Wisner v. PROFESSIONAL DIVERS OF NO

• Decision Date: 02 March 1999
• Docket Number: No. 98-C-1755.,98-C-1755.
• Citation: 731 So.2d 200,1999 AMC 1189
• Parties: Douglas WISNER v. PROFESSIONAL DIVERS OF NEW ORLEANS.
• Court: Louisiana Supreme Court

731 So.2d 200

1999 AMC 1189

Douglas WISNER v. PROFESSIONAL DIVERS OF NEW ORLEANS.

No. 98-C-1755.

Supreme Court of Louisiana.

March 2, 1999.

Conrad S. P. Williams, III, St. Martin & Williams, Houma; Joseph W. Walker, Franklin, Mosele & Walker, for Applicant.

Richard S. Vale, Blue & Williams, Metairie, for Respondent.

John W. deGravelles, Baton Rouge, for Louisiana Trial Lawyers (Amicus Curiae).

TRAYLOR, Justice.¹

We granted this writ to determine if a commercial diver, whose employment placed him on vessels for ninety percent of his work life, is a seaman and thus entitled to Jones Act coverage. After reviewing the record and applicable law, we reverse the lower courts' finding and hold that Jones Act coverage should not be withheld based upon the fact that the vessels upon which a diver works are not under his employer's common ownership and control. Because a commercial diver's duties continuously subject him to the perils of the sea, plaintiff is properly classified as a Jones Act seaman.

FACTS AND PROCEDURAL HISTORY

On January 15, 1994, Douglas C. Wisner (Wisner), a commercial diver by trade, was employed by Professional Divers of New Orleans, Inc. (PDNO) installing anodes on platforms and repairing pipelines while working aboard Exxon's fixed platform seventy-three in the West Delta region of the Gulf of Mexico. However, approximately twenty-one hours after making a dive of 165 feet, Wisner began to feel light headed and out of breath. On January 16, 1994, Wisner was flown to shore and subsequently sought medical attention at Jo Ellen Smith Regional Medical Center in New Orleans. After receiving hyperbaric treatment, Wisner was admitted to the hospital and later treated for tachycardia, which developed while he was in the hospital.

Wisner worked for PDNO as a diver from November 1992 until January 1994. In the course of his employment, Wisner was assigned to numerous jobs, ten percent (10%) of which required him to work off of fixed platforms and ninety percent (90%) of which required him to work from vessels. With the exception of the job at issue, Wisner slept and ate on the vessels from which he was diving. Wisner worked on approximately fourteen different vessels owned by twelve different companies while employed by PDNO.

In May 1994, Wisner filed his original petition alleging that he was a Jones Act seaman employed by PDNO at the time of his injury. PDNO then moved for summary judgment, alleging that Wisner was not a Jones Act seaman, but rather, a maritime worker who should be compensated under the Longshore and Harbor Workers Compensation Act. The trial court found that Wisner did not have a substantial connection to a vessel or fleet of vessels under some degree of common ownership or control and thus granted PDNO summary judgment, which was later affirmed by the court of appeal. Because we find Wisner faced regular exposure to the perils of the sea as a Jones Act seaman, we now reverse.

LAW AND DISCUSSION

A major body of seaman status law developed in the Court of Appeals for the Fifth Circuit in the wake of Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959). See, Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). At the time of his injury, Robison was an oil worker permanently assigned to a drilling rig mounted on a barge in the Gulf of Mexico. In sustaining the jury's award of damages to Robison under the Jones Act, the court held as follows:

[T]here is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel... or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. Offshore Co. v. Robison, 266 F.2d at 779 (footnote omitted).

The first prong of the Robison test has both a permanency requirement and a substantiality requirement. In order to fulfill the permanency requirement, a claimant must have "more than a transitory connection" with a vessel or a specific group of vessels. Davis v. Hill Engineering, Inc., 549 F.2d 314, 326 (5th Cir.1977); Bertrand v. International Mooring & Marine, Inc., 700 F.2d 240 (5th Cir.1983),cert. denied, 464 U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984). The court's focus in this regard is "meant to deny seaman's status to those who come aboard a vessel for an isolated piece of work, not to deprive a person whose duties are truly navigational of Jones Act rights merely because he serves aboard a vessel for a relatively short period of time." Porche v. Gulf Mississippi Marine Corp., 390 F.Supp. 624, 631 (E.D.La.1975); Bertrand v. International Mooring & Marine, Inc., 700 F.2d at 247; Buras v. Commercial Testing & Eng'g Co., 736 F.2d 307, 310 (5th Cir.1984). The Fifth Circuit Court of Appeal has specifically noted that this requirement should not be given a "wooden application," Brown v. ITT Rayonier, Inc., 497 F.2d 234, 237 (5th Cir.1974), and has characterized the permanency requirement as being "more frequently an analytical starting point than a self-executing formula." Brown v. ITT Rayonier, Inc., 497 F.2d at 237; Buras v. Commercial Testing & Eng'g Co., 736 F.2d at 310. For a claimant to satisfy the substantial work requirement of Robison, "it must be shown that he performed a significant part of his work aboard the vessel with at least some degree of regularity and continuity." Barrios v. Engine & Gas Compressor Services, Inc., 669 F.2d 350, 353 (5th Cir.1982); Bertrand v. International Mooring & Marine, Inc., 700 F.2d at 246. Since Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986), the Fifth Circuit has consistently analyzed the problem in terms of the percentage of work performed on vessels for the employer in question, and has declined to find seaman status where the employee spends less than 30 percent of his time aboard ship. Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 2189, 132 L.Ed.2d 314 (1995). The substantial connection requirement may be used to distinguish between sea-based employees and land-based employees, as land-based employment is inconsistent with Jones Act coverage. Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 1542-43, 137 L.Ed.2d 800 (1997).

The second prong of the Robison two-part test for determining seaman status under the Jones Act, that an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission, is easily met. The United States Supreme Court has noted in both McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 111 S.Ct. 807, 817, 112 L.Ed.2d 866, and Chandris that it is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel. Rather, a seaman must be doing the ship's work. Chandris, Inc. v. Latsis, 115 S.Ct. at 2184. Although this element is not disputed in the case at hand, seaman status is not so easily deciphered, as the jurisprudential interpretation of a seaman encompasses several factors, none of which is conclusive. See, e.g., Bertrand v. International Mooring & Marine, Inc., 700 F.2d at 246 (while the fact that a claimant's work places him on several different vessels does not preclude seaman status, it is relevant in making that determination).

The principle developed in Bertrand and Buras, that determination of seaman status should not be controlled by an employer's chartering arrangement, was later used in Wallace v. Oceaneering Int'l, 727 F.2d 427 (5th Cir.1984), to hold that a commercial diver has the legal protections of a seaman when a substantial part of his duties are performed on vessels. See, Bertrand v. International Mooring & Marine, Inc., 700 F.2d at 245; Buras v. Commercial Testing & Eng'g Co., 736 F.2d at 312. The Bertrand court found Jones Act coverage should not be withheld because the vessels are not under the employer's common ownership or control, when claimants are continuously subjected to the perils of the sea and engaged in classical seaman's work. Bertrand v. International Mooring & Marine, Inc., 700 F.2d at 245. The Fifth Circuit specifically held that, in light of the purposes of the Jones Act, employers will not be allowed to deny Jones Act coverage to seamen by arrangements with third parties regarding a vessel's operation or by the manner in which work is assigned. Id. With these principles in mind, the Wallace court found a commercial diver, who was employed with a diving service contractor for only several days at the time of his accident, to be a seaman. The court specifically held:

A diver's work necessarily involves exposure to numerous marine perils, and is inherently maritime because it cannot be done on land. It is not, like so many offshore field occupations, an art developed in land work and transposed to a maritime setting. Oil field divers who regularly spend days or weeks at a time working, eating, and sleeping on vessels are exposed to the same hazards as other seamen. Moreover, when a diver descends from the surface, braving darkness, temperature, lack of oxygen, and high pressures, he embarks on a marine voyage in which his body is now the vessel. Before he can complete his assigned task, he must successfully navigate the seas. Wallace v. Oceaneering Int'l, 727 F.2d at 436. (citations omitted)

After thirty-three years of silence, the United States Supreme Court in McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991), considered the question of seaman status and affirmed the Robison requirement that a worker's duties must contribute to the function of the vessel or the accomplishment of its mission. Wilson L. Maloz, III, Harbor Tug & Barge Co. v. Papai: The United States Supreme Court...