Noble Drilling Corporation v. Smith

• Decision Date: 07 July 1969
• Docket Number: No. 25798.,25798.
• Citation: 412 F.2d 952
• Parties: NOBLE DRILLING CORPORATION, Appellant, v. Clyde J. SMITH, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

412 F.2d 952 (1969)

NOBLE DRILLING CORPORATION, Appellant, v. Clyde J. SMITH, Appellee.

No. 25798.

United States Court of Appeals Fifth Circuit.

June 2, 1969.

Rehearing Denied July 7, 1969.

George V. Baus, Adams & Reese, New Orleans, La., for appellant.

Harold J. Lamy, Dodd, Hirsch, Barker & Meunier, New Orleans, La., for appellee.

Before WISDOM, THORNBERRY and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

Science having sent the drilling for oil and gas out to sea, problems have arisen regarding the liability to amphibious workmen injured while performing duties relating to offshore drilling operations. The injured worker here was a mud pumper who was injured on an offshore drilling platform but who spent most of his working time aboard a tender servicing the platform. The question is whether this worker was a "seaman" or a "member of the crew" of a vessel within the contemplation of the Jones Act.¹ We hold that Clyde J. Smith, the injured pumper, was a Jones Act seaman and we affirm.

I.

Smith brought this suit against Noble Drilling Corporation, his employer, under the Jones Act and the General Maritime Law to recover damages and maintenance and cure for the injuries he received while working for Noble Drilling on a stationary drilling platform located in the Gulf of Mexico on July 15, 1963. The facts are not in dispute. Noble Drilling, pursuant to a contract with the California Oil Company, had undertaken to drill the well in question. Except for a small but essential mud pump located on a tender known as the S-25, which was owned and operated by California Oil, all of Noble Drilling's equipment was located on the platform on which Smith was injured.

Smith was hired to work on the drilling platform with one of the completion crews. However, because of his experience, Smith was assigned to operate the mud pump which was permanently affixed to the deck of the tender. He ate and slept aboard the S-25 which admittedly was a self-propelled "vessel." His duties required him to operate and repair the pump, to mix mud and to check the viscosity of the mud, all of which had to be performed aboard the tender. Smith, therefore, of necessity spent a substantial percentage of his working time on the tender. On the day of his injury Smith had worked aboard the tender from midnight until almost noon, and he had come up to the platform only a few minutes before his injury.

Upon these facts the jury found that Smith was a seaman and a member of the crew of the tender. It also found that Noble Drilling was negligent and that the damages sustained by Smith amounted to $30,000. The court then determined that Smith was entitled to maintenance and cure. Judgment was entered accordingly.

II.

On appeal the basic contention of Noble Drilling is that Smith was an oil field worker whose remedy is under the Longshoremen's and Harbor Workers' Compensation Act,² as extended by the Outer Continental Shelf Lands Act,³ rather than under the Jones Act. Noble Drilling contends that Smith does not have a right to damages under the Jones Act because he was not a "member of the crew" of any vessel even though technically he may have had the status of a seaman.

This argument ignores the origin and purpose of the term "member of the crew." This term does not appear in the provisions of the Jones Act, which speaks only of "any seaman who shall suffer personal injury in the course of his employment." Originally the word "seaman" was interpreted so broadly that it encompassed "stevedores employed in maritime work on navigable water" as their work "was a maritime service formerly rendered by the ship's crew." International Stevedoring Co. v. Haverty, 1926, 272 U.S. 50, 47 S.Ct. 19, 71 L. Ed. 157, 159. Subsequently and partly as a result of the Haverty decision, Congress passed the Longshoremen's and Harbor Workers' Compensation Act which covers all maritime workers except "masters or members of a crew of a vessel." Offshore Company v. Robison, 5 Cir. 1959, 266 F.2d 769, 774, 75 A.L.R.2d 1296. The Supreme Court then held that the purpose and effect of this enactment was to limit the benefits of the Jones Act to employees who are either masters or members of the crew of a vessel and whose injuries occur during the course of their employment. Swanson v. Marra Bros., Inc., 1946, 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045.

From this brief history of the term "member of the crew" it should be apparent that the term is used primarily to distinguish maritime workers whose presence aboard ship is transitory from those with a more permanent attachment to the vessel. Stevedores and offshore roughnecks who do no more than sleep and eat aboard a tender fall into the former category. Freeman v. Aetna Casualty & Surety Co., 5 Cir. 1968, 398 F.2d 808; Ross v. Delta Drilling Co., E.D.La.1962, 213 F.Supp. 270. The determination of which employees fall into the latter category presents a question of fact which is often difficult and which must be resolved on a case by case basis. Senko v. La Crosse Dredging Corp., 1957, 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed. 2d 404; Gianfala v. Texas Company, 1955, 350 U.S. 879, 76 S.Ct. 141, 100 L. Ed. 775, reversing Texas Company v. Gianfala, 5 Cir. 1955, 222 F.2d 382; Bodden v. Coordinated Caribbean Transport, 5 Cir. 1966, 369 F.2d 273.

Although in the historical sense the term "seaman" is broader than "member of the crew," the two terms have come to be used interchangeably as synonyms. "In the context used in this and similar cases involving the maritime amphibious worker on drilling craft offshore in the Gulf of Mexico, the difference between the two terms `seaman' and `member of the crew of any vessel' is so slight as to be virtually indiscernible and, for all practical purposes, may be disregarded." Boatel, Inc. v. Delamore, 5 Cir. 1967, 379 F.2d 850, 859. Accordingly, we have approved interrogatories which used the term "member of the crew" instead of "seaman." Offshore Company v. Robison, supra. Likewise it is proper for a district court to use "member of the crew" in instructing the jury as to what connection with a vessel a maritime worker must have in order to be a Jones Act seaman. Since the terms "seaman" and "member of the crew" have drowned in their own semantics, what is now decisive is the analysis of what constitutes a Jones Act seaman in the judge's instructions to the jury — how he resuscitates the deoxygenated terms by explaining the significance of the employee's water domicile, his commitment to the ship, and the locus of his labor.

Today, therefore, there is no practical difference between the terms "seaman" and "member of the crew," except in those cases where the maritime employee had only such transitory connections with the vessel that it could be said almost as a matter of law that he was not a crew member. Cf. Texas Company v. Savoie, 5 Cir. 1957, 240 F.2d 674, cert denied, 355 U.S. 840, 78 S.Ct. 49, 2 L.Ed.2d 51. Thus if there is an evidentiary basis for this status question to go to the jury, the distinction has lost all relevance. See, Hardaway Contracting Co. v. O'Keefe, 5 Cir. 1968, 414 F.2d 657.

For the standard to be used in determining whether there was a jury question with respect to Smith's maritime status, we refer to the words of Judge Wisdom in Offshore v. Robison, supra, 266 F.2d at 779-780:

"There is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.

* * * * * *

"Attempts to fix unvarying meanings have a firm legal significance to such terms as `seaman,\' `vessel,\' `member of a crew\' must come to grief on the facts. These terms have such a wide range of meaning, under the Jones Act as interpreted in the courts, that, except in rare cases, only a jury or trier of facts can determine their application in the circumstances of a particular case. Even where the facts are largely undisputed, the question at issue is not solely a question of law when, because of conflicting inferences that may lead to different conclusions among reasonable men, a trial judge cannot state an unvarying rule of law that fits the facts. The Jones Act cases involving coverage are similar in this respect to many negligence and contributory negligence cases.

"Under the Jones Act, judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether with reason, the conclusion may be drawn that the claimant was a seaman, a member of a crew of a vessel."

Applying this standard to the case sub judice, we find that "with reason, the conclusion may be drawn that Smith was a seaman member of the crew of a vessel." First, Smith was assigned to operate the mud pump which was permanently emplaced on the tender S-25, which undisputedly was a vessel, and he spent a substantial amount of his working time on the vessel. Second, his duties with respect to the mud pump directly contributed to the fulfillment of one of the primary functions of the tender S-25 — the pumping of mud and other fluids to the drilling platform for use there. There was, therefore, sufficient evidence to send the status question to the jury and to support the jury's finding that Smith was a Jones Act seaman. See, Producers Drilling Co. v. Gray, 5 Cir. 1966, 361 F.2d 432; Stanley v. Guy Scroggins Construction Co., 5 Cir. 1961, 297 F.2d 374; cf. Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir. 1960, 280...