Kerr-McGee Corp. v. Ma-Ju Marine Services, Inc., KERR-M

Citation830 F.2d 1332
Decision Date30 October 1987
Docket NumberKERR-M,No. 85-3661,MA-JU,85-3661
Parties, 23 Fed. R. Evid. Serv. 1353 cGEE CORPORATION, Plaintiff, v.MARINE SERVICES, INC., et al., Defendants. Dorothy E. LYONS, Plaintiff-Appellee, Cross-Appellant, v.cGEE CORPORATION, Defendant-Third Party Plaintiff-Appellant-Cross- Appellee, v.MARINE SERVICES, INC., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

A. Wendel Stout, III, Deutsch, Kerrigan & Stiles, New Orleans, La., for plaintiff-appellee, cross-appellant.

Michael L. McAlpine, Martin L. Grayson, New Orleans, La., for Lloyd's.

Darryl J. Carimi, James C. Klick, Carimi Law Firm, Gretna, La., for Lyons.

Jon D. Picou, Bailey & Leininger, Metairie, La., for Ma-Ju Marine.

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

Before GOLDBERG, REAVLEY, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This case is a maritime personal injury action by appellee-cross-appellant Dorothy Lyons (Lyons) against her employer, appellant-cross-appellee Kerr-McGee Corporation (Kerr-McGee), and appellee Ma-Ju Marine Services, Inc. (Ma-Ju), the owner and operator of the vessel on which Lyons was injured while it was under time-charter to Kerr-McGee. Lyons sought recovery from Ma-Ju and Kerr-McGee under section 5(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Sec. 905(b), and against Kerr-McGee also under the Jones Act, 46 U.S.C. Sec. 688. The district court directed a verdict in favor of Kerr-McGee on the Jones Act claim, and rendered judgment on the jury verdict awarding Lyons recovery against Kerr-McGee, but not against Ma-Ju, on her section 5(b) claim. Lyons and Kerr-McGee each appeal.

Facts and Proceedings Below

Kerr-McGee employed Lyons as a switcher in the Breton Sound Gas Field off the Louisiana coast. In this offshore field there are several fixed platforms surrounded by scattered oil and gas wells and well head structures. The switchers conduct assorted tests at the well sites to ensure that the oil and gas are flowing freely. Through various charter arrangements, Kerr-McGee hired boats to transport the switchers and other workers from well to well. Kerr-McGee had time-chartered the vessel on which Lyons was injured, the C.C. RIDER, from Ma-Ju. The C.C. RIDER had only one crew member--the captain--and, as is customary in time-charter arrangements, he was a regular employee of the boat's owner, Ma-Ju.

On July 4, 1982, Lyons was seriously injured in a fall from the C.C. RIDER's cabin deck to the main deck. As the boat drew near a well site, Lyons proceeded to descend steps leading to the main deck. As she was doing so, the boat lurched and threw her on her back, causing significant injuries and severe pain. Lyons began receiving LHWCA compensation payments from Kerr-McGee. 1

This litigation began when Kerr-McGee sought reimbursement from Ma-Ju and its insurer for LHWCA compensation paid to Lyons. Sometime later, Lyons filed suit directly against Kerr-McGee, Ma-Ju, and Ma-Ju's insurers. 2 Lyons claimed that her injuries were caused by the negligence of Ma-Ju and Kerr-McGee in failing to use nonskid paint on the C.C. RIDER's steps and in failing to provide adequate handrails along them; she also asserted that the steps were too steep and that a piloting error caused the C.C. RIDER to lurch. Lyons sought recovery as a Jones Act seaman or, in the alternative, under section 5(b).

The district court, concluding that the evidence established as a matter of law that Lyons was not a seaman, granted KerrMcGee's motion for directed verdict on Lyons' Jones Act claim. Her section 5(b) claims were submitted on special interrogatories to the jury, which found that Kerr-McGee "exercise[d] control" over the C.C. RIDER, that Kerr-McGee was negligent, that Ma-Ju was not, and that Lyons was fifty percent contributorily negligent and suffered $262,500 damages. Judgment was entered on the verdict that Lyons recover $131,250 from Kerr-McGee but take nothing from Ma-Ju. Kerr-McGee appeals complaining, inter alia, that there is no evidence that it, a time-charterer, was guilty of any vessel negligence so as to be liable under section 5(b). Lyons appeals complaining of the directed verdict against her on seaman status for Jones Act purposes and of various asserted trial errors. We sustain Kerr-McGee's appeal and reject Lyons'.

Discussion
I. Seaman Status

Lyons sought to establish that she was a Jones Act seaman. Determining seaman status is "an inherently factual question" and thus is "generally a question for the fact-finder." Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir.1986) (en banc). Nonetheless, if the requisite proof is absent, a court may decide that seaman status is lacking as a matter of law. Id. at 1074; White v. Valley Line, Co., 736 F.2d 304, 305 (5th Cir.1984); Wallace v. Oceaneering International, 727 F.2d 427, 432 (5th Cir.1984); Dove v. Belcher Oil Co., 686 F.2d 329, 334 (5th Cir.1982). A trial court may "enter a directed verdict where the record demonstrates that reasonable persons could not draw conflicting inferences which might lead to another conclusion." Theriot v. Bay Drilling Corp., 783 F.2d 527, 532 (5th Cir.1986). The decisional developments leading to this Circuit's test for seaman status have been described on many occasions, and we will not retrace that history here. See generally Barrett, 781 F.2d at 1069-74; Robertson, A New Approach to Determining Seaman Status, 64 Texas L.Rev. 79 (1985). Seaman status is a jury question if there is evidence that (1) the plaintiff was "assigned permanently to a vessel ... or performed a substantial part of his work on the vessel," and (2) the work he performed assisted the vessel in accomplishing its mission or contributed to the function or maintenance of the vessel. Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959) (emphasis added). Barrett reaffirmed Robison and made clear that under the first prong we must examine the entire course of the plaintiff's employment, not just the particular responsibilities he carried at the time of injury. 781 F.2d at 1076. See also In re Patton-Tully Transportation Co., 797 F.2d 206, 210 (5th Cir.1986).

Based on the evidence presented, there is no reasonable basis on which a jury could have found that Lyons was a seaman. 3 As for the first Robison prong, the testimony clearly showed that Lyons was assigned to fixed platforms, which are not vessels. See Barrios v. Engine & Gas Compressor Services, Inc., 669 F.2d 350, 353 (5th Cir.1982); Bernard v. Binnings Construction Co., 741 F.2d 824, 828-29 (5th Cir.1984); Robertson, supra, at 100. Lyons worked seven days on, seven days off. When she was working, she lived on an offshore, fixed platform. All of her job responsibilities related to well sites at other fixed locations. Her only contact with the boats occurred when they ferried her from one job site to the other. The vessels were nothing more than "maritime taxi[s]," Continental Oil Co. v. Bonanza Corp., 706 F.2d 1365, 1372 (5th Cir.1983), and Lyons' relationship to them was scarcely more significant than that existing between a land-based taxi and its passenger. As we noted concerning the purported seaman in the analogous case of Munguia v. Chevron Co., U.S.A., 768 F.2d 649, 653 (5th Cir.1985), cert. denied, 475 U.S. 1050, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986), Lyons "was not assigned to a fleet of vessels"--or indeed, to the C.C. RIDER, which she rarely rode--but "instead the vessels were ... assigned to" her "merely [as] a means ... to transport ... [her] ... to the various places where ... [her] platform work was to be done."

Even though she was not assigned to a vessel, Lyons could meet the first prong of the Robison test if she performed "a substantial part of [her] work on the vessel." 266 F.2d at 779. This would require her to show she worked on the boat "with at least some degree of regularity and continuity." Bertrand v. International Mooring & Marine, Inc., 700 F.2d 240, 246 (5th Cir.1983), cert. denied, 464 U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984) (quoting Barrios v. Engine & Gas Compressor Services, Inc., 669 F.2d 350, 353 (5th Cir.1982)). Lyons did not perform any of her job-related duties on the ferry boats, except to "sometimes" receive on the boat radio messages from Kerr-McGee as to what was to be done at a well site she was working on. The evidence suggested that she occasionally helped the pilot by tying the boat to the platform, or helped clean it, but testimony at trial also established that minor aid such as this was extended as a courtesy, and not as a part of her duties as an employee. In any event, Lyons' on-board assistance and her receipt of radio messages clearly did not amount to a substantial part of her work. 4

Our conclusion necessarily follows from Munguia. Noel Munguia was a "jack of all trades" performing various duties for Chevron. Chevron maintained several boats for its employees to use in transporting themselves to offshore work sites. Munguia was injured at an offshore well. The jury found that he was a seaman, apparently because he piloted a boat from platform to platform. The trial court rendered judgment notwithstanding the verdict because there was no basis for the jury's determination that Munguia was a seaman. Id. at 651. We affirmed because Munguia's duties were platform-related, not vessel-related:

"Although he did some incidental work that contributed to the maintenance and operation of the vessels, his primary duties were neither to pilot nor to maintain the boats nor to use them as a place of work. He used them only as a mean of getting to and from his work on platforms and other structures." Id. at 653.

Indeed, Munguia presented a stronger case for seaman status than does Lyons. See also Barrios, 669 F.2d at 353-54. That Lyons was injured while on the...

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