Barger v. Petroleum Helicopters, Inc., 81-2262

• Decision Date: 10 November 1982
• Docket Number: No. 81-2262,81-2262
• Citation: 692 F.2d 337
• Parties: Mary E. BARGER, Plaintiff-Appellee, Cross-Appellant, v. PETROLEUM HELICOPTERS, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 337

692 F.2d 337

Mary E. BARGER, Plaintiff-Appellee, Cross-Appellant, v. PETROLEUM HELICOPTERS, INC., Defendant-Appellant, Cross-Appellee.

No. 81-2262.

United States Court of Appeals Fifth Circuit.

Nov. 10, 1982.

Rehearing and Rehearing En Banc

Denied Jan. 6, 1983.

Rehearing Opinion Amended Jan. 13, 1983.

Vance E. Ellefson, New Orleans, La., for defendant-appellant cross-appellee.

Charles B. Colvin, New Orleans, La., amicus, for William V. Moore.

Hubert Oxford, III, Beaumont, Tex., for plaintiff-appellee cross-appellant.

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

Before BROWN, RUBIN and REAVLEY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

This case raises many of the issues we decided in Smith v. Pan Air Corp., 684 F.2d 1102 (5th Cir.1982). We, therefore, address in detail only one issue that distinguishes this case: as to claims against a helicopter pilot's employer for the death of the pilot while transporting passengers to work on the outer Continental Shelf, is the Longshoremen's and Harbor Workers' Compensation Act the exclusive remedy? We conclude that such a pilot is not covered by the Jones Act because an aircraft is not a vessel, that the Outer Continental Shelf Lands Act applies to the pilot, and that the LHWCA is the exclusive remedy for those who have claims resulting from his death.

Walter Barger, like Walter Kolb, one of the decedents in Smith, was a helicopter pilot regularly engaged in transporting oil field workers and equipment from Louisiana to platforms located in the Gulf of Mexico on the outer Continental Shelf. While he was flying a helicopter carrying eleven passengers, the helicopter crashed into the Gulf forty miles offshore, killing all aboard. Barger's widow and children seek damages in admiralty for his death from his employer, Petroleum Helicopters, ¹ contending that Barger was a Jones Act seaman and also asserting maritime tort claims for the alleged unseaworthiness of the helicopter. After trial on the merits, the district court sustained both claims and awarded damages.

We held in Smith that the wrongful death claim of Kolb's beneficiaries against a third party, not the decedent's employer, arising from the crash of an aircraft into the high seas, is properly within admiralty jurisdiction by virtue of decisions so interpreting the Death on the High Seas Act, 46 U.S.C.A. Secs. 761-768 (West 1975 & Supp.1982) (DOHSA). Smith, 684 F.2d at 1108-12. The accident involved in Smith occurred on the outer Continental Shelf, but we decided that Sec. 4(a) of the OCSLA, 43 U.S.C. Sec. 1333(a) (Supp. IV 1980), making state law applicable as surrogate federal law to accidents occurring on fixed platforms, does not supersede the DOHSA so as to oust admiralty jurisdiction over the plaintiff's claim. ²

The wrongful death claim in this case, unlike the Kolb claim in Smith, is asserted against the decedent's employer, Petroleum Helicopters. Section 4(b) of the OCSLA provides, "[w]ith respect to ... death of an employee resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting ... the natural resources ... of the subsoil and seabed of the outer Continental Shelf, compensation shall be payable under the provisions of the Longshoremen's and Harbor Workers' Compensation Act [33 U.S.C.A. Secs. 901-950 (West 1978 & Supp.1982) (LHWCA) ]." 43 U.S.C.A. Sec. 133(b). ³ Section 933(i) of the LHWCA provides that this compensation is the exclusive remedy of an injured employee against his employer. 33 U.S.C.A. Sec. 933(i). Therefore, if Barger was covered by 43 U.S.C. Sec. 1333(b), there can be no recovery against his employer under general maritime law. Even if admiralty jurisdiction existed because Barger's death resulted from an aircraft crash on the high seas, see Smith, 684 F.2d at 1109, recovery would be barred by Sec. 933(i) and the claim would fail on the merits.

The Barger plaintiffs argue that Barger was a Jones Act seaman, and therefore excluded from coverage under 43 U.S.C. Sec. 1333(b). That section provides that the term "employee" does not include "a master or member of a crew of any vessel." 43 U.S.C. Sec. 1333(b)(1). For the same reasons discussed in Smith, 684 F.2d at 1112-14, we conclude that a helicopter cannot be considered a "vessel," and, therefore, that this exclusion from LHWCA coverage does not extend to Barger.

Smith involved several claims. Jordan, whose claim was asserted by his beneficiary (Smith), was flying a plane. Kolb and Barger were both piloting helicopters. Jordan's aircraft, like Barger's, had attachments enabling it to land on and take off from water. Kolb's helicopter apparently had no such attachment. But each of these aircraft, whether or not fitted with pontoons, was designed primarily to fly through the air not to travel on water. The dissent of our respected colleague apparently assumes that a helicopter sans pontoons used for the self-same purpose, to transport personnel to and from offshore platforms, is not a vessel. Neither a plane nor a helicopter undergoes a miraculous transformation from aircraft into vessel when pontoons are attached to it, and their pilots do not by this act become members of a "vessel's" crew. The helicopter's amphibian adaptations were designed solely to permit it to take off from and land on water and to taxi on water in order to position itself for loading and unloading with a view to travel through the air. It was an aircraft that might use the surface of the water for a time to facilitate airborne commerce. An airplane does not become an automobile because it has wheels attached and can taxi on runways. The wheels no more change aircraft into land vehicles than pontoons change aircraft into vessels. Just as a vessel does not lose its nautical quality merely because it is anchored for a time to serve as a drilling platform, an aircraft does not become a vessel because it is adapted to float and taxi on the water for brief periods in order to perform incidental functions that aid in its primary mission. The Jones Act was designed to aid those who face the hazards of the sea, not the perils of the air. Barger did not meet death from a collision at sea or the action of the waves but as a result of an aircraft disaster. See Symposium, Aircraft as Vessels Under the Jones Act and General Maritime Law, 22 S.Tex.L.J. 595, 600-03 (1982).

It remains only to be determined, then, whether the claim against Barger's employer is covered by the OCSLA. This depends on (1) whether Barger's death was the "result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting ... the natural resources ... of the outer Continental Shelf," and (2) whether Barger's employer, Petroleum Helicopters, was an "employer" within the intendment of 43 U.S.C. Sec. 1333(b)(2).

The first of these conditions is clearly met. In Stansbury v. Sikorski Aircraft, 681 F.2d 948 (5th Cir.1982), a Chevron Oil Company employee was killed when the Chevron-owned helicopter in which he was a passenger crashed on the high seas over the Shelf. We held that the compensation act provided Stansbury's sole remedy against his employer, Chevron, because Stansbury had been inspecting work done under his supervision on a fixed rig located on the Shelf. "His work furthered the rig's operations and was in the regular course of the extractive operations on the [Shelf]. But for those operations, he would not have been in the helicopter. His death, therefore, occurred 'as a result of operations' as required by the OCSLA." Id. at 951 (emphasis added). Barger likewise would not have been killed in a helicopter crash in the Gulf of Mexico "but for" the fact that he was employed to transport eleven workers to a fixed platform on the Shelf. His work furthered mineral exploration and development activities and was in the regular course of such activities.

With respect to the second condition for OCSLA coverage, the term "employer" means "an employer any of whose employees are employed in [operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting ... the natural resources ... of the outer Continental Shelf]." 43 U.S.C. Sec. 1333(b)(2). Unlike the employer in Stansbury, Barger's employer, Petroleum Helicopters, was not itself engaged in mineral operations. However, helicopter transportation of men and equipment from the mainland to the offshore rigs and back plays an important role in "developing" the Shelf. This transportation is an "operation conducted ... for the purpose of" natural resource development. Helicopter pilots involved in these operations perform the same function with respect to resource development whether employed directly by a producer or by a separate contractor, and should not be treated differently on the basis of who their immediate employer is. We decline to inject another element of inconsistency into an area already beset by more than its fair share of incongruous results. ⁴

Aside from the fact that this case involves an employer and employee, the only kind of claim to which the compensation remedy applies, there is another important distinction between Barger's claim and the claim in Smith. The OCSLA compensation coverage provision already quoted is expansive. It extends to every injury or death "occurring as a result of operations ... for the purpose of exploring for, developing, removing, or transporting ... natural resources." 43 U.S.C.A. Sec. 1333(b). The state law extension clause, however, is considerably narrower, providing only for the application of state law to "the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon." 43 U.S.C. Sec. 1333(a). Thus state law is made applicable only to workers in...