Cook v. Belden Concrete Products, Inc.

• Decision Date: 12 March 1973
• Docket Number: No. 72-3083. Summary Calendar.,72-3083. Summary Calendar.
• Parties: Robert D. COOK, Plaintiff-Appellant, v. BELDEN CONCRETE PRODUCTS, INC., Division of Rockwin Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

472 F.2d 999 (1973)

Robert D. COOK, Plaintiff-Appellant, v. BELDEN CONCRETE PRODUCTS, INC., Division of Rockwin Corporation, Defendant-Appellee.

No. 72-3083. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 12, 1973.

Rehearing and Rehearing Denied March 12, 1973.

Carl J. Barbier, New Orleans, La., for plaintiff-appellant.

Thomas J. Wyllie, Harold A. Thomas, New Orleans, La., for defendant-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 12, 1973.

CLARK, Circuit Judge:

Appellant Robert D. Cook sustained serious injuries to his arm in a fall from a ladder aboard a floating construction platform moored in navigable waters alongside the appellee's concrete yard. Seeking recovery in excess of the compensation provided by the Longshoremen's and Harbor Workers' Compensaion Act,¹ Cook sued his employer, Belden Concrete Products, alleging jurisdiction under the Jones Act² and general maritime law.³ The district court granted summary judgment in favor of Belden. We affirm.

The construction platform where the injury occurred consisted of a flat-deck barge approximately 180 by 54 feet upon which Belden employees fabricated concrete barges. The platform had no motive power and could be moved only by the use of tugboats or land-based cranes. It was equipped with pipes and pumps for flooding or evacuating its interior compartments thus permitting its deck to be submerged to launch completed barges. During the fabrication of barges the platform would occasionally be moved to different positions alongside the defendant's dock to pick up materials. Upon the completion of construction of a set of barges the platform would be towed a short distance into deeper water for launching.

At the time of his injury, Cook was employed as a carpenter erecting forms preparatory to pouring concrete for a second deck on a half-completed barge. The construction platform was secured to appellee's dock by ropes — the normal method of mooring the platform during the construction process.

This appeal focuses on one issue: whether, as a matter of law, the construction platform was a vessel for maritime jurisdictional purposes. Although the precise question is one of first impression we find the platform legally indistinguishable from a floating dry dock which, at least while it is secured to land, is not a vessel for purposes of the Jones Act or general maritime law. Keller v. Dravo Corp., 441 F.2d 1239 (5th Cir. 1971), cert. denied 404 U.S. 1017, 92 S. Ct. 679, 30 L.Ed.2d 665 (1972); Chahoc v. Hunt Shipyard, 431 F.2d 576 (5th Cir. 1970), cert. denied 401 U.S. 982, 91 S.Ct. 1198, 28 L.Ed.2d 333 (1971); Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279 (5th Cir.), cert. denied 396 U.S. 846, 90 S.Ct. 105, 24 L.Ed.2d 96 (1969).⁴

As this court pointed out in the Atkins decision:

Since Cope v. Vallette Dry-Dock Company, 1887, 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501, if not before, Snyder v. A Floating Dry Dock, D.N.J., 1884, 22 F. 685, it has been clear that a floating drydock is not a "vessel". Cope v. Vallette Dry Dock Company, supra, held that a floating drydock was not a "vessel" for purposes of salvage. The same considerations are applicable to whether a warranty of seaworthiness is owed. "A fixed structure such as this dry-dock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a wharf or a warehouse when projecting into or upon the water." Cope, supra 119 U.S. at 627, 7 S.Ct. at 337. Mere flotation on water does not constitute a structure a "vessel" for purposes of salvage nor warranty of seaworthiness. The elements of risk and exposure to the hazards of the sea, necessary for the operation of and common to both principles, is absent upon floating drydocks.

The appellant argues that Cope and Atkins are distinguishable since the dry docks there determined not to be vessels were permanently secured to the bank, while in the instant case the floating construction platform was capable of limited movement and was, in the normal course of its service, towed from point-to-point in the navigable waters off the Belden concrete yard.⁵ The permanence of fixation, however, is not the criterion which governs the maritime status of floating dry docks and similar structures. As the Supreme Court pointed out in The Robert W. Parsons the "determinative factors upon the question of jurisdiction are the purpose for which the craft was constructed and the business in which it is engaged." 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73 (1903).

Conventional ships and barges as well as such unconventional craft as submersible drilling barges and floating dredges which are designed for navigation and commerce are vessels within general maritime and Jones Act jurisdiction and retain such status even while moored, dry-docked, or otherwise immobilized and secured to land. Cope v. Vallette Dry Dock, supra, 119 U.S. at 627-628, 7 S.Ct. at 337 (ship made fast to wharf); Union Barge Line v. Allen, 239 F.Supp. 1004 (E.D.La.1965), aff'd 361 F.2d 217 (5th Cir. 1966), cert. denied, 385 U.S. 1006, 87 S.Ct. 713, 17 L. Ed.2d 545 (1967) (tugboat in dry dock); Marine Drilling Co. v. Austin, 363 F.2d 579 (5th Cir. 1966) (submersible drilling barge "stabilized in navigable waters"); Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966) (submersible drilling barge "resting on the bottom of a canal"); Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959) (mobile drilling platform jacked out of water on its own legs); Kibadeaux v. Standard Dredging Co., 81 F.2d 670 (5th Cir.) cert. denied, 299 U.S. 549, 57 S.Ct. 12, 81 L.Ed. 404 (1936) (floating dredge without motive power connected to shore by pontoons). However, unlike these craft which the law dictates must retain their seaworthy status even while temporarily affixed to land, the construction platform involved in this case was not designed for transportation of passengers, cargo, or equipment from place to place across navigable waters. Of course, some movement, both perpendicular and lateral, is necessarily part of the regular operation of floating dry docks and similar structures. However, capability to sustain such movement has been held insufficient to establish that such craft are constructed for the purpose of navigation. The Robert W. Parsons, supra; Berton v. Tietjen & Lang Dry Dock Co., 219 F. 763, 774-775 (D.N.J.1915).

Although the floating construction...