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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 994

## Text

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-]
-

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0039%3A2. Public record. Not legal advice.