Pippen v. Shell Oil Co.

• Decision Date: 13 November 1981
• Docket Number: No. 80-3176,80-3176
• Parties: William PIPPEN, Jr., Plaintiff, v. SHELL OIL COMPANY and Inland Well Service, Inc., Defendants Third-Party Plaintiffs-Appellants, v. SUPERIOR ELECTRIC WIRELINE CORPORATION, Third-Party Defendant-Appellee. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 378

661 F.2d 378

William PIPPEN, Jr., Plaintiff, v. SHELL OIL COMPANY and Inland Well Service, Inc., Defendants Third-Party Plaintiffs-Appellants, v. SUPERIOR ELECTRIC WIRELINE CORPORATION, Third-Party

Defendant-Appellee.

No. 80-3176.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Nov. 13, 1981.

James E. Diaz, Gary J. Russo, Lafayette, La., for Inland Well Service.

James T. Guglielmo, Peter F. Caviness, Opelousas, La., for Shell Oil Co.

Allen, Gooch, Bourgeois, Randall K. Theunissen, Lafayette, La., for third-party defendant-appellee.

Appeals From the United States District Court for the Western District of Louisiana.

Before COLEMAN, GARZA and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

This is a maritime tort action resulting from an injury suffered by plaintiff William Pippen while working aboard a drilling barge owned and operated by Inland Well Service, Inc., and under lease and apparently chartered to Shell Oil Company. The case is before this Court upon appeal by Inland Well and Shell Oil from the district court's dismissal of their third-party actions against Superior Electric Wireline Corp., plaintiff Pippen's employer. Since the district court properly granted summary judgment for Superior Electric against Inland Well and Shell Oil, we affirm.

At the time of his injury, in December 1977, plaintiff Pippen was a wireline operator employed by Superior Electric and working aboard a vessel owned and operated by Inland Well. The vessel had been leased and/or chartered to Shell Oil to drill one or more gas wells in Louisiana territorial waters. Inland Well had apparently contracted with Superior Electric for the specialized services provided by Superior Electric employees. Pippen and two other employees of Superior Electric were sent to the rig to perforate and set packers on the rig. Specialized tools had been sent to the job site for this work. ¹ As plaintiff and one of his co-workers attempted to lift a 200-pound casing gun from a basket ² on the rig, plaintiff slipped on some pipe lubricant and calcium chloride that was on the deck, fell, and was injured.

On December 14, 1978, plaintiff filed this action against Shell Oil and Inland Well, alleging that the unseaworthiness of the vessel and/or the concurrent negligence of both defendants caused plaintiff to be injured. On March 5, 1979, Inland Well filed a third-party action against Superior Electric, alleging that in the event Inland Well was held liable to plaintiff, then Superior Electric was liable to Inland Well for indemnity or contribution, together with all costs of defense. On September 17, 1979, Shell Oil filed a cross-claim and a third-party complaint against Inland Well, its insurer Highland Insurance Company, and Superior Electric, claiming that Shell Oil was entitled to indemnity or contribution, together with all costs of defense, from the third-party defendants. Superior Electric moved for summary judgment against Shell Oil and Inland Well on the ground that plaintiff Pippen was a longshoreman covered by the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.A. §§ 901-950, as amended by LHWCA Amendments of 1972, Pub.L. No. 92-576, 86 Stat. 1251, and that under that Act, Shell Oil and Inland Well were not entitled to contribution or indemnity from plaintiff's employer. The district court granted Superior Electric's motion, declaring plaintiff a longshoreman and dismissing the third-party claims of Shell Oil and Inland Well. ³

The ultimate issue in this case is whether the dismissal of the third-party claims brought by Shell Oil and Inland Well against Superior Electric was proper. To make this determination, it is necessary to examine whether the LHWCA as amended in 1972, which provides that the compensation liability of the employer is to be exclusive and which specifically prohibits indemnification actions by a vessel against the employer, applies to this action.

The coverage of the LHWCA is delineated in 33 U.S.C.A. § 903(a), which provides, in pertinent part:

Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).

An employee is defined by the Act as:

any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

Id. § 902(3). Thus, to trigger the application of the Act, a dual situs, id. § 903(a), and status, id. § 902(3), test must be met. ⁴ There is no contention here by any party that plaintiff fails to satisfy the situs test; the only issue is whether he meets the status test, i. e., whether he was engaged in maritime employment at the time of his injury. ⁵

Maritime employment is an occupational concept that is dependent upon the nature of the employee's activities. P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 335, 62 L.Ed.2d 225 (1979). In order to determine whether an employee's work is maritime in nature, this Court has held that "we must look to the purpose of the work, not solely to the particular skills used." Trotti & Thompson v. Crawford, 631 F.2d 1214, 1221 n. 16 (5th Cir. 1980) (carpenter constructing pier was engaged in maritime employment). The relevant inquiry in determining whether an employee was engaged in maritime employment is whether his activities had a " 'realistically significant relationship to traditional maritime activity.' " Mississippi Coast Marine, Inc. v. Bosarge, 637 F.2d 994, 998 (5th Cir. 1981) (carpentry work on wooden thirty-foot pleasure boat resting on blocks was maritime employment) (quoting Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976)). Fusco v. Perini North River Associates, 622 F.2d 1111, 1113 (2d Cir. 1980) (maritime employment refers to activities that "bear a significant relationship to navigation or to commerce on navigable waters"), cert. denied, --- U.S. ----, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981).

In Odom Construction Co. v. United States Department of Labor, 622 F.2d 110 (5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981), this Court held that a land-based construction worker who was injured while moving four large concrete blocks that had been located on the bank of a navigable canal, but had sunk into the water because of erosion, was engaged in maritime employment. The Court stated:

Moving the blocks directly furthered maritime commerce. By tying up to the blocks, barges were moored and held in place before loading until they could be moved to the loading facilities and, after loading, until they could be taken away by tugs. Relocating the blocks after they had fallen or slipped into the water from erosion is not the type of job peripherally related to maritime matters that Congress said was not to be covered by the LHWCA, such as trans-shipment of stored cargo or clerical work.

Id. at 113. Thus, the Court concluded that since plaintiff's job had a realistically significant relationship to traditional maritime activity involving navigation and commerce on navigable waters, plaintiff was engaged in maritime employment at the time of his injury. ⁶

In the instant case, plaintiff Pippen was a wireline operator. At the time of his injury he was preparing to set packers for perforation. ⁷ The function of the vessel on which Pippen was working was to drill gas wells; consequently, Pippen's work was essential to the function of the vessel. More importantly, Pippen's job was necessary to the completion of the offshore drilling process. As discussed above, to determine whether the status test is satisfied, it is necessary to examine the nature and purpose of the employee's activities and to determine whether those activities had a realistically significant relationship to maritime navigation or commerce. The "significant relationship" requirement can be met when the purpose of the employee's activities is to facilitate maritime commerce. ⁸ Since offshore drilling the discovery, recovery, and sale of oil and natural gas from the sea bottom is maritime commerce, ⁹ it follows that the purpose of Pippen's work was to facilitate maritime commerce. Since the purpose of Pippen's work was to enable the vessel to perform its designated task offshore drilling and since the work was, in addition, directed at facilitating maritime commerce, we are compelled to conclude that the work performed by Pippen had a realistically significant relationship to maritime commerce. Thus, Pippen was engaged in maritime employment at the time of his injury. ¹⁰ Inland Well and Shell Oil's reliance on Fusco v. Perini North River Associates, 622 F.2d 1111 (2d Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981), is misplaced. In that case, the Second Circuit held that two claimants who were engaged in the construction of a sewage disposal plant were not engaged in maritime employment so as to come within the coverage of the LHWCA. It cannot easily be said that the construction of a sewage plant has any connection to traditional maritime activities. Similarly, Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979), is inapposite. There, the employee was an oil field maintenance and construction worker who drowned while being transported over navigable...