Forrester v. Ocean Marine Indem. Co., 92-3924

• Decision Date: 17 December 1993
• Docket Number: No. 92-3924,92-3924
• Citation: 11 F.3d 1213
• Parties: Randy P. FORRESTER, Plaintiff-Appellee, Cross-Appellant, v. OCEAN MARINE INDEM. CO., Defendant, Arco Oil & Gas Co., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1213

11 F.3d 1213

1994 A.M.C. 2993

Randy P. FORRESTER, Plaintiff-Appellee, Cross-Appellant, v. OCEAN MARINE INDEM. CO., Defendant Arco Oil & Gas Co., Defendant-Appellant, Cross-Appellee.

No. 92-3924.

United States Court of Appeals Fifth Circuit.

Dec. 17, 1993.

R.K. Christovich, Christovich & Kearney, New Orleans, LA, for defendant-appellant.

Charles Ferrara, Thomas A. Gennusa, II, Metairie, LA, for Forrester.

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

Before REYNALDO G. GARZA, KING and DEMOSS, Circuit Judges.

PER CURIAM:

In this admiralty case, Defendant-Appellant Arco Oil & Gas Company (Arco) appeals the district court's determination that Arco was liable for the injuries sustained by Plaintiff-Appellee Randy P. Forrester when he attempted to disembark from the M/V SEA HERCULEAN (the crewboat). Arco insists that it owed no duty of reasonable care to Forrester in any of its several statuses: time charterer, platform owner, dock owner. As we agree, we reverse the judgment of the district court and render judgment for Arco, dismissing Forrester's action with prejudice.

I FACTS AND PROCEEDINGS

Immediately prior to the accident, Forrester, a helicopter mechanic employed by Pumpkin Air, Inc., was working aboard an Once the crewboat arrived, an Arco employee on the boat, Joe Smith, gestured to the men to move to the back of the ship. Eager to leave the crew boat after a stormy trip of four to five hours, the passengers began to disembark without waiting for the gangplank. They did so by stepping down onto the top of an outboard tire bumper, then jumping down from there to the dock several feet below. Although there is some confusion as to exactly when Forrester disembarked, he clearly was one of the first passengers off the boat. He testified that the passengers behind him were yelling at him to jump as he passed his luggage off to helicopter pilot George Schaeffer, and, as he attempted to disembark, he fell to the dock and was injured.

offshore production platform owned by Arco. Arco hired Pumpkin Air to provide helicopter transportation between the platform and the shore. Because inclement weather prevented Forrester from leaving Arco's platform by helicopter, he was provided transportation on the crewboat. Owned and operated by Transocean Marine, the crewboat was time chartered by Arco. At the onshore dock facility, Arco's dispatcher directed the crewboat captain to dock at the east dock, which was owned and operated by Arco.

The district court held that a time charterer, such as Arco, owes a high degree of care to passengers, including a reasonably safe means of boarding and leaving the vessel. Moreover, the court found that Smith was in charge of (1) instructing passengers as to Arco's safety rules, and (2) disembarkation. Smith was negligent in the performance of these duties, according to the court, as he was the first to leave the vessel and was already in the dispatcher's office when the accident occurred.

II BACKGROUND

In determining the liability of a charterer to a third party, we must first ascertain the nature of the charter relationship. There are three general categories of charters: the bareboat charter, the time charter, and the voyage charter. ¹ These categories are further characterized as either demise or non-demise charters: bareboat charters are demise charters; both time charters and voyage charters are non-demise charters. The distinction between the demise and non-demise charters depends on the degree of control retained by the owner of the vessel. In a demise charter, the vessel owner transfers full possession and control to the charterer, who in turn furnishes the crew and maintenance for the vessel (thus the term "bareboat"). Consequently, the bareboat charterer as a demise charterer is the owner pro hac vice of the vessel for the duration of the contract. The demise charterer is therefore responsible in personam for the negligence of the crew and the unseaworthiness of the vessel. ²

In contrast, the non-demise charter does not vest nearly the same degree of control in its charterer. A time charter only entitles the charterer to the use of the vessel for a specified time. The vessel owner retains primary possession and control. Although a time charterer does direct the destinations of the vessel, ³ he does not control the details of vessel operation required to reach those destinations. As a non-demise charterer, the time charterer is thus not liable for claims of negligence of the crew or for the unseaworthiness of the vessel. But the time charterer may be liable in that capacity for its own negligence. ⁴ A voyage charter is a contract to use a vessel for a specified voyage or series of voyages. ⁵ In the instant case, it is clear that Arco was a time charterer and neither a bareboat nor a voyage charterer. In addition, Arco is the owner/operator of both the platform from which Forrester embarked onto the crewboat and the dock onto which he disembarked from the vessel.

III ANALYSIS

A. Standard of Review

On appeal, Arco challenges both the district court's legal determination that it owed a duty to Forrester as a time charterer and the various factual findings supporting the finding of negligence. Forrester, in turn, challenges the district court's finding that he was contributorily negligent. Whether a time charterer owes a duty to a passenger/subcontractor is a question of law that we review de novo. The remaining factual issues are reviewed for clear error.

B. Theories of Recovery

In its opinion, the district court relied on two related theories of recovery: (1) the time charterer is liable for its negligence in conducting its own affairs as a time charterer and (2) Arco, as a time charterer, owed a duty of care to Forrester as its passenger. In his brief, Forrester adds that Arco, as owner/operator of both the platform and the dock, owed him a duty of safe ingress and egress to and from the vessel. We review each contention in turn.

1. District Court Opinion

The two theories of recovery relied on by the district court are interrelated. It is axiomatic that for a time charterer to be liable for its own negligence, it must first owe a duty of care. Here, the district court concluded that a duty of care was owed because of Forrester's status as a passenger. Undeniably, our case law establishes that:

In this circuit, the standard of care owed to passengers on a ship, including their embarkation and disembarkation, has variously been stated as a "high degree of care," as a "duty of ... ordinary care," "as a reasonably safe means" of boarding and leaving the vessel, as a duty of "reasonable care," and "as a duty of reasonable care under the circumstances." Despite the various formulas enunciated in these cases a review of the facts and the standards of care shows that shipowners, relatively speaking, are held to a high degree of care for the safety of passengers. ⁶

A review of the cases dealing with this standard of care, however, reveals that this duty is owed by the owner of the vessel, whether that be the actual owner or the owner pro hac vice. We find no case, and none has been cited to us, in which a time charterer is held liable for the safe embarkation or disembarkation of passengers, absent special circumstances.

Our decision in Moore v. Phillips Petroleum Co. ⁷ makes clear this distinction between a time charterer and a vessel owner. Although that case was decided in the context of the Longshore and Harbor Worker's Compensation Act, the reasoning is equally applicable to cases such as this, involving general maritime negligence principles. In Moore, we explained that the "traditional time-charterer duties" are limited to the vessel's commercial activities, such as designating the cargo and the routes and destinations, specifically noting that the vessel owner retains responsibility for providing "a reasonably safe means of access for those boarding or leaving the vessel." ⁸

Having reaffirmed that a time charterer does not owe a per se duty of safe access to a passenger, we next examine whether, under the instant circumstances Arco may have altered the traditional allocation of duties and assumed control of (and thus responsibility for) the disembarkment proceedings, as the district court found. ⁹ The district court stated, without explanation, that "[t]he evidence presented shows that the Arco Production Supervisor [Smith] was basically in charge of the disembarkation procedure and in charge of instructing his employees and sub-contractor passengers as to Arco's safety rules and regulations." The only evidence that Arco, through Smith, took control of the disembarkment proceedings Even accepting these facts as true, ¹⁰ we find them insufficient as a matter of law to show that Arco usurped the traditional control that is retained by the vessel's crew in a time charter situation. Smith's gesture to the passengers is at best minimal participation in disembarkment. Moreover, Arco's general safety instructions to its employees--instructions presumably given by most employers--does not by themselves prove that Arco exceeded its traditional role of time charterer. Consequently, Arco assumed no safe access duty to the vessel's passengers. It could not, therefore, be responsible for their injury in the process of disembarking.

and thereby exceeded its traditional time charter role, is that Smith motioned the passengers to the back of the ship and that, through employees like Smith, Arco customarily gave its employees and subcontractors general safety instruction. In addition, there is deposition testimony that Smith felt a personal obligation towards his men.

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