Former Fifth Circuit case, Section 9(1) of Public Law 96-452 October 14, 1980

According to the plaintiff, the normal procedure was for the wireline operator to be called out to the rig about 24 hours before his job was actually to be performed in order to check the equipment. After the equipment was checked, the workers were considered to be on stand-by. In this case, the equipment had been brought on board by employees of Inland Well, and the plaintiff and his two co-workers had checked the equipment the day before plaintiff's accident. Just prior to plaintiff's accident, a Shell Oil employee had told plaintiff that they would be ready for him in a couple of hours and that plaintiff was to begin preparing his perforating guns immediately. Record, vol. 1, at 47. The guns had been sent out to the rig loaded in a basket. In order to prepare the guns, plaintiff had to remove them from the basket and put top subs and firing subs on them. Then, when it came time for him actually to perform his job, he would only have to cap the guns with a blasting cap in order to use the perforating guns

The "basket" was actually a metal box approximately 12 feet by 3 feet. Record, vol. 1, at 48

Superior Electric's motion for summary judgment was heard on January 15, 1980 (in conjunction with a motion by Shell Oil to strike the jury). The district court made the following determination:

IT IS ORDERED:

(1) That plaintiff is entitled to a jury against Inland Well Service under 905(b);

(2) That the claim of Inland Well Service against Superior is dismissed;

(3) That all claims of Shell against Superior premised on a tort theory are dismissed.

IT IS FURTHER ORDERED that Shell Oil Company is allowed fifteen (15) days from this date within which to file a contract in the record of this case; and that if no contract is filed, and counsel call this to the Court's attention, any claims based on the contract will be stricken.

IT IS FURTHER ORDERED that the oral motion by Superior Electric Wireline Corp. for entry of a Rule 54(b) judgment upon the expiration of fifteen (15) days will be granted if no contract is filed by Shell Oil Company.

IT IS FURTHER ORDERED that counsel for movers prepare and submit a formal orders (sic) for signature of the Court in keeping with the foregoing rulings.

Record, vol. 1, at 196. Inland Well filed a motion pursuant to Fed.R.Civ.P. 59(e) to set aside the January 15 judgment with respect to plaintiff's right to a trial by jury only. On February 1, 1980, the district court entered a Rule 54(b) judgment, granting Superior Electric's motions for summary judgment and dismissing with prejudice the claims of Inland Well and Shell Oil against Superior Electric. On February 7, a motion to alter or amend the judgment with respect to plaintiff's right to a trial by jury was filed by Shell Oil. Although no disposition of the motions to alter or amend the judgment appears in the record, at oral argument on appeal, all parties stipulated that there were no motions pending before the district court. The issue of plaintiff's right to a trial by jury is not before this Court on appeal.

According to Trotti & Thompson v. Crawford, 631 F.2d 1214, 1216 n.5 (5th Cir. 1980), "(t)here is arguably a third jurisdictional confine: (the employer) must have been a statutory employer within the meaning of 902(4)." No party, either before the district court or before this Court, has alleged that this jurisdictional confine was not satisfied

There is no contention that plaintiff Pippen is a seaman covered by the Jones Act; all parties are in agreement that he lacks the requisite permanent connexity to a vessel necessary for seaman status

The Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C.A. §§ 1331-1356 (1964 & Supp. 1980), automatically extends the coverage of the LHWCA to provide compensation for injuries to employees that occur on the Outer Continental Shelf (located beyond three miles of the shoreline of Louisiana). Id. § 1333 (Supp. 1980). See Roberts v. Williams-McWilliams Co., 648 F.2d 255, 257 n. 2 (5th Cir. 1981); Guidry v. Continental Oil Co., 640 F.2d 523, 530 n. 21 (5th Cir. 1981); Longmire v. Seas Drilling Co., 610 F.2d 1342, 1351-52 (5th Cir. 1980). Here, since the injury occurred within the three-mile limit, the OCSLA does not apply to adopt the LHWCA automatically. Thus, Superior Electric can only claim rights under the LHWCA if plaintiff Pippen satisfies the definition of maritime employment in § 902(3) of the LHWCA.

In Odom, the appellants also contended that even if the employee "was doing maritime work at the time of his injury, he is not a covered employee because he spent the great majority of his time doing indisputably land-based jobs." 622 F.2d at 113. The Court stated that arguably its decision that the employee was covered by the LHWCA "could be based solely upon the foregoing conclusion that he was engaged in maritime work at the time of his injury." Id. In addition, however, the Court noted that where a significant part of the employer's overall work was maritime as it was in the case before that Court the Act favored coverage

In the instant case, all parties agree that an employee who does not engage in maritime activity by occupation, but who is engaged in maritime employment at the time of his injury, satisfies the § 902(3) status test. Since no party contests this characterization of the law, this Court need not decide whether it is correct. Whether or not it is correct, however, neither Pippen in particular, nor Superior Electric employees in general, spend the majority of their time performing indisputably land-based jobs. Indeed, a substantial part of their work is performed offshore. In his deposition, Pippen stated that he worked mostly offshore and on vessels. When asked about the amount of time he worked on fixed platforms as opposed to jack-up rigs and barges, he estimated that 75% of his work was performed on inland barges and floaters. Record, vol. 1, at 43. In addition, he testified that only about 10% of the work done by Superior Electric was done on land. Id. at 99-100. See Boudloche v. Howard Trucking Co., 632 F.2d 1346 (5th Cir. 1980) (claimant who regularly performs indisputably maritime operations, even where those operations constitute only a small portion of his overall working time, occupies a status covered by the Act), cert. denied, --- U.S. ----, 101 S. Ct. 3049, 69 L. Ed. 2d 418 (1981).

Superior Electric compares Pippen's work to that of the employee in St. Julien v. Diamond M Drilling, 403 F. Supp. 1256 (E.D.La.1975). There, the employee was a stabber whose job was to assist in running casing (pipe) into oil and gas wells. At the time of his death, he was working offshore on a submersible drilling rig. The court found that the LHWCA applied to the action. It noted that there was no evidence that the 1972 amendments to the LHWCA, which replaced the original situs test with a dual situs and status test, were intended to restrict the prior coverage of workers injured on navigable waters. Id. at 1258. Thus, according to the St. Julien court, any worker who would have been covered prior to the 1972 amendments (because he satisfied the situs test) would also be covered after the 1972 amendments; workers who were injured on navigable waters would be assumed to be engaged in maritime employment. The Supreme Court's holding in Pfeiffer has apparently disaffirmed that analysis. In Pfeiffer, the Supreme Court rejected the contention that the term maritime employment, as used in the § 902(3) status test, incorporates a geographic limitation. Rather, the Court held that maritime employment "embod(ies) an occupational rather than a geographic concept," and "refers to the nature of a worker's activities." 100 S. Ct. at 335. Still, the district court in St. Julien also based its holding on an alternate ground that the work performed by the employee "was sufficiently maritime to afford coverage by the amended LHWCA." 403 F. Supp. at 1259. To the extent that the St. Julien court considered a stabber to be engaged in maritime employment, that case provides support for Superior Electric's claim that Pippen was engaged in maritime employment

We do not intend to suggest, however, that facilitation of maritime commerce is the only way to satisfy the status test

To reach this conclusion, of course, we must to some extent look to location. Whereas onshore drilling and production cannot be considered maritime commerce, offshore drilling and production can be considered maritime commerce because of its location. Though Pfeiffer clearly stated that the status requirement "focuses upon the nature, not the location, of employment," 100 S. Ct. at 337, Pfeiffer did not forbid a consideration of location to determine whether activity is maritime commerce. Once it is determined that offshore drilling is maritime commerce, then it is necessary to examine the nature and purpose of the employee's work location aside to determine whether it has a realistically significant relationship to the maritime commerce. If so, the status test is satisfied

The conclusion that offshore drilling is maritime commerce is not in conflict with Sohyde Drilling & Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132 (5th Cir. 1981). In examining the functions and roles of an operator of a gas well and a contractor performing workover operations on a gas well, the Sohyde Drilling Court concluded that "(t)he functions and roles of these parties was hardly of a peculiarly maritime nature." Id. at 1136. Likewise, we do not conclude that Pippen's function or role was of a peculiarly maritime nature. Indeed, his job could have been performed either offshore or on land. However, Sohyde Drilling did not hold that offshore drilling was not maritime commerce. Since this Court determined above that offshore drilling is maritime commerce, we conclude that, although Pippen's job was not itself peculiarly maritime in nature, the purpose of Pippen's job was to facilitate maritime commerce.

Inland Well cites this Court's recent decision in Sohyde Drilling & Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132 (5th Cir. 1981), as dispositive of the issue whether Pippen was engaged in maritime employment at the time of his injury. In that case, the Court held that a suit for property damage arising out of a blowout of a high pressure gas well was outside the Court's admiralty jurisdiction because the incident lacked a substantial maritime relationship. The blowout had occurred while the defendant was performing workover operations on the plaintiff's gas well aboard a submersible drilling barge resting on the bottom of a dead-end dredged canal slip in Louisiana. The Court held that claims brought under the Admiralty Extension Act, 46 U.S.C.A. § 740, were subject to the requirement that the wrong asserted must bear a significant relationship to maritime activity. The Court noted that there were four factors to be considered in determining whether such a substantial maritime relationship existed: (1) The functions and roles of the parties; (2) the types of vehicles and instrumentalities involved; (3) the causation and type of injury; and (4) traditional concepts of the role of admiralty law. After a review of these factors, the Court was "unable to say that the circumstances surrounding the incident which gave rise to this action had a substantial maritime relationship." 644 F.2d at 1136

In large part, Sohyde Drilling is inapposite to the issue before this Court whether Pippen was engaged in maritime employment at the time of his injury and thus satisfies the status test of the LHWCA. The question facing the Sohyde Drilling Court was whether the wrong asserted the injury complained of bore a significant relationship to maritime activity. This Court need not decide whether Pippen's injury bore a significant relationship to maritime activity. Rather, we must decide whether the work in which Pippen was engaged at the time of his injury bore a significant relationship to maritime activity. The factors considered by the Sohyde Drilling Court to determine whether the wrong bore a significant relationship to maritime activity for purposes of the Admiralty Extension Act have not been applied in cases that considered whether an employee was engaged in maritime employment for purposes of the LHWCA. To whatever limited extent that the factual conclusions of the Sohyde Drilling Court might be relevant to the inquiry before this Court, they do not compel a conclusion that Pippen's activities did not have a realistically significant relationship to traditional maritime activity and that he was not engaged in maritime employment at the time of his injury. While the Sohyde Drilling Court did hold that an action involving property damage caused by the blowout of a gas well did not have a substantial maritime relationship, it did not hold that a wireline operator on an offshore drilling rig who was preparing to set packers for perforation was not engaged in maritime employment.

Superior Electric relies heavily upon Guidry v. Continental Oil Co., 640 F.2d 523 (5th Cir. 1981), to establish that Pippen was engaged in maritime employment. In Guidry, the Court held that the injured plaintiff, who was a pusher for a casing crew and who was "clearly performing duties essential to the function of the (vessel) pushing casing for oil wells," id. at 529, was limited to recovery for his injuries under the LHWCA. Id. at 530. However, this holding was not a result of an examination of whether Guidry satisfied the situs and status tests of the LHWCA; rather, in that case, the LHWCA was applicable by virtue of the OCSLA because Guidry was injured on a vessel on the Outer Continental Shelf. Id. at 530 n.21. See note 5 supra

Section 902(21) provides:

The term "vessel" means any vessel upon which or in connection 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 member.

Section 905(a) (which existed as section 905 prior to the 1972 amendments) provides:

The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.

As stated above, § 905(a) prohibits actions by a third party against the employer "on account of" the injury or death of an employee. In the event of a suit by a third party against the employer based on a contract of indemnity express or implied the recovery against the employer is not on account of the injury it is on account of the contract of indemnity. Similarly, though we have no such situation before us here, some types of tort claims for indemnity would apparently not be barred by § 905(a). The court in Holden v. Placid Oil Co., 473 F. Supp. 1097 (E.D. La. 1979), for instance, held that:

if a claim of indemnity founded in tort is premised on an alleged duty owed by the indemnitor directly to the indemnitee, such a claim is not barred by § 905(a). As is the case with claims of indemnity founded in contract, then, where a duty or obligation sounding in tort exists directly between the indemnitor and indemnitee, recovery of indemnity based on this duty or obligation is not "on account of" the employee's injury, and hence is not proscribed by § 905(a).

Id. at 1100-01 (emphasis in original). Since Shell Oil has not presented any evidence of an obligation in tort between it and Superior Electric that would cause Superior Electric to be liable to Shell Oil for indemnity, the district court's summary judgment on this ground was proper.

Refusing to extend section 905(b) to prohibit Ryan actions by nonvessels would be consistent with the approach taken in the recent Fifth Circuit case of Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir. 1981). In that case, harbor workers employed by Panama Canal Company brought suit against vessel owners alleging that they sustained personal injuries as a result of the vessels' unseaworthiness and the crews' negligence. (Although unseaworthiness actions are available only to seamen, the Supreme Court, in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), has long since created a Sieracki seaman status for longshoremen who do work that has customarily been done by a seaman.) The vessel owners then filed third-party complaints against the employer, the Panama Canal Company, for indemnity, asserting that the company breached its warranty of workmanlike performance. The Court recognized that the 1972 amendments to the LHWCA specifically prohibit the vessel from seeking indemnity from the stevedore's employer. However, the injured employees were federally-employed harbor workers and so were not covered by the LHWCA; rather, they were covered by the Federal Employees' Compensation Act (FECA), 5 U.S.C.A. § 8101. The Sieracki-Ryan doctrine, which arose in the context of LHWCA employees and their private employers, has also been applied to federally-employed FECA employees and their government employers. The Aparicio Court held, however, that LHWCA § 905(b), which was enacted "to abolish the judicially-created Sieracki-Ryan cycle that had effectively nullified the exclusive liability provision of (the LHWCA)," did not apply to maritime workers outside the coverage of the LHWCA. 643 F.2d at 1115-16. The Court stated: "The statute manifests no intention to expand the abolition of the Sieracki-Ryan construct beyond the coverage of the LHWCA.... Had Congress intended to affect the substantive rights of persons not covered by the LHWCA, it could readily have manifested that intention." Id. at 1116. Similarly, there is no indication in the 1972 amendments to the LHWCA, or in their legislative history, evidencing a congressional intent to prevent nonvessels from bringing a Ryan-type action against the employer. The abolition of the employer's indemnification liability to the vessel was enacted as a quid pro quo for the elimination of the warranty of seaworthiness owed by the vessel to the Sieracki seamen and the limitation of the vessel's liability to negligence only. "No such quid pro quo was offered to non-vessels." Zapico, 579 F.2d at 721. Until Congress more specifically abrogates this judicial remedy of contractual indemnity owed to nonvessels by the employer, it would appear to continue to be available

Superior Electric contends that Shell Oil was a time charterer of the vessel owned by Inland Well. Thus, Superior Electric argues that Shell Oil is barred by § 905(b) from bringing any action against the employer, since § 905(b) expressly prohibits indemnity actions by a vessel and since the definition of vessel includes charterers. There is no evidence in the record as to what type of arrangement existed between Shell Oil and Inland Well for the lease of the vessel; consequently, we cannot base our decision on this contention