Ducrepont v. Baton Rouge Marine Enterprises, Inc.

• Citation: 666 F. Supp. 882
• Decision Date: 14 August 1987
• Docket Number: Civ. A. No. 86-358.
• Parties: Ellis J. DUCREPONT v. BATON ROUGE MARINE ENTERPRISES, INC., Federal Insurance Company.
• Court: United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)

666 F. Supp. 882

Ellis J. DUCREPONT v. BATON ROUGE MARINE ENTERPRISES, INC., Federal Insurance Company.

Civ. A. No. 86-358.

United States District Court, E.D. Louisiana.

August 14, 1987.

Lestelle & Lestelle, Terrence J. Lestelle, New Orleans, La., Kelly & Salim, Donald G. Kelly, Natchitoches, La., for plaintiff.

Abbott, Webb, Best & Meeks, Larry E. Abbott, Elton Duncan, III, Adams & Reese, Edward Rice, Jr., Montgomery, Barnett, Brown, Read, Hammond & Mintz, Wood Brown, New Orleans, La., for defendant.

ORDER AND REASONS

FELDMAN, District Judge.

Defendant's Rule 41(b) motion for an involuntary dismissal squarely raises for the first time since their enactment the question of the applicability of the Longshore and Harbor Workers' Compensation Act's 1984 Amendments to a Section 905(b) negligence action brought by an injured ship repairer against the employer-vessel owner. The Motion to Dismiss of Baton Rouge Marine Enterprises, Inc. is GRANTED. Fed.R.Civ.P. 41(b). The 1984 Amendments to the Longshore and Harbor Workers' Compensation Act bar plaintiff's negligence action under Section 5(b) of the Act. Plaintiff's remedy is limited to the workers' compensation scheme established by the Longshore Act.

I. BACKGROUND

Plaintiff brought this action under the Jones Act, 46 U.S.C. § 688, the general maritime law, and, in the alternative, under Section 5(b) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. On defendant's earlier motion for summary judgment, the Court dismissed the Jones Act and general maritime claims because plaintiff could not establish the requisite "seaman" and "vessel" status. The Court denied summary judgment as to the Section 905(b) negligence claim because of the presence of fact issues. Thereafter, plaintiff amended his complaint to include an alternative claim of unseaworthiness based on the Sieracki doctrine. Seas Shipping Company v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). The Court granted Baton Rouge Marine Enterprise's motion to bifurcate the trial (without objection by plaintiff) and heard only evidence regarding the threshold issue of the applicability of the 1984 Amendments. At the close of plaintiff's case concerning that issue, defendant moved for dismissal under Federal Rule 41(b).

Plaintiff, Ellis J. Ducrepont, sued for injuries he sustained in a slip and fall aboard defendant's work barge on March 20, 1985. At the time of the accident, plaintiff was employed by Baton Rouge Marine Enterprises, which owned the work barge.¹ In his capacity as Vice President and Supervisor, plaintiff was primarily charged with overseeing the cleaning, repairing, and fleeting services Baton Rouge Marine Enterprises provided various barge customers. The work barge upon which plaintiff was injured served as a work platform from which plaintiff's employer conducted its business. Plaintiff also repaired the boilers which provided the work platform with the hot water necessary to make the barges gas-free before the repair work could be done. On the day of the accident plaintiff was descending the stairs connecting the upper and main decks in order to leave at the end of the day, when he slipped and fell. Mr. Ducrepont claims that the defendant-employer is liable under Section 905(b) for negligently failing to repair a defective stairway which it knew or should have known was defective, or alternatively, under the Sieracki doctrine based on the unseaworthy condition created by the dangerous stairway.

These facts trigger an inquiry into the 1984 Amendments to the Act. To better understand them, it is useful to pause briefly and revisit some recent history.

II. THE LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT

The Longshore and Harbor Workers' Compensation Act established a compensation scheme for injured maritime workers. Since its enactment in 1927, an employer's compensation liability was to "be exclusive and in place of all other liability of such employer to the employee". 33 U.S.C. § 905(a). Prior to 1972, the Supreme Court adopted a liberal view under which shipowners were held liable to injured employees of independent contractors working shipboard; liability was based on the warranty of seaworthiness. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). This seaworthiness remedy "went beyond negligence in two important respects". Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030, 1032 (5th Cir.1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1489, 55 L.Ed.2d 518 (1978). First, the shipowner could be sued for "transitory" defects which arose even after the opportunity to correct them had passed. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). Second, the shipowner was held responsible for any unsafe condition, even those caused entirely by the act of a third party, including the independent contractor. Alaska Steamship Company v. Patterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954). A vessel sued for unseaworthiness could then demand indemnity from the repairer-employer on the theory that the employer under hire had breached an express or implied warranty of workmanlike performance to the vessel. See Smith v. M/V Captain Fred, 546 F.2d 119, 120 (5th Cir.1977). Employers remained exposed to responsibility beyond the statutory compensation benefits. "This procedure in effect made an end run around the exclusive liability provision of the LHWCA." Id. (footnote omitted). In 1972, Congress amended the Act. Congress substantially raised the compensation benefits payable under the Act, eliminated the employee's unseaworthiness action, and restricted his recovery from the shipowner to theories of negligence. Conventional wisdom taught that the 1972 Amendments reaffirmed the legislative goal of limiting an employer to liability for compensation and medical benefits provided in the Act. See Smith v. M/V Captain Fred, 546 F.2d at 121.

A. The 1972 Amendments

The 1972 Amendments "effectuated a fundamental restructuring of the rights and remedies available to harbor workers in third party actions." Parker v. South Louisiana Contractors, Inc., 537 F.2d 113, 117 (5th Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977). The principal aim of the amendments was to legislatively overrule the now well-known Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) and Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), which allowed an injured employee to impose indirect liability on his employer for damages in excess of compensation limits. Thus, the 1972 legislation was primarily designed to prevent "continued circumvention of section 905(a) of the LHWCA, which makes compensation the employee's exclusive remedy against his employer."²Id.

As amended in 1972, Section 905(b) afforded an employee who was injured because of vessel negligence the right to bring a third party action against the vessel based on negligence alone.³ The 1972 amendments made it clear that the employer would not be "liable to the vessel for such damages directly or indirectly." 33 U.S.C. § 905(b) (1972). However, the amendments targeted another problem as well. Further limiting third-party actions, Section 905(b) expressly provided that if the plaintiff

"was employed by the vessel to provide shipbuilding or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing shipbuilding or repair services to the vessel."

Id. "Taken as a whole, the manifest purpose of section 905(b) was to curtail ... the availability of third party actions in admiralty." Parker, 537 F.2d at 117.

But in spite of Congress' effort to restrict the availability of such actions, prior to the 1984 Amendments, Congress felt that Section 905(b)

"has been judicially interpreted to allow a shipyard employee to bring a maritime negligence action against its employer in the latter's capacity as owner of a vessel being built or repaired."

S.Rep. on Conference Rep. on S. 38, Longshore and Harbor Workers' Compensation Act Amendments of 1984 (Sept. 20, 1984) (statement of Sen. Nickles). The goal of Congress seemed thwarted because the Fifth Circuit, in M/V Captain Fred, supra, interpreted the 1972 Amendments as permitting a negligence action against a vessel owner who would otherwise be immune from suit as the plaintiff's employer under Section 905(a). The Court reasoned that, through the 1972 Amendments, Congress still believed

"that the same principles should apply in determining liability of the vessel which employs its own longshoremen or ship builders or repairmen as apply when an independent contractor employs such persons."

546 F.2d at 123 (quoting H.R.Rep. No. 1441, 92 Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News, pp. 4698, 4705). Captain Fred took an unexpected turn in dealing with an employee who brought a Section 905(b) negligence action against the employer-vessel owner which engaged in shipbuilding or repair services. The Fifth Circuit read the 1972 Amendments as establishing the Section 905(b) liability of an employer who is also the owner of the vessel ... even though by its terms the LHWCA precluded an action by one

"employed by the vessel to provide ship building or repair services ... if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel."

33 U.S.C. § 905(b) (1972).

To reconcile these seemingly inconsistent themes, courts undertook the difficult and sometimes chimeric task of characterizing negligence in terms of that occasioned by an employee in his capacity as a shipbuilder or repairer, and that caused by an employee acting as agent of the vessel. In Smith v. Eastern Seaboard Pile Driving, Inc., 604 F.2d 789, 795 (2d Cir.1979), the Second Circuit explained that in order to determine liability on the part of a...