Bonnette v. Shell Offshore, Inc.

• Decision Date: 30 November 1993
• Docket Number: Civ. No. B-92-085.
• Citation: 838 F. Supp. 1175
• Parties: David J. BONNETTE and wife, Leslie G. Bonnette, Henry Brumfield, Joel Thompson and wife, Janet Franzine Thompson, Ottis L. Robbins and wife, Kathy Ann Robbins, Plaintiffs, v. SHELL OFFSHORE, INC., Shell Oil Company, Whittaker Corporation, Survival Systems Division, and Juan M. Porras, Defendants.
• Court: U.S. District Court — Southern District of Texas

838 F. Supp. 1175

David J. BONNETTE and wife, Leslie G. Bonnette, Henry Brumfield, Joel Thompson and wife, Janet Franzine Thompson, Ottis L. Robbins and wife, Kathy Ann Robbins, Plaintiffs, v. SHELL OFFSHORE, INC., Shell Oil Company, Whittaker Corporation, Survival Systems Division, and Juan M. Porras, Defendants.

Civ. No. B-92-085.

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

November 30, 1993.

Thomas M. Discon, Discon Law Firm, Metairie, LA, Vincent J. DiSalvo, Baton Rouge, LA, William Denton, Biloxi, MS, for plaintiffs.

James Daigle, Lemle & Kelleher, New Orleans, LA, Melchor Chavez, Brownsville, TX, for intervenor-plaintiff Odeco Oil & Gas Co.

Eduardo Roberto Rodriguez, Marjory C. Batsell, Rodriguez, Colvin & Chaney, Brownsville, TX, for defendants Shell Offshore, Inc., and Shell Oil Company.

Jack Lee Allbritton, Fulbright & Jaworski, Houston, TX, for defendant Whittaker Corporation.

Guy Allison, Allison & Huerta, Corpus Christi, TX, Dana Allison Lester, Brownsville, TX, for defendant/cross-plaintiff Juan M. Porras.

MEMORANDUM AND ORDER

BLACK, United States Magistrate Judge.

This case was assigned to United States Magistrate Judge John Wm. Black by the Honorable Filemon B. Vela, United States District Judge, pursuant to authority granted by 28 U.S.C. § 636(b)(1)(A).

There is pending before the Court Plaintiffs' Motion to Remand. This Motion presents the Court with the task of attempting to draw a line between the jurisdiction of general maritime law and the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq., in a case involving operations aboard a fixed platform in the Gulf of Mexico. The facts of this case are novel and do not clearly fall within the parameters of existing Fifth Circuit precedent. Nevertheless, the Court must determine whether this case is sufficiently maritime in nature to entitle Plaintiffs to proceed in state court pursuant to the Saving to Suitors clause of 28 U.S.C. § 1333(1).

Statement Of Facts

The uncontested facts of this case are as follows. Defendant Shell owns a fixed platform in the Gulf of Mexico which is operated under contract by Odeco Oil and Gas Company, (Odeco). All of the workers on the platform are Odeco employees except for Ken Guillotte, the person in charge for Shell. The rig is equipped with two 28-man survival capsules, owned by Odeco and manufactured by defendant Whittaker Corporation. The capsules are round, totally enclosed, motorized and capable of navigating on the high seas for purposes of evacuating platform personnel. Each capsule is normally stowed in its launch platform approximately fifty to sixty feet above the surface of the water. They are operated by releasing a brake which allows the capsule to make a controlled descent on a cable to the water. Once in the water, the occupants of the capsule can release it from its cable by means of a ratchet lever inside the capsule that releases the cable hook from the capsule. The capsule is equipped with food, water and other survival equipment, including a bailer, boat hooks, heaving lines, a compass, and a lifeline.

On the morning of June 2, 1991, Ken Guillotte, the Person in Charge on the platform and a representative of Shell, and Herb Pretus, the Safety Person on the platform and a representative of Odeco, decided to hold a man-overboard drill. Mr. Pretus called a meeting of the roustabout and maintenance crews to discuss the drill. All four Plaintiffs attended the meeting, though Defendant/Cross-Plaintiff Juan M. Porras did not attend. Each individual in attendance was to become familiar with their assigned Station Bill duties aboard the capsule (Report of the Coast Guard investigating officer, page 4, finding # 10). At 11:05 A.M., a life preserver was thrown into the water to simulate a man overboard and the drill began. The four Plaintiffs and Defendant/Cross-Plaintiff Juan M. Porras assembled at the embarkation deck. Plaintiff Ottis Robbins entered the capsule first and started the engine, which was his assigned Station Bill duty as a member of the capsule's crew. The remaining employees entered the capsule after they heard the engine start. Plaintiffs Brumfield and Bonnette were Odeco roustabouts who had no training in the operation of the capsule. They had no duties or responsibilities in the drill and were merely along for the ride. (Supp.Mem. in Opp. to Motion to Remand, page 6, paragraph 9 uncontested by Plaintiffs). Plaintiff Thompson had been trained in the operation of the capsule, but took no active role in its operation on this occasion. (Id.). Defendant/Cross-Plaintiff Juan M. Porras, an off-duty driller who was trained in the operation of the capsule, was seated at the tiller.

Plaintiff Robbins opened the top hatch of the capsule and looked two decks up on the platform where Mr. Pretus and Mr. Guillotte were observing the drill, and one or both of them gave the signal to lower the capsule to the water. Plaintiff Robbins then closed the hatch and proceeded to operate the release mechanism rather than the lowering mechanism, whereupon the capsule fell approximately fifty feet to the water, causing the Plaintiffs' injuries. It is undisputed that Plaintiff Robbins operated the wrong lever causing the free fall. (Def. Whittaker Corp. Supp.Mem. in Opp. to Motion to Remand, p. 5, paragraph 7).

Plaintiffs filed suit in state court in Cameron County, Texas alleging state law negligence claims against Shell Oil Company, Shell Offshore, Inc. and Juan M. Porras. Plaintiffs also alleged Maritime Strict Products Liability claims against Whittaker Corporation, Survival Systems Division. Defendants timely removed this action to federal court pursuant to 28 U.S.C. § 1441, asserting federal question jurisdiction arising under 28 U.S.C. § 1331.¹ Defendants maintain that Plaintiffs' claims arise under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq., ("OCSLA").

Plaintiffs timely filed a Motion to Remand, alleging that their state court action sounds in admiralty and that it was brought pursuant to the Saving to Suitors clause of 28 U.S.C. § 1333(1). Plaintiffs further assert in their Motion to Remand that the OCSLA "does not create federal question jurisdiction in an action where Plaintiffs have elected to bring a maritime claim in State Court under the Savings sic to Suitors Clause," citing Fogleman v. Tidewater Barges, Inc., 747 F.Supp. 348 (E.D.La.1990).

Plaintiffs also claim that removal was improper because Defendant/Cross-Plaintiff Juan M. Porras did not consent to removal. In reply, Defendants argue that Juan M. Porras is fraudulently joined, is thus not a proper defendant, and that his consent is therefore not required for removal. Plaintiffs assert that Juan M. Porras is a proper defendant because he was "the operator and temporary master of the life capsule, whose negligence approximately sic caused the Plaintiffs' injuries." (Motion to Remand, p. 3). Plaintiffs claim that Juan M. Porras would also be a proper Defendant in an action pursuant to § 5(b) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., ("LHWCA").

Memorandum and Order

The Court has found no cases factually similar to this case involving fixed platforms, but has found several cases involving similar facts which are of limited usefulness here. See generally, McKenney v. U.S., 99 F.Supp. 121 (N.D.Cal.1951); Irwin v. U.S., 111 F.Supp. 912 (E.D.N.Y.1953); Manhat v. U.S., 220 F.2d 143 (2nd Cir.1955); Morrell v. U.S., 193 F.Supp. 705 (N.D.Cal.1960); Wright v. Maryland Boat Line, Inc., 351 F.2d 922 (1st Cir.1965). The Court has found several cases procedurally similar, that is, cases involving a state petition alleging state law causes of action, removed based on OCSLA with remand sought based on the saving to suitors clause. The Court has reviewed these published and unpublished opinions dealing with remand of maritime/OCSLA cases, including: Coody v. Exxon Corporation, 630 F.Supp. 202 (M.D.La.1986); White v. Chevron U.S.A., Inc., 1990 WL 28167 (E.D.La. March 14, 1990); Shelton v. Tidewater, Inc., 1990 WL 103658 (E.D.La. July 16, 1990); Cahee v. Shell Offshore, Inc., 1990 WL 98864 (E.D.La. July 6, 1990); Fogleman v. Tidewater Barges, Inc., 747 F.Supp. 348 (E.D.La.1990); Broussard v. John E. Graham & Sons, 798 F.Supp. 370 (M.D.La.1992); Baker v. Chevron U.S.A., Inc., 1992 WL 245573 (E.D.La. Sept. 8, 1992) (Baker I) (case remanded because purely platform tort).²

The Coody case involved the transfer of a platform worker from a vessel to a fixed platform. Defendants removed to federal court, alleging that the suit was based on the OCSLA. Plaintiffs then moved for remand, contending that their action was premised on general maritime law and brought in state court pursuant to the saving to suitors clause. The court found that plaintiffs had no desire to proceed under federal law, as indicated by their having filed suit in state court under the saving to suitors clause. Coody, 630 F.Supp. at 205. In that light, it was irrelevant that an action could have been filed based on OCSLA. Id. The court, in essence, deferred to plaintiff's choice of law and forum, and remanded the case to state court.

The court in White denied remand in a case in which injuries occurred on a fixed platform. Defendants contended that the plaintiff's state law cause of action could only be brought pursuant to OCSLA because of the platform situs of the injury. Plaintiffs cited Coody for the proposition that they chose not to proceed under OCSLA and that therefore, the case was not removable. The White court distinguished those cases, noting that in each, there were allegations of maritime jurisdiction which gave rise to the right to proceed in state court under the saving to suitors clause, while in the case before it, there were no such allegations. The White court went further, noting that the application of maritime law, and through it the saving to suitors clause, would...