IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 22, 2008
No. 07-60402 Charles R. Fulbruge III
Clerk
MARK L MCLAURIN; TAWANA MCLAURIN
Plaintiffs - Appellants
v.
NOBLE DRILLING (US) INC; NOBLE DRILLING CORPORATION; NOBLE
DRILLING SERVICES INC; JOHN DOES 1–100
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
Before GARWOOD, CLEMENT, and ELROD, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Mark and Tawana McLaurin (the “McLaurins”) appeal the district court’s
grant of summary judgment in favor of Noble Drilling (US) Inc., Noble Drilling
Corporation, Noble Drilling Services, Inc., and John Does 1–100 (collectively
referred to as “Noble Drilling”). The McLaurins specifically challenge the
district court’s finding that their state-law tort claims against Noble Drilling
were preempted by § 905(b) of the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950. For the following reasons,
we reverse the decision of the district court.
No. 07-60402
I. FACTS AND PROCEEDINGS
Mark McLaurin (“McLaurin”), an employee of Friede Goldman Halter, Inc.
(“Friede Goldman”), was injured in Friede Goldman’s shipyard while working as
a scaffold carpenter supporting construction work on the CLYDE BOUDREAUX,
a vessel owned by Noble Drilling. The vessel, a “mobile offshore drilling unit,”
was moored in Friede Goldman’s shipyard and was in the process of being
converted for deep-water use. As an employee of Friede Goldman, McLaurin
worked approximately 200 feet from the vessel to fabricate “pontoon extensions”
to be used in the conversion. McLaurin was injured when a shell of one of the
pontoon extensions, suspended by a crane that was left unattended, fell on him
and crushed his left hand and arm.
McLaurin received medical benefits and disability compensation from
Friede Goldman under the LHWCA. The McLaurins then sued Noble Drilling
as the vessel owner, alleging negligence claims under Mississippi law, general
maritime law, and § 905(b) of the LHWCA. They claimed that Noble Drilling
“had assumed substantial control, through its on-site personnel in the shipyard,
over the work on the pontoons and the sequence in which it was performed, and
failed to exercise due care to ensure the observation of proper safety practices.”
Noble Drilling moved for summary judgment, arguing that the McLaurins’
state-law tort claims were preempted by the last sentence of § 905(b) of the
LHWCA, which states: “The remedy provided in this subsection shall be
exclusive of all other remedies against the vessel except remedies available
under this chapter.” 33 U.S.C. § 905(b). In opposition to summary judgment,
the McLaurins argued that § 905(b) only governs claims against the vessel for
vessel negligence. Citing Richendollar v. Diamond M Drilling Co., 819 F.2d 124,
125 (5th Cir. 1987) (en banc) (internal quotations omitted), in which this Court
noted that a vessel is viewed “as a separate entity distinct from its owner,” the
McLaurins argued that they were “not just pursuing an in rem negligence claim
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against the vessel; [but were] also pursuing separate claims against the vessel
owner.”
The district court recognized that § 905(b) allows injured employees to
bring third-party negligence actions against the vessel for vessel negligence, and
reiterated that the remedies provided by that section were exclusive of all other
remedies. McLaurin v. Noble Drilling (U.S.) Inc., No. 1:05-CV-463, slip op. at
2 (S.D. Miss. Apr. 4, 2007). Based upon the language of § 905(b), the district
court concluded that § 905(b) preempted the McLaurins’ state-law tort and
general maritime claims, but then dismissed their § 905(b) claim as not
cognizable because the injury occurred on land and not on navigable waters. Id.
at 2–3.
The McLaurins appeal only the dismissal of their state-law tort claims,
arguing that if they cannot state a cognizable claim under § 905(b), then the
language of that section does not preempt their state-law tort claims.
II. STANDARD OF REVIEW
Guided by the same standards under Rule 56 of the Federal Rules of Civil
Procedure as the district court, this Court reviews grants of summary judgment
de novo. Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir.
2001). Therefore, summary judgment is proper “if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(c). “The evidence and inferences from the
summary judgment record are viewed in the light most favorable to the
nonmovant.” Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460, 465 (5th Cir.
2005). But “[w]here the non-moving party fails to establish ‘the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial,’ no genuine issue of material fact can exist.” Whiting v.
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No. 07-60402
Univ. of S. Miss., 451 F.3d 339, 344 (5th Cir. 2006) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).
“In a statutory construction case, the beginning point must be the
language of the statute, and when a statute speaks with clarity to an issue
judicial inquiry into the statute’s meaning, in all but the most extraordinary
circumstance, is finished.” Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 475 (1992). “The statute must be read as a whole, and only if the language
is unclear do we turn to statutory history.” United States v. Ridgeway, 489 F.3d
732, 734 (5th Cir. 2007).
III. DISCUSSION
The McLaurins acknowledge that the district court did not err in finding
that their § 905(b) claim fails on the merits. They argue, however, that this
should not preclude their state-law tort claims because their claims do not
implicate Noble Drilling’s negligence as owner of a “vessel.” Noble Drilling
counters, arguing that the district court correctly found that it qualifies as a
“vessel” under the LHWCA and, therefore, § 905(b)’s exclusivity provision
preempts McLaurin’s state-law tort claims. Whether Noble Drilling qualifies as
a “vessel” under the LHWCA, however, is irrelevant for analysis under these
facts. We hold that the district court was correct in finding that the McLaurins’
§ 905(b) claim fails as a matter of law, but it erred in finding that § 905(b)’s
exclusivity provision preempts the McLaurins’ state-law tort claims against
Noble Drilling.
A. The McLaurins’ § 905(b) Claim
The LHWCA was created to establish a compensation scheme for injured
maritime workers. Under the LHWCA, those persons injured while working in
or near harbor facilities as longshoremen, shipbuilders, ship repairers, and
various harbor workers, such as carpenters, cleaners, or painters are limited to
compensation claims against their employers. The LHWCA covers a worker for
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No. 07-60402
any injury if he is engaged in maritime employment, provided that he meets a
two-fold test: (1) his injury must occur within an area adjoining navigable waters
of the United States, known as the “situs” test, and (2) the nature of the work
performed by him must be maritime in nature, known as the “status” test. See
Ne. Marine Terminal Co. v. Caputo, 432 U.S. 249, 279–80 (1977).1
An injured maritime worker may bring an action under the LHWCA
against his employer for workers’ compensation, see § 904, and against an owner
for its vessel’s negligence, see § 905(b).2 McLaurin received workers’
compensation from his employer, Friede Goldman, under § 904,3 but the district
court dismissed his § 905(b) claim for vessel negligence against Noble Drilling.
If McLaurin had been entitled to recover for vessel negligence under § 905(b),
then he would not have been able to sue the vessel in tort because “[t]he remedy
provided in [§ 905(b)] shall be exclusive of all other remedies against the
vessel. . . .” 33 U.S.C. § 905(b).
1
The parties have stipulated that McLaurin meets the “status” test and qualifies as
an “employee” under the LHWCA, and thus the work performed by McLaurin was maritime
in nature.
2
There are exceptions to this rule. Congress amended the LHWCA in 1984 to close
a loophole that allowed certain injured maritime workers to sue their employers who are also
vessel owners once under § 904 and again under § 905(b). See Gay v. Barge 266, 915 F.2d
1007, 1010–11 (5th Cir. 1990) (discussing the statutory prohibition on § 905(b) suits by persons
“employed to provide shipbuilding, repairing, or breaking services against his employer . . . for
the negligence of the vessel” (internal quotations omitted)); New v. Associated Painting Servs.,
Inc., 863 F.2d 1205, 1210 (5th Cir. 1989) (noting that the 1984 amendments to the LHWCA
preclude suits against owner-employers by persons “hired to restore a vessel to safe operating
condition”). Here, these restrictions are not implicated because McLaurin’s employer is not
also the owner of the vessel.
3
A maritime worker’s right to claim workers’ compensation from his employer is
codified in § 904; if he qualifies for this remedy, then § 905(a) instructs him that his § 904
remedy is exclusive to all other remedies: “The liability of an employer prescribed in section
904 of this title shall be exclusive and in place of all other liability of such employer to the
employee . . . .” 33 U.S.C. § 905(a) (emphasis added). Therefore, McLaurin may not sue Friede
Goldman in tort.
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No. 07-60402
But “§ 905(b) permits only the assertion of a claim for a maritime tort.”
May v. Transworld Drilling Co., 786 F.2d 1261, 1264 (5th Cir. 1986).
Only if a claimant first alleges facts comprising a maritime tort do
we need inquire whether he has established the specific elements of
a § 905(b) cause of action: (1) the involvement of a vessel, (2) the
negligence of the vessel, and (3) other subsidiary issues, such as the
identity of the vessel owner.
Id. (internal quotations and footnotes omitted) (emphasis added); see also
Richendollar, 819 F.2d at 128 (holding that § 905(b) does not create or extend
admiralty jurisdiction); Drake v. Raymark Indus., Inc., 772 F.2d 1007, 1014 (1st
Cir. 1985) (“[Section] 905(b) implicitly requires that a tort be consummated
within the admiralty jurisdiction to be cognizable under the statute.”).4 Because
“[i]njury on navigable waters is a sine qua non of the maritime tort,” this Court
has held that a maritime worker injured on dry land cannot sustain a cognizable
injury under § 905(b) of the LHWCA. May, 786 F.2d at 1262.5 Indeed,
“nonmaritime claims are not converted into maritime claims by virtue of the
4
It is important to note that the district court’s jurisdiction to consider the McLaurins’
claims is distinct from whether the McLaurins’ claims state a cognizable action under § 905(b).
Although the district court did not have jurisdiction in admiralty because McLaurin’s injury
ashore does not implicate a nexus with maritime activity, the district court here had
jurisdiction to hear causes of action of any nature due to the diversity of the parties. See May,
786 F.2d at 1263–64; Parker v. S. La. Contractors, Inc., 537 F.2d 113, 115 (5th Cir. 1976).
5
In May, this Court did not examine whether the vessel accused of negligence in the
plaintiff’s claim qualified as a “vessel” for purposes of a § 905(b) claim. The plaintiff was a
“shipyard worker who was injured while working in a storage area moving fabricated steel that
was to be installed as part of a vessel,” but did not work on the vessel itself. May, 786 F.2d at
1262. But the plaintiff in Richendollar was injured while working on the allegedly negligent
vessel, and this Court was, therefore, required to examine the character of the vessel. 819 F.2d
at 125 (holding that “in order for a waterborne structure to qualify as a ‘vessel’ under § 905(b),
it must be a vessel for purposes of maritime jurisdiction[, meaning that] [s]uch a vessel must
be capable of navigation or its special purpose use on or in water”). Today, if this Court found
it necessary to characterize a vessel for purposes of § 905(b), it would ask whether the
watercraft is “practically capable of maritime transportation.” Stewart v. Dutra Constr. Co.,
543 U.S. 481, 497 (2005) (applying 1 U.S.C. § 3). See generally Benjamin S. Allums, Stewart
v. Dutra Construction Co.: Defining a Vessel in the Wake of the SUPER SCOOP, 80 TUL. L.
REV. 1467 (2006) (commenting on the Supreme Court’s choice to define “vessel” uniformly
across federal maritime statutes).
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No. 07-60402
application of [§] 905(b).” Dozier v. Rowan Drilling Co., 397 F. Supp. 2d 837, 852
(S.D. Tex. 2005) (applying this Court’s reasoning in Parker v. South Louisiana
Contractors, Inc., 537 F.2d 113, 116–17 (5th Cir. 1976)).
Under § 905(b), a vessel owner owes a duty to exercise reasonable care to
make the vessel safe if he actively participates in the operations or maintains
control over the area, or if such a duty is imposed upon him by contract or law.
See Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98 (1994) (citing Scindia
Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 167–78 (1981)); Manuel
v. Cameron Offshore Boats, Inc., 103 F.3d 31, 33 (5th Cir. 1997). But this Court
has “decline[d] to fashion a general standard of ‘reasonable care’ that would
require a shipowner to protect against any and all hazards a longshoreman
might encounter in the course of his work.” Levene v. Pintail Enters., Inc., 943
F.2d 528, 534 (5th Cir. 1991). “Other than the duty to protect against hazards
under control of the ship . . ., we do not think [the Supreme Court in Scindia,
451 U.S. at 167–78,] imposes any duty on a shipowner to protect against hazards
arising on a separate ship,” or anywhere off the vessel. Id.6
It is clear that the McLaurins have not alleged facts sufficient to support
a § 905(b) claim for vessel negligence. The record reveals that McLaurin was not
located on the vessel when he was injured, but rather he was injured ashore;
6
The situs test for whether a maritime worker may bring a negligence action against
the owner of a vessel for vessel negligence under § 905(b) is distinct from whether a worker
may collect workers’ compensation from his employer under § 904. Prior to 1972, the standard
for coverage under § 904 and § 905(b) were similar; an employee was eligible for benefits if he
was injured in the course of his employment on navigable waters. See ROBERT FORCE &
MARTIN J. NORRIS, THE LAW OF MARITIME PERSONAL INJURIES § 3.2 (5th ed. 2004). The 1972
amendments to the LHWCA extended coverage landward only for § 904 claims, not § 905(b)
claims, which, by the nature of the claim, only apply to injuries occurring on vessels. Today,
coverage for § 904 claims extends to employees injured on land relating to navigable waters,
including “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or
other adjoining area customarily used by an employer in loading, unloading, repairing,
dismantling, or building a vessel,” § 903(a), and only to those employees who qualify as
“longshoreman or other person engaged in longshoring operations, and any harbor-worker
including a ship repairman, shipbuilder, and ship-breaker,” § 902(3).
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therefore, the injury “did not occur on navigable waters” and “fails to meet the
test for a maritime tort.” May, 786 F.2d at 1265. The district court was correct
in dismissing the McLaurins’ § 905(b) claim for vessel negligence against Noble
Drilling as the vessel owner. The question is thus whether the McLaurins may
advance a state-law tort claim against Noble Drilling for its own alleged
negligence when he cannot state a cognizable claim under § 905(b).
B. The McLaurins’ State-Law Tort Claims and § 933 of the LHWCA
The Supreme Court has held:
[T]he [LHWCA] provides nonseaman maritime workers . . . with no-
fault workers’ compensation claims (against their employer,
§ 904(b)) and [vessel] negligence claims (against the vessel, § 905(b))
for injury and death. As to those two defendants, the LHWCA
expressly pre-empts all other claims, §§ 905(a), (b), but it expressly
preserves all claims against third parties, §§ 933(a), (i).
Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 818 (2001)
(citation omitted). This Court has recognized that “[a] person entitled to
compensation under the LHWCA may both recover compensation from his or her
employer [under § 904], and pursue a separate negligence action against a third
party [under § 933(a)].” Kelly v. Red Fox Cos. of New Iberia Inc., 123 F. App’x
595, 596 (5th Cir. 2005) (per curiam) (unpublished).7 Importantly, § 933
7
However, “[i]n the event that the person reaches settlement with a third party . . .,
‘written approval of the settlement [must be] obtained from the employer and the employer’s
carrier, before the settlement is executed, and by the person entitled to compensation.” Kelly,
123 F. App’x at 596 (quoting 33 U.S.C. § 933(g)(1)). As this Court has observed, under the
LHWCA,
“[t]he employer is compelled to pay the benefits regardless of whether it was
negligent or not. In return, the employer takes a lien for the total amount of
benefits paid on any judgment or settlement the employee may later obtain.
Accordingly, the injured employee is fully—but not doubly—compensated; the
tortfeasor pays for the injuries for which it is responsible and the employer
recovers so much of its workers’ compensation payments as is attributable to the
tortfeasor’s negligence.”
Phillips v. W. Co. of N. Am., 953 F.2d 923, 931 n.9 (5th Cir. 1992) (quoting Stifle v. Marathon
Petroleum Co., 876 F.2d 552, 560 (7th Cir. 1989)).
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No. 07-60402
recognizes that a covered employee may have tort remedies against third parties
under federal or state law. Section 933 preserves and codifies a maritime
worker’s common law right to pursue a negligence claim against a third party
that is not the employer or a coworker; it does not create a cause of action nor
establish a third party’s liability for negligence. See 33 U.S.C. § 933(a); Vega-
Mena v. United States, 990 F.2d 684, 690–91 (1st Cir. 1993) (citing Griffis v. Gulf
Coast Pre-Stress Co., 850 F.2d 1090, 1091 (5th Cir. 1988)).
Note the language of § 933(a):
If on account of a disability or death for which compensation is
payable under this chapter the person entitled to such compensation
determines that some person other than the employer or a person or
persons in his employ is liable in damages, he need not elect
whether to receive such compensation or to recover damages against
such third person.
33 U.S.C. § 933 (emphasis added). If a maritime worker is eligible for workers’
compensation from his employer, § 904 allows him to collect compensation and
§ 905(a) instructs him that his remedy under the LHWCA is his exclusive
remedy against his employer. Section 933 specifically forbids a claim against
“the employer or a person . . . in his employ,” leaving § 904 as the only avenue
of recovery against the employer or a negligent coworker.
Noble Drilling believes that its status as a vessel owner is analogous to
that of an employer and, citing § 905(b)’s exclusivity provision, argues that a
maritime worker may only sue a vessel owner in its capacity as such under
§ 905(b). However, a reading of the LHWCA as a whole does not support this
argument. Notably, unlike employers, vessel owners are not mentioned in § 933,
so a maritime worker may attempt to recover against a vessel owner for vessel
negligence under § 905(b), against a vessel owner as a third-party tortfeasor
under § 933, or even against a vessel owner as a “borrowing employer” under
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No. 07-60402
§ 904.8 It is not a vessel owner’s status as a vessel owner that dictates which
LHWCA provision a maritime worker may use; it is the type of negligence that
the worker alleges and the duty that is owed by the vessel owner that is
controlling.
Here, the McLaurins did not allege a claim against Noble Drilling
specifically under § 933, but they did allege negligence claims under state law
in their Complaint.9 If a maritime worker recovers against a vessel under §
905(b), then he may not also sue the vessel in tort. The McLaurins cannot
recover from Noble Drilling as a vessel owner because they cannot state a
cognizable claim for vessel negligence under § 905(b), so the language of § 905(b)
does not preempt their state-law claim against Noble Drilling as a third-party
tortfeasor. The plain language of § 933 clearly contemplates and preserves a
maritime worker’s ability to pursue separate claims against third parties,
including vessel owners allegedly responsible for the injury.
8
Interestingly, the McLaurins argued that Noble Drilling, as the owner of the vessel
for which McLaurin manufactured pontoon extensions ashore, owed him a duty under § 905(b)
to protect him from unreasonably dangerous conditions in Friede Goldman’s shipyard. He
believed Noble Drilling owed him a duty because it “had assumed substantial control, through
its on-site personnel in the shipyard, over the work on the pontoons and the sequence in which
it was performed, and failed to exercise due care to ensure the observation of proper safety
practices.” Although this pleading fails as a claim under § 905(b), it is possible that it could
justify a finding that he is Noble Drilling’s “borrowed servant,” which may implicate a § 904
workers’ compensation claim against Noble Drilling as an employer instead of as a vessel
owner. See Total Marine Servs., Inc. v. Director, Office of Worker’s Comp. Programs, 87 F.3d
774, 776–77 (5th Cir. 1996). McLaurin’s employer, Friede Goldman, does not own the vessel
for which he fabricated pontoon extensions, and, thus far, the McLaurins have not alleged that
Noble Drilling is a “borrowing employer.” But if McLaurin is Noble Drilling’s borrowed
servant, then the restrictions outlined in note 2, supra, would bar his § 905(b) claim because
Noble Drilling is also the vessel owner.
9
McLaurin’s Complaint stated: “This action is being brought against the defendants
pursuant to Mississippi common law, General Maritime Law and § 905(b) of the Longshore and
Harbor Workers’ Compensation Act.” McLaurin has further stated that he “received medical
benefits and disability compensation from Friede Goldman under the Longshore Act, but
brought this action against Noble Drilling as a so-called ‘third party’—‘some person other than
the employer or a person or persons in [its] employ’—as permitted by § 33 of the Longshore
Act, 33 U.S.C. § 933.”
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McLaurin collected workers’ compensation under § 904 from his employer.
He has no basis, however, for a claim for vessel negligence against Noble Drilling
as a vessel owner under § 905(b). Whether or not a claim against Noble Drilling
as a third-party tortfeasor under § 933 will be met with success remains to be
seen, but what is clear is that nothing in the LHWCA prohibits McLaurin from
advancing his state-law tort claims. Therefore, we reverse the district court’s
dismissal of the McLaurins’ state-law tort claims.
IV. CONCLUSION
The judgment of the district court is REVERSED.
11