Bailey v. Global Marine, Inc.

• Decision Date: 28 February 1989
• Docket Number: Civ. A. No. H-84-1994.
• Parties: Jeffrey Paul BAILEY v. GLOBAL MARINE, INC., Gator Hawk, Inc. and Champlin Petroleum, Inc.
• Court: U.S. District Court — Southern District of Texas

714 F. Supp. 235

Jeffrey Paul BAILEY v. GLOBAL MARINE, INC., Gator Hawk, Inc. and Champlin Petroleum, Inc.

Civ. A. No. H-84-1994.

United States District Court, S.D. Texas, Houston Division.

February 28, 1989.

Jim Tatum, Jim Tatum and Associates, Houston, Tex., for plaintiff.

Francis I. Spagnoletti, Vinson & Elkins, and Robert Arredondo, Butler & Binion, Houston, Tex., for defendants.

MEMORANDUM AND ORDER

SINGLETON, District Judge.

The matter now before this Court is Gator Hawk, Inc.'s Motion to Reconsider Motion for Summary Judgment.

I. INTRODUCTION

Plaintiff, Jeffrey Paul Bailey, filed suit for damages allegedly sustained while working for Gator Hawk, Inc. (Gator Hawk), which had contracted with Champlin Petroleum Company (Champlin) to perform certain wellpipe testing services at Champlin's drill site off the coast of California.

Gator Hawk has moved this Court to enter summary judgment, 1) dismissing the claims made by Plaintiff under the Jones Act, 46 U.S.C.App. § 688, for lack of Jones Act seaman status, and 2) limiting Plaintiff's recovery against Gator Hawk to that which is available under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq., and 3) dismissing the cross-claim filed by Defendant Champlin, on the grounds that the relief of indemnity and contribution sought in the cross-claim is barred by §§ 5(a) and 5(b) of the LHWCA. 33 U.S.C. §§ 905(a) and (b).

On August 30, 1988, this Court denied Gator Hawk's Motion for Summary Judgment. On that same date, at a conference in chambers attended by the attorneys in this case, counsel for Gator Hawk was granted leave to re-urge its motion by submitting a Motion to Reconsider outlining relevant law on the question of Plaintiff's Jones Act seaman status. In accordance with the Court's instructions, Gator Hawk filed its Motion to Reconsider Motion for Summary Judgment, which is now at issue.

II. FACTUAL BACKGROUND

This litigation arises out of personal injuries allegedly sustained by the Plaintiff, Jeffrey Paul Bailey, on October 24, 1983. At that time the Plaintiff and a co-employee were working for Gator Hawk, which had contracted with Champlin to perform certain wellpipe testing services at Champlin's drill site off the coast of California, on board the D/V GLOMAR ATLANTIC. The D/V GLOMAR ATLANTIC was owned and/or operated by Global Marine Deepwater Drilling, Inc. (Global Marine) and its affiliated and subsidiary companies.

The Plaintiff was transported offshore California to the D/V GLOMAR ATLANTIC by helicopter. The equipment to be used by Gator Hawk and the Plaintiff was previously transported offshore to the vessel. The Plaintiff injured his back while preparing his equipment to perform the services contracted by Champlin.

Gator Hawk provides to the oil exploration and production industry such oilfield services as pressure testing drill pipe and casing. It provides a variety of oilfield services to both onshore and offshore drilling operators. The location of the site for performance of services by Gator Hawk's employees, whether on land or offshore, is wholly determined by the needs of the particular Gator Hawk customer.

At the time of his injury Plaintiff was working in the external division of Gator Hawk providing technical pressure testing services for Gator Hawk's customers. Plaintiff was assigned to Gator Hawk's headquarters in Houston, where he reported to the external division to receive his instructions for work on a particular job. The vast majority of the jobs performed by the Plaintiff required him to work at land-based drilling sites or on fixed offshore platforms. Occasionally, due to the needs of a particular customer of Gator Hawk, he would be assigned to perform pressure testing services on board a vessel. Plaintiff was never permanently assigned to any offshore drilling structure for longer than it took to complete the particular testing operation. The duration of this job was to be "a couple of days". Plaintiff was not permanently assigned to any particular vessel or fleet of vessels, nor did he perform a substantial amount of his work on the D/V GLOMAR ATLANTIC or any other vessel or fleet of vessels.

Gator Hawk's affidavit in support of its Motion for Summary Judgement states that Plaintiff spent in excess of ninety percent (90%) of his time on land-based jobs or on fixed offshore platforms while employed by Gator Hawk. Less than ten percent (10%) of his time was spent on vessels defined as jack-up rigs, semi-submersibles, or traditional ship shaped drilling vessels such as the D/V GLOMAR ATLANTIC.

While employed by Gator Hawk, Plaintiff worked for approximately thirty-five (35) different customer companies which had requested the services of Gator Hawk. The August 24, 1983 job was the first that he had performed for Champlin through Gator Hawk. It was also the first time that he was employed on the D/V GLOMAR ATLANTIC.

III. DISCUSSION

1. Jones Act Seaman Status

Gator Hawk has demonstrated that Plaintiff was employed as a service technician and performed pressure testing of pipe and oilfield casing on land, on offshore platforms and only occasionally on vessels, and that while employed by Gator Hawk, Plaintiff spent less than ten percent (10%) of his time on vessels. Furthermore, Gator Hawk has demonstrated that while Plaintiff was in its employ, Plaintiff worked for more than thirty-five customer companies and was never permanently assigned to any particular customer or any customer's vessel or fleet of vessels. In addition, Plaintiff and all other employees of Gator Hawk who worked as service technicians were assigned to customers randomly on the basis of need and availability.

Based on the above-described nature of Plaintiff's employment, this Court is of the opinion that there exists no evidentiary basis to support a jury finding that Plaintiff was a seaman under the Jones Act. In this regard, the Fifth Circuit Court of Appeals holdings in Offshore Company v. Robison, 266 F.2d 769 (5th Cir.1959) and its progeny are controlling. In Robison the Fifth Circuit held that in order to qualify as a seaman under the Jones Act, a worker must satisfy each of the following criteria:

(1) The worker must have been permanently assigned to a vessel or have performed a substantial part of his work on the vessel; and

(2) The capacity in which the worker was employed or the duties which he performed must have 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.

Id. at 779.

Plaintiff performed less than ten percent (10%) of his work on vessels and was never permanently assigned to any vessel or identifiable fleet of vessels. Thus, the first Robison requirement that a worker must have performed a substantial part of his work on a vessel, or have a significant connection with a vessel or identifiable fleet of vessels is not met. Therefore, this court will enter summary judgment in favor of Gator Hawk on the issue of Jones Act seaman status.

The Fifth Circuit of Appeals has handed down a series of decisions which leaves no room for doubt that there is no evidentiary basis to support a jury finding in this case that Plaintiff is a seaman under the Jones Act. For example, in Barrett v. Chevron, USA, Inc., 781 F.2d 1067 (5th Cir.1986 en banc), the Court addressed the Robison requirement that a seaman perform a substantial portion of his duties aboard a vessel or fleet of vessels. The Barrett case involved a plaintiff who worked as a welder's helper for approximately one year before his injury and spent from twenty to thirty percent (20 to 30%) of his time working aboard vessels. However, during the eight days immediately before his injury, plaintiff spent as much as seventy percent (70%) of his time aboard a particular vessel. The Court placed particular emphasis on the percentage of total employment time that the plaintiff performed work on vessels and stated:

If plaintiff was entitled to have his status decided on the basis of his work during the eight days immediately before his accident, the district court might properly have concluded that he was a member of the crew of a vessel or, indeed, as we have already indicated, that he was not. On the other hand, if the district court was required to consider plaintiff's vessel-related work during his entire one-year assignment as a welder's helper ... the record does not support a finding that he was a crew member.

Id. at 1074-75. The Barrett Court went on to hold that because plaintiff performed no more than twenty to thirty percent (20 to 30%) of his work on vessels, he did not perform a substantial portion of his work aboard a vessel or fleet of vessels; therefore, he failed to establish that he was a member of the crew of a vessel. Id. at 1076.

Similarly, in Lormand v. Superior Oil Co., 845 F.2d 536 (5th Cir.1987), the district court's entry of summary judgment in favor of the defendant on the issue of seaman status was affirmed. The Lormand court noted the close parallel between the facts before it and the facts in Barrett v. Chevron, USA, Inc., supra, and concluded:

Like Barrett, plaintiff did welding work pursuant to his employer's contract for maintenance and repair services on fixed platforms owned by an oil company ... Over the course of their employment, both plaintiff and Barrett had been assigned to work on several different platforms. Plaintiff's latest assignment involved substantial work aboard a vessel, as did Barrett's, but plaintiff's job duties as a welder remained essentially unchanged. Hence, like Barrett, plaintiff was not entitled to have the substantiality of his work aboard vessels assessed only from the duration of his latest specific work assignment.

Considered, as it must be, in the context of the entire thirty-four-month period of this employment by

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