Smith v. Harbor Towing & Fleeting, Inc., 89-3762

• Decision Date: 06 September 1990
• Docket Number: No. 89-3762,89-3762
• Citation: 910 F.2d 312
• Parties: Thomas Lynn SMITH, Plaintiff-Appellant, v. HARBOR TOWING & FLEETING, INC., Defendant, Chotin Transportation Co., Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 312

910 F.2d 312

1991 A.M.C. 986

Thomas Lynn SMITH, Plaintiff-Appellant, v. HARBOR TOWING & FLEETING, INC., Defendant Chotin Transportation Co., Inc., Defendant-Appellee.

No. 89-3762.

United States Court of Appeals, Fifth Circuit.

Sept. 6, 1990.

Rehearing and Rehearing En Banc

Denied Oct. 12, 1990.

A. Remy Fransen, Jr., Wiedemann & Fransen, Chester C. Stetfelt, Jr., New Orleans, La., for plaintiff-appellant.

James F. Shuey, Patrick McShane, New Orleans, La., for Chotin Transp., Inc., Lemele, Kelleher, etc.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, GEE, and SMITH, Circuit Judges.

THORNBERRY, Circuit Judge:

This appeal raises the sole issue of whether a Jones Act seaman who is injured while performing seaman's work aboard a nonemploying shipowner's vessel can sue the shipowner for unseaworthiness as a Sieracki seaman. We hold that a Jones Act seaman cannot assert a Sieracki unseaworthiness cause of action against a vessel on which he is not a crew member.

Facts and Procedural History

At the time of his injury, plaintiff Thomas Lynn Smith (Smith) was a deckhand and crew member aboard the M/V TODD G, a tug owned and operated by his employer, Harbor Towing and Fleeting, Inc. (Harbor Towing). Harbor Towing supplied tugs and fleeting facilities to shift and fleet various barges, including barges owned by Chotin Transportation, Inc. (Chotin).

On September 11, 1988, the M/V TODD G was preparing to push two fuel barges owned by Chotin to another fleeting facility. The captain of the M/V TODD G ordered Smith to board the barges and rig them together for towing. Smith claims that in order to rig the barges together, it was necessary to straighten a tangled wire cable attached to a barge winch. While he was trying to untangle the kinked wire, Smith allegedly injured his arm and back when he slipped on some diesel oil on the deck of one of the barges.

The two Chotin barges, the CH-2084 and CH-1882, were nonpropelled barges that could be navigated only with the aid of tugs or towboats. Apart from Smith, they were unmanned at the time of the accident and Chotin states that they have never had a crew. Chotin also claims that both barges had been inspected by the Coast Guard and received their biannual Certificates of Inspection on September 9, 1988.

Smith sued Harbor Towing under the Jones Act, 46 U.S.C.App. Sec. 688, and the general maritime law, seeking $5.25 million in actual and punitive damages. He also asserted a claim against Chotin for general maritime negligence and for breaching the warranty of seaworthiness. Smith claims that the presence of diesel oil on the deck and the kinked winch wire rendered the Chotin barges unseaworthy. Harbor Towing filed a cross-claim against Chotin seeking indemnity and contribution for any amounts for which it may be liable, claiming that any damages were caused by Chotin's fault, negligence, and by the unseaworthiness of Chotin's barges.

The district court concluded as a matter of law that because Smith was not a crew member as to either of Chotin's barges, Smith was owed no duty of seaworthiness. Accordingly, it granted Chotin's motion for partial summary judgment. After the district court entered a final judgment pursuant to Fed.R.Civ.P. 54(b), Smith brought this appeal.

Discussion

The parties agree that Smith was a seaman with respect to his employer's tug, the M/V TODD G. There is also no doubt that the Chotin barges are vessels. But due to the transitory nature of his work aboard these barges, Smith concedes that he does not qualify as a Jones Act seaman on Chotin's barges. See Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959) (requiring, among other things, that the maritime worker be permanently assigned to a vessel or perform a substantial part of his work on a vessel). Smith argues, however, that Chotin owed him a duty of seaworthiness on the grounds that he qualifies as a "Sieracki seaman."

In Seas Shipping v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), the Supreme Court rejected the notion that the vessel owner's duty to furnish a seaworthy vessel extended only to those maritime workers employed by the vessel owner. Id. at 90-94, 66 S.Ct. at 875-77. The Court extended a cause of action for unseaworthiness to a longshoreman "doing a seaman's work and incurring a seaman's hazards." Id. at 99, 66 S.Ct. at 880. Subsequently, the Court recognized that an implied warranty of workmanlike performance ran from the stevedore by contract to the shipowner. Thus, the shipowner was entitled to full indemnity if the plaintiff's employer breached this implied warranty. See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 133, 76 S.Ct. 232, 237, 100 L.Ed. 133 (1956). The result of these holdings was to expose a stevedore to liability even though section 905 of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) expressly limited the employer's liability to worker's compensation. See 33 U.S.C. Sec. 905(a).

In 1972 Congress amended the LHWCA to add section 905(b), which provides that any "person covered" under the Act may no longer bring an action against a third-party vessel owner "based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred." 33 U.S.C. Sec. 905(b). Thus, Congress abolished the Sieracki unseaworthiness cause of action and the Ryan indemnity action for those employees covered by the LHWCA. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 521 (1979).

Following the 1972 amendments, courts were faced with the question of whether Sieracki still survived with respect to those maritime workers not covered by the LHWCA. Some courts have reached the conclusion that the 1972 amendments completely abolished the Sieracki seaworthiness action. ¹ In Aparicio v. Swan Lake 643 F.2d 1109 (5th Cir. Unit A Apr.1981), however, this court reached a less sweeping conclusion. Aparicio, a harbor worker employed by the Panama Canal Company, was injured while handling the lines of a vessel in the Canal Zone. As a federal employee working in the Canal Zone and covered by the Federal Employees' Compensation Act (FECA), 5 U.S.C. Secs. 8101-93, Aparicio was not covered by the LHWCA. In Aparicio, we concluded that maritime workers covered by FECA, but who were not covered by the LHWCA, were not barred by the 1972 amendments from asserting claims as a Sieracki seaman. Id. at 1116-18. Because Aparicio was a longshoreman engaged in the classic seaman's work of handling the lines of a vessel, we held that he was entitled to an action for unseaworthiness under Sieracki. Id. at 1114 & n. 7. Two years later, in Cormier v. Oceanic Contractors, Inc., 696 F.2d 1112, 1113 (5th Cir.1983), cert. denied, 464 U.S. 821, 104 S.Ct. 85, 78 L.Ed.2d 94 (1983), this court applied Aparicio and held that a welder working aboard a vessel in a foreign country, and thus beyond the reach of...