Judy J. Wentz, Wife Of/and John Bruce Wentz, Plaintiffs-appellants, v. Kerr-mcgee Corporation, Defendant-appellee.aime Brown, Wife Of/and David L. Brown, Plaintiffs-appellants, v. Conoco, Inc., Defendant-appellee, 784 F.2d 699 (5th Cir. 1986)

Appellee Kerr-McGee Corporation owned and operated a fixed platform on the outer Continental Shelf. This platform was used to extract oil, gas, and other minerals from the seabed. On March 2 and 6, 1984, appellant John Wentz, while employed by Kerr-McGee as an electrician, was injured aboard this platform as a result of a fellow employee's negligence. Wentz and his wife subsequently brought an action in tort against Kerr-McGee in the Eastern District of Louisiana, claiming under the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq. Mrs. Judy Wentz also claimed damages for loss of consortium under Louisiana law. La.Civ.Code Ann. art. 2315 (West Supp.1985).

On March 1, 1985, Kerr-McGee moved to dismiss the Wentzs' suit under Rule 12(b) (6) of the Federal Rules of Civil Procedure for failure to state a cause of action. Kerr-McGee argued that the only remedy under Sec. 1333(b) against an employer for an employee's disability or death was the Longshoremen and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. § 901 et seq.¹  The Wentzs responded that the 1978 amendments to the OCSLA had created a cause of action in tort for employees against their employers distinct from the LHWCA. The district court rejected the Wentzs' argument and dismissed their suit.

Appellant David Brown was similarly injured in July, 1983, aboard an offshore platform owned and operated by his employer, appellee Conoco, Inc. Brown and his wife brought claims against Conoco on the same grounds as those raised by the Wentzs. The district court granted Conoco's motion for summary judgment and dismissed the Browns' claims. Because the issues presented on appeal by the Browns and the Wentzs are identical, we consolidate both appeals on our own motion.

It was well-settled prior to 1978 that the exclusive remedy against an employer for an employee's injury or death within the scope of the OCSLA was the LHWCA. E.g., Nations v. Morris, 483 F.2d 577, 587-88 (5th Cir.), cert. denied, 414 U.S. 1071, 94 S. Ct. 584, 38 L. Ed. 2d 477 (1973). Appellants argue, however, that Sections 23-24 of the OCSLA, 43 U.S.C. §§ 1349-1350 (1982),added by the 1978 amendments, by implication created an independent right of action in tort against an employer for the disability or death of an employee on the outer Continental Shelf.

It is clear that Congress intended to create no new cause of action under the OCSLA for the disability or death of employees such as Brown or Wentz. The Conference Report states:

This amendment involve [s] no change in existing law. It [is] not the intent of the managers to alter in any way the existing coverage of the Longshoremen's Act, nor of other remedies that may be available for injury or death.

H.R.Conf.Rep. No. 95-1474, reprinted in 1978 U.S.Code Cong. & Ad.News 1950, 1674, 1680. Appellants argue that this language is not dispositive. They contend that Congress created, in 1978, a new action in tort to supplement the LHWCA remedy. We reject this contention for two reasons.

First, it would vitiate the exclusivity of the LHWCA remedy. Such a result cannot be reconciled with the explicit statement of congressional purpose to the contrary quoted above. Second, this argument misconstrues the purposes behind Secs. 1349-1350. There is, to be sure, language in Sec. 1349(b) which taken alone might be read broadly enough to support appellants' position that a new cause of action in tort was created for injured employees against their employers.²  Section Sec. 1349(b), however, applies by its own terms only to the jurisdiction and venue of OCSLA actions in federal courts. In deleting the general jurisdictional provision of pre-1978 Sec. 1333,³  Congress made clear that nothing more drastic than reenactment of this provision was contemplated by the enactment of subsection (b), the jurisdiction and venue portion of Sec. 1349. The conference report provides:

The conference report also adopted a conforming change to section 4(c) [now Sec. 1333(b) ] of the 1953 OSC Act. Section 4(c) describes the application of the Longshoremen's and Harbor Workers' Compensation Act and makes reference to section 4(b) of the original 1953 act. Section 4(b), providing the jurisdictional bases for cases and controversies, has been deleted and an analogous provision adopted as part of a comprehensive section 23 on "Citizen Suits, Court Jurisdiction, and Judicial Review." [now Sec. 1349].

1978 U.S.Code Cong. & Ad.News at 1680.

The only new private right of action created by Sec. 1349 is contained in Sec. 1349(a). This provision permits a private citizen to bring suit to enforce the OCSLA and any regulations promulgated pursuant to it, and to seek civil penalties.⁴  A citizen thus may become a "private attorney general" with regard to OCSLA enforcement. The scope of this provision may be potentially far-reaching. But it is an enforcement action, not a strict liability tort claim for personal injury as appellants assert in these cases.

Appellants also argue that Sec. 1350(e)⁵  supports their argument. Section 1350 provides for extraordinary relief, civil penalties and criminal penalties only. It makes no reference to the recovery of damages for injuries to private parties. Nor was any intended. Congress intended only that "the remedies and penalties in this section are to be concurrent with each other, and any other remedies afforded by any other law or regulation." H.R.Rep. No. 95-590, reprinted in U.S.Code Cong. & Ad.News 1450, 1570.

Since the 1978 amendments this Court has continued to treat the LHWCA as the exclusive remedy of an injured employee against his or her employer. E.g. Stansbury v. Sikorski Aircraft, 681 F.2d 948, 950 (5th Cir.), cert. denied, 459 U.S. 1089, 103 S. Ct. 573, 74 L. Ed. 2d 935 (1982). We hold that this is the controlling law and Congress has not changed it. Brown and Wentz are bound by the exclusive remedy provision of the LHWCA. Their wives also have no independent causes of action. Stansbury, 681 F.2d at 951.

AFFIRMED.