Addison v. Gulf Coast Contracting Services, Inc., 84-4131
| Decision Date | 22 October 1984 |
| Docket Number | No. 84-4131,84-4131 |
| Citation | 744 F.2d 494 |
| Parties | John D. ADDISON, Plaintiff-Appellant, v. GULF COAST CONTRACTING SERVICES, INC. and Texaco, Inc., Defendants-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Samuel E. Farris, Hattiesburg, Miss., for plaintiff-appellant.
Edward J. Koehl, Jr., New Orleans, La., Charles A. Schutte, Jr., Baton Rouge, La., John L. Low, IV, Jackson, Miss., Bryant & Stennis, Gulfport, Miss., James O. Dukes, Monroe & Lemann, Nigel E. Rafferty, New Orleans, La., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Mississippi.
Before WILLIAMS, JOLLY, and HILL, Circuit Judges.
The plaintiff, John D. Addison, filed this action under the provisions of the Jones Act, 46 U.S.C. Sec. 688, and the general maritime laws of the United States seeking damages from Gulf Coast Contracting, Inc. (Gulf Coast) and Texaco, Inc. (Texaco) for an injury he suffered while employed as a roustabout on a fixed tank battery platform located at Garden Island Bay, Louisiana. After a trial on the merits, the district court, sitting without a jury, found that Addison lacked seaman status under the Jones Act, that neither Gulf Coast nor Texaco was negligent with respect to the activities that resulted in Addison's injury, and that the barge servicing the tank battery was not unseaworthy. From the district court's entry of judgment against him, Addison appeals to this Court.
Addison urges that this action was improperly removed from the state court; that he was entitled to a trial by jury; and that the court below erred in its findings on seaman status, defendants' negligence and the unseaworthiness of a barge owned by Texaco. After carefully reviewing Addison's complaints, we find this action was not properly removed pursuant to 28 U.S.C. Sec. 1441(c). Accordingly, we reverse the judgment of the district court and remand with directions to vacate the judgment in favor of appellees and remand the action to state court. 1
On September 29, 1977, Addison instituted this action in Mississippi state court against his employer, Gulf Coast. The action was brought under the Jones Act and general maritime law. Gulf Coast denied liability and also denied Addison's status as a seaman under the Act. Addison then filed an amended bill of complaint in the state court adding Texaco as a party defendant. Addison asserted that he worked aboard a barge owned by Texaco under the control, direction and supervision of Texaco. He also alleged that Texaco was liable for negligence and unseaworthiness under the Jones Act and general maritime law. Addison's amended bill of complaint also was general enough to state a claim for maintenance and cure.
Based upon complete diversity between the plaintiff Addison and the defendants Texaco and Gulf Coast, Texaco removed the state court action to the United States District Court for the Southern District of Mississippi pursuant to 28 U.S.C. Sec. 1441(c). Addison's first motion to remand was denied by the district court. Apparently the district court allowed removal because it found the maintenance and cure claim separate and independent from the Jones Act claim thereby satisfying the requirements for removal pursuant to Sec. 1441(c). In an apparent attempt to obtain remand, Addison waived his claim to maintenance and cure, particularly as to Texaco, and then filed his second motion to remand to state court. This motion was also denied.
On April 5, 1982, this action went to trial and on January 26, 1984, the district court entered judgment against Addison giving rise to this appeal.
For a number of years prior to the date of this accident, May 28, 1977, Texaco had operated its tank battery No. 49 among its facilities at Garden Island Bay within the coastal marsh of Louisiana near the mouth of the Mississippi River. Tank battery No. 49, which served as a collection and storage facility for petroleum products produced by oil wells in the vicinity, was located on a fixed platform which was supported by pilings driven into the earth. Over the years these pilings had gradually sunk until by 1977 the platform was barely above the water level at high tide. Texaco concluded that it was necessary to rebuild and elevate tank battery No. 49, but since the field and battery were required to remain in production during the time of the reconstruction, it was determined that the facility and equipment should be torn down and rebuilt in sections, one section at a time.
Texaco hired several contractors to perform the actual work of reconstructing the tank battery. Dill Construction Company (Dill) was employed to provide a pile driver/crane and a crew to operate its equipment. This equipment consisted of a crane which could be used to move the concrete platform bases, pilings, tanks, heavy pipe and other equipment. Dill also provided leads which could be attached to the crane to allow it to be used as a pile driver to drive the pilings of the new platform after removing the old pilings. Lafitte Welding Company (Lafitte) was hired to fabricate pipe for the new tanks and to provide the services of a welder and a welder's helper. The majority of Lafitte's welding work was performed aboard a welding barge, Texaco Barge No. 102, adjacent to the tank battery, since oil and gas fumes on the tank battery platform made welding there hazardous. Gulf Coast was hired to provide roustabouts, or laborers, to do the physical work associated with tearing down and rebuilding the sections of the tank battery. At the time of Addison's accident, Gulf Coast was rotating two roustabout crews, each normally consisting of a foreman, or pusher, and four or five roustabouts. Each of these crews worked seven days on and seven days off.
On the date of the accident in question, Addison was a roustabout in the Gulf Coast crew. The pusher, at that time was Charles McRaney. This roustabout crew was assigned by Texaco to tank battery No. 49 for the purposes of dismantling and rebuilding the tank battery. It appears that Addison only briefly participated in the dismantling of the old sections of the tank battery; during his three or four tours of duty at tank battery No. 49, Addison's work was associated primarily with rebuilding sections of the tank battery. Although the crew's assignment at times required roustabouts to go aboard the adjacent Texaco welding barge, the Gulf Coast roustabouts, including Addison, were never assigned to the welding barge nor did they perform a substantial part of their work aboard said vessel.
The vast majority of the work performed by the Gulf Coast roustabouts was done aboard the tank battery platform. This work consisted of moving into place both pipe fabricated by the welders and "screw pipe," which had threads rather than flanges on the ends and required no fabrication by the welder. Approximately fifty percent or more of the pipe utilized in rebuilding the tank battery was screw pipe which would have been handled by the roustabout crew without ever going aboard the welding barge. In addition to positioning this pipe into place, the roustabouts spent a considerable amount of time bolting pipe flanges, threading screw pipe, making all other connections to piping and tanks on the platform, painting the pipes, cleaning up the platform and doing other tasks necessary to the construction of tank battery No. 49. All of these tasks were performed on the tank battery platform itself. The roustabout crew occasionally boarded the welding barge in the course of their duties, spending approximately 10 percent or less of their time aboard the welding barge.
The roustabouts' only duties aboard the welding barge were moving fabricated pipe from the barge to the tank battery platform and occasionally assisting the welder in moving sections of pipe from the pipe racks on the barge to the welders pipe jacks also on the barge. Addison and other members of the roustabout crew did go aboard the welding barge to eat lunch which was prepared at the Texaco camp and brought out to the barge. Their lunch was available aboard the barge solely as a matter of convenience and the roustabouts performed no functions aboard the barge at that time. On occasions when the barge was moved to or from its position adjacent to the tank battery platform, roustabouts such as Addison may have performed the incidental function of tying or untying the barge. Neither Addison nor any other of the roustabouts performed the duties of welder or welder's helper aboard the Texaco welding barge.
On the evening prior to Addison's accident a pipe had been fabricated aboard the welding barge which was to be moved into place for connection to a tank on the northeast corner of the tank battery platform. On the morning of the accident, the pipe was manually lifted and carried by five workers, including Addison, to the platform. In the course of moving the pipe and while aboard the tank battery platform, Addison stepped onto another pipe already in place on the deck of the platform causing him to shoulder more than his proportionate share of the pipe weight. Shortly thereafter Addison complained of a back injury and was sent in for medical treatment.
The longest flanged pipe which was installed in the area of the platform where Addison was working at the time of his injury was approximately 26 to 28 feet in length. This four inch, schedule 40, section of pipe with three flanges weighed approximately 350 pounds. At the time of Addison's alleged injury, this section of pipe was being carried by five able-bodied men. The manner of handling the pipe was in the normal, customary and acceptable manner for work of this type.
Removal of this action from the state court is predicated upon 28 U.S.C. Sec. 1441(c) which permits removal of an entire case "[w]henever a separate and...
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