Moser v. Aminoil, USA, Inc.

• Decision Date: 22 August 1985
• Docket Number: Civ. A. No. 83-0284.
• Citation: 618 F. Supp. 774
• Court: U.S. District Court — Western District of Louisiana
• Parties: Roger MOSER v. AMINOIL, U.S.A., INC., et al.

618 F. Supp. 774

Roger MOSER v. AMINOIL, U.S.A., INC., et al.

Civ. A. No. 83-0284.

United States District Court, W.D. Louisiana, Lake Charles Division.

August 22, 1985.

COPYRIGHT MATERIAL OMITTED

Lucius A. Hornsby, Jr., Hornsby & Landry, Lafayette, La., for plaintiff, Moser.

David A. Hurlburt, Hurlburt & Privat, Lafayette, La., for Aminoil, U.S.A., Inc.

James E. Williams, Earl G. Pitre, Woodley, Barnett, Williams, Fenet & Palmer, Lake Charles, La., for Sweco, Inc., Liberty Mut. Ins. Co.

RULING

VERON, District Judge.

This matter comes before the Court on (1) the motion of defendant Sweco, Inc. for summary judgment in its favor dismissing the demands against it by plaintiff Roger Moser, (2) the motion of defendant Aminoil, U.S.A., Inc. for summary judgment in its favor dismissing the demands against it by Moser, and (3) the motion of Sweco, as cross-defendant, and third-party defendant Liberty Mutual Insurance Company for summary judgment in their favor dismissing the cross-claim of Aminoil for contractual indemnity and its third-party demand for recognition as an additional insured under Sweco's policy with Liberty Mutual. At the conclusion of oral argument on these motions the Court granted Sweco's and Aminoil's motions for summary judgment on Moser's claims and took the motions by Sweco and Liberty Mutual under advisement. As this order did not adjudicate all of the claims as to all parties in this action, it did not terminate the action as to any party and is subject to revision at this time. Fed.Rule Civ.Pro. 54(b). The review of the motion under advisement has required a review and reexamination of the other motions filed and, accordingly, the Court now VACATES those prior rulings on a sua sponte motion for reconsideration. The Court will now rule anew on a clean slate.

Moser's complaint alleges that he was injured on February 9, 1982 while being transported in a personnel basket from a fixed platform located fifty miles off the Louisiana coast, the East Cameron 195, Well No. A7, to a vessel, the Glomar Tender No. 2. Moser seeks relief from Sweco under the Jones Act. He seeks relief from Aminoil on the alternative theories (1) that Aminoil was responsible for the alleged negligence of the vessel under Aminoil's control as charterer, owner and operator, and, (2) that Aminoil was responsible as platform owner for alleged negligence in the operation of the platform. Moser also seeks relief from Global Marine Drilling Company in its alleged capacity as owner of the vessel. Aminoil has cross-claimed against Sweco for contractual indemnity and has third-partied Liberty Mutual for recognition as an additional insured in a Sweco policy with Liberty Mutual.

I. ISSUES

The various motions before the Court raise the following issues:

(1) Whether the plaintiff is a member of the crew of the Glomar Tender No. 2;

(2) Whether Aminoil is entitled to tort immunity under section 5(a) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(a), as to the plaintiff's claims; and

(3) If Aminoil is not entitled to such immunity, whether Aminoil's contractual indemnity claim is barred by the Louisiana Oilfield Anti-Indemnity Act, La.R.S. 9:2780.

The Court will now consider each of these issues in turn.

II. SEAMAN'S STATUS

Sweco urges that Moser's Jones Act claim must be dismissed because he does not qualify as a seaman. Moser contends that, had he continued working in 1982, he would have been permanently assigned to the Glomar Tender No. 2. The uncontroverted deposition testimony does not bear out Moser's contention and instead confirms Sweco's argument that Moser was not a seaman at the time of his injury.

The record establishes the following facts for the purposes of this motion. Sweco rents and sells solids control equipment for use in the oil industry. Solids control equipment separates certain solids from drilling fluid for reuse. At the time of his injury, Moser had been employed for six or seven months as a service representative for Sweco. A service representative is responsible for the installation, upkeep and repair of equipment rented by Sweco. In the course of this employment, Moser would go out on calls to inland and offshore rigs to either install equipment or to trouble-shoot problems with previously-rented equipment. He worked indiscriminately on land-based rigs, fixed offshore platforms, and special purpose drilling vessels, depending upon the needs of Sweco's various customers. If he installed a particular piece of equipment, he would service that item on an as-called basis unless and until the rig was moved out of Moser's territory. Yet Moser would stay at the job site only long enough to complete the job in question, subject to the usual delays occasioned by weather, transportation, and other operations on the rig in question.

In February 1982, Moser was sent out to the East Cameron 195 Well No. A7 platform to install a mud cleaner and an electric pump skid. This platform was a fixed platform situated on the Outer Continental Shelf approximately fifty miles off the coast of Louisiana. The drilling crew ate and slept aboard a tender anchored adjacent to the platform, the Glomar Tender No. 2. When Moser and his assistant arrived, they had to wait eight to ten hours on the tender while the rig was being "skidded over" on the platform—an operation whereby the rig is moved from one well site on the platform to another well site on the same platform. After this wait, Moser and his assistant went onto the rig and installed the Sweco equipment. Upon completion of the job, Moser proceeded to return to the tender by way of a steep stairway that was hinged to the platform and which was lowered toward the deck of the tender. Moser allegedly was injured during this descent. Shortly thereafter, a helicopter arrived as scheduled to transport Moser and his assistant back shoreside.

Nothing in the record in any way intimates that the Glomar Tender No. 2 was to be Moser's base of operations for his offshore work with Sweco. The Glomar Tender No. 2 was not a special purpose vessel used by Sweco in order to transport and serve as a base of operations for its service representatives. Rather, the vessel was used by Sweco's customer, Aminoil, to quarter the drilling crew for the fixed platform. The vessel was anchored securely by that platform. Under these circumstances, it would not have made any difference if Moser had lived continuously on the tender while performing his servicing duties on the platform. Eating and sleeping aboard a tender associated with a fixed platform does not confer seaman's status on workers engaged in platform-related activities on the platform. Keener v. Transworld Drilling Co., 468 F.2d 729, 731 (5th Cir.1972); see also Munguia v. Chevron Company, U.S.A., 768 F.2d 649 (5th Cir.1985) (a roving "jack of all trades" roustabout who used various small vessels as transportation to and from his work on various fixed platforms did not qualify as a seaman because his primary duties involved platform work); Poole v. Marlin Drilling Co., 592 F.Supp. 60 (W.D.La.1984) (a roughneck on a fixed platform did not become a seaman while eating and sleeping on an associated vessel during the dismantling and transportation of the rig to another platform). Thus, the Court holds that Moser does not qualify as a seaman.

III. TORT IMMUNITY

In seeking to have Moser's claim against it dismissed, Aminoil contends that it is entitled to tort immunity under section 4(a) of the LHWCA because Sweco has secured the payment of compensation benefits for its employees, including Moser. Aminoil relies on Washington Metropolitan Area Transit Authority v. Johnson, 467 U.S. 925, 104 S.Ct. 2827, 81 L.Ed.2d 768 (1984), and Doucet v. Atlantic Richfield Co., No. 83-0351, (W.D.La., July 27, 1984), the latter of which directly supports its position and which is reprinted as an appendix in Aucoin v. Pelham Marine, Inc., 593 F.Supp. 770, 777-78 (W.D.La. 1984). At the time that Aminoil filed its motion, the decisions in Washington Metropolitan and Doucet constituted the only law on the subject. Congress has subsequently amended the LHWCA to the effect that the securing of compensation benefits by the subcontractor does not entitle the contractor to immunity from tort claims by the subcontractors employees. See generally Maraist, Developments in the Law, 1983-84—Admiralty, 45 La.L.Rev. 179, 191-92 & n. 82 (1984). The Fifth Circuit has held that this amendment applies retroactively to all claims, such as this one, that were pending as of the enactment of the amendment. Weathersby v. Conoco Oil Co., 752 F.2d 953, 958 (5th Cir.1984); Martin v. Ingalls Shipbuilding, Division of Litton Systems, Inc., 746 F.2d 231, 232 (5th Cir.1984). A panel of the court accordingly has reversed the district court's decision in Doucet. Doucet v. Atlantic Richfield Co., 753 F.2d 1074 (5th Cir.1985). The Fifth Circuit has also held that the retroactive application of this amendment is constitutional. Louviere v. Marathon Oil Co., 755 F.2d 428, 430 (5th Cir.1985). Thus, Aminoil has no claim to immunity under the Longshoremen's Act from Moser's tort suit.

IV. LOUISIANA OILFIELD ANTI-INDEMNITY ACT

Sweco and Liberty Mutual contend that Aminoil's claims pursuant to the indemnity and insurance provisions in a master service agreement between Sweco and Aminoil are barred by the Louisiana Oilfield Anti-Indemnity Act, La.R.S. 9:2780. Section 2780 renders indemnity agreements in oil-field contracts void to the extent that they provide for defense and indemnification based on the indemnitee's sole or concurrent fault. Aminoil urges in response (1) that the Act is inconsistent with federal law and therefore inapplicable on the Outer Continental Shelf under 43 U.S.C. § 1333(a)(2)(A), (2) that the Act cannot be retroactively applied to this master service agreement, which was entered into prior to its effective date, and (3) that, if applicable, ...