Blanchard v. Engine & Gas Compressor Services, Inc.

• Citation: 575 F.2d 1140
• Decision Date: 30 June 1978
• Docket Number: No. 75-4216,75-4216
• Parties: George E. BLANCHARD, Plaintiff-Appellant, Cross-Appellee, v. ENGINE AND GAS COMPRESSOR SERVICES, INC. and Gulf Oil Corporation, Defendants-Appellees, v. COMMERCIAL UNION INSURANCE COMPANY, Intervenor-Appellee, Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1140

575 F.2d 1140

George E. BLANCHARD, Plaintiff-Appellant, Cross-Appellee, v. ENGINE AND GAS COMPRESSOR SERVICES, INC. and Gulf Oil

Corporation, Defendants-Appellees, v. COMMERCIAL UNION INSURANCE COMPANY, Intervenor-Appellee,

Cross-Appellant.

No. 75-4216.

United States Court of Appeals Fifth Circuit.

June 30, 1978.

Harry R. Allen, Gulfport, Miss., Walter E. Ross, Jr., Biloxi, Miss., for plaintiff-appellant, cross-appellee.

George E. Morse, Gulfport, Miss., for Gulf Oil Corp.

Thomas L. Stennis, II, Gulfport, Miss., H. Edward Weidlich, Jr., Felicien P. Lozes, New Orleans, La., for Commercial Union Ins. Co.

Sherman L. Muths, Jr., Gulfport, Miss., Claude D. Vasser, New Orleans, La., for Engine and Gas Compressor Services, Inc.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, Chief Judge, GEWIN and TJOFLAT, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This appeal presents two issues that have long troubled appellate court waters. First, we must decide if a new creature of the deep, never before seen by this Court, is a Jones Act ¹ vessel, and second, we are asked to grapple again with the problem of what is a statutory employee under Louisiana workmen's compensation law. On the first issue, feeling at home in maritime waters, we hold that, whatever the creature is, it is not a vessel, and with no vessel, there is no seaman. On the second issue, however, we must ask for guidance from our brethren on the Louisiana Supreme Court.

A Compressor In The Delta

George E. Blanchard, a mechanic employed by Engine and Gas Compression Service, Inc. (Engine and Gas), was injured at the West Bay Gas Compression Station owned by Gulf Oil Corporation (Gulf). Engine and Gas had a contract with Gulf to repair the compressors at the Station, which is located in shallow waters near a marshy area in the Mississippi River delta about thirty minutes by crewboat from Venice, Louisiana. The facility included four individual compressor buildings that housed a total of sixteen compressors. Two of these buildings, known as the Ingersoll Rand Station and the Cooper Station, stood on pilings that were driven into the ground. The other two buildings were mounted on submerged barges. The Clark Station was on a steel barge, and the Cooper Bessemer No. 6 Station was on a concrete barge. All four structures were grouped closely together and connected with pipes, walkways, and wiring.

Blanchard and Pollard Lee, another employee of Engine and Gas, were repairing a compressor in the Ingersoll Rand Station when the appellant was injured. Blanchard testified that he asked the Gulf supervisor if they could drain the oil from the compressor engine crankcase before doing any work, but the supervisor refused. As a result, Blanchard became covered with oil, and he slipped and injured his back when a 150-pound compressor bearing cap fell on him as he was trying to replace it. After a rest, Blanchard finished the work, but subsequently, his back problems grew worse. He was unable to return to work for over eight months. Eventually, he had lumbar disc surgery and suffered a permanent partial disability. ²

Blanchard filed suit for damages against his employer and Gulf under the Jones Act and general maritime law, but the District Court dismissed the claim on the defendant's summary judgment motion. A third party tort suit against Gulf on diversity grounds then proceeded to trial. The lower court, however, sustained a motion for a directed verdict against the plaintiff because Blanchard was a statutory employee of Gulf under the Louisiana Workmen's Compensation Act, and therefore, his right to recovery was limited to workmen's compensation. Blanchard appeals both the summary judgment and the directed verdict.

A Capital Ship For An Ocean Trip?

Even though Blanchard was injured in the Ingersoll Rand Station that was mounted on fixed pilings, he contends that he was a Jones Act seaman because he also did substantial work in the two buildings mounted on submerged barges, the Clark and the Cooper Bessemer No. 6 Stations. It is arguable whether Blanchard performed enough work aboard the submerged barges to be considered a seaman, see Ross v. Mobil Oil Corp., 5 Cir., 1973, 474 F.2d 989; Keener v. Transworld Drilling Co., 5 Cir., 1972, 468 F.2d 729, 732, 1973 A.M.C. 63, 66, but we need not reach this issue since we believe that the buildings mounted on virtually permanently sunken barges are not Jones Act vessels.

In determining what is a vessel, we consider the purpose for which the craft is constructed and the business in which it is engaged. The Robert W. Parsons, 1903, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73, 78; Hicks v. Ocean Drilling and Exploration Co., 5 Cir., 1975, 512 F.2d 817, 823, 1975 A.M.C. 1378, 1385, cert. denied, 1976, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 639; Cook v. Belden Concrete Products, Inc., 5 Cir., 1973, 472 F.2d 999, 1001, 1973 A.M.C. 285, 288, cert. denied, 414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116. Strange looking, special purpose craft for the oil and gas business, far different from traditional seafaring ships, have sometimes met these criteria.

For example, in Offshore Co. v. Robinson, 5 Cir., 1959, 266 F.2d 769, 1959 A.M.C. 2049, a drilling barge with retractable legs that dropped to the ocean floor when drilling for oil was held to be a vessel. The Robinson barge did not have engines of its own, but it had a raked bow and carried navigation lights, bits, anchors, bilge pumps, and cranes. The craft also had lifesaving gear approved by the Coast Guard, including six life rafts, as well as living quarters for a crew that remained on board the barge when it was towed to a different well location.

In Producers Drilling Co. v. Gray, 5 Cir., 1966, 361 F.2d 432, 1966 A.M.C. 1260, we held a submersible drilling barge to be a Jones Act vessel. A tug would tow the barge to a well location where it would submerge itself "with its own gear" for drilling and then rise to the surface "by means of its own gear and devices to be moved to another location." 361 F.2d at 433, 1960 A.M.C. at 1261. Along with the drilling equipment, the barge carried navigation instruments, lights, pumps, and the usual mooring lines and stanchions found on oceangoing vessels. ³

More recently, a submersible oil storage facility, which became known as the Round Barge, was held to be a vessel in Hicks v. Ocean Drilling and Exploration Co., 5 Cir., 1975, 512 F.2d 817, 1975 A.M.C. 1378. This facility consisted of six interconnected oil storage tanks that were submerged in the waters of the Gulf and were topped with a superstructure approximately forty feet above the cylindrical tanks. The Round Barge, which had its own galley and crew quarters, was towed into position and submerged by flooding two tanks. Rock ballast was also used to try to keep the facility at the bottom of the Gulf. Like the submersible drilling rigs, however, the oil storage facility "was designed and constructed so that it could be raised for scraping and repair, and could be moved to another site for storage of oil. Consideration had been given to moving it to a different location in the Gulf." 512 F.2d at 820, 1975 A.M.C. at 1380.

The oil storage facility also was connected by flowlines and a catwalk to a fixed offshore platform, but the Court emphasized that these attachments did not secure one structure to the other. Indeed, it was obvious from the circumstances of the accident that injured the plaintiff that the Round Barge was not securely fastened to the fixed platform or the bottom of the Gulf. After removing the oil from some of the storage tanks, a crew member operated the pumps that removed the salt water ballast from one of the underwater tanks. This caused the entire facility to shake, tilt, and refloat on one side injuring the plaintiff.

In contrast to these vessels, we believe, in this case that the purpose and business of the compressor buildings mounted on submersible barges had nothing to do with being Jones Act vessels. It simply was cheaper to build these structures on shore and float them into position, rather than build them on site at the West Bay Station, which was how the two buildings on pilings were constructed.

Gulf, moreover, did not intend to move these structures on a regular basis, as is done with submersible drilling rigs. Indeed, the Clark Station that rested on a steel barge had not been moved since it was installed in 1952. Gulf personnel now doubted that it could be refloated after over twenty years of corrosion. The Cooper Bessemer No. 6 Station had been moved from another site, ⁴ but it is clear from the manner in which it was secured in position no one intended for it to move on a regular basis. The site for the barge was dredged; then Gulf laid a shell bed to strengthen the foundation. After the barge was submerged, piling clusters were driven around the corners of the barge, and steel cables were fastened to the pilings and the barge to hold it in place. Thus, the manner in which this barge was attached to the bottom of the shallow Gulf waters distinguishes it from the submersible oil storage tanks in Hicks.

As another indication of the permanent nature of the submerged barges, they did not carry navigation lights or equipment, lifeboats or any lifesaving gear, nor were they registered with the Coast Guard as vessels. Unlike the barges in Gray and Hicks, furthermore, these barges did not have crew quarters or their own bilge pumps to remove water if they were raised. The barges did not even have a raked bow for ease in transport. In fact, Gulf emphasized that they could be moved, if at all, only under the most favorable weather conditions.

In sum, we believe "(m)ere flotation on water does not constitute a structure a 'vessel' . . . ." Cook v. Belden Concrete Products, Inc., 5 Cir., 1973, 472 F.2d 999, 1001, 1973 A.M.C. 285, 286-87, cert. denied, 414 U.S. 868, 94 S.Ct. 175, ...