Barrett v. Chevron, U.S.A., Inc.

• Decision Date: 04 February 1985
• Docket Number: No. 82-3693,82-3693
• Citation: 752 F.2d 129
• Parties: Jethro BARRETT, Plaintiff, v. CHEVRON, U.S.A., INC., E.B.B. Co., Inc., and Lift Barge, Inc., et al., Defendants-Appellees, v. MARYLAND CASUALTY CO., Intervenor-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 129

752 F.2d 129

Jethro BARRETT, Plaintiff, v. CHEVRON, U.S.A., INC., E.B.B. Co., Inc., and Lift Barge, Inc., et al., Defendants-Appellees, v. MARYLAND CASUALTY CO., Intervenor-Appellant.

No. 82-3693.

United States Court of Appeals, Fifth Circuit.

Feb. 4, 1985.

Rehearing En Banc Granted April 9, 1985.

Frederick R. Bott, Eileen R. Madrid, New Orleans, La., for plaintiff.

Thomas J. Grace, Charles V. Guilbault, New Orleans, La., for Life Barge, et al.

Richard A. Cozad, Michael L. McAlpine, New Orleans, La., for E.E.B.

Lloyd C. Melancon, New Orleans, La., for Chevron U.S.A.

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

Before GEE, WILLIAMS and JOLLY, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

In this appeal we must determine whether the injured plaintiff was a seaman. This action was brought by Jethro Barrett, a welder's helper, who was injured in the course of his employment while participating in the repair of an offshore structure. With the exception of the intervenor-insurer, Maryland Casualty Co., in its capacity of compensation insurer, all parties have reached a settlement. The only remaining question is whether Maryland is entitled to reimbursement against the settlement proceeds for payments made to Barrett. Under the settlement agreement, Maryland waived any right to reimbursement in its capacity as Jones Act insurer. We affirm the holding of the district court that Barrett was a Jones Act seaman, and that Maryland has thereby waived any right of reimbursement pursuant to the settlement agreement.

I. FACTS

In 1979, Tilden J. Elliott Contractor, Inc. ("Tilden") contracted with Chevron, U.S.A., Inc. to provide welding crews for maintenance and repair work to offshore platforms and other structures in Chevron's Bay Marchand Field located in the Gulf of Mexico off the coast of Louisiana. Plaintiff, Barrett, was an employee of Tilden who performed services as a welder's helper under the contract between Tilden and Chevron. On one particular assignment, Tilden was to perform welding services on a caisson located approximately ten to twelve miles offshore. The caisson was a small fixed structure, measuring only ten by fifteen feet, comprised basically of one producing well which was tied into the underwater pipeline system in the field. Barrett was a member of the Tilden welding crew assigned to perform welding operations on the caisson. ¹

Because of the small size of the caisson, a jack-up barge, the D/B FALCON, was positioned alongside the caisson in order to provide space on which the necessary equipment and materials for the Tilden crew could be placed and to provide a work area for the crew. The D/B FALCON was the only barge assigned to the Chevron Bay Marchand Field. The vessel would remain stationary at one job site until an assignment was completed, and then move on to the next site.

The Tilden crew was assigned to the caisson to remove old parts and to fabricate and attach new parts. The only work performed on the caisson itself was the cutting of the old pipe from the caisson and replacing it with the new pipe. The old parts, after removal, were brought by one of the D/B FALCON's two cranes back to the D/B FALCON where they were measured and new pipes were fabricated. Barrett spent seventy to eighty percent of his time on the D/B FALCON assisting in the measuring and fabricating of new pipe sections.

During the fourteen day offshore hitch, the Tilden crews were provided living quarters on a large fixed platform called Mike's Structure. Each morning, the crew boat M/V LADY JUNE, owned and operated by E.B.B. Company, transported the crew members from Mike's Structure to their respective work sites. Crew members ate lunch at the job site and at the end of each day's shift, were transported back to Mike's Structure to eat and sleep.

On the morning of May 23, 1979, Barrett, along with the rest of the Tilden crew, was transported by the crew boat M/V LADY JUNE to the caisson under repair. Crew members were transferred from the M/V LADY JUNE to the D/B FALCON by means of a personnel basket. The basket was lifted by a crane located on the D/B FALCON. While being transferred from the M/V LADY JUNE to the D/B FALCON in the personnel basket, Barrett injured his back. Despite this injury, Barrett continued to perform his duties and returned to the D/B FALCON the following day to perform his usual assignments. On that day, while assisting a co-worker in lifting a heavy piece of pipe, Barrett suffered further injury to his back and was taken from the offshore work site to seek medical care. This second injury or aggravation was sustained while Barrett was aboard the D/B FALCON.

Barrett brought a personal injury action originally against Chevron, owner of the production platform, E.B.B. Company, Inc., owner and operator of the M/V LADY JUNE, and Lift Barge, Inc., owner and operator of the D/B FALCON. Barrett alleged that the D/B FALCON crane operator, an employee of Lift Barge, caused the personnel basket to strike the deck of the M/V LADY JUNE with greater than usual force resulting in injury to Barrett. Barrett claimed that his injury was subsequently aggravated by lifting the pipe on board the D/B FALCON. Barrett and his wife then filed a second suit for the aggravation of the injury against Tilden and Lift Barge. ² Plaintiffs sought damages under the Jones Act and general maritime law for negligence and unseaworthiness, and maintenance and cure. The two actions were eventually consolidated.

Over a three-year period following Barrett's injury, Maryland Casualty Company made payments to Barrett totalling $50,000. These payments were made pursuant to an insurance policy between Maryland and Tilden, Barrett's employer. Maryland intervened in the consolidated action as the insurer of Tilden, seeking reimbursement of what Maryland characterized as compensation and medical benefits paid to on or behalf of Barrett. With the exception of Maryland's intervention for reimbursement of compensation, all claims were settled in the sum of $150,000. Under the terms of the settlement, Maryland waived any right to reimbursement in its capacity of Jones Act insurer, reserving only the right to recovery as insurer of claims under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901-49 (1946) ("LHWCA"). Also under the settlement, E.B.B. and Lift Barge agreed to defend and hold harmless all parties from the intervention of Maryland.

Maryland maintains that the payments to Barrett were intended as longshoreman's compensation, and that Maryland was entitled to reimbursement for these benefits against Barrett's settlement proceeds. In a non-jury trial, the court found that Barrett was a Jones Act seaman and that Maryland was not entitled to reimbursement of the benefits it had paid him. ³ Maryland's appeal followed.

Barrett's Seaman Status.

An injured person claiming the benefits of the Jones Act, 46 U.S.C. Sec. 688 (1976), has the burden of establishing seaman status. Bernard v. Binnings Construction Co., Inc., 741 F.2d 824 (5th Cir.1984); Billings v. Chevron U.S.A. Inc., 618 F.2d 1108, 1109 (5th Cir.1980). The judicially established test for determining seaman status first announced in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959), remains in force in this circuit with minor modification. Under our most recent articulation of the seaman status test, a maritime worker must have a more or less permanent connection with a vessel or fleet of vessels in navigation. ⁴ Further, the capacity in which he is employed or the duties which he performs must contribute to the function of the vessel, the accomplishment of its mission, or its maintenance during its movement or during anchorage for its future trips. Bernard, 741 F.2d at 827. Barrios v. Engine & Gas Compressor Services, Inc., 669 F.2d 350, 352 (5th Cir.1982).

We first consider whether Barrett had a more or less permanent connection with a vessel in navigation. Maryland contends that Barrett's primary connection was with the caisson rather than with the jack-up barge D/B FALCON. The caisson on which Barrett was carrying out repairs at the time of his injury was a fixed structure. Fixed platforms are treated as artificial islands and, as such, are not vessels. Workers assigned to such platforms therefore do not qualify for seaman classification. Bertrand v. Shell Oil Co., 489 F.2d 293, 295 (5th Cir.1974); Bertrand v. Forest Oil Corp., 441 F.2d 809, 811 (5th Cir.), cert. denied, 404 U.S. 863, 92 S.Ct. 106, 30 L.Ed.2d 107 (1971). Thus, Barrett can only qualify as a seaman if he was more or less permanently assigned to the D/B FALCON, and not to the platform.

Barrett spent approximately seventy to eighty percent of his time on the D/B FALCON while the caisson was under repair. Clearly, he did not spend a substantial part of his time on the caisson itself. Yet Maryland argues that for purposes of determining seaman status, workers involved in platform-related assignments should be classified the same as workers who actually carry out their assignments on the platform itself. Although Barrett may have been physically present on the jack-up barge, Maryland points out that his work was primarily related to the repair of a fixed platform, and that Barrett should therefore not be deemed a seaman. By this argument, Maryland seeks to extend the fixed platform worker's non-seaman status to those who work on vessels or other structures in connection with fixed platform activities.

Although individuals working on fixed platforms do not have seaman status, no decision has gone so far as to exclude from the definition of seaman an individual working near or adjacent to such platforms where these workers actually perform a substantial part of their work on a Jones Act vessel. Because the benefits afforded seamen are generally considered preferable to remedies available to non-seaman maritime...