Percle v. Western Geophysical Co. of America

• Decision Date: 12 November 1981
• Docket Number: Civ. A. No. 79-3136.
• Citation: 528 F. Supp. 227
• Parties: Hubert J. PERCLE and Louis J. PERCLE as Administrator of Hubert J. Percle's Estate, Plaintiffs, v. WESTERN GEOPHYSICAL COMPANY OF AMERICA, Hosking Exploration of Salt Lake City, Utah, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

528 F. Supp. 227

Hubert J. PERCLE and Louis J. PERCLE as Administrator of Hubert J. Percle's Estate, Plaintiffs, v. WESTERN GEOPHYSICAL COMPANY OF AMERICA, Hosking Exploration of Salt Lake City, Utah, Defendants.

Civ. A. No. 79-3136.

United States District Court, E. D. Louisiana.

November 12, 1981.

James M. Boone, Folsom, La., for plaintiffs. Eugene Jericho and Robert Leake, for defendant Hosking Exploration of Salt Lake City, Utah.

Ashton R. O'Dwyer, Jr., and Miles P. Clements, New Orleans, for defendant Western Geophysical Co. of America.

CASSIBRY, District Judge:

Plaintiffs are seeking to recover damages under the Jones Act and the seaworthiness doctrine of the general maritime law for the death of Hubert J. Percle. The case was tried before the court without a jury. The court having considered the pleadings, the testimony of the witnesses, the documents in evidence and the posttrial submissions of counsel hereby makes the following findings of fact and conclusions of law, as required by Rule 52, Federal Rules of Civil Procedure.

FINDINGS OF FACT

1. The plaintiffs are Mr. and Mrs. Louis J. Percle, parents of the deceased Hubert J. Percle, and Mr. Louis J. Percle, Administrator of the Estate of Hubert J. Percle.

2. The defendant is Western Geophysical Company of America, Western a corporation organized and existing by virtue of the laws of Delaware and having its principal place of business in Houston, Texas. It was the employer of Hubert J. Percle.¹

3. Hubert J. Percle, the driver of a marsh buggy owned and operated by his employer Western in the Louisiana marshes south of New Orleans, was killed on July 18, 1979 when the blade of a helicopter owned and operated by Hosking Exploration Helicopters, Inc., Hosking struck him as the helicopter pilot Wesley Gordon attempted a hovering maneuver to service the marsh buggy.

4. The marsh buggy is an amphibious personnel carrier, operating similar to a tractor or tank on land, but is capable of floating on small lakes, canals and streams. It can transport a work crew of 12 or 15.

5. The marsh buggy of defendant on which the accident occurred was built by Quality Industries, Thibodaux, Louisiana, and sold to defendant. It was constructed to travel on land or water, but was designed primarily to travel in poor land conditions, rather than on water. It could be floated in navigable waters at a speed up to two or three miles per hour, but flotation was not its primary purpose.

6. At the time of the accident, and for the week before, the period of Hubert Percle's employment as driver, the marsh buggy was traveling in the marsh which consisted of areas of dry land, areas of muck, and areas of water ranging in depth from 12 to 18 inches, but through which a boat could not be operated. It crossed navigable streams as necessary to continue its travel through the marsh.

7. The marsh buggy was being used in the defendant's geophysical exploration business. It transported the work crew and gear used in the seismic operation, a process of taking readings in the marsh for petroleum deposits.

8. Western had contracted with Hosking for Hosking to provide air taxi service for its seismic operations. Early on the day of the accident, pilot Gordon had delivered several cans of diesel fuel to the marsh buggy according to the accepted procedure of advising the work crew by radio of his intention to offload the cans, and then dropping the cans off at a distance from the marsh buggy for later pickup by the crew.

9. Near lunch time Gordon approached the marsh buggy without radio contact, circled the marsh buggy several times pointing to the cans of fuel on the decking of the marsh buggy, which he mistakenly concluded were empty, but was unable to make himself understood by merely pointing. The crew was unable to contact him by radio because he had switched to another channel, and could have switched back only by landing the helicopter. Gordon then began hovering very close to the rear of the marsh buggy, about four or five feet above the marsh, allowing the right pontoon of the helicopter near to, or to rest upon, the decking of the marsh buggy which protruded outside the handrail, and opened the front door of the marsh buggy.

10. At a signal from Gordon, David Marshall, one of the work crew, climbed onto the helicopter pontoon and was told by Gordon to load the fuel cans. With the assistance of another crew member, Michael Knox, Marshall began loading the cans into a basket located between the pontoons of the helicopter. Gordon then ordered that the cans be placed inside the helicopter. When two cans were loaded, Gordon realized that the cans were full and he ordered them removed from the helicopter. While this last instruction was being complied with, the helicopter apparently became snagged on the handrail of the marsh buggy, went out of control and crashed onto the marsh buggy, causing the fatality.

CONCLUSIONS OF LAW

1. The court has jurisdiction under the Jones Act, 46 U.S.C. 688 and the general maritime law.

2. The plaintiffs cannot recover under the Jones Act or the doctrine of seaworthiness because the marsh buggy was not a vessel. Only seamen are entitled to the benefits of the Jones Act. A worker cannot be a seaman unless he is employed aboard a vessel in navigation. Offshore v. Robison, 266 F.2d 769 (5th Cir. 1959). Special purpose structures and facilities capable of floating on navigable water have been held to be vessels, notwithstanding their lack of similarity to the usual vessel in navigation. Offshore v. Robison, supra; Hicks v. Ocean Drilling and Exploration Company, 512 F.2d 817 (5th Cir. 1975), and authorities cited; Dardar v. State of Louisiana, 322 F.Supp. 1115 (E.D.La.1971).

3. The test in the Fifth Circuit for determining whether a particular watercraft or other structure constitutes a vessel for purposes of the Jones Act requires examination of (1) the purpose for which it is constructed, and (2) the business in which it is engaged. Hicks v. Ocean Drilling and Exploration Company, supra; Blanchard v. Engine and Gas Compressor Services, Inc., 575 F.2d 1140 (5th Cir. 1979); Smith v. Massman Construction Co., 607 F.2d 87, 88 (5th Cir. 1979); Guidry v. Continental Oil Company, 640 F.2d 523, 529 (5th Cir. 1981); Myrick v. Teledyne Movible Offshore, 516 F.Supp. 602, 605 (S.D.Tex.1981). Mere flotation on water does not constitute a structure a vessel. Blanchard, supra at 1143.

4. An examination of both prongs of the test results in the conclusion that the marsh buggy was not designed primarily to be engaged in navigation or commerce. Its travel in navigable streams was so incidental to its primary purpose of travel in poor land conditions, and its use in navigable streams was such a small part of its total operational use that the marsh buggy cannot be regarded as a vessel at all times. This is not to say that the marsh buggy could not be regarded as a vessel if, at the time of the accident, it had actually been traveling in a navigable stream and thus have been...