Hicks v. Ocean Drilling & Exploration Co., 73-2169

• Decision Date: 07 May 1975
• Docket Number: No. 73-2169,73-2169
• Parties: Clyde E. HICKS, Plaintiff-Appellee, v. OCEAN DRILLING AND EXPLORATION COMPANY, Defendant-Third Party Plaintiff- Appellant-Appellee, H. B. BUSTER HUGHES, INC., Third Party Defendant-Appellant. Hester GOFORTH, Plaintiff-Appellee, v. OCEAN DRILLING AND EXPLORATION CO., et al., Defendants-Appellants-Appellees, H. B. Buster Hughes, Inc., Defendant-Appellant. Charles Norman GLOVER, Plaintiff-Appellees, v. OCEAN DRILLING EXPLORATION CO., et al., Defendants-Appellants-Appellees, H. B. Buster Hughes, Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 817

512 F.2d 817

Clyde E. HICKS, Plaintiff-Appellee, v. OCEAN DRILLING AND EXPLORATION COMPANY, Defendant-Third

Party Plaintiff- Appellant-Appellee,

H. B. BUSTER HUGHES, INC., Third Party Defendant-Appellant.

Hester GOFORTH, Plaintiff-Appellee, v. OCEAN DRILLING AND EXPLORATION CO., et al.,

Defendants-Appellants-Appellees,

H. B. Buster Hughes, Inc., Defendant-Appellant.

Charles Norman GLOVER, Plaintiff-Appellees, v. OCEAN DRILLING EXPLORATION CO., et al.,

Defendants-Appellants-Appellees,

H. B. Buster Hughes, Inc., Defendant-Appellant.

No. 73-2169.

United States Court of Appeals,

Fifth Circuit.

May 7, 1975.

Rehearing Denied June 4, 1975.

Chester Francipane, Wayne H. Scheuermann, Metairie, La., for Buster hughes.

James F. Holmes, New Orleans, La., for Ocean Drilling.

Arthur F. Dumaine, John M. Lawrence, New Orleans, La., Salvador E. Gutierrez, Jr., Arabi, La., for Clyde Hicks.

A. Remy Fransen, Jr., New Orleans, La., for Hester Goforth and Charles Glover.

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

Before JONES, THORNBERRY and COLEMAN, Circuit Judges.

JONES, Circuit Judge:

A New Orleans shipbuilder, Higgins, Inc., constructed at its shipyard on the Industrial Canal in that city, for Ocean Drilling and Exploration Company, herein called ODECO, a submersible oil storage facility which became known as the Round Barge. This facility is made up of a superstructure two hundred feet in length and fifty-four feet in width constructed approximately forty feet above cylindrical storage tanks fourteen and one-half feet in diameter. Two of the tanks run the entire length of the superstructure. These are connected to four storage tanks evenly spaced and running the width of the superstructure. This rectangular assemblage of tanks forms the lower structure of the Round Barge. There is a continuous fin or skirt five feet in height around the entire underside of the cylindrical storage tanks, specifically designed to sink the structure in a vertical position in the mud floor of the Gulf of Mexico and to hold the facility in a stationary position. The fin was attached to the outer tanks.

The Round Barge was towed from the shipyard where it was constructed to the site in the Gulf where it was then to be used. It was lowered by flooding the tank at one end of the Barge with water. When it had come to rest on the bottom, the tank on the other end was filled and it descended to the floor of the Gulf. In addition to the fin, about half of each of the tanks sank into the mud or silt on the bottom of the Gulf. The two tanks across the ends of the Round Barge usually contained water ballast. Sometimes other tanks contained water but those were more often used for the storage of oil. Rock ballast was also used to keep the facility at the bottom of the Gulf.

The Round Barge was attached to a header platform constructed on conventional pilings. Pipelines from producing wells were connected to the header platform, which was connected to the Round Barge by flowlines and a catwalk. By this method oil reached the storage tanks. The facility was equipped with a galley and quarters for the crew.

Although ODECO claimed, at the trial, that the Round Barge was designed for the place where it was located, it was designed and constructed so that it could be raised for scraping and repair, and could be moved to another site for storage of oil. Consideration had been given to moving it to a different location in the Gulf. The refloating of the facility would be accomplished by disconnecting the catwalk, flowlines and the like from the header platform and then reversing the installation process by pumping out the water ballast, causing the structure to float.

H. B. Buster Hughes, Inc., one of the appellants, is an oilfield contractor. It supplied a labor crew to ODECO for the Round Barge under a master service contract. Clyde E. Hicks, Charles Norman Glover and Hester Goforth, who were plaintiffs in the district court and are appellees in this Court, were members of the crew furnished by Hughes to ODECO. All of their work was done on the Round Barge or on other ODECO facilities. Glover was a cook's helper, Hicks was a roustabout and Goforth was a welder.

Hicks testified that he was paid and employed by Hughes. His immediate superior was a Hughes toolpusher named Shepherd. Hicks usually got his orders from Shepherd, or from Punch, a Hughes Supervisor or Superintendent. Shepherd and Punch received their orders from an ODECO Field Superintendent named Aucoin. When asked if he was permitted to refuse to do what Aucoin told him to do, Hicks stated that he was permitted to quit. He further testified that Shepherd and Punch helped with the work, rather than merely coming by to check on him from time to time.

Goforth testified that he was employed and paid by Hughes. Goforth said that he usually got his orders from Aucoin, even though Punch was present. He was asked if this was not "just because he knew you", and gave the ambiguous response that "yes sir, because I had worked with him so long and for what reason, I couldn't answer that." Goforth related that on one occasion Aucoin had discharged an employee who was on the Hughes payroll. He stated that Aucoin had sometimes countermanded orders given by Punch. Goforth never asked Punch whether he should take orders from anyone else because he knew that Aucoin was "strictly boss over the whole works."

Glover took his instructions directly from a cook who was an ODECO employee.

On the night of April 25, 1971, Larry Braud, the head gauger on the Round Barge and an employee of ODECO, had pumped oil from storage tanks into a tanker. This operation was completed at about 3 A.M. Braud, pursuant to instructions from an ODECO supervisor, put into operation the pumps for removing the salt water ballast from the center line tanks.

About six ¹ in the morning of April 26, 1971, the incident occurred from which this litigation arose. Glover had been working. Hicks and Goforth were earning time. The removal of the ballast caused the Round Barge to shake, tilt and to refloat on one side.

Hicks, Goforth and Glover were injured. They brought separate actions under the Jones Act ² against ODECO. Each alleged the unseaworthiness of the platform and asserted Maritime Tort claims against ODECO as separate causes of action. Goforth and Glover named H. B. Buster Hughes, Inc. as an original defendant to their Jones Act claims and also sought recovery against ODECO on the basis of Article 2315 of the Louisiana Civil Code which requires one whose fault causes damage to another to repair it. ODECO filed cross claims and a third-party action against Hughes seeking indemnity under the service contract. The three actions were consolidated and tried before a jury. ODECO's indemnity claims against Hughes were reserved for decision by the district judge. Considerable testimony was taken at the trial of the consolidated actions. Much of it was directed to the issues of whether the Round Barge was a vessel and whether the plaintiffs were borrowed servants of ODECO.

At the conclusions of the testimony before the jury, Goforth and Glover dismissed their claims against Hughes.

In addition to giving the conventional jury instructions on burden of proof, negligence, causation and damages, the court gave charges on the tests for determining, among other things, whether a structure or facility is a vessel, whether employees are borrowed servants, whether the plaintiffs were members of the crew of the Round Barge, and for ascertaining whether a vessel is or is not seaworthy.

As to the test for determining whether the Round Barge was a vessel the district court said:

"The primary meaning of the term "vessel," is any water craft or other contrivance used or capable of being used as a means of transportation on water. The term "vessel," may also include, however, various special purpose crafts, such as barges or dredges, which do not operate as a vessel for transportation, but, rather serve as moveable floating bases that may be submerged, so as to rest on the bottom and be used for stationary operations, such as drilling or dredging. Now, although mere flotation may not in and of itself be sufficient to make a structure a vessel, if a structure is buoyant and capable of being floated from one location to another, it may be found to be a vessel, even though it may have remained in one place for a long time and even though there are no plans to move it in the foreseeable future. Now, in considering whether a special purpose craft is a vessel, the determinative factors are the purposes for which the craft was constructed and the business, in which it is engaged. That is, was the craft designed for and used in navigation or commerce? A craft not designed for navigation and commerce, however, may be classified as a vessel, if at the time of the accident, it had actually been engaged in navigation or commerce. Now, in considering whether a special purpose craft is a vessel, the manner, in which a party or parties may have referred to or denominated such craft in contracts or other documents is not necessarily determinative of its status as a vessel, but is simply a factor for you to consider along with all the other evidence."

The borrowed servant doctrine, as here applicable, was thus stated by the district court in its charge to the jury:

"Now, the various criteria have been considered in determining when the doctrine of borrowed servant is applicable. While no one of these factors or any combination of them is decisive and no fixed test is used to determine the existence of a borrowed servant relationship, certain guidelines have been given great weight. The most universally accepted standard for determining whether a person is a borrowed servant is to ascertain who controls him in that employment and who has the power and the right to control and direct him in the performance of...