attorney for Petitioners

Suisiana Bar No. 17185

13.

IN THE SUPREME COURT

OF THE

UNITED STATES OF AMERICA

Bernard Harris, Robert Boyd, Petitioners

VS.

Traylor Bros., Inc. and Employer's

Fire Ins. Co., Respondents

PROOF OF SERVICE & FILING

I, Denise A. Vinet, do swear or declare

that on this date, S oF , 1990,

pursuant to Supreme Court gen Re BMade

and 29.4, I have served a corrected copy of

the attached Petition for a Writ of

Certiorari on each party to the above

proceeding, or that party's counsel,

and on every other person required to be

Served by depositing an envelope containing

the above documents in the United States mail

14.

properly addressed to each of them and with

first-class postage prepaid.

The names and addresses of those served

are as follows:

SUTHERLAND & JUGE

Joseph B. Guilbeau

Jeffrey C. Napolitano

639 Loyola Avenue, Suite 1300

New Orleans, LA 70113

SESSIONS, FISHMAN, ROSENSON,

BOISFONTAINE, NATHAN & WILL

Robert A. Redwine

Place St. Charles

35th Floor

201 St. Charles Avenue

New Orleans, LA 70170

Sworn to and subscribed before me this

2d day of Luar.

[At W

-cn

15.

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 89-3365

(Summary Calendar)

In the Matter of the Complaint of CARGILL

EQUIPMENT LEASING CORPORATION as Owner, and

CARGO CARRIERS, INC. and CARGO EXPORT, INC., as

Bareboat Charterers and Owners pro hac vice, of

the M/V CARGILL MACMILLAN, Her Engines, etc.,

for Exoneration from or Limitation of

Liability.

BERNARD HARRIS,

Plaintiff-Appellant,

versus

TRAYLOR BROS., INC., and

EMPLOYER’S FIRE INS. Cco.,

Defendant-Appellees.

CONSOLIDATED WITH

NO. 89-3707

(Summary Calendar)

In the Matter of the Complaint of CARGILL

EQUIPMENT LEASING CORPORATION as Owner, and

CARGO CARRIERS, INC. AND CARGO EXPORT, INC., as

Bareboat Charterers and Owners pro hac vice, of

the M/V CARGILL MACMILLAN, Her Engines, etc.,

for Exoneration from or Limitation of

Liability.

ROBERT BOYD,

Plaintiff-Appellant,

versus

TRAYLOR BROS., INC. and

EMPLOYER’S FIRE INS. CO.,

Defendant~-Appellees.

Appeals from the United States District Court

for the Eastern District of Louisiana

(CA-84-5903-L (1), 85-4517, 85-4714, 85-4919,

85-5522, 85-5523, 85-5659, 85-5684, 85-5703,

86-0075, 86-440 and 86-934)

(April 17,. 1990)

‘Before POLITZ, GARWOOD, and JOLLY, Circuit

Judges.

POLITZ, Circuit Judge:”

Bernard Harris and Robert Boyd appeal

adverse summary judgments dismissing their

Jones Act and 33 U.S.C. 905(b) claims against

Traylor Brothers, Inc., their employer. We

consolidated these appeals for disposition and

now affirm.

* Local Rule 47.5 provides: "The publication

of opinions that have no precedential value and

merely decide particular cases on the basis of

well-settled principles of law imposes needless

expense on the public and burdens on the legal

profession." Pursuant to that Ruie, the court

has determined that this opinion should not be

published.

Background

Harris and Boyd were both employed by

Traylor Brothers in the construction of the

Gramercy Bridge across the Mississippi River.

At the time of the accident that gave rise to

their claims Harris was working as a welder on

the caisson for bridge Pier No. 2. Boyd was

working as a crane operator on the same pier.

The center of operations for both was crane

barge N-49, a flat deck barge moored 12 feet

from the caisson. The N-49 supported the crane

Boyd operated as well as a small hut where

Traylor employees kept their tools and

occasionally ate lunch. Harris and Boyd were

transported to and from the barge by crew boat.

While Harris would take his coffee breaks on

the barge and his lunch breaks on the river

bank, the majority of his work time was spent

welding inside the caisson, 90 feet below the

surface of the river.

Harris and Boyd complain of a collision

that occurred in November 1984 when the M/V

CARGILL MACMILLAN struck Pier No. 2. Harris,

Boyd, and several others standing on the N-49

at the time were forced to jump into the

Mississippi. The collision caused the crane on

the N-49 to fall into the river.

Claiming seaman status because of their

assignment to the barge Harris and Boyd sued

Traylor Brothers for negligence,

unseaworthiness, and maintenance and cure under

the Jones Act, and for vessel negligence under

Section 905(b) of the LHWCA. Traylor Brothers

moved for summary judgment on the Jones Act

Claims on the grounds that the N-49 was not a

"vessel." In support of its motion Traylor

Brothers offered the affidavit of Thomas

Youngblood, its project engineer at the

Gramercy site, attesting to the fact that the

N-49 was on the site of the Gramercy project

continuously from April 1983 to November 1984,

the date of the accident. In opposition Harris

submitted his affidavit and that of two co-

workers, including Boyd, which indicated, in

general terms, that some of the barges used on

the Gramercy project occasionally had been used

at other sites. The district court concluded

that the N-49 was not a vessel and dismissed

the Jones Act claims of Harris and Boyd.

Subsequéntly Employers Fire Insurance

Company, which defended Traylor Brothers

against Harris’s section 905(b) claim, moved

for summary judgment on the same grounds using

the same evidence. Harris submitted a new

affidavit by Boyd which stated that some time

before the accident the N-49 had been towed to

unload a grain barge. The district court

granted Employers’ motion and dismissed

Harris’s maritime claims in their entirety.

The court certified its judgments pursuant to

Fed.R.Civ.P. 54(b). Harris appealed. |

Employers then moved for summary judgment

against Boyd’s section 905(b) claim on the

alternative grounds that the Claim had been

untimely filed and that the N-49 was not a

vessel. The district court granted the motion

and Boyd timely appealed.° We consolidated

their appeals.

Because no post-judgment motions were filed

by Harris, his notice of appeal, filed after

the court’s decisions on the two summary

judgment motions but before entry of the

judgment thereon was timely filed. F.R.A.P. 4

(a) (2).

Employers has since conceded that Boyd’s

section 905(b) claim was timely filed.

Analysis

Harris appeals the dismissal of his Jones

Act and LHWCA section 905(b) claims; Boyd

appeals the dismissal of his claim under

section 905(b). To recover under the Jones

Act, a Claimant must demonstrate seaman status

which requires that:

(1) he must have a more or less permanent

connection with (2) a vessel in navigation and

(3) the capacity in which he is employed or the

duties which he performs must contribute to the

function of the vessel, the accomplishment of

its mission or its operation or welfare in

terms of its maintenance during its movement or

during anchorage for its future trips.

Bernard v. Binnings Constr. Co., 741 F.2d 824,

827 (5th Cir. 1984) (quoting Barrios v. Engine

& Gas Compressor Services, Inc., 669 F.2d 350,

352 (5th Cir. 1982)). Central to recovery

under both the Jones Act and the section 905(b)

cause of action for vessel negligence is the

requirement that the tort occur on a "vessel"

for maritime purposes at the time of the

accident. See Richendollar v. Diamond M

Drilling Co., 819 F.2d 124 (Sth Cir. 1987) (en

banc); Bernard 741 F.2d at 828-29. If the

N-49 was not a vessel the district court’s

dismissal of the claims must be affirmed; if it

was not, a reversal is in order.

Despite a general reluctance to remove

Jones Act cases from the trier of fact, Leonard

Vv. Exxon Corp., 581 F.2d 522 (5th Cir. 1978),

cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60

L.Ed.2d 397 (1979), summary judgment is

appropriate "’where the only rational inference

to be drawn from the evidence is that the

worker is not a seaman.’" Bernard, 741 F.2d at

828 (quoting Beard v. Shell Oil Co., 606 F.2d

915, 517 (Sth Cir. 1979)). We have affirmed

the entry of summary judgment on various Jones

Act and section 905(b) elements, including

vessel status. See, e.q., Ducrepont v. Baton

Rouge Marine Enterprises, Inc., 877 F.2da 393

a a : Aa * : : o% som %

serene

(5th Cir. 1989); Johnson v. Odeco Oil & Gas

Co., 864 F.2d 40 (5th Cir. 1989); Bernard;

Stansbury v. Sikorski Aircraft, 681 F.2d 948

(Sth Cir.), cert. denied, 459 U.S. 1089, 103

S$.Ct. 573, 74 L.Ed.2d 935 (1982).

A number of factors have been found

relevant to the determination whether a

structure is a vessel: (1) navigational aids;

(2) raked bow; (3) lifeboats and other

lifesaving equipment; (4) bilge pumps; (5) crew

quarters; (6) registration as a vessel with the

Coast Guard; (7) intentions of the owner to

move the structure on a regular basis; (8)

ability of a submerged structure to be

refloated despite years of corrosion and

deterioration; and (9) length of time a

structure has remained stationary. Johnson,

864 F.2d at 43; Hemba v. Freeport McMoran

Energy Partners, Ltd., 811 F.2d 276, 278 (5th

Cir. 1987). We consistently have held,

however, "‘’that dry docks and analogous

structures whose primary purpose is to provide

a work platform, even if the structures are

afloat, are no .. . vessels as a matter of

law.’" Ducrepont, 877 F.2d at 395 (quoting

Bernard, 741 F.2d at 830)). As developed in

the jurisprudence, three factors are perceived

as common to floating platforms that do not

constitute vessels for purposes of the Jones

Act and section 905(b):

(1) [T)he 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

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, 741 F.2d at 831.

Applying the three Bernard factors to the

evidence in the summary judgment record, the

district court determined that the N-49 was not

a vessel. We agree. The record clearly

reflects that the N-49 was used primarily as a

work platform. The affidavits of Harris, Boyd,

and Benjamin Williams (another Traylor Brothers

employee) established that the N-49 was

equipped with a small hut with bathroom

facilities where Traylor Brothers employees

changed clothes and took their coffee breaks,

navigational lights, a raked bow, an injured-

man basket, life-saving equipment, and bilge

pumps. Despite the presence of navigational

lights, however, there was no evidence of

navigational equipment; nor was evidence

presented to the effect that the N-49 had life

boats, crew quarters, or propulsion power.

Harris candidly described the N-49 as a flat

deck barge that supported a crane, that it was

kept in place by four heavy anchors, and that

it did not move during his assignment to Pier

No. 2. Further, the N-49 was moored at the

time of the accident.

Finally, the summary judgment evidence

clearly demonstrates that any movement of the

N-49 was merely incidental to its primary

purpose of serving as a work Platform. Boyd’s

deposition indicated that the N-49 was not used

to carry materials or people to or from the

riverbank. This was buttressed by the

affidavit of the project engineer, who stated

that the N-49 had not been moved since his

arrival on the site in April 1983. Boyd’s

general testimony that barges occasionally were

moved to accommodate the varying need for a

crane is consistent with the incidental nature

of the movement, if any, of the N-49.

This evidence was not contradicted by

Boyd’s subsequent affidavit in which he

described three instances of barge movement.

In one, according to Boyd, the N-49 was towed

aetna

"before the accident" to unload a grain barge.

As the district court properly concluded, this

could have occurred well before the Gramercy

bridge project began. Similarly, Boyd

described "several jobs prior to the accident

wherein the crane barge was towed to the

location of different contractors along the

Mississippi River in order to perform jobs."

Boyd’s failure to particularize the crane barge

involved and the approximate dates of the barge

movement does not sufficiently contravene the

summary judgment evidence adverse to his and

Harris’s position so as to create a disputed

material fact. Finally, that the N-49 was

towed to pick up a new crane after the accident

is readily understandable when one recalls that

the accident had caused the old crane to topple

into the Mississippi River.

Viewing the evidence presented to the

district court "through the prism of the

substantive evidentiary burden," Anderson Vv.

Liberty Lobby, iInc., 477 U.S. 242, 254, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986), and

resolving all reasonable inferences to be drawn

therefrom in favor of Harris and Boyd, we find

nothing to create a genuine issue as to whether

the N-49 was used as anything other than a work

platform during the entirety of its presence at

the Gramercy bridge project site.? Traylor

Brothers, Inc. is entitled to judgment as a

matter of law.

The judgments of the district court in

these consolidated cases are, in all respects,

AFFIRMED.

We express no opinion as to the correctness

of the district court’s alternative holding

that as a worker engaged in bridge construction

Harris was not engaged in maritime employment

and therefore could not be deemed a

longshoreman within the meaning of the LHWCA.

MINUTE ENTRY

WICKER, J.

JUNE 1, 1989

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF THE CIVIL ACTION

COMPLAINT CARGILL LEASING

CORPORATION AS OWNER, AND NUMBER 84-5903

CARGO CARRIERS, A DIVISION

OF CARGILL MARINE & CONSOLIDATED W/

TERMINAL, INC., AS BAREBOAT 85-5684, 85-4517,

CHARTERERS AND OWNERS 85-4714, 85-5522,

OF THE M/V 85-4919, 85-5523,

CARGILL MacMILLAN, her 85-5703, 85-0440,

engines, etc., FOR 85-5659, 856-0934,

EXONERATION FROM OR 86-0075

LIMITATION OF LIABILITY

SECTION "L" (1)

These lawsuits arise from a collision on

the Mississippi River on November 30, 1984,

when the M/V CARGILL MacMILLAN hit Pier No. 2

(a substructure under construction at the

Gramercy/Wallace Bridge across the Mississippi

River). The collision allegedly demolished th

pier, damaged a crane barge and related

equipment owned by Traylor Brothers, Inc.

("Traylor"), and injured Bernard Harris and

other Traylor employees, who had been working

on the pier at the time of the collision.

On March 22, 1989, the court granted

Traylor’s motion for summary judgment and

dismissed the Jones Act and general maritime

law claims of Bernard Harris and Robert Edward

Boyd.

Thereafter Employers Fire Insurance

Company ["Employers"] filed a motion for

summary judgment seeking dismissal of Bernard

Harris’ remaining claim against Traylor for

damages under 33 usc 905(b) of the Longshore

and Harbor Worker’s Compensation Act ("LHWCA")}.

The motion was submitted to the court on a

former date.

After considering the briefs of counsel

and the applicable law, the court granted

Employers’ motion for Summary judgment. The

court now issues these Supplemental written

. 4

reasons for its decision to dismiss the 905(b)

claim of Bernard Harris.

The depositions and affidavits submitted

both in support of and in opposition to the

Employers’ motion provide the following

information about Bernard Harris’ employment

with Traylor and his activities on the day of

the accident.

Bernard began working for Traylor in

September of 1984 as an iron worker on the

Gramercy Mississippi River bridge project.

After being laid off for approximately nine (9)

days, he was rehired as a pile buck welder.

His job was to weld plumb posts inside a

caisson, a caisson being a series of

interlocking steel sheets into which concrete

can be poured to construct a pier.

A crew boat took Harris and the other

welders to the crane barge each morning. The

crane barge was a flat deck barge with no

: OO EEE

engines or propellers. Besides the crane, the

barge had bathroom facilities in a small

building where the workers also changed clothes

and drank coffee. The crane barge was moored

by four anchors less than twelve feet from and

connected to the caisson by a platform across

which Harris walked. Harris would start up a

welding machine, go down the ladder "in the

hole" and start welding. Typically he would

spend the majority of his time, about six hours

a day, inside the caisson. He returned to the

crane barge only for a coffee break and lunch.

Sometimes he ate lunch on the crane barge; at

other times he took a crew boat to the

riverbank for lunch.

On the day of the accident, November 30,

1984, Harris arrived at the crane barge in the

morning and put on rain gear because the bottom

of the caisson was wet. He and a fellow welder

entered the caisson by personnel basket

operated by the crane on the barge; the other

welders remained on the crane barge to connect

a set of gauges to air and gas bottles. Harris

spent fifteen or twenty minutes in the hole,

taking measurements for plates that were to be

cut. He and his co-worker returned to the

crane barge to rewrite the measurements on a

piece of dry cardboard, before going to shore

to cut the plates. By the time Harris found a

piece of cardboard and began writing down the

measurements, he saw the M/V CARGILL MacMILLAN

approaching. He and the other welders put on

life preservers and went to the downstream end

of the crane barge. Just before the M/V

CARGILL MacMILLAN struck the caisson, everyone

on the crane barge jumped into the river.

In bringing this motion, the parties

focused on whether or not the crane barge

qualified as a vessel in navigation, under

Kimble v. Traylor Bros., Inc., No. 88-3054

summary calendar (5th Cir. June 14, 1988)

(unpublished), the theory being that if

Traylor’s work barge were not a vessel in

navigation under the Jones Act and general

maritime law, then it would not be a vessel in

navigation under 905(b) of LHWCA. Richendollar

¥. Diamond M. Drilling co., Inc,, 819 F. 2a

124, 128 (5th Cir. 1987), cert. denied,

U.S. , 108 S. Ct. 331, 98 L. Ea. 2d 358;

reh denied, __iu.s.,

L. Ed. 2d 684 (1988); Davis v. Cargill, 2c...

808 F. 2d 361 (Sth Cir. 1986).

, 108 S. Ct, 736, 98

Admittedly this Court is not dealing with

the same Traylor barge as was involved in

Kimble. However, under the test used by the

Fifth Circuit in Kimble, this Court finds that

this Traylor barge is also not a vessel in

navigation. at Pages 3 - 4 of its opinion, the

Kimble court found three considerations

relevant to the question of whether a work

barge qualified as a vessel in navigation:

(1) whether the structure is constructed

and used primarily as a work platform; (2)

whether the structure was moored at the time of

the accident; and (3) although capable of

movement and sometimes moved across navigable

waters in the course of normal operation,

whether the transportation function performed

by the structure is merely incidental to its

primary purpose of serving as a work platform.

Bernard v. Binnings Constr. Co., Inc., 741 F.

2a 824, 831 (5th Cir. 1984).

Applying those principles, this Court

finds that Traylor barge N-49 is not a vessel

in navigation for purposes of 905(b) of the

LHWCA.

(1) The court finds the Barge N-49 was

constructed and used primarily as a work

platform. Although Barge N-49 had a small

building with bathroom facilities where the men

changed clothes and drank coffee, Harris

himself characterized it as a flat deck barge

with four anchors that did not move while he

was there. [Harris affidavit of March 18, 1988;

Harris Deposition at p. 110.] Later Harris

added that a small oven, navigational lights,

an injured man basket, life Saving equipment

and bilge pumps were also on the barge. [Harris

affidavit of May 3, 1989.) This is the only

affidavit that refers to navigational lights on

the barge itself. Harris’ earlier affidavit

and that of Benjamin Williams refer to

navigational lights on the caisson. Even were

there navigational lights on the barge itself,

their presence alone is not indicative of a

vessel in navigation. Kimble at p. 2. There

is a difference between navigational lights and

navigational equipment. There is no evidence

that Barge N-49 had permanent navigational

equipment, lifeboats, or crew quarters.

(2) The Court finds that Barge N-49 was

moored at the time of the accident. [Boyd

deposition, P. 122; Harris deposition p. 40.)

(3) The Court finds that Barge N-49’s5s

transportation function was merely incidental

to its primary purpose of serving as a work

platform. The main evidence on the barge’s

transportation function came from Richard Boyd,

the barge’s crane operator. He stated that the

crane barge was at Pier 2 when the project

began in 1982-1983, and it was never used to

carry materials or people from the bank to the

pier. [Boyd deposition pp. 115 - 122.)

However, because areas within the work site had

varying demands for a crane, the barges moved

around sometimes. [Boyd deposition p. 116.]

Such movement, however, is consistent with the

primary use of a barge as a work platform.

Kimble at p. 2.

An affidavit by Thomas Youngblood, the

project engineer at the bridge pier

construction site, stated that the barge had

never been moved from the Gramercy project site

since its arrival. Boyd agreed at p. 116 of

his deposition: "I think the only time when

they first started the pier [that] the crane

barge wasn’t there was when they were floating

the caisson into place." at page 118 of that

same deposition, Boyd said that the crane barge

was moved to the bank to offload discs. Work

orders attached to Youngblood’s affidavit show,

however, that it was Barge N-47, not Barge

N-49, that was moved from the Gramercy site to

the Kaiser dock to load equipment before the

accident. Furthermore, even had Barge N-49

offloaded Supplies, such a trip is not

inconsistent with its being a work platform

rather than a vessel in navigation. Kimble at

page 2.

Three other instances of barge movement

appear in Boyd’s affidavit of May 3, 1989,

submitted in opposition to this motion for

summary judgment on the 905(b) claim.’ None

contradict the characterization of the Barge

N-49 as a work platform.

I know that the crane barge N/601 (N-49) was

towed to Ryan Walsh before the accident of

November 20, 1984 in order to perform a job for

a company not related to the bridge work. This

job entailed unloading a grain barge because

the barge was unable to be moved in the low

water conditions at that time.

I know that after the accident of November

30, 1984 the crane barge was towed to Harvey,

Louisiana, on a fourteen (14) hour trip in

order to pick up a Manitowoc 4000W crane.

I know that I performed several jobs prior

to the accident wherein the crane barge was

towed to the location of different contractors

along the Mississippi River in order to perform

jobs. In return for this job performance,

Traylor Brothers received favors from these

contractors which included crawfish boils, fish

frys, receiving lumber and gravel and many

other goods and services. Boyd affidavit of

May 3, 1989.

Towing Barge N-49 to Harvey to pick up a crane

is compatible with transportation being an

incidental jie tein to the barge’s primary

purpose of serving as a work platforn. Barge

N-49 had to replace the Manitowoc crane which

had- toppled into the Mississippi River at the

time of the accident. But for "before" and

"prior to" the accident, no dates are given for

the Ryan Walsh and other jobs along the

Mississippi River. They could have been well

before the Gramercy bridge project even began.

Neither does Boyd identify the specific crane

barge engaged in other contracting jobs along

the Mississippi River. AS proven by the work

Sheets attached to Youngblood’s affidavit,

Barge N-49 was not the only barge working the

Gramercy bridge project.

"(Ijn ruling on a motion for summary

judgment, the judge must view the evidence

Presented through the prism of the Substantive

evidentiary burden." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505,

2513 (1986). The mere existence of some

alleged factual dispute between the parties

will not defeat an otherwise properly supported

motion for summary judgment. Id. at 2510.

In this case even with all justifiable

inferences drawn in favor of the non-movant,

there is no evidence that Barge N-49 was used

other than as a work platform from the time

that it moved onto the Gramercy bridge

construction site. The fact that at some

unspecified time before the accident the barge

may have been used to unload a single grain

barge is not a material fact which would defeat

an otherwise properly brought motion for

summary judgment. Compare Brunet v. Boh Bros.

Constr. Co., Inc., 715 F. 2d 196 (5th Cir.

1983) [work platform moved to different

construction sites within the Gulf four times

during the six months preceding the accident].

Accordingly, this Court grants Employers’

motion for Summary judgment dismissing the

plaintiff Harris’ 905(b) action because Barge

N-49 was not a vessel in navigation under the

Act.

Furthermore even were the Court to find

that Barge N-49 was a vessel in navigation

under the Act (which it does not), Employers is

nonetheless entitled to have Harris’ 905 (b)

Claim dismissed because Harris was engaged in

building a bridge and was not engaged in

maritime employment at the time of this

accident.

905(b) of the LHwca Provides in pertinent

Part: "In the event of injury to a person

covered under this Chapter caused by the

negligence of a vessel,...."

In construing the coverage provisions of

the Act, 33 USC 903(a), [the Fifth]

circuit has identified three controlling

jurisdictional requirements: (1) The

injured claimant must have "employee"

status as defined by 33 USC 902(3): (2)

his injury must have occurred on the

"navigable waters" situs described in

903(a); and (3) the claimant’s employer

must qualify as an "employer" within the

meaning of 33 USC 902(4). Alford: v.

merican d iv

‘

642 F. 2a [807] at 810-11,] mod. in part,

655 F. 2d 86 (5th Cir.), mod., 668 F. 2d

791 (Sth Cir. 1981), cert. denied, 455

U.S. 927, 102 S. Ct. 1292, 71 L. Ed. 2a

472 (1982)]})? Hullinghorst Industries,

inc. v. Carroll, 650

The addition of an employee status

requirement in the 1972 amendments has rendered

the employer status requirement of the former

Act "largely tautological." Hullinghorst

Industries, Inc. v. Carroll, 650 F. 2d 750, 754

(Sth Cir. 1981) If the injured claimant who

must himself be engaged in maritime employment

meets the status and situs requirements in

903(a) and 902(3), then his employer

automatically qualifies as a statutory employer

under 902(4); if the claimant fails to meet

either of those requirements then the

employer’s qualifications under the Act are

immaterial. Hullinghorst Industries, Inc.,

discussion in text at note 8, 650 F. 2d 758;

ompson v. Crawford, 631 F. 2d 1214,

1216 & n. 5 (Sth Cir. 1980).

F. 2d 750, 754 (Sth Cir. 1981), cert,

denied, 454 U.S. 1163, 102 s. Ct. 1037, 71

L. Ed. 2d 319 (1982).

Thus a worker Claiming under the Act must

Satisfy both a Status and a situs test. Herb’s

Ww i ne. v. » 470 U.S. 414, 415, 105,

S. Ct. 1421, 1423, 84 L. Ra. 2d 406 (1985).

Bernard Harris met the situs requirement

when he jumped into the Mississippi River. As

a welder for the Gramercy bridge construction

project however, Bernard Harris does not meet

the status requirement of the LHWCA.

902(3) of the Act, 86 Stat. 4251, 33

U.S.C. 902(3) provides:

The term "employee" means any person

en ed i itime oyment, including

any longshoreman or other person engaged

in longshoring operations, and any

harborworker including a ship repairman,

shipbuilder, and ship breaker, but such

term does not include a master or member

of a crew of any vessel, or any person

tons net. (Emphasis added.)

The Act does not define the term "maritime

employment," and "({mjuch judicial ink has been

applied in attempting to construe the scope of

‘employee’ status.’" Alford, 642 F. 2d at 81l.

See e.g. Hullinghorst Industries, Inc., supra

[a carpenter was covered under the Act because

he was involved in scaffolding work on a pier

repair project involving a turntable used by

longshoremen in loading and unloading of

ships]; Trotti & Thompson v. Crawford, 631 F.

2d 1214 (5th Cir. 1980) [a land-based carpenter

who was injured while constructing a pier”

which was to be used in the loading and

unloading of vessels was covered under the

> This case involves a different kind of pier

from that at issue in Trotti. The pier in

Trotti was for loading and unloading vessels;

therefore work on its construction was related

to the loading and unloading of vessels and

within the ambit of LHWCA coverage. The pier

in this case was for a bridge designed

exclusively for vehicular traffic.

SEES rrr

Act); Odom Construction co., Inc. v. United

States Department of Labor, 622 F. 2d 110 (5th

Cir.), cert. denied 450 U.s. 966, 101 S. ct.

1482, 67 L. Ed. 2d 614 (1980) [An employee

injured while relocating fallen concrete blocks

used for mooring barges and other vessels was

covered because the job being performed Clearly

had a "realistically significant relationship

to ‘traditional activity involving navigation

and commerce on navigable waters.’" 622 F. 2d

at 113); ingalls Shipbuilding Corp. v. Morgan, -

551 F. 2d 61, 62 (Sth Cir.), cert. denied 434

U.S. 966, 98 Ss. Ct. 508, 54 L. Ed. 2a 453

(1977) [claimant was covered under the Act for

injuries received while he was Cleaning a steel

Plate that would later be used for construction

or repair of ships).

The status requirement was added by

Congress with the extension of the LHWCA

Shoreward in 1972. The status requirement

extends coverage to occupations beyond those

specifically named by the statute. See Alabama

bry Dock & Shipbuilding co. v. Kininess 554 F.

2d 176, 178 (5th Cir.), cert. denied, 434 U.s.

903, 98 S. Ct. 299, 54 L. Ed. 2a 190 (1977)

(repair and maintenance of machines used in

shipbuilding is an essential aspect of the

business}; ipbuilding Cor -, Supra.

(There is no distinction between repair and

construction of Ships.]. It is equally true

that "the legislative history indicates that

Congress did not intend to "exclude other

employees traditionally covered." Director,

Etc. v,. Perini North River Amscciates. 459 U.S.

297, 325, 103 s. Ct. 634, 651, 74 L. Ed. 2a 465

(1983) [To buila the foundation of a sewage

treatment Plant that would extend over the

Hudson River, caissons had to be Placed in the

river and filled with concrete. Churchill, a

Perini employee who was in charge of all work

cei

performed on the cargo barge, was on the deck

giving directions to the crane operator

unloading a caisson from a supply barge when a

line used to keep the caissons in position

snapped and struck him. Undoubtedly Churchill

would have been covered by the LHWCA before

1972]; Boudreaux v. American ny

680 F. 2d 1034, 1054 (5th Cir. 1982), cert.

denied, 459 U.S. 1170, 103 S. Ct. 815, 74 L.

Ed. 2d 1014 (1983) [The 1972 Act did not

"‘diminish the traditional coverage of workers

injured at work on navigable waters, who under

the Act have been and are considered to be in

‘maritime employment’"].

However, bridge workers were not

unequivocally included within the Ferimeters of

"maritime employment" before the Act’s

amendment in 1972.°* See generally, Posevec vy.

t Chapma fe) fe) , 106 F. Supp.

170 (D.C. N.Y. 1951) [A watchman drowned when

* The Court is aware that the Fourth Circuit

Court of Appeals looks at the "tortured history

of employee coverage under the LHWCA"

differently. LeMelle v. B.F. Diamond

, 674 F. 2a 296, 298 (4th

Cir. 1982) [A concrete finisher, working over

navigable waters on a bridge designed in part

as an aid to navigation, was covered under the

Act.]. However, this Court is not bound by the

LeMelle decision and finds the Fifth Circuit

case cited therein distinguishable. [In dw

Contra Co. v. O’Keefe, 414 F. 2q 657 (5th

Cir. 1968), the decedent was employed as a

laborer on a bridge building project.

he was guarding a barge loaded with sand and

gravel which was to be used to construct a

bridge. While the bridge was an indirect aid

to navigation and commerce, the work was

basically local interest and not maritime in

quality); Massman Construction v. Bassett, 30

F. Supp. 813 (E.D. Mo.), rev’d on other

grounds, 129 F. 2d 239 (8th Cir. 1940), cert.

denied, 314 U.S. 648, 62 S. Ct. 92, 86 L. Ed.

520 (1941), and the cases cited therein at 30

F. Supp. 815 [an employee who worked for a

contractor erecting a dam to create nine foot

channel in Mississippi River and who was

fatally injured while standing in the bottom of

a cofferdam in the Mississippi River was not

engaged in maritime employment]. But see Davis

v. Department bor, 317 U.S. 249, 63 S. Ct.

225, 87 L. Ed. 246 (1942) [Structural steel

worker involved in dismantling an abandoned

drawbridge drowned when he fell or was knocked

PUBLISHER'S NOTE

THE FOLLOWING PAGES ARE UNAVAILABLE

FOR FILMING:

mos SS

admonition that not everyone on a covered situs

automatically satisfies that status test."

Herb’s Welding, Id. at 425, 105 S. Ct. at 1428.

When Harris jumped into the Mississippi

River, he had just taken measurements inside

the caisson and was recopying those

measurements on the Traylor barge, before

returning to shore to cut the metal plates to

those specifications. He was not engaged in

shipbuilding or repair; he was not loading or

unloading a vessel; nor were such activities

ever required of him as a pile buck welder.

The Court finds that Harris was not engaged in

maritime employment at the time of his alleged

injury; nor did his regular duties qualify him

aS an amphibious worker. Consequently and for

these reasons, Harris does not meet the status

test for an employee under 902(3); he is not a

"person covered under (the LHWCA])" and he may

not bring a 905(b) action against Traylor.

New Orleans, Louisiana, this lst day of

June, 1989.

VERONICA D. WICKER

UNITED STATES DISTRICT JUDGE

~~ he cr

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF THE CIVIL ACTION

COMPLAINT OF CARGILL LEASING

CORPORATION AS OWNER, NUMBER 84-5903

AND CARGO CARRIERS, A

DIVISION OF CARGILL MARINE &

TERMINAL, INC. AS BAREBOAT SECTION "LL" (1)

CHARTERERS AND OWNERS PRO

HAC VICE OF THE M/V/ CARGILL

MACMILLAN, her engines, etc.

FOR EXONERATION FROM OR

LIMITATION OF LIABILITY

CONSOLIDATED WITH NOS.

85-5684, 85-0440,

85-4517, 85-4714,

85-4919, 85-5522

85-5523, 85-5659

85-5703, 86-0075,

86-0934

JUDGMENT

A motion for Summary Judgment seeking

dismissal of the Jones Act and general maritime

law claims of Bernard Harris and Robert Edward

Boyd filed by Traylor Brothers, Inc. was heard

On March 22, 1989. Present were the following:

ie Denise Vinet, representing Bernard

Harris and Robert Edward Boyd

2. Bernard Harris

3 Robert Edward Boyd

4. Robert Redwine, representing Traylor

Brothers, Inc.

Subsequently a Motion for Summary Judgment

seeking dismissal of Bernard Harris’ claims

preserved under 33 U.S.C. 905(b) of the

Longshore and Harborworker’s Compensation Act,

was brought by Employer’s Fire Insurance

Company and submitted to the court on the

memoranda of counsel. The parties were

represented as follows:

1. Joseph B. Guilbeau for Employer’s

Fire Insurance Company

, Denise Vinet for Bernard Harris

Based on the court’s review of the motions

and memoranda filed, the arguments of counsel,

the facts and applicable law;

APPENDIX D

In the Matter of the Complaint of

CARGILL EQUIPMENT LEASING CORPORATION

as owner, and CARGO CARRIERS, INC. and

CARGILL EXPORT, INC., as bareboat

charterers and owners pro hac vice, of

the M/V CARGILL MACMILLAN, her engines,

etc., for exoneration from or limitation

of liability.

INTERVENTION 86-440, 85-4517,

Traylor Brothers, Inc. 85-4919, 85-4714,

Commercial Union 85-5523, 85-5659,

Insurance Co. 85-5703, 85-5522,

85-75, 86-934

Wednesday, March 22, 1989

10:00 A.M.

MOTION OF TRAYLOR BROS., INC. FOR SUMMARY

JUDGMENT DENYING THE OWNER OF THE M/V SPARTAN

THE RIGHT TO LIMIT LIABILITY TO THE VALUE OF

THE VESSEL.

ARGUED. DENIED AT THIS TIME.

MOTION OF TRAYLOR BROS. FOR SUMMARY JUDGMENT ON

JONES ACT AND UNSEAWORTHINESS. MOTION GRANTED.

APPENDIX E

IN THE MATTER OF THE CIVIL ACTION

COMPLAINT NUMBER 84-5903

CARGILL LEASING C/W: 85-5684, 85-4517

CORPORATION AS OWNER, 85-4714, 85-5522

AND CARGO CARRIERS, ETC., 85-4919, 85-5523

et al 85-5703, 85-0440,

85-5659, 86-934,

86-0075

SECTION L (1)

This matter was submitted to the Court on

a former date.

After considering the pleadings, the

briefs of counsel and the applicable law:

IT IS ORDERED that motion of Employers

Fire Insurance Company for summary judgment

dismissing the 905(b) claim of Bernard Harris

against Traylor Brothers, Inc. is GRANTED.

Written reasons to follow.

New Orleans, Louisiana this 11th day of

May, 1989.

UNITED STATES DISTRICT JUDGE

=. -—e ¢ * 4 OO m.%

APPENDIX F

556 SOUTHERN REPORTER, 2d SERIES

(pages 582 - 588)

Chester J. ORGERON, Jr. and his wife,

Connie E. Lynn Camus Orgeron

AVONDALE SHIPYARDS, INC,

No. 89-C=-1455,

Supreme Court of Louisiana

February 5, 1990.

Shipyard worker brought negligence action

against owner of work barges. The Twenty-

Fourth Judicial District Court, Parish of

Jefferson, James L. Canella, J., entered

judgment for Owner, and the Court of Appeal,

542 So.2d 640, affirmed. The Supreme Court,

Watson, J., held that work barges were

"vessels" within meaning of Act.

Reversed and remanded.

1. Shipping - 84(1)

Worker’s Compensation - 52

As humanitarian and remedial measure,

Longshore and Harbor Workers’ Compensation Act

must be liberally construed. Longshore and

Harbor Workers’ Compensation Act, 1 et seq., as

amended, 33 U.S.C.A. 901 et seq.

2. Seamen - 29(5.3)

Shipping - 84(1)

Longshore and Harbor Worker’s Compensation

Act and Jones Act furnish mutually exclusive

remedies; Jones Act only applies to seamen who

are members of vessel’s crew, aid in its

navigation, and have more or less permanent

attachment to vessel or fleet of vessels, while

recovery under LHWCA can be based upon

transitory contact with vessel. Longshore and

Harbor Workers’ Compensation Act, 5(b), as

amended, 33 U.S.C.A. 905(b); Jones Act, 46

U.S.C.A.App. 688.

3. Shipping - 84(1)

Injured workers have lesser recovery under

compensation remedy of Longshore and Harbor

Workers’ Compensation Act than seamen under

negligence remedy of Jones Act; while seamen

have right to maintenance anda cure, liberal

remedy afforded by Jones Act, and strict

liability cause of action for unseaworthiness,

' remédy for unseaworthiness is unaVailablé to

longshore and harbor workers; however,

longshore or harbor worker may bring action

against vessel owner as third party to recover

damages for injury caused by negligence of

vessel as well as claim for compensation

against employer. Longshore and Harbor

Workers’ Compensation Act, 5(b), as amended, 33

-U.8.C.A. 905(b); Jones Act, 46 U.S.C.A.App.

688.

4. Shipping - 84(3)

Warranty of seaworthiness only applies to

vessels “in navigation," and injured worker

must be engaged in traditional ship’s work to

maintain cause of action for unseaworthiness.

5. Statutes - 223

In construing terms of Longshore and

Harbor Workers’ Compensation Act, other

statutes having other purposes are of little

aid. Longshore and Harbor Workers’

Compensation Act, 1 et seq., as ih: 33

U.S.C.A. 901 et seq.

6. Shipping - 1

Under general maritime law’s "capability

test" for vessel status, "vessel" is every

description of watercraft or other artificial

contrivance used or capable of being used as

means of transportation on water. 1 U.S.C.A. 3.

See publication Words and Phrases

for other judicial constructions and

definitions.

7. Admiralty - 11

Shipping - 1

Historically, ship construction is not

regarded as traditional maritime activity --

ship under construction has not evolved into

"vessel" status.

See publication Words and Phrases

for other judicial constructions and

definitions.

8. Shipping - 1

Barge is "vessel" within meaning of

Longshore and Harbor Workers’ Compensation Act

even when it has no motive power. Longshore

and Harbor Workers’ Compensation Act, 5(b), as

amended, 33 U.S.C.A. 905(b).

9. Shipping - 1

Test for "vessel" status under Longshore

and Harbor Workers’ Compensation Act is

"modified Capability test," i.e., there must be

maritime situs and significant relationship to

traditional maritime activity and structure

must be sufficiently mobile to serve some

transportation function. Longshore and Harbor

Workers’ Compensation Act, 5(b), as amended, 33

U.S.C.A. 905(b); 1 U.S.C.A. 3.

: a oo* ms ° , So . .

See publication Words and Phrases

for other judicial constructions and

definitions.

10. Shipping - 1, 84(1)

Floating work barges between which

shipyard worker fell were "vessels" within

meaning of Longshore and Harbor Workers’

Compensation Act, and worker could maintain

action against barge owner for negligence;

barges were capable of transportation on water,

albeit nonmotive, were floating on navigable

water at time of accident, were being used for

ship repair, and were frequently moved from

place to place. Longshore and Harbor Workers’

Compensation Act, 5(b), as amended, 33 U.S.C.A.

905(b); 1 U.S.C.A. 3.

See publication Words and Phrases

for other judicial constructions and

definitions.

Owen Bradley, Michael R. Guidry, Law

Offices of Owen J. Bradley, Frederick W. Swain,

ae «em * ~~ aX age Oe 1

Loyola Law School, New Orleans for applicant.

Patrick H. Patrick, Edward J. Koehl, Jr.,

Jones, Walker, Waechter, Poitevent, Carrere &

Denegre, New Orleans for respondent.

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.'

ae 23 U.8.¢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 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 damages 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 providing 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 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.

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.

ov iat

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-

sevén 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.

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 all 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 floating

rather than permanently attached in one

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?

A: Yes, it carries the repair work that we

do.

Q: It carries heavy equipment around that

yard; doesn’t it?

A: No more than what it can handle on the

wheel and rudders.

Q: Okay, but they were pretty heavy; aren’t

they?

A: 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 workers’

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.

location; they 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

3. "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 International Dictionary

223 (1976). 7

4. Q: Were life vests ever used by anyone

on those barges?

A: You were always required to use life

vest when you was on that pontoon and it

was moving.

TR. 352.

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 the plaintiff

did not prove vessel status, the court did not

consider negligence, causation or damages. The

court of appeal affirmed’ on the ground that

the structures were work platforms, which

incidentally performed some transportation

functions. A writ was granted to consider the

judgment of the court of appeal.°

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

6. 550 So.2da 619 (La.1989).

Le i A ne

LAW AND CONCLUSION

{1} 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 a 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

avetn Kiver Association

S.Ct. 634, 74 L.Ed.2d 465 (1983).

[2] The LHWCA and the Jones Act® furnish

mutually exclusive remedies. Swanson v. Marra

Bros., 328 U.S. 1, 66 S.Ct. 869, 90 L. Ea. 1045

(1945). The Jones Act Only applies to seamen

¥- 33 U.8.¢€. 903(a).

8. 46 U.S.C.App. 688.

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 5(b) of the LHWCA can be based —

transitory contact with a vessel.

([3,4] Injured workers have a lesser

recovery under the compensation 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 unseaworthiness.

The warranty of seaworthiness only applies to

vessels "in navigation," and the injured worker

must be engaged in traditional ship’s work.

9. Barrett v. Chevron, U.S.A., Inc., 781 F.2d

1067 (5th Cir. 1986).

Under the 1972 amendments 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. '®

(5) 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

construing the Act’s terms, “other statutes

having other purposes" are of little aid.

South Chicago Coal & Dock v. Bassett, 309

10. In a negligence suit against a vessel under

33 U.S.C. 905(b), liability of the vessel is

not "based upon the warranty of seaworthiness."

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

737 (1940). Thus the Jones act'’ definition of

the word vessel should not be substituted for

the word vessel in Section 5(b) of the LHWCA.

[6] Under general maritime law, a vessel

is “every description of watercraft or other

artificial contrivance used or 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

11. 46 U.S.C.App. 688.

12. 1 U.S.C. 3.

(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 commerce 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 (2a Cir.1983), cert. denied, 465

U.S. 1078, 104 S.ct. 1439, 79 L.Ed.2da 760

(1984).

(7) After McCarthy, Judge Tate considered

vessel status under Section 905(b) in Hall vy.

Hvide Hull] No. 3, 746 F.2d 294 (5th 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 (5th 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 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).

Hall distinguished Lowe v. Ingalls

sndadeid hishe, [va a aaa 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.

Following footnote 20 of Perini”, Hall decided

that the remedies of Act-covered employees

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,

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.2a 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 ecutive 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." i6., at

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

Jurisdiction in tiv was

predicated on 28 U.S.c. 1331(1) [28 U.S.c.s

1333(1) ], which provides that the federal

district courts have original and exclusive

jurisdiction of "(ajny 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 admiralty

tort jurisdiction to the crashes of

aircraft" in a situation where "the fact

that an aircraft happens to fall in

navigable waters, rather than on open land,

is wholly fortuitous." 409 U.S., at 265,

266, 93 S.Ct., at 503, 504, 34 L.Ed.2d, at

465, 466. Although the term "maritime"

occurs both in 28 U.S.C. 1333(1) [28

U.S.C.S 1331(1)] and in 2(3) of the Act,

these are two different statutes "each with

different legislative histories and

jurisprudential interpretations over the

course of decades." Boudreaux v. American

Workover, Inc., 680 F.2d 1034, 1050 (CA5

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.

there is admiralty jurisdiction only when a

wrong occurs on navigable waters, situs, and

bears a significant relationship to traditional

maritime activity, nexus." See ‘s W

Inc. v. Gray, 470 U.S. 414, 105 S.ct. 1421, 84

L.Ed.2d 406 (1985). Historically, ship

construction 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., see. 4 772

F.2d 1007 (1st 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

15. As a result of Richendollar, Hall is no

longer a reliable precedent with regard to

jurisdiction. Molett v. Penrod Drilling Co.,

872 F.2d 1221 (5th Cir.1989).

action must satisfy the Executive Jet

requirements for admiralty jurisdiction.

Richendollar, an en _ banc opinion from the Fifth

Circuit authored by Judge Politz, decided that

a ship being constructed on land was not a

vessel within the admiralty jurisdiction of the

federal courts because it was not in ai al

navigable waters and was incapable of

flotation.

On its facts, Hall can be distinguished

from Richendollar. The Hall 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 @etermine jurisdiction.

After Richendollar, the Fifth Circuit

- *

decided Rosetti Vv. Avondale Shipyards, Inc.

821 F.2d 1083 (5th Cir.1987), cert. denied, 484

U.S. 1008, 108 s.ct. 703, 98 L.Ed.2a 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, '® ichendo and Rosetti do

not control this issue of vessel status,

16. Since ship construction is defined as

maritime employment in the LHWCA, it is

because the barges on which Orgeron was working

were not under construction. They were

finished products used in the construction of

other vessels. The barges were capable of

navigation, were afloat on navigable waters and

performed a transportation function. Orgeron

himself was engaged in ship repair, which has

generally been regarded as a traditional

maritime activity.

u nt _ v. u a

Enterprises, Inc., 877 F.2d 393 (5th Cir.1989)

considered vessel status separately under the

Jones Act and Section 5(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 (5th

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 Bernard v.

onstruction Compan nec., 741 F.2d

824 (Sth Cir.1984), which stated that the work

platform at issue 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. 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. The issue of whether the barge

performed a transportation function as a

Primary or incidental matter relates to vessel

Status under the Jones Act."’

17. 877 F.2d 395.

[8] Ducrepont held that a barge is not a

905(b) vessel when it is firmly moored, seldom

moved, not used for navigation 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. Norton

v. Warner Co., 321 U.S. 565, 64 S.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 (i907). 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.

(9, 10} In the Fifth Circuit, the test

for vessel status under Section 5(b) of the

LHWCA is the capability test in 1 U.S.C. 3, as

modified by Richendollar and Rosetti hold that

a Section 905(b) vessel must satisfy the

Executive Jet requirements for admiralty

jurisdiction, a maritime situs and a

significant relationship to traditional

maritime activity. Ducrepont requires that a

structure be sufficiently mobile to serve some

transportation function 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 transportation 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 capability 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

periodically 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 negligence, causation and damages,

the case is remanded to the court of appeal for

consideration of those questions on the record.

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 G

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF THE CIVIL ACTION

COMPLAINT OF CARGILL

LEASING CORPORATION NUMBER: 84-5903

AS OWNER, AND CARGO

CARRIERS, A DIVISION SECTION "L" (1)

OF CARGILL MARINE &

TERMINAL, INC., AS CONSOLIDATED WITH:

BAREBOAT CHARTERERS AND

OWNERS PRO HAC VICE NOS.:

OF THE M/V CARGILL 85-5684, 85-0440,

MACMILLAN, her engines, 85-4517, 85,4714,

etc., FOR EXONERATION 85,4919, 85,5522,

FROM OR LIMITATION OF 85,5523, 85,5659,

LIABILITY 85,5703, 86-0075,

86-0934

AFFIDAVIT OF ROBERT BOYD

Before me, the undersigned authority, came

and appeared:

— ROBERT E. BOYD

who being by me first duly sworn, deposed as

follows:

From approximately November of 1981

through April of 1985 I was. employed by Traylor

Brothers, Inc. as a laborer and then a heavy

equipment operator and in that capacity, I have

personal knowledge of the facts set forth

herein.

I worked as a heavy equipment operator on

Barge N/601 (N-49) as the crane operator.

I know that the crane barge N/601 (N-49)

was towed to Ryan Walsh before the accident of

November 30, 1984 in order to perform a job for

a company not related to the bridge work. This

job entailed unloading a grain barge because

the barge was unable to be moved in the low

water conditions at that time.

I know that after the accident of November

30, 1984 the crane barge was towed to Harvey,

Louisiana on a fourteen (14) hour trip in order

to pick up a Manitowoc 4000W crane.

I know that I performed several jobs prior

to the accident wherein the crane barge was

towed to the location of different contractors

along the Mississippi River in order to perform

jobs. In return for this job performance,

Traylor Brothers received favors from these

contractors which included crawfish boils, fish

frys, receiving lumber and gravel and many

other goods and services.

Prior to this accident I was in fear of

being hit by vessels in barges in tow on at

least three occasions. The barge sustained at

least one bump prior to the accident.

There was no means of communication to the

workers inside of the caisson nor was there a

means of communication aboard the crane barge

before and after the accident.

» |

There was no safety boat provided to the

workers on the crane barge before or after the

accident.

9. >

The crane barge contained a 3900 Manitowoc

crane sii was approximately 60 feet wide by 120

feet long. It contained a small building which

was used to store tools, change clothes, drink

coffee, get out of the weather and eat lunch.

It also provided the men with a little oven to

heat their lunch if they so desired. The crane

barge also contained bathroom facilities. Most

of the time we were required to stay on the

barge all day. The barge was equipped with

navigational lights and had an injured man

emergency basket and life saving ring aboard.

The barge was raked and had bilge pumps aboard.

10.

The crane barge contained four anchors

which were used to hold the barge in place at

the job site. The barge swayed constantly

because of the wave action from oncoming

traffic in the Mississippi River.

- 22.

My job responsibilities included operating

the crane, keeping the barge clean, fueling the

crane, generators and welding machines and

assisting in anchoring the barge.

I make these statements on my own personal

knowledge and I am competent to testify to the

matters stated above.

WITNESSES:

ROBERT E. BOYD

SWORN TO AND SUBSCRIBED, before me,

Notary, this 3rd day of May, 1989.

Notary Public

—— tlt ‘(i‘i‘<Sété;~S

APPENDIX H

—

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF THE

COMPLAINT OF CARGILL

LEASING CORPORATION

AS OWNER, AND CARGO

CARRIERS, A DIVISION

OF CARGILL MARINE &

TERMINAL, INC.,°- AS

BAREBOAT CHARTERERS AND

OWNERS PRO HAC VICE

OF THE M/V CARGILL

MACMILLAN, her engines,

etc., FOR EXONERATION

FROM OR LIMITATION OF

LIABILITY

CIVIL ACTION

NUMBER: 84-5903

SECTION "L" (1)

CONSOLIDATED WITH: |

NOS.:

85-5684, 85-0440,

85-4517, 85,4714,

85,4919, 85,5522,

85,5523, 85,5659,

85,5703, 86-0075,

86-0934

AFFIDAVIT OF BERNARD HARRIS

Before me, the undersigned authority came

and appeared:

BERNARD HARRIS

who being by me first duly sworn, deposed as

follows:

In September, 1984 I was employed as an

iron worker for Traylor Brothers, Inc. on the

Gramercy bridge project, Mississippi River.

2. ~

I was laid off for approximately nine (9)

days and was assigned a new job as a pile buck

welder.

I performed most of my tasks aboard the

crane barge and I spent a total of 6 hours in

the caisson during my new work assignment as

pile buck welder.

Prior to being hired as a pile buck welder

I was classified as an iron worker earning

$12.50 per hour. My new work assignment as a

pile buck welder paid me $14.00 per hour.

I was performing a substantial part of my

work aboard the crane barge and I was

continuously subject to the perils of the

Mississippi River in that I was in constant

fear of being hit by barges in tow.

Prior to this accident, I was put in fear

of being hit by vessels and barges in tow on at

least three occasions. It is my understanding

that the United States Coast Guard was notified

-about these frequent close calls.

The crane barge contained a small building

used by we crew members to change clothes and

drink coffee. It also contained a small oven

for the men to heat their lunches if they so

desired. The crane barge also contained

bathroom facilities, navigational lights, life

saving equipment, injured man basket, bilge

pumps, and 4 anchors.

The crane barge was secured to the bottom

of the Mississippi River by 4 anchors. The

barge swayed constantly because of wave action.

There was no means of communication for

the workers inside of the caisson; nor was

there means of communication aboard the crane

barge on the day of the accident. The barge

did not contain a safety boat for emergency

situations. |

10.

I was required to eat lunch aboard the

barge most of the time.

11.

I make these statements from my own

personal knowledge and I am competent to

testify to the matters stated above.

WITNESSES:

BERNARD HARRIS

SWORN TO AND SUBSCRIBED, before me,

Notary, this 3rd day of May, 1989.

® . » <

Notary Public

APPENDIX I

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF THE CIVIL ACTION

COMPLAINT OF CARGILL

LEASING CORPORATION NUMBER: 84-5903

AS OWNER, AND CARGO

CARRIERS, A DIVISION SECTION "L" (1)

OF CARGILL MARINE & ;

TERMINAL, INC., AS CONSOLIDATED WITH:

BAREBOAT CHARTERERS AND

OWNERS PRO HAC VICE NOS.:

OF THE M/V CARGILL 85-5684, 85-0440,

MACMILLAN, her engines, 85-4517, 85,4714,

etc., FOR EXONERATION 85,4919, 85,5522,

FROM OR LIMITATION OF 85,5523, 85,5659,

LIABILITY 85,5703, 86-0075,

86-0934

AFFIDAVIT OF BERNARD HARRIS

I, Bernard Harris, former employee of

Traylor Brothers, Inc., do hereby swear and

depose and say that:

In September, 1984 I was employed as an

iron worker for Traylor Brothers, Inc. on the

Gramercy bridge project, Mississippi River.

2 ? .

100

a |

I was laid off for approximately nine (9)

days and was assigned a new job as a pile buck

welder.

I was required to perform the following

work tasks as a pile buck welder:

a. Weld pipes together aboard the crane

barge in order to place them in the caisson

where they supported the subpumps to discharge

water. This task could take as long as three

to seven days.

b. Rigging covers - the purpose of the

covers was to give the caisson a good

foundation and to pour concrete over them.

Each cover weighed approximately 22 tons. I

was required to secure a sling on to the covers

and signal the crane operator on the barge to

lift the covers and place them into the caisson

hole.

C. I was required to drive pilings -

101

this task included the rigging of pilings and

assisting in the placement of them. The rig

barge was moved to a location adjacent to the

Kaiser Plant in the river.

d. Fabrication - The vast majority of my

time was spent aboard the crane barge cutting

angle iron which was later placed roree the

caisson.

e. Maintaining the crane barge - I was

required to do all necessary work on the crane

barge which included patching the barge.

f. I was required to set the anchors on

the crane barge.

g. I was required to unload all material

from the barges.

I performed most of my tasks aboard the

crane barge and I spent a total of 6 hours in

the caisson during my new work assignment as

pile buck welder.

102

Prior to being hired as a pile buck welder I

was Classified as an iron worker earning $12.50

per hour. My new work assignment as a pile

buck welder paid me $14.00 per hour.

I was performing a substantial part of my

work aboard the crane barge and I was

continuously subject to the perils of the

Mississippi River in that I was in constant

fear of being hit by barges in tow.

Prior to this accident, I was put in fear

cf being hit by vessels and barges in tow on at

least three occasions. It is my understanding

that the United States Coast Guard was notified

about these frequent close calls.

The crane barge contained a small building

used by we crew members to change clothes,

103

drink coffee. The crane barge also contained

bathroom facilities.

On several occasions, the crane barges

were transported from the situs of the accident

to other locations for me to perform other

activities such as pile driving and unloading

materials.

10.

The caisson was not a permanent structure

attached to the floor of the Mississippi River.

A series of interlocking steel sheets were

floated out to the job site and were

constructed in such a way as to form a

protective shield. It was surrounded by the

waters of the Mississippi River and could be

easily collapsed if hit by heavy moving objects

or by the crane barge (my work place) if it

rubbed against it.

104

11.

The caisson constantly leaked water and it

was necessary to pump out this temporary

structure twenty-four hours a day.

12.

There was no means of communication for

the workers inside of the caisson; nor was

there a means of communication aboard the crane

barge on the day of the accident.

13.

The caisson was equipped with navigation

lights.

14.

The caisson was c. ninety feet deep.

15.

I make these statements from my own

personal knowledge and I am competent to

testify to the matters stated above.

105

WITNESSES:

BERNARD HARRIS

SWORN TO AND SUBSCRIBED, before me,

Notary, this 18 day of March, 1988.

Notary Public

106

APPENDIX J

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF THE CIVIL ACTION

COMPLAINT OF CARGILL

LEASING CORPORATION NUMBER: 84-5903

AS OWNER, AND CARGO

CARRIERS, A DIVISION SECTION "L" (1)

OF CARGILL MARINE &

TERMINAL, INC., AS CONSOLIDATED WITH:

BAREBOAT CHARTERERS AND

OWNERS PRO HAC VICE NOS.:

OF THE M/V CARGILL 85-5684, 85-0440,

MACMILLAN, her engines, 85-4517, 85,4714,

etc., FOR EXONERATION 85,4919, 85,5522,

FROM OR LIMITATION OF 85,5523, 85,5659,

LIABILITY 85,5703, 86-0075,

86-0934

AFFIDAVIT OF ROBERT BOYD

I, Robert Boyd, former employee of Traylor

Brothers, Inc., do hereby swear, depose and say

that:

I worked full time on the barge in

question as the crane operator.

In that job I was mostly ten (10) to

107

fifteen (15) feet above the barge deck.

I could see all of the operations being

carried out each day.

I adopt the contents of the affidavits of

Bernard Harris and Benjamin E. Williams in

their entirety.

WITNESSES:

ROBERT BOYD

SWORN TO AND SUBSCRIBED, before me,

Notary, this 18 day of March, 1988.

Notary Public

108

PENDIX K

DEPOSITION OF ROBERT BOYD

where you sat when you operated the crane?

A. Yes, sir.

Q. Is that generally where you spent most

of your day.

A. Yes, sir.

Q. Sitting in that seat operating the

crane?

A. Right.

Q. Was anybody designated as a flagman?

A. Yes, sir.

Q. Who was that?

A. At the time I believe he was Wayne

Legget was my flagman.

Q. And he had other duties besides being

your flagman?

A. Yes. He was also a pile buck welder.

Q. Did you have a radio in your cab.

A. No, sir.

109

Q. Was there --

A. We had CBs on all the rigs, but they got

stolen. You know, they would walk off the job.

They got costly and they quit putting them in.

Q. There wasn’t a company radio?

A. No, sir.

Q. Was there any communication between the

crane barge and the office, or any place else?

A. Yes, sir.

Q. And how was that communication?

“A. Mr. Walker, he was the foreman, and he

had a radio.

Q. He had a radio that he clipped on his

belt?

A. Yes, sir.

Q. When Walker wasn’t on the crane barge,

you had no communication with the rest of the

world?

A. Sure didn’t. We was out there, sitting

ducks that morning.

110

Q. Did Traylor Brothers make any provisions

for an emergency situation when Mr. Walker or

somebody with a radio wasn’t present on the

crane barge? In other words, did you --

A. Common sense, more than anything.

Q. In other words, if Mr. Walker is not out

there with his radio, and you all nae a

problem, let’s say a man gets injured, how were

you supposed to let the office know that you

needed help?

A. More than likely, I would blow the horn

on the crane for about a minute or two

straight, and somebody on the job would hear

and know something was going on.

Q. So the only way you had of signaling the

office when Mr. Walker wasn’t out there with

his radio was blowing with, blowing your horn?

A. Yes, sir.

Q. Had you ever had an occasion to do that?

A. Yes, sir.

111

Q. What were the circumstances?

A. One day, one of the foremen was out

there, and all the men were down in the hole,

and he was, I was up in the crane, and he was

down rigging up some angle iron to go in the

hole.

As we were getting ready to hook up to

it, boat passed and made some waves on the side

of the pier.

And the load that we was fixing to pick

up fell over on his foot. And it was just me

and him there, you know, so --

Q. He was down in the hole.

A. He was on top of the crane barge at the

time.

I could not get in touch with nobody

there because he was down there, I was up here,

and the boat was gone. So blew the horn on the

crane a few times, and, you know, nobody --

somebody came finally, but it was after awhile.

112

Q. About how long did it take.

A. About ten minutes, I guess.

Q. Was the man hurt bad?

A. I think he crushed his foot or

something. It wasn’t -- crushed as far as

broke, I am not for sure. I don’t remember

that.

Q. Was there any other occasion that you

needed assistance that you had to blow your

horn to get it?

A. Not really, no. Just that morning of

the accident.

Q. When you say the morning of the

accident, you are talking about the accident

that we are here discussing today.

A. Yes, sir.

Q. I am talking about prior to that.

A. We have had close calls all the time.

You learn to live with that.

Q. I will get to that.

113

I am talking about, I am particularly

interested in situations where there was an

accident or some kind of an emergency on the

crane barge, or at the Pier 2 location, where

you needed to summon help and a man with a

radio wasn’t out there.

114

APPENDIX L

DEPOSITION OF BENJAMIN WILLIAMS

warning systen.

A. Yes. If you call it that.

Q. That warning system consisted of a

whistle that somehow got tripped?

A. Somebody had to go up there and flip it.

Q. Was there somebody who was --

A. No, sir.

Q. -- designated as a watchman or

something?

A. No, sir. They wouldn’t do it. They

said it cost too much money.

Q. But they gave you some kind of boat or

something that was standing by.

A. Most most of the time they tried to have

one, but, yes, tried to have one. Because that

state boat, I would drive it out there myself,

and I figured if they wanted it they would get

it. I wasn’t going to be out there no more.

115

Q. They didn’t leave you a boat before the

accident?

A. No, sir. Our foreman had the boat on

the other side of the river.

Q. Was it generally the case that there was

not a boat tied up to the crane barge when you

all were out there working, before your

accident.

A. They usually had a boat there. It was

just a freak accident that there was no boat, I

guess.

Because the tugboat, see, he waits on

you. You got to work out there all the time.

They were usually waiting for you to move a

barge in or something. And sets out in the

middle waiting on you.

At dinner time and stuff all the bosses

and whatnot go. They had a roach coach come

out to the bank sometimes with the hot meals

and stuff. They had a roach coach come to the

116

bank.

Q. I understand there was no radio

communication between the crane barge and the

office?

117

APPENDIX M

DEPOSITION OF BERNARD HARRIS

rain gear and went down in the hole?

A. Right.

Q. And you got down in the hole about what

time?

A. Okay, let’s back up a minute.

Q. Okay.

A. We went down with the rig, okay?

A. Yes.

A. It’s a skip bucket. That’s what you

call it, man basket, whatever you want to call

it.

Q. You and Brian.

A. Right.

Q. And the remaining welders were on the

crane barge?

A. Yes. They were up putting a set of

gauges on the air and gas bottles up there. We

had one come by pretty close and tip the

118

bottles over and broke the gauges. They were

down

on the other end of the crane barge. I

didn’t know anything about it.

You said you had one come by pretty

close and tipped the bottles over?

Yes.

One what?

Boat.

When did that occur?

A couple of days ago, before that.

And his --

His waves.

His wake from the passing boat had

rocked the crane barge sufficiently to tip the

air and gas bottles over?

Right.

Had that ever happened before while you

working as a welder?

Out there?

Yes.

119

A. Well, we have had two near misses before

we got hit.

Q. In the two weeks that you were working?

A. Yes.

Q. Tell me about the first one of those.

A. I don’t know the name of the boat or

anything. He just come by close and --

Q. Sure.

A. -~- I don’t remember what day it was. It

was within that last week.

Q. It was sometime between Monday and

Friday of the last week?

A. Yes. But it, we could have had one say

like Friday of the week before, see. I wasn’t

too sure.

They said they notified the Coast Guard,

that they were, I guess Traylor Brothers

notified them that they were coming a little

bit too close. They are actually supposed to

stay a hundred feet from the crane barge or the

120

caisson.

Q. Who told you Traylor Brothers had

notified the Coast Guard about this near miss?

A. I heard it through word of mouth.

Q. You didn’t hear it from Walker or

anybody?

A. No. I think Bennie Williams mentioned

it. I mean don’t quote me, because I am not

too sure.

Q. I just want to know what you remember,

Mr. Harris.

A. Okay.

Q. Were you on the crane barge when that

first near miss occurred?

A. I think I was, yes. Yes.

Q. Tell me what you remember about that.

A. It was just a big ship to come by and

just, you know, just threw a heck of a wake on

me. And rocked me back and forth, then the

bottles went over, and they broke there.

121

Q. Was it an ocean-going vessel?

A. I think it was. It was coming

downstream.

Q. From Baton Rouge?

A. Right.

Q. As it approached the caisson and the

crane barge, which side was it going es pass

on, or which side did it pass on?

A. On the 1250 lane.

Q. In other words, it passed on the east

bank side.

A. Yes.

Q. About how far from the caisson did it

pass, if you understand what I mean.

A. I would say probably 50 feet.

Q. And you were standing on the crane barge

when this happened?

A. Yes.

Q. Was the wash from that vessel sufficient

to make you worry that you might get knocked

122

A. No.

Q. It was just enough to knock over some

bottles?

A. Yes. It was just big swells.

Q. Tell me about the second near miss.

A. That happened on the west side.

Q. Tell me about that.

A. We brought in another rig to set the,

down in the bottom, we had big covers, and

weighed 22 ton. We brought another rig in,

moored it off, you know, on a crane barge, and

he come close on the other side.

Q. When you say he, who are you talking

about?

A. I don’t know.

| Q. Is it a tugboat.

A. Yes. He had a tow.

Q. And he was downbound, too?

A. Yes.

123

Q. And he passed the caisson on the west

bank side?

A. Right.

Q. About how many barges did he have in

tow, do you remember?

A. I would say six. Roughly, I mean.

Q. I understand.

A. You don’t pay no attention until they

hit. That’s when you really get excited.

Q. You were on the crane barge when this

occurred?

A. Yes.

Q. About what time of the morning was it?

A. I would say probably it was in the

afternoon. Probably around 2:00 o’clock.

Q. Do you remember what day of the week it

was?

A. No.

Q. Was it the day before your accident.

A. No. It was earlier in the week. Let’s

124

see, okay, I could give you a pretty close day.

It would probably have been, let’s see,

I am not too sure, but I would say it was

probably Monday.

Q. About how close did he come to the

caisson?

A. He come about eight foot from the crane

barge. Now the caisson, see we had --

Q. The crane barge was between the caisson

and the tow.

A. Right. We had crane barge, two rigs out

there. And he come about six foot.

Q. Six foot --

A. From the crane barge on the west side.

Don’t try and pinpoint me on the days. I don’t

pay any attention on days.

Q. I just want to know what you remember.

A. Okay.

Q. What happened when that tug and its tow

passed?

125

A. Nothing happened.

Q. I am sorry, I thought you told me it

knocked some bottles over.

A. No.

Q. That was the occasion where the big

boat --

A. Yes.

Q. So when this tug and tow came within six

feet of the rig, it didn’t cause any damage?

A. No.

Q. Did you mention this incident to anybody

when it occurred?

A. What do you mean, this -- Bennie and I

was out there.

Q. Did you say anything about it to Walker

or anybody with management?

Q. Was this something that was unusual?

A. It was unusual. There isn’t much you

can do about it. They are going down the

126

river, what are you going to do. You didn’t

think about getting no numbers or name or

anything off of it.

When you are out there and something

like that happens, when they go by you, don’t

worry about them, you know what I mean. Just

when they whack you, that’s the ones you are

worrying about.

Q. Did you often see tugs with barges in

tow passing the caisson downbound on the west

bank side?

A. Yes. I seen quite a few. But they

ain’t never towing a big tow. They might have

six barges or something like that.

Q. Let’s go back to the morning of the

accident, Mr. Harris. You told me that you and

Brian Doucet got your rain gear to get ready to

go down in the hole and do your work while the

rest of the crew was preparing bottles on the

crane barge.

127

A. Right.

Q. Did you and Brian actually go down in

the hole?

A. Yes, sir.

Q. And how long did you spend in the hole?

A. 15, 20 minutes.

Q. Then you came back on to the pon of the

crane barge?

A. Right.

Q. What did you do?

A. Well, it was so wet down there, see I

had wrote all the measurements down on the

skip, on the man cage; and we got all the

measurements, but there was one that was up on

the northwest pore and I told Brian, I says,

you want to get this while we are down here.

He said heck, it is too wet down here,

we will just go back up there, go back up.

I wrote all the measurements down on the

crane, on the cage.

128

We went back up there and Robert set us

up on the, to be the -- it would be the far end

of the, upstream end of the crane barge, he set

the skip box up there.

So then Brian went down to the other end

to see how them other guys was making out, and

I got a piece of cardboard and I was rewriting

the measurements down, because we were going to

go to shore and cut the plate.

Q. I tell you what I want you to do for me,

Mr. Harris. I want you to draw me a picture of

the caisson, the crane barge and anything else

that you had out there that morning.

First draw both banks of the river for

me.

A. (Witness complies.)

Q. Don’t you have indicated that the

caisson was 750 feet from the west bank and

1250 feet from the east bank.

A. Right.

129

Q. You have drawn a circle, now, is that

the caisson?

A. Caisson.

Q. Why don’t you write caisson down here

and draw an arrow pointing to the circle?

A. (Witness complies.)

Q. And the rectangle you have drawn next to

the circle is what?

A. That’s the barge.

Q. Why don’t you write crane barge -- don’t

write in there, because I am going to ask you

to do something else.

Was there anything else out there, other

than the crane barge?

A. No. I mean down here on this end was

like a platform.

Q. Draw that.

A. The diesel engines was setting down

here. It was connected to --

Q. To the caisson. Write platform out here

130

if you would.

A. (Witness complies.)

Q. When you and Mr. Doucet came back up on

to the crane barge, where was the work boat?

A. What?

Q. I am sorry, where was the crewboat.

A. Right over here.

Q. It was tied alongside the crane barge?

A. Yes.

Q. Did it remain there throughout this

incident, or did the crewboat leave at some

point before the accident happened?

A. They left. I didn’t even know it was

gone.

Q. Who took it?

A. Walker.

Q. You and Mr. Doucet came back out of the

caisson and, let’s see, who was the operator,

Mr. Boyd. Mr. Boyd told you to do what?

A. Mr. Boyd didn’t tell me to do anything.

131

Q. I thought you said Robert put you

somewhere?

A. Robert set me up, the rig was setting in

here.

Q. Why don’t you label that rig. And

Robert set you up where?

A. Sent me up here on the upstream end.

The rig was sitting here, and he set me right

up here.

Q. When you say he set you up, explain that

A. He took me up out of the hole, then he

set me up on the upstream end of the crane

barge.

Q. You came out of the hole in a personnel

basket.

A. Right.

Q. And he sent you down on the upstream end

of the crane barge?

A. Right.

132

Q. And you --

A. Brian.

Q. -- Mr. Doucet.

A. Right.

Q. He set you down, and then what happened?

A. Well, I got a piece of paper and I

started writing down the measurements.

Q. You got out of the personnel basket.

A. Right.

Q. What did he do with the personnel

basket.

A. Just sat there.

Q. And you started writing down the

measurements?

A. Yes. That I had wrote down on top of

the personnel basket.

Q. Then what happened?

A. I was rewriting then.

Q. What happened, keep going.

A. Well, I looked upstream.

133

Q. What did you see?

A. Cargill.

Q. Tell me exactly what the first thing was

that you saw?

A. He was coming down the river, to-me it

looked like he was getting sideways. And the,

till today, I have run it through my mind

millions and millions of times, why did he ever

take the 750 instead of the 1250.

Q. You say it looked like he was getting

sideways.

A. Yes. Like he was making a turn to go

in --

. To go in --

A. -- to the 750 lane.

Q. Towards the west bank.

A Right.

Q. About how far away was the head of his

tow from where you were standing when you first

saw him?

134

A. I could not give it to you in feet.

I would say that I had a good feeling

that he was going to hit me ten minutes before

he hit us. Could I ask a question here?

Q. It depends. Generally the way this

works is I ask the questions.

A. Something that has bothered me ever

Since the day of the accident.

(Off the record discussion.).

BY MR. BRECKINRIDGE:

Q. When you first got the feeling that the

tow was going to hit the crane barge, did you

do anything or did you just continue working?

A. I kept continuing on writing and

watching.

Q. Did you also start looking for the

crewboat?

A. Yes, I did. I looked; it was gone.

Q. It was, okay, when you first realized,

or had a feeling that the tow was going to hit

135

you, you looked and the crewboat was gone?

you see

Yes.

Do you know where it was? I mean could

it off anywhere?

I could not see it.

Did y’all have a radio on the crane

No communications at all.

No company radio?

No.

Nothing.

No.

How did you communicate with the office?

Operator?

No, with the office.

Walker had a radio.

On the crewboat?

No. He had a walkie-talkie on his hip.

On his belt?

Yes.

- 136

Q. So when Walker was off the crane barge,

you had no communication with anybody?

137

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.