* Chief Judge of the Eastern District of Texas, sitting by designation.

1 After the parties filed their briefs, the Randalls settled with Sea Savage and its underwriters

and assigned their claims to them. Thus, Sea Savage and its underwriters have taken the place of

the Randalls on this appeal. As will be seen, however, they have not adopted all the legal

positions taken by the Randalls at trial. United States Court of Appeals,

Fifth Circuit.

No. 91-9567.

Barbara S. RANDALL, On Her Own Behalf and as Personal Representative of the Estate of the

Decedent, Theodore F. Randall, Jr., and on the Behalf o f the Children, Rod Anthony Randall and

Holly Leann Randall, Plaintiff-Appellee,

v.

CHEVRON U.S.A., INC., et al., Defendants,

Sea Savage, Inc., Defendant-Appellant.

Feb. 11, 1994.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before KING and JOLLY, Circuit Judges and PARKER, * District Judge.

KING, Circuit Judge:

Theodore F. Randall, an employee of Chevron, U.S.A., Inc. ("Chevron"), d rowned af ter

unsuccessfully attempting a swing rope transfer from a fixed platform in the Gulf of Mexico to the

M/V SEA SAVAGE. Randall's widow, Barbara Randall, brought suit individually, on behalf of

Randall's estate, and on behalf of their children against Chevron and Sea Savage, Inc. ("Sea Savage").

The matter was tried to the court, and the court entered judgment against the defendants. This appeal

followed. 1

I.

Factual Background

T his case arises from the tragic death of Theodore F. Randall, a mechanic employed by

Chevron on its fixed platforms in the Gulf of Mexico. On July 31, 1989, Randall was on Chevron's

West Delta Field Block 27 P-1 platform, a fixed stru ct ure lo cated off the coast of Louisiana butwithin Louisiana territorial waters. At the time, a tropical storm was known to be approaching the

West Delta area.

The M/V SEA SAVAGE was a 100-foot vessel owned and operated by Sea Savage and

certified by the United States Coast Guard as a passenger vessel. Chevron entered into a time charter

with Sea Savage on January 1, 1989, to obtain the services of the vessel in the operati on of Chevron's

platforms in the West Delta Block 27 oil field. The time charter provided that Sea Savage would

man, operate, and navigate the vessel, while Chevron would assign the vessel its tasks. Sea Savage

was required to provide liabilit y insurance naming Chevron as an additional insured, and Sea Savage

did in fact procure some $5,000,000 of pr o t ect io n and indemnity coverage naming Chevron as an

additional insured.

At 2:30 a.m. on July 31, 1989, the SEA SAVAGE set out on its regularly scheduled cargo

run in the West Delta field. Captain Dalton Parker was in command of the vessel. By 10:06 a.m.,

the tropical storm had been upgraded to a hurricane, and Chevron's operations manager ordered an

evacuation of the West Delta field. Before proceeding to the P-1 platform, the SEA SAVAGE

carried personnel to other platforms to secure them in preparation for evacuation. Several swing rope

transfers to and from these platforms were safely accomplished. As weather conditions deteriorated,

it became unsafe to make further swing rope transfers to and from the smaller sa t ellite platforms.

Captain Parker testified that he req uest ed t o be released from further tasks in the field because he

thought his mission had been completed. Jim Howell, the area foreman in the West Delta field, asked

Captain Parker to proceed to West Delta Field Block 27 to provide any necessary assistance in the

evacuation.

The SEA SAVAGE arrived at the P-1 platform at approximately 10: 45 a.m. Witnesses

estimated that the seas were between six and eight feet at the time and that the winds were some 35

miles per hour. Three workers, including Randall, were wait ing to be evacuated. Captain Parker

backed the SEA SAVAGE next to the platform and, following standard procedures, held the stern

at an angle to the platform. Randall was the first to attempt the swing transfer. He grasped the swing

rope a nd swung to the deck of the vessel. What happened next is not clear, but it appears thatRandall landed on his feet as the vessel rose with a swell, causing the swing rope to go slack. Randall

continued to hold onto the rope, and as the vessel fell with the waves the rope went taut. Randall was

then pulled back off the vessel. Randall lost his grip on the rope and fell into the water.

Deckhand Paul Nash witnessed the episode and immediately ran some fift y feet to the rear of

the SEA SAVAGE's pilothouse to retrieve the life ring. Captain Parker was aware of Randall's fall

and imme diat ely put the vessel into gear, moving the vessel forward and away from Randall. He

testified that mo ving t owards Randall would have risked sucking Randall into the propellers or

crushing him against the platform. Randall, a st ro ng swimmer, managed to swim to one of the

platform's legs. He clung to the leg as best he could in the rough water for some twenty-five minutes.

Efforts to save Randall with a life ring thrown from the SEA SAVAGE were unsuccessful. At last

Randall let go of the platform, slumped over, and drowned. He floated out from under the platform

and was recovered by deckhand Nash. His body was lacerated, apparently from being thrown against

the barnacle-encrusted leg of the platform by the waves. The remaining Chevron employees were

evacuated by helicopter.

Procedural History

On October 2, 1989, Barbara Randall, both individually and as personal representative of the

estate of her deceased husband and their two children, commenced this action in the United States

District Court for the Eastern D ist rict of Louisiana seeking wrongful death and survival damages

under the Jones Act, 46 U.S.C.App. § 688, and the general marit ime law against Chevron and the

SEA SAVAGE. Sea Savage filed a complaint for exoneration from or limitation of liability, claiming

it was entitled to limit its liability to the value of the SEA SAVAGE and her pending freight . On

January 25, 1990, this matter was consolidated with the Randall lawsuit for trial. Chevron answered

and filed a cross-claim

against Sea Savage seeking indemnification, costs, and attorneys' fees in

connection with the Randall lawsuit. Chevron also filed a third-party complaint against the

underwriters supplying the insurance coverage to Chevron as an additional insured pursuant to

Chevron's time charter with Sea Savage.

On March 30, 1990, Chevron moved for s ummary judgment on plaintiff's Jones Act and2 Strangely, the pre-trial order filed on November 5, 1991 listed as a contested issue of law

"[w]hether Louisiana, General Maritime and/or LSHWA Law applies" ("LSHWA" being another

acronym occasionally used in lieu of "LHWCA"). However, after judgment was entered in favor

of Mrs. Randall, the district court reiterated that it had "previously held that Mr. Randall was

covered by the Longshore and Harbor Worker's Compensation Act." Randall v. Chevron U.S.A.,

Inc., 788 F.Supp. 1391, 1397 (E.D.La.1992). punitive damages claims. By minute entry dated July 26, 1990, the district court dismissed the Jones

Act claims, finding that Randall could not be considered a Jones Act seaman because he was never

assigned to any vessel and worked exclusively on fixed platforms. The court did not dismiss plaintiff's

general maritime or punitive damages claims.

On March 26, 1991, Chevron moved for partial summary judgment, arguing that the court

should dismiss all of the plaint iff's claims except for those claims stated under § 905(b) of the

Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq., and/or

the exclusive remedy provisions of the Louisiana Workers' Compensation Statute. Barbara Randall

and Sea Savage opposed Chevron's motion. Following oral argument on October 30, 1991, t he

district court found "that Mr. Randall was a longshoreman or harbor worker within the meaning of

the Longshore an d Harbor Workers' Compensation Act." 2 The district court also granted the

underwriters' motions to dismiss Chevron's claims against them prior to trial on the ground that the

insurance policies naming Chevron as an additional insured did not cover the claims being asserted

against Chevron.

The bench trial commenced on November 12, 1991. At the conclusion of t he trial on

November 14, 1991, the district court rendered oral reasons for judgment from the bench. The court

found Sea Savage and the crew of the SEA SAVAGE 757 liable in causing the ac cident. Am ong

other things, the district court found that Sea Savage was negligent in failing to train the captain and

crew of the SEA SAVAGE properly in lifesaving procedures, in failing to place a life ring near the

jump st at io n of the vessel, and for the failure of the SEA SAVAGE's captain and crew to follo w

accepted rescue procedures after Randall fell into the water. The court further held that Sea Savage

was not entitled to its requested limitation of liabilit y because of its failure to properly trai n the

captain and crew of the vessel, to require drills in rescue procedures, and to ensure that the captainwas competent. The court held Chevron 257 liable for directing the vessel to remain in and encounter

the treacherous weather conditions that then existed.

With respect to damages, the district court made the following awards to the Randalls:

$66,725 for past lost wages; $309,177 for lost future support; and $30,395 for loss of personal

services. Under t he heading of "loss of society" damages, the court awarded $300,000 to Mrs.

Randall, $100,000 to Randall's adult son Rod Randall, and $150,000 to Randall's daughter Holly

Randall. The co urt awarded $1,000,000 for Randall's pain and suffering and $3,897 for funeral

expenses. The claim for punitive damages was denied.

The district court took under advisement Chevron's claim against Sea Savage for contractual

indemnit y. By minute entry filed February 19, 1992, the district court ruled that Chevron was entitled

to contractual indemn it y fro m Sea Savage under the terms of the time charter. This decision is

reported as Randall v. Chevron U.S.A., Inc., 788 F.Supp. 1391 (E.D.La.1992). The district court

based its decision on the holding that Chevron's liabilit y arose in its capacity as time charterer of the

vessel, thus coming within the indemnity provision in the time charter. I d. at 1395. Chevron had also

moved post-tri al for reconsideration of the dismissal of its claims against the underwriters for

insurance coverage, and on March 16, 1992, the district court ruled that the plaint iff's claims against

Chev ro n did come within the insurance coverage provided to Chevron by the underwriters. This

decision is reported as Randall v. Chevron U.S.A., Inc., 788 F.Supp. 1398 (E.D.La.1992).

On March 19, 1992, judgment was entered in favor of Chevron for indemnity and insurance

coverage. The district judge referred the issue of the appropriate amount of costs and attorneys' fees

to award Chevron to a magistrate judge. On July 7, 1992, the district court found that the fees and

expenses incurred by Chevron in defending the plaint iff's claims were fair and reasonable and awarded

reimbursement for those fees. The court denied reimbursement, however, for those fees and expenses

spent in defense of the punitive damages claim.

After the notices of appeal and briefs were filed, Sea Savage and its various insurance

underwriters entered into a settlement agreement with the plaint iff on April 22, 1993, which included

a complete assignment of all plaint iff's claims in this matter to Sea Savage and its underwriters. Thus,3 According to Sea Savage, the only issue mooted by the settlement is Sea Savage's claim

before the district court that it was entitled to limit its liability as vessel owner.

4 The threshold determination of whether Randall was covered by the LHWCA may have an

impact on the outcome of several other issues in this case. The availability of loss of society

damages may depend on whether or not Randall was a longshoreman. Sea Savage, although it

now stands in Mrs. Randall's shoes for our purposes, has chosen to continue to argue against

LHWCA coverage in the apparent belief that reversal on this issue would necessitate a remand for

redetermination of its and Chevron's comparative negligence. We note, however, that the district Sea Savage and its underwriters now stand in the place of Mrs. Randall vis-a-vis Chevron. 3

II.

Standard of Review and Choice of Law

This court accepts the factual findings of the district judge unless they are clearly erroneous.

However, we may review de novo a district court's conclusions of law. H alferty v. Pulse Drug Co.,

864 F.2d 1185, 1188 (5th Cir.1989). Interpretation of the indemnity clause that is involved in this

action presents a matter of law that is reviewable de novo on appeal. S mith v. Tenneco Oil Co., 803

F.2d 1386, 1388 (5th Cir.1986) (citing Kemp v. Gulf Oil Corp., 745 F.2d 921, 924 (5th Cir.1984)).

District court interpretations of insurance polici es are also revi ewed de novo. H arbor Ins. Co. v.

Urban Constr. Co., 990 F.2d 195, 199 (5th Cir.1993).

Construction of marit ime contracts is governed by f ederal maritime law. T

heriot v. Bay

Drilling Corp., 783 F.2d 527, 538 (5th Cir.1986). Although federal law governs the interpretation

of marine insurance contracts, we apply the law of the state where the marine insurance contract was

issued and delivered if there is no federal law, legisl at ive o r judicial, relating to the question.

Elevating Boats, Inc. v. Gulf Coast Marine, Inc., 766 F.2d 195, 198 (5th Cir.1985).

III.

A. Was Randall a "maritime employee" w ithin the meaning of the LHWCA?

The first issue presented for our de cision is whether the district court correctly held that

Randall was a "maritime employee" and thus that his widow was entitled to proceed under the

LHWCA rather than under Louisiana's workers' compensation statute. Both Chevron and Sea

Savage argue that the district court erred and that Randall was not covered by the LHWCA. Mrs.

Randall, before she settled out of this case, argued the opposite position. 4court apportioned 1007 of the liability between Chevron in its capacity as "vessel" and Sea

Savage, suggesting that Chevron was not liable in any other capacity and that no reapportionment

of negligence would be necessary. Chevron argues against LHWCA coverage in the apparent

belief that Louisiana workers' compensation law would provide the exclusive remedy to the

Randalls should we decide that the LHWCA does not apply. But see Thibodaux v. Atlantic

Richfield Co., 580 F.2d 841, 846-47 (5th Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820,

61 L.Ed.2d 274 (1979). We express no view on the merits of these various arguments. A brief overview of the LHWCA is in order. The coverage section of the LHWCA provides

that compensation shall be payable upon the disabilit y or death of an employee "if the disabilit y or

death results from an injury occurring on the naviga ble waters of the United States (including any

adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adj oi ni ng area

customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel)."

33 U.S.C. § 903(a). With certain exclusions not relevant to the instant case, the term "employee" is

defined as "any person engaged in marit ime employment, including any longshoreman or other person

engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder,

and ship-breaker." I

d. § 902(3). As a general rule, the LHWCA imposes liability for benefits payable

to an injured worker upon the employer. I d. § 904(a). This is the exclusive liability of the employer

qua employer, so the employer is generally immune from the injured worker's potential tort suits. I d.

§ 905(a). The specific benefits to which the injured longshoreman is entitled are defined in t he

LHWCA. Id. §§ 907-09.

Prior to 1972, a worker covered by the LHWCA who was injured while loading or unloading

a ship was entitled both to compensation payments and to judgm ent against the shipowner if the

injury was caused by the ship's unseaworthiness or negligence. S cindia Steam Navigation Co. v. De

Los Santos, 451 U.S. 156, 164, 101 S.Ct. 1614, 1620, 68 L.Ed.2d 1 (1981). Section 905(b) of the

LHWCA, added in the 19 72 amendments to that statute, abolishes the injured longshoreman's

unseaworthiness claim but preserves his right to recover for the "negligence of a vessel." 33 U.S.C.

§ 905(b); Scindia, 451 U.S. at 165, 101 S.Ct. at 1621; M ay v. Transworld Drilling Co., 786 F.2d

1261, 1264 (5th Cir.), cert. denied, 479 U.S. 854, 107 S.Ct. 190, 93 L.Ed.2d 123 (1986). The term

"vessel" in this context includes the vessel's owner, owner pro hac vice, agent, operator, charter or

bare boat charterer, master, officer, or crew member. I d. § 902(21). Thus, "[w]hen an employer actsin a dual capacity as vessel owner, the entity retains its immunit y for acts taken in its capacity as an

employer, but may still be sued "qua vessel' for acts of vessel negligence." L evene v. Pintail Enters.,

Inc., 943 F.2d 528, 531 (5th Cir.1991) (citing Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523,

532, 103 S.Ct. 2541, 2548, 76 L.Ed.2d 768 (1983); K err-McGee Corp. v. Ma-Ju Marine Servs.,

Inc., 830 F.2d 1332, 1339 (5th Cir.1987)), cert. denied,

--- U.S. ----, 112 S.Ct. 2274, 112 S.Ct.

2274, 119 L.Ed.2d 201 (1992).

The issue of whether Randall's accident is one covered by the LHWCA turns on whether he

satisfies the two-pronged test set f o rt h in t hat statute. First, his injury must have occurred at a

covered location or "situs." Herb's Welding, Inc. v. Gray, 470 U.S. 414, 415-16, 105 S.Ct. 1421,

1423, 84 L.Ed.2d 406 (1985). Second, he must meet the "status" test of being a person engaged in

"maritime employment," a term not defined by the LHWCA. Id. The "status" test is the source of

difficulty in the instant case.

Our analysis of the "status" issue begins with the Supreme Court's decision in Northeast

Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). In that case,

plaint iff Carmelo Blundo was employed as a "checker," or one responsible for checking and recording

cargo as it was loaded onto or unloaded from vessels, barges or containers. I d. at 252-53, 97 S.Ct.

at 2351-52. While working on a pier, Blundo slipped on some ice and was injured. I d. at 253, 97

S.Ct. at 2352. Plaintiff Ralph Caputo was a member of a lo ngsho ring "gang," and he was injured

while loading a truck with cargo that had been discharged from a vessel. I d. at 254-55. The Court

held that both plaint iffs satisfied the "status" test under the LHWCA, Blundo because his task was

"an integral part of unloading process" and Caputo because "he was inju red in the old-fashioned

process of putting goods already unloaded from a ship or container into a delivery truck." I d. at 256,

271-72, 103 S.Ct. at 2353, 2361. Thus, as it would in future cases, the Court focused on the nature

of the workers' employment and its connection with the l o ading and unloading of vessels as a key

issue in deciding whether the "status" test was met.

The next case in which the Supreme Court addressed the "status" test was Director, Office

of Workers' Compensation Programs v. Perini N. River Assocs., 459 U.S. 297, 103 S.Ct. 634, 74L.Ed.2d 465 ( 1983). The injured worker in P erini, Raymond Churchill, was employed in the

construction of a sewage treatment plant extending over the Hudson River. I d. at 300, 103 S.Ct. at

638. His job was to supervise operations on a cargo barge, and he was injured while standing on the

deck of the barge. I

d. The Court held that Churchill, as an employee injured upon navigable waters

in the course of his employment, could meet the "status" test without showing that his employment

possessed a direct or substantial relation to navigation or commerce. I d. at 318-19, 103 S.Ct. at 647-

48. Although the Court expressly recognized that "the status requirement is occupational and the

situs test is geographic," id. at 32 4 n. 32, 103 S.Ct. at 651 n. 32, i t went on to hol d that "when a

worker is injured on the actual navigable waters in the course of his employment on those waters, he

satisfies the status requirement," assuming that the other requirements of the LHWCA are met. I d.

at 324, 103 S.Ct . at 651. The Court emphasized that such workers are "engaged in maritime

employment" both because t hey are injured in historically maritime locales and because they are

required to perform employment duties upon navigable waters. I d. Finally, the Court expressed no

opinion on the issue of "whether suc h co verage ext ends to a worker injured while transiently or

fortuitously upon actual navigable waters, or to a land-based worker injured on land who then falls

into actual navigable waters." I d. at 324 n. 34, 103 S.Ct. at 651 n. 34. Under P erini, then, a special

"status" test applies to workers who are injured while upon actual navigable waters: such a worker

satisfies the "status" test simply by showing that he was i njured o n actual navigable waters in the

course of his employment on those waters. Id. at 324, 103 S.Ct. at 651.

The Court again considered the contours of the "status" test in Herb's Welding, in which a

welder employed on a fixed offshore drilling platform was injured on su ch a platform and sought

LHWCA benefits. H

erb's Welding, 470 U. S. at 416, 105 S.Ct. at 1423. The Court hel d that the

welder, Robert Gray, was outside the Perini ru le because fixed offshore platforms are legally

equivalent to islands, id. at 422 & n. 6, 105 S.Ct. at 1426, and thus Gray was not "injured on

navigable waters." Id. at 424-25 n. 10, 105 S.Ct. at 1428 n. 10. Gray was thus required to meet a

differen t test, adum brated by C aputo, based on whether Gray's employment had some connection

with the loading, unloading, repair, or construction of ships. I d. at 423-24, 105 S.Ct. at 1427-28.As the Court recounted at length,

Gray was a welder. His work had nothing to do with t he loading or unloading

process, nor is there any indication that he was even employed in the maintenance of

equipment used in such tasks.... He built and maintained pipelines and the platforms

themselves. There is nothing inherently maritime about those tasks. They are also performed

on land, and their nature is not significantly altered by the marine environment, particularly

since the exploration and development of the Continental Shelf are not themselves marit ime

commerce.

Id. at 425, 105 S.Ct. at 1428 (f ootnote omitted). Because Gray could not meet the "status" test, the

Court held that Gray was excluded from LHWCA coverage without addressing the "situs" test. I d.

at 427, 105 S.Ct. at 1429. Again t he Co urt expressly reserved the issue of whether the LHWCA

applies to a worker injured while "transiently or fortuitously" upo n navigable waters, although it

noted in passing a "substantial difference between a worker performing a set of tasks requiring him

to be both on and off navigable waters, and a worker whose job is entirely land-based but who takes

a boat to work." Id. at 427 n. 13, 105 S.Ct. at 1429 n. 13.

The instant case falls within that grey area left open for later decision by the Supreme Court

in Perini and Herb's Welding. Chevron and Sea Savage argue that the circumstances of Randall's

death place him outside the LHWCA's ambit under Brockington v. Certified Elec., Inc., 903 F.2d

1523 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991), and West

v. Chevron U.S.A., Inc., 615 F.Supp. 377 (E.D.La.1985). Mrs. Randall, on the other hand, argued

that this court's decision in Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir.1991 ), compel s the

conclusion that Randall was covered by the LHWCA. We turn to the F ontenot case first, as we are

constrained to follow indistinguishable decisions by other panels of our court absent an intervening

precedent by our court sitting en banc or by the Supreme Court. C

ampbell v. Sonat Offsh ore

Drilling, Inc., 979 F.2d 1115, 1121 n. 8 (5th Cir.1992).

In Fontenot, the plaint iff, Joseph Fontenot, was a "wireline operator" employed by an oil field

service company as a "pipe recovery specialist." F ontenot, 923 F.2d at 1128. He testified that he

spent roughly equal amounts of time working on shore, on fixed platforms, and on oil exploration and

producti on vessels. I

d. Returning to shore from an inland barge rig located in Louisiana state waters,

Fontenot was injured while unloading his equipment from the deck of a crewboat onto the dock. I d.The parties agreed that Fontenot satisfied the "situs" test for LHWCA coverage, because he was on

the crewboat and thus the navigable waters of the United States when he was injured, but Fontenot,

desiring to pursue claims potentially more favorable than those available under the LHWCA, argued

that he did not satisfy the "status" prong of the Herb's Welding test. I d. at 1129. The court held that

Fontenot was a co vered employee, applying the P erini test rather than the Herb's Welding test

because Fontenot was injured while upon actual navigable waters in the course of his employment.

Id. at 1133. Mrs. Randall argued that F ontenot is squarely on point, and that her husband's accident

was covered by the LHWCA. Chevron argues that Fontenot is distinguishable.

We believe that Fontenot answers, although only implicit ly, the question left open in Perini

and Herb's Welding in f avo r o f LHWCA coverage for the worker injured while transiently or

fortuitously on actual navigable waters. The F ontenot court relied on P erini in reaching the

conclusion that Fontenot came within the ambit of the LHWCA, stating,

[I]f the employee was injured while on actual navigable waters, in the c ourse of hi s employment, then he is engaged in maritime employment and satisfies the status test under

Perini

....

In this case, Fontenot injured himself while on the crewboat. The crewboat was

docked in actual navigable waters. Therefore, under [ P erini ], Fontenot, at the time of his

injury, satisfied the status requirement of the LHWCA.

Id. at 1130 (emphasis added). We have some difficulty with this analysis, specifically in the F ontenot

court's conspicuous omission of the "in the course of his employment" element of Perini in its

application of Perini to Fontenot's case. Part of the difficulty, however, stems from the language of

Perini itself. In one passage in P erini, the Supreme Court strongly suggested that even workers who

are injured on navigable waters are required to show that "they are required to perform their

employment dut ies upon navigable waters." P erini, 459 U.S. at 324, 103 S.Ct. at 651 (f ootnote

omitted); s ee also Herb's Welding, 470 U.S. at 424 n. 10, 105 S.Ct. at 1428 n. 10 (pointing out that

Perini was "carefully limit ed" to coverage of an employee injured while performing his job upon

actual navigable waters). Yet, at the same time, the P erini Court insisted that the addition of the

"status" test to the LHWCA by the 1972 Amendments did not diminish the LHWCA's traditionally

broad coverage of workers injured on actual navigable waters. P erini, 459 U.S. at 315, 323-24, 103S.Ct. at 646, 650-51; s ee also Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 428 (2d

ed. 1975) (observing that, at least before the 1972 Amendments, "[w]orkers who are not seamen but

who nevertheless suffer injury on navigable waters are no doubt (or so the courts have been willing

to assume) engaged in "maritime employment' ").

Had the Fontenot court relied on the fact that Fontenot w as employed on vessels, i.e., on

actual navigable waters, some thirty percent of t he time as well as on the day of his accident, its

holding would be within the Perini rule. Instead, the court chose to rely solely on the situs of

Fontenot's injury:

The Court [i n H

erb's Welding ] did not address the status of an oil field employee inj ured

while in transit on navigable waterways, or one who spent a substantial period of his time

working on drilling vessels, rather than fixed platforms.

This case presents both issues. Fontenot injured himself while on a vessel in navigable

waters. And Fontenot spent thirty percent of his time working on oil production vessels, and

was returning from a job on such a vessel when he injured himself. We hold that t he first fact

satisfies the status test for coverage under t he LHWCA, and address b ut leave open the

question of whether the second would satisfy the status test.

Id. at 1130 (emphasis added). We understand "the first fact" to be the fact that "Fontenot injured

himself while o n a vessel in navigable waters." I d. By holding that the occurrence of an injury on

actual navigable waters satisfies the "status" test, the F ontenot court answered the question of

whether LHWCA coverage extends to workers injured while transiently or fortuitously upon actual

navigable waters in the affirmative.

Chevron's reliance on the concurr ing o pinion in F ontenot is understandable but ultimately

futile. The concurring judge asserted that the court was not reaching the case "of injury in transit on

navigable waters of a worker on fixed platforms." I d. at 1134 (Higginbotham, J., concurring). The

concurrence also suggests that the court's holding is based in part on Fonte not's employ m ent on

vessels and the fact that he was injured while returning from a vessel. I d. (Hig ginbotham, J.,

concurring). We cannot agree. The passages from the court's opinion quoted s upra make it clear

that the court relied solely o n the fact that Fontenot was injured on navigable waters in finding

LHWCA coverage. See also id. at 1132 ("Because he was on "navigable waters', as that term was

defined prior to the 1972 Amendments to the LHWCA, Fontenot satisfied both the status and situs5 Fontenot 's interpretation of the LHWCA conflicts with that of the Eleventh Circuit. In

Brockington v. Certified Elec., Inc., 903 F.2d 1523, 1528 (11th Cir.1990), cert. denied, 498 U.S.

1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991), the court held that an electrician whose

employment was entirely landbased but who was injured while riding in a motorboat to an island

jobsite was not covered by the LHWCA. The court's remark that Brockington's "only connection

with the water was the fact that he happened to be traveling over it incidental to land-based

employment," id., is equally true of Randall. Nevertheless, Fontenot remains binding precedent in

this circuit and must be followed unless changed by a decision of this court en banc or the United

States Supreme Court, or by future amendments to the LHWCA itself. tests."). The court thus went beyond a mere application of P erini and decided the question left open

in that case and in Herb's Welding: in this circuit, workers injured while transiently or fortuitously

upon actual navig able wat ers are covered by the LHWCA. We are bound to follow the F ontenot

court's determination. 5

Applying Fontenot to the instant case, we think it beyond cavil that Randall was injured "on

navigable waters" within the meaning of Peri ni and the LHWCA. The accident occurred during

Randall's attempt to return to shore. The instant case is thus on all fours with F ontenot, and we must

therefore conclude that Randall was covered by the LHWCA.

B. Apportionment of Fault

1. Time Charterer Liability

We next consider the district cou rt 's apportionment of liability between Chevron and Sea

Savage. The court apportioned fault because, under § 905(b) of the LHWCA, a longshoreman

injured by the negligence of a "vessel" is entitled to bring an action against that vessel. The court

determined that Chevron constituted a "vessel" because the term "vessel" is defined by the LHWCA

to include not only

t he vessel's owner but also a "charter or bare boat charterer." 33 U.S.C. §

902(21). Thus a time charterer may be liable under § 905(b) if 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." Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830 F.2d

1332, 1343 (5th Ci r.1987); s ee also Helaire v. Mobil Oil Co., 709 F.2d 1031, 1041-42 (5th

Cir.1983) (holding that a time charterer could be liable under § 905(b) of the LHWCA for ordering

a wo rker to unload equipment from a vessel to a platform during rough weather); c f. 2 Alex L.

Parks, The Law and Practice of Marine Insurance and Average 884-85 (1987) ("[The body of lawgoverning time charterer liability in § 905(b) cases] is just now developing; it is confusing and it is

inconclusive.").

We begin by noting that the LHWCA casts a wide net in defining parties potentially liable in

the event of injury caused by vessel negligence. The statute provides that

Unless the context requires otherwise, the term "vessel" means any vessel upon which

or in connection with which any person entitled to benefits under this chapter suffers injury

or death arising out of or 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). Nothing in the statute suggests that a finding that negligence was committed

by one entity defined as a "vessel" in § 902(21), such as the vessel's owner, precludes a finding that

another such entity, such as a charterer, was also contributorily negligent. Indeed, holding each such

entity liable in proporti on to its degree of fault advances the purpose underlying the LHWCA, which

is to provide longshoremen with the benefits of workers' compensation without depriving them of the

right to be compensated for their injuries caused by the negligence of third parties or eliminat ing the

incentive for third parties to provide longshoremen with a safe place to work. Perez v. Arya Nat'l

Shipping Line, Ltd., 468 F.Supp. 799, 802 (S.D.N.Y.1979), aff'd mem., 622 F.2d 575 (2d Cir.1980),

aff'd sub nom. Rodriguez v. Compass Shipping Co., 451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed.2d 472

(1981). It is also beyond dispute that time charterers are among those third parties included in the

definition, although they are not specifically mentioned. Kerr-McGee Corp., 830 F.2d at 1338.

Chevron argues that there was no evid ence t hat it was negligent in its capacity as time

charterer of the SEA SAVAGE. In his oral findings, the district judge found Chevron negligent for

"direct[ing] the vessel to remain in, and to encounter the treacherous weather conditions that existed

in t he Gulf." Chevron argues that there is no duty on the part of a time charterer to determine

whether the missions it assigns can be accomplished safely. In Chevron's view, this duty rests solely

with the vessel captain unless specific contractual provisions shift duties onto the time charterer. Sea

Savage takes the opposite position, arguing that the district court correctly held that a time charterer

may be held liable for damages that result from directing a vessel to encounter dangerous natural

conditions.

Sea Savage cites several cases in its favor, beginning with the Helaire case cited above. Inthat case, Edmond Helaire was employed by Mobil as a roustabout and was ordered to unload casing

onto a fixed platform from a supply vessel during rough weather. H elaire, 709 F.2d at 1032-33. He

slipped and injured his knee, id. at 1034, and sued both Mobil, which was the time charterer of the

vessel, and the vessel owner under the LHWCA. In a jury trial, Mobil was found 1007 liable and the

vessel owner was exonerated, and the district court granted Mobil recovery from the vessel owner's

underwriters pursuan t t o pro tection and indemnity insurance that named Mobil as an additional

insured. I d. Mobil and the underwriters then engaged in a dispute over whether Mobil's negligence

had been committed in its capacity as platform owner or as time charterer. I d. at 1041. We held that

the district court properly predicat ed Mo bil's negligence on its actions as time charterer, based on

Mobil's acts or omissions in permitting the unloading of cargo from the vessel to continue "despite

the obvious danger created by the poor weather conditions." Id. at 1042.

There are other precedents fo r t he district court's assignment of fault to Chevron as time

charterer. In G raham v. Milky Way Barge, Inc., 824 F.2d 376, 378 (5th Cir.1987), Chevron had time

chartered the M/V STAR II to service equipment in the Gulf. Chevron dispatched the STAR II into

the Gulf at a time when it was aware of a forecast of dangerous weather conditions, and the vessel

ca psized, killing one and injuring three others. I d. at 387, 378. The district court found that

Chevron's negligence as time charterer in failing to inform the vessel's captain of the weather forecast

and in dispatching and failing to recall the vessel was 307 responsible for the injuries and losses

sustained. I

d. at 387. We affirmed this finding. I d. Likewise, in I

n re P & E Boat Rentals, Inc., 872

F.2d 642, 646-47 (5th Cir.1989), in which two vessels collided, we affirmed a finding that Chevron

as time charterer was liable for its negligence in ordering the captain of one vessel to operate his

vessel at high speeds in heavy fog. S ee also Kerr-McGee Corp., 830 F. 2d at 1341 ("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 [905(b) of the LHWCA].").

Chevron counters by referring this court to our decision in M.O.N.T. Boat Rental Servs., Inc.

v. Union Oil Co., 613 F.2d 576 (5th Cir.1980). In that case, Union Oil chartered the vessel BOBBY

O from M.O.N.T. to transport personnel and supplies off the coast of Nicaragua. I d. at 577. A crewmember was injured after the BOBBY O put to sea on Union Oil's orders, and he recovered against

M.O.N.T. under a claim of Jones Act negligence. I d. at 577-78. M.O.N.T. then sued Union Oil, and

the district court dismissed. We affirmed, first not ing t hat the time charter contained the usual

understanding that the vessel captain could refuse to carry out tasks without breaching the charter

if his refusal was based o n a good faith belief that the task was unsafe. I d. at 578. Thus, we held

that, if Union Oil's order was at all negligent, it could not be "active or primary negligence relative

to M.O.N.T.'s negligence in bringing about [plaintiff's] injuries." I d. at 581-82. Thus, M.O.N.T. was

not entitled to tort indemnity from Union Oil. Id. at 582.

Chevron also directs our attenti on to Smith v. Southern Gulf Marine Co. No. 2, Inc., 791 F.2d

416 (5th Cir.1986). The time charterer in that case ordered a vessel to deliver personnel to a platform

in rough seas. I

d. at 418. Just before leaving the vessel, the plaintiff, Ronald Smith, slipped and fell.

Id. He sued several parties, including the time charterer of the boat (his employer, McMoran

Offshore Exploration Co.), and the trial court ruled in favor of McMoran. I d. at 419. We affirmed,

holding that Smith could not recover from McMoran on the theory that McMoran was responsible

for any injuries occurring as a consequence of its decision to transport workers by crewboat, because

the ultimate decision about whether to proceed rested with the crewboat captain. I d. However, we

also agreed with the trial court that "the decision to proceed by crewboat was not unreasonable." I d.

The trend of

o ur more recent decisions, as demonstrated by Sea Savage, plainly favors

imposing a duty of care on a time charterer who orders the ve ssel he has hi red to put to sea i n

dangerous weather. We distinguished M .O.N.T. Boat Rental in Graham, noting that M.O.N.T. Boat

Rental "implicit ly recognizes that there is a distinction between a time charterer's potential liabilit y

under the time chart er and independent tort liability which is not governed by the time charter."

Graham, 824 F.2d at 388. Additionally, the concepts of active and passive negligence have fallen by

the wayside with the advance of the comparative negligence doctrine. S ee Hardy v. Gulf Oil Corp.,

949 F.2d 826, 834 n. 13 (5th Cir.1992); L oose v. Offshore Navigation, Inc., 670 F.2d 493, 500-02

(5th Cir.1982). The force of the language in Smith suggesting that the time charterer was not

responsible for injuries resulting from sending the vessel into rough seas is undercut by that court'sagreement with the district court that the time charterer's decision was "not unreasonable." Smith,

791 F.2d at 419.

We think it clear that a time charterer may breach its duty of care if it "forces [the vessel under

charter] out in hurricane weather or similar treacherous conditions." K err-McGee Corp., 830 F.2d

at 1341; s ee also Moore v. Phillips Petroleum Co., 912 F.2d 789, 791-92 (5th Cir.1992); G raham,

824 F.2d at 388; H

elaire, 709 F.2d at 1041-42. The district court was correct to hold that Chevron

could be held negligent in its capacity as time charterer and that such negligence was negligence

committed as a "vessel" within the meaning of the LHWCA.

2. Sufficiency of the Evidence

Sea Savage argues that it was clearly erroneous for the district court to assign 757 of the

liabilit y fo r Randall's death to Sea Savage. Specifically, Sea Savage contends that the district court

should have assigned more than 257 of the liabilit y to Chevron for its role in ordering the evacuation

of the platform by vessel instead of by helicopter, and that the district court should hav e found

Randall himself contributorily negligent.

We reject both of Sea Savage's contentions. There was ample evidence to support the district

court's assignment of 757 of the fault to Sea Savage, based on the acts and omissions of the crew of

the SEA SAVAGE. We list only a few of the pertinent factual findings by the district court, all of

which were supported by the evidence. The captain of the SEA SAVAGE failed to post any crew

members near the stern of the vessel where platform personnel would be boarding, despite the rough

weather conditions. No life ring was easily accessible at the stern of the vessel, and to retrieve a life

ring deckhand Nash had to leave the stern of the vessel, run approximately fift y feet to the rear of the

pilothouse (impeded by an obstructing h at ch), and return to the stern of the vessel. Without

determining Randall's whereabouts, the captain put the vessel into gear and moved away, thereby

pushing Randall so far from the vessel that Nash could not throw him the life ring. The district court

also cited several other departures from man overboard procedures posted on the SEA SAVAGE,

as well as the failure of Sea Savage to train the vessel's crew properly in rescue procedures. The

apportionment of 757 of the liabilit y to Sea Savage and only 257 to Chevron for its role in orderingthe evacuation was not clearly erroneous.

Neither was it clearly erroneous for the district court to assign no fault to Randall himself.

There was eyewitness testimony that Randall's swing was not improperly done. Because the SEA

SAVAGE began to move away from Randall as soon as he fell overboard, his decision to swim

beneath the platform and cling to its legs for support could be found to be reasonable under the

circumstances. We find no error in the district court's apportionment of fault in this case.

C. Damages

Chevron challenges two elements of the district court's damages award. First, Chevron argues

that it was clear error for the dist rict co urt to award $1,000,000 for Randall's pain and suffering.

Second, Chevron argues that the district court's award of loss of society damages was improper under

the LHWCA.

1. Pain and Suffering

A trial judge's assessment of damages is a finding of fact and is reviewed under the clearly

erroneous standard. W

heat v. United States, 860 F.2d 1256, 1259 (5th Cir.1988); S osa v. M/V Lago

Izabal, 736 F.2d 1028, 1035 (5th Cir.1984). In the context of jury verdicts, we have held that an

award is disproportionate to the injury sustained if it is so large that it shocks the judicial conscience

or indicates passion, prejudice, corruption, bias, or another improper motive. Wellborn v. Sears,

Roebuck & Co., 970 F.2d 1420, 1427 (5th Cir.1992). If we determine t hat an award is

disproportionate to the injury, we will order a remittitur in accordance with the maximum recovery

rule, which mandates that the award be reduced to the maximum amount the jury could properly have

awarded. Id. at 1427-28.

After careful consideration, we conclude that the $1,000,000 award for Randall's pain and

suffering must be reduced to $500,000. We recognize t hat "[o]ur reassessment of [pain and

suffering] damages cannot be supported entirely by rational analy sis, but is inherently subjective,

invo lving experience and emotions as well as calculation." D ixon v. International Harvester Co., 754

F.2d 573, 590 (5th Cir.1985). Randall's pain and suffering, although extreme, was mercifully brief.

The district court's award of $1,000,000 translates into $40,000 per minute of pain and suffering, oralmost $60,000,000 per day . In the S osa case, we suggested that $1,000,000 approached the

maximum amount that could be awarded to a burn victim who sustained severe burns over eighty

percent of his body and who would endure discomfort and disabilit y for the rest of his life. S osa, 736

F.2d at 1035. Likewise, in S tratis v. Eastern Air Lines, Inc., 682 F.2d 406 (2d Cir.1982), the court

reversed a $1,200,000 pain and suffering award to a plane-crash victim who spent forty -two days in

a hospital burn unit and emerged a quadriplegic. I d. at 415 (noting that "in anyone's calculations [an

award of approximately $29,000 per day] has to be excessive").

The instant case is distinguishable from Wellborn, in which we affirmed a $1,000,000 award

for pain and suffering to the estate of a fourteen year-old boy who died after being pinned beneath

an automatic garage door. W ellborn, 970 F.2d at 1422-23, 1428. Randall clearly suffered no more

than roughly twenty-f

ive minutes, while the evidence in W ellborn showed that the decedent could

have been alive and conscious for up to several hours while pinned beneath the door. I d. at 1428.

Additionally, Randall was a mature adult rather than a young child. We do not find W ellborn to be

controlling.

We believe that $500,000 for Randall's pain and suffering would be reasonable. Should Sea

Savage, now the real party in interest (see note 1, supra ), refuse to accept the reduction of the pain

and suffering award, it will be entitled to a new trial on damages alone. Dixon, 754 F.2d at 590.

2. Loss of Society

We next address Chevron's challenge of the district court's awards for loss of society. Under

this heading, the district court awarded $300,000 to Randall's widow, $100,000 to Randall's adult son

Rod Randall, and $150,000 to Randall's daughter Holly Randall. It appears that both of Randall's

children lived at home and that Rod Ran dall wo rked for his father. Chevron argues that

non-pecuniary damages such as for loss of society are not available as a matter of law in the instant

case. We disagree.

The availabilit

y of loss of society damages in marit ime cases is an issue that has led the courts

t o weave an intricate web of case law. We begin our analysis with the seminal case of S ea-Land

Servs., Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). In Gaudet, the SupremeCourt held that the widow of a longshoreman could maintain a wrongful death action based on the

death of her husband from injuries suffered while aboard a vessel in navigable waters, even though

the decedent recovered damages during his lifet ime for his injuries. I d. at 574-75, 94 S.Ct. at 809-10.

The Court further held that compensation for loss of society is available in such cases. I d. at 585-90,

94 S.Ct. at 814-17. The Court eventually extended the G audet rule in American Export Lines, Inc.

v. Alvez, 446 U.S. 274, 276, 100 S.Ct. 1673, 1675, 64 L.Ed.2d 284 (1980), to allow recovery of loss

of society damages by the spouse of a longshoreman who is injured but not killed.

In a case not invo lving longshoremen, however, the Supreme Court took a less expansive

view of the remedies available under marit ime law. In M obil Oil Corp. v. Higginbotham, 436 U.S.

618, 9 8 S.Ct. 2010, 56 L.Ed.2d 581 (1978), the Court considered whether the survivors of a

helicopter pilot who crashed in the Gulf of Mexico outside state territorial waters could recover loss

of society damages. The Court held that they could not, noting that G audet applied only to coastal

waters, while the Higginbotham case concerned an accident on the high seas and was governed by

the Death on the High Seas Act (DOHSA), 46 U.S.C.App. § 762. Id. at 623-24, 98 S.Ct. at 2014.

Because DOHSA plainly limit ed recovery to "pecuniary loss[es]," the Court held that the federal

courts were not free to "supplement" the congressional directive to the point of meaninglessness. I d.

at 625, 98 S.Ct. at 2015. Significantly, the Court observed that "DOHSA sho uld be t he co urts'

primary guide as they refine the nonstatutory death remedy, both because of the interest in uniformity

and because Congress' considered judgment has great force in its own right." I d. at 624, 98 S.Ct. at

2014 (emphasis added).

After Alvez, the marit ime rules regarding loss of society damages in this circuit develo ped

somewhat unevenly. In light of G audet and Alvez, we took a friendly view of loss of society damages

in Cruz v. Hendy Int'l Co., 638 F.2d 719 (5th Cir.1981) (overruling in part Christofferson v.

Halliburton Co., 534 F.2d 1147 (5t h Cir.1976)). In that case a seaman suffered personal injuries

while his vessel was in Louisiana territorial waters. I d. at 721. His wife sued for loss of consortium

and loss of society under the Jones Act and general marit ime law

. Id. at 722. We held that the

spouse of a person entitled to recover for vessel unseaworthiness ha s a cause of action for loss of6 The limitation of the Gaudet rule to longshoremen injured in state territorial waters has been

scrupulously observed. See Robertson v. Arco Oil and Gas Co., 766 F.Supp. 535, 539 (W.D.La.)

(holding that a dependent of a longshoreman injured on the outer continental shelf rather than in

state territorial waters may not recover damages for loss of the longshoreman's consortium), aff'd,

948 F.2d 132 (5th Cir.1991). society, whether the injured person was injured on the high seas or in territorial waters. Id. at 725.

On the other hand, we held that the non-dependent parents of a seaman killed in territorial waters and

survived by a spouse or children could not recover loss of society damages under the general

marit ime law in Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455, 460-61 (5th Ci r.1985), c ert.

denied, 475 U.S. 1019, 106 S.Ct. 1205, 89 L.Ed.2d 318 (1986). Applying the general maritime law

to an accident that occurred on Lake Pontchartrain, the court in Truehart v. Blandon, 672 F.Supp.

929, 930 (E.D.La.1987), extended Sistrunk to bar loss of society recovery to non-dependent parents

of a non-seaman killed on navigable waters and leaving no surviving spouse or children.

In 1990, t he Supreme Court again turned its attention to this complex area of the law. In

Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), a seaman had

been stabbed to death by a fellow crew member, and the decedent's mother sued the vessel owner for

compensation, including loss of society damages. Id. at 21-22, 111 S.Ct. at 320. The issue before

the Court was whether loss of society damages are recoverable in a suit brought under the general

marit ime law for the death of a Jones Act seaman. I d. at 21, 111 S.Ct. at 320. The Court held that

such damages are not recoverable, extending the rule established in Higginbotham for DOHSA cases

to "all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general

marit ime law." I

d. at 33, 111 S.Ct. at 326. The Court limited G audet to its precise facts. I d. at 31,

111 S.Ct. at 325 ("The holding of Gaudet applies only in te rrit o rial waters, and it applies only to

longshoremen."). 6

Thus, Gaudet remains good law, even though its application has been severely limit ed. This

case comes squarely within its ambit. Randall, we have held, was a longshoreman within the meaning

of the LHWCA, and his accident occurred within Louisiana state territorial waters. M iles, therefore,

does not preclude loss of society damages as a matte r o f law in the instant case. The continued

vitality of Gaudet

and Alvez

on their facts has been noted. See Ferrara v. Fukuoka Senpaku K.K.,1991 A.M.C. 2 249, 2252, 1991 WL 50040 (D.Mass.1991) (holding that an injured longshoreman

suing under the LHWCA may still bring claims for loss of consortium on behalf of his spouse under

Alvez even after Miles ). We note, as did the F errara court, that t he LHWCA does not explicitly

limit damages recoverable to "pecuniary damages," as do the DOHSA and the Jones Act. Id. We

hold that, under Gaudet, Randall's survivors were entitled to recover loss of society damages.

Chevron argues in the alternative that the d i strict court erred in awarding loss of society

damages to Randall's adult so n because only financial dependents may recover such damages and

there was no evidence that Rod Randall was dependent upon his father. In our view, the law of this

circuit does not unequivocally limit recovery of loss of society damages for the wrongful death of a

parent to children who are financially dependent on the deceased parent. The case of S kidmore v.

Grueninger, 506 F.2d 716 (5th Cir.1985), clearly holds that adult offspring are within the class of

plaintiffs entitled to loss of society damages in a Moragne wrongful death action. Id. at 729 n. 11.

Financial dependence was not mentioned in Skidmore as a prerequisite to recovery of loss of society

dama ges by an adult child, and in dicta we have characterized S kidmore as allowing an adult,

non-dependent child to recover for loss of her mother's society. S istrunk, 770 F.2d at 458 n. 2. More

recently, however, we have noted that the district court in Skidmore explicitly found that the adult

child seeking loss of society damages was in fact dependent on the decedent. M iles v. Melrose, 882

F.2d 976, 987 (5th Cir.1989), aff'd sub nom. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct.

317, 112 L.Ed.2d 275 (1990).

In any event, w e need not unravel this tangled skein of case law today. In ruling on Sea

Savage's post-tri al motion to amend the judgment, the district court specifically found that Rod

Randall was financially dependent on his father. Both Sea Savage and Chevron argue in their briefs

that there was no evidence to support this finding, making much ado about the fact that Randall did

not declare his son as a dependent on his income tax returns. However, other credible evidence

supports the district court's finding. As Rod Randall testified, he had dropped out of college and was7 The court below also held, in the alternative, that a presumption of dependency exists

whenever a child continues to live at home with his parents, adopting the reasoning found in

Truehart v. Blandon, 672 F.Supp. 929, 937 (E.D.La.1987). Because we affirm the court's finding

that Rod Randall was in fact dependent upon his father, we need not address the validity of this

presumption. living at home when his father died. 7 It appears that he had lived at home for most of his life; indeed,

he was only twenty-one at the time of his father's death. He worked for his father, helping maintain

the family's farm and trucking equipment. The district court's finding of dependence was not clearly

erroneous. When a family unit is maintained by dependence on a single family member, each of the

dependents may recover for his losses including loss of society in a Moragne wrongful death claim

under general marit ime law. I n re Complaint of Patton-Tully Transp. Co., 797 F.2d 206, 213 (5th

Cir.1986).

We affirm the district court's awards of loss of society damages.

D. Indemnity and Insurance

As is often the case in t his type of dispute, the most hotly contested issue is not whether the

accident victim or his family should be compensated but rather who should ultimately bear the cost

of that compensation. The district court decided that Chevron was entitled to both indemnification

for its liabilit

y from Sea Savage and insurance coverage for its liability from the underwriters of the

insurance procured for Chevron by Sea Savage. We address these holdings in turn.

1. Indemnity

Sea Savage mounts a two-pronged attack on the district court's holding that it was liable to

indemnify Chevron in this case. First, Sea Savage argues that the language of the indemnity clause

contained in its time charter with Chevron does not entitle Chevron to indemnification for damages

arising out of Chevron's own negligence. Second, Sea Savage argues that Chevron's liability in this

case does not arise out of the "management or control" of the SEA SAVAGE as required by the time

charter. Because Sea Savage's first argument is meritorious, we do not reach Sea Savage's second

point.

We begin our analysis with the words of the time charter themselves. That contract provides,

in pertinent part, as follows:Owner shall man, operate, and navigate the vessel. The vessel shall prosecute its trips

and perform its services with dispatch, as directed by the charterer, but responsibility for the

management and navigation and operati on of the vessel shall remain at all times in the owner,

same as when trading for owner's account; and nothing herein contained shall be construed

as making this a demise.... Owner hereby agrees to defend, indemnify and hold harmless

Ch evro n against all claims for taxes or for penalties or fines, as well as against any and all

claims for damages, whether to person or property

, and howsoever arising in any way directly

or indirectly connected with the possession, navigation, management, and operati on of the

vessel.

As a marit ime contract, the time chart er is governed by federal law. T hurmond v. Delta Well

Surveyors, 836 F.2d 952, 952 (5th Cir.1988). Indemnity agreements are valid and enforceable under

federal law. Id.

Sea Savage argues that Lanas se v. Travelers Ins. Co., 450 F.2d 580 (5th Cir.1971), cert.

denied, 406 U.S. 921, 92 S.Ct. 1779, 32 L.Ed.2d 120 (1972), is dis p ositive. In that case, a crane

operator on an offshore oil platform owned by Chevron accidently injured Porphire Lanasse, a crew

member on a vessel receiving equipment from the platform. I d. at 582. Chevron argued, as it argues

here, that the indemnity provision of its time charter with the vessel owner shifted all liabilit y for the

incident onto the vessel owner. I d. at 583. Examination reveals that the indemnity provision at issue

in the instant case is essentially identical to the one at issue in Lanasse, from which we quote:

Owner shall man, operate, and navigate the vessel. * * * Responsibility for the management

and navigation and operati on of the vessel shall remain at all times in the owner. * * * Owner

hereby agrees to indemnify and hold harmless [Chevron] against all claims * * * as well as against any and all claims for damages, whether to person or property

, and howsoever arising

in any way directly or indirectly connected with the possession, navigation, management, and

operation of the vessel.

Id. at 582 n. 4 (emphasis deleted). The court held that the language of this indemnity agreement

could not be stretched so far as to reach the negligence of Chevron's crane operator, as thi s

negligence was "not even remotely related to the operation, navigation or management of the vessel."

Id. at 583. We also held that, even if the crane accident were covered under the "operation of the

vessel" clause, the indemnity provision could not be construed to entitle Chevron to indemnification

for liabilit y arising from the negligence of its own employees. I d. at 583-84 (stating that contractual

indemnity for one's own negligence arises only from the "plainly expressed intention of the parties,

manifested by language couched in unmistakable terms").

The district court relied on In re Incident Aboard D/B O cean King, 758 F.2d 1063 (5thCir.1985), in reaching its conclusion that this indemnity provision did include an agreement that Sea

Savage would indemnify Chevron for losses arising out of Chevron's own negligence. That case

involved a gas blow out and fire aboard a jackup drilling rig off the coast of Texas. I d. at 1065. The

operator of the rig had agreed to bear all co st s and liabilit y in the event of a blow out "from any

cause," and the contract provided that Louisiana law applied. Id. at 1067 & n. 5. Noting that this

contract involved an "allocation of risk provision" rather than an "indemnit y" provision, we held that,

under Louisiana law, the language was broad enough to require the operator to bear the risk of the

owner's negligence. I

d. at 1067 (citing Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977), and

Polozola v. Garlock, Inc., 3 76 So.2d 1009 (La.Ct.App.1979), c ert. denied, 379 So.2d 1103

(La.1980)).

Se a Savage argues that O cean King is inapposite because it involved the application of

Louisiana law rather than federal law. The district court reached the opposite conclusion, using the

following reasoning: (1) Louisiana law requires more specificity than federal law in order for an

indemnity provision to include indemnification for an indemnitee's own negligence; (2) the instant

indemnity provision would include indemnification for Chevron' s o wn negligence under Louisiana

law; and (3) therefore the instant indemnity provision includes indemnification for Chevron's own

negligence under federal law. Randall, 788 F.Supp. at 1396.

We are not convinced that the district court's basic assumption—that federal law construes

indemnity provisions more generously in favor of the indemnitee than Louisiana law—is correct. Our

cases reveal many instances in which we have held that "[l]ong-established general principles of

interpreting indemnity agreements require that indemnification for an indemnitee's own negligence

be clearly and unequivocally expressed." Theriot, 783 F.2d at 540 (quoting Seal Offshore, Inc. v.

American Standard, Inc., 736 F.2d 1078, 1081 (5th Cir.1984)); s ee also United States v. Seckinger,

397 U.S. 203, 211, 90 S.Ct. 880, 885, 25 L.Ed.2d 224 (1970) (interpreting a government contract

according to the principle that "a contractual provision sho uld not be construed to perm it an

indemnitee to recover for his own negligence unless the court is firmly convinced that such an

interpretation reflects the intention of the parties"); O rduna S.A. v. Zen-Noh Grain Corp., 913 F.2d1149, 1153 (5th Cir.1990) ("Before enforcing an indemnification clause f o r an indemnitee's own

negligence, a court must be firmly convinced that the exculpatory provision reflects the intention of

the parties." (citations omitted)). Our interpretation of Louisiana law has been consistent with these

principles. S ee Amoco Prod. Co. v. Forest Oil Corp., 844 F.2d 251, 253 (5th Cir.1988) ("U nder

Louisiana law, however, an indemnification agreement will not be construed to cover losses arising

from the indemnitee's negligence unless a mutual intent is expressed in unequivocal terms." (f ootnote

omitted)); O cean King, 758 F.2d at 1068. The applicable standard thus seems to be the same under

both Louisiana and federal law.

It may be that the Ocean King case, relied upon by the district court, is properly distinguished

from the instant case. Our case is somewhat similar to A moco Production, 844 F.2d at 256, in which

the court confronted a contractual provision in which the parties agreed that the "specific operation"

in question would be conducted at the "sole cost, risk and expense" of one party. The court declined

to follow Ocean King and instead held that the provision did not demonstrate with sufficient clarity

a mutual intent to provide indemnification for Amoco's negligence. I d. at 254. In distinguishing

Ocean King, the court first noted that the indemnity provision in Ocean King was much more specific

than the general indemnity provision at issue in Amoco Production. Id. at 256. The same may be said

of the indemnity provision at issue in the instant case. We do not believe that Sea Savage's duty to

indemnify Chevron for losses "howsoever arising" is sufficiently clear and unequivocal to shift liabilit y

for Chevron's negligence onto Sea Savage. As the A moco Production court also noted, the result in

Ocean King seems to have been based in part on the fact that the a greement in that case was the

product of extensive negotiations, id. at 257 n. 9; the time charter in the instant case seems to be a

form contract prepared and provided by Chevron. Finally, we note that indemnity contracts are to

be strictly construed. Smith v. Tenneco Oil Co., 803 F.2d at 1388.

In t he final analysis, however, we need not decide whether O cean King is distinguishabl e

because L anasse is controlling. Confronting the indemnity provision in L anasse we held that

damages caused by the indemnitee's own negligence were not covered. L anasse, 450 F.2d at 582 n.

4, 583-84. There are no legally significant differences between that indemnity provision and the onein the instant case—indeed, both appear to be derived from Chevron's own form contracts. Even if

Lanasse and Ocean King are in conflict, we are bound to follow Lanasse as the earlier precedent.

Luna v. United States Dep't of Health and Human Servs., 948 F.2d 169, 172 (5th Cir.1991). If proof

of the continuing vitality of Lanasse were required, it would be provided by our disposition in

Lavergne v. Chevron U.S.A., Inc., 782 F.Supp. 1163, 1172 (W.D.La.1991), aff'd mem., 980 F.2d

1444 (5th Cir.1992), in which the district court confronted language identical to the indemnit y

provision in the instant case and held that it did not require indemnifi cat ion for Chevron's (the

indemnitee's) own negligence. Thus, in light of L anasse and our disposition in Lavergne, we hold

that the district court erred in holding that Chevron was entitled to indemnification from Sea Savage

for those damages attributable to Chevron's own negligence.

2. Insurance

Although we have concluded that Chevron was not entitled t o indemnification from Sea

Savage under the terms of the time charter, Chevron may still avoid bearing the ultimate cost for its

negligence through the protecti on and indemnification policy (P & I policy) procured by Sea Savage

naming Chevron as an additional insured. Sea Savage was required to provide Chevron with such

insurance protecti on by the terms of the time charter, the relevant porti on of which reads as follows:

During the life of this charter, owner will, at its own expense, provide and maintain

insurance covering all liabilit ies which might arise from the possession, management, manning,

navigation and operati on of the vessel, which said policies shall be in form and amount, and

with companies as required and approved by Chevron; and on which policies Chevron shall

be included as party assured and all rights of subrogation against Chevron shall be waived.

Sea Savage obtained primary insurance coverage from Royal Insurance Company, among others, and

excess coverage from American Home Insurance Company (collectively, "the underwriters").

The underwriters moved for summary judgment on Chevron's claims against them before trial.

The district court granted these motions on the grounds that Randall's accident fell outside the scope

of the P & I policy. R and all, 788 F.Supp. at 1399-1400. After trial, the court reconsidered its

decision and reversed itself, holding that the accident was within t he sco pe of the policy and that

Chevron was entitled to insurance coverage. S ee id. at 1406. The court found that no prejudice to

the un derwrit ers resulted from their absence from the trial. I d. at 1400-01. The underwriterschallenge the district court's holding that Chevron is entitled to insurance coverage for its share of

the liability for Randall's death.

The pertinent provision in the P & I policy issued to Chevron reads as follows:

The Assurer hereby undertakes to make good to the Assured ... all such loss and/or

damage and/or expense as the Assured shall a s owners of the vessel named herein have

become liable to pay and shall pay on account o f ... liability for loss of life of, or personal

injury to, or illness of, any person....

(emphasis added). The underwriters argue that Chevron's negligence in this case was not committed

in the capacity of "owner" of the SEA SAVAGE, and that Chevron thus lacks coverage under the

policy. Chevron argued to the district court that this clause had been deleted, but the district court

disagreed, see Randall, 788 F.Supp. at 1401-03, and Chevron does not challen g e this finding on

appeal.

The question presented for our decision, quite simply, is whether the district court correctly

held that the liability incurred by Chevron in its capacity as time charterer was incurred "as owner"

within the meaning of the insurance policy. The court's reasoning, it appears, was largely based on

the assumption that the term "owner" has the s ame meaning in the insurance policy as it does in §

902(21) in the LHWCA. R andall, 788 F.Supp. at 1405 ("Because the LHWCA treats a time

charterer as a vessel owner and because Chevron's negligence arose from its status as time charterer,

Chevron incurred its liability "as owner' of the vessel."). The underwriters' argument that "owner"

do es not necessarily mean the same thing in the insurance context as it does in the LHWCA is

well-taken. We proceed to our de novo review of this issue of insurance contract interpretation,

tracing the jurisprudence of this circuit on this recurring question.

Both Chevron and the underwriters acknowledge that Lanasse is the seminal case in this area

of t he law. In L anasse, Chevron claimed it was entitled to insurance coverage "as owner" of the

vessel on which the victim was injured by the negligence of Chevron's crane operator. L anasse, 450

F.2d at 583. The court disagreed. In the words of Chief Judge Brown,

There must be some causal operational relation between the vessel and the resulting

injury. The line may be a wavy one between coverage and non-coverage, especially with

industrial complications in these ambiguous amphibious operations plus those arising from the

personification of the vessel as an ac t or in a suit in rem. But where injury is done through

nonvessel operations, the vessel must be more than the inert locale of the injury.Id. at 584 (f ootnote omitted). Although the phrase "causal operational relation" does little to clarify

the meaning of the phrase "as owner" in the instant case, Lanasse clearly sugg ests that a ti m e

charterer may become eligible for insurance coverage "as owner" under some circumstances.

The underwriters direct our attenti on to Graham v. Milky Way Barges, Inc., 590 F.Supp. 721

(E.D.La.1984), aff'd in part and rev'd in part, 824 F.2d 376 (5th Cir.1987). In that case, the court

held Chevron responsible in its capacity as time charterer for its negligence in dispatching a vessel in

rough weather, leading to the capsizing of the vessel. I d. at 728-29. The court al so held that

Chevron was not entitled to insurance coverage because its liabilit y arose out of its acts as platform

owner rather than as owner or operator of the vessel. I d. at 730. We expressed approval of t he

district court's ruling that Chevron's negligence was independent of any negligence arising from the

"maintenance or operation" of the vessel, Graham, 824 F.2d at 388, which suggests that Chevron's

negligence in dispatching the SEA SAVAGE may have lacked any connection to the operati on of the

vessel, and thus that the requisite "causal operational relation" to the death of Randall may be absent.

However, we did not deny insurance coverage based on Chevron's status or non-status "as owner,"

but rather decided instead that insurance coverage was not available because Chevron had violated

the navigational and operational limit s imposed by the policy. I d. at 384. G raham thus does not

represent an absolute repudiation of our statement in Lanasse that time charterers may be covered

by insurance policies "as owner" in some circumstances.

Chevron cites the Helaire case in support of the proposition that any negligence it may have

committed as time charterer is within the "as owner" language of the insurance policy. As we have

seen, the time charterer in that case was held liable for injuries suff ered by a worker who was

unloading equipment from a vessel to a platform under § 905(b) of the LHWCA. H elaire, 709 F.2d

at 1033, 1041-42. The district court in H elaire ruled that the time charterer was entitled to insurance

coverage under a policy essentially identical to the instant policy, and we affirmed. I d. at 1041, 1042

& n. 17. However, as the underwriters point out, we also noted that the words "as owner of the

vessel" had been deleted from the policy, so the time charterer was entitled to coverage regardless

of the capacity in which it was sued. I d. at 1042. The opinion also appears to conflate the meaningof "owner" under the policy with the definition of "vessel owner" in the LHWCA, although this is not

clear. Id. at 1041-42.

Chevron also relies on Texas E. Transmission Corp. v. Garber Bros., 547 F.Supp. 821

(E.D.La.1982). In that case, Union Oil Company entered into a time charter with Garber Bros. for

the use of a vessel; during operations the vessel's anchor collided with a pipeline owned by Texas

Eastern Transmission Corporation. Union Oil was named as an additional insured, and the policy

apparently included the same "as owner" language as the policy in issue in the instant case. I d. at 822.

Although the claims against Union Oil were dismi ssed, Unio n Oil sought reimbursement for its

expenses under the terms of the policy. I d. Union Oil argued that it had been sued by Texas Eastern

for directing the vessel to undertake the operations that damaged the pipeline and for failing to assist

the vessel when the risk of collision became apparent, that these charges were made against Union

Oil in its capacity as charterer of the vessel, and that insurance coverage was thus available. I d. The

district court in Garber Bros. reasoned that vessel-related negligence by a party comes within the "as

owner of" provision, while negligence committed as platform owner does not. Id.

Sea Savage a nd its underwriters argue that G arber Bros. was implicit ly overruled by this

court's decision in Texas E. Transmission Corp. v. McMoRan Offshore Exploration Co., 877 F.2d

1214 (5th Cir.), cert. denied, 493 U.S. 937, 110 S.Ct. 332, 107 L.Ed.2d 321 (1989). In that case,

McMoRan was on e o f multiple parties that had hired towing services from Faustug Marine

Corporati on. I

d. at 1217, 1226. During the towing of a semi-submersible drilling rig that McMoRan

had acquired by assignment, an anchor of the towing vessel supplied by Faustug damaged a pipeline

owned by Texas Eastern. Id. at 1217-19. McMoRan's liability for its role in ordering the retrieval

of the anchor was assessed at 107. I d. at 1220-21. In the course of discussing whether the contract

between Faustug and McMoRan required Faustug to insure McMoRan against this kind of liabilit y,

t he court noted that "[t]he usual form of Protection & Indemnity insurance, which "insures o nly

against liabilit

y resulting from vessel ownership, ' would no t provide coverage for McMoRan, a

non-ship-owner." Id. at 1227 (footnote om itted).

We do not agree with the position urge d by Sea Savage and its underwriters. Theirinterpretation of McMoRan would make it virtually, if not completely, impossible for a time charterer

ever to receive insurance coverage under any circumstances, and if McMoRan did have such an effect

we might be forced to disregard it a s inconsistent with our earlier opinion in L anasse. This is not

necessary, however, as the underwriters have overstated the breadth of the holding in M cMo Ran.

As that court clearly stated,

Any P & I insurance that Faustug might have obtained would not have covered McMoRan's

negligence, since McMoRan's negligence did not arise out of the ownership of a vessel, but

out of the operati on o f an anchor retrieval process in which the vessel was only "the inert

locale of the injury."

Id. at 1228 (quoting Lanasse, 450 F.2d at 584). McMoRan thus does not completely foreclose the

possibility that a time charterer can be covered under an insurance policy protecting an insured "as

owner" on a proper set of facts.

Additionally, as we have suggested, the interpretation of the insurance policy urged by Sea

Savage and its underwriters would render the insurance coverage virtually meaningless. Sea Savage

argues that, as owner of the SEA SAVAGE, it retained control of the navigation, management, and

operation of the vessel. Sea Savage also argues that "by contract and tradition, Chevron could not

act as a manager or operator of the vessel," and that "as a matter of common sense it could no t

commit fault "as owner' of the vessel." If this were true, then the insurance policy providing coverage

for Chevron's liabilit

y "as owner" o f t he vessel could never come into effect. Under this

interpretation, no time charterer could ever satisfy the "causal operational relationship" requirement

so as to qualify for insurance coverage "as owner" of the vessel. We will not construe an insurance

policy in such a way that it provides no coverage whatsoever to the insured.

The only connection a time charterer typically has with the vessel it hires is the right to direct

the vessel's movements. We find persuasive the reasoning of the court below and that of the court

in Garber Bros. that when the time charterer exercises this right negligently, it has committed

negligence "as owner" of the vessel within the meaning of that phrase in a marine insurance policy.

This type of negligent conduct, it seems to us, has the requisite "causal operational relationship" to

the vessel, even t ho ugh the time charterer wholly lacks the authority to direct the minutiae of the

vessel's day-to-day operations. "In this action, Chevron's contribution to Randall's death, orderingthe vessel to encounter dangerous seas, cl early is related to the vessel." R andall, 788 F.Supp. at

1403. The district court correctly ordered the underwriters to provide insurance coverage to

Chevron.

3. Chevron's Expenses Incurred Defending Mrs. Randall's Punitive Damages Claim

Chevron argues that the dis trict court erred by refusi ng to award Chevron costs and

attorneys' fees incurred in connection with Mrs. Randall's claims for punitive d amages. Chevron

contends that it is entitled to reimbursement for these expenses under both the indemnity provision

of the time charter and the P & I policies. The claim based on the indemnity provision of the time

charter must fail because, as we have already held, Chevron is not entitled to indemnification from

Sea Savage for any losses suffered by Chevron as a result of its own negligence. We must now

consider whether Chevron may recover its costs and attorneys' fees from Sea Savage's underwriters.

As has been observed, the seminal question in resolution of this coverage issue is the choice

of law to be applied. 2 Parks, s upra, at 1039. We have recently resolved this issue in favor of state

law. In T aylor v. Lloyds Underwriters, 972 F.2d 666, 667 (5th Cir.1992), cert. denied,

--- U.S.

----,

113 S.Ct. 1366, 122 L.Ed.2d 744 (1993), several seaman were injured when their lifeboat capsized

in the Gulf of Mexico, and they recovered compensatory and punitive damages against the boat's

charterer in an action broug ht under general maritime law. The charterer was insolvent, and the

plaint iffs sought to recover aga inst three insurance policies, including a comprehensive general

liabilit y policy and a P & I policy. Id. The district court granted the insurer's motion for summary

judgment, holding that the general marit ime law disallows the recovery of punitive damages from an

insurance company. I

d. We reversed, holding that no specific and controlling federal rule disallowed

such recovery. I

d. at 669. We held that the district court should have applied the law of the state

having the greatest interest in the resolution of the issues, and we remanded so that the district court

could make that determination. Id. In this case, Louisiana law provides the rule of decision.

The P & I policy in question insures Chevron with respect to "[c]osts, charges, and expenses,

reasonably incurred and paid by th e Assured in defense against any liabilities insured against8 We refer, as do the parties, only to the primary P & I policy, because the excess P & I policies

cover the same liabilities as the primary policy. hereunder in respect of the vessel named herein." 8 Thus, if punitive damages are liabilities covered

by the P & I policy, Chevron is entitled to recover from the underwriters the attorneys' fees it spent

defendin g against the punitive damages claim. Chevron cites several Louisiana cases for the

proposition that liabilit

y insurance contracts provide coverage for claims for punitive damages unless

specifically excluded by the policy. S ee Sharp v. Daigre, 555 So.2d 1361, 1363 (La.1990) (holding

that exemplary damages may be recovered from an insurer on a policy reading "We will pay damages

which a covered person is legally entitled to recover

... because of bodily injury...."); C reech v. Aetna

Casualty & Sur. Co., 516 So.2d 1168, 1171 (La.Ct.App.1987), c ert. denied, 519 So.2d 128

(La.1988). Thus, argues Chevron, because the underwriters would have been obligated to cover any

award of punitive damages against Chevron, they must provide coverage for the costs and attorneys'

fees Chevron incurred in defending the claim for punitive damages.

The underwriters argue that punitive damages, and by extension expenses incu rred i n

defending against such damages, are excluded from coverage under the policy. They contend that

punitive damages are not liabilit ies "for loss of life of

... any person" as are covered by the policy. For

support the underwri

ters cite S mith v. Front Lawn Enters., 1987 A.M.C. 1130, 1130-31

(E.D.La.1986), in which the court held that an essentially identical policy did not provide coverage

for a claim for punitive damages based on unseaworthiness and refusal to pay maintenance and cure.

In Taylor, however, we took note of the view expressed i n Smith and declined to interpret it as

establishing a controlling federal rule, holding instead that state law should provi de the rul e of

decision. T

aylor, 972 F.2d at 668-69; s ee also 2 Parks, supra, at 1041 (noting that no federal cases

exist regarding the coverage of punitive damages issue).

Although the Sharp case, decided by the Louisiana Supreme Court, deal s with uninsured

motorist insurance only, there is nothing in the opinion to suggest that its holding would not apply

with equal force to other types of insurance. P & I policies are, strictly speaking, indemnity policies

rather than liabilit

y policies, but the indemnity is itself basically against liabilities, Parks, s upra, at1004, and in general indemnity policies are construed like any other insurance policy. I d. at 839. Sea

Savage's underwriters have not directed our attenti on to any Lou isiana cases suggesting that the

application of Sharp should be limit ed in any way, nor does our research uncover any. The policy

language at issue in Sharp, which covered damages arising "beca use o f bo dily injury, sickness, or

disease," is not more general or all-encompassing than the "[l]iability for loss of life of, or personal

injury to, or illness of, any person" language in the instant P & I policy. We therefore hold that under

Louisiana law, applied in the absence of a controlling federal rule, punitive damages are covered by

the P & I insurance policy at issue in the instant case. Chevron is therefore entitled to recover its

costs and a t t o rneys' fees expended in defending Mrs. Randall's claim for punitive damages. The

district court's holding to the contrary is reversed.

E. Attorneys' Fees

Our fin al t ask o n t his appeal is to review the district court's award of attorneys' fees to

Chevron. The district court referred Chevron's claim for attorneys' fees to a magistrate judge, who

made several recommendati o ns that Chevron's claims be reduced in amount. Specifically, the

magistrate judge recommended that the hourly rate of Chevron's lead trial counsel be reduced from

$175 to $150 and that the total number of hours billed by Chevron's attorney s be reduced by 307.

The district court heard oral argument and refused to adopt these recommendations, instead finding

the hours and rates requested by Chevron to be reasonable. Sea Savage asks this court to reverse the

decision of the district court and to enforce the recommendations of the magistrate judge.

Our review of the award is hampered by Sea Savage's utter failure to present any authority

in its brief for its position that the award is excessive. Sea Savage does not point out any errors made

by the district court. Neither does Sea Savage address the standard of review the district court should

have applied to the magistrate judge's recommendations, or for that matter the appropriate standard

of review applicable on this appeal. In essence, Sea Savage's argument boils down to a bald assertion

that the magistrate judge's recommendation was correct and the district court's ultimate award was

not, plus a request that we "review Chevron's billings" ourselves. This does not satisfy the

requirements of Federal Rule of Appellate Procedure 28(a)(5), which requires the argument sectionof the appellant's brief to contain not only the party's contentions but also its "reasons therefor, with

citations to the autho rit ies, st atutes and parts of the records relied on." In the absence of logical

argumentation or citation to authority, we decline t o reach t he merits of Sea Savage's contention.

See United States v. Ballard, 779 F.2d 287, 295 (5th Cir.) (holding that claims made "without citing

supporting authorities or references to the record" are considered abandoned on appeal), cert. denied,

475 U.S. 1109, 106 S.Ct. 1518, 89 L.Ed.2d 91 6 (1986); Kemlon Prods. and Dev. Co. v. United

States, 646 F.2d 223, 224 (5th Cir.) (refusing to reach the merits of a party's claims when that party's

brief addressed neither the merits o f it s o wn claims nor the reasoning of the district court), c ert.

denied, 454 U.S. 863, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981).

IV.

For the foregoing reasons, we REVERSE the district court's award for pain and suffering and

REMAND for the granting of a remittitur to $500,000 or a new t rial o n damages at Sea Savage's

option. We REVERSE the district court's holding that Chevron is entitled to indemnification from

Sea Savage under the time charter. We also REVERSE the district court's denial of attorneys' fees

to Chevron f

o r it s defense of the claim for punitive damages and REMAND for determination of

those fees. In all other respects, the judgment of the dist rict court is AFFIRMED. Costs shall be

borne by Chevron and Sea Savage.

ROBERT M. PARKER, District Judge, concurring in part, dissenting in part:

I concur with the majority opinion, with the exception of the remittitur portion contained in

Section III., C., 1., Dam ages; Pain and Suffering. I am persuaded that the district court's

assessment of the facts of this case as it relates to the award of damages in the amount o f

$1,000,000.00 for pain and suffering is not only not clearly erroneous, but falls within the bounds of

reasonable compensation under the circumstances. I t herefo re limit my dissent to the remittitur

ordered.