Rehearing and Rehearing En Banc Denied December 2, 1987.
GARWOOD, Circuit Judge:
This case is a maritime personal injury action by appellee-cross-appellant Dorothy Lyons (Lyons) against her employer, appellant-cross-appellee Kerr-McGee Corporation (Kerr-McGee), and appellee Ma-Ju Marine Services, Inc. (Ma-Ju), the owner and operator of the vessel on which Lyons was injured while it was under time-charter to Kerr-McGee. Lyons sought recovery from Ma-Ju and Kerr-McGee under section 5(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b), and against Kerr-McGee also under the Jones Act, 46 U.S.C. § 688. The district court directed a verdict in favor of Kerr-McGee on the Jones Act claim, and rendered judgment on the jury verdict awarding Lyons recovery against Kerr-McGee, but not against Ma-Ju, on her section 5(b) claim. Lyons and Kerr-McGee each appeal.
Facts and Proceedings Below
Kerr-McGee employed Lyons as a switcher in the Breton Sound Gas Field off the Louisiana coast. In this offshore field there are several fixed platforms surrounded by scattered oil and gas wells and well head structures. The switchers conduct assorted tests at the well sites to ensure that the oil and gas are flowing freely. Through various charter arrangements, Kerr-McGee hired boats to transport the switchers and other workers from well to well. Kerr-McGee had time-chartered the
On July 4, 1982, Lyons was seriously injured in a fall from the C.C. RIDER's cabin deck to the main deck. As the boat drew near a well site, Lyons proceeded to descend steps leading to the main deck. As she was doing so, the boat lurched and threw her on her back, causing significant injuries and severe pain. Lyons began receiving LHWCA compensation payments from Kerr-McGee.
This litigation began when Kerr-McGee sought reimbursement from Ma-Ju and its insurer for LHWCA compensation paid to Lyons. Sometime later, Lyons filed suit directly against Kerr-McGee, Ma-Ju, and Ma-Ju's insurers.
The district court, concluding that the evidence established as a matter of law that Lyons was not a seaman, granted Kerr-McGee's motion for directed verdict on Lyons' Jones Act claim. Her section 5(b) claims were submitted on special interrogatories to the jury, which found that Kerr-McGee "exercise[d] control" over the C.C. RIDER, that Kerr-McGee was negligent, that Ma-Ju was not, and that Lyons was fifty percent contributorily negligent and suffered $262,500 damages. Judgment was entered on the verdict that Lyons recover $131,250 from Kerr-McGee but take nothing from Ma-Ju. Kerr-McGee appeals complaining, inter alia, that there is no evidence that it, a time-charterer, was guilty of any vessel negligence so as to be liable under section 5(b). Lyons appeals complaining of the directed verdict against her on seaman status for Jones Act purposes and of various asserted trial errors. We sustain Kerr-McGee's appeal and reject Lyons'.
I. Seaman Status
Lyons sought to establish that she was a Jones Act seaman. Determining seaman status is "an inherently factual question" and thus is "generally a question for the fact-finder." Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir.1986) (en banc). Nonetheless, if the requisite proof is absent, a court may decide that seaman status is lacking as a matter of law. Id. at 1074; White v. Valley Line, Co., 736 F.2d 304, 305 (5th Cir.1984); Wallace v. Oceaneering International, 727 F.2d 427, 432 (5th Cir.1984); Dove v. Belcher Oil Co., 686 F.2d 329, 334 (5th Cir.1982). A trial court may "enter a directed verdict where the record demonstrates that reasonable persons could not draw conflicting inferences which might lead to another conclusion." Theriot v. Bay Drilling Corp., 783 F.2d 527, 532 (5th Cir.1986). The decisional developments leading to this Circuit's test for seaman status have been described on many occasions, and we will not retrace that history here. See generally Barrett, 781 F.2d at 1069-74; Robertson, A New Approach to Determining Seaman Status, 64 Texas L.Rev. 79 (1985). Seaman status is a jury question if there is evidence that (1) the plaintiff was "assigned
Based on the evidence presented, there is no reasonable basis on which a jury could have found that Lyons was a seaman.
Even though she was not assigned to a vessel, Lyons could meet the first prong of the Robison test if she performed "a substantial part of [her] work on the vessel." 266 F.2d at 779. This would require her to show she worked on the boat "with at least some degree of regularity and continuity." Bertrand v. International Mooring & Marine, Inc., 700 F.2d 240, 246 (5th Cir.1983), cert. denied, 464 U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984) (quoting Barrios v. Engine & Gas Compressor Services, Inc., 669 F.2d 350, 353 (5th Cir.1982)). Lyons did not perform any of her job-related duties on the ferry boats, except to "sometimes" receive on the boat radio messages from Kerr-McGee as to what was to be done at a well site she was working on. The evidence suggested that she occasionally helped the pilot by tying the boat to the platform, or helped clean it, but testimony at trial also established that minor aid such as this was extended as a courtesy, and not as a part of her duties as an employee. In any event, Lyons' on-board assistance and her receipt of radio messages clearly did not amount to a substantial part of her work.
Indeed, Munguia presented a stronger case for seaman status than does Lyons. See also Barrios, 669 F.2d at 353-54. That Lyons was injured while on the vessel does not change the result. Longmire, 610 F.2d at 1347.
Lyons relies heavily on Coulter v. Texaco, Inc., 714 F.2d 467 (5th Cir.1983), a case in which we affirmed the district court's summary judgment that plaintiff was a seaman. Coulter is inapposite, however. Curtis Coulter was a roustabout employed by Texaco, Inc. in its Lafitte Field. As in this case, workers necessarily traveled in the field by boat. But the vessel was much more than a means of transportation for Coulter. "The uncontradicted facts demonstrate that the roustabouts frequently performed their work on the deck of the vessels.... Indeed, on the day of Coulter's injury, he had performed part of his duties on the vessel...." Id. at 469. Unlike Coulter, Lyons performed none of her job-related duties on board the C.C. RIDER. This important factual distinction renders Coulter inapposite here. Munguia, which we find controlling, also distinguished Coulter on this basis. 768 F.2d at 653-54. Other Coulter-like cases are similarly inapposite.
Lyons does not meet the first prong of Robinson. As the Robinson prongs are conjunctive, that ends the matter. We also observe that there was no substantial evidence that Lyons' job-related duties contributed in any material manner to the mission of the vessel.
We agree with the district court that the evidence could not support a jury finding that Lyons was a seaman.
II. LHWCA Claims
As previously observed, see note 1, supra, Lyons was covered under the LHWCA and received compensation thereunder from Kerr-McGee, her employer. In addition to her Jones Act claim, Lyons also sued Kerr-McGee, time-charterer of the C.C. RIDER, for vessel negligence as authorized by section 5(b) of the LHWCA. We now consider whether the district court erred in overruling Kerr-McGee's motion for directed verdict and for judgment n.o.v. on Lyons' section 5(b) claim on the ground that as a time-charterer Kerr-McGee was not guilty of or responsible for any of the vessel negligence shown.
Section 5 (now section 5(a)) of the original 1927 Act expressly stated that LHWCA compensation was the exclusive remedy for covered employees against their employer. However, the combined effect of two prominent Supreme Court cases — Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), and Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) — undermined this exclusivity in some circumstances by permitting an injured longshoreman
In the 1972 amendments, Congress retained the exclusivity provision — section 5 — as new section 5(a), and added subsection (b), which permits covered employees to sue the "vessel" for its negligence, but overrules that part of Sieracki that allowed unseaworthiness claims. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 521 (1979). Furthermore, section 5(b) overrules Ryan by prohibiting the "vessel" from bringing an indemnification claim against the employer. See Edmonds, 99 S.Ct. at 2757.
A leading treatise took the view that Congress also intended to overrule Reed, G. Gilmore & C. Black, supra, § 6-57 at 450. However, this Court held that Reed-type actions, though limited to claims of employer vessel negligence, survived the 1972 amendments. Smith v. M/V Captain Fred, 546 F.2d 119 (5th Cir.1977). The Supreme Court endorsed this position in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). Noting that section 5(b) specifically prohibits a longshoreman from suing his vessel/employer if his injuries are caused by the negligence of others providing such services to the vessel,
Section 2(21) of the LHWCA defines "vessel" as meaning the vessel upon or in connection with which a covered employee is injured in the course of his employment, "and said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member." 33 U.S.C. § 902(21). Although "time-charterer" is not specifically mentioned in the definition, we have held that it is included. Helaire v. Mobil Oil Co., 709 F.2d 1031, 1041 (5th Cir.1983). See also Balfer v. Mayronne Mud & Chemical Co., Inc., 762 F.2d 432, 435 (5th Cir.1985). Contra: Amox v. Barge # ATB99, 587 F.Supp. 1529 (D. Alaska 1984); Keller v. United States, 557 F.Supp. 1218 (D.N.H.1983).
Since Lyons, an LHWCA-covered employee, was injured on the C.C. RIDER while in the course of her employment, and since Kerr-McGee was then the time-charterer of the C.C. RIDER, Kerr-McGee is subject to suit for negligence by its employee Lyons under section 5(b), notwithstanding section 5(a)'s exclusivity provision. However, the conclusion that section
We recently reiterated that "when it enacted § 905(b), Congress did not create a new or broader cause of action in admiralty than that which previously existed...." Richendollar v. Diamond M Drilling Co., Inc., 819 F.2d 124, 125 (5th Cir.1987) (en banc). As we said in Parker v. South Louisiana Contractors, Inc., 537 F.2d 113, 117 (5th Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977), respecting section 5(b) third-party actions, "section 905(b) eliminates only an injured worker's right to bring actions against third parties based on unseaworthiness, and preserves his right under prior law to recover for third party negligence." (Emphasis added.) Again, in Russell v. Atlantic & Gulf Stevedores, 625 F.2d 71, 72 (5th Cir.1980), we addressed the same topic, stating, "Section 905(b) did not create a new negligence cause of action but merely preserved an injured worker's right to recover damages from third parties in accordance with nonstatutory negligence principles...." (Emphasis added.) In other words, section 5(b) eliminated unseaworthiness, and did not expand negligence liability.
Further, as other decisions have made clear, section 5(b) did not even fully preserve the negligence action. To begin with, the suit allowed by section 5(b) is for injuries "caused by the negligence of a vessel ... against such vessel." As applied to a defendant which is a "vessel" under section 2(21) because it is the vessel's owner, the section 5(b) liability is "only for negligence in its `owner' capacity." Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 2547 n. 6, 76 L.Ed.2d 768 (1983) (emphasis added). See also Tran v. Manitowoc Engineering Co., 767 F.2d 223, 226, 227 (5th Cir.1985) (same; vessel owner liable under section 5(b) "only for vessel owner negligence" or "only for its negligent acts as barge owner"); Smith v. Eastern Seaboard Pile Driving, Inc., 604 F.2d 789, 795 (2d Cir.1979) ("in order to determine whether a shipowner-employer may be held liable" under section 5(b) "a court must decide if the negligence that caused the accident was `owner occasioned'"). By a parity of reasoning, Kerr-McGee, which is a vessel under section 5(b) only because it was the vessel's time-charterer, is subject to liability under section 5(b) only for negligence in its "time-charterer" capacity.
As we understand it, this means that where a defendant is subject to suit for negligence under section 5(b) solely by reason of having been the time-charterer of the vessel on which the LHWCA-covered plaintiff was injured in the course of her employment, the duties and responsibilities against which the claim of the defendant's negligence must be measured are necessarily limited to those which arise out of and are founded on the relationship which the time-charter establishes between the defendant and the vessel. Such duties and responsibilities of the time-charterer are not enhanced under section 5(b) because the plaintiff is an employee of the defendant injured in the scope of her employment. Castorina v. Lykes Brothers S.S. Co., Inc., 758 F.2d 1025, 1033 (5th Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985). Nor are such duties and responsibilities of the time-charterer, and its consequent potential negligence, otherwise any greater in the context of a section 5(b) suit than in other contexts, for as we have noted section 5(b) did not expand negligence liability. Indeed, the Court's opinion in Scindia counsels against a broad reading of the duties arising out of a defendant's relationship to the vessel for purposes of section 5(b) negligence liability. There the Court explained:
Moreover, a time-charterer cannot be liable under section 5(b) unless it is negligent, and it is a fundamental precept of tort law that there can be no negligence unless there is first a duty. This principle is well ensconced in section 5(b) jurisprudence. See, e.g., Futo v. Lykes Bros. Steamship Co., 742 F.2d 209, 214 (5th Cir.1984) (sustaining summary judgment that shipowner was not liable for harm caused by defective scaffolding because shipowner had no duty to intervene); Ducote v. International Operating Co., 678 F.2d 543, 546 (5th Cir.1982) (barge owner was not liable as a matter of law to plaintiff who fell off a rickety ladder because the owner had no duty to provide safe ladders; this was the responsibility of the independent cleaning contractor that employed plaintiff); Bess v. Agromar Line, 518 F.2d 738, 742 (4th Cir.1975) (affirming dismissal of longshoreman's section 5(b) claim against the shipowner because "there was no evidence of any duty on the shipowner to provide dunnage under the facts of this case").
Lyons does not claim that Kerr-McGee was guilty of any affirmative or active negligence, or that it did anything which created or brought about or maintained a dangerous condition. Lyons claims that her fall was caused by the C.C. RIDER's lack of both adequate handrails and nonskid-type paint or surfacing on its steps, the fact that its steps were too steep, and the captain's having negligently caused or allowed the vessel to hit the platform as Lyons was descending the steps. The captain was clearly Ma-Ju's employee. There is no evidence or claim that Kerr-McGee had anything to do with the construction, design, or maintenance of the C.C. RIDER, its steps or handrails, or that it had ever caused or required them to be in the condition they were in when Lyons was injured, or that it ever prevented or discouraged Ma-Ju, the vessel's owner and operator, from changing or correcting those matters.
The question, then, is whether in these circumstances Kerr-McGee had the duty to see to it that the mentioned conditions of the vessel were corrected. The answer lies in the traditional allocation of responsibility between a time-charterer and ship, as modified by the contract between Kerr-McGee and Ma-Ju. As will be shown, both custom and agreement left control over and responsibility for the C.C. RIDER's condition solely in the hands of Ma-Ju.
In the traditional time-charter arrangement, the charterer directs the commercial activities of the boat, but
"Possession and control remain with the owner and the ship is operated by its regular crew, but the charterer determines the
Certainly the time-charterer has some responsibilities. It designates the cargo that the chartered vessel will carry, and if, for example, it carelessly chooses an unsafe combination of cargo to share the same hold, it could be liable for resulting damages. The time-charterer directs where and when the vessel will travel, so if it forces it out in hurricane weather or similarly treacherous conditions, it may be liable under section 5(b). See Helaire, 709 F.2d at 1039. See also Graham v. Milky Way Barge, Inc., 811 F.2d 881, 892-93 (5th Cir.1987). But its duties are determined by tradition and agreement.
The charter agreement between Kerr-McGee and Ma-Ju does not alter the traditional allocation of duties and control in any presently relevant manner. In fact, the agreement makes clear that the parties contemplated that the owner-operator would be responsible for the condition of the vessel. Paragraph Three states in part:
Under the provisions of the charter, it is clear that maintaining the safety of the vessel's deck and stairs was the sole responsibility of Ma-Ju. Nor did actual operations under the agreement indicate otherwise. The vessel had been under charter from Ma-Ju to Kerr-McGee since 1980, and there was no evidence that prior to Lyons' fall Kerr-McGee had ever exercised or assumed any control in this regard. Indeed, Ma-Ju, without being told by Kerr-McGee to do so or what to accomplish thereby, had reconditioned the C.C. RIDER, including repainting the deck and stairs in 1982, a few months before the incident in question.
The essential thrust of Lyons' argument is that Kerr-McGee had sufficient economic power so that, as a practical matter, Ma-Ju would have done anything in reason that Kerr-McGee requested concerning the condition of the vessel, in order to keep the charter arrangement. This may well be so. The charter was "on a day to day basis," and we may assume that it was far more significant to little Ma-Ju than to big Kerr-McGee. Some confirmation of this may be reflected in the evidence proffered by Lyons, but rejected by the district court, that after the accident Ma-Ju added another railing on the steps because the captain of another vessel under charter to Kerr-McGee by a corporation under common ownership with Ma-Ju told a principal of Ma-Ju that one or more unidentified Kerr-McGee employees had, following the accident, made statements to the effect that there should have been an additional railing. When asked on deposition if in adding the railing in these circumstances "you were doing what you felt Kerr-McGee wanted because you wanted to keep this contract?" the Ma-Ju principal replied, "Right."
Kerr-McGee's status as a time-charterer distinguishes this case from prior cases allowing suits against employers under section 5(b). Those cases involve true shipowners, bare boat charterers, or owners pro hac vice.
In Jackson, the defendant/employer was the true owner of the vessel, and in Pfeifer (the case which held that Reed-type actions survived the 1972 amendments) the defendant/employer was the owner pro hac vice of the vessel.
This pattern is present in the circuit court decisions that hold the employer liable.
There should not be reactive immunity for time-charterers simply because their relationship to the vessel does not rise to the level of owner pro hac vice. Neither, however, should there be automatic imposition of liability on time-charterers merely because they are "vessels" under the Act. Instead, we focus on the legal control and responsibility imposed by the particular relationship, and this analysis applies to each type of party defined as a "vessel" in section 2(21). See Turner, 651 F.2d at 1306 n. 5 (distinguishing a case that absolved a time-charterer of liability because "the negligence found by the jury [in this case] occurred in the course of precisely those operations for which the time-charterer had assumed contractual responsibility").
We hold that a time-charterer is not liable under section 5(b) unless the cause of the harm is within the charterer's traditional sphere of control and responsibility or has been transferred thereto by the clear language of the charter agreement. See Mallard, 634 F.2d at 242 n. 5 (noting that this Circuit "seems reluctant to find any shift of operational responsibility for personal injuries to the time charterer absent clear language to that effect"). Inasmuch as Kerr-McGee was not responsible for maintaining the safety of the C.C. RIDER's deck, either by custom or agreement, Lyons has no section 5(b) claim against it as a matter of law.
III. Trial Rulings
Our disposition of the two primary issues in this case makes it unnecessary to discuss
A. Exclusion of Evidence of Subsequent Remedial Measures
Lyons objected to the district court's exclusion of three pieces of evidence: (1) photographs of the C.C. RIDER taken after the installation of an additional handrail; (2) testimony by a Kerr-McGee supervisor regarding whether a handrail was added to the C.C. RIDER after the accident; (3) the testimony by a co-owner of Ma-Ju regarding its post-accident addition of a handrail to the C.C. RIDER (see note 10 and accompanying text, supra).
Our holding that as a matter of law Kerr-McGee had no duty to correct conditions on the C.C. RIDER's deck disposes of the argument that the evidence should have been admitted to prove control. As we stated earlier, the fact that Kerr-McGee may have had the economic leverage to, as a practical matter, extract changes in the vessel's deck does not alter our holding that it had no duty to do so. Even with the complained of excluded evidence, Lyons' section 5(b) case against Kerr-McGee would still have been fatally deficient.
As to Ma-Ju's negligence, the evidence was clearly inadmissible under Fed.R.Evid. 407.
Lyons argues that the evidence was admissible to impeach the testimony of Kerr-McGee's supervisor, LeBlanc, that he considered the C.C. RIDER safe. We hold that the district court did not abuse its discretion in excluding the evidence for this purpose. LeBlanc was initially called as a witness by Lyons under the adverse witness rule and admitted that in a Kerr-McGee form accident report which he filled out concerning the incident he wrote, "install hand rails on steps and no-skid surface on each step" in the blank introduced by the words "briefly state your opinion as to what action if any could prevent recurrence of similar incidents."
Lyons also contends that evidence that Ma-Ju subsequently added the handrail was admissible as tending to negate her contributory negligence. We doubt that it had a sufficiently significant probative tendency to do so such that we could say the district court abused its discretion in excluding the evidence. See note 16, supra. In any event, since the jury found Ma-Ju was not negligent and since we have held that Kerr-McGee was entitled to a directed verdict (and would have been even if the complained of excluded evidence had been admitted), the question of Lyons' contributory negligence is immaterial.
We conclude that the complained of evidentiary rulings present no reversible error.
B. Comments During Closing Argument
During closing argument, Lyons' counsel referred to LeBlanc's accident report as an admission by Kerr-McGee that the C.C. RIDER was dangerous. The district court broke in and admonished the jury to give such weight to the report as it deemed appropriate and not to feel bound by its conclusions. In light of the district court's earlier explanation to the jury of its important role as independent fact finder, its interruption and unfortunately lengthy comments were arguably unnecessary. As an initial proposition, and viewing the matter on the cold record, we might have been inclined to proceed in another fashion had we presided at trial. However, we did not preside, the district court has the right to comment on the evidence, and we do not reverse on this ground unless it abuses its discretion. Bass v. International Brotherhood of Boilermakers, Local 582, 630 F.2d 1058, 1064-65 (5th Cir.1981). We are unable to find any reversible error in the present circumstances. Under Rule 407, the only legitimate value of the report was as impeachment of LeBlanc, and not as substantive evidence of fault. See notes 14 & 15, supra. The district court was entitled to take measures to see to it that this evidence was not misused by the jury. See note 16, supra. Here the district court's comments merely stressed that the jury was to make its own mind up on the substantive fault issues; the comments did not denigrate the significance of the report as impeachment evidence.
We affirm the district court's ruling that there was insufficient evidence to present a jury question on the issue of Lyons' seaman status. We hold that Kerr-McGee had no duty to require Ma-Ju to correct alleged defects in the C.C. RIDER's deck, and that as a matter of law Kerr-McGee is not liable under section 5(b). We further hold that neither the district court's evidentiary rulings nor its comments on the evidence present grounds for reversal.
Accordingly, we affirm judgment in favor of Ma-Ju; and we reverse the judgment in favor of Lyons and against Kerr-McGee, and remand for entry of judgment in favor of Kerr-McGee.
AFFIRMED in part; REVERSED in part and REMANDED.