Thibodeaux v. J. Ray McDermott & Co.

• Decision Date: 19 April 1960
• Docket Number: No. 17990.,17990.
• Citation: 276 F.2d 42
• Parties: Beota Rogers THIBODEAUX, Appellant, v. J. RAY McDERMOTT & CO., Inc., and the Travelers Insurance Company, Appellee. J. RAY McDERMOTT & CO., Inc., and the Travelers Insurance Company, Cross-Appellant v. Beota Rogers THIBODEAUX, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

276 F.2d 42 (1960)

Beota Rogers THIBODEAUX, Appellant, v. J. RAY McDERMOTT & CO., Inc., and the Travelers Insurance Company, Appellee.

J. RAY McDERMOTT & CO., Inc., and the Travelers Insurance Company, Cross-Appellant v. Beota Rogers THIBODEAUX, Cross-Appellee.

No. 17990.

United States Court of Appeals Fifth Circuit.

March 8, 1960.

Rehearing Denied April 19, 1960.

COPYRIGHT MATERIAL OMITTED

Phil Trice, Lafayette, La., Saloom & Trice, Lafayette, La., for appellant-cross-appellee.

Pat F. Bass, New Orleans, La., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., of counsel, for appellee-cross-appellant.

Before HUTCHESON, TUTTLE and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This is another of the now frequent intramural contests involving the ambiguous-amphibious maritime worker. In this diversity suit for damages, the survivors of the deceased employee asserted an alternating succession of claims to which the Employer¹ countered with like fluid defenses. The District Judge thought that in this case at least the matter had the simplicity of decision as a pure matter of law, not fact. Accordingly, he directed a verdict for the Employer on the claims for damages. We agree with this. We agree as well with its collateral action of refusing the Employer's plea that a judgment be entered for death benefits under the Louisiana Compensation Act, LSA-R.S. 23:1021 et seq., on the ground that it, not the federal Longshoremen's and Harbor Worker's Compensation Act, applied.

The deceased Employee was a welder. He worked in the fabricating division of the Employer, a large industrial contracting concern. For about four days he, along with as many as forty or fifty others, was engaged in loading or securing the deck cargo on a flat-deck unmanned barge, the McDermott Tidelands No. 5 — approximately 240 feet in length with a 70-foot beam. The cargo comprised large nondescript structural units which the Employer had fabricated for a customer's use in offshore oil operations in Venezuela. These structures, some as high as 100 feet, and other equipment covered most of the deck area which, quite naturally, was considerably cluttered. The absence or inadequacy of lifelines around the deck and rustic gangplanks and the insufficiency of lights added to the industrial hazards. The work being done by the Employee and other welders was welding padeyes, metal straps and the like to the deck or cargo to permit proper lashing and securing of the deck load for the ocean voyage. The cargo included several mobile house trailers. All of this welding and related work was completed about 2:00 o'clock in the morning. The Employee had last been seen working on the barge some time during the preceding two hours (i. e., some time after midnight). Shortly after the men knocked off, the Employee was missed. No one saw him leave the barge or saw him ashore. None of his welding gear was ashore. It was soon feared that he had somehow fallen into the Bayou. The diver's search between the shore and the inboard side of the barge was negative. Early the following morning his body, fully clothed, was located by grappling hooks on the bottom of the Bayou about eighty feet from the outboard side of the barge.

Out of this incident grew this multiclaim diversity suit. The complaint asserted three theories for recovery of damages, not compensation. These claims were for a recovery of damages (1) under § 905 of the Longshoremen's Act for failure to secure payment of compensation² (2) as a seaman under the Jones Act, 46 U.S.C.A. § 688; and (3) for loss of consortium in the manner of Hitaffer v. Argonne.³ Alternatively to these claims for damages — but only as a last resort — it set forth claim (4) for compensation under the Louisiana Workmen's Compensation Act.

Claim (1).

For Damages Based on Longshoremen's Act.

The essence of this claim is, of course, that the employment and injury were such that the Longshoremen's Act was applicable. In other words, in contrast to Claims (2) as a seaman, this was bottomed on the proposition that a compensation act controlled, and that compensation act was the federal, not the state law.

The recovery sought, however, was not compensation death benefits as such. On the theory that the Employer failed "to secure payment of compensation," the plaintiffs exercised their statutory election provided in § 905 of the Longshoremen's Act to sue "for damages on account of such injury or death."

The District Court held that this claim for damages was unfounded since the record demonstrated conclusively that the Employer had secured payment of compensation. We agree.

The plaintiffs did not question the issuance or current maintenance of an approved compensation insurance policy as permitted under § 932(a)(1) & (b) and § 936. Indeed, the complaint affirmatively alleged the existence of the insurance and answers to interrogatories made it doubly sure. The whole theory was that there was a question of fact whether the printed notice required by § 934 was properly posted.⁴ We need not discuss the evidence. Assuming that the notice posting was inadequate, this does not amount to a failure "to secure payment" required by § 905 as a condition to a damage suit. By the structure of the Act, the reference in § 905 to an employer who "fails to secure payment of compensation as required by this chapter" relates to the specific provision in § 932 which prescribes how and in what manner an employer shall comply with the obligation to secure payment of compensation.⁵

As an additional sanction to a § 905 damage suit, the Act imposes severe criminal (and civil) penalties against an employer and its corporate executives "who fails to secure such compensation." 33 U.S.C.A. § 938(a) & (c). And to these sweeping sanctions is added the further one of the withdrawal of limitation of shipowner liability statutes (46 U.S.C.A. §§ 183-189) as to either (a) damages recoverable in a § 905 damage suit or (b) a proceeding for compensation and penalties. 33 U.S.C.A. § 948.

With this elaborate provision for effectual compliance with the Act and an actual financial ability to pay compensation awarded under it, — rights and obligations in no way dependent upon prior notices — there is no indication that Congress intended the failure to post, or adequately post, a notice to have, or to be visited with, such consequences.

Claim (2).

For Damages as a Jones Act Seaman.

Of course, there is nothing novel in the hope behind this claim. But in the final analysis what it is is the mistaken belief of so many that merely because the status of who is a seaman may be a question of fact, the principles summarized by us in Offshore Co. v. Robison, 5 Cir., 1959, 266 F.2d 769, 1959 A. M.C. 2049, perforce make every case one of fact for jury decision. Neither that opinion nor the cases it discussed made any such declaration.

Here the decedent fails on many scores. He was a regular shore worker. He lived, ate and slept at home. He was not attached or assigned to any particular vessel either as a member of a crew or otherwise. His customary duties were in welding and cutting on vessels under construction, conversion or outfitting. His relation to the barge McDermott No. 5 was purely transitory — both in point of work to be done and the time of its duration. He was to weld to enable proper securing of cargo for the intended ocean voyage. None of the workers engaged in loading and securing the cargo either were to, or could, make the voyage on this unmanned barge. There was no proof that the Employer expected to hire him to later fly down to Venezuela to perform services in connection with the discharge of the deck load or the assembly and installation ashore, or elsewhere, of the structures comprising its cargo. The most the evidence showed was that later on some men were flown down with perhaps the expectation that while engaged in discharging the barge and reassembling the structures they would live aboard the barge in the mobile trailers. But who these men were to be, how they were to be selected, what they were to do once they got there, how long they would remain, what relation there would be to the barge, or for what time, are all simply unknowns.

Clearly what the decedent was doing and had been doing for four days did not make him then a seaman. And these vague dreamy possibilities about what he might be, or do, in the future lacked sufficient legal buoyancy to float a seaman's status.

Claim (3).

For Damages for Loss of Consortium.

This is a claim by the surviving widow and posthumous child for loss of "society, security, companionship, love, guidance and financial support" of the decedent. This claim asserts that although decedent was not a seaman as in Claim (2) and even though the Longshoremen's Act applies but payment of compensation was properly secured so as to preclude a § 905 damage suit as in Claim (1), the surviving widow and the posthumous child have an independent, non-derivative right against the person, here the Employer, negligently causing death.

To maintain such a theory for a wrongful death, two things must be established. First, there must be a right under local state law enforceable as a part of the admiralty and maritime law of the United States.⁶ Second, the exclusive liability of the Longshoremen's Act must be overcome. As fascinating as would be an excursion into Louisiana law,⁷ especially with the uncertainties in the overlay of federal constitutional questions, note 6, supra, we need not review the first. For as to the second, the Longshoremen's Act is, was intended to be and states that it is the exclusive measure of liability of an employer to a surviving widow and child.⁸

On this score, all that the plaintiffs have is Hitaffer v. Argonne Co., 1950, 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R. 2d 1366, certiorari denied 340 U.S. 852 71 S.Ct. 80, 95 L.Ed. 624, which did hold that exclusive is really not...