Dianne Craig, Claimant-Appellant v. M/v Peacock, on the Complaint of Oscko Edwards, Harry M. Tompkins, Fairfield Industries

The Memorandum decision filed the 9th day of July, 1984, 740 F.2d 973 , is withdrawn. On petition for rehearing, the following opinion is substituted and the petition for rehearing is denied.

Dianne Craig appeals from the magistrate’s judgment exonerating the owners of the motor vessel PEACOCK from liability in the death of her husband, Larry Lewis. We affirm.

I. BACKGROUND

The M/Y PEACOCK (PEACOCK), a former Navy minesweeper, is owned by appellees, Oscko Edwards and Harry M. Tompkins (Shipowners). During the latter part of 1979, the Peacock was chartered to Fair-field Industries, Inc. (Fairfield), for seismic oil exploration. Larry Lewis (Lewis) was employed as a technician by Fairfield. He had been employed in this capacity aboard the PEACOCK for several months. On December 23, 1979, while assisting a fellow employee in the repair of some of the survey equipment, Lewis fell overboard. After an extensive seven-hour search, begin *955 ning immediately after the fall and continuing with the aid of the Coast Guard, Lewis was declared missing and presumed dead.

Dianne Craig (Craig) filed suit in the Southern District of Texas for the wrongful death of Lewis, her husband.…

dissenting.

I respectfully dissent.

The majority decision in this case does a serious injustice to scientific personnel serving on oceanographic vessels. Seamen-scientists serving as members of an ORV crew may, at times, be exposed to greater perils of the sea than are traditional seamen. Here, for example, Larry Lewis, a member of the scientific personnel of the crew of the PEACOCK, while engaged in repairing seismic survey equipment, fell overboard at a place on the PEACOCK where the guard rails had been removed for convenience in handling scientific equipment. Yet, the majority affirmed: the trier of fact had held that a seaman-scientist on an ORV could not be a seaman. This “finding of fact” enabled the magistrate to avoid the issue of the seaworthiness of the vessel. He then simply decided that the shipowner was not negligent. By furnishing a ship reasonably fit for its intended use the shipowner had not violated his duty of due care to a non-seaman aboard ship. The majority paid lip-service to the law of this circuit and the law of all other circuits as to the seaman status of members of a ship’s company when they perform services carrying out the mission of a special…

760 F.2d 953 1986 A.M.C. 2565 Dianne CRAIG, Claimant-Appellant, v. M/V PEACOCK, on the Complaint of Oscko EDWARDS, Harry M. Tompkins, Defendants-Appellees. Fairfield Industries, Defendant. No. 83-2023. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 10, 1984. Decided May 14, 1985. Henry D. Dicum, John E. Droeger, Hall, Henry, Oliver & McReavy, San Francisco, Cal., for claimant-appellant. Graydon S. Staring, Ann Miller, Matthew P. Vafidis, Lillick, McHose & Charles, San Francisco, Cal., for defendants-appellees. On Appeal from the United States District Court for the Northern District of California. Before WISDOM, * DUNIWAY, and ANDERSON, Circuit Judges. J. BLAINE ANDERSON, Circuit Judge: 1 The Memorandum decision filed the 9th day of July, 1984, 740 F.2d 973 , is withdrawn. On petition for rehearing, the following opinion is substituted and the petition for rehearing is denied. 2 Dianne Craig appeals from the magistrate's judgment exonerating the owners of the motor vessel PEACOCK from liability in the death of her husband, Larry Lewis. We affirm. I. BACKGROUND 3 The M/V PEACOCK (PEACOCK), a former Navy minesweeper, is owned by appellees, Oscko…