Parks v. Dowell Div. of Dow Chemical Corp.

• Decision Date: 15 August 1983
• Docket Number: No. 82-2213,82-2213
• Parties: Bill PARKS, Plaintiff-Appellee, v. DOWELL DIVISION OF DOW CHEMICAL CORPORATION and Reading and Bates Petroleum Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 154

712 F.2d 154

Bill PARKS, Plaintiff-Appellee, v. DOWELL DIVISION OF DOW CHEMICAL CORPORATION and Reading and Bates Petroleum Company, Defendants-Appellants.

No. 82-2213.

United States Court of Appeals Fifth Circuit.

Aug. 15, 1983.

John C. Marshall, Robert M. Roach, Jr., Houston, Tex., for defendants-appellants.

Russell H. McMains, Anthony F. Constant, Corpus Christi, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before INGRAHAM, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

A vessel owner and an offshore drilling contractor appeal from a money judgment entered after a bench trial finding them jointly and severally liable for injuries suffered by an employee of the well operator from a fire aboard a drilling tender. Reading and Bates Petroleum Company and Dowell Division of Dow Chemical Corp. urge that the judgment is flawed in (1) applying maritime law rather than Louisiana law; and in finding that: (2) Parks was a Robison seaman; (3) the tender was unseaworthy; (4) Everett, Dowell's employee, was negligent; (5) Parks was not negligent; (6) an indemnity provision in Parks's contract of employment was void; and finally (7) that the awarded damages are excessive. We affirm.

Bill Parks was injured while working on a drilling tender approximately 110 miles from the shore of Louisiana in the Gulf of Mexico. The drilling tender, the LEO M. CLARK, was owned by Reading and Bates, the drilling contractor, and had equipment on it supplied and operated by Dowell. Dowell had two men aboard primarily to assist in cementing operations. The tender's mission was to assist in the drilling of the well by supplying the means to carry on many of the operations necessary in the drilling, by providing a command center for the operations, by providing storage room for the equipment, and by providing a place for workers to eat and sleep. The well was being drilled from a platform resting on legs affixed to the ocean floor. At the time of the accident the drilling tender was anchored adjacent and was otherwise secured to the platform.

CNG was the well owner and Parks was CNG's "company man" on the job. He was paid by CNG to supervise the drilling operation. He was permanently assigned to the tender where he had his office and performed most of his duties. Parks received daily orders from CNG directing his activity. At the time of the accident Parks had sent test results to CNG and had been told by CNG to re-run a test to determine the oil-gas-water ratio of the well. Parks entered the Dowell room on the tender to direct a pumping operation to equalize the pressure above the ball valve in the well hole. Parks immediately noticed an unusual odor and a gurgling sound which he thought was coming from sour mud used in the pumping operation. Charles Everett, a Dowell employee, commented that the smell and the gurgling was caused by gas and Everett closed a bleed-off valve on the Dowell pump unit. The gurgling immediately stopped. Both men then agreed that escaping gas was the source of the odor and Parks instructed Everett not to smoke in the Dowell room.

The district court found that gas entered the Dowell room through the Dowell line because Everett did not close the bleed-off valve, and either someone aboard the platform opened the valves directly to the well or the valves to the well leaked. Parks had earlier instructed Everett to close the bleed- -off valve at the end of operations when pressure had been removed from the lines. Everett nonetheless "routinely left the bleed-off valve open anyway." Ventilation in the Dowell room was inadequate to remove the gas from the room. After Parks and Everett began the pumping operation, Everett attempted to light a cigarette. The flame from his lighter ignited the gas that had escaped into the room while the bleed-off valve was open and that the ventilation in the Dowell room was inadequate to remove. Parks and Everett were seriously burned from the resulting explosion.

Parks sued CNG, Dowell, and Reading and Bates under general maritime and Jones Act theories, but the Jones Act claim and a claim against another party were dropped shortly before trial. Applying general principles of admiralty law the trial court exonerated CNG but awarded Parks $240,000 for his lost wages, physical damage and pain against Reading and Bates, and Dowell, jointly and severally.

Maritime Jurisdiction

The wrong here occurred in a traditional maritime location and plainly had the requisite relationship to traditional maritime activity. Parks was on the high seas aboard a floating barge-like structure used for transporting and housing men and equipment on and over water. At the time of the accident the tender was anchored by the well site and was moved periodically to avoid particularly rough weather. Its function was to aid the discovery, recovery, and sale of oil and material gas from the sea bottom. We have found such activity to be maritime in character. Pippen v. Shell Oil Co., 661 F.2d 378, 384 (5th Cir.1981). The pumping operation underway when the accident occurred was crucial to the accomplishment of the vessel's maritime mission. There was here a sufficient relationship between the wrong and traditional maritime activity to warrant its exercise. We agree with the trial court's exercise of maritime jurisdiction and reject appellants' contrary suggestion.

OCSLA

Appellants argue that because the tender was anchored for extended periods adjacent to the platform and was used as its support vessel, it should be considered an extension of the drilling platform. The argument is driven by the rule that when the platform is fixed to the ocean floor a tort occurring aboard the platform is controlled by state rather than federal law. Rodrique v. Aetna Casualty and Surety Company, 395 U.S. 352, 353, 89 S.Ct. 1835, 1836, 23 L.Ed.2d 360 (1969). But we are not persuaded that the tender was here such an extension of the platform.

Rodrique applies to fixed platform workers and not to the workers on floating vessels that may service these platforms. We elaborated that distinction in Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1348 (5th Cir.1980). In Longmire we held that a worker was covered by the OCSLA and not by general admiralty law when he was based principally on the fixed platform and was incidentally assigned to the supporting tender anchored nearby. Nevertheless, we acknowledged that the tender was a vessel and that a claimant who performed a substantial part of his work aboard the tender would be a seaman and not subject to the OCSLA.

The OCSLA, 43 U.S.C.A. § 1333(b)(1), specifically excludes workers qualifying as a "master or member of a crew of a vessel." The term "seaman" and the phrase "master or member of the crew of a vessel" have, as this court has noted on several occasions, come to be used interchangeably. As we noted in Longmire:

The OCSLA covers fixed platform workers, while floating rig workers, even those whose tasks are essentially identical to the tasks performed by fixed platform workers, are treated differently. The reason for the different treatment of fixed and floating rig workers is that floating rigs are treated like vessels while fixed platforms are considered "artificial islands."

610 F.2d at 1348 (footnote omitted). See also McDermott v. Boudreaux, 679 F.2d 452 (5th Cir.1982) (Jones Act "seaman" and a "crew member" excluded from the Longshoremen's Act are one and the same).

The Robison seaman test is:

(1) [whether] 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) [whether] 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.

Offshore Company v. Robison, 266 F.2d 769-79 (5th Cir.1959).

Parks meets the Robison test. The tender was a vessel designed to float on water. Parks was permanently assigned to the vessel at the time of the accident. He performed almost all of his work on the vessel. He was in charge of insuring that the vessel's missions were accomplished. In fact, he was injured while taking part in and as a result of an operation essential to the mission of the vessel. The trial court correctly found that Parks was a seaman.

Seaworthiness

Applying general maritime law, the trial court found Reading and Bates, as owner of the vessel, liable for Parks's damages under the doctrine of unseaworthiness, by which a vessel owner has an absolute duty to furnish a vessel reasonably fit for its intended purpose. Smith v. Ithaca Corp., 612 F.2d 215, 219 (5th Cir.1980). Appellants attack the trial court's finding that the ventilation on the tender was inadequate to remove the gas from the Dowell room, thereby rendering it unfit for its intended purposes and in part causing Parks's injury.

We review the finding of unseaworthiness by the clearly erroneous standard. Smith v. Ithaca Corp., 612 F.2d at 217. Everett admitted that the ventilation in the Dowell room was poor and that the ventilation fans were never running. The several minute lag between the time the leak was sealed off and the time the explosion occurred is evidence of inadequate ventilation. The evidence is thin but it was sufficient to support the trial court's conclusion.

Everett's Negligence

Appellants also urge that the trial court erred in finding that Dowell employee Everett was negligent. Negligence is of course a question of fact measured by the clearly erroneous standard. Parks testified that he had told Everett to close the bleed-off valve, which allowed the gas to enter the Dowell room,...