Moore v. Phillips Petroleum Co.
| Decision Date | 21 September 1990 |
| Docket Number | No. 90-3065,90-3065 |
| Citation | 1991 A.M.C. 2855,912 F.2d 789 |
| Parties | Mack J. MOORE, Plaintiff-Appellant, v. PHILLIPS PETROLEUM COMPANY et al., Defendants, Odeco Oil & Gas Company, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Philip E. Henderson, Henderson, Hanemann & Morris, Houma, La., for plaintiff-appellant.
James H. Daigle, Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before CLARK, Chief Judge, GEE and DUHE, Circuit Judges.
The issue in this case is whether a time charterer may be liable to a passenger under section 5(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. Sec. 905(b), when (1) the time charterer has actual or constructive knowledge that its passenger's likely means of debarkation may be hazardous due to a latent dangerous condition at the point of debarkation, (2) the time charterer has no control over the condition in its capacity as a time charterer, and (3) the condition injures the debarking passenger. The district court granted defendant's motion for summary judgment and held that section 5(b) does not impose a duty of care on time charterers in this situation. We agree and affirm.
Appellant Mack J. Moore ("Moore") was a production worker employed by ODECO Oil and Gas Company ("ODECO"). ODECO and Phillips Petroleum Company owned an unmanned fixed platform, Well Jacket # 33, located on the Outer Continental Shelf off the coast of Louisiana. ODECO entered into a time-charter agreement for a vessel, the M/V C-DICTATOR, with the vessel owner, Co-Mar Offshore Marine Corporation ("Co-Mar"). ODECO was therefore both Moore's employer and the time charterer. ODECO directed the M/V C-DICTATOR to transport Moore to Well Jacket # 33 so that Moore could check safety systems on the platform. In order to get from the vessel to the platform, Moore swung from a rope attached to a beam extending out from the top deck of the platform. Such rope swing transfer is the means ordinarily used to board the platform from a vessel. When Moore used the rope to transfer from the vessel to the platform, the rope broke, and Moore fell onto the platform and sustained a serious shoulder injury.
ODECO paid Moore workers' compensation under LHWCA. Moore sued ODECO under section 5(b) of the LHWCA and alleged that ODECO knew that the swing rope was rotten. Although ODECO was his employer, Moore claims that ODECO owed him a duty of care under section 5(b) as time charterer of the M/V C-DICTATOR and that ODECO breached its duty by directing the vessel to transport Moore to a platform with a rope swing that ODECO knew was dangerous.
Because Well Jacket # 33 lies on the Outer Continental Shelf, the LHWCA applies to appellant's claim through the Outer Continental Shelf Lands Act, 43 U.S.C. Sec. 1331 et seq. Section 5(b) of the LHWCA provides: "In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person ... may bring an action against such vessel as a third party...." 33 U.S.C. Sec. 905(b). This Circuit has held that an injured worker has standing to bring a section 5(b) action against a time charterer who is also the worker's employer. Kerr-McGee Corp. v. Maju Marine Services, Inc., 830 F.2d 1332, 1338 (5th Cir.1987).
Standing, of course, is only the initial issue. In order to survive summary judgment, appellant must demonstrate that ODECO, as time charterer, owed him a duty of care under section 5(b). As we have previously noted, "a time-charterer cannot be liable under section 5(b) unless it is negligent, and it is a fundamental precept of tort law that there can be no negligence unless there is first a duty." Id. at 1340.
When the defendant is both the time charterer and the employer, section 5(b) only subjects the defendant to negligence liability in its capacity as a time charterer. See id. at 1339. The fact that the defendant is also the plaintiff's employer means that the defendant owes the plaintiff duties both as an employer and as a time charterer. The two duties are separately owed and do not affect each other. Thus, any duty that the defendant owes to the plaintiff as a time charterer and thus as a vessel under Sec. 905(b) must arise out of the relationship between a time charterer and its passenger. See id. The relevant inquiry in this case concerns the scope of ODECO's separate duties as the platform owner-employer and as time charterer.
The LHWCA provides that an employer, whether negligent or without fault, has a duty to pay workers' compensation to a covered employee. See 33 U.S.C. Sec. 903. When the LHWCA applies, workers' compensation is an employee's exclusive remedy against the employer in its capacity as an employer. See 33 U.S.C. Sec. 905(a). Thus, regardless of ODECO's negligence as platform owner and operator, Moore's exclusive remedy against ODECO as platform owner-employer is workers' compensation under the LHWCA. Moore concedes this much, but he argues that ODECO, as time charterer, breached duties owed to him as a passenger on the time-chartered vessel.
As to a time charterer's duties, the law of this Circuit is clear that "a time-charterer is not liable under section 5(b) unless the cause of the harm is within the charterer's traditional sphere of control and responsibility or has been transferred thereto by the clear language of the charter agreement." Kerr-McGee, 830 F.2d at 1343. The parties in this case have not demonstrated that their agreement altered the time charterer's traditional duties. We therefore examine ODECO's traditional time-charterer duties.
Under the traditional time-charter agreement, the time charterer directs the vessel's commercial activities. It may designate the cargo to be carried and determine the vessel's routes and destinations. See G. Gilmore & C. Black, The Law of Admiralty Sec. 4-1 at 194 (2d ed. 1975). We have therefore indicated that a time charterer might be liable for choosing an unsafe combination of cargo in the same hold. See Kerr-McGee, 830 F.2d at 1341. A time charterer may also be liable for directing the vessel to encounter natural conditions like hurricanes or treacherous seas. See, e.g., Graham v. Milky Way Barge, Inc., 824 F.2d 376, 388 (...
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