Nations v. Morris

Citation483 F.2d 577
Decision Date03 December 1973
Docket NumberNo. 71-3141.,71-3141.
PartiesJohn R. NATIONS, Plaintiff-Appellant, v. W. W. MORRIS and American Motorists Insurance Co., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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

Gordon F. Wilson, Jr., Robert E. Leake, Jr., New Orleans, La., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge, and RIVES and CLARK, Circuit Judges.

Certiorari Denied December 3, 1973. See 94 S.Ct. 584.

JOHN R. BROWN, Chief Judge:

After suffering injury through the alleged negligence of a fellow employee on an offshore drilling rig located on the Outer Continental Shelf off the coast of Louisiana Employee-Appellant suffered summary judgment in the District Court through the asserted error of the trial Judge in incorrectly determining that in an action invoking the Louisiana Direct Action Statute1 (i) the Longshoremen's and Harbor Workers' Act2 (L & H) was the exclusive remedy for appellant and (ii) L & H's grant of tort immunity to both the employer and the fellow employees of an injured worker (§ 933(i))3 is a non-personal defense which can be maintained by the employer's insurance carrier. We agree with the District Court and hold that he was clearly correct as to both (i) and (ii) and affirm for the further reason that we find the Louisiana Direct Action Statute to be inapplicable to causes of action based upon occurrences on artificial islands or structures on the Continental Shelf.

The facts, which are not disputed, show that Employee was injured while working on an oil drilling platform located some 40 miles from the Louisiana coast in the Gulf of Mexico. Employee was working for Employer (Coral Drilling Company) at the time of the accident as was his co-worker, the defendant, W. W. Morris.4 Insurer (American Motorist Insurance Company) a defendant due to the Louisiana Direct Action Statute, is the liability and compensation insurer of Employer. American Motorist was thereby the liability insurer of Morris under the omnibus provisions of its general liability policy.

I. Tinkers-To Evers-To Chance

As Employee cannot ignore the plain language of the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C.A. § 1331 et seq., which expressly prescribes the application of L & H5 and the exculpatory terms of § 933, note 3, Supra, his theory is necessarily a complex, if not too sophisticated, one.

First, to export onto International waters, the land-based Louisiana right of an injured employee to sue a fellow employee for injuries caused by negligence of such fellow worker6 he has to find a way for Louisiana law to apply either extraterritorially or as Rodrigue7 surrogate law. He does that by invoking § 1333(a)(2) of OCSLA which provides that "to the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations" state laws shall be applied as surrogate federal law.8 To make that leap in the face of § 1333(c) OSCLA and the exculpation of 33 U.S.C.A. § 933(i), he asserts that the occurrence was either in the twilight zone or the concurrent light zone.

All the while, he must be fully aware that L & H, 33 U.S.C.A. § 901 through § 950, provides a comprehensive scheme for determining who shall pay, how much money,9 after which occurrences, for what duration, to which persons, and provides the machinery for enforcing these determinations. It provides what record keeping practices must be maintained, penalties for failure to follow its requirements and prohibitions, safety rules and regulations for the protection of the workers that it covers and appropriations for its enforcement. The import of this will be—we hope—made clear.

Not Equal—No Sequel

The Supreme Court's decision in Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, ruled that state compensation acts could not provide compensation for maritime injuries. In Grant Smith-Porter Ship Co. v. Rohde, 1921, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, following closely on the heels of its decision in Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, the Supreme Court held that state compensation acts could not compensate maritime injuries unless they were "maritime but local" (257 U.S. at 242, 42 S.Ct. 89). After the enactment of the L & H in 1927 the question of whether there would be compensation under a state act shifted to whether compensation would be state or federal.

In Davis v. Department of Labor, 1942, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, 1942 A.M.C. 1653, the Court dealt with a situation where the physical location of an accident created uncertainty as to whether state or L & H compensation would apply. The Court introduced one of those figuratives that may make the problem worse, not easier. It held that in the twilight zone a determination that state compensation was applicable would not be disturbed unless clearly erroneous.10 Thus, "twilight" began to take on the appearance of an area where either system might operate.

In Calbeck v. Travelers Insurance Co., 1962, 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368, 1962 A.M.C. 1413, the Supreme Court made it clear that there existed an area in which both state and federal compensation systems were competent to provide a remedy. Appellant would have us describe this as a sphere of "concurrent jurisdiction." In Mike Hooks, Inc.11 we referred to it as "the doctrine of the last chance."12 Mike Hooks adequately describes the erratic voyage of the humane compensation remedy through the shoals left by Jensen, supra.

Calbeck applied the doctrine—whatever its proper appendage—to new construction.13 And the area of multiple choice remedies extends to injuries sustained in working around marine railways, which, though they are on dry land, are covered by L & H through the specific command of § 902(4), that the L & H shall cover drydocks. Holland v. Harrison Brothers Drydock and Repair Yard, 5 Cir., 1962, 306 F.2d 369, 1963 A.M.C. 1343.14 The Holland Court was not dissuaded from locating the injuries there within the twilight zone by the fact that the injuries occurred on the land appurtenant to the railway, necessarily occupied by those repairing the ship,15 306 F.2d at 372, and not on the railway or the barge resting on the railway. Appellant would have us hold that the platform here was such an area of concurrent jurisdiction.

The argument is a nice try, but it doesn't work for a number of reasons. This occurrence did not take place within the territorial limits of the state of Louisiana. The accident occurred far beyond even the wildest claim of territorial sovereignty the state of Louisiana might make. Specifically the accident occurred upon the "Outer Continental Shelf" as that area is characterized and defined by Congressional act.16 Employee recognizes this but invokes a la Rodrigue17 the surrogate law provision, 43 U.S.C.A. § 1333(a)(2).

In a way our analysis requires, as is often done in jurisdictional quests, that we assume momentarily that Louisiana law applies and would not be inconsistent with OCSLA. On that approach there is neither "maritime but local" nor twilight zone. The injuries were sustained wholly on the drilling platform. Although transported forty or more miles to sea the incident was the parallel of a longshoreman being injured on a permanent pier in a land locked harbor,18 with no mixture of sea and land.

Here the L & H applies not because the injuries were maritime but not local but because the statute expressly so states. And there can be no twilight where the physical location and the consummation of the injuries were on this Congressional extension of the underlying seabed.

A beguiling argument could be made that by OCSLA's incorporation of L & H Congress gave a mouth-to-mouth-resuscitation to the jurisdictional language launched by Jensen to afford federal coverage only where disability or death stems from an injury occurring upon navigable waters, see note 3, supra, and recovery for the disability or death through workmen's compensation proceedings might not validly be provided by the adjacent state. However we cannot believe that Congress had any such purpose.19

As with numerous overseas military bases Congress knew that in the area of industrial injuries which were bound to occur often in such new and hazardous operations a specific code for adequate compensation benefits for employees vis-a-vis employers had to be ordained. Several factors pointed directly toward the rejection of any notion that this could be attained through a sometime application of adjacent state compensation laws. First was an awareness that the case by case post-Jensen history had not been an inspiring one. Next, as we pointed out in Snipes, note 29, infra, OCSLA prescribes federal standards for industrial safety to be promulgated and enforced by the "head of the Department in which the Coast Guard is operating."20 (Domestic employers under the L & H are regulated with regard to safety practices by the Secretary of Labor.)21

Even more significant in construction of the act is the fact that OCSLA, in its incorporation of L & H, did not speak in terms of injuries occurring on such platforms so as to distinguish them from those off the platforms. The incorporation, § 1333(c), note 5, supra, refers to "operations described in subsection (b)" which thereby incorporates the broad scheme of § 1333(b).22 Obviously Congress purposefully established a system that would apply without regard to physical location.

To cap it off, ever since Calbeck the proviso of § 903(a) has had little or no operative effect with respect to occurrences within the legislatively described sphere. There it was an injury occurring on navigable waters (in connection with the building of a new vessel). Here the physical operation covered is that of § 1333(b) OCSLA, note...

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