Sellers v. Dixilyn Corporation, 29255.

• Citation: 433 F.2d 446
• Decision Date: 29 October 1970
• Docket Number: No. 29255.,29255.
• Parties: James J. SELLERS, Plaintiff-Appellant, v. DIXILYN CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

433 F.2d 446 (1970)

James J. SELLERS, Plaintiff-Appellant, v. DIXILYN CORPORATION, Defendant-Appellee.

No. 29255.

United States Court of Appeals, Fifth Circuit.

October 29, 1970.

Wilson M. Montero Jr., New Orleans, La., for appellant.

W. K. Christovich, New Orleans, La., for appellee.

Before BELL, THORNBERRY and CLARK, Circuit Judges.

PER CURIAM:

The facts in this non-jury admiralty suit seeking maintenance and cure, damages for failure to pay maintenance and cure, and attorney's fees are not in dispute. Therefore we have drawn heavily from the facts as recited in the district court opinion. That court held that although the plaintiff was a seaman, he did not show two additional requisite elements of maintenance and cure — (1) that he was on authorized shore leave and (2) he was answerable to the call of duty. Therefore recovery was denied. The absence of either of the two elements, which the district court found lacking, would preclude recovery. Since the undisputed facts as set out below establish the absence of both elements, we affirm the trial court.

James J. Sellers, the plaintiff-appellant, sustained injuries in an automobile accident on November 9, 1967, on Highway 71 between Bunkie and Alexandria, Louisiana while Sellers was en route from the drilling rig on which he worked in the Gulf of Mexico to his home in Colfax, Louisiana.

At the time that Sellers was injured he had been working as a roustabout for the defendant Dixilyn Corporation Dixilyn for about eleven months on its Rig No. 10, as offshore "jackup" mobile drilling platform located 50 or 60 miles from Grand Isle, Louisiana. His duties were concerned with the drilling operation itself, although on one or two occasions he did assist in the "jacking-up" of the rig preparatory to its being moved from one location to another, but he was never aboard the rig when it was being moved. The operations at the rig were under a schedule which required Sellers to be on the rig for seven days and allowed him to go shore for seven days. While on the rig he worked twelve hours and was off work for twelve hours. He ate and slept on the rig. Dixilyn had him transported from Grand Isle to the rig by boat (a trip of from five to seven hours) at the commencement of his working tour and back again at the end of it. He was paid by the hour for the time he worked on the rig, and was paid a stipulated amount for "boat time" for the boat trips to and from the rig. He received no pay for the seven days that he was off duty. Thus, his pay began and ended at the dock.

Duplicate separate crews took over all work on the rig during Sellers' time ashore. When each seven-day tour of duty on the rig ended, the two working crews then aboard the rig were, in effect, replaced in service by two other relieving crews for an equal period. This was a regularly scheduled work arrangement which allowed definite periods ashore and on the rig.

A seven day tour of duty ended for Sellers on November 8, 1967. The relief crew arrived at the rig about 1:00 or 2:00 P.M. and Sellers was returned to the dock at Grand Isle at about 6:30 or 7:00 o'clock that evening. He and co-worker, Huey Dubois, commenced the trip to Colfax in the latter's truck, stopping for gas and for food before Dubois, who is driving, struck a concrete abutment at about 2:30 o'clock on the morning of November 9, some 250 miles north of Grand Isle.

According to the testimony adduced at the trial, Sellers had never been requested to return to duty during his off-duty time, but he vaguely remembered that some persons he could not identify had been called back on other rigs. He considered that he was free to fish, farm or make extra money at...