Appendix — Chevron U. S. A. Inc. v. Sea Savage, Inc.

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1993

CHEVRON U.S.A. INC.

Petitioner

VERSUS

SEA SAVAGE, INC., UNDERWRITERS

SUBSCRIBING TO POLICY A&PH 12890

AND AMERICAN HOME ASSURANCE COMPANY

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

OF COUNSEL: NEAL D. HOBSON (6885)*

909 Poydras Street, Suite 2300

MILLING, BENSON, New Orleans, LA 70112

WOODWARD, HILLYER, Telephone: (504) 569-7000

PIERSON & MILLER Telecopier: (504) 569-7001

Attorneys for Petitioner

Chevron U.S.A. Inc.

Counsel of Record

APPENDIX

Page

United States Court of Appeal, Fifth

Circuit Opinion, Feb. 11,1994 ...... | la

District Court Ruling, Oct. 30, 199]

(Randall a Longshore and Harbor Worker) 47a

District Court Ruling after trial.

mov, 16. 3981... oc. ; 48a

District Court Judgment, Nov. 15. 199]

Entered Nov. 25, 1991 _ . etna ; 58a

District Court Memorandum and Order on

Motion to Amend Judgment, Jan. 29. 1992 60a

District Court Memorandum and Order on

Indemnity, Feb. 19, 1992, 788 F. Supp

Re Ses eee | 67a

District Court Memorandum and Order.

Insurance Cover, 788 F. Supp. 139] 8la

District Court Memorandum and Order.

Apr. 28, 1992, recovery of compensation . 97a

District Court Order re: attorneys’ fees,

July 1,1992 ..... a arate, 100a

Order denying rehearing and amending

opinion, Fifth Circuit .... . oe lOla

Orders extending time for filing

Petition for Rehearing, Fifth Circuit. 103a

Text of 33 U.S.C. §§ 903(a) and 902(4)

Before and After 1972 Amendments . _s« 2070

la

APPENDIX

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 91-9567

BARBARA S. RANDALL, On Her Own Behalf and as Per-

sonal Representative of the Estate of the Decedent,

THEODORE F. RANDALL, JR., and on the Behalf of

the Children, Rop ANTHONY RANDALL and Ho.Lty

LEANN RANDALL, ee ;

F Plaintiff-A ppellee,

CHEVRON U:S.A.., INC., et al

Detendants

SEA SAVAGE, INC.,

Defendant-A ppellant.

Appeals from the United States District Court

for the Eastern District of Louisiana

Feb. 11, 1994

Before KING and JOLLY, Circuit Judges and PAR-

KER, * District Judge

* Chief Judge of the Eastern District of Texas. sitting by desig-

nation.

KING, Circuit Judge

Theodore F. Randall, an employee of Chevron, U.S.A.

Inc. (“Chevron”), drowned after unsuccessfully attempt

ing a Swing rope transfer from a fixed platform in the

Gulf of Mexico to the M/V SEA SAVAGE. Randall’s

widow, Barbara Randall, brought suit individually, on

behalf of Randall's estate, and on behalf of their children

against Chevron and Sea Savage, Inc. (“Sea Savage’”’ )

The matter was tried to the court, and the court en-

— * gn against the defendants. This appeal {

lowe

I.

Factual Background

This case arises from the tragic death of Theodore |}

Randall, a mechanic employed by Chevron on its fixed

platforms in the Gulf of Mexico. On July 31, 1989

Randall was on Chevron’s West Delta Field Block 27

P-1 platform, a fixed structure located off the coast

Louisiana but within Louisiana territorial waters. At the

time, a tropical storm was known to be approaching the

West Delta area.

The M. V SEA SAVAGE was a 100-foot vessel owne .

and operated by Sea Savage and certified by the Unit

States Coast Guard as a passenger vessel. Chevron en

tered into a time charter with Sea Savage on January

1, 1989, to obtain the services of the vessel in the Op-

eration of Chevron’s platforms in the West Delta Block

27 oil field. The time charter provided that Sea Savage

would man, operate, and navigate the vessel. while Chev

ron would assign the vessel its tasks. Sea Savage was

required to provide liability insurance naming Chevron

1 After the parties filed their briefs, the Randalls sett! led with

Sea Savage and its underwriters and assigned their claims to them

Thus, Sea Savage and its underwriters have taken the place of the

Randalls on this appeal. As will be seen, however. the y have not

adopted all the legal positions taken by the Randalls at tria]

3a

as an additional insured, and Sea Savage did in fact

procure some $5,000,000 of protection and indemnity

coverage naming Chevron as an additional insured.

At 2:30 a.m. on July 31, 1989, the SEA SAVAGE

set Out on its regularly scheduled cargo run in the West

Delta field. Captain Dalton Parker was in command of

the vessel. By 10:06 a.m., the tropical storm had been

upgraded to a hurricane, and Chevron’s operations man-

ager ordered an evacuation of the West Delta field. Be-

fore proceeding to the P-1 platform, the SEA SAVAGE

carried personnel to other platforms to secure them in

preparation for evacuation. Several Swing rope transfers

to and from these platforms were safely accomplished.

As weather conditions deteriorated, it became unsafe to

make swing transfers to and from the smaller satellite

platforms. Captain Parker testified that he requested to

be released from further tasks in the field because he

thought his mission had been completed. Jim Howell, the

area foreman in the West Delta field, asked Captain Par-

ker to proceed to West Delta Field Block 27 to provide

any necessary assistance in the evacuation.

The SEA SAVAGE arrived at the P-1 platform at

approximately 10:45 a.m. Witnesses estimated that the

seas were between six and eight feet at the time and that

the winds were some 35 miles per hour. Three workers,

including Randall, were waiting to be evacuated. Captain

Parker backed the SEA SAVAGE next to the platform

and, following standard procedures, held the stern at an

angle to the platform. Randall was the first to attempt

the swing transfer. He grasped the swing rope and swung

to the deck of the vessel. What happened next is not

clear, but it appears that Randall landed on his feet as

the vessel rose with a swell, causing the swing rope to

go slack. Randall continued to hold onto the rope, and

as the vessel fell with the waves the rope went taut.

Randall was then pulled back off the vessel. Randall lost

his grip on the rope and fell into the water.

4a

Deckhand Paul Nash witnessed the episode and im-

mediately ran some fifty feet to the rear of the SEA

SAVAGE’s pilothouse to retrieve the life ring. Captain

Parker was aware of Randall’s fall and immediately put

the vessel into gear, moving the vessel forward and away

from Randall. He testified that moving towards Randall

would have risked sucking Randall into the propellers

or crushing him against the platform. Randall, a strong

swimmer, managed to swim to one of the platform's legs.

He clung to the leg as best he could in the rough water

for some twenty-five minutes. Efforts to save Randall

with a life ring thrown from the SEA SAVAGE were

unsuccessful. At last Randall let go of the platform,

slumped over, and drowned. He floated ovt from under

the platform and was recovered by deckhand Nash. His

body was lacerated, apparently from being thrown against

the barnacle-encrusted leg of the platform by the waves.

The remaining Chevron employees were evacuated by

helicopter.

Procedural History

On October 2, 1989, Barbara Randall, both individ.

ually and as personal representative of the estate of her

deceased husband and their two children, commenced

this action in the United States “jistrict Court for the

Eastern District of Louisiana seeking wrongful death and

survival damages under the Jones Act, 46 U.S.C.App.

§ 688, and the general maritime law against Chevron and

the SEA SAVAGE. Sea Savage filed a complaint for

exoneration from or limitation of liability, claiming it

was entitled to limit its liability to the value of the SEA

SAVAGE and her pending freight. On January 25, 1990,

this matter was consolidated with the Randall lawsuit for

trial. Chevron answered and filed a cross-claim against

Sea Savage seeking indemnification, costs, and attorneys’

fees in connection with the Randall lawsuit. Chevron

also filed a thirty-party complaint against the underwrit-

ers supplying the insurance coverage to Chevron as an

i a ee

Sa

additional insured pursuant to Chevron’s time charter

with Sea Savage.

On March 30, 1990, Chevron moved for summary

judgment on plaintiff's Jones Act and punitive damages

claims. By minute entry dated July 26, 1990, the district

court dismissed the Jones Act claims, finding that Randall

could not be considered ‘a Jones Act seaman because he

was never assigned to any vessel and worked exclusively

on fixed platforms. The court did not dismiss plaintiff's

general maritime or punitive damages claims.

On March 26, 1991, Chevron moved for partial sum-

mary judgment, arguing that the court should dismiss all

of the plaintiff's claims except for those claims stated un-

der § 905(b) of the Longshore and Hanbor Workers’

Compensation Act (“LHWCA”), 33 U.S.C $901 ef

seq., and/or the exclusive remedy provisions of the Lou-

isiana Workers’ Compensation Statute. Barbara Randall

and Sea Savage opposed Chevron’s motion. Following

oral argument on October 30, 1991. the district court

found “that Mr. Randall was a longshoreman or harbor

worker within the meaning of the Longshore and Harbor

Workers’ Compensation Act.”? The district court also

granted the underwriters’ motions to dismiss Chevron’s

claims against them prior to trial on the ground that the

insurance policies naming Chevron as an additional in-

sured did not cover the claims being asserted against

Chevron.

The bench trial commenced on November 12. 199].

At the conclusion of the trial on November 14, 1991. the

2 Strangely, the pre-trial order filed on November 5, 1991 listed

as a contested issue of law “[w]hether Louisiana, General Mari-

time and/or LSHWA Law applies” (“LSHWA” being another

acronym occasionally used in lieu of “LHWCA”). However, after

judgment was entered in favor of Mrs. Randall, the district court

reiterated that it had “previously held that Mr. Randal] was cov-

ered by the Longshore and Harbor Worker’s Compensation Act.”

Randall v. Chevron U.S.A.. Inc., 788 F.Supp. 1391. 1337 (E.D.La.

1992).

6a

district court rendered oral reasons for judgment from the

bench. The court found Sea Savage and the crew of the

SEA SAVAGE 75% liable in Causing the accident.

Among other things, the district court found that Sea

Savage was negligent in failing to train the Captain and

crew of the SEA SAVAGE properly in life-saving pro-

cedures, in failing to place a life ring near the jump

Station of the vessel, and for the failure of the SEA

SAVAGE’s captain and crew to follow accepted rescue

procedures after Randall fell into the water. The court

further held that Sea Savage was not entitled to its re-

quested limitation of liability because of its failure to

properly train the captain and crew of the vessel. to

require drills in rescue procedures, and to ensure that the

captain was competent. The court held Chevron 25%

liable for directing the vessel to remain in and encounter

the treacherous weather conditions that then existed.

With respect to damages, the district court made the

following awards to the Randalls: $66.726 for past lost

wages; $309,177 for lost future support; and $30,395 for

loss of personal services. Under the heading of “loss of

society” damages, the court awarded $300,000 to Mrs.

Randall, $100,000 to Randall’s adult son Rod Randall,

and $150,000 to Randall’s daughter Holly Randall. The

court awarded $1,000,000 for Randall's pain and suffer-

ing and $3,897 for funeral expenses. The claim for puni-

tive damages was denied.

The district court took under advisement Chevron’s

claim against Sea Savage for contractual indemnity. By

minute entry filed February 19, 1992, the district court

ruled that Chevron was entitled to contractual indemnity

from Sea Savage under the terms of the time charter.

This decision is reported as Randall v. Chevron U.S.A.

Inc., 788 F.Supp. 1391 (E.D.La.1992). The district

court based its decision on the holding that Chevron’s

hability arose in its capacity as time charterer of the ves-

sel, thus coming within the indemnity provision in the

7a

time charter. Id. at 1395. Chevron had also moved post-

trial for reconsideration of the dismissal of its claims

against the underwriters for insurance coverage, and on

March 16, 1992, the district court ruled that the plain-

tiffs claims against Chevron did come within the insur-

ance coverage provided to Chevron by the underwriters.

This decision is reported as Randall y. Chevron U.S.A.,

Inc., 788 F.Supp. 1398 (E.D.La.1992).

On March 19, 1992, judgment was entered in favor of

Chevron for indemnity and insurance coverage. The dis-

trict judge referred the issue of the appropriate amount of

costs and attorneys’ fees to award Chevron to a magis-

trate judge. On July 7, 1992, the district court found

that the fees and expenses incurred by Chevron in defend-

ing the plaintiff's claims were fair and reasonable and

awarded reimbursement for those fees. The court denied

reimbursement, however, for those fees and expenses spent

in defense of the punitive damages claim.

After the notices of appeal and briefs were filed, Sea

Savage and its various insurance underwriters entered into

a settlement agreement with tre plaintiff on April 22,

1993, which included a complete assignment of all plain-

tiffs claims in this matter to Sea Savage and its under-

writers. Thus, Sea Savage and its underwriters. now stand

in the place of Mrs. Randall vis-a-vis Chevron?

IT.

Standard of Review and Choice of Law

This court accepts the factual findings of the district

judge unless they are clearly erroneous. However, we

may review de novo a district court’s conclusions of law,

Halferty v. Pulse Drug Co., 864 F.2d 1185, 1188 (5th

Cir.1989). Interpretation of the indemnity clause that is

involved in this action presents a matter of law that is

® According to Sea Savage, the only issue mooted by the settle-

ment is Sea Savage’s claim before the district court that it was

entitled to limit its liability as vessel owner.

8a

reviewable de novo on appeal. Smith v. Tenneco Oil is,

803 F.2d 1386, 1388 (Sth Cir.1986) (citing Kemp y.

Gulf Oil Corp., 745 F.2d 921, 924 (Sth Cir.1984) ).

District court interpretations of insurance policies are also

reviewed de novo. Harbor Ins. Co. v. Urban Constr. Co.,

990 F.2d 195, 199 (Sth Cir.1993).

Construction of maritime contracts is governed by fed-

eral maritime law. Theriot v. Bay Drilling Corp., 783

F.2d 527, 538 (Sth Cir.1986). Although federal law

governs the interpretation of marine insurance contracts.

we apply the law of the state where the marine insurance

contract was issued and delivered if there is no federal

law, legislative or judicial, relating to the question. Ele-

vating Boats, Inc. v. Gulf Coast Marine, Inc.. 766 F.2d

195, 198 (5th Cir.1985).

II.

A. Was Randail a “maritime employee” within the

meaning of the LHWCA?

The first issue presented for our decision is whether the

district court correctly held that Randall was a “maritime

employee” and thus that his widow was entitled to pro-

ceed under the LHWCA rather than under Louisiana’s

workers’ compenstation statute. Both Chevron and Sea

Savage argue that the district court erred and that Ran-

dall was not covered by the LHWCA. Mrs. Randall. be-

fore she settled out of this case, argued the opposite

position.*

* The threshold determination of whether Randall was covered

by the LHWCA may have an impact on the outcome of several

other issues in this case. The availability of loss of society dam-

ages may depend on whether or not Randal! was a longshoreman.

Sea Savage, although it now stands in Mrs. Randall’s shoes for our

purposes, has chosen to continue to argue against LHWCA cover-

age in the apparent belief that reversal on this issue would neces-

Sitate a remand for redetermination of its and Chevron’s com-

parative negligence. We note, however, that the district court

9a

A brief overview of the LHWCA is in order. The

coverage section of the LHWCA provides that compensa-

tion shall be payable upon the disability or death of an

employee “if the disability or death results from an injury

occurring on. the navigable waters of the United States

(including any adjoining pier, wharf, dry dock, terminal,

building way, marine railway, or other adjoining area

customarily used by an employer in loading, unloading,

repairing, dismantling, or building a vessel).” 33 U.S.C.

§ 903(a). With certain exclusions not relevant to the

instant case, the term “employee” is defined as “any per-

son engaged in maritime employment, including any long-

shoreman or other person engaged in longshoring opera-

tions, and any harbor-worker including a ship repairman,

shipbuilder, and ship-breaker.” Id. § 902(3). As a gen-

eral rule, the LHWCA imposes liability for benefits pay-

able to an injured worker upon the employer. /d.

§ 904(a). This is the exclusive liability of the employer

qua employer, so the employer is generally immune from

the injured worker’s potential tort suits. Jd. § 905(a).

The specific benefits to which the injured longshoreman is

entitled are defined in the LHWCA. Id. §§ 907-09.

Prior to 1972, a worker covered by the LHWCA who

was injured while loading or unloading a ship was en-

titled both to compensation payments and to judgment

against the shipowner if the injury was caused by the

ship’s unseaworthiness or negligence. Scindia Steam Navi-

gation Co. v. De Los Santos, 451 U.S. 156, 164, 101

apportioned 100% of the liability between Chevron in its capacity

as “vessel” and Sea Savage, suggesting that Chevron was not

liable in any other capacity and that no reapportionment of negli-

gence would be necessary. Chevron argues against LHCWA cov-

erage in the apparent belief that Louisiana workers’ compensation

law would provide the exclusive remedy to the Randalls should we

decide that the LHWCA does not apply. But see Thibodaux v.

Atlantic Richfield Co., 580 F.2d 841, 846-47 (5th Cir.1978), cert.

denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979). We

express no view on the merits of these various arguments.

10a

S.Ct. 1614, 1620, 68 L.Ed.2d 1 (1981). Section 905(b)

of the LHWCA, added in the 1972 amendments to that

Statute, abolishes the injured longshoreman’s unseaworthi-

ness claim but preserves his right to recover for the

“negligence of a vessel.” 33 U.S.C. § 905(b); Scindia,

451 U.S. at 165, 101 S.Ct. at 1621; May v. Transworld

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

denied, 479 U.S. 854, 107 S.Ct. 190, 93 L.Ed.2d 123

(1986). The term “vessel” in this context includes the

vessel’s Owner, owner pro hac vice, agent, operator,

charter or bare boat charterer. master, officer, or crew

member. Jd. § 902(21). Thus, “[w]hen an employer

acts in a dual capacity as vessel owner, the entity re-

tains its immunity for acts taken in its Capacity as an

employer, but may stili be sued ‘qua vessel’ for acts of

vessel negligence.” Levene v. Pintail Enters., Inc., 943

F.2d 528, 531 (Sth Cir.1991) (citing Jones & Laughlin

Steel Corp. v. Pfeifer, 462 US. 523, 532, 103 S.Ct

2541, 2548, 76 L.Ed.2d 768 (1983): Kerr-McGee Corp.

v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1339 (Sth

Cir.1987)), cert. denied, - US. . oie ak

2274, 119 L.Ed.2d 201 (1992).

The issue of whether Randall’s accident is one covered

by the LHWCA turns on whether he satisfies the two-

pronged test set forth in that statute. First, his injury

must have occurred at a covered location or “situs.”

Herb’s Welding, Inc. v. Gray, 470 US. 414, 415-16, 105

S.Ct. 1421, 1423, 84 L.Ed.2d 406 (1985). Second, he

must meet the “status” test of being a person engaged in

“maritime employment,” a term not. defined by the

LHWCA. Id. The “status” test is the source of difficulty

in the instant case.

Our analysis of the “status” issue begins with the

Supreme Court’s decision in Northeast Marine Terminal

Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 63 L.Ed.2d

320 (1977). In that case, plaintiff Carmelo Blundo was

employed as a “checker,” or one responsible for checking

and recording cargo as it was loaded onto or unloaded

lla

from vessels, barges or containers. Id. at. 252-53, 97

S.Ct. at 2351-52. While working on a pier, Blundo

slipped on some ice and was injured. Id. at 253, 97

S.Ct. at 2352. Plaintiff Ralph Caupto was a member of

a longshoring “gang,” and he was injured while loading a

truck with cargo that had been discharged from a vessel.

Id. at 254-55. The Court held that both plaintiffs satis-

fied the “status” test under the LHWCA, Blundo because

his task was “an integral part of unloading process” and

Caupto because “he was injured in the old-fashioned

process of putting goods already unloaded from a ship or

container into a delivery truck.” Jd. at 256, 271-72, 103

S.Ct. at 2353, 2361. Thus, as it would in future cases,

the Court focused on the nature of the workers’ employ-

ment and its connection with the loading and unloading

of vessels as a key issue in deciding whether the “status”

test was met.

The next case in which the Supreme Court addressed

the “status” test was Director, Office of Workers’ Com-

pensation Programs v. Perini N. River Assocs., 459 USS.

297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983). The in-

jured worker in Perini, Raymond Churchill, was em-

ployed in the construction of a sewage treatment plant

extending over the Hudson River. Jd. at 300, 103 S.Ct.

at 638. His job was to supervise operations on a cargo

barge, and he was injured while Standing on the deck of

the barge. Jd. The Court held that Churchill, as an em-

ployee injured upon navigable waters in the course of his

employment, could meet the “status” test without showing

that his employment possessed a direct or substantial re-

lation to navigation or commerce. Id. at 318-19, 103

S.Ct. at 647-48. Although the Court expressly recognized

that “the status requirement is Occupational and the situs

test is geographic,” id. at 324 n. 32, 103 S.Ct. at 651

n. 32, it went on to hold that “when a worker is injured

on the actual navigable waters in the course of his em-

ployment on those waters, he satisfies the Status require-

12a

ment,” assuming that the other requirements of the

LHWCA are met. /d. at 324, 103 S.Ct. at 651. The

Court emphasized that such workers are “engaged in

maritime employment” both because they are injured in

historically maritime locales and because they are re-

quired to perform employment duties upon navigable

waters. /d. Finally, the Court expressed no opinion on

the issue of “whether such coverage extends to a worker

injured while transiently or fortuitously upon actual navi-

gable waters, or to a land-based worker injured on land

who then falls into actual navigable waters.” Jd. at 324

n. 34, 103 S.Ct. at 651 n. 34. Under Perini, then, a spe-

cial “status” test applies to workers who are injured while

upon actual navigable waters: such a worker satisfies the

“status” test simply by showing that he was injured on

actual navigable waters in the course of his employment

on those waters. Jd. at 324, 103 S.Ct. at 651.

The Court again considered the contours of the “status”

test in Herb’s Welding, in which a welder employed on a

fixed offshore platforms are legally equivalent to islands,

form and sought LHWCA benefits. Herb’s Welding, 470

U.S. at 416, 105 S.Ct. at 1423. The Court held that the

welder, Robert Gray, was outside the Perini rule because

fixed offshore platforms are Jegally equivalent to islands,

id. at 422 & n. 6, 105 S.Ct. at 1426, and thus Gray was

not “injured on navigable waters.” Jd. at 424-25 n. 10,

105 S.Ct. at 1428 n. 10. Gray was thus required to meet

a different test, adumbrated by Caputo, based on whether

Gray’s employment had some connection with the loading,

unloading, repair, or construction of Ships. Id. at 423-24,

105 S.Ct. at 1427-28. As the Court recounted at length,

Gray was a welder. His work had nothing to do

with the loading or unloading process, nor is there

any indication that he was even employed in the

maintenance of equipment used in such tasks. .

He built and maintained pipelines and the platforms

themselves. There is nothing inherently maritime

13a

about those tasks. They are also performed on land,

and their nature is not Significantly altered by the

maritime environment, particularly since the explora-

tion and development of the Continental Shelf are

not themselves maritime commerce. -

Id. at 425, 105 S.Ct. at 1428 (footnote omitted). Be-

cause Gray could not meet the “status” test, the Court

held that Gray was excluded from LHWCA coverage

without addressing the “situs” test. Id. at 427, 105 S.Ct.

at 1429. Again the Court expressly reserved the issue of

whether the LHWCA applies to a worker injured while

“transiently or fortuitously” upon navigable waters, al-

though it noted in passing a “substantial difference be-

tween a worker performing a set of tasks requiring him

to be both on and off navigable waters, and a worker

whose job is entirely land-based but who takes a boat to

work.” Id. at 427 n. 13, 105 S.Ct. at 1429 n. 13.

The instant case falls within that grey area left open

for later decision by the Supreme Court in Perini and

Herb’s Welding. Chevron and Sea Savage argue that the

circumstances of Randall’s death place him outside the

LHWCA’s ambit under Brockington v. Certified Elec..

Inc., 903 F.2d 1523 (11th Cir.1990), cert. denied, 498

U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991), and

West v. Chevron U.S.A., Inc., 615 F.Supp. 377 (E.D.La.

1985). Mrs. Randall, on the other hand, argued that this

court’s decision in Fontenot v. AWI, Inc., 923 F.2d 1127

(Sth Cir.1991), compels the conclusion that Randall

was covered by the LHWCA. We turn to the Fontenot

case first, as we are constrained to follow indistinguishable

decisions by other panels of our court absent an inter-

vening precedent by our court sitting en banc or by the

Supreme Court. Campbell v. Sonal Offshore Drilling,

Inc., 979 F.2d 1115, 1121 n. 8 (Sth Cir.1992).

In Fontenot, the plaintiff, Joseph Fontenot, was a

“wireline operator” employed by an oil field service com-

pany as a “pipe recovery specialist.” Fontenot, 923 F.2d

l4a

at 1128. He testified that he spent roughly equal amounts

of time working on shore, on fixed platforms, and on oil

exploration and production vessels. Jd. Returning to

shore from an inland barge rig located in Louisiana state

waters, Fontenot was injured while unloading his equip-

ment from the deck of a crewboat onto the dock. /d.

The parties agreed that Fontenot satisfied the “situs” test

for LHWCA coverage, because he was on the crewboat

and thus the ravigable waters of the United States when

he was injured, but Fontenot, desiring to pursue claims

potentially more favorable than those available under the

LHWCA, argued that he did not satisfy the “status” prong

of the Herb’s Welding test. Id. at 1129. The court held

that Fontenot was a covered employee, applying the

Perini test rather than the Herb's Welding test because

Fontenot was injured while upon actual navigable waters

in the course of his employment. /d. at 1133. Mrs. Ran-

dali argued that Fontenot is squarely on point, and that

her husband’s accident was covered by the LHWCA.

Chevron argues that Fontenot is distinguishable.

We believe that Fontenot answers, although only im-

plicitly, the question left open in Perini and Herb’s Weld-

ing in favor of LHWCA coverage for the worker injured

while transiently or fortuitously on actual navigable

waters. The Fontenot court relied on Perini in reaching

the conclusion that Fontenot came within the ambit of

the LHWCA,, stating,

[I]f the employee was injured while on actual navi-

gable waters, in the course of his employment, then

he is engaged in maritime employment and satisfies

the status test under Perini. . . .

In this case, Fontenot injured himself while on

the crewboat. The crewboat was docked in actual

navigable waters. Therefore, under [Perini], Fonte-

not, at the time of his injury, satisfied the status

requirement of the LHWCA.

15a

Id. at 1130 (emphasis added). We have some difficulty

with this analysis, specifically in the Fontenot court’s

conspicuous omission of the “in the course of his employ-

ment” element of Perini in its application of Perini to

Fontenot’s case. Part of the difficulty, however, stems

from the language of Perini itself. In one passage in

Perini, the Supreme Court strongly suggested that even

workers who are injured on navigable waters are re-

quired to show that “they are required to perform their

employment duties upon navigable waters.” Perini, 459

U.S. at 324, 103 S.Ct. at 651 (footnote omitted): see also

Herb’s Welding, 470 U.S. at 424 n. 10, 105 S.Ct. at

1428 n. 10 (pointing out that Perini was “carefully lim-

ited” to coverage of an employee injured while perform-

ing his job upon actual navigable waters). Yet, at the

same time, the Perini Court insisted that the addition of

the “status” test to the LHWCA by the 1972 Amend-

ments did not diminish the LHWCA’s traditionally broad

coverage of workers injured on actual navigable waters.

Perini, 459 U.S. at 315, 323-24, 103 S.Ct. at 646, 650-

51; see also Grant Gilmore & Charles L. Black, Jr., The

Law of Admiralty 428 (2d ed. 1975) (observing that,

at least before the 1972 Amendments, “[w]orkers who are

not seamen but who nevertheless suffer injury on navi-

gable waters are no doubt (or so the courts have been

willing to assume) engaged in ‘maritime employment’ ”).

Had the Fontenot court relied on the fact that Fontenot

was employed on vessels, i.e., on actual navigable waters,

some thirty percent of the time as well as on the day

of his accident, its holding would be within the Perini

rule. Instead, the court chose te rely solely on the situs

of Fontenot’s injur-’:

The Court [in Herh’s Welding] did not address the

Status of an oil field employee injured while in

transit on navigable waterways, or one who spent a

substantial per*sd of his time working on drilling

vessels, rather than fixed platforms.

16a

This case presents both issues. Fontenot injured

himself while on a vessel in navigable waters. And

Fontenot spent thirty percent of his tirne working

on oil production vessels, and was returning from a

job on such a vessel when he injured himself. We

hold that the first fact satisfies the status test for

coverage under the LHWCA, and address but leave

open the question of whether the second would sat-

isfy the status test.

Id. at 1130 (emphasis added). We understand “the first

fact” to be the fact that “Fontenot injured himself while

on a vessel in navigable waters.” Id. By holding that the

occurrence of an injury on actual navigable waters sat-

isfies the “status” test, the Fontenot court answered the

question of whether LHWCA coverage extends to workers

injured while transiently or fortuitously upon actual navi-

gable waters in the affirmative.

Chevron’s reliance on the concurring opinion in Fonte-

not is understandable but ultimately futile. The con-

curring judge asserted that the court was not reaching

the case “of injury in transit on navigable waters of a

worker on fixed platforms.” Jd. at 1134 (Higginbotham,

J., concurring). The concurrence also Suggests that the

court’s holding is based in part on Fontenot’s employment

on vessels and the fact that he was injured while return-

ing from a vessel. Jd. (Higginbotham, J., concurring ).

We cannot agree. The passages from the court's opinion

quoted supra make it clear that the court relied solely on

the fact that Fontenot was injured on navigable waters in

finding LHWCA coverage. See also id. at 1132 (“Because

he was on ‘navigable waters’, as that term was defined

prior to the 1972 Amendments to the LHWCA. Fonte-

not, satisfied both the status and situs tests.”). The court

thus went beyond a mere application of Perini and de-

cided the question left open in that case and in Herbh’s

Welding: in this circuit, workers injured while transi-

ently or fortuitously upon actual navigable waters are

17a

covered by the LHWCA. We are bound to follow the

Fontenot court’s determination.®

Applying Fontenot to the instant case, we think it be-

yond cavil that Randall was injured “on navigable waters”

within the meaning of Perini and the LHWCA. The ac-

cident occurred during Randall’s attempt to return to

shore. The instant case is thus on all fours with Fontenot,

and we must therefore conclude that Randall was covered

by the LHWCA.

B. Apportionment of Fault

1. Time Charterer Liability

We next consider the district court’s appointment of

liability between Chevron and Sea Savage. The court ap-

portioned fault because, under § 905(b) of the LHWCA,

a longshoreman injured by the negligence of a “vessel”

is entitled to bring an action against that vessel. The

court determined that Chevron constituted a “vessel” be-

cause the term “vessel” is defined by the LHWCA to in-

clude not only the vessel’s owner but also a “charter or

bare boat charterer.” 33 U.S.C. §902(21). Thus a

time charterer may be liable under § 905(b) if the cause

of the harm is “within the charterer’s traditional sphere

of control and responsibility or has been transferred

thereto by the clear language of the charter agreement.”

5 Fontenot’s interpretation of the LHWCA conflicts with that

of the Eleventh Circuit. In Brockington v. Certified Elec., Inc., 903

F.2d 1523, 1528 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111

S.Ct. 676, 112 L.Ed.2d 668 (1991), the court held that an elec-

trician whose employment was entirely landbased but who was

injured while riding in a motorboat to an island jobsite was not

covered by the LHWCA. The court’s remark that Brockington’s

“only connection with the water was the fact that he happened

to be traveling over it incidental to land-based employment,” id.,

is equally true of Randall. Nevertheless, Fontenot remains binding

precedent in this circuit and must be followed unless changed by

a decision of this court en banc or the United States Supreme Court,

or by future amendments to the LHWCA itself.

18a

Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830

F.2d 1332, 1343 (Sth Cir.1987): see also Helaire v.

Mobil Oil Co., 709 F.2d 1031, 1041-42 (Sth Cir.1983)

(holding that a time charterer could be liable under

§ 905(b) of the LHWCA for ordering a worker to un-

load equipment from a vessel to a platform during rough

weather); cf. 2 Alex L. Parks, The Law and Practice of

Marine Insurance and Average 884-85 (1987) (“[The

body of law governing time charterer liability in § 905

(b) cases] is just now developing; it is confusing and it

is inconclusive.” ).

We begin by noting that the LHWCA casts a wide net

in defining parties potentially liable in the event of in-

jury caused by vessel negligence. The statute provides

that

Unless the context requires otherwise, the term

“vessel” means any vessel upon which or in connec-

tion with which any person entitled to benefits under

this chapter suffers injury or death arising out of or

in the course of his employment, and said vessel’s

owner, owner pro hac vice, agent, operator, charter

or bare boat charterer, master, officer, or crew mem-

ber.

33 U.S.C. § 902(21). Nothing in the statute suggests

that a finding that negligence was committed by one

entity defined as a “vessel” in § 902(21), such as the

vessel’s owner, precludes a finding that another such en-

tity, such as a charterer, was also contributorily negligent.

Indeed, holding each such entity liable in proportion to

its degree of fault advances the purpose underlying the

LHWCA, which is to provide longshoremen with the

benefits of workers’ compensation without depriving them

of the right to be compensated for their injuries caused by

the negligence of third paries or eliminating the incentive

for third parties to provide longshoremen with a safe

place to work. Perez v. Arya Nat'l Shipping Line, Ltd.,

468 F.Supp. 799, 802 (S.D.N.Y.1979), aff'd mem., 622

19a

S75 (2d Cir.1980), aff'd sum nom. Rodriguez v. Com-

pass Shipping Co., 451 U.S. 596, 101 S.Ct. 1945, 68

L.Ed.2d 472 (1981). It is also beyond dispute that time

charterers are among those third parties included in the

definition, although they are not specifically menticned.

Kerr-McGee Corp., 830 F.2d at 1338.

Chevron argues that there was no evidence that it was

negligent in its capacity as time charterer of the SEA

SAVAGE. In his oral findings, the district judge found

Chevron negligent for “direct{ing] the vessel to remain

in, and to encounter the treacherous weather conditions

that existed in the Gulf.” Chevron argues that there is

no duty on the part of a time charterer to determine

whether the missions it assigns can be accomplished

safely. In Chevron’s view, this duty rests solely with the

vessel captain unless specific contractual provisions shift

duties onto the time charterer. Sea Savage takes the op-

posite position, arguing that the district court correctly

held that a time charterer may be held liable for damages

that result from directing a vessel to encounter dangerous

natural conditions.

Sea Savage cites several cases in its favor, beginning

with the Helaire case cited above. In that case, Edmond

Helaire was employed by Mobil as a roustabout and was

ordered to unload casing onto a fixed platform from a

supply vessel during rough weather. Helaier, 709 F.2d

at 1032-33. He slipped and injured his knee, id. at 1034.

and sued both Mobil, which was the time charterer of the

vessel, and the vessel owner under the LHWCA. In a

jury trial, Mobil was found 100% liable and the vessel

Owner was exonerated, and the district court granted Mo-

bil recovery from the vessel owner’s underwriters pur-

suant to protection and indemnity insurance that named

Mobil as an additional insured. Jd. Mobil and the un-

derwriters then engaged in a dispute over whether Mobil’s

negligence had been committed in its capacity as platform

owner or as time charterer. Jd. at 1041. We held that

20a

the district court properly predicated Mobil’s negligence

On its actions as time charterer, based on Mobil’s acts

or Omissions in permitting the unloading of cargo from

the vessel to continue “despite the obvious danger created

by the poor weather conditions.” Jd. at 1042.

There are other precednts for the district court’s as-

signment of fault to Chevrer as time charterer. In

Graham v. Milky Way Barge, Inc., 824 F.2d 376, 378

(Sth Cir.1987), Chevron had time chartered the M/V

STAR II to service equipment in the Gulf. Chevron dis-

patched the STAR II into the Gulf at a time wher. it was

aware of a forecast of dangerous weather conditions, and

the vessel capsized, killing one and injuring three others.

Id. at 387, 378. The district court found that Chevron’s

negligence as time charterer in failing to inform the ves-

Sel’s captain of the weather forecast and in dispatching

and failing to recall the vessel was 30% responsible for

the injuries and losses sustained. /d. at 387. We affirmed

this finding. Jd. Likewise, in In re P & E Boat Rentals,

Inc., 872 F.2d 642, 646-47 (Sth Cir.1989), in which two

vessels collided, we affirmed a finding that Chevron as

time charterer was liable for its negligence in ordering

the captain of one vessel to operate his vessel at high

speeds in heavy fog. See also Kerr-McGee Corp., 880

F.2d at 1341 (“The time-charterer directs where and

when the vesse! wil! travel, so if it forces it out in hurri-

cane weather or similarly treacherous conditions, it may

be liable under section [905(b) of the LHWCA\].”).

Chevron counters by referring this court to our deci-

sion in M.O.N.T. Boat Rental Servs., Inc. v. Union Oil

Co., 613 F.2d 576 (Sth Cir.1980). In that case, Union

Oil chartered the vessel BOBBY O from M.O.N.T. to

transport personnel and supplies. off the coast of Nica-

ragua. Id. at 577. A crew member was injured after the

BOBBY O put to sea on Union Oil’s orders, and he re-

covered against M.O.N.T. under a claim of Jones Act

negligence. Id. at 577-78. M.O.N.T. then sued Union

2la

Oil, and the district court dismissed. We affirmed, first

noting that the time charter contained the usual under-

Standing that the vessel captain could refuse to Carry

out tasks without breaching the charter if his refusal was

based on a good faith belief that the task was unsafe.

Id. at 578. Thus, we held that, if Union Oil’s order was

at all negligent, it could not be “active or primary negli-

gence relative to M.O.N.T.’s negligence in bringing about

[plaintiff's] injuries.” Id. at 581-82. Thus, M.O.N.T. was

not entitled to tort indemnity from Union Oil. Id. at 582.

Chevron also directs our attention to Smith v. Southern

Gulf Marine Co. No. 2, Inc., 791 F.2d 416 (Sth Cir.

1986). The time charterer in that case ordered a vessel

to deliver personnel to a platform in rough seas. Z/d. at

418. Just before leaving the vessel, the plaintiff, Ronald

Smith, slipped and fell. Jd. He sued several parties,

including the time charterer of the boat (his employer,

McMoran Offshore Exploration Co.), and the trial court

ruled in favor of McMoran. /d. at 419. We affirmed,

holding that Smith could not recover from McMoran on

the theory that McMoran was responsible for any injuries

occurring as a consequence of its decision to transport

workers by crewboat, because the ultimate decision about

whether to proceed rested with the crewboat captain. /d.

However, we also agreed with the trial court that “the

decision to proceed by crewboat was not unreasonable.”

Id.

The trend of our more recent decisions, as demon-

strated by Sea Savage, plainly favors imposing a duty of

care on a time charterer who orders the vessel he has

hired to put to sea in dangerous weather. We distin-

guished M.O.N.T. Boat Rental in Graham. noting that

M.O.N.T. Boat Rental “implicitly recognizes that there is

a distinction between a time charterer’s potential lability

under the time charter and independent tort liability which

is not governed by the time charter.” Graham, 824 F.2d

at 388. Additionally, the concepts of active and passive

22a

negligence have fallen by the wayside with the advance

of the comparative negligence doctrine. See Hardy vy.

Gulf Oil Corp., 949 F.2d 826, 834 n. 13 (Sth Cir.1992):

Loose v. Offshore Navigation, Inc., 670 F.2d 493, 500-02

(Sth Cir.1982).. The force of the language. in Smith sug-

gesting that the time charterer was not responsible for

injures resulting from sending the vessel into rough seas

is undercut by that court’s agreement with the district

court that the time charterer’s decision was “not unreason-

able.” Smith, 791 F.2d at 419.

We think it clear that a time charterer may breach its

duty of care if it “forces [the vessel under charter] out

in hurricane weather or similar treacherous conditions.”

Ker-McGee Corp., 830 F.2d at 1341; see also Moore v.

Phillips Petroleum Co., 912 F.2d 789, 791-92 (Sth Cir.

1992); Graham, 824 F.2d at 388; Helaire, 709 F.2d at

1041-42. The district court was correct to hold that

Chevron could be held negligent in its capacity as time

charterer and that such negligence was negligence com-

mitted as a “vessel” within the meaning of the LHWCA

2. Sufficiency of the Evidence

Sea Savage argues that it was clearly erroneous for the

district court to assign 75% of the liability for Randall’s

death to Sea Savage. Specifically, Sea Savage contends

that the district court should have assigned more than

25% of the liability to Chevron for its role in ordering

the evacuation of the platform by vessel instead of by

helicopter, and that the district court should have found

Randall himself contributorily negligent.

We reject both of Sea Savage's contentions. There was

ample evidence to support the district court’s assignment

of 75% of the fault to Sea Savage, based on the acts and

omissions of the crew of the SEA SAVAGE. We list

only a few of the pertinent factual findings by the district

court, all of which were supported by the evidence. The

captain of the SEA SAVAGE failed to post any crew

23a

members near the stern of the vessel where platform

personnel would be boarding, despite the rough weather

conditions. No life ring was easily accessible at the stern

of the vessel, and to retrieve a life ring deckhand Nash

had to leave the stern of the vessel, run approximately fifty

feet to the rear of the pilothouse (impeded by an ob-

structing hatch), and return to the stern of the vessel.

Without determining Randall’s whereabouts, the Captain

put the vessel into gear and moved away, thereby push-

ing Randall so far from the vessel that Nash could not

throw him the life ring. The district court also cited

several other departures from man overboard procedures

posted on the SEA SAVAGE, as well as the failure of

Sea Savage to train the vessel’s crew properly in rescue

procedures. The apportionment of 75% of the liability

to Sea Savage and only 25% to Chevron for its role in

ordering the evacuation was not clearly erroneous.

Neither was it clearly erroneous for the district court

to assign no fault to Randall himself. There was eye-

witness testimony that Randall’s swing was not improperly

done. Because the SEA SAVAGE began to move away

from Randall as soon as he fell overboard, his decision to

swim beneath the platform and cling to its legs for sup-

port could be found to be reasonable under the circum-

stances. We find no error in the district court’s apportion-

ment to fault in this case.

C. Damages

Chevron challenges two elements of the district court's

damages award. First, Chevron argues that it was clear

error for the district court to award $1,000,000 for Ran-

dall’s pain and suffering. Second, Chevron argues that

the district court’s award of loss of society damages was

improper under the LHWCA.

24a

1. Pain and Suffering

A trial judge’s assessment of damages is a finding of

fact and is reviewed under the clearly errorcous standard.

Wheat v. United States, 860 F.2d 1256, 1259 (Sth Cir.

1988); Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1035

(Sth Cir.1984). In the context of jury verdicts, we have

held that an award is disproportionate to the injury sus-

tained if it is so large that it shocks the judicial con-

science or indicates passion, prejudice, corruption, bias, or

another improper motive. Wellborn v. Sears, Roebuck &

Co., 970 F.2d 1420, 1427 (Sth Cir.1992). If we deter-

mine that an award is disproportionate to the injury, we

will order a remittitur in accordance with the maximum

recovery rule, which mandates that the award be reduced

to the maximum amount the jury could properly have

awarded. Id. at 1427-28.

After careful consideration, we conclude that the

$1,000,000 award for Randall’s pain and suffering must

be reduced to $500,000. We recognize that “[o]ur re-

assessment of [pain and suffering] damages cannot be

supported entirely by rational analysis, but is inherently

subjective, involving experience and emotions as well as

calculation.” Dixon v. International Harvester Co., 754

F.2d 573, 590 (Sth Cir.1985). Randall’s pain and suf-

fering, although extreme, was mercifully brief. The dis-

trict court’s award of $1,000,000 translates into $40,000

per minute of pain and suffering, or almost $60,000,000

per day. In the Sosa case. we suggested that $1,000,000

approached the maximum amount that could be awarded

to a burn victim who sustained severe burns over eighty

percent of his body and who would endure discomfort

and disability for the rest of his life. Sosa, 736 F.2d at

1035. Likewise, in Stratis v. Eastern Air Lines, Inc., 682

F.2d 406 (2d Cir.1982), the court reversed a $1,200,000

pain and suffering award to a plane-<rash victim who

spent forty-two days in a hospital burn unit and emerged

a quadriplegic. 7d. at 415 (noting that “in anyone's cal-

25a

culations [an award of approximately $29,000 per day]

has to be excessive” ).

The instant case is distinguishable from Wellborn, in

which we affirmed a $1,000,000 award for pain and

suffering to the estate of a fourteen year-old boy who

died after being pinned beneath an automatic garage

door. Wellborn, 970 F.2d at 1422-23, 1428, Randall

clearly suffered no more than roughly twenty-five minutes,

while the evidence in Wellborn showed that the decedent

could have been alive and conscious for up to several

hours while pinned beneath the door. Id at 1428. Addi-

tionally, Randall was a mature adult rather than a young

child. We do not find Wellborn to be controlling.

We believe that $500,000 for Randall’s pain and suf-

fering would be reasonable. Should Sea Savage, now the

real party in interest (see note 1, supra), refuse to accept

the reduction of the pain and suffering award, it will be

entitled to a new trial on damages alone. Dixon, 754

F.2d at 590.

2. Loss of Society

We next address Chevron’s challenge of the district

court's awards for loss of society. Under his heading, the

district court awarded $300,000 to Randall’s widow,

$100,000 to Randall's adult son Rod Randall, and

$150,000 to Randall’s daughter Holly Randall. It ap-

pears that both of Randall’s children lived at home and

that Rod Randall worked for his father. Chevron argues

that.non-pecuniary damages such as for loss of society

are not available as a matter of law in the instant case.

We disagree.

The availability of loss of society damages in maritime

as€s 1S an issue that has led the courts to weave an

intricate web of case law. We begin our analysis with

the seminal case of Sea-Land Servs., Inc. v. Gaudet. 414

U.S. 573, 94 S.Ct. 806, 39 L.Ed2d 9 (1974). In

26a

Gaudet, the Supreme Court held that the widow of a

longshoreman could maintain a wrongful death action

based on the death of her husband from injuries suffered

while aboard a vessel in navigable waters, even though

the decedent recovered damages during his lifetime for

his injuries. Jd. at 574-75, 94 S.Ct. at 809-10. The

Court further held that compensation for loss of society

is available in such cases. Id. at 585-90, 94 S.Ct. at

814-17. The Court eventually extended the Gaudet rule

in American Export Lines, Inc. v. Alvez, 446 US. 274,

276, 100 S.Ct. 1673, 1675, 64 L.Ed.2d 284 (1980), to

allow recovery of loss of society damages by the spouse

of a longshoreman who is injured but not killed.

In a case not involving longshoremen, however, the

Supreme Court took a less expansive view of the remedies

available under maritime law. In Mobil Oil Corp. v.

Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d

581 (1978), the Court considered whether the survivors

of a helicopter pilot who crashed in the Gulf of Mexico

Outside state territorial waters could recover loss of society

damages. The Court held that they could not, noting that

Gaudet applied only to coastal waters, while the Higgin-

botham case concerned an accident on the high seas and

was governed by the Death on the High Seas Act

(DOHSA), 46 U.S.C.App. § 762. Id. at 623-24, 98 S.Ct.

at 2014. Because DOHSA plainly limited recovery to

“pecuniary loss[es],” the Court held that the federal

courts were not free to “supplement” the congressional

directive to the point of meaninglessness. /d. at 625, 98

S.Ct. at 2015. Significantly, the Court observed that

“DOHSA should be the courts’ primary guide as they re-

fine the nonstatutory death remedy, both because of the

interest in uniformity and because Congress’ considered

judgment has great force in its own right.” Jd. at 624,

98 S.Ct. at 2014 (emphasis added).

After Alvez, the maritime rules regarding loss of so-

ciety damages in this circuit developed somewhat un-

27a

evenly. In light of Gaudet and Alvez, we took a friendly

view of loss of society damages in Cruz v. Hendy Int'l

Co., 638 F.2d 719 (Sth Cir.1981) (overruling in part

Christofferson v. Halliburton Co., 534 F.2d 1147 (5th

Cir.1976)). In that case a seaman suffered personal in-

juries while his vessel was in Louisiana territorial waters.

Id. at 721. His wife sued for loss of consortium and loss

of society under the Jones Act and general maritime law.

Id. at 722. We held that the spouse of a person entitled

to recover for vessel unseaworthiness has a cause of ac-

tion for loss of society, whether the injured person was

injured on the high seas or in territorial waters. Id. at

725. On the other hand, we held that the non-dependent

varents of a seaman killed in territorial waters and sur-

vived by a spouse or children could not recover loss of

society damages under the general maritime law in Sis-

trunk v. Circle Bar Drilling Co., 770 F.2d 445, 460-61

(Sth Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct.

1205, 89 L.Ed.2d 318 (1986). Applying the general

maritime law to an accident that occurred on Lake

Pontchartrain, the court in Truehart v. Blandon, 672

F.Supp. 929, 930 (E.D.La.1987), extended Sistrunk to

bar loss of society recovery to non-dependent parents of

a non-seaman killed on navigable waters and leaving no

surviving spouse or children.

In 1990, the Supreme Court again turned its attention

to this complex area of the law. In Miles v. Apex Marine

Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275

(1990), a seaman had been stabbed to death by a fellow

crew member, and the decedent’s mother sued the vessel

owner for compensation, including loss of society dam-

ages. Id. at 21-22, 111 S.Ct. at 320. The issue before

the Court was whether loss of society damages are recov-

erable in a suit brought under the general maritime law

for the death of a Jones Act seaman. /d. at 21, 111 S.Ct.

at 320. The Court held that such damages are not re-

coverable, extending the rule established in Higginbotham

for DOHSA cases to “ail actions for the wrongful death

28a

of a seaman, whether under DOSHA, the Jones Act. or

general maritime law.” Jd. at 33, 111 S.Ct. at 326. The

Court limited Gaudet to its precise facts. Id. at 31, 111

S.Ct. at 325 (“The holding of Gaudet applies only in

territorial waters, and it applies only to longshoremen.” ).*

Thus, Gaudet remains good law, even though its ap-

plication has been severely limited. This case comes

Squarely within its ambit. Randall, we have held, was a

longshoreman within the meaning of the LHWCA, and

his accident occurred within Louisiana state territorial

waters. Miles, therefore, does not preclude loss of society

damages as a matter of law in the instant case. The con-

tinued vitality of Gaudet and Alvez on their facts has

been noted. See Ferrana v. Fukuoka Senpaku K.K., 1991

A.M.C. 2249, 2252, 1991 WL 50040 (D.Mass.1991)

(holding that an injured longshoreman Suing under the

LHWCA may still bring claims for loss of consortium on

behalf of his spouse under Alvez even after Miles). We

note, as did the Ferrara court, that the LHWCA does not

explicitly limit damages recoverable to “pecuniary dam-

ages,” as do the DOHSA and the Jones Act. Id. We

hold that, under Gaudet, Randall’s survivors were entitled

to recover loss of society damages.

Chevron argues in the alternative that the district court

erred in awarding loss of society damages to Randall’s

adult son because only financial dependents may recover

such damages and there was no evidence that Rod Ran-

dall was dependent upon his father. In our view, the law

of this circuit does not unequivocally limit recovery of

loss of society damages for the wrongful death of a parent

to children who are financially dependent on the deceased

* The limitation of the Gaudet rule to longshoremen injured in

state territorial waters has been scrupulously observed. See Robert-

son v. Arco Oil and Gas Co., 766 F.Supp. 535, 589 (W.D.La.) (hold-

ing that a dependent of a longshoreman injured on the outer conti-

nenta! shelf rather than in state territorial waters may not recover

damages for loss of the longshoreman’s consortium), aff'd, 948 F.2d

132 (5th Cir.1991).

29a

parent. The case of Skidmore v. Grueninger, 506 F.2d

716 (Sth Cir.1985), Clearly holds that adult offspring

are within the class of plaintiffs entitled to loss of society

damages in a Moragne wrongful death action. /d. at 729

n. 11. Financial dependence was not mentioned in Skid-

more as a prerequisite to recovery of loss of society dam-

ages by an adult child, and in dicta we have characterized

Skidmore as allowing an adult, non-dependent child to

recover for loss of her mother’s society. Sistrunk, 770

F.2d at 458 n. 2. More recently, however, we have noted

that the district court in Skidmore explicitly found that

the adult child seeking loss of society damages was in fact

dependent on the decedent. Miles v. Melrose, 882 F.2d

976, 987 (Sth Cir.1989), aff'd sub nom. Miles vy. Apex

Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d

275 (1990).

In any event, we need not unravel this tangled skein of

case law today. In ruling on Sea Savage’s post-trial motion

to amend the judgment, the district court specifically

found that Rod Randall was financially dependent on his

father. Both Sea Savage and Chevron argue in their briefs

that there was no evidence to support this finding, making

much ado about the fact that Randall did not declare his

son as a dependent on his income tax returns. However,

other credible evidence supports the district court’s find-

ing. As Rod Randall testified, he had dropped out of

college and was living at home when his father died.’

It appears that he had lived at home for most of his life;

indeed, he was only twenty-one at the time of his father’s

death. He worked for his father helping maintain the

family’s farm and trucking equipment. The district court’s

finding of dependence was not clearly erroneous. When a

’ The court below also held, in the alternative, that a presumption

of dependency exists whenever a child continues to live at home

with his parents, adopting the reasoning found in Truehart v.

Blandon, 672 F.Supp. 929, 937 (E.D.La.1987). Because we affirm

tke court’s finding that Rod Randall was in fact dependent upon

his father, we need not address the validity of this presumption.

30a

family unit is maintained by dependence on a single

family member, each of the dependents may recover for

his losses including loss of society in a Morange wrong-

ful death claim under general maritime law. In re Com-

plaint of Patton-Tully Transp. Co., 797 F.2d 206, 213

(Sth Cir.1986).

We affirm the district court’s awards of loss of society

damages.

D. Indemnity and Insurance

As is often the case in this type of dispute, the most

hotly contested issue is not whether the accident victim

or his family should be compensated but rather who

should ultimately bear the cost of that compensation. The

district court decided that Chevron was entitled to both

indemnification for its liability from Sea Savage and in-

surance coverage for its liability from the underwriters of

the insurance procured for Chevron by Sea Savage. We

address these holdings in turn.

1. Indemnity

Sea Savage mounts a two-pronged attack on the district

court’s holding that it was liable to indemnify Chevron

in this case. First, Sea Savage argues that the language

of the indemnity clause contained in its time charter with

Chevron does not entitle Chevron to indemnification for

damages arising out of Chevron’s own negligence. Sec-

ond, Sea Savage argues that Chevron’s liability in this

case does not arise out of the “management or control”

of the SEA SAVAGE as required by the time charter.

Because Sea Savage’s first argument is meritorious, we do

not reach Sea Savage’s second point.

We begin our analysis with the words of the time

charter themselves. That contract provides, in pertinent

part, as follows:

|

|

3la

Owner shall man, operate, and navigate the vessel.

The vessel shall prosecute its trips and perform its

services with dispatch, as directed by the charterer,

but responsibility for the management and naviga-

tion and operation of the vessel shall remain at all

times in the owner, same as when trading for owner’s

account; and nothing herein contained shall be con-

strued as making this a demise. . . . Owner hereby

agrees to defend, indemnify and hold harmless Chev-

ron against all claims for taxes or for penalties or

fines, as well as against any and all claims for dam-

ages, whether to person or property, and howsoever

arising in any way directly or indirectly connected

with the possession, navigation, management, and

operation of the vessel.

As a maritime contract, the time charter is governed by

federal law. Thurmond v. Delta Well Surveyors, 836

F.2d 952, 952 (Sth Cir.1988). Indemnity agreements

are valid and enforceable under federal law. 7d.

Sea Savage argues that Lanasse v. Travelers Ins. Co.,

460 F.2d 680 (Sth Cir.1971), cert. denied, 406 U.S. 921,

92 S.Ct. 1779, 32 L.Ed.2d 120 (1972), is dispositive.

In that case a crane operator on an offshore oil platform

owned by Chevron accidently injured Porphine Lanasse,

a crew member on a vessel receiving equipment from the

platform. /d. at 582. Chevron argued, as it argues here,

that the indemnity provision of its time charter with the

vessel owner shifted all liability for the incident onto the

vessel owner. /d. at 683. Examination reveals that the

indemnity provision at issue in the instant case is essen-

tially identical to the one at issue in Lanasse, from which

we quote:

Owner shall man, operate, and navigate the vessel.

* * * Responsibility for the management and navi-

gation and operation of the vessel shall remain at all

times in the owner. * * * Owner hereby agrees to

indemnify and hold harmless [Chevron] against all

32a

claims * * * as well as against any and all claims

for damages, whether to person or property, and

howsoever arising in any way directly or indirectly

connected with the possession, navigation, manage-

ment, and operation of the vessel.

Id. at 582 n. 4 (emphasis deleted). The court held that

the language of this indemnity agreement could not be

stretched so far as to reach the negligence of Chevron’s

crane Operator, as this negligence was “not even remotely

related to the operation, navigation or management of

the vessel.” Jd. at 583. We also held that, even if the

crane accident were covered under the “operation of the

vessel” clause, the indemnity provision could not be con-

strued to entitle Chevron to indemnification for liability

arising from the negligence of its own employees. /d. at

583-84 (stating that contractual indemnity for one’s own

negligence arises only from the “plainly expressed inten-

tion of the parties, manifested by language couched in

unmistakable terms”).

The district court relied on In re Incident Aboard D/B

Ocean King, 758 F.2d 1063 (Sth Cir.1985), in reaching

its conclusion that this indemnity provision did include

an agreement that Sea Savage would indemnify Chevron

for losses arising out of Chevron’s own negligence. That

case involved a gas blow out and fire aboard a jackup

drilling rig off the coast of Texas. Jd. at 1065. The oper-

ator of the rig had agreed to bear all costs and liability

in the event of a blow out “from any cause,” and the con-

tract provided that Louisiana law applied. Jd. at 1067

& n. 5. Noting that this contract involved an “allocation of

risk provision” rather than an “indemnity” provision, we

held that, under Louisiana law, the language was broad

enough to require the operator to bear the risk of the

owner's negligence. Jd. at 1067 (citing Polozola v. Gar-

lock, Inc., 343 So.2d 1000 (La.1977), and Polozola vy.

Garlock, Inc., 376 So.2d 1009 (La.Ct.App.1979), cert.

denied, 379 So.2d 1103 (La.1980) ).

33a

Sea Savage argues that Ocean King is inapposite be-

Cause it involved the application of Louisiana law rather

than federal law. The district court reached the opposite

conclusion, using the following reasoning: (1) Louisiana

law requires more specificity than federal law in order

for an indemnity provision to include indemnification for

an indemnitee’s own negligence; (2) the instant indem-

nity provision would inchide indemnification for Chev-

ron’s own negligence under Louisiana law; and (3) there-

fore the instant indemnity provision includes indemnifica-

tion for Chevron’s own negligence under federal law.

Randall, 788 F.Supp. at 1396.

We are not convinced that the district court’s basic

assumption—that federal law construes indemnity pro-

visions more generously in favor of the indemnitee than

Louisiana law—is correct. Our cases. reveal many in-

stances in which we have held that “[llong-established

general principles of interpreting indemnity agreements

require that indemnification for an indemnitee’s own neg-

ligence be clearly and unequivocally expressed.” Theriot,

783 F.2d at 540 (quoting Seal Offshore, Inc. v. American

Standard, Inc., 736 F.2d 1078, 1081 (Sth Cir.1984));

see also United States v. Seckinger, 397 U.S. 203, 211,

90 S.Ct. 880, 885, 25 L.Ed.2d 224 (1970) (interpreting

a government contract according to the principle that “a

contractual provision should not be construed to permit

an indemnitee to recover for his own negligence unless

the court is firmly convinced that such an interpretation

reflects the intention of the parties”); Orduna S.A. v.

Zen-Noh Grain Corp., 913 F.2d 1149, 1153 (Sth Cir.

1990) (“Before enforcing an indemnification clause for

an indemnitee’s own negligence, a court must be firmly

convinced that the exculpatory provision reflects the in-

tention of the parties.” (citations omitted) ). Our inter-

pretation of Louisiana law has been consistent with these

principles. See Amoco Prod. Co. v. Forest Oil Corp.,

844 F.2d 251, 253 (Sth Cir.1988) (“Under Louisiana

law, however, an indemnification agreement will not be

34a

construed to cover losses arising from the indemnitee’s

negligence unless a mutual intent is expressed in un-

equivocal terms.” (footnote omitted) ); Ocean King, 758

F.2d at 1068. The applicable standard thus seems to be

the same under both Louisiana and federal law.

It may be that the Ocean King case, relied upon by

the district court, is properly distinguished from the in

stant case. Our case is somewhat similar to Amoco Pro-

duction, 844 F.2d at 256, in which the court confronted

a contractual provision in which the parties agreed that

the “specific operation” in question would be conducted

at the “sole cost, risk and expense” of one party. The

court declined to follow Ocean King and instead held

that the provision did not demonstrate with sufficient

clarity a mutual intent to provide indemnification for

Amoco’s negligence. /d. at 254. In distinguishing Ocean

King, the court first noted that the indemnity provision

in Ocean King was much more specific than the general

indemnity provision at issue in Amoco Production. Id. at

256. The same may be said of the indemnity provision at

issue in the instant case. We do not believe that Sea

Savage's duty to indemnify Chevron for losses “howso-

ever arising” is sufficiently clear and unequivocal to shift

liability for Chevron’s negligence onto Sea Savage. As

the Amoco Production court also noted. the result in

Ocean King seems to have been based in part on the fact

that the agreement in that case was the product of ex-

tensive negotiations, id. at 257 n. 9, the time charter

in the instant case seems to be a form contract prepared

1d provided by Chevron. Finally, we note that indem

nity contracts are to be strictly construed. Smith v. Ten

neco Oil Co., 803 F.2d at 1388

In the final analysis, however, we need not decide

whether Ocean King is distinguishable because Lanasse is

controlling. Confronting the indemnity provision in

Lanasse we held that damages caused bv the indemnitee’s

own negligence were not covered. Lanasse, 450 F.2d at

35a

582 n. 4, 583-84. There are no legally significant dif

ferences between that indemnity provision and the one

in the instant case—indeed, both appear to be derived

from Chevron’s own form contracts. Even if Lanasse and

Ocean King are in conflict, we are bound to follow La-

nasse as the earlier precedent. Luna v. United States

Dep't of Health and Human Servs., 948 F.2d 169, 172

(Sth Cir.1991). If proof of the continuing vitality of

Lanasse were required, it would be provided bv our dis-

position in Lavergne v. Chevron U.S.A., Inc., 782

F.Supp. 1163, 1172 (W.D.La.1991), aff'd mem., 980

F.2d 1444 (Sth Cir.1992), in which the district court

confronted language identical to the indemnity provisions

in the instant case and held that it did not require in-

demnification for Chevron’s (the indemnitee’s) own neg-

ligence. Thus, in light of Lanasse and our disposition in

Lavergne, we hold that the district court erred in holding

that Chevron was entitled to indemnification from Sea

Savage for those damages aitributable to Chevron’s own

negligence.

2. Insurance

Although we have concluded that Chevron was not en

titled to indemnification from Sea Savage under the terms

of the time charter, Chevron may still avoid bearing the

ultimate cost for its negligence through the protection

ind indemnification policy (P & I policy) procured by

Sea Savage naming Chevron as an additional insured. Sea

Savage was required to provide Chevron with such ins

ince protection by the terms of the time charter, thi

‘levant portion of which reads as follows

During the life of this charter. owner will, at

own expense, provide and maintain insurance cover

ing all liabilities which might arise from the posse

ion, Management, manning, navigation and opera-

tion of the vessel, which said policies shall be in

form and amount, and with companies as required

and approved by Chevron; and on which policies

36a

Chevron shall be included as party assured and all

rights of subrogation against Chevron shall be

waived.

Sea Savage obtained primary insurance coverage from

Royal insurance Company, among others, and excess cov-

erage from American Home Insurance Company (collec-

tively, “the underwriters”).

>]

-

The underwriters moved for summary judgment on

Chevron’s claims against them before trial. The district

court granted these motions on the grounds that Randall’s

accident fell outside the scope of the P & I policy. Ran-

dall, 788 F.Supp. at 1399-1400. After trial, the court

reconsidered its decision and reversed itself. holding that

the accident was within the scope of the policy and that

Chevron was entitled to insurance coverage. See id. at

1406. The court found that no prejudice to the under-

writers resulted from their absence from the trial. /d. at

1400-01. The underwriters challenge the district court’s

holding that Chevron is entitled to insurance coverage for

its share of the liability for Randall’s death.

The pertinent provision in the P & I policy issued to

Chevron reads as follows:

The Assurer hereby undertakes to make good to

the Assured . . . all such loss and/or damage and/or

expense as the Assured shal! as owners of the vessel

named herein have become liable to pay and shall

pay on account of . . . liability for loss of life of, or

personal injury to, or illness of, any person... .

(emphasis added). The underwriters argue that Chev-

ron’s negligence in this case was not comms fed in the

capacity of “owner” of the SEA SAVAGE, and that

Chevron thus lacks coverage under the policy. Chevron

argued to the district court that this clause had been

deleted, but the district court disagreed. see Randall,

788 F.Supp. at 1401-03. and Chevron does not challenge

this finding on appeal.

37a

The question presented for our decision, quite simply,

is whether the district court correctly held that the lia-

bility incurred by Chevron in its Capacity as time char-

terer was incurred “as owner” within the meaning of the

insurance policy. The court’s reasoning, it appears, was

largely based on the assumption that the term “owner”

has the same meaning in the insurance policy as it does

in § 902(21) in the LHWCA. Randall, 788 F.Supp. at

1405 (“Because the LHWCA treats a time charterer as

a vessel owner and because Chevron’s negligence arose

from its status as time charterer, Chevron incurred its

liability ‘as owner’ of the vessel.”). The underwriters’

argument that “owner” does not necessarily mean the

same thing in the insurance context as it does in the

LHWCA is well-taken. We proceed to our de novo re-

view of this issue of insurance contract interpretation,

tracing the jurisprudence of this circuit on this recurring

question.

Both Chevron and the underwriters acknowledge that

Lanasse is the seminal case in this area of the law. In

Lanasse, Chevron claimed it was entitled to insurance

coverage “as owner” of the vessel on which the victim

was injured by the negligence of Chevron’s crane operator.

Lanasse, 450 F.2d at 583. The court disagreed. In the

words of Chief Judge Brown,

There must be some causal operational relation

between the vessel and the resulting injury. The line

may be a wavy one between coverage and non-cov-

erage, especially with industrial complications in

these ambiguous amphibious operations plus those

arising from the personification of the vessel as an

actor in a suit in rem. But where injury is done

through nonvessel operations, the vessel must be

more than the inert locale of the injury.

Id. at 584 (footnote omitted). Although the phrase

“causal operational relation” does little to clarify the

meaning of the phrase “as owner” in the instant case,

Lanasse clearly suggests that a time charterer may become

38a

eligible for insurance coverage “as owner” under some

circumstances.

The underwriters direct our attention to Graham v.

Milky Way Barges, Inc., 590 F.Supp. 721 (E.D.La.

1984), aff'd in part and rev'd in part, 824 F.2d 376 (Sth

Cir.1987). In that case, the court held Chevron respon-

sible in its capacity as time charterer for its negligence in

dispatching a vessel in rough weather, leading to the cap-

sizing of the vessel. /d. at 728-29. The court also held

that Chevron was not entitled to insurance coverage be-

cause its liability arose out of its acts as platform owner

rather than as owner or operator of the vessel. J/d. at

730. We expressed approval of the district court’s ruling

that Chevron’s negligence was independent of any negli-

gence arising from the “maintenance or operation” of the

vessel, Graham, 824 F.2d at 388, which suggests that

Chevron’s negligence in dispatching the SEA SAVAGE

may have lacked any connection to the operation of the

vessel, and thus that the requisite “causal operational

relation” to the death of Randall may be absent. How-

ever, we did not deny insurance coverage based on Chev-

ron’s status or non-status “as owner,” but rather decided

instead that insurance coverage was not available because

Chevron had violated the navigational and operational

limits imposed by the policy. /d. at 384. Graham thus

does not represent an absolute repudiation of our state

ment in Lanasse that time charterers may be covered by

insurance policies “as owner” in some circumstances

Chevron cites the Helaire case in support of the prop-

osition that any negligence it may have committed as time

charterer is within the “as owner” language of the insur-

ance policy. As we have seen, the time charterer in that

case was held liable for injuries suffered by a worker who

was unloading equipment from a vessel to a platform un-

der $ 905(b) of the LHWCA. Helaire, 709 F.2d at 1033,

1041-42. The district court in Helcire ruled that the time

charterer was entitled to insurance coverage under a pol-

icy essentially identical to the instant policy, and we af-

39a

firmed. Id. at 1041, 1042 & n. 17. However. as the

underwriters point out, we also noted that the words “as

owner of the vessel” had been deleted from the policy,

so the time charterer was entitled to coverage regardless

of the capacity in which it was sued. /d. at 1042. The

opinion also appears to conflate the meaning of “owner”

under the policy with the definition of “vessel owner”

in the LHWCA, although this is not clear. /d. at 1041-42.

Chevron also relies on Texas E. Transmission Corp. v.

Garber Bros., 547 F.Supp. 821 (£.D.La.1982). In that

case, Union Oil Company entered into a time charter

with Garber Bros. for the use of a vessel: during opera-

tions the vessel’s anchor collided with a pipeline owned

by Texas Eastern Transmission Corporation. Union Oil

was named as an additional insured, and the policy ap-

parently included the same “as owner” language as the

policy in issue in the instant case. /d. at 822. Although

the claims against Union Oil were dismissed, Union Oil

sought reimbursement for its expenses under the terms

of the policy. /d. Union Oil argued that it had been sued

by Texas Eastern for directing the vessel to undertake the

operations that damaged the pipeline and for failing to

assist the vessel when the risk of collision became ap-

parent, that these charges were made against Union Oil

in its capacity as charterer of the vessel, and that insur-

ance coverage was thus available. /d. The district court

in Garber Bros. reasoned that vessel-related negligence

by a party comes within the “as owner of” provision,

while negligence committed as platform owner does not.

Id.

Sea Savage and its underwriters argue that Garber

Bros. was implicitly overruled by this court’s decision

in Texas E. Transmission Corp. v. McMoRan Offshore

Exploration Co., 877 F.2d 1214 (5th Cir.). cert. denied,

493 U.S. 937, 110 S.Ct. 332, 107 L.Ed.2d 321 (1989)

In that case. McMoRan was cne of multiple parties that

had hired towing services from Faustug Marine Corpora-

tion. /d. at 1217, 1226. During the towing of a semi-

= an — : ie a

tne ee ~

40a

submersible driiling rig that McMoRan had acquired by

assignment, an anchor of the towing vessel supplied by

Faustug damaged a pipeline owned by Texas Eastern.

Id. at 1217-19. McMoRan’s liability for its role in order-

ing the retrieval of the anchor was assessed at 10%. /d.

at 1220-21. In the course of discussing whether the con-

tract between Faustug and McMoRan required Faustug

to insure McMoRan against this kind of liability, the

court noted that “[t}he usual form of Protection & In-

demnity insurance, which ‘insures only against liability

resulting from vessel ownership,’ would not provide cov-

erage for McMoRan, a non-shipowner.” /d. at 1227

(footnote omitted).

We do not agree with the position urged by Sea Sav-

age and its underwriters. Their interpretation of Mc-

MoRan would make it virtually, if not completely, im-

possible for a time charterer ever to receive insurance

coverage under any circumstances, and if McMoRan did

have such an effect we might be forced to disregard it as

inconsistent with our earlier opinion in Lanasse. This 1s

not necessary, however, as the underwritters have over-

stated the breadth of the holding in McMoRan. As that

court clearly stated,

Any P & I insurance that Faustug might have ob-

tained would not have covered McMoRan’s negli-

gence, since McMoRan’s negligence did not arise

out of the ownership of a vessel, but out of the op-

eration of an anchor retrieval process in which the

vessel was only “the inert locale of the injury.”.

Id. at 1228 (quoting Lanasse, 450 F.2d at 584). Mc-

MoRan thus does not completely foreclose the possibility

that a time charterer can be covered under an insurance

policy protecting an insured “as Owner” on a proper set

of facts.

Additionally, as we have suggested, the interpretation

of the insurance policy urged by Sea Savage and its un-

derwriters would render the insurance coverage virtually

4la

meaningless. Sea Savage argues that. as owner of the

SEA SAVAGE, it retained control of the navigation,

management, and operation of the vessel. Sea Savage

also argues that “by contract and tradition, Chevron

could not act as a manager or operator of the vessel,”

and that “as a matter of common sense it could not com:

mit fault ‘as owner’ of the vessel.” If this were true,

then the insurance policy providing coverage for Chev-

ron’s liability “as owner” of the vessel could never come

into effect. Under this interpretation. no time charterer

could ever satisfy the “causal operational relationship”

requirement so as to qualify for insurance coverage “as

owner” of the vessel. We will not construe an insurance

policy in such a way that it provides no coverage what-

soever to the insured.

The only connection a time charterer typically has with

the vessei it hires is the right to direct the vessel’s move-

ments. We find persuasive the reasoning of the court be-

low and that of the court in Garber Bros. that when the

time charterer exercises this right negligently, it has com-

mitted negligence “as owner” of the vessel within the

meaning of that phrase in a marine insurance policy. This

type of negligent conduct, it seems to us, has the requisite

“causal operational relationship” to the vessel, even

though the time charterer wholly lacks the authority to

direct the minutiae of the vessel's day-to-day operations.

“In this action, Chevron’s contribution to Randall’s death.

ordering the vessel to encounter dangerous seas, clearly

is related to the vessel.” Randall, 788 F.Supp. at 1403.

The district court correctly ordered the underwriters to

provide insurance coverage to Chevron.

3. Chevron's Expenses Incurred Defending Mrs.

Randall's Punitive Damages Claim

Chevron argues that the district court erred by refusing

to award Chevron costs and attorneys’ fees incurred in

connection with Mrs. Randall’s claims for punitive dam-

42a

ages. Chevron contends that it is entitled to reimburse-

ment for these expenses under both the indemnity pro-

vision of the time charter and the P & | policies. The

claim based on the indemnity provision of the time char-

ter must fail because, as we have already held, Chevron

is not entitled to indemnification from Sea Savage for any

losses suffered by Chevron as a result of its own negli-

gence. We must now consider whether Chevron may

recover its costs and attorneys’ fees from Sea Savage’s

underwriters.

As has been observed, the seminal question in resolu-

tion of this coverage issue is the choice of law to be ap-

plied. 2 Parks, supra, at 1039. We have recently re-

solved this issue in favor of state law. In Taylor v.

Lloyds Underwriters, 972 F.2d 666. 667 (5th Cir.1992),

cert. denied, U.S. , 113 S.Ct. 1366, 122 L.Ed.

2d 744 (1993), several seaman were injured when their

lifeboat capsized in the Gulf of Mexico, and they recov-

ered compensatory and punitive damages against the

boat’s charterer in an action brought under general mari-

time law. The charterer was insolvent, and the plaintiffs

sought to reco’ -r against three insurance policies, includ-

ing a compreheusive general liability policy and a P & I

policy. Jd. The district court granted the insurer’s mo-

tion for summary judgment, holding that the general

maritime law disallows the recovery of punitive damages

from an insurance company. /d. We reversed. holding

that no specific and controlling federal rule disallowed

such recovery. /d. at 669. We held that the district

court should have applied the law of the state having the

greatest interest in the resolution of the issues. and we

remanded so that the district court could make that de-

termination. 7d. In this case, Louisiana law provides the

rule of decision.

The P & | policy in question insures Chevron with

respect to “[c]osts, charges, and expenses, reasonably in-

curred and paid by the Assured in defense against any

43a

liabilities insured against hereunder in respect of the ves-

sel named herein.” * Thus, if punitive damages are lia-

bilities covered by the P & I policy, Chevron is entitled

to recover from the underwriters the attorneys’ fees it

spent defending against the punitive damages claim.

Chevron cites several Louisiana cases for the proposition

that liability insurance contracts provide coverage for

claims for punitive damages unless specifically excluded

by the policy. See Sharp v. Daigre, 555 So.2d 1361, 1363

(La.1990) (holding that exemplary damages may be

recovered from an insurer on a policy reading “We will

pay damages which a covered person is legally entitled

to recover . . . because of bodily injury. .. .); Creech v.

Aetna Casualty & Sur. Co., 516 So.2d 1168, 1171 (La.

Ct.App. 1987), cert. denied, 519 So.2d 128 (La.1988).

Thus, argues Chevron, because the underwriters would

have been obligated to cover any award of punitive dam-

ages against Chevron, they must provide coverage for the

costs and attorneys’ fees Chevron incurred in defending

the claim for punitive damages.

The underwriters argue that punitive damages, and by

extension expenses incurred in defending against such

damages, are excluded from coverage under the policy.

[hey contend that punitive damages are not liabilities

“for loss of life of . . . any person” as are covered by the

policy. For support the underwriters cite Smith v. Front

Lawn Enters., 1987 A.M.C. 1130. 1130-31 (E.D.La.

1986), in which the court held that an essentially iden-

tical policy did not provide coverage for a ciaim for

punitive damages based on unseaworthiness and refusal

to pay maintenance and cure. In Tavlor, however, we

took note of the view expressed in Smith and declined

to interpret it as establishing a controlling federal rule,

holding instead that state law should provide the rule of

5 We refer, as do the parties, only to the primary P & I policy,

because the excess P & I policies cover the same liabilities as the

primary policy.

44a

decision. Taylor, 972 F.2d at 668-69: see also 2 Parks,

supra, at 1041 (noting that no federal cases exist regard-

ing the coverage of punitive damages issue).

Although the Sharp case, decided by the Louisiana

Supreme Court, deals with uninsured motorist insurance

only, there is nothing in the opinion to suggest that its

holding would not apply with equal force to other types

of insurance. P & I policies are, strictly speaking, in-

demnity policies rather than liability policies. but the in-

demnity is itself basically against liabilities, Parks, supra.

at 1004, and in general indemnity policies are construed

like any other insurance policy. /d. at 839. Sea Savage's

underwriters have not directed our attention to any

Louisiana cases suggesting that the application of Sharp

should be limited in any way. nor does our research un-

cover any. The policy language at issue in Sharp, which

covered damages arising “because of bodily injury, sick-

ness, or disease,” is not more general or all-encompassing

than the “[lJiability for loss of life of. or personal injury

to, or illness of, any person” language in the instant

P & I policy. We therefore hold that under Louisiana

law, applied in the absence of a controlling federal rule,

punitive damages are covered by the P & I insurance

policy at issue in the instant case. Chevron is therefore

entitled to recover its costs and attornevs’ fees expended

in defending Mrs. Randall’s claim for punitive damages.

The district court’s holding to the contrary is reversed.

E. Attorneys’ Fees

Our final task on this appeal is to review the district

court’s award of attorneys’ fees to Chevron. The district

court referred Chevron’s claim for attornevs’ fees to a

magistrate judge, who made several recommendations

that Chevron’s claims be reduced in amount. Specifically,

the magistrate 1udge recommended that the hourlv rate of

Chevron’s lead trial counsel be reduced from $175 to

$150 and that the total number of hours billed by Chev-

45a

ron’s attorneys be reduced by 30%. The district court

heard oral argument and refused to adopt these recom-

mendations, instead finding the hours and rates requested

by Chevron to be reasonable. Sea Savage asks this court

to reverse the decision of the district court and to enforce

the recommendations of the magistrate judge.

Our review of the award is hampered by Sea Savage’s

utter failure to present any authority in its brief for its

position that the award is excessive. Sea Savage does not

point out any errors made by the district court. Neither

does Sea Savage address the standard of review the district

court should have applied to the magistrate judge’s recom-

mendations, or for that matter the appropriate standard

of review applicable on this appeal. In essence. Sea Sav-

age’s argument boils down to a bald assertion that the

magistrate judge’s recommendation was correct and the

district court’s ultimate award was not, plus a request

that we “review Chevron’s billings” ourselves. This does

not satisfy the requirements of Federal Rule of Appellate

Procedure 28(a)(5). which requires the argument section

of the appellant’s brief to contain not only the party’s

contentions but also its “reasons therefor, with citations

to the authorities, statutes and parts of the records relied

on.” In the absence of logical argumentation or citation

to authority, we decline to reach the merits of Sea Sav-

age’ contention. See United States v. Ballard, 779 F.2d

287, 295 (5th Cir.) (holding that claims made “without

citing supporting authorities or references to the record”

are considered abandoned on appeal), cert. denied, 475

U.S. 1109, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986);

Kemlon Prods. ard Dev. Ca. v. United States, 646 F.2d

223, 224 (Sth Cir.) (refusing to reach the merits of a

partv’s claims when that partys brief addressed neither

the merits of its own claims nor the reasoning of the dis-

trict court), cert. denied, 454 U.S. 863, 102 S.Ct. 320,

79 L.Ed.2d 162 (1981).

46a

IV

For the foregoing reasons, we REVERSE the district

court’s award for pain and suffering and REMAND for

the granting of a remittitur to $500.000 or a new trial on

damages at Sea Savage’s option. We REVERSE the dis-

trict court’s holding that Chevron is entitled to indemni-

fication from Sea Savage under the time charter. We also

REVERSE the district court’s denial of attorneys fees to

Chevron for its defense of the claim for punitive damages

and REMAND for determination of those fees. In all

other respects, the judgment of the district court is AF-

FIRMED. Costs shall be borne by Chevron and Sea

Savage.

ROBERT M. PARKER, District Judge, concurring in

part, dissenting in part:

{ concur with the majority opinion, with the exception

of the remittitur portion contained in Section III., C..

l., Damages; Pain and Suffering. 1 am persuaded that

the district court’s assessment of the facts of this case

as it relates to the award of damages in the amount of

$1,000,000.00 for pain and suffering is not only not

clearly erroneous, but falls within the bounds of reason-

ible compensation under the circumstances. I there-

fore limit my dissent to the remittitur ordered.

EE A I te i

Se

47a

{Date of Entry Nov. 6, 1991]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 89-4346

SECTION G

BARBARA S. RANDALL

versus

CHEVRON U.S.A.. INC.

JUDGE MOREY L. SEAR PRESIDING

WEDNESDAY, OCTOBER 30, i991

SEA SAVAGE’S MOTION FOR SUMMARY JUDG-

MENT; SEA SAVAGE’S MOTION TO LIMIT LIA-

BILITY; AMERICAN HOME ASSURANCE’S MO-

TION TO DISMISS: AND CHEVRON’S MOTION FOR

PARTIAL SUMMARY JUDGMENT WERE CALLED

FOR HEARING.

FOLLOWING ORAL ARGUMENT, SEA SAVAGES

MOTION FOR PARTIAL SUMMARY JUDGMENT

WAS DENIED AS MOOT BECAUSE IT HAD BEEN

RE-SUBMITTED: SEA SAVAGE’S MOTION TO

LIMIT LIABILITY WAS DENIED; AMERICAN

HOME ASSURANCE’S MOTION TO DISMISS WAS

TAKEN UNDER SUBMISSION; AND AS TO CHEV-

RON’S MOTION FOR PARTIAL SUMMARY JUDG-

MENT THE COURT FINDS THAT MR. RANDALL

WAS A LONGSHOREMAN OR HARBOR WORKER

WITHIN THE MEANING OF THE LONGSHORE

AND HARBOR WORKERS’ COMPENSATION ACT.

48a

TRANSCRIPT HON. MOREY L. SEAR

NOVEMBER 14, 1991

As we have had the opportunity to say earlier this

afternoon, this is a case that is a most tragic one. but that

in my opinion, counsel has treated in highest traditions

of our profession, and I compliment each on the manner

in which the case was handled, the details of the tragedy

recounted, and the method by which you have proceeded.

We deal with several concepts of law, all of which I

think we need to be familiar with before we analyze the

facts of this case and reach conclusions with regard to

those facts. The standard of care that I attribute to the

vessel SEA SAVAGE is the one that is set out in a Fifth

Circuit case 1986. Smith v. Southern Gulf Marine Co.

No. 2, found in 7914 F.2d 416, at p. 420 and 421, and

essentially the standard that the Fifth Circuit establishes

is this. The court says that the standard of care owed to

passengers on a ship has variously been stated as a high

degree of care, us a duty of ordinary care, as a reasonably

safe means of boarding and leaving the vessel, as a duty

of reasonable care and as a duty of reasonably care under

the circumstances. In spite the various formulas enun-

ciated in these cases, the court says a review of the facts

and stated standards of care shows that ship owners,

relatively speaking, are held to a high degree of care for

the safety of passengers, and the Circuit adheres to the

standard that ship owner owes the passengers the duty

of exercising reasonable care under the circumstances

of each case.

The Circuit also tells us that, the crew of a vessel

has a duty to provide a reasonably safe means of ingress

Or egress from a vessel. I believe that that sets forth

the standard by which I judge the conduct of the parties

insofar, the conduct of the vessel owner, I should say.

Insofar as Chevron is concerned, the Fifth Circuit

tells us that a time charterer may be liable for directing

er ee

ee

49a

the vessel to encounter natural conditions. like hurricanes

or treacherous seas, and that a time charterer may be

liable for a injury resulting from a decision to continue

unloading operations in treacherous weather conditions,

and that is the standard by which we will judge the con-

duct of the time charterer as against the facts of this

case.

The final concept of law that I want to put before us

at this point, it is that which relates to limitation, an issue

that Sea Savage has consistently urged, and I stated the

law on limitation this way, and of course this is not my

words, this is for the most part the text of Professor

Shambaum, his book on maritime law. Incidentally, it

has a very good review of limitation in the little pamphlet

that Maritime Law Association just sent out in L.A. Re-

port, I think I received only yesterday, perhaps the day

before, written by Tony Rodriguez. And that concept of

limitation is this: that a vessel owner or a bare boat

charterer may limit only if he is without privity or knowl-

edge of the cause of the loss. Whether an owner has

privity or not depends largely on the particular facts of

each case. Some of the most frequent denials of limita-

tion occur in cases where the incident results from one

of the following causes: inadequate or improper operat-

ing and/or training procedures, or inadequate or inac-

curate charts and/or other aids to navigation. The deter-

mination of whether the ship owner has established a lack

of privity and knowledge of the fault involves a delicately

balance inquiry. Privity and knowledge exists where the

owner has actual knowledge or could have and shoud

have obtained the necessary information by reasonable

inquiry or inspection. This necessity is a reasonable man

test applied on a case by case basis considering all of the

circumstances. The real problem is to determine whether

the ship owner or persons acting for him acted reason-

ably under the circumstances. Principal reason for deny-

ing imitation is because management failed to provide

proper procedures for the maintenance of equipment, the

50a

training of the crew, or adequate check to insure the

implementation of established maintenance and safety

procedures.

4

The tragedy in this case began and ended July 31,

1989, when T. F. Randall who was employed by defend-

ant, Chevron U.S.A., in the capacity of a mechanic. lost

his life in West Delta Block 27, the oil field in which he

had been employed: and that field is located within the

three mile coast line of the State of Louisiana.

To assist Chevron in operating that field or its plat-

forms in that field, Chevron entered into a time charter

agreement with Sea Savage for the use of its vessel M/V

SEA SAVAGE, and while that vessel was used primarily

as a utility boat, it also had the capacity and was used for

the transportation of passengers. The boat, it seems, regu-

larly called on the West Delta 27 Platform 1, P1, about

twice a week. The vessel was certified to carry passen-

gers by the Coast Guard, and it had on its stern what is

commonly called and has been referred to in this case as

a jump station; and certainly the owners of the vessel

SEA SAVAGE knew of its certification, and knew of its

use as a vessel carry and transporting passengers, and, of

course, the parties have stipulated the SEA SAVAGE was

owned by, the motor vessel SEA SAVAGE was owned

by the SEA Savage, Inc.

Sea Savage, Inc. delegates all of its authority concern-

ing the safety and the operation of their boat to its Cap-

tain. Chevron as the time charterer instructs the vessel

on the tasks its to perform.

Now on July 31, 1991 (sic) in the early morning

hours, defendant Chevron knew that a tropical depression

was in the Gulf of Mexico and it began evacuation pro-

cedures including from the West Delta 21 P-1 platform.

In order to evaculate personnel from that platform. the

SEA SAVAGE, the motor vessel SEA SAVAGE was

called and it was under the command of Captain Dalton

Parker. Captain Parker testified at length, as a matter of

Sla

fact he was the first witness and testified all of the morn-

ing and part of the afternoon our first day of trial. Cap-

tain Parker had been out in the Gulf all morning long

and he knew the whether was bad, and he knew that it

was too rough to transfer from the platform to the vessel.

Indeed, he requested to be released from the Field and

to go into more shallow water, and he made that request,

so he testified, to Chevron. Nevertheless, time charterer

Chevron, requested that motor vessel SEA SAVAGE re-

main in the Field despite the weather conditions, and in

so doing. Chevron directed the vessel to remain in, and

to encounter the treacherous weather conditions that ex-

isted in the Gulf that morning. I should say that the

weather reports indicating severe weather actually were

received by Chevron the day before, on July 30th. But

there is little doubt that on the morning, mid-morning of

July 31st, the winds in the vicinity of West Delta 27 P-1

were in the neighbor of 35 miles per hour, and the seas

have been estimated at varying heights 6-8 feet with swells

as high as 10-12 feet, but certainly seas of 6-8 feet,

winds of 35 miles per hour. And while winds of that

nature are said not be uncommon in the Gulf of Mexico,

particularly during the storm season, the weather was of

a serious enough concern to Chevron to place into effect

evacuation proceedings that are used in preparation for

hurricanes.

Indeed, the Captain of the SEA SAVAGE had asked

to be released and to return to shallow water and he was

asked to remain in case of an emergency during the evac-

uation. In any event. Captain Parker was asked to pick

up passengers from West Delta Platform 27 P-1 even

though he knew and testified that the weather conditions

rendered the transfer unsafe to board passengers by swing

rope from the platform to his vessel.

One of the passengers. one of the Chevron employees

to be evacuated from the West Delta Platform 27 P-1

was T.F. Randall. According to the testimony of Cap-

tain Parker, he based his vessel and held the stern on an

angle to the platform, and his vessel was somewhat off

of the platform. He testified that the winds were from the

south East and that he was on the East side of the plat-

form. He testified that his starboard engine was in forward

gear and that his port engine was in neutral. A fact that

[ find questionable for the reason that the wind and waves

were off of his port quarter, stern quarter. pushing him

ahead and if his starboard engine was in gear, forward

gear, it would seem to me that his vessel would have been

moving ahead rather than holding :n a steady nosition in

preparalt on to receiving passengers. Nevertheless, that i:

what Captain Parker testified. that his starboard engine

was in forward. his port engine was in neutral, and that

the wind and wave action was to his stern.

There were three persons aboard the M’V SEA SAV-

AGE at the time of the attempted transfer which occurred

sometime in the neighbor of 10:45. was it, on that morn-

ing. There was a deck hand Nash, there was relief

captain, and another deck hand. The only persons on

deck were, the deck hand Nash. and the Captain who was

initially in the pilot house; and though the Captain was

preparing to take passengers aboard, in what he consid-

ered to be unfavorable conditions, unsafe conditions, he

nevertheless failed to post any member of the crew to the

stern of the vessel. While he had two additional members

of the crew to assist the passengers coming aboard his ves-

sel, in what he considered to be unsafe seas, to at least

catch and try to help anybody coming aboard, he failed

to even alert two crew members who were below when the

passengers began coming aboard.

Indeed. the only crew member on deck, Nash, was at

mid-ship as he described it. He received no instructions

from Captain Parker, never told what to do by Captain

Parker, but he saw Mr. Randall take the swing rope

swing aboard the vessel, land with his feet on the deck

of the vessel, saw the vessel rise with the swell, slack go

into the swing rope and apparently the vessel dropped

53a

and popped Mr. Randall off the back of the vessel into

the water.

The Captain became immediately aware of the fact that

Mr. Randall was overboard, but he didn’t know where he

was, and he made no attempt to find out where he was.

The deck hand, Nash, had to leave the stern of the vessel,

run approximately 50 feet, traverse a hatch that was, he

described as being in the way of a life ring, retrieve a life

ring from the back of the pilot house. return to the stern

of the vessel. A maneuver that he described as taking

him about | minute, perhaps a litile bit longer, but in the

meantime, the Captain had put the vessel in forward gear,

had left the area where Mr. Randall fell overboard, posted

no look out, had no idea of where Randall was, and as

Nash described, the forward movement of the vessel and

the propeller wash pushed Randall so far away from the

vessel that it was impossible for him to throw the life

ring so that Randall could have caught it.

While the testimony was that there was posted on the

vessel recommended procedures for man overboard, none

of those procedures were followed or adhered to. First

of all, the only available life ring was behind the pilot

house though the vessel was intended for the carrying of

passengers, and as a matter of fact, there was a rail con-

structed at the stern of the vessel, particularly for persons

coming aboard to grasp to break their swing, and there

was ample place on those rails to have a life raft mounted

in the area where passengers come aboard on swing

ropes and with the most likely to fall off, but there was

no life ring at that point.

The first thing that is called for in the procedures man

overboard posted on the vessel is throw a ring overboard

as close to the person as possible. Well the Captain’s

actions in moving ahead forward without knowing where

Randall was and washing him a stern made it impossible.

The second thing, post a look out to keep the person over-

board in sight. Well, there was no look out, indeed, Nash

S4a

had to leave the stern of the vessel to go and get the life

ring, lose sight of Randall overboard. There was no com-

munication between the Captain and his deck hand, in-

deed, the Captain gave no orders to Nash. The Captain

called for no aid or assistance, it was Nash, on retrieving

the life ring that alerted the other members of the crew

and render assistance. The Captain didn’t even do that.

And the third thing that the procedure called for is to

maneuver the vessel to pick up the person in the water.

Instead of doing that, the Captain left. It took him, he

estimates, about ten minutes to maneuver to the opposite

of the platform, and all of this time Mr. Randall is swim-

ming in the water with 35 mile an hour winds and swells

of 6-8 feet. A man of obvious strength and physical

stamina. And the fourth thing is to have a crew member

put on a life jacket, attach a safety line and then have

him standby to jump into the water and assist the person

overboard if necessary. And of course, the risk of another

man’s life into the water probably was not appropriate,

but at great risk to his own life, Nash did go over the

side onto airplane tires that were latched to the side of

the M/V SEA SAVAGE and did, at great personal risk,

attached a line ultimately to Mr. Randail who by that

time had lost his life to the sea and drowned. Got the

line around him in order to pull him out of the Gulf.

The only order that I recall in the testimony of Captain

Parker and the deck hand given to Nash was to put on a

life jacket before going over the side and standing with

his leg in that airplane tire. I have said already that there

was no communication between the Captain and the mem-

bers of his crew, no means of communication between

them, the wind was high, the seas were rough, the engines

were running. The crew member or the only person close

enough to see what had happened was Nash. and I believe

that he saw Mr. Randall hit the deck of the vessel and as

he said pop off. He was the only one in position to see

precisely what happened.

55a

After having had fallen into the sea and being washed

to stern, Randall managed to swim to the platform and

to one of the structure’s legs, cross member, and as the

seas would rise he was able to clutch to that member and

hold on until the next wave would hit him and he would

be knocked off and scrapped against the barnacles of that

leg, where he was cut above his body and which ulti-

mately caused him to lose his life jacket. He was bashed

by the sea against the razor edges of those barnacles and

pounded by those waves for approximately 25 minutes

Struggling all of that time for his life and each time he

reached a perched he was knocked down by another wave.

As a matter of fact. during that period of time. he had

the strength to look up and speak to people on the plat-

form who were trying to help him and told them that he

Was getting tire. And finally, at the end of 25 minutes

of struggle against the wind and the seas. against the

barnacles, against the scraping, the abrasions. the cuts,

the bruises. Mr. Randall slumped over face down and

drowned. Nevertheless, there was this rather valiant at-

tempt by Nash to retrieve him, very difficult, Mr. Randall

was getting tired. And finally, at the end of 25 minutes

that Randall for 25 minutes, suffered and ordeal. The

most severe kind of mental anguish that a human being

can suffer, unquestionably excruciating physical pain with

the obvious knowledge that his life was coming to an end.

[ find that the conduct of the Captain. on that day,

that which I have described and outline, showed absolute

incompetence in handling that vessel in that water under

the circumstances of that tragedy. I find also that he

lacked training as did the crew in life saving procedures,

in man overboard procedures. Indeed. there was no train-

ing and the Captain so testified as did the deck hand. |

find also that the location of the life ring, while perhaps

satisfying minimal requirements of Coast Guard certifica-

tion, did not satisfy basic needs of a vessel operating

taking on passengers of the circumstances of this case.

The lack of communication, the lack of orders. made it

56a

impossible to effect a rescue, and I find that the vessel

owner knew or should have known that the Captain was

not competent to operate in this kind cf condition, that

the Captain and the crew lack training, that the owner

did not provide the training or the instruction tor the

Captain and crew, that a certificated a vessel for carrying

passengers and did not provide adequate rescue equip-

ment was it was useful to the crew. It failed to require

drills in rescue procedures, it failed to insure that the

Captain and the crew were properly trained in rescue

operations. And in hiring the crew and the Captain,

relied primarily on the fact that the Captain was licensed

by the Coast Guard, and did very little effort to find out

what competence of the Captain to the crew was, and I

find that the owner of the vessel SEA SAVAGE knew of

should have known all of the things that I have described,

and I find that the owner is not entitled to limit its lia-

bility, and while I find Chevron to be at fault in having

placed the vessel in the seas in the weather in which it

did I find that that conduct does not rise to the level

that warrants punitive damages. Accordingly, plaintiffs

claim for punitive damages is denied.

There was an issue that presented itself today, as to

whether or not Louisiana law permits parties to challenge

the cause of death stated on a death certificate. And I

believe that Louisiana law does permit that and while |

suspect that the issue is one of advocacy, I think its

ludicrous to believe that Mr. Randall died of anything

but drowning under the circumstances of this case, the

strength, the power that he showed, the stamina. without

losing consciousness for 25 minutes to battle the sea and

winds. I find that he died by drowning as the death

certificate shows.

There is one other concept involving the law that I

thinks needs to be mentioned in connection with damage

and recovery. and that is. that which relates to loss of

society and what it consists of. and so that all may know

the basis an award is given. I go first to Blacks Law

S7a

Dictionary to tell you that the term “loss of society”

means there “capacities for usefulness, aid and comfort”.

But the Supreme Court has done better for us for that

and it has said in Sealand Services, Inc. v. Gaudet. “that

society embraces a broad range of mutual benefits each

family member receives from the other’s continued exist-

ence.”

[ find that Mr. Randall's past lost wage is $66,725.00

and so make that award. The loss of future Support

$309,177.00. Lost of personal services $30,395.00. To

the plaintiff, Rod Anthony Randall, for loss of society,

the sum of $100,000.00. To Holly Lee Ann Randall. the

daughter, the sum of $150,000.00. For Mrs. Randali.

the sum of $300,000.00. For decedent’s pain and suffer-

ing, the sum of $1,000,000.00. For funeral expenses,

$3,897.00. The damages to be divided in this manner:

75% to vessel, 25% to the charterer.

I have done the best I can ladies and gentlemen to

cover those issues of law and fact that I could under the

circumstances here, of course, I reserve the right to sub-

stitute or to incorporate into the record written findings

of fact and conclusions as they become necessary.

58a

[Date of Entry Nov. 25, 1991]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 89-4346

SECTION G

BARBARA S. RANDALL

versus

CHEVRON, U.S.A., INC. ef al.

JUDGMENT

This matter came on for trial without a jury on Novem-

ber 12, 1991. At the conclusion of the testimony the

Court orally gave its findings of fact and conclusions of

law, accordingly;

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment in favor of plaintiffs, Barbara S.

Randall, on her own behalf and as personal representative

of the Estate of the Decedent, Theodore F. Randall, Jr.,

and on behalf of the children, Rod Anthony Randall and

Holly Leann Randall, and against defendant, Chevron,

U.S.A., Inc., in the amount of Four Hundred and

Ninety Thousand, Forty Eight Dollars and Fifty cents

($490,048.50) and against defendant, Sea Savage, Inc.

and the M/V Sea Savage, in the amount of One Million,

Four Hundred and Seventy Thousand, One Hundred

Forty-Five Dollars and Fifty cents ($1,470,145.50) with

interest from date of judicial demand and costs.

59a

New Orleans, Louisiana, this 15th day of November,

1991.

s/ Loretta G. Whyte

Loretta G. WHYTE

Clerk

APPROVED AS TO Form:

/8/ Morey L. Sear

United States District Judge

60a

Minute Entry [Date of Entry Jan. 29. 1992]

Sear, J.

January 28, 1992

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 89-4346

SECTION “G”

BARBARA S. RANDAI L

versus

CHEVRON U:S.A.. INc.

MEMORANDUM AND ORDER

On November 25, 1991. judgment was entered in this

action against Sea Savage, Inc. and Chevron U.S.A., Inc.

Sea Savage, Inc. filed a Motion to Alter or Amend the

Jucgment and/or for New Trial. I will address each of

its concerns in turn.

A. Pre-judgment Interest

Defendant contends that pre-judgment interest should

not be applied to plaintiffs’ past damage award in this

case because of peculiar circumstances. In the Fifth Cir-

cuit, the general rule is that pre-judgment interest is the

rule rather than the exception. The district court may

deny pre-judgment interest only when peculiar circum-

stances would make such an award inequitable.* Such

'Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1157

(Sth Cir. 1990).

2 Id.

6la

peculiar circumstances include: 1) an improper delay of

the action caused by the plaintiff; 2) a genuine dispute

Over a good faith claim in a mutual fault setting; 3)

equitable considerations which caution against an award:

and 4) a damage award substantially less than that

claimed by the plaintiff.°

Defendant contends that the case was unduly delayed

and complicated by the plaintiffs’ trying to make their

case a “hurricane case,” and by importing excessive evi-

dence, witnesses and rhetoric from other, completely un-

related cases. Defendant also contends that plaintiffs were

awarded an amount significantly less than the amount

claimed. Defendant’s claim fails. First. although plain-

tiffs’ complaint sought damages well in excess of the

judgment uitimately awarded (10 million doilars as com-

pared to 2 million dollars), plaintiffs’ initial demand was,

as most, not the amount sought. The judgment was well

within the range discussed by the parties in their settle-

ment negotiations. The judgment was very close to the

amount actually requested by the plaintiffs.

Although defendant claims that plaintiffs improperly

delayed the action, it does not support this claim with

specific examples of bad faith. Not awarding pre-

judgment interest is reserved for peculiar circumstances.

Defendant has not demonstrated such peculiar circum-

stances. Conclusory statements that simply point the

finger will not suffice. An award of pre-judgment interest

will not be reversed in the absence of an abuse of discre-

tion.

Defendant finally contends that pre-judgment interest

can be applied only to accrued damages and not to future

damages. It asks that the judgment be amended to make

this clear. Plaintiffs concede that this is true and consent

to an amendment of the judgment in this respect. Accord-

ingly, the judgment is amended to make clear, what I

‘Id. at 1157-58.

62a

believe is implied, that the award of pre-judgment interest,

to the extent that it applies to future damages, is errone-

ous.

B. Non-Pecuniary Damages

Defendant contends that plaintiffs should not have been

awarded loss of consortium or loss of society damages

because of the decision in Miles v. Apex Marine Corp.”

and its progeny. It contends that because there is no

distinction between the iegal position of a longshoreman,

such as the deceased, and persons who work on outer

continental shelf platforms, there should be no difference

in damages recoverable.

The Supreme Court. in Sea-Land Services, Inc. v.

Gaudet,’ held that a dependant plaintiff in a maritime

wrongful death action could recover for the non-pecuniary

loss of society. The Court in Miles recognized that

Gaudet involved the death of the longshoreman and so

had no need to consider the effect of the Jones Act. The

Miles Court stated, “The holding of Gaudet applies only

in territorial waters, and it applies only to longshoremen.

Gaudet did not consider the preclusive effect of the Jones

Act for death of true seaman. We do so now.”* The

recoverability of non-pecuniary damages by longshoremen

explicitly was excluded from the Miles decision.

Although part of the rationale in Miles and its progeny

was to make uniform the damages recoverable under

general maritime law, the major concern was that judi-

cially-created remedies should not sanction more expan-

sive remedies than congressional ones. Because the Jones

Act was adopted from FELA, and because FELA pre-

cluded the recovery of non-pecuniary damages, the Jones

Act should preclude them also. This result should occur

4498 U.S. , 111 S.Ct. 317 (1990).

5 414 U.S. 573, 591, 94 S.Ct. 806, 818 (1974).

® Miles, ill S.Ct. at 325.

63a

for a Jones Act seaman. Whether the claim is brought

under the Jones Act or general maritime law. The focus

was on uniformity for a Jones Act seaman, not uniformity

for all deaths that occur in the water. This case involved

a longshoreman. \lthough it would be uniform to dis-

allow non-pecuniary losses for all deaths that occur in

water, I do not think it would be proper to expand Miles

this far.

C. Loss of Society for the Children

Defendant contends that damages for loss of society

should be limited by the children’s reaching the age of

majority and by the requirement of dependency. Although

not specifically addressed, who can recover for loss of

society was implied by the Supreme Court in Gaudet.

When defining “loss of society,” the Court refers to

dependents. Throughout the opinion, recovery is recog-

nized only in terms of dependents. The Fifth Circuit has

read Gaudet to say that only dependents can recover for

loss of society. In Complaint of Patton-Tully Transp.

Co." the court held that when a family unit is maintained

by dependance on a single family member, the dependents

can recover for loss of society.

My brother Schwartz addressed the question of who

van recover loss of society damages in a well-reasoned

opinion, Truehart v. Blanden.’ He found that only de-

pendents could recover for loss of society. In the case

of unemancipated minors. this dependance would be pre-

sumed from the universal obligation in this country for

Parents to support their unemancipated minor children?

[In addition, he found that probably another presumption

could be found between any family members who live

together. Otherwise, a person would have to show finan-

clal dependence on the deceased in Order to recover.

"797 F.2d 206, 213 (5th Cir. 1986).

°672 F. Supp. 929 (E.D.La 1987).

* Id. at 937.

64a

I agree that recovery for loss of society applies only

to dependant persons. However, I agree with my brother

Schwartz that a presumption of dependency should be

found between family members who live together, espe-

cially when the family relationship 1s that of parent and

child. Most of the cases I found that disallowed loss of

society between family members involved family that did

not live with the deceased and rarely, if ever, involved

an adult child. In addition. there is Fifth Circuit author-

ity that adult offspring are within the class of plaintiffs

intended to be vindicated by such damages."” Both be-

cause Rod Randall lived with his father and was his

father’s son, I find a presumption of dependency.

Even if it was assumed that no such presumption

exists, and that Rod Randall would need to show his

financial dependance on his father, I think that this was

shown. Rod Randall lived at home at the time of his

father’s death. He dropped out of college to work with

his father in his business. His father was teaching him to

maintain and operate the business so that one day it

would be his. Since T.F. Randail’s death, Rod has needed

to sell part of their business and hire people to help with

the operation. I find that, especially since Rod worked

for his father as his only source of income, he was finan-

cially dependant on his father.

Finally. to address defendant's contention that Holly

Randali’s award should be reduced because of her ap-

proaching independence. there was no evidence that Holly

was soon to be no longer dependant on her father.’* The

age of majority is irrelevant to loss of society damages,

and there was no evidence that Hoily would be moving

out of the home soon. I will not speculate as to when a

10 Skidmore v. Grueninger, 506 F.2d 716 (5th Cir. 1975).

11Complaint of Patton-Tully Transp. Co., 797 F.2d 206, 213

(5th Cir. 1986). The Ccurt found that because no evidence had

been introduced to show that a dependent son would soon be mar-

ried, there was no need to reduce his award.

65a

child no longer is dependant on her parent, especially

when the older child remained dependant on his parent

past the age of majority.

D. Future Support

Defendant contends that the judgment does not reflect

a reduction of the amounts found to represent the de-

ceased’s own necessary consumption. This simply is not

true. The economists’ reports were stipulated to at trial.

and both economists factored Mr. Randall’s consumption

of future support. Because this was considered, I affirm

my fact findings in computing the loss of future support

amount.

E. Pain and Suffering Amount

Defendant contends that the award for pain and suffer-

ing was excessive and not supported by the evidence. |

disagree. The reasons behind finding such an amount

were recited extensively when I gave the judgment and I

affirm these reasons. Although I do not wish to address

them again, I will give a brief summation. The death of

T.F. Randall was not an ordinary drowning. If it were,

certainly a lower pain and suffering amount would have

been appropriate. However, T.F. Randall fought for his

life for at least twenty minutes before his death. He did

so in the tumultuous Gulf of Mexico during a storm.

Witnesses described the deceased as having endured a

physical beating against the platform structure. Especially

because the platform was covered with barnacles. he

suffered extensive bleeding and lacerations to his chest

and undoubtedly much pain. When one considers the size

award given to victims for pre-death anguish that lasts

only a couple minutes or even seconds. the amount I

awarded for at least twenty minutes of traumatic anguish

was not excessive.

H6a

| Contributory Fault

Defendant contends that the award of damages should

be reduced by the contributory fault of the deceased. At

trial. I considered testimony and evidence addressing

whether Mr. Randall had been at all at fault and found

that defendants did not show that he had been. Because

this issue already has been considered and de¢ ided, I wiil

not re-address It.

G. Duty of Care Standard

Finally, defendant contends that I rred in applying a

highest duty of care” standard owed to a passenger by

‘t. instead of a “reasonable duty of care” standard. In

fact. in giving my judgment. I said that the duty owed

‘s “reasonable care under the circumstances of each case,”

citing Smith v. Southern Gulf Marine Co." As far as

defendant’s allegations that my findings of fact were

wrong, I considered all of the evidence and made my fact

findings. I have addressed defendant’s points and will

not re-address them. Given the facts that I found from

the evidence. I affirm that defendant did not exercise a

reasonable duty of care and that its vessel was unsea-

worthy. Accordingly,

IT IS ORDERED that defendant Sea Savage, Inc.'s

motion is granted in so far as the judgment Is amended

to provide that the pre-judgment interest awarded applies

only to accrued damages, not to future damages. The

remainder of the motion is denied.

s/ Morey L. Sear

MoreEY L. SEAR

United States District Judge

1279] F.2d 416, 420-21 (5th Cir. 1986).

67a

Minute Entry [Date of Entry Feb. 19. 1992]

Sear, J.

February 18, 1992

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 89-4346 C W Rg 4795

SECTION “G”

BARBARA RANDALL. et al

versus

CHEVRON U.S.A.. INC.. et a/

MEMORANDUM AND ORDER

[heodore Randall drowned while attempting a swing

rope transfer from a fixed platform in the Gulf of Mexico

to the M/V SEA SAVAGE. At the time of his death, he

was employed by Chevron U.S.A., Inc. (“Chevron”)

Chevron had time chartered the M’V SEA SAVAGE,

from Sea Savage, Inc., owner of the vessel. Plaintiff,

Barbara Randall, individually, on behalf of the estate of

her late husband and her chil . sous

Chevron and Sea Savage, Inc. Chevron in turn filed a

cross-claim against Sea Savage, Inc.. for indemnitv pursu-

ant to the charter party. This matter was heard without

a jury.

vat a! sacy damacac + =. ows

ien sought UdilidveS i7OmM

After trial on the merits. Chevron was found to have

negligently ordered the vessel to encounter dangerous seas

an act done in its capacity as time charterer.! Accord-

' Moore v. Phillips Petroleum ( l

1990), citing Graham Milky Way Barge, Inc.. 824 F.2d

(Sth Cir. 1987).

68a

ingly, Chevron was cast in judgment for twenty-five per-

cent of plaintiff’s total damages. Chevron seeks indemnifi-

cation from Sea Savage, Inc. for this liability.

The time charter party, provides: “Owner shall run.

operate and navigate the vessel. . . . [R]esponsibility for

the management and navigation and operation of the ves-

sel shall remain at all times in the owner . .-. . Owner

hereby agrees to defend, indemnify and hold harmless

Chevron against . . . all claims for damages, whether to

person or property, and howsoever arising in any way

directly or indirectly connected with the possession, navi-

gation, management, and operation of the vessel.” The

time charter agreement parallels the legal responsibilities

of owners of vessels and time charterers. The charterer

directs the movements of the vessel, but the owner retains

possession and control of the vessel.*

Sea Savage, Inc. contends that this language does not

provide indemnification for any liability of Chevron as

time charterer, because Chevron’s duties and responsibili-

ties as time charterer do not involve the “possession, navi-

gation, management [or] operation of the vessel.” Sea

Savage, Inc. emphasizes the traditional demarcation of re-

sponsibility between vessel owner and time charterer and

that only the vessel owner has control over the “possession,

navigation, management [or] operation of the vessel.” Sea

Savage contends that the time charter agreement only re-

quired it to provide indemnification for claims arising out

of Sea Savage, Inc.’s duties as owner.

Although this reasoning makes some sense, the author-

ity cited by S2a Savage, Inc. addressing indemnification of

time charterers by vessel owners* does not support ade-

2T. Schoenbaum, Admiralty and Maritime Law 382, § 10-1

(1987).

3 Lanasse v. Travelers Ins. Co., 450 F.2d 580 (5th Cir. 1971),

cert. denied sub nom., Chevron v. Royal Ins. Co.. 406 U.S. 921

(1972); Hobbs v. Teledyne Movable Offshore, Inc., 632 F.2d 1238

69a

quately its contention. Sea Savage suggests that these

cases hold that time charter indemnity clauses do not

indemnify charters for their own fault. This interpreta-

tion is overly broad. The cases cited involve transfers

from platforms to vessels by way of a crane located on the

platform and the crane operator solely was found negli-

gent. The “charterer” was found negligent in its capacity

as platform owner, not in its Capacity as charterer. There-

fore, the platform owner charterer was not entitled to in-

demnity fom the vessel owner.

These cases differ from this one and do not command a

finding that Sea Savage, Inc. does not owe indemnification

to Chevron. Chevron was found negligent for ordering the

vessel to encounter dangerous seas. Ordering the vessel to

encounter treacherous seas is an act done in Chevron’s

time charterer capacity, rather than in its Capacity as plat-

form owner, thus distinguishing the Fifth circuit juris-

prudence.

Whether Chevron is entitled to indemnification depends

upon whether “possession, navigation, management [or]

operation of the vessel,” as that language is used in the

time charter agreement, encompasses the act of ordering

the vessel to encounter dangerous seas. Sea Savage main-

tains its position that this language simply describes the

legal responsibilities imposed upon vessel owners in a time

charter party and serves to indemnify Chevron for claims

arising Out of Sea Savage, Inc.’s duties as vessel owner. not

for Chevron’s liabilities as time charterer. Thus, Sea Sav-

age, Inc. concludes that this language does not refer to

any acts of negligence attributable to Chevron in its ca-

pacity as time charterer.

Despite the abundance of litigation in this area. this

issue never has been addressed squarely. Nonetheless, the

oth Cir. 1980); Smith v. Tenneco Oil Co.. 803 F.2d 1386 (5th Cir.

1986).

70a

Fifth Circuit's discussion in M.O.N.T. Boat Rental Sery-

ices, Inc. v. Union Oil Co.! appears to provide an answer.

In M.O.N.T., M.O.N.T. Boat Rental Services, Inc.

“M.O.N.T.”) sought contractual indemnification from

Union Oil Company of Central America (“Union”)

Union had time chartered a vessel owned by M.C.N.T. to

transport personnel to and from rigs located offshore.

During a mission, a crewmember was injured when he fell

just after a large wave hit the vessel. In a separate action,

the crewmember sued M.O.N.T. and, after trial on the

merits, M.O.N.T. was cast in judgment. Thereafter

M.O.N.T. sought indemnification from Union pursuant to

the charter party. The charter party contained a protest

Clause which shifted responsibility to the charterer for

losses arising from tasks undertaken by the master of the

vessel under protest. M.O.N.T. sought to enforce this pro-

vision and argued that, after Union ordered the captain to

transport personnel, its captain experssed his reluctance to

encounter the dangerous seas. During this mission, the

crewmember was injured.

At first glance, the case appears inapposite. First,

M.O.N.T. involved a protest clause, rather than an in-

demnification clause. However. this distinction is mean

ingless because the court favorably compared the protest

Clause to one for indemnification. “{The protest clause]

has in its practical application many of the features and

consequences of an indemnity agreement.”* Second. in

M.O.N.T., the vessel owner sought indemnification from

the charterer. whereas here the charterer seeks indemnifi-

cation from the vessel owner. Nonetheless. the case is sig-

nificant because it involves a charterer’s act of ordering the

vessel under its control to encounter dangerous seas and

discusses a vessel owner’s responsibility for management

and operation of a vessel under time charter.

*613 F.2d 576 (5th Cir. 1980).

5 Id. at 580.

7la

Like the charter party in this action, the charter party

in M.O.N.T. “contained the usual understanding that the

[vessel] would perform tasks designated by [charterer],

while [vessel owner]. . . would man, manage and control

the operation of the vessel.” ° Thus. in both actions, the

vessel owner retained responsibility for the management

and control of the vessel. The MO.N [. and Union char-

ter party, however, contained a unique protest clause,

which stated,

[I]t is agreed that if any operation, voyage, move-

ment, activity or inactivity on the nart of Contractor

[““M.O.N.T.] or the vessel is insisted upon by char-

terer [Union], its agents. employees or representative.

and undertaken by the Master of the Vessel under

protest On account of the opinion of the Master that

said Operation, voyage, movement. activity or inactiv-

ity 1s hazardous and likely to cause loss. damage or

expense, or loss of life or personal injury, the respon

sibility for such loss, damage or expense, or loss of

life or personal injury, shall thereupon rest solely

upon Charterer.’

In evaluating this clause, the court recognized that clauses

such as this one serve to shift liability away from the party

that the law censiders best able to prevent negligent acts

from occurring. The court then states.

Certainly, in a time, as opposed to bareboat, charter.

the shipowner and captain are in the ideal position

where matters involving management and control of

the vessel are involved. The protest clause in this

case covered matters relating to the control and man-

agement of the vessel, matters assigned ordin inily to

M.O.N.T. under the provisions of the charter party

8 Jd. at 578.

T Id.

3 Jd. at 586. The rt ui.timateiy held that the captain’s acts

of reluctance did not amount to a ‘protest’ as that term was used

in the charter party, but this h lding is irrelevant to this action.

72a

These statements become significant when the context

in which the court examined the protest clause is consid-

ered. The indemnitee and vessel owner had been held

liable for an injury resulting from the vessel’s encounter

with dangerous seas, as ordered by the charter. M.O.N.T.

sought indemnification from the charterer for this liability.

The court's statements thus imply that the act of Ordering

the vessel to encounter dangerous seas falls within the

purview of management and cperation of the vessel. The

court recognizes, as does Sea Savage, Inc., that the vessel

Owner assumes responsibiiity for the Management and

Operation of the vessel. The court’s Statements suggest

that the vessel owner and captain maintain the best posi-

tion to prevent any harm that may arise from an encounter

with dangerous seas. Additionally, the court implies that

the vessel owner will be liable for such harm, absent a

contractual provision to the contrary.

Therefore, the act of Ordering the vessel to encounter

dangerous seas is an act of “management [or] operation”

as that language is used in the charter party. However.

because Chevron is seeking indemnification for its own

negligence, a second issue is presented. That is, whether

the indemnification provision can be construed to indem-

nify an indemnitee for its own negligence.

Before enforcing an indemnification clause for a in-

demnitee’s own negligence, a court must be firmly con-

vinced that the exculpatory provision reflects the intention

of the parties.’ Once such an intention is found, whether

the indemnification clause is enforceable depends upon

what law governs the agreement.

Indemnification clauses in maritime contracts are gov-

erned by federal maritime law, not state law.” Whether

9? Unied States v. Seckinger. 397 U.S. 203, 211, 90 S. Ct. 880, 885

(1970).

10 David & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 316 (5th

Cir. 1990) (quoting North Pacifie S.S. Co. v. Hall Bros. Marine Rv.

73a

the charter party entered into between Chevron and Sea

Savage, Inc. is a maritime’ contract depends upon “the

Nature and character of the contract.’ rather than on its

place of execution or performance.” '' “*A contract re-

lating to a ship in its use as such, or to commence or

navigation on navigable waters, or to transportation by

sca or to maritime employment is subject to maritime

law.’” ' A charter party is defined as a “specialized type

of maritime contract for the hire of a vessel.” * It is a

contract for the use of a vessel. There can be little doubt

that it is a maritime contract. Therefore, maritime law

governs the interpretation of this contract “. Thus, I must

determine whether the charter party reflects an intent to

indemnify the indemnitee for its own negligence under

maritime law.

In the Chevron and Sea Savage, Inc. charter party,

Sea Savage, Inc. agrees to indemnify Chevron for dam-

ages “however arising.” '* In re Incident 4board the D/B

OCEAN KING ™ offers guidance on whether this in-

demnity provision can be construed to include indemnifi-

cation for the indemnitee’s own negligence. The indemni-

fication provision at issue in D/B OCEAN KING referred

& Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 223 (1919) );

M.O.N.T. Boat Rental v. Union Oil Co., 613 F.2d 576, 579 n.6 (5th

Cir. 1980).

1! Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 316 (5th

Cir. 1990) (quoting North Pacific S.S. Co. v. Hall Bros. Marine Rv.

& Shipbuilding Co., 249 U.S. 119, 125, 39 S. Ct. 221, 223 (1919) ).

12 Id. (quoting E. Jhirad, A. Sann, B. Chase, & M. Chynsky,

Benedict on Admiraity, § 182 (1988) ).

13 T. Schoenbaum, Admiralty and Maritime Law, § 10-1 (1987).

'* See Atlantic Lines, Ltd. v. Narwhal, Ltd., 514 F.2d 726, 731

(Sth Cir. 1975) (“[{T]he interpretation and construction of the

charter party is governed by federal law.’’).

'S Exhibit A to Sea Savage’s memorandum in support of its

motion for summary judgment, filed October 11, 1991.

'€ 758 F.2d 1063 (5th Cir. 1985).

74a

to damages arising “from any cause.” The court found

that this language unambiguously included indemnifica-

tion for the indemnitee’s own negligence. As there is no

notable difference between “from any cause” and “how-

soever arising,” “howsoever arising” likewise must encom-

pass indemnification for an indemnitee’s own negligence.

Although D/B OCEAN KING applied Louisiana law to

the interpretation of the clause. Louisiana law requires

more specificity in indemnity clauses and is more restric-

tive in allowing indemnification for an indemnitee’s own

negligence ** than maritime law. Maritime law, on the

other hand, generally recognizes and enforces contract

indemnity.** If Louisiana law would recognize an intent

to indemnify an indemnitee for its own negligence, then

surely maritime law would as well.

Sea Savage, Inc. further argues that indemnification for

Chevron’s own negligence violates public policy, such as

that pronounced in Louisiana’s Oilfield Indemnity Act .

If Sea Savage, Inc. Suggests that the Oilfield Indemnity

Act (the Act) applies to this contract. it is in error. The

Act has no application because maritime law governs the

charter party. Sea Savage, Inc., however. may suggest

only that the public policy expressed in the Acc should

void the charter party indemnification Clause.

This contention also fails. The Fifth Circuit has

awarded negligent tortfeasors indemnification pursuant to

maritime contracts. In so doing, the Fifth Circuit did

IT See, e.g., Orduna S.A. vy. Zen-noh Grain Corp., 913 F.2d 1149,

1153 (5th Cir. 1990): M.0.N.T. Boat Rental Services, Inc. v. Union

Oil Co., 613 F.2d 576 (5th Cir. 1980).

‘ST. Schoenbaum, supra note 12, 152, §$ 4-15 (1987): see also

Texas Eastern Transmission Corp. v. McMoRan Offshore Explora-

tion Co., 877 F.2d 1214 (5th Cir. 1989), cert. denied, 110 S. Ct. 332

(1990); Theriot v. Bay Drilling Corp., 783 F.2d 527 (5th Cir.

1986).

'® La. Rev. Stat. Ann. 9:2780.

* Tezas Eastern Transmission Corp. v. McMoRan Offshore Er-

ploration Co., 877 F.2d 1214 (5th Cir. 1989) (tower held responsi-

~~ =

Ja

not consider indemnifying an indemnitee for its own negli-

sence contrary to public policy. In addition. maritime law

explicitly has carved out Only two factual circumstances

in which an indemnitee cannot be indemnified for its own

negligence. First, contracts releasing a towing company

trom all liability arising out of its services are contrary

to public policy.*' Second, vessels cannot obtain indem-

nity from an employer of an employee covered by the

Longshore Harbor Workers Compensation Act, pursuant

to the Act.“ As this case does not involve either excep-

tion to the general maritime policy, the indemnification

clause is not void as contrary to public policy.

Chevron seeks indemnification from the vessel owner

for its liability to plaintiff, as well as its attorney fees and

costs. In the charter party, Sea Savage, Inc. “agrees to

defend, indemnify and hold harmless Chevron against any

and all claims for damages . . . howsoever arising in any

way directly or indirectly connected with the possession,

navigation, management, and operation of the vessel.”

An indemnity clause in a maritime contract, whether

governed by maritime or Louisiana law, should be read

as a whole and, unless the provision is ambiguous, its

words given their plain meaning. It should be construed

to cover all losses reasonably contemplated by the par

oe

1103S.

By the very nature of an indemnity agreement, Chev-

ron recovers any amounts it owes plaintiff. In this charter

le for indemnifying an indemnitee for its negligence), cert. denied,

110 S. Ct. 332 (1990)

' Bisso v. Inland Waterway C rp., 349 U.S. 85, 90, 75 S.Ct. 629,

632 (1955). fA

Pippen v. Shell Oil ¢ 661 F.2d 378 (5th Cir. Unit A Nov

1981)

“3 Weathersby v. Conoco Oil Co.. 732 F.2d 953, 955-56 (5th Cir.

1984) ; Kemp v. Gulf Oil Corp., 745 F.2d 921, 924 (Sth Cir. 1984);

Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 333 ( Sth Cir.

1981).

76a

party however, Sea Savage. Inc. also agrees to “defend”

Chevron. The plain meaning of “defend” grants Chevron

recovery for its attorney fees. Also. the Charter party

uses the term “hold harmless.” The Fifth Circuit has

held that “!t]he duty to indemnity and hold harmless in-

cludes the payment of costs and attorneys fees.’ ** Yet,

the indemnitee cannot recover its attorneys’ fees incurred

in establishing its right to indemnification.=* Thus, Chev-

ron’s recovery for attorney fees is limited to those fees

incurred in defending plaintiff's suit.’ I refer the deter-

mination of the amount of those fees to the Magistrate

Judge. The Clerk of Court will determine the amount of

costs recoverable, pursuant to Uniform Local Rule 5.04

and 5.041.

Chevron filed an intervention in this action to recover

the worker’s compensation and funeral expenses it paid

on behalf of Theodore Randall. Plaintiff recognizes

Chevron’s right to reorder these amounts.*7 As such.

plaintiff's judgment will be offset by the worker’s com-

pensation payments previously received by plaintiff.

Finally, Chevron seeks to recover from Sea Savage,

Inc. the worker’s compensation it has paid on behalf of

Theodore Randall. I have Previously held that Mr.

Randall was covered by the Longshore and Harbor Work-

ers Compensation Act. As a LHWCA employer, Chev-

*4 Lirette v. Popich Bros. Water Transport, Inc., 699 F.2d 725,

728 (5th Cir. 1983).

“3 Nathaniel Shipping, Inc. v. General Electric Co., 920 F.2d

1256, 1269 (5th Cir.). modified on other grounds, 932 F.2d 366 (5th

Cir. 1991); Signal Oil & Gas Co. v. Barge W-701, 654 F.2d 1164,

1178 (5th Cir. Unit A Sept. 1981), cert. denied, 455 U.S. 944, 102

S. Ct. 1440-41 (1982).

-° This includes the suit brought on behalf of Randall as well as

Nash, an employee of Sea Savage, Inc. injured in connection with

Randall’s death and whose claim was settled prior to trial.

*T Letter from plaintiff’s counsel attached to this Order and

marked Exhibit A.

77a

ron has the right to recover compensation payments made

on behalf of Mr. Randall from a negligent vessel owner.*®

This right is premised upon the vessel owner’s breach of

the duty of due care owed to Chevron.*? From the vessel

owner's breach of its duty to the longshoreman, Randall,

[ infer a breach of the duty owed to Randall’s employer,

Chevron. “If there had been no breach of duty to the

injured employee, there would have been no negligence

with respect to his employer... .”* | have found Sea

Savage, Inc. liable for the incompetence of its Captain,

the lack of training of its captain and crew, the lack of

any means of communication among the crew, and the

inaccessible placement of the life ring buoy. These acts

of negligence likewise amount to a breach of the duty of

due care owed to Chevron. Accordingly, Chevron is en-

titled to recover compensation paid on behalf of Randall

from Sea Savage, Inc. Sea Savage, Inc., vessel owner.

need only reimburse Chevron for the compensation pay-

ments that resulted from its negligence, not those that

resulted from Chevron’s negligence.*' Accordingly, be-

cause I found Sea Savage, Inc.’s negligence caused 75%

of plaintiff's damages, Chevron recovers only 75% of

the compensation payments made on behalf of Randall.

Accordingly,

IT IS ORDERED that there be judgment in favor of

Chevron, U.S.A., Inc. on its claim for indemnification

from Sea Savage, Inc., including attorney fees incurred in

defense and costs.

“3 Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394

U.S. 404, 417, 89 S. Ct. 1144. 1151-52 (1969).

“9 Td.

° Hartford Accident & Indem. Co. v. Ocean Carrier Shipholding,

799 F.2d 1093, 1097 (5th Cir. 1986).

3! Hartford Accident & Indem., 799 F.2d at 1096.

78a

IT IS FURTHER ORDERED that plaintiff's judgment

be reduced by the funeral expenses and worker's compen-

sation payments paid by Chevron U.S.A., Inc.

IT IS FURTHER ORDERED that Sea Savage, Inc.

reimburse Chevron U.S.A.. Inc. for 75% of compensa-

tion payments made on behalf of Theodore Randall.

IT IS FURTHER ORDERED that the determination

of Chevron’s award of attorney fees is referred to the

United States Magistrate Judge.

S/ Morey L. Sear

Morey L. Sear

United States District Judge

79a

EXHIBIT A

UNGAR & WHEELAHAN

A Professional Law Corporation

Marchand House Vieux Carre

830 Royal Street

New Orleans, Louisiana 70116

Telephone: (504) 566-1666

January 15, 1992

Honorable Morey L. Sear

United States District Court

Eastern District of Louisiana

500 Camp Street

New Orleans, LA 70130

Dear Judge Sear:

You have recently taken several post-tnal motions under

advisement including a motion by Chevron to recognize

its right, as third-party intervenor. to recover compensa-

tion payments which have been paid to Mrs. Randall

through the date of judgment. While Plaintiffs do not

oppose that, indeed, acknowledge Chevron’s right to re-

imbursement for these sums we Only ask that the judg-

ment recognize that this right is based upon federal law,

and in particular, the Longshoremen and Harbor Work-

ers’ Compensation Act.

Chevron’s motion assumes that they are entitled to re-

covery under the Louisiana Workers’ Compensation Act,

a position which Plaintiffs feel is unfounded in light of

the Court’s previous determination. in ruling on a motion

for summary judgment filed by Chevron, that the late

Mr. Randall was a longshoreman. We only ask that any

80a

order reflecting Chevron’s right to reirmbursement contain

language which is consistent with the Court’s prior ruling.

Sincerely,

UNGAR & WHEELAHAN

s/ Randy J. Ungar

RANDY J. UNGAR

RJU / gz

8la

Minute Entry [Date of Entry Mar. 17, 1992]

Sear, J.

March 13, 1992

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 89-4346 C W 89-4795

SECTION “G”

BARBARA RANDALL, et al.

versus

CHEVRON U:S.A., INC.., et ai.

MEMORANDUM AND ORDER

Theodore Randall drowned while attempting a swing rope

transfer from a fixed platform in the Gulf of Mexico to

the M/V SEA SAVAGE. At the time of his death, he

was employed by Chevron U.S.A.. Inc. (“Chevron”)

Chevron had time chartered the MV SEA SAVAGE,

from Sea Savage, Inc., owner of the vessel. Plaintiff, Bar-

bara Randall, individually, on behalf of the estate of her

late husband and her children. sought damages from Chev-

ron and Sea Savage, Inc. Chevron in turn impleaded

Underwriters Subscribing to Policy no. 12890 ‘“Under-

writers”), Sea Savage, Inc’s primary protection and in-

The Underwriters consist of Royal Insurance Company, Ameri

‘as Insurance Cornmpany, Underwriters at Lloyds, and Texas Marine

Underwriters Agency, Inc. See Exhibit C attached to Chevron

U.S.A. Inc.’s Opposition to American Home Assurance Company’s

Motion to Dismiss, Doc. No. 191, p. 26 (hereinafter “Primary

P&I Policy”

82a

demnity (“P & I’) insurer, and American Home Assur-

ance Companv (“American Home’), Sea Savage, Inc.'s

excess P & I insurer. Chevron sought insurance coverage

because it was named an additional assured under the

Sea Savage, Inc. policies.

On October 11, 1991, Underwriters filed a motion for

summary judgment on Chevron’s insurance claim. On

November 5. 1991. during the pretrial conference, con-

ducted on the record, the Underwriters’ motion was

granted because Underwriters argued and I ruled that the

claim asserted against Chevron bv plaintiff Williams fell

outside the scope of the policy. The policy limits cover-

age to liability incurred “as cwner” of an insured vessel

and Chevron’s liability could only be incurred as “time

charterer,” not “owner.” * On November 7, 1991, Amer-

ican Home adopted and urged the same motion as the

one granted in favor of Underwriters. Prior to beginning

the trial, American Home’s motion was granted for the

same reason.”

This matter was heard without a jury. Following trial

on the merits. Chevron. in its capacity as time charterer,

was found to have negligently ordered the vessel to en-

counter dangerous seas.* Accordingly, Chevron was cast

in judgment and its negligence was fixed at twenty-five

percent of plaintiff's total damages.

Chevron filed a motion stvled “Motion for New Trial,”

which in fact seeks reconsideration of my ruling on its en-

titlements to insurance coverage in light of the findings of

fact made following the trial. Sea Savage, Inc., on behalf

2A Minute Entry documenting this action was not filed.

3A Minute Entry documenting this action was not filed.

4 Moore v. Phillips Petroleum Co., 912 F.2d 789, 792 (5th Cir.

1930) (holding that ordering a vessel to encounter dangerous seas

is an act done as a time charterer, rather than as a platform

owner) (citing Graham v. Milky Way Barge, Inc., 824 F.2d 376, 388

(5th Cir. 1987) ).

83a

of Underwriters, opposes reconsideration.’ After review-

ing memorandum of counsel and applicable law, I find

that reconsideration is appropriate. I further find that no

prejudice will result from reconsideration of mv previous

ruling, even though the insurers did not directly partici-

pate in the trial of this action.

First, if Chevron is entitled to insurance coverage, that

coverage does not impose upon the insurer a duty to de-

fend its assured. The policy covers “[c]osts, charges and

expenses, reasonably incurred and paid by the Assured in

defense against any liability insured against.” Yet, no

where in the policy does the assurer agree to provide the

assured with a defense. Rather, pursuant to the terms of

the policy regarding the defense of any liability insured

against under the policy. “the Assured are obligated to and

shall take steps to protect their (andor the Assurer’s)

interests as would reasonably be taken in the absence of

this or similar insurance.” °

Second, if Chevron is entitled to coverage, the Under-

writers interest in defending this action was not affected as

a result of its dismissal as a named defendant for the

reason that the Underwriters at all times remained e3

posed for anv liability that woulld be imposed upon its

named assured. Sea Savage, Inc.. and for their assured’s

defense costs. The policy provides.

[t]he Assurer hereby undertakes to make good to the

\ssured ... all... (14) [c]josts. charges and ex-

penses. reasonably incurred and paid by the Assured

in defense against any liability insured against here-

under in respect of the vessel named herein. subject

to the agreed deductibles applicable. and subject fur-

>» Memorandum in Response to Chevron’s Post-Trial Motions and

Memoranda on Indemnity and Insurance Issues, Doc. No. 314, Dp.

& 7

wt.

® See Primary P & I Policy, third page of the form found at

p. 20.

The

84a

ther to the conditions and limitations hereinafter

provided.

GENERAL CONDITIONS

AND OR LIMITATIONS

Warranted that in the event of any occurrence

which may result in loss, damage and/or expense for

which this Assurer is or may become liable. the As-

sured will use due diligence and give prompt notice

thereof and forward to the Assurer as soon as prac-

ticable after receipe thereof, all communications,

processes. pleadings and other legal papers or docu-

ments relating to such occurrences.

The Assured shall not make any admissions of

liability, either before or after any occurrences which

may result in a claim for which the Assurer may be

liable. The Assured shall not interfere in any nego-

tiations of the Assurer, for settlement of any legal

proceedings in respect of anv occurrence likely to

give rise to a claim under this policy, the Assured are

obligated to and shall take steps to protect their

(and/or the Assurer’s) interests as would reasonably

be taken in the absence‘of this or similar insurance.

If the Assured shall fail or refuse to settle any claim as

authorized by Assurer, the liability of the Assurer to

the Assured shall be limited to the amount for which

settlement could have been made.

Whenever required bv the Assurer the Assured

shall aid in securing information and evidence and

in obtaining witnesses and shall cooperate with the

Assurer in the defense of any claim or suit or in the

appeal from any judgment. in respect of any occur-

rence as hereinbefore provided.’

policy provisions prohibiting th> assured from inter-

fering in settlement negotiations and compelling the as-

T Id.

85a

sured to cooperate in anv defense Suggest that Under-

writers had the option to defend its assured. Sea Savage,

Inc., if it chose to. Yet. despite its potential exposure to

any liability that might be imposed upon its assured and

its obligation to reimburse defense costs incurred by its

assured, Underwriters elected not to provide Sea Savage,

Inc. with a defense nor to Participate in the trial by as-

sisting Sea Savage, Inc.’s retained counsel. Rather. Un-

derwriters relied exclusively on Sea Savage, Inc.’s retained

counsel to protect their interest. as it relies on Sea Savage

in this motion. Because the Underwriters had the op-

portunity to participate and defend this-action. I find that -

they are not prejudiced by reconsideration of mv previous

ruling dismissing them and _ their subsequent absence

from the proceeding.

Underwriters admit that Chevron was named as an ad-

‘ditional assured on their protection and indemnity policy.®

They contend, however, that the policy does not provide

Chevron coverage for its loss because the policy terms

limit coverage to losses incurred by Chevron as owner of

an insured vessel. In denying coverage, the Underwriters

rely on the following provision: “The Assurer hereby un-

dertakes to make good fo the Assured .. . all such loss

and/or damage and/or expense as the Assured shall as

owners of the vessel named herein have become liable

to pay and shall pay on account of... (ljiability for loss

of life of . . . any person.” The Underwriters contend

that because Chevron incurred its liability as time char-

terer and because maritime law does not characterize a

time charterer as an owner of a vessel. Chevron is not

covered by the policy.

* Memorandum in Support of its Motion for Partial Summary

Judgment on Chevron’s Claims for Indemnity and Third Party De-

mand, Doc. No. 263, p. 6 (hereinafter “Doc. No. 263”). See Primary

P & I Policy, p. 8.

Primary P & I Policy, page one of the form found at p. 20

(emphasis added).

86a

First, Chevron argues that the policy permits addi-

tional assureds, such as Chevron, to deleted the “as owner”

Clause and that it was in fact deleted. Specifically, the

policy provides:

The so-called Other Than Owner, As Owner and or

Other Insurance clauses contained in_ this Policy

Shall not apply in respect of Named Assureds and

shall also be deemed deleted as may be required by

contract in respect of additional assureds. The in-

surance shall be deemed primary insurance as re-

quired by contract.

Notwithstanding the above. this clause shall not ex-

tend the insuring conditions beyond vessel opera

tions.*®

Thus, an additional assured can have any or all of these

clauses deleted by way of a contract. Indeed, Chevron ex-

pressly had the “other than owner” clause deleted by an en-

dorsement to the policy.'' Specifically, that endorsement

States: “With respect to... Chevron U.S.A. . . .. it is

noted and agreed that the so called ‘other than owners’

clause contained in this policy shall not apply.” '? Chev-

ron contends that the endorsement deleting the “other

than owner” clause served to delete the “as owner” clause

as well. I disagree.

The phrases “other than owner” and “as owner” each

has a distinct and separate purpose. The “other than

owner” Clause refers to the following provision:

It is expressly understood and agreed if and when the

Assured under this policy has any interest other than

as a shipowner in the vessel or vessels named here-

in. in no event shall the Assurer be liable hereunder

to any greater extent than if such Assured were the

10 Primary P & I Policy, p. 12.

11 Primary P & I Policy, Endorsement p. 1.

Id.

87a

owner and were entitled to all the rights of limitation

to which a shipowner is entitled."3

The intent of the “other than owner” Clause i

the underwriter’s liability to an amount

that to which the assured would be

ibility if

s “to limit

no greater than

entitled to limit li-

that assured were the owner.” "4 Thus, deleting

the “other than owner” clause simply waives the insurer’s

right to limit its liability to that of the shipowner, who

possesses the statutory right t

to limit liability to the value

f is vessel and pending freight.”

The “as owner” clause, on other hand, focuses on

the status of the assured when the claim arose and limits

the insurer's exposure to those liabilities that can be in

urred as owner of a vessel.’* Thus, deleting the

wner” clause expands the capacities in which Insured

es can occur yet. under the terms of the Underwrit

must pertain to vessel

ns." Because the purpose of the

‘tS .ehan el «

te OUNe€r tna

ec

policy, the loss stil] opera

owner

ause differs from that of the “as owner clause x

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