Wilson v. JOB, Inc., No. 91-3022

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before POLITZ, Chief Judge, BROWN and SMITH; JOHN R. BROWN
• Citation: 958 F.2d 653
• Parties: Jay Olan WILSON, Plaintiff, v. JOB, INC., et al., Defendants. FUGRO McCLELLAND MARINE GEOSCIENCES, INC., Defendant-Appellant, v. EDISON CHOUEST OFFSHORE, Defendant-Appellee.
• Docket Number: No. 91-3022
• Decision Date: 20 April 1992

Page 653

958 F.2d 653 1994 A.M.C. 467 Jay Olan WILSON, Plaintiff,
v.
JOB, INC., et al., Defendants.
FUGRO McCLELLAND MARINE GEOSCIENCES, INC., Defendant-Appellant,
v.
EDISON CHOUEST OFFSHORE, Defendant-Appellee. No. 91-3022. United States Court of Appeals,
Fifth Circuit. April 20, 1992.

Sidney Daniel Meeks, Terrence Knister, Abbott, Best & Meeks, New Orleans, La., for Fugro McClelland Marine Geoscience and Hartford.

Ralph E. Kraft, Thomas H. Morrow, Preis & Kraft, Lafayette, La., for Americas Ins. Co.

Robert Perry McCleskey, Jr., Brian L. Thompson, Phelps Dunbar, New Orleans, La., for plaintiff.

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

Before POLITZ, Chief Judge, BROWN and SMITH, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

In a battle between vessel owner and time charterer to determine the appropriate share of the plaintiff's settlement to be borne by each of them, the district court

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entered summary judgment and later a final judgment in favor of vessel owner and against charterer because plaintiff's injuries were found to have been caused during an activity "arising out of charterer's actual drilling operations" and thus, according to the charter's reciprocal indemnity agreement, charterer was held liable and was, therefore, unable to recover from the P & I policy in which it was expressly an additional assured. Charterer appealed the denial of its motion for summary judgment maintaining that plaintiff was engaged in the "operation of the vessel" when he was injured. ¹ It also appealed from the grant of summary judgment in favor of owner against the charterer. Finding no error, we affirm in favor of owner.

The Injury

This litigation arises out of an injury sustained by plaintiff Jay Wilson (Wilson) on October 9, 1989, while he was working aboard the R/V R.L. PERKINS (vessel). The vessel was owned by Edison Chouest Offshore, Inc. (Chouest), and on the date of Wilson's accident, was under time charter to Fugro McClelland Marine Geoscience, Inc. (McClelland). The vessel was working pursuant to a written charter party which had been in effect between Chouest and McClelland since 1978.

McClelland chartered the vessel to act as a movable base from which it would conduct studies of the ocean floor. ² Wilson was an employee of JOB Labor Contractors, Inc. (JOB), a company which occasionally provided contract labor to McClelland.

Wilson's accident occurred halfway through his twelve hour shift at 0630 hours while he was working atop an elevated McClelland equipment shack or "doghouse" located on the stern deck of the vessel. This shack was part of the McClelland core sampling equipment placed aboard the vessel by McClelland. In the course of McClelland's drilling activities, their drilling equipment habitually became muddy, and Wilson, just as he had done "every time we finished a hole," was rinsing off the equipment. In fact, Wilson had been instructed by Darryl Lindquist, a McClelland employee, that "everything on the back deck had to be cleaned, it all had to be rinsed down, just in case big shots from the office showed up." ³ Wilson had never before been on top of the doghouse, but on this occasion Lindquist "told [Wilson] specifically to get up on top of the doghouse and rinse it down." Wilson washed the doghouse with a high pressure wash wand, similar to the sort used at a car wash, that was hooked up to a compressor and an airtank. ⁴ Wilson climbed on a hundred-gallon water tank to reach the top of the doghouse and, once on top of it, he began washing the doghouse platform while holding the wash wand in one hand. He described the weather as "pretty rough, windy. I would say seven-foot seas." He approximated the winds to be at 30 to 40 miles per hour and stated that the boat was constantly rolling from side to side. Wilson

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finished cleaning the doghouse platform and then, from his perch on the platform, he began to clean an adjoining McClelland mud tank two to three feet away. As he squatted or bent down to reach the sides of the mud tank with the wash wand, with only his toes in contact with the doghouse platform floor, the boat rolled to one side causing the plaintiff to lose his balance. Wilson tried to direct his fall to an "opening spot" by grabbing on to the mudtank for balance. He failed to keep his grip and fell approximately seven feet from the doghouse platform, down the side of the mudtank, on to some circulation pipes injuring his leg.

Navigating Chartered Territory

The charter party between McClelland and Chouest anticipated such an accident and addressed fixation of any resulting liability. Two relevant portions of the charter party form the basis of this particular dispute. By the "OWNER'S HOLD HARMLESS" provision, found at paragraph 18 of the charter, Chouest agreed

to indemnify and hold harmless CHARTERER [McClelland] from and against all suits, claims, actions, demands, fines, penalties, and forfeitures ... arising from or incurred as a result of the manning, navigating, operating, maintaining, victualing, supplying, and managing of the vessel....

McClelland, in the reciprocal "CHARTERER'S HOLD HARMLESS" provision, paragraph 19, correspondingly agreed

to hold harmless and indemnify OWNER [Chouest] from and against any suits, claims, actions, and demands arising directly out of CHARTERER's actual drilling operations.... ⁵

Each party claims that the other is bound under the terms of their respective "hold harmless" obligations. The question before us, then, comes down to this: Did Wilson's injury arise from "the manning, navigating, operating, maintaining, victualing, supplying, [or] managing of the vessel," or did his injury arise "directly out of [McClelland's] actual drilling operations." Our answer, however, does not turn on whether Wilson was a seaman. Therefore, despite McClelland's proffer, we decline to determine Wilson's seaman status. ⁶

Likewise, the district court found Wilson's seaman status to be an irrelevant issue. In its order denying McClelland's and granting Chouest's motion for summary judgment, the district court, instead, considered the relevant portions of the charter and determined that "[t]he drilling and other equipment associated with the coring was owned and operated by McClelland, and the obligation of the Chouest crew did not extend to the operation of the McClelland equipment." Rejecting McClelland's argument that Chouest was obligated to indemnify McClelland because Wilson's injury arose out of the operation of the vessel, the district court, instead, held in favor of Chouest, the owner:

Article 19 of the Time Charter provides that the Charterer [McClelland] will hold harmless and indemnify the Owner [Chouest] 'against any suits, claims, actions, and demands arising directly out of the Charterer's actual drilling operations....'-

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* Although drilling was not taking place at the time of the accident, the word 'actual' is not to be interpreted in its restrictive sense, but it is broad enough to encompass the plaintiff's activities at that time. Moreover, plaintiff was not engaged in the operation of the vessel; rather, he was engaged in the special activities of the vessel, core sampling. Since plaintiff's alleged injuries really arise out of McClelland's core sampling activities, the onus of providing insurance and indemnification properly falls on McClelland.

Minute entry of October 24, 1990 at p. 2.

In reviewing the district court's grant of summary judgment in favor of Chouest and its denial of McClelland's motion for summary judgment, we review all issues de novo, applying the same test as the district court. LeJeune v. Shell Oil Co., 950 F.2d 267, 268 (5th Cir.1992). Summary judgment is proper if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." F.R.Civ.P. 56(c). ⁷

In the struggle to determine the source of Wilson's injuries and the liability resulting therefrom, the confusion perhaps...