Hall v. Hvide Hull No. 3

• Decision Date: 15 November 1984
• Docket Number: Nos. 83-3471,83-3580 and 83-3607,s. 83-3471
• Citation: 746 F.2d 294
• Parties: , 53 USLW 2275 Mrs. Amy HALL, Widow of Jose R. Duncan, Individually and as Natural Tutrix of the Minors, Alan Renaldo Duncan and Cindy Winkleth Duncan, Plaintiff-Appellant, v. HVIDE HULL NO. 3 and Avondale Shipyards, Inc., Defendants-Appellees. Thanh H. DANG, Plaintiff-Appellant, Fidelity & Casualty Co., Intervenor-Appellant, v. AVONDALE SHIPYARDS, INC., et al., Defendants-Appellees. Joe ROSETTI, Plaintiff-Appellant, v. AVONDALE SHIPYARDS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 294

746 F.2d 294

1985 A.M.C. 1408, 53 USLW 2275

Mrs. Amy HALL, Widow of Jose R. Duncan, Individually and as

Natural Tutrix of the Minors, Alan Renaldo Duncan and Cindy Winkleth Duncan, Plaintiff-Appellant, v. HVIDE HULL NO. 3 and Avondale Shipyards, Inc., Defendants-Appellees.

Thanh H. DANG, Plaintiff-Appellant, Fidelity & Casualty Co., Intervenor-Appellant, v. AVONDALE SHIPYARDS, INC., et al., Defendants-Appellees.

Joe ROSETTI, Plaintiff-Appellant, v. AVONDALE SHIPYARDS, INC., Defendant-Appellee.

Nos. 83-3471, 83-3580 and 83-3607.

United States Court of Appeals, Fifth Circuit.

Nov. 15, 1984.

Greenberg & Dallam, Nathan Greenberg, Gretna, La., for plaintiff-appellant in No. 83-3471.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stewart E. Niles, Jr., Charles E. Leche, New Orleans, La., for defendants-appellees in No. 83-3471.

Amato & Creely, Gayle A. Reynolds, Gretna, La., for Dang.

Camp, Carmouche, Barsh, Hunter, Gray & Hoffman, George J. Nalley, Jr., New Orleans, La., for intervenor-appellant.

Adams & Reese, Robert E. Couhig, Jr., William B. Gaudet, New Orleans, La., for Avondale and El Paso.

Paul S. Minor, Biloxi, Miss., Judy M. Guice, Biloxi, Miss., for plaintiff-appellant in No. 83-3607.

Robert P. Hogan, Covington, La., Hailey, McNamara, Hall, Larmann & Papale, Nelson W. Wagar, III, H.D. McNamara, Jr., Metairie, La., for defendant-appellee.

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

Before RUBIN, REAVLEY, and TATE, Circuit Judges.

TATE, Circuit Judge:

The central issue in these three appeals ¹ is whether a hull, floating on navigable waters during shipbuilding construction, is a vessel for purposes of a tort action authorized by section 5(b), 33 U.S.C. Sec. 905(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901 et seq. (hereinafter, "Longshoremen's Act"). The district court said "no". We reverse, on the basis of our decision in Lundy v. Litton Systems, Inc., 624 F.2d 590 (5th Cir.1980), reh. denied, 629 F.2d 1349, cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). The panel agrees that we are bound by Lundy and that, under the law of the circuit, it must be followed in the absence of en banc overruling. However, the panel also notes that an issue of bancworthy dimension may be presented by the conflict between Lundy' § rationale and some expressions in our more recent jurisprudence that an injury to ship construction workers on board a vessel under construction, although on navigable waters, is not a maritime tort, since ship construction is not a maritime business. See, e.g., Lowe v. Ingalls Shipbuilding, A Division of Litton, 723 F.2d 1173, 1185, 1187 (5th Cir.1984). ²

The issues will be discussed as follows: I. The Lundy holding and its rationale; II. Federal admiralty jurisdiction of a Sec. 905(b) action for injuries upon a hull that is under construction and floating in navigable waters; and III. Facts and issues peculiar to each of the three appeals.

I. The Lundy holding and its rationale.

In each of the present three suits, an employee admittedly within the coverage of the Longshoremen's Act was injured or killed at work on a floating hull from, variously, 70-90% completed. In each suit, the employee or his survivors brought suit against the vessel or its owner to recover damage that allegedly resulted from the defendant's negligence.

The Longshoremen's Act, as amended in 1972, permits a person covered by the Act to recover tort damages for injuries resulting from the negligence of a vessel. 33 U.S.C. Sec. 905(b). ³ All parties concede that the employees in question were covered by the Act at the time of their injury or death. ⁴ The defendants dispute, however, that a "vessel" ⁵ was involved in the respective work accidents.

In Lundy v. Litton Systems, Inc., 624 F.2d 590 (5th Cir.1980), reh. denied, 629 F.2d 1349, cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981), the plaintiff, Lundy, a person covered by the Longshoremen's Act, fell through an escape hatch while working aboard the USS Hewitt. When the accident occurred, the USS Hewitt was 97% complete, was being prepared for sea trials, and had an assigned crew. Lundy sued his employer, as owner of the ship, for damages resulting from negligent injury under, inter alia, Sec. 905(b). The district court dismissed Lundy's claim, holding that an incomplete ship is not a vessel for purposes of Sec. 905(b). We reversed, holding

The definitional section of the LHWCA provides that "[t]he term 'vessel' means any vessel upon which or in connection with which a person entitled to benefits under this chapter suffers injury or death arising out of or in the course of his employment ..." 33 U.S.C.A. Sec. 902(21) (West 1978). Persons entitled to benefits under the LHWCA are "employees." See id Sec. 903(a). "The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker ...." Id. Sec. 902(3). We have previously held that "[s]hipbuilders who do the initial work to construct a vessel for launching are just as engaged in shipbuilding as those who are completing the task after something is finished which can be called a ship." Ingalls Shipbuilding Corp., Division of Litton Systems, Inc. v. Morgan, 551 F.2d 61 (5th Cir.1977). Thus, incomplete ships upon which 33 U.S.C. Sec. 902(3) employees are working at a site which [is within] the coverage of the Act, 33 U.S.C. Sec. 903, are vessels within the meaning of 33 U.S.C. Sec. 902(21). The USS Hewitt was thus moored to the statute.

624 F.2d at 592.

In the panel's view, the rationale and holding in Lundy represent controlling precedent in this circuit and require reversal of the summary judgments granted in the three appeals before us, insofar as they are based upon the district court's appreciation that the floating hulls in the three present cases could not be vessels because uncompleted. Lundy 's characterization of the hull in that case as a vessel for Sec. 905(b) purposes rested directly upon its holding that the incomplete ship afloat was a "vessel" within the statutory meaning of the Longshoremen's Act.

The application of Lundy to the present facts, thus, cannot be respectably distinguished, as argued, simply because the present floating hulls were only, respectively, 75-90%, 70%, and 80-85% complete, instead of, as in Lundy, 97% complete. The floating hulls in the present cases, equally to that in Lundy, were "capable of being used as a means of transportation on water", 1 U.S.C. Sec. 3, and were thus likewise "vessels" for the purposes of the Longshoremen's Act. Burks v. American River Transportation Company, 679 F.2d 69, 75 (5th Cir.1982).

Furthermore, to anticipate II infra, in Lundy the sole basis of federal jurisdiction asserted for this Sec. 905(b) action was the admiralty jurisdiction ⁶. The Lundy panel rejected (although without express comment) contentions of the defendant therein, similar to those that are presently advanced, that an action for negligent injury to a shipbuilding employee could not be brought in federal court against the uncompleted vessel within the ambit of Sec. 905(b) because the injury did not arise from a maritime tort. ⁷ Indeed, the Lundy defendant relied in part upon Hollister v. Luke Construction Company, 517 F.2d 920 (5th Cir.1975), the same decision relied on heavily by the present defendants, see II infra. Lundy 's application to the present facts, thus, cannot be distinguished on a jurisdictional basis either.

Lundy 's definition of a floating hull as a vessel for purposes of Sec. 905(b) is consistent with our decision in Burks v. American River Transportation Company, 679 F.2d 69 (5th Cir.1982) and with the definition of vessel in Title 1 (General Provisions), Chapter 1 (Rules of Construction), of the United States Code:

The word "vessel" includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

1 U.S.C. Sec. 3.

In Burks, supra, 679 F.2d at 75, we held that this code definition provides the meaning of vessel "as that term is used in the LHWCA [Longshoremen's and Harborworkers' Act]." That a waterborne structure is "capable of being used for transportation on water" (emphasis the court's) is, thus, the test. Id. In Burks, the court further indicated that a harbor worker on a vessel so defined would have a Sec. 905(b) negligence action for injury thereupon, 679 F.2d at 76 ⁸.

The Second Circuit, by a similar rationale, likewise recognized the principle that, for purposes of the Longshoremen's Act, a hull is a vessel if, even though not self-powered, it is capable of being towed on the water. In McCarthy v. The Bark Peking, 716 F.2d 130, 133-34 (2nd Cir.1983), cert. denied sub. nom. South Street Seaport Museum v. McCarthy, --- U.S. ----, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984), the issue was whether an employee covered by the Longshoremen's Act was injured as the result " 'of the negligence of a vessel ' within the meaning of Sec. 905(b)", 716 F.2d at 133 (emphasis added), and thus entitled to bring an action against the vessel under Sec. 905(b) for its negligent injury to the plaintiff employee. The ship on which the employee was injured was a floating museum vessel, which, rudderwelded, had not put to sea under its own power for half a century, and which was not susceptible to use as a self-navigating craft (although capable of being towed). The vessel defendants contended that the plaintiff employee could not avail himself of a Sec. 905(b) remedy because this ship allegedly could not be considered a vessel within the meaning of the Longshoremen's Act.

The Second Circuit rejected the defendant's contention. Relying on our decisions in Burk and Lundy, cited above, the Second Circuit...