McDermott, Inc. v. Boudreaux, 81-4309

• Decision Date: 28 June 1982
• Docket Number: No. 81-4309,81-4309
• Citation: 679 F.2d 452
• Parties: McDERMOTT, INCORPORATED, (Formerly J. Ray McDermott & Co., Inc.), Petitioner, v. Irene BOUDREAUX and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 452

679 F.2d 452

McDERMOTT, INCORPORATED, (Formerly J. Ray McDermott & Co., Inc.), Petitioner, v. Irene BOUDREAUX and Director, Office of Workers'

Compensation Programs, United States Department of

Labor, Respondents.

No. 81-4309.

United States Court of Appeals, Fifth Circuit.

June 28, 1982.

Joseph W. Looney, John T. Nesser, III, Louis Simon, II, New Orleans, La., for petitioner.

Charles R. Ryan, Houma, La., Joshua T. Gillelan, II, Washington, D. C., for respondents.

Petition for Review of An Order of the Benefits Review Board.

Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Once again, we confront the troublesome task of determining whether a deceased maritime employee was a "member of a crew of any vessel" and is, therefore, excluded from coverage under the Longshoremen's and Harbor Workers' Compensation Act (Longshoremen's Act), 33 U.S.C. § 903. The Administrative Law Judge (ALJ) below, in a decision upheld by the Benefits Review Board, found that pipeline welder Clovis Boudreaux was not a crew member of a pipelaying barge because he was not aboard the vessel "primarily to aid navigation." We hold that the ALJ and the Board failed to apply the legal standard used in this circuit to determine crew member's status. We further hold that the undisputed ¹ factfindings of the ALJ, measured against the correct standard, require our conclusion that Boudreaux was, as a matter of law, a crew member of the barge on which he died. Consequently, we set aside the administrative order affording Boudreaux coverage under the Longshoremen's Act.

I. The Facts

Boudreaux worked for McDermott as a pipeline welder for approximately nine years prior to his death in 1976. Although Boudreaux occasionally worked on one of McDermott's onshore operations during a lull in offshore activity, his principal employment during those ten years was as a pipe welder on several of McDermott's offshore pipelaying barges. As their job title suggests, pipeline welders construct the pipelines that connect offshore wells with onshore distribution facilities. They are essential to the mission of the specially-designed pipelaying barges.

Boudreaux spent part of the summer of 1975, approximately one year before his death, working onshore constructing an aerial crossing (an elevated pipeline) at Whiskey Bay, Louisiana. After working offshore during the fall, he took an optional winter layoff from December 12, 1975 until March 23, 1976. He then reported to work at Bayou Boeuf, Louisiana, and assisted in repairs on board McDermott's Lay Barge 23. The barge, which had suffered ordinary wear and tear during recent operations in the North Sea, was moored afloat in a slip at McDermott's yard. By June, the repairs were nearing completion and Boudreaux was scheduled to begin work on another barge offshore. Since he had not welded any pipe offshore during the first six months of 1976, however, Boudreaux had to qualify in a welding test on June 16. Two days after passing the test, he collapsed and died of a heart attack while completing his job aboard the moored barge.

Boudreaux' widow filed a claim for benefits under the Longshoremen's Act on March 2, 1977. McDermott contested the claim, arguing that Boudreaux had been a "member of the crew" of McDermott's pipelaying barge fleet and, consequently, did not qualify as an "employee" under the Longshoremen's Act. ² McDermott also contended that Boudreaux had died from cardiac arrythmia induced by arteriosclerosis rather than from any work-related condition. The ALJ heard the case on May 10, 1979. On August 1, the ALJ awarded the benefits to Mrs. Boudreaux, holding that Boudreaux had been an employee covered by the Longshoremen's Act and that his job had at least contributed to his heart failure. McDermott filed a timely appeal with the Benefits Review Board, but the Board upheld the ALJ on both issues. ³ Pursuant to section 21(c) of the Longshoremen's Act, 33 U.S.C. § 921(c), McDermott has appealed the Board's decision to this court.

II. The Original Test of Crew Members' Status

As McDermott points out, the ALJ and the Benefits Review Board held the following test to be appropriate for use in determining "crew member" status under the Longshoremen's Act: whether (1) there is a vessel in navigation; (2) the worker has a more or less permanent connection with the vessel; and (3) the worker is on board the vessel primarily to aid in navigation. This frequently cited "three-prong" test apparently was first distilled from earlier caselaw in Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383, 388 (6th Cir. 1953), cert. denied, 346 U.S. 817, 74 S.Ct. 29, 98 L.Ed. 344 (1953). The Wilkes court fashioned the test as a means of determining whether the decedents of two plaintiffs could qualify as "seamen" under the Jones Act, 46 U.S.C. § 688. However, in describing the issue presented as "whether these cases are governed by the Longshoremen's and Harborworkers' Act ... or by the Jones Act," the court implicitly recognized that the same test necessarily identifies a seaman covered by the Jones Act and a crew member not covered by the Longshoremen's Act. This court has concluded "that the same test is to be applied to ascertaining whether a person is a 'seaman' for purposes of Jones Act jurisdiction, or is 'a member of a crew of a vessel' for the purpose of (denying) Longshoremen's Act jurisdiction...." Hardaway Contracting Co. v. O'Keeffe, 414 F.2d 657, 659-60 (5th Cir. 1968) (citing Boatel, Inc. v. Delamore, 379 F.2d 850, 859 (5th Cir. 1967)). See also Travelers Insurance Co. v. Belair, 412 F.2d 297, 302 (1st Cir. 1969) (" 'Seaman,' as used in the Jones Act and 'members of the crew' as excluded from the Longshoremen's Act, are equivalent terms.")

This court first adopted the tripartite standard in McKie v. Diamond Marine Co., 204 F.2d 132, 136 (5th Cir. 1953), and most of the federal circuits who regularly hear maritime actions have used some form of the test. See, e.g., Salgado v. M. J. Rudolph Corp., 514 F.2d 750, 754 (2d Cir. 1975); Griffith v. Wheeling Pittsburg Steel Corp., 521 F.2d 31, 36 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976); Whittington v. Sewer Construction Co., 541 F.2d 427, 436 (4th Cir. 1976); Bullis v. Twentieth Century-Fox Film Corp., 474 F.2d 392, 393 (9th Cir. 1973). Not surprisingly, however, each prong of the test has generated its share of interpretative controversy.

Courts have held, for example, that the "vessel in navigation" element does not require the vessel to have been in actual operation at the moment of the injury or death in question. "Case law indicates that a vessel is 'in navigation' although moored to a pier, in a repair yard for periodic repairs, or while temporarily attached to some object." Griffith, supra, 521 F.2d at 37 (citing 2 M. Norris, The Law of Seamen § 668, at 301-02 (3d ed. 1970); see also 1 Benedict on Admiralty § 11a, at 2-7 (7th ed. 1981). In Doucet v. Wheless Drilling Co., 467 F.2d 336 (5th Cir. 1972), this court held that a semisubmersible drilling barge temporarily moored for repairs remained a vessel in navigation. See also Rogers v. United States, 452 F.2d 1149, 1152 (5th Cir. 1971) (missile tracking ship tied to pier for repairs "in navigation"); Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 275 (5th Cir. 1966) (freighter in dry dock for repairs still in navigation). ⁴ Thus, the facts in the case before us amply justified that ALJ's findings that McDermott's Lay Barge 23, which remained afloat and under its owner's control throughout the repair period, was a vessel in navigation.

Similarly, the facts developed at the hearing below support the finding that Boudreaux had a more or less permanent connection with the fleet of barges. The testimony showed that Boudreaux had worked on the repairs aboard Lay Barge 23 from the time he returned from his layoff in March to the time of his death. Moreover, Boudreaux had spent most of his time with McDermott as a welder attached to the company's fleet of pipeline barges and was scheduled to return to sea on Lay Barge 21 when he died. "(I)t is well established that one need not be indefinitely and invariably assigned to one vessel in order to achieve the 'permanent' connection required by this prong of the ... analysis. The permanency requirement may be satisfied by assignment to a specific fleet of vessels." Ardoin v. J. Ray McDermott & Co., 641 F.2d 277, 281 (5th Cir. 1981) (citations omitted).

The controversy in our case, then, centers on the third prong of the McKie standard, which requires that the worker be aboard primarily to aid in navigation. The ALJ who heard the case observed that Boudreaux had spent only three and one-half months of the year prior to his death working offshore; he had spent the remainder of his time (discounting, presumably, the winter layoff) repairing the moored barge. "However, assuming, arguendo that decedent spent twelve months as a pipeline welder," the ALJ continued, "his primary duties then were to fit and weld pipeline extending from oil wells to oil distribution facilities." The ALJ found that these duties did not "primarily aid in navigation" and that Boudreaux was not, therefore, a crew member excluded from coverage under the Longshoremen's Act.

In affirming this construction of the "aid in navigation" prong, the Benefits Review Board added that Boudreaux had been engaged in ship repair work for two months prior to his death, had received lower pay for this work than for his usual offshore duties, had been living ashore, and had not been "engaged in oil pipeline welding, the special function of the vessel." Thus, the Board concluded that "(d)ecedent was clearly a 'shiprepairman' in employer's yard from March 23, 1976, until his death on June 18, 1976."

We are forced to conclude that these holdings represent a fundamental misunderstanding of the legal...