Burks v. American River Transp. Co., Civ. A. No. 77-420-A.

• Decision Date: 07 March 1980
• Docket Number: Civ. A. No. 77-420-A.
• Citation: 486 F. Supp. 603
• Parties: Joseph BURKS v. AMERICAN RIVER TRANSPORTATION COMPANY.
• Court: U.S. District Court — Middle District of Louisiana

486 F. Supp. 603

Joseph BURKS v. AMERICAN RIVER TRANSPORTATION COMPANY.

Civ. A. No. 77-420-A.

United States District Court, M. D. Louisiana.

March 7, 1980.

Floyd J. Falcon, Jr., Dodd, Barker, Avant, Wall & Thomas, Baton Rouge, La., for plaintiff, Joseph Burks.

Eugene R. Groves, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for intervenors, Rogers Terminal and Shipping Corp. and Northwestern Nat. Cas. Co.

John O. Charrier, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for defendant, American River Transp. Co.

Thomas K. Kirkpatrick, Kirkpatrick, Keyser & Kirkpatrick, Baton Rouge, La., for third party defendant, Rogers Terminal and Shipping Corp.

E. GORDON WEST, District Judge:

Joseph Burks works as a longshoreman for Rogers Terminal and Shipping Corporation, a stevedoring company, operating at the Port of Baton Rouge, Louisiana. He works primarily aboard the K-1, a special kind of floating barge outfitted with a deck crane and other deck machinery which enables it to unload cargo from river barges directly into seagoing vessels. The K-1 is owned by Burks' employer, Rogers Terminal and Shipping Corporation (Rogers). On October 31, 1976, while standing on the deck of the barge ART-402, which had just been unloaded by the K-1, he stepped onto a hatch cover which gave way beneath him, precipitating him into the hold of the barge, where he was injured. The ART-402 is owned by defendant, American River Transportation Company (ARTCO).

Burks sued ARTCO, claiming negligence and breach of the warranty of seaworthiness of the ART-402. This Court, after hearing the evidence, dismissed the negligence claims, and the case has been submitted on the issue of Burks' entitlement to sue the owner of the ART-402 on the warranty of seaworthiness.

Traditionally, the warranty of seaworthiness has always been considered to be owed by a ship's owner to the seamen employed aboard his ship. It has been often repeated that the question whether or not a particular individual is a seaman covered by the warranty is, within reasonable bounds, a matter for the finder of fact, Longmire v. Sea Drilling Corp., 610 F.2d 1342 (CA 5).

It has been held that there is a reasonable basis for a finding that an individual is a seaman if the following test is met:

". . . there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and ... the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips." Offshore Co. v. Robison, 266 F.2d 769, 779 (CA 5 1959).

But the above test was described as "More frequently an analytical starting point than a self-executing formula" in Brown v. I.T.T. Rayonier, Inc., 497 F.2d 234 (CA 5 1974). The scope of the warranty of seaworthiness was expanded to include, not only seamen as described above (commonly called Jones Act Seamen), but also any person aboard ship to render it service either "with his the owner's consent or by his arrangement" in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Most of the so-called Sieracki Seamen were longshoremen already covered by the Longshoreman and Harbor Workers' Compensation Act (LHWCA). Normally, of course, a worker's compensation scheme, which pays benefits for work-related injuries without regard to fault, is offered as a substitute for other remedies which a worker might have at law. The Sieracki case was greatly criticized for permitting longshoreworkers to double-dip, as it were, enjoying the benefits of the compensation system while retaining the right to recover damages from shipowners who were strictly liable for breach of the warranty of seaworthiness. See Gilmore & Black, The Law of Admiralty, pages 408-12 and Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 521 (1979). Accordingly, the LHWCA was amended in 1972 to provide that when a longshoreman sued the owner of a ship on which he was injured such suit "shall not be based upon the warranty of seaworthiness," 33 U.S.C.A. § 905(b). Jones Act Seamen are excluded from coverage under the LHWCA,¹ therefore their right to claim the warranty of seaworthiness is unaffected by the 1972 legislation.

Clearly, if Burks, a member of the longshoreman's union for twenty-one years, who was engaged in the typical longshoreman's work of unloading a vessel at the time of his injury, and who has accepted LHWCA money paid him on account of that injury, is a longshoreman, then he is not entitled, since 1972, to the warranty of seaworthiness, and this action must be dismissed. Only if he can show himself to be a Jones Act Seaman rather than a longshoreman can he recover. For reasons set out below we find him to be a longshoreman vis-a-vis the defendant and dismiss his suit.

We pretermit consideration of the question whether Burks is a seaman as to the K-1 and its owner, Rogers. Whatever his status vis-a-vis Rogers, as to ARTCO and the ART-402, ...