Boudreaux v. American Workover, Inc.

Decision Date06 July 1982
Docket NumberNo. 80-3287,80-3287
Citation680 F.2d 1034
PartiesKeith A. BOUDREAUX, Plaintiff, v. AMERICAN WORKOVER, INC., et al., Defendants. AWI, INC., Defendant, Third-Party Plaintiff-Appellant, v. AMERICAN INSURANCE CO., Third-Party Defendant-Appellee. . Unit A *
CourtU.S. Court of Appeals — Fifth Circuit

Wood Brown, III, New Orleans, La., for AWI, Inc.

Dillon & Cambre, Gerard M. Dillon, New Orleans, La., for American Ins. Co.

Joshua T. Gillelan, II, Dept. of Labor, Washington, D. C., for amicus curiae Director, Office of Workers' Compensation Program.

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

Before BROWN, CHARLES CLARK, GEE, RUBIN, GARZA, REAVLEY, POLITZ, RANDALL, TATE, SAM D. JOHNSON, WILLIAMS and GARWOOD, Circuit Judges.

TATE, Circuit Judge:

The sole issue before this court is whether an employee injured while performing marine petroleum exploration and extraction work aboard a drilling vessel located offshore but on state territorial waters is engaged in "maritime employment" within the meaning of section 2(3) of the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA" or "Act"), 33 U.S.C. § 902(3), as amended in 1972.

The question arises in a suit by an amphibious workman against a vessel defendant for damages resulting from injuries caused by the vessel's negligence. The vessel defendant appeals the dismissal of its third-party demand against the workman's employer for indemnification insofar as the injuries were caused by the employer's fault. The precise issue is whether the employer is immune from the indemnification demand as an employer covered by the LHWCA; it is contended that the employer should be denied this immunity because its employee, although injured by maritime tort on a vessel in navigable waters, was nevertheless not in "maritime employment" and thus not covered by the Act.

A panel of this court, in a split decision, held that the work involved was indeed "maritime employment" within the meaning of the LHWCA. Boudreaux v. American Workover, Inc., 664 F.2d 463 (5th Cir. 1981). Rehearing en banc was granted. 664 F.2d 480 (5th Cir. 1982).

On rehearing, we reach the issue expressly reserved in Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 266 n.25, 97 S.Ct. 2348, 2358 n.25, 53 L.Ed.2d 320 (1977): "whether Congress excluded people who would have been covered before the 1972 amendment; that is, workers who are injured on navigable waters as previously defined."

For reasons to be set forth more fully, we find no Congressional intent to withdraw the coverage of the Act from those injured on navigable waters while engaged in what was considered as "maritime employment" for LHWCA purposes prior to the 1972 amendments. 1 We, therefore, like the panel, affirm the district court's determination in favor of the Act's coverage of this maritime injury.

Facts and Procedural Context

The issue before us arises in the following factual and procedural context, which is more fully detailed in the panel opinion:

The plaintiff Boudreaux was injured over navigable waters in the course of his employment. 2 His employer ("Aquatek") was a contractor performing specialty mineral-production work on a drilling barge. Boudreaux sued the owner and operator ("AWI") of the drilling barge for its negligent failure to provide him with a safe place to work. 3

The district court dismissed a third-party demand by the defendant AWI (the owner and operator of the vessel ) against Aquatek (the employer) for contribution or indemnity-in the event Boudreaux recovered against Aquatek-based on Aquatek's alleged contributing negligence. The district court thus upheld the contention of the employer AWI that, since it was liable to Boudreaux for LHWCA compensation, it was protected from contribution or indemnity to Aquatek (the vessel) by section 5(b) of the Act, 33 U.S.C. § 905(b) (quoted in note 9 below). This enactment, added by the 1972 revision, expressly provides that an employer of an injured workman covered by the Act shall not be liable to the vessel "directly or indirectly" for any injuries caused to its employee by the negligence of the vessel.

Thus, in the context of this litigation, the central issue-whether Boudreaux is covered by the LHWCA as amended in 1972, so as to be entitled to the compensation now being paid to him by his employer's insurer (see note 3)-concerns whether a maritime employer, as so recognized for LHWCA purposes prior to the 1972 amendments, is to be denied the immunity from liability for contributing to negligence-caused injury to its employee, 4 an immunity expressly intended by the 1972 amendments to be accorded to employers of persons entitled to LHWCA compensation because of injury in maritime employment. It also concerns whether the 1972 amendments withdrew coverage from pre-1972 maritime employees injured on the waters.

I. The 1972 Statutory Provisions

Prior to 1972 a single situs requirement of the LHWCA governed the scope of its coverage. That requirement limited coverage to workers whose "disability or death result(ed) from an injury occurring upon the navigable waters of the United States (including any dry dock)...." LHWCA of 1927, ch. 509, § 3(a), 44 Stat. 1426. The Supreme Court decided that a worker who in the course of his duty was obliged to go on navigable waters, however briefly or sporadically, and who suffered an injury while in that historically maritime locality, was covered by the pre-1972 LHWCA. Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). See Gilmore and Black, The Law of Admiralty, § 6-19 (esp. at 421-22) (2d ed. 1975); 4 Larson, The Law of Workmen's Compensation, § 89.23(b) (esp. at 16-168, 169) and § 89.26 (1982).

Under the 1972 revision of the LHWCA, with its express intent to move the coverage landward (see II below), this simple test (generally, injury on the navigable waters) was modified. By the 1972 amendments to that Act, to be entitled to its benefits, a disabled employee must (a) be disabled as the result of "an injury occurring upon the navigable waters of the United States" (defined as also including adjoining areas), section 3(a) of the Act, 33 U.S.C. § 903(a) 5-the "situs" test; and (b) be engaged in "maritime employment" at the time of the injury, section 2(3) of the Act, 33 U.S.C. § 902(3) 6-the "status" test.

These 1972 requirements for coverage under the Act have been at issue before the United States Supreme Court in three of its decisions. Two of them directly involved the issue of whether land-based employees, not covered by the LHWCA prior to the 1972 revision, were engaged in "maritime employment" at the time of their injuries: P. C. Pfeiffer Co. Inc. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979) and Northeast Marine Terminal Company, Inc. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). In both of these, coverage was upheld, affording the Act a liberal construction in view of its remedial purpose. Although the issue in the third decision, Sun Ship, Inc. v. Commonwealth of Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980), was peripheral to the present, that decision nevertheless affords persuasive support to our ultimate conclusion that the 1972 revision was not intended to withdraw from amphibious workers beneficial rights to a worker's compensation remedy previously permitted or enjoyed by them under the LHWCA prior to its 1972 revision. 7

Caputo and Ford, the first two decisions, concerned land-based employees newly covered by the 1972 revision. They analyzed the 1972 amendments of the LHWCA as "replacing the single situs requirement (i.e., on navigable waters or their statutory equivalent) with a two-part situs and status standard." Ford, supra, 444 U.S. at 73-74, 100 S.Ct. at 332; Caputo, supra, 432 U.S. at 264-65, 97 S.Ct. at 2357. "To be eligible for compensation, a person must be an employee (status) as defined by § 2(3) (33 U.S.C. § 902(3) ) who sustains injury on the situs defined by § 3(a) (33 U.S.C. § 903(a) )." Ford, 444 U.S. at 74, 100 S.Ct. at 333. Situs turns on geography; status on the maritime-connected nature of the job. Id., 444 U.S. at 73-83, 100 S.Ct. at 333-37; Caputo, 432 U.S. at 265, 97 S.Ct. at 2358-63. Thus, both the status requirements, as defined by section 902(3), based on the nature of the job, and the situs requirements, as defined by section 903(a), based on geography, must be satisfied before the LHWCA can apply. Ford, 444 U.S. at 73-74, 100 S.Ct. at 332-33 (1979); Caputo, 432 U.S. 265, 97 S.Ct. at 2357.

We must note, however, that the issue as to "maritime employment" in Caputo and Ford was with regard to land-based employees on the expanded waterfront situs of compensable accidents added by the 1972 amendment, as to whom the "maritime employment" test was designed to confine the remedy to employees in maritime-connected industries and to exclude from coverage non-maritime employees within the expanded shoreward zone. See legislative purposes in II below. The Court was there not concerned with employees injured on the actual navigable waters, who were at the time of the 1972 revision already considered to be in maritime employment for purposes of the LHWCA. (Indeed, in Caputo, the Court expressly noted that its opinion did not concern persons covered before the 1972 amendment who were injured on navigable waters. 436 U.S. at 266 n.25, 97 S.Ct. at 2358 n.25.)

It is conceded that the present injured worker, Boudreaux, was engaged in employment at the time of the accident that was compensable under the LHWCA prior to the amendment as occurring on the navigable waters. See Calbeck v. Travelers Insurance Company, supra. We have examined the legislative history and purposes of the 1972 revision (see II below) and the jurisprudential context in which it occurred (see III below), and we find no intention to dilute the pre-1972 meaning of "maritime...

To continue reading

Request your trial
40 cases
  • Director, Office of Workers Compensation Programs, United States Department of Labor v. Perini North River Associates
    • United States
    • U.S. Supreme Court
    • 11 Enero 1983
    ...The Fifth Circuit takes a position contrary to that of the Second Circuit and Ninth Circuit. See Boudreaux v. American Workover, Inc., 680 F.2d 1034 (CA5 1982) (en banc) (Tate, J.). 9. Perini bases its standing argument on § 21(c) of the Act, 33 U.S.C. § 921(c). See note 7, supra. According......
  • Environmental Encapsulating Corp. v. City of New York
    • United States
    • U.S. District Court — Southern District of New York
    • 31 Julio 1987
    ...provision. See, e.g., De Canas v. Bica, 424 U.S. 351, 360 n. 9, 96 S.Ct. 933, 939, 47 L.Ed.2d 43 (1976); Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1053 (5th Cir. 1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (1983); Sears, Roebuck & Co. v. Brown, 641 F.Supp. ......
  • Herb Welding, Inc v. Gray
    • United States
    • U.S. Supreme Court
    • 18 Marzo 1985
    ...it would limit recoveries by those who did better without LHWCA coverage. Id., at 589-590, 602. See generally Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1053 (CA5 1982). 6. The dissent finds "substantial irony" in this analogy in light of the 1972 LHWCA Amendments, which extended ......
  • Bienvenu v. Texaco, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 11 Enero 1999
    ...waters.7 Our decisions in Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir.1978), and Boudreaux v. American Workover, Inc., 680 F.2d 1034 (5th Cir. Unit A 1982) (en banc), were decided before the Supreme Court announced its decision in Director v. Perini and answered most of the q......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT