Richard Martin published a maritime article, “APPURTENANCES AND UNSEAWORTHINESS, PART II” in the January edition of the “Louisiana Advocate.”
Both Frank Lamothe and Mr. Martin are considered some of the best admiralty and maritime lawyers in the state and are extremely skilled trial lawyers who have won numerous multi-million dollar maritime and offshore personal injury and wrongful death cases in both state and federal courts in Louisiana as well as in other states. Their litigation experience has involved offshore cases, including fixed platforms, jack-up rigs, semi-submersibles and drill ships. They have also handled inland water cases involving inland drilling barges, crew boats, pleasure vessels, oceangoing vessels and towboats. Read the article below.
- APPURTENANCES AND UNSEAWORTHINESS, PART II
In my June 2015 LAJ Advocate article entitled “Vessel Appurtenances and Claims for Unseaworthiness and Jones Act Negligence,” I discussed how a vessel’s appurtenance might render the vessel unseaworthy, even if temporarily incorporated into the vessel. I’ve recently had a chance to see if those concepts might work in a motion for partial summary judgment on liability where U.S. District Judge Eldon E. Fallon of the Eastern District of Louisiana was asked to decide:
(a) Whether a third-party’s drilling tool became a semi-submersible drilling vessel’s appurtenance once incorporated into its drill string “bottom hole assembly”; and
(b) Even if that tool was defectively assembled before it came aboard, and not owned by the vessel owner, would its subsequent incorporation into the vessel’s drill string render the vessel unseaworthy anyway?
This admiralty case arose out of an injury sustained while the plaintiff was working aboard a semi-submersible drilling vessel. 1 Plaintiff was part of defendant ENSCO Offshore Company’s drilling crew that was engaged in “plug and abandonment” well work in the navigable waters of the Gulf of Mexico. Specifically, casing which lined the well underground was being extracted. A tool called a “shortcut spear” (a/k/a “plug and abandon spear”) was used to remove the casing; the spear goes “down hole,” expands when turned, and grabs the inside of the casing so it can be extracted. The shortcut spear was manufactured by co-defendant Schlumbeger Technology Corporation and assembled by it prior to being brought aboard ENSCO’s vessel. Plaintiff was injured when the defective shortcut spear broke apart and one of its drag blocks struck him on the neck.
On motion for partial summary judgment on liability, plaintiff argued that the defective shortcut spear was an “appurtenance” of the vessel which rendered the vessel unseaworthy. ENSCO argued that the claim should be dismissed as a matter of law because the shortcut spear was not an appurtenance of its vessel.
Judge Fallon began his very thorough analysis by noting that “The owner of the vessel has a duty to provide a vessel that is reasonably fit for its intended use. This duty to provide a seaworthy vessel requires that the vessel, its gear, appurtenances, and operation must be reasonably safe.” 2 This duty extends to “the hull of the vessel, the vessel’s cargo handling machinery, lines and tackle and all kinds of equipment either belonging to the vessel owner or brought aboard by others.” 3 “A vessel’s condition of unseaworthiness might arise from any number of circumstances. Her gear might be defective, her appurtenances in disrepair, her crew unfit. The number of men assigned to perform a shipboard task might be insufficient. The method of loading her cargo, or the manner of its stowage might be improper.”
The duty of seaworthiness extends not just to the vessel but to all equipment that is appurtenant to the vessel. 4 An appurtenance is “any identifiable item that is destined for use aboard a specifically identifiable vessel and is essential to the vessel’s navigation, operation or mission.” 5 An item can be appurtenant to the vessel even where the item is brought aboard by a contractor and the vessel did not sanction its use or know of its existence. 6
In Drachenberg, the Fifth Circuit examined the relevant factors one should look to when determining whether a piece of equipment is appurtenant to the vessel, and noted that “certain types of temporary attachment to the vessel by equipment not part of the ship’s usual gear or stored on board or controlled by the ship’s crew can satisfy the requirements for [equipment to be appurtenant to the vessel].” 7 The court also observed that it is “highly significant” when an accident occurs on-board the vessel as opposed to dockside. 8 Where an injury occurs on-board the vessel, a court should look only to whether there is a “minimal attachment” between the equipment and the ship. 9
The Drachenberg decision was guided by the Supreme Court’s decision in Victory Carriers, 10 which in turn relied on two earlier Supreme Court Decisions—Alaska S.S. Co. v. Petterson 11 and Rogers v. United States Lines. 12 In Petterson, a longshoreman on board a vessel was utilizing a breaking block brought aboard by the stevedoring company to unload the ship. While being used in connection with the ship’s gear in a proper manner by the longshoreman, the block broke causing his injuries. Even though the blocks neither belonged to the shipowner nor were part of the ship’s equipment, the Supreme Court affirmed the Court of Appeals’ decision that a seaworthiness claim was cognizable. Similarly, in Rogers, the Supreme Court held that the stevedore’s equipment, adopted by the vessel and incorporated with the ship’s cargo handling equipment, became an appurtenance of the vessel.
Equipment aboard a vessel used to perpetuate the mission and purpose of the vessel are appurtenances of the vessel. 13 Furthermore, an appurtenance need not be necessarily attached to or permanently assigned to a vessel. 14
On the date of the injury, the ENSCO crew was engaged in plugging a well that had been drilled by the vessel. In order to accomplish this task, ENSCO had to employ a bottom hole assembly. Notwithstanding the fact that it was provided by Schlumberger, the shortcut spear was part of a larger assembly for the BHA to be introduced into the drill hole for purposes of removing the casing. Thus, the shortcut spear was being used in conjunction with the primary functioning of the vessel. 15
Additionally, the other Drachenberg factors weighed in favor of Judge Fallon finding that the shortcut spear was an appurtenance of the vessel:
* The accident occurred aboard the ship in navigable waters in the Gulf of Mexico and involved a piece of equipment, the shortcut spear, that was central to the vessel’s mission of plugging the well it drilled.
* It occurred while the shortcut spear was part of the BHA and was attached to the vessel. 16
* Because the equipment was appurtenant to the vessel, ENSCO was responsible for the unseaworthy condition of such equipment.
* Plaintiff was assigned to drill deck floor hand duties aboard the vessel and directed to use chain tongs to rotate the shortcut spear. Although ENSCO did not own the shortcut spear, it was provided for use by ENSCO to perform drilling services and Plaintiff was injured in the course of providing such services.
* Plaintiff was engaged in troubleshooting the shortcut spear for immediate use when the injury occurred.
* The shortcut spear was essential to the vessel’s current plug and abandonment operations, which were part of the vessel’s mission and purpose.
While unseaworthiness is not a fault-based standard, a plaintiff nevertheless must show that the unseaworthy condition “played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.” 17 There is no dispute that the shortcut spear played a substantial part in bringing about the injury. Thus, Judge Fallon held that insofar as the shortcut spear was appurtenant to the vessel, the Plaintiff’s injury was the direct result and/or probable consequences of the vessel’s unseaworthiness.
1 Bobby Clay vs. ENSCO Offshore Company, et al., No. 14-2508 “L” (3) (E.D. La.), is presently set for trial before the Honorable Eldon E. Fallon in May 2016.
2 Drachenberg v. Canal Barge Co., Inc., 571 F.2d 912, 918 (5th Cir.1978).
3 Bush v. Diamond Offshore Co., 46 F.Supp.2d 515, 520 (E.D.La.1999).
4 Drachenberg, 571 F.2d at 918.
5 Coakley v. SeaRiver Maritime, Inc., 319 F.Supp.2d 712, 714 n. 1 (E.D.La.2004) (quoting Scott v. Trump Indiana, 337 F.3d 939, 944 (7th Cir.2003)).
6 Deffes v. Federal Barge Lines, Inc., 361 F.2d 422, 426 (5th Cir.1966).
7 Drackenbeerg, 571 F.2d at 920.
8 Id., at 921
10 Victory Carriers, Inc. v. Law, 404 U.S. 202 (1972)
11 Alaska Steamship Co. v. Petterson, 347 U.S. 396, 396 (1954).
12 Rogers v. United States Lines, 347 U.S. 984 (1954).
13 Matter of Antill Pipeline Const. Co., Inc., 1998 WL 321512, at *3 (E.D. La. June 17, 1998) (“Appurtenances are those items belonging to the owner of the vessel which were on board for the voyage and were part of what the owner risked on the vessel for purposes of the adventure.
14 Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1357 (5th Cir. 1983) (“An appurtenance to a vessel must be in use in conjunction with the primary functioning of the vessel at the time of the accident.”).
15 See Parks v. Pine Bluff Sand & Gravel Co., 712 So. 2d 905, 911 (La. App. 3 Cir. 2/18/98) (holding that the “words ‘used in conjunction with the primary function of the vessel’ should be broadly construed.”)
16 Such minimal attachment is sufficient to make an item appurtenant to the vessel. See Drachenberg, 571 F.2d at 920.
17 Phillips v. Western Co. of North America, 953 F.2d 923, 928 (5th Cir.1992).