Boatel, Inc. v. Delamore

• Decision Date: 21 June 1967
• Docket Number: No. 21459.,21459.
• Citation: 379 F.2d 850
• Parties: BOATEL, INC. and P. J. Donovan, Deputy Commissioner, Seventh Compensation District, Bureau of Employees' Compensation, United States Department of Labor, Appellants, v. Emile R. DELAMORE, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

379 F.2d 850 (1967)

BOATEL, INC. and P. J. Donovan, Deputy Commissioner, Seventh Compensation District, Bureau of Employees' Compensation, United States Department of Labor, Appellants, v. Emile R. DELAMORE, Appellee.

No. 21459.

United States Court of Appeals Fifth Circuit.

June 21, 1967.

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George B. Matthews, New Orleans, La., Sherman L. Cohn, David L. Rose, Edward R. Berlin, Attys., Dept. of Justice, John W. Douglas, Asst. Atty. Gen., Washington, D. C., Louis C. LaCour, U. S. Atty., New Orleans, La., Thomas W. Thorne, Jr., New Orleans, La., Lemle & Kelleher, New Orleans, La., of counsel, for appellants.

Samuel C. Gainsburgh, Jack C. Benjamin, Howard W. Lenfant, Kierr & Gainsburgh, New Orleans, La., for appellee.

Before GEWIN and AINSWORTH, Circuit Judges, and HUNTER, District Judge.

AINSWORTH, Circuit Judge:

Two questions are presented for decision: First, whether the remedy of the amphibious worker injured on drilling craft in the Gulf of Mexico off the coast of Louisiana engaged in the exploration and development of oil and gas in the Submerged Lands Area, against his employer, is exclusively under the Longshoremen's and Harbor Workers' Compensation Act¹ (as extended by the Outer Continental Shelf Lands Act),² whose coverage expressly excludes a "member of the crew" of a vessel, or is under the Jones Act³ as a seaman. The second, a collateral question, is: Whether the injured worker, having accepted voluntary compensation payments under the Longshoremen's Act, and having filed a formal claim for continuing benefits which was denied by the Deputy Commissioner, is thereby estopped from asserting a seaman's Jones Act claim for damages.

Emile R. Delamore, appellee, sustained disabling injuries while employed by General Marine Corporation (now Boatel, Inc.) as a diesel operator or motorman working aboard the drilling tender, the JOSEPH ZEPPA. He was paid compensation voluntarily by his employer under the Longshoremen's Act. When the employer subsequently terminated compensation, Delamore, through counsel, filed a formal claim for continuing compensation under the Act with the Deputy Commissioner, United States Department of Labor. During the pendency of the claim Delamore conferred informally with the Deputy Commissioner who asked him if he was aware of the Jones Act remedy, and claimant replied that he had heard of it but did not know its meaning. He was further asked by the Commissioner whether he had discussed the Jones Act with his attorney and he said that he had not. The Commissioner then noted in his records of the case that he saw no reason to raise the Jones Act issue "as long as neither of the parties raise it."

A hearing was held by the Commissioner and additional Longshoremen's compensation denied. Thereafter, claimant attacked the Deputy Commissioner's award on the ground that he was "a member of the crew" of the JOSEPH ZEPPA and accordingly that the Deputy Commissioner had no jurisdiction of the case since both the Longshoremen's Act and the Outer Continental Shelf Lands Act provide that coverage excludes "a master or member of a crew of any vessel."⁴ His contention was rejected by the Deputy Commissioner. Claimant then petitioned the district court to review the Deputy Commissioner's ruling that he had jurisdiction under the Longshoremen's Act. The district court remanded the case to the Deputy Commissioner to take evidence on the question whether claimant was "a member of the crew" of a vessel, and after an evidentiary hearing the Deputy Commissioner again held that claimant was not "a member of the crew" of a vessel and that the Longshoremen's Act applied. In his written findings the Deputy Commissioner said that all of claimant's duties "were solely in connection with the drilling operations." Claimant again petitioned the district court for review of the Deputy Commissioner's findings. The district judge set aside the Deputy Commissioner's order and remanded the matter with instructions to render an order that Delamore was not entitled to the benefit of the Longshoremen's Act as extended by the Outer Continental Shelf Lands Act. The trial judge said that the finding of the Deputy Commissioner that claimant was not a member of a crew was "completely incomprehensible."⁵ Both the Deputy Commissioner and claimant's employer, who intervened in the case, have appealed. Following the ruling by the district court, claimant then filed a separate Jones Act seaman's suit against the employer.

Delamore performed all of his services aboard the vessel, the JOSEPH ZEPPA, a non-self-propelled drilling tender officially registered and inspected by the United States Coast Guard, which had been towed to the stationary drilling platform in the navigable waters of the Gulf of Mexico on the Outer Continental Shelf about ten miles from the Louisiana coast, and moored there afloat for a considerable time — more than a year — while drilling operations were being performed. There were two diesel engines on the JOSEPH ZEPPA which furnished power chiefly used in the drilling operations on the fixed platform and also power for light, water and cooking aboard the vessel. The vessel was annually the subject of a load line inspection and report by the American Bureau of Shipping. Delamore was assigned to work on the tender, not to work on the fixed platform. His primary duties were the care and maintenance of the diesel engines, generators, gauges, equipment and the engine room itself. He looked after the machinery and kept "everything running." He held United States Merchant Marine seaman's papers, issued by the Coast Guard, as an ordinary seaman. His work schedule was twelve hours a day for ten days aboard the vessel and then he had five days off duty on shore. Pay was at an hourly rate. He ate and slept aboard the ZEPPA, as did all of the other members of the crew as well as those employed on the fixed platform. He was considered by his employer as part of the crew of the ZEPPA, as an able-bodied seaman and part of the engine and deck department. The vessel also had others who were considered part of the crew, such as a master, relief master, three able-bodied seamen, a chief engineer, a relief engineer, an electrician, a wiper and two other diesel operators.

The Deputy Commissioner argues two grounds for reversal of the district court's holding as follows: (1) A claimant who deliberately accepts compensation benefits under the Longshoremen's Act and invokes its jurisdiction by filing a formal claim may not contend that the Act is inapplicable after the Deputy Commissioner's rejection of his claim for additional compensation, and (2) the Deputy Commissioner's finding that the claimant was not a "member of a crew of any vessel" is supported by substantial evidence of record.

I.

We consider, first, the Deputy Commissioner's contention that Delamore is estopped to contend that the Longshoremen's Act is inapplicable after having accepted voluntary compensation benefits and having invoked the jurisdiction of the Act by filing a formal claim for continuing compensation which was rejected by the Commissioner. The Deputy Commissioner argues that claimant may not abruptly "about face" after his claim for further compensation benefits has been rejected and then contend "for the first time" that he was employed as a "member of the crew" of a vessel and therefore not covered by the Longshoremen's Act but by the Jones Act. As the Deputy Commissioner states the argument in his brief, "He thus hopes to secure a second opportunity, this time in a suit under the Jones Act, to obtain a favorable ruling on his contention that as a result of the injuries suffered he was disabled." The Deputy Commissioner contends that whether claimant was a member of a crew of a vessel so as to bar recovery under the Longshoremen's Act is a factual question, not jurisdictional, and must be treated in the same manner as the question of whether claimant was injured while acting within the scope of his employment, that there is substantial evidence in the record to support the Commissioner's finding, which the courts must affirm, whether we agree with the factual conclusion or not.

There is nothing sinister about a worker who claims to be physically disabled from injuries incurred during his employment, attempting either personally or through counsel, to obtain recovery by whatever lawful remedy or remedies are available to him. The circumstances here do not warrant a finding of collateral estoppel against the injured employee. They show that claimant's employer voluntarily made compensation payments under the Act for a period of time, on the cessation of which claimant filed a formal claim, through counsel, for additional benefits and for a hearing. At the hearing the issue of whether the Longshoremen's Act properly covered this employee was not raised by the parties nor was evidence taken on this subject, though it was in the mind of the Deputy Commissioner since he had informally discussed it with claimant a month prior to the hearing but did not pursue the matter further because neither party had raised the issue. Having rejected claimant's request for additional compensation in written findings, that the employee was no longer disabled to work, the Deputy Commissioner denied, out of hand and without opinion, claimant's subsequent petition, through counsel, to have the compensation order annulled and set aside on the ground that claimant was a member of the crew of a vessel and thus the Commissioner lacked jurisdiction to render the compensation order.

It was not until Judge Christenberry reviewed the Deputy Commissioner's action and ordered a remand of the case for a hearing on the vital question of "status" as to whether claimant was a member of the crew of the vessel that the Deputy Commissioner "for the first time" entertained the issue of coverage itself under the Longshoremen's Act and took evidence in a...