Keith A. Boudreaux v. American Workover, Inc., Awi, Inc., Defendant-Third-Party v. American Insurance Co., Third-Party

664 F.2d 463, 1981 U.S. App. LEXIS 15430

• Court: Court of Appeals for the Third Circuit
• Decided: December 7, 1981
• Docket: 80-3287
• Status: Published

Opinions

TATE, Circuit Judge:

We hold that an oilfield specialty worker, injured while performing his employment duties on a vessel (a movable barge) on inland waters, is a “maritime employee” for purposes of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq. (“LHWCA”). We therefore affirm the district court’s summary judgment based upon its holding to that effect.

The procedural context in which this central issue of the appeal arises is set forth in an appendix to this opinion. For purposes of this summary judgment determination, the undisputed facts are as follows:

The plaintiff Boudreaux was employed by Aquatek, Inc., as a member of a wireline crew. He was injured on board the defendant AWI’s movable (or “semi-submersible”) drilling barge, “AWI Rig 6”, in inland waters. The injury occurred while he was performing his duties as a rigger, as a member of Aquatek’s wireline crew.

The function of the Aquatek crew was to move the wireline equipment to a barge’s new location when it was moved, to hook up the equipment with the use of the rig machinery, and to lower a tool to the bottom of the well for some special purpose, such as testing or correcting some deficiency. The crew and equipment were transported by water to and from the drilling barge on which the wirelining work was to be performed. When a particular wirelining task was completed, the wireline crew and equipment departed for the base or for another assignment.

The record indicates that Boudreaux customarily worked on wireline operations 15-17 days out of each 21-day shift, but it does not indicate whether this time was spent on one or on more jobs, nor does it show the approximate amount of time required for a wireline crew to complete any particular wirelining assignment. The record also indicates that Boudreaux’s wireline' crew performed a substantial part, if not all, of its work in servicing drilling barges in inland waters.

For present purposes, the parties do not dispute that wirelining operations are an integral or essential part of oil and gas exploration and production activities, whether conducted on land or on water. The appellant AWI suggests, however, that wirelining work is a specialty operation performed by a specialized crew both on land and on water drilling rigs, and that a wire-line crew member injured in the course of such work should not be considered a “maritime employee” so as to be within the coverage of the LHWCA just because of the happenstance that his work-injury occurs on a movable barge (vessel) when it is on inland waters.¹

I

The single issue before us is whether Boudreaux, at the time of his injury on navigable inland waters, was engaged in “maritime employment” so as to be within the coverage of the LHWCA. Under the 1972 amendments to that Act, to be entitled to its benefits a disabled employee must (a) be disabled as the result of “an injury occurring upon the navigable waters of the United States” (defined as also including adjoining areas), 33 U.S.C. § 903(a) — the “situs” test; and (b) be engaged in “maritime employment” at the time of the injury, 33 U.S.C. § 902(3) — the “status” test.

Both the status requirements, as defined by section 902(3), based on the nature of the job, and the situs requirements, as defined by section 903(a), based on geography, must be satisfied before the LHWCA can apply. P. C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 73-74, 100 S.Ct. 328, 332-33 (1979); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 265, 97 S.Ct 2348, 2357, 53 L.Ed.2d 320 (1977).

Prior to 1972 a single situs requirement of the LHWCA governed the scope of its coverage. That requirement limited coverage to workers whose “disability or death result[ed] from an injury occurring upon the navigable waters of the United States (including any dry dock) . . .. ” LHWCA of 1927, ch. 509, § 3(a), 44 Stat. 1426. “[T]he Supreme Court decided that a worker who in the course of his duty was obliged to go on navigable waters, however briefly or sporadically, and who suffered an injury while in that historically maritime locality was covered by the [pre-1972] LHWCA. Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 [1962].” St. Julien v. Diamond M. Drilling, 403 F.Supp. 1256, 1258 (E.D.La.1973).

In 1972 Congress amended the LHWCA ² “by replacing the single situs requirement with a two-part situs and status standard.” Pfeiffer, supra, 444 U.S. at 73-74, 100 S.Ct. at 332-33; Caputo, supra, 432 U.S. at 264-65, 97 S.Ct. at 2357. “To be eligible for compensation, a person must be an employee [status] as defined by § 2(3) [33 U.S.C. § 902(3)] who sustains injury on the situs defined by § 3(a) [33 U.S.C. § 903(a)].” Pfeiffer, supra, 444 U.S. at 74, 100 S.Ct. at 333. Situs turns on geography; status on the maritime-connected nature of the job. Id., 444 U.S. at 73-83, 100 S.Ct. at 333-37; Caputo, supra, 432 U.S. at 265, 97 S.Ct. at 2358-63. Since it is uncontested that Boudreaux was injured over navigable waters, the controversy here concerns only his “status” as a maritime employee.

After the district court granted summary judgment in this case, another panel of this court rendered a decision in Pippen v. Shell Oil Company and Inland Well Service, Inc., 661 F.2d 378 (5th Cir. 1981). Pippen involved a legal issue virtually identical to that now before this panel. In Pippen, as here, the injured worker was performing wirelining work that was essential to the function of the vessel (drilling barge) upon which he was working — i. e., offshore mineral production. The wireline employee was injured while working on a drilling barge on navigable inland waters. The issue in Pippen, as here, is whether under those circumstances the wireline employee performing temporary specialty work on the drilling barge was engaged in “maritime employment” so as to be covered by the LHWCA.

Significantly to the issue before us, Pip-pen noted:

Maritime employment is an occupational concept that is dependent upon the nature of the employee’s activities. P. C. Pfeiffer Co. v. Ford, [444 U.S. 69] 100 S.Ct. 328, 335, 62 L.Ed.2d 225 (1979). In order to determine whether an employee’s work is maritime in nature, this Court has held that “we must look to the purpose of the work, not solely to the particular skills used.” Trotti & Thompson v. Crawford, 631 F.2d 1214, 1221 n. 16 (5th Cir. 1980) (carpenter constructing pier was engaged in maritime employment). The relevant inquiry in determining whether an employee was engaged in maritime employment is whether his activities had a “ ‘realistically significant relationship to traditional maritime activity.’” Mississippi Coast Marine, Inc. v. Bosarge, 637 F.2d 994, 998 (5th Cir. 1981) (carpentry work on wooden thirty-foot pleasure boat resting on blocks was maritime employment) (quoting Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir. 1975), cert. denied, [429 U.S. 868] 97 S.Ct. 179, 50 L.Ed.2d 148 (1976)). Fusco v. Perini North River Associates, 622 F.2d 1111, 1113 (2d Cir. 1980) maritime employment refers to activities that “bear a significant relationship to navigation or to commerce on navigable waters,” [construction of sewage plant not connected to traditional maritime activities], cert. denied 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981).

661 F.2d at 382-383.

The test employed by the Second Circuit on remand ³ in Fusco v. Perini North River Associates, 622 F.2d 1111 (2d Cir. 1980), was whether the employment bears “a significant relationship to navigation or to commerce on navigable waters.” Id. at 1113. The production of oil and natural gas from the beds of navigable bodies of water and the ocean bottom has become a maritime activity. This is a major industry with peculiar maritime-related problems. Employment in an industry that provides approximately 40,000 jobs,⁴ and untold millions of dollars in revenues and that takes place primarily upon the navigable waters of the United States, bears “a significant relationship to ... commerce on navigable waters.”

In Pippen, the court found that the wire-line employee’s work was, as in the present case, necessary to the completion of the offshore drilling process and it concluded that the work performed “had a realistically significant relationship to maritime commerce,” so as to be “maritime employment.” Pippen, supra, 661 F.2d at 384.

The ruling in Pippen is dispositive of the present issue. In the case before us, Boudreaux (like Pippen) was injured on navigable waters while performing wirelining employment duties that were an integral or essential contribution to the mineral-production function of the vessel upon which he was working. The work performed thus “has a realistically significant connection to traditional maritime activity,” Pippen, supra, 661 F.2d at 385, so as to be “maritime employment” within the coverage of the LHWCA.

II

The legislative history of the 1972 amendments to the LHWCA re-enforces our view that Pippen correctly characterized as “maritime employment,” for purposes of the Act, wireline specialty work contributing to the function of a movable drilling barge on inland waters.

The question whether an offshore oil worker injured on a “vessel” is covered by the current LHWCA turns primarily upon whether such a worker is engaged in “maritime employment,” 33 U.S.C. § 902(3), a “status” test provided by the 1972 amendments. Unfortunately, the bare language of the statute does not answer this question as nowhere does it provide a definition of “maritime employment”. While § 902(3) does mention “longshorem[e]n,” “harbor-worker[s],” etc., the Supreme Court has stated that these references are to be considered only as “example[s] of workers who engage in maritime employment . . . . ” Pfeiffer, supra, 444 U.S. at 79, 100 S.Ct. at 335. Examination of the legislative history of the 1972 amendments to the LHWCA and the cases that have construed them are helpful in ascertaining what activities are intended to be included within the term “maritime employment.”

Even a cursory reading of the legislative history of the 1972 amendments quickly shows that Congress thought only that it was extending the scope of coverage of the LHWCA by enacting the bifurcated test referred to above. See, e. g., Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 92d Cong., 2d Sess., Legislative History of the Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972 (Comm. Print 1972) at v (Foreword by Sen. Harrison A. Williams, Jr., Chrmn.); id. at 63 (S.Rep.No.92-1125, at 1) (one of the “principle [sic] purpose[s of the bill] is to ... extend coverage to protect additional workers”) (emphasis added); id. at 64 (S.Rep.No.92-1125, at 2) (the bill “expands the coverage of this Act”) (emphasis added). The House report, H.R.Rep. No.1441, 92d Cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Ad.News 4698, is nearly identical to the Senate report both in content and wording, see, Pfeiffer, supra, 444 U.S. at 79, n.9, 100 S.Ct. at 335 n. 9; Robertson, Injuries to Marine Petroleum Workers: A Plea for Radical Simplification, 55 Tex.L.Rev. 973, 975 n. 12 (1977). The Senate report does add this, however, in its Section-by-Section Analysis:

Section 2(a) [of the bill] amends section 2(3) of Act to define an “employee” as any person engaged in maritime employment. The definition specifically includes any longshoreman or other person engaged in longshoring operations, [etc., but] does not exclude other employees traditionally covered ....

Comm. Print at 78 (S.Rep.No.92-1125, at 16) (emphasis added).

In light of the repeated statements made throughout the legislative history to the effect that the change in the scope of the coverage of the LHWCA was meant to extend protection to additional workers (i. e., certain maritime workers even though injured on land), the specific statement in the Senate report’s section-by-section analysis quoted above, and the fact that offshore oil workers injured upon navigable waters would have been covered prior to the 1972 amendments, Calbeck, supra; see also Hendon v. Marathon-LeTourneau, 414 F.Supp. 1282, 1284 (S.D.Miss.1976) (mention of LHWCA benefits paid to off-shore oil worker for pre-1972 injury); Case v. St. Paul Fire & Marine Ins. Co., 324 F.Supp. 352 (E.D.La.1971) (same), appeal dismissed as moot, 456 F.2d 252 (5th Cir. 1972), a persuasive argument could be made that any worker who would have been covered under the pre-1972 LHWCA is still covered under the post-1972 LHWCA. Indeed, the Supreme Court has expressly reserved the question whether “Congress excluded people who would have been covered before the 1972 Amendments; that is, workers who are injured on navigable waters as previously defined.” Caputo, supra, 432 U.S. at 265 n. 25, 97 S.Ct. at 2358 n. 25.

Pfeiffer, supra, of course, requires that the “situs” and “status” tests are to be independently satisfied, and holds that “status” is occupational and not geographical in nature. Pfeiffer, supra, 444 U.S. at 79, 100 S.Ct. at 335.

However, Pfeiffer recognizes that the congressional purpose was to extend coverage. Thus it may be possible to consider that the “status” portion of the test for workers-on-water is satisfied by the fact of their employment on water; but this would distort the statutory language, whatever Congress’ intent, if the worker’s presence on the water is fortuitous and otherwise unconnected with maritime employment. Moreover, at least three cases decided by the courts of appeals, including one by the Fifth Circuit, refuse to consider the mere fact of injury while working on water sufficient for coverage. See Fusco v. Perini North River Associates, 601 F.2d 659 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980), rev’d on remand, 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981) (worker injured over navigable waters while engaged in constructing sewage disposal project extending over water not engaged in “maritime employment” and thus not covered by LHWCA); Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979) (worker who drowned when overloaded crewboat sank was not engaged in “maritime employment,” and thus not covered by LHWCA; he was merely being transported to his job site by water, notwithstanding that on the occasion in question the vessel was to stop and place a pollution pan on a sunken barge used as a dock); Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976) (“pondman” injured while working at his duties involving the sorting of logs while moving about on walkways and logs that were floating on navigable waters was not engaged in “maritime employment” and thus not covered by LHWCA).

These decisions concern, however, situations where the employee was injured or killed in an employment activity with peripheral relationship to maritime activity, although the accident occurred on water. The employment activities there concerned, distinguishably from that of Pippen and the present Boudreaux, did not involve the performance of work that was an integral or essential contribution to the function of a vessel upon which the injury occurred.

Moreover, to focus simply upon the task of the employee upon the barge after he got there is too narrow a test. What is important is not the worker’s task alone but the industry of which it forms a part. (The harborworker-welder, admittedly covered by the LHWCA, is after all but a welder; his job is indistinguishable from welding on land. The same could be said of the ultimate task of most harborworkers.)

Here Boudreaux was employed in an activity that was an integral or essential contribution to the production of oil and natural gas from the beds of navigable bodies of water and the ocean bottom. Mineral exploration and development on offshore locations has become recognized in maritime jurisprudence as a maritime activity. See Pippen and decisions cited therein; see also, Robertson, supra, 55 Tex.L.Rev. 973. Congress has recognized the maritime nature of this employment by, for instance, extending the LHWCA to cover oil-production activities on the Outer Continental Shelf. (See note 1.) The test of whether the employment is “maritime” for purposes of the LHWCA, as noted in part I of the text, is whether the employment activities bear a significant relationship to commerce on navigable waters. Employment in an industry which provides approximately 40,000 jobs, see Robertson, supra, 55 Tex.L.Rev. at 973, and untold millions of dollars in revenues and takes place primarily upon the navigable waters of the United States, we think, must indeed bear a significant relationship to commerce on the navigable waters, particularly when that employment is itself on a vessel, albeit temporarily.

In Caputo, supra, the Supreme Court, faced with a similarly difficult question of statutory interpretation of the 1972 amendments to the LHWCA, nevertheless felt not without guidance:

The language of the 1972 Amendments is broad and suggests that we should take an expansive view of the extended coverage. Indeed, such a construction is appropriate for this remedial legislation. The Act “must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.” Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88, 92, 98 L.Ed. 5 (1953).

Caputo, supra, 432 U.S. at 268, 97 S.Ct. at 2359. Two years later, in finding two dockside workers who were only marginally related to the loading and unloading of ships, covered by the LHWCA, the Court recalled its statements in Caputo regarding the liberal construction that should be accorded remedial acts and added, “our decision today also serves the broader congressional purpose of expanding coverage.” Pfeiffer, supra, 444 U.S. at 77, 83, 100 S.Ct. at 334, 338. Cf. 33 U.S.C. § 920(a) (1976 ed.) (“In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of this chapter.”).

We conclude, therefore that “maritime employment” within the legislative intent of the 1972 amendments to the LHWCA clearly includes a specialty worker injured on a drilling rig in inland waters. Further, from a policy standpoint, the legislatively intended uniformity of treatment of maritime and amphibious workers, regardless of situs, would be enhanced if that Act is held applicable to non-seamen specialty workers who are injured on vessels situated in state territorial waters. Otherwise, differing remedies would be provided to workmen injured in the performance of the identical offshore mineral-production employment— remedies would differ, depending on whether the injury occurred in state waters or on the Outer Continental Shelf, and could differ from state to state, depending upon in which state’s territorial waters the injury occurred.

Conclusion

Boudreaux was injured while working on navigable waters and while engaged in “maritime employment” within the meaning of the LHWCA. The district court correctly held that, under the factual showing made for purposes of the summary judgment motion, Boudreaux was a “maritime employee”. Consequently, we AFFIRM the judgment of the district court.

AFFIRMED.

APPENDIX

The issue arises in the following context:

The plaintiff Boudreaux brings this maritime tort suit against AWI, Inc., the owner and operator of the vessel (drilling barge) upon which he was injured. Boudreaux alleges that he was employed by Aquatek, Inc. as a rigger on a wireline crew working aboard the vessel and that he was injured through the negligence of AWI while performing wirelining operations in the course and scope of his employment. AWI subsequently filed a third-party demand against Aquatek (the plaintiff Boudreaux’s employer) and its insurer (“American"). AWI alleged that Aquatek’s fault was a direct cause of the accident, and it prayed for indemnifying or contributing judgment against these third-party defendants in the event the plaintiff Boudreaux was allowed recovery against AWI.

American, Aquatek’s insurer, filed a motion for summary judgment. (It is conceded that, with regard to the issue before us, this insurer asserts the statutory defense of its insured, the employer Aquatek.) The ground upon which this motion was sustained is the statutory immunity of Aquatek, the employer, from any liability to its “maritime employee” within the coverage of the LHWCA, other than the exclusive remedy provided by that Act. 33 U.S.C. § 905.

Thus, if Boudreaux at the time of the injury was a “maritime” employee provided a remedy by the LHWCA, then his employer Aquatek cannot be held liable to the defendant AWI to indemnify it for, or to contribute to the payment of, any damages awarded to Boudreaux against AWI for injuries sustained in the course of his “maritime” employment. The district court so held, in granting the employer’s insurer summary judgment dismissing AWI’s third-party demand against it. By virtue of a Rule 54(b) order determining there was no just reason for delay and directing entry of judgment, the dismissal is an appealable judgment.

1 . If a member of a similar wireline crew was injured while performing his duties on a movable barge offshore on the Outer Continental Shelf, he would be entitled to LHWCA benefits. See Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1356, esp. § 1333, which so provides as to employees there injured in operations conducted for the purpose of exploring for, developing, removing or transporting the natural resources of the subsoil and seabed of the Outer Continental Shelf.

2 . On two occasions the Supreme Court has indicated that the “language of the 1972 Amendments is broad and suggests that we should take an expansive view of the extended coverage,” National Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 268, 97 S.Ct. at 2359, and that the decision (to focus on the nature, not location of employment) “also1 serves the broader congressional purpose of expanding coverage. Congress intended to apply a simple, uniform standard of coverage.” Pfeiffer v. Ford, supra, 444 U.S. at 83-84, 100 S.Ct. at 338.

3 . Fusco v. Perini North River Associates, 601 F.2d 659 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980), rev’d on remand, 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981).

4 . Robertson, Injuries to Marine Petroleum Workers: A Plea for Radical Simplification, 55 Tex.L.Rev. 973 (1977).