Estay v. Terminal Stevedores, Inc.

806 So. 2d 790, 1 La.App. 5 Cir. 1011, 2001 La. App. LEXIS 3094, 2001 WL 1651379
CourtLouisiana Court of Appeal
DecidedDecember 26, 2001
DocketNo. 01-CA-1011
StatusPublished
Cited by1 cases

This text of 806 So. 2d 790 (Estay v. Terminal Stevedores, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estay v. Terminal Stevedores, Inc., 806 So. 2d 790, 1 La.App. 5 Cir. 1011, 2001 La. App. LEXIS 3094, 2001 WL 1651379 (La. Ct. App. 2001).

Opinion

_JjDUFRESNE, Chief Judge.

This is an appeal by Terminal Stevedores, Inc. (TSI), defendant-appellant, from a judgment finding it liable to its employee Dale Estay, plaintiff-appellee, under 33 U.S.C. 905(b) of the Longshoremen’s and Harbor Workers’ Compensation Act. For the following reasons, we affirm that judgment.

The basic facts of the accident are not disputed. Estay was employed by TSI for work repairing a dock fender system on the Mississippi River. The work was conducted from a non-self-propelled crane barge, the Timber Wolf. The routine of the work was that new fender timbers were loaded on the barge and it was moved by tug to the work site and tied to the dock. The old timbers were unbolted and removed from the fender to the deck of the barge by the crane, and the new ones were similarly put in place and re-bolted.

During this process the workers were from time to time required to climb from the barge onto the fender, which they accomplished by using |2the spaced fender timbers in effect as ladder rungs. On the day in question here, Estay was descending from the fender onto the barge. He put his foot down on one of the old timbers on the deck, but before getting a good footing he released his hold on the fender timber. It appears that at that moment waves from a passing boat caused the barge to fall in the water some six to twelve inches and Estay lost his balance and fell. He suffered spinal disc injuries which eventually required surgery to repair.

Estay brought suit in state court against TSI under the Jones Act, alleging that he was a seaman on the Timber Wolf. He also sought compensation benefits under the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. Sec. 901 et seq., which were eventually awarded to him. During the course of that LHWCA administrative proceeding, TSI asserted that the barge Timber Wolf was a vessel in navigation, that Estay was a Jones Act seaman attached to that vessel as alleged in his state court suit, and therefore that the LHWCA did not apply. [793]*793Estay argued that the barge was not a vessel. The Administrative Law Judge determined that the barge was not a vessel for Jones Act purposes and therefore that Estay was not a seaman, but was rather a worker entitled to benefits under LHWCA.

Estay subsequently amended his state court petition to assert an action against TSI as owner of the Timber Wolf under Sec. 905(b) of the LHWCA. He also named as a defendant Archer Daniels Midland (ADM), the owner of the dock and fender system. The matter was tried without a jury and resulted in a general damage award to Estay and against TSI of $180,000, reduced by 50% for plaintiffs comparative fault, plus lost wages, medical expenses and interest. TSI was also allowed to off-set payments 13previously made to Estay under the LHWCA award. ADM was dismissed from the action.

In his reasons for judgment the trial judge found that the Timber Wolf was a vessel and that TSI, as vessel owner, was negligent in not providing a “hook-ladder” for ingress and egress from the barge to the fender structure. He further found that Estay was also negligent in releasing his handhold on the fender before he had a firm foothold on the deck of the barge. TSI now appeals the determination of “vessel” status and the finding of negligence due to failure to supply a ladder. Estay cross-appeals contesting the apportionment of comparative fault on his part, as well as certain elements of the monetary award which he contends are too low.

The statutory basis for this suit is Sec. 905(b) of the LHWCA. That section provides that while a harbor worker’s exclusive remedy against his employer for injuries suffered on the job aboard a vessel is for compensation benefits, he may also sue the owner of the vessel on which he was injured in tort if the injury was caused by the negligence of that owner. Where the employer has the dual capacity as vessel owner and employer, the employee may also sue his employer for negligent acts committed by it as owner of the vessel, but not for negligent acts committed by it as employer. To recover under this section the plaintiff must first show that he is a covered longshoreman or harbor worker, and not the master or member of the crew of a vessel, and also that the apparatus upon which he was injured is in fact a “vessel” as contemplated in the Act.

The trial judge found that Estay was a covered worker and that the Timber Wolf was a vessel. TSI admits to the first finding but disputes the second. In Orgeron v. Avondale Shipyards, Inc., 561 So.2d 38 (La.1990), cert. denied, 498 U.S. 818, 111 S.Ct. 62, 112 L.Ed.2d 36 (1990), a case involving barges much like the one at issue here, the court discussed at length the question of what constitutes a vessel for LHWCA purposes. The court stated that:

Under general maritime law, a vessel is “every description of watercraft or other artificial contrivance used or capable of being used as a means of transportation on water.” [citing 1 U.S.C. Sec. 3] This is the capability test for vessel status. (At 41)

The court went on to find that the floating work platforms at issue in the case were vessels because they were capable of transportation on water and were in fact being used to transport materials.

In the present case, the trial judge found as fact that the barge was used not only as a work platform, but also to transport tools and equipment, the crane, and old timbers from and new timbers to the fender system. He concluded that “the Timber Wolf was not only capable of transportation on navigable waters, it was in fact used to transport timbers and [794]*794equipment from place to place on the Mississippi River.” Based on these findings, the barge clearly met the test for “vessel” status set forth in Orgeron, supra, and we therefore affirm that determination.

TSI argues alternatively that the determination that the barge was not a vessel previously made in the administrative proceedings should have been given res judicata effect to preclude re-litigation of that issue in the trial court. Under La. R.S. 13:4231, res judicata precludes re-litigation of issues previously litigated by the parties if determination of that issue was essential to that judgment. In Orger-on, supra, the court distinguished between the definition of a “vessel” for Jones Act purposes and LHWCA purposes. In the administrative hearing the only determination made was [sthat the Timber Wolf was not a vessel for Jones Act purposes. The trial judge in the state action made the different determination that the barge was a vessel for Sec. 905(b) purposes. Further, the issue actually to be determined in the administrative hearing was whether Estay was a member of the crew of a vessel. If he were a crew member, then he would have been a Jones Act seaman and thus excluded from coverage under the LHWCA. Although that determination was predicated on the finding of non-vessel status, it could as well have been determined by the fact that Estay was not a member of the crew engaged in navigation. Thus, the finding as to vessel status was not essential to the finding that Estay was not a Jones Act seaman.

We also note that the policy underlying application of res judicata

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Bluebook (online)
806 So. 2d 790, 1 La.App. 5 Cir. 1011, 2001 La. App. LEXIS 3094, 2001 WL 1651379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estay-v-terminal-stevedores-inc-lactapp-2001.