Forrester v. Ocean Marine Indem. Co. ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-3924
_____________________________
RANDY P. FORRESTER,
Plaintiff-Appellee,
Cross-Appellant,
versus
OCEAN MARINE INDEM. CO.,
Defendant,
ARCO OIL & GAS CO.,
Defendant-Appellant,
Cross-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________
(December 17, 1993)
BEFORE REYNALDO G. GARZA, KING and DeMOSS, Circuit Judges.
PER CURIAM:
In this admiralty case, Defendant-Appellant Arco Oil & Gas
Company (Arco) appeals the district court's determination that
Arco was liable for the injuries sustained by Plaintiff-Appellee
Randy P. Forrester when he attempted to disembark from the M/V
SEA HERCULEAN (the crewboat). Arco insists that it owed no duty
of reasonable care to Forrester in any of its several statuses:
time charterer, platform owner, dock owner. As we agree, we
reverse the judgment of the district court and render judgment
for Arco, dismissing Forrester's action with prejudice.
I
FACTS AND PROCEEDINGS
Immediately prior to the accident, Forrester, a helicopter
mechanic employed by Pumpkin Air, Inc., was working aboard an
offshore production platform owned by Arco. Arco hired Pumpkin
Air to provide helicopter transportation between the platform and
the shore. Because inclement weather prevented Forrester from
leaving Arco's platform by helicopter, he was provided
transportation on the crewboat. Owned and operated by Transocean
Marine, the crewboat was time chartered by Arco. At the onshore
dock facility, Arco's dispatcher directed the crewboat captain to
dock at the east dock, which was owned and operated by Arco.
Once the crewboat arrived, an Arco employee on the boat, Joe
Smith, gestured to the men to move to the back of the ship.
Eager to leave the crew boat after a stormy trip of four to five
hours, the passengers began to disembark without waiting for the
gangplank. They did so by stepping down onto the top of an
outboard tire bumper, then jumping down from there to the dock
several feet below. Although there is some confusion as to
exactly when Forrester disembarked, he clearly was one of the
first passengers off the boat. He testified that the passengers
behind him were yelling at him to jump as he passed his luggage
off to helicopter pilot George Schaeffer, and, as he attempted to
disembark, he fell to the dock and was injured.
The district court held that a time charterer, such as Arco,
owes a high degree of care to passengers, including a reasonably
safe means of boarding and leaving the vessel. Moreover, the
2
court found that Smith was in charge of (1) instructing
passengers as to Arco's safety rules, and (2) disembarkation.
Smith was negligent in the performance of these duties, according
to the court, as he was the first to leave the vessel and was
already in the dispatcher's office when the accident occurred.
II
BACKGROUND
In determining the liability of a charterer to a third
party, we must first ascertain the nature of the charter
relationship. There are three general categories of charters:
the bareboat charter, the time charter, and the voyage charter.1
These categories are further characterized as either demise or
non-demise charters: bareboat charters are demise charters; both
time charters and voyage charters are non-demise charters. The
distinction between the demise and non-demise charters depends on
the degree of control retained by the owner of the vessel. In a
demise charter, the vessel owner transfers full possession and
control to the charterer, who in turn furnishes the crew and
maintenance for the vessel (thus the term "bareboat").
Consequently, the bareboat charterer as a demise charterer is the
owner pro hac vice of the vessel for the duration of the
contract. The demise charterer is therefore responsible in
personam for the negligence of the crew and the unseaworthiness
of the vessel.2
1
THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 381 (1987).
2
Id. at 382.
3
In contrast, the non-demise charter does not vest nearly the
same degree of control in its charterer. A time charter only
entitles the charterer to the use of the vessel for a specified
time. The vessel owner retains primary possession and control.
Although a time charterer does direct the destinations of the
vessel,3 he does not control the details of vessel operation
required to reach those destinations. As a non-demise charterer,
the time charterer is thus not liable for claims of negligence of
the crew or for the unseaworthiness of the vessel. But the time
charterer may be liable in that capacity for its own negligence.4
A voyage charter is a contract to use a vessel for a specified
voyage or series of voyages.5 In the instant case, it is clear
that Arco was a time charterer and neither a bareboat nor a
voyage charterer. In addition, Arco is the owner/operator of
both the platform from which Forrester embarked onto the crewboat
and the dock onto which he disembarked from the vessel.
III
ANALYSIS
A. Standard of Review
On appeal, Arco challenges both the district court's legal
determination that it owed a duty to Forrester as a time
charterer and the various factual findings supporting the finding
3
Id.
4
Graham v. Milky Way Barge, Inc., 811 F.2d 881, 893 (5th
Cir. 1987).
5
SCHOENBAUM, supra note 1, at 382.
4
of negligence. Forrester, in turn, challenges the district
court's finding that he was contributorily negligent. Whether a
time charterer owes a duty to a passenger/subcontractor is a
question of law that we review de novo. The remaining factual
issues are reviewed for clear error.
B. Theories of Recovery
In its opinion, the district court relied on two related
theories of recovery: (1) the time charterer is liable for its
negligence in conducting its own affairs as a time charterer and
(2) Arco, as a time charterer, owed a duty of care to Forrester
as its passenger. In his brief, Forrester adds that Arco, as
owner/operator of both the platform and the dock, owed him a duty
of safe ingress and egress to and from the vessel. We review
each contention in turn.
1. District Court Opinion
The two theories of recovery relied on by the district court
are interrelated. It is axiomatic that for a time charterer to
be liable for its own negligence, it must first owe a duty of
care. Here, the district court concluded that a duty of care was
owed because of Forrester's status as a passenger. Undeniably,
our case law establishes that:
In this circuit, the standard of care owed to
passengers on a ship, including their embarkation and
disembarkation, has variously been stated as a "high
degree of care," as a "duty of . . . ordinary care,"
"as a reasonably safe means" of boarding and leaving
the vessel, as a duty of "reasonable care," and "as a
duty of reasonable care under the circumstances."
Despite the various formulas enunciated in these cases
a review of the facts and the standards of care shows
that shipowners, relatively speaking, are held to a
5
high degree of care for the safety of passengers.6
A review of the cases dealing with this standard of care,
however, reveals that this duty is owed by the owner of the
vessel, whether that be the actual owner or the owner pro hac
vice. We find no case, and none has been cited to us, in which a
time charterer is held liable for the safe embarkation or
disembarkation of passengers, absent special circumstances.
Our decision in Moore v. Phillips Petroleum Co.7 makes clear
this distinction between a time charterer and a vessel owner.
Although that case was decided in the context of the Longshore
and Harbor Worker's Compensation Act, the reasoning is equally
applicable to cases such as this, involving general maritime
negligence principles. In Moore, we explained that the
"traditional time-charterer duties" are limited to the vessel's
commercial activities, such as designating the cargo and the
routes and destinations, specifically noting that the vessel
owner retains responsibility for providing "a reasonably safe
means of access for those boarding or leaving the vessel."8
Having reaffirmed that a time charterer does not owe a per
se duty of safe access to a passenger, we next examine whether,
under the instant circumstances Arco may have altered the
traditional allocation of duties and assumed control of (and thus
6
Smith v. Southern Gulf Marine No. 2, Inc., 791 F.2d 416,
419-20 (5th Cir. 1986).
7
912 F.2d 789 (5th Cir. 1990).
8
Id. at 792.
6
responsibility for) the disembarkment proceedings, as the
district court found.9 The district court stated, without
explanation, that "[t]he evidence presented shows that the Arco
Production Supervisor [Smith] was basically in charge of the
disembarkation procedure and in charge of instructing his
employees and sub-contractor passengers as to Arco's safety rules
and regulations." The only evidence that Arco, through Smith,
took control of the disembarkment proceedings and thereby
exceeded its traditional time charter role, is that Smith
motioned the passengers to the back of the ship and that, through
employees like Smith, Arco customarily gave its employees and
subcontractors general safety instruction. In addition, there is
deposition testimony that Smith felt a personal obligation
towards his men.
Even accepting these facts as true,10 we find them
insufficient as a matter of law to show that Arco usurped the
traditional control that is retained by the vessel's crew in a
time charter situation. Smith's gesture to the passengers is at
best minimal participation in disembarkment. Moreover, Arco's
general safety instructions to its employeesSQinstructions
presumably given by most employersSQdoes not by themselves prove
9
See Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830
F.2d 1332 (5th Cir. 1987).
10
There is, however, some inconsistency between finding
that Smith exercised control over the disembarkment procedures
and the court's subsequent findings that the captain of the
vessel instructed the passengers (including Smith) to remain on
board and wait until the vessel docked. This indicates that the
captain was supervising the disembarkment.
7
that Arco exceeded its traditional role of time charterer.
Consequently, Arco assumed no safe access duty to the vessel's
passengers. It could not, therefore, be responsible for their
injury in the process of disembarking.
2. Arco's Ownership/Operation of the Platform and Dock
Forrester advances an additional theory of recovery in his
brief, to wit: As owner/operator of the platform and dock, Arco
owed a duty of safe ingress and egress to Forrester. To
strengthen his position, Forrester notes that Arco's employee
directed the captain where to dock the vessel for disembarking.
Again, we are aware of no cases in this circuit holding a
platform owner liable for the safe eventual disembarkment of a
subcontractor's employee back at the onshore dock. The only
relevant case provided by Forrester is Moore, discussed above.
In that case, Moore transferred himself from the vessel to the
platform (not the onshore dock) by swinging from a rope attached
to a beam on the platform. When the rope broke Moore fell to the
platform and was injured. In addressing the question of
liability, we stated:
[T]he traditional allocation of duties between
employer/platform owner, time charterer and vessel
owner places liability for harm on the party that is
most directly responsible for the dangerous condition
that caused the harm. . . . [E]ither ODECO as platform
owner-employer, Co-Mar as vessel owner, or both were
responsible for Moore's egress from the vessel to the
fixed platform. As the platform owner, ODECO as
employer controlled the rope's physical condition and
knew or could be charged with knowledge that the rope
was not safe for the purpose intended. As the vessel
owner, Co-Mar was responsible for access to and from
its boat. The rope swing is an artificial means of
ingress and egress to and from the fixed platform. The
8
responsibility for the hazards it presents falls either
on the platform owner-employer or on the vessel owner
or both but, in any event, outside of the traditional
duties of a time charterer.11
The instant case, however, is distinguishable from Moore in
several respects. First, Forrester was not moving between the
platform and the vessel, but between the vessel and the dock.
Moore stands for the proposition that some duty is owed by a
platform owner to its employee for his safe movement between the
vessel and the platform when the artificial means of ingress is
part of the platform. There is, however, no support for a broad
rule that Arco, as platform owner, owes a duty to an employee to
deliver him safely to the dock. Second, in Moore, the worker was
a common law employee of the platform owner, thereby implicating
the duty of an employer to provide a safe work place for its
employees. Even if we were to view the independent contractor,
Forrester, in the same light as a common law employee of Arco,
however, his work station was not the dock but the platform, so
the Moore duty does not attach to Forrester's disembarkation at
the dock.
The issue of whether Arco as owner/operator of the dock owed
a duty of safe ingress and egress to Forrester is controlled by
our decision in Florida Fuels, Inc. v. Citgo Petroleum, Corp., 6
F.3d 330 (5th Cir. 1993). In Florida Fuels, the barge OSPREY
berthed at a dock owned and operated by Citgo Petroleum Corp.
(Citgo). Id. at 331. After securing the barge, Carl Authement
11
Moore, 912 F.2d at 792.
9
was ascending a ladder to return to the barge when he fell and
struck his head on the pier, and drowned. Id. Authement's
parents and children filed a maritime suit against Citgo. Id.
The issue in Florida Fuels was whether Citgo owed a duty to
Authement to provide a means of access between the dock and the
vessel. Id. at 332. We concluded that maritime law imposed no
duty on a dock owner to provide a means of access to a vessel for
the vessel's crew members. Id. at 334. We further concluded
that the only duty established by Louisiana law was to provide a
dock which was reasonably safe. Id. Because there was no defect
in the dock itself, we ruled that Citgo did not breach its duty
to maintain a reasonably safe premises as a matter of law. Id.
Forrester's argument that Arco, as the dock owner, owed him
a duty of safe ingress/egress from the vessel to the dock is,
therefore, meritless. The only duty that was owed to Forrester
was the duty, under Louisiana law, for Arco to provide a dock
which was reasonably safe. Here, the district court expressly
found that the passengers did not wait long enough for a gangway
to be put in place. Accordingly, there was no defect in the dock
that caused the accident; rather, it was the hurried and
undisciplined nature of the disembarking procedureSQlegally under
the control of the vessel's crewSQthat caused the problem.
In addition, Forrester insists that Arco was negligent
because it directed the vessel to the east dock, which was lower
than the west dock. According to Forrester, had the crewboat
docked at the higher west dock, there would have been a shorter
10
distance for Forrester to jump. This argument is meritless, as
it presupposes that Arco knew that the passengers would refuse to
wait for the gangplank, instead choosing, in the words of the
crewboat captain, to jump "[l]ike [lemmings] off a cliff."
IV
CONCLUSION
As the basis of its decision in favor of Forrester, the
district court held that a time charterer owed a duty of due care
to its passengers. Being unable to find support in law for that
proposition, we cannot agree that such a duty exists. Equally
unavailing is Forrester's argument that Arco owed him a duty of
safe ingress and egress by virtue of its ownership of the
platform and the dock. Although these facts do create some
duties of due care, they do not create a duty of safe access to
passengers disembarking at a dock from a non-owned vessel that
has taken them from the platform to shore. As Arco is under no
duty to provide safe access under these circumstances, whether as
time charterer, dock owner, or platform owner, Arco could not
have acted negligently toward Forrester. For the foregoing
reasons, we must therefore reverse the district court's judgment
in favor of Forrester, and remand for dismissal. Thus, the
judgment of the district court is REVERSED and judgment is
RENDERED in favor of Arco, dismissing Forrester's claims with
prejudice.
11