Opposition — Bossard v. Exxon Corp.

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In The | FEB 24 1978

‘

SUPREME COURT OF THE UNITEDL SHOMEESROpAx JR., CLERK

; Supreme Court, U.S, “ae

' FILED

{

October Term, 1977

—"

No. 77-1059

ELLA WEESE WATSON BOSSARD,

INDIVIDUALLY AND AS ADMINISTRATRIX

OF THE ESTATE OF DONALD BOSSARD,

AND GENILEVEVE BOSSARD AND

BERTHA LEE BOSSARD,

Petitioner

Vv.

EXXON CORPORATION, LAMAR LABAUVE,

TOM WOLFE, JOSEPH LABAUVE, AND

DELTA LABORATORIES,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

OF COUNSEL: E. BURT HARRIS

P. 0. Box 60626

BERNARD J. CAILLOUET New Orleans, La.

ELLIOTTE M. HAROLD, JR. 70160

P. O. Box 60626 Attorneys for

New Orleans, La.70160 Respondent, Exxon

Corporation

OPINIONS BELOW

JURISDICTION 2

QUESTIONS PRESENTED 2

STATUTES INVOLVED 3

STATEMENT OF THE CASE 3

ARGUMENT 6

CONCLUSION 22

CERTIFICATE 23

APPENDIXES |

Appendix A - Hess v. Upper Mississippi

Towing Corp., Opinion of

Court Below

Appendix B - Minute Entry Dismissing

Defendants L. E. LaBauve,

J. E. LaBauve, T. A. Wolfe

and Delta Laboratories

Appendix C - Deposition of J. E. LaBauve,

pp. 8-9

Appendix D - Motion for Summary Judgment

on Behalf of Exxon Corporation

Appendix E - Minute Entry Granting Motion

for Summary Judgment on

Unseaworthiness

Appendix F - Original Complaint of

Pe_itioner, Paragraph Five

CITATIONS

Cases: Page

Allstate Finance Corp, v.

Zimmerman, 296 F.2d 797

(5th Cir. 1961). TT eTTTT TITTY

Anuszewski v. Dynamic “Mariners

Corp., Panama, 391 F.Sup PP

ary (D.C.Md. "1975), aff'd

540 F.2d 757 (4th Cir. 1976).

Ivarans Rederi, A/S,

Brown v.

545 F.2d 854 amas” x 7 ay).

cert. denied,

S.ct. 1652 t1o777. ceeenese seexce Oe

Brownfield v. Landon, 113

U.S.App.D.C. 248, 307 F.2d

389, cert. denied, 371 U.S.

924 (1967). SeOeeseredoocesce °

Dalehite v. United States, "346

953).. Teer TTT oecece

England v. American Southern

Insurance Compan 380 F.2d

137 (4th Cir. 1567) [cee cnn eke ees

Eutsler v. United States, 376

F.2d 634 (10th Cir. 1967).. 9, 18,

Frasca v. Prudential-Grace Lines,

~ Inc., 394 F.Su PP-

(D D.c. Md. 1975).. ecoccceccceoce

Gay v. Ocean Trans rt & Tradin .

td., 546 F.2d ae (5th Cir.

1977)... reer o*eeeoeer

Hess v. U er Mississir i Towin

Cor peer .2d 1030 Lt Cir.

LOTVy. a for cert. filed

(No. 57- 1025).. wTTTT TT 6,

Hurst v. Triad Ship ping Co., "554

F. r Be. SFT peccece ove

Kermarec v. Compagnie Generale

Transatiantique. 358 U.S.

iii

Lindler v. District of Columbia,

164 U.S.App D.C. 35, 502 F.2d

495 (i974)... TYTTTY oo

Namirowski v. Nabisco. “Inc. , 421

F.Supp. 349 (N.D “Tit. BOOP cvecce 21

Parsons v, po Hess con .

F. th Cir.

1970).. oses + 14, 15, 18, 19

Ramirez v. “Toko Kaiun, K.K., 385

F.Supp. 644 (N.D. Cal. 1974) 11

Richardson v. United States, 551°

F.Supp. 107 (W.D.Tenn. 1966)..... 9

an Stevedoring Co., Inc. v.

an-Atlantic epee Corp. .

° 956). beeeceéees be

Teofilovich v. d' Amico

Mediterranean/ Pac c Line,

Supp. C.D.Cal. 1976)... 16

United states me Page, 350 F.2d

deni a. 382 979 T1586)

enie U. s. oo 18, 19

Welker v. Kennecott Copper Co.

° C. riz. = oe 9

Whitlow Vv. Seaboard at Line R.R.

F. aie

T5388). (ghudeuebdbeucsencess 16

Statutes:

Longshoremen's and Harborworkers'

Compensation Act

= ys 5(b), . em 1263,

U.S.C. § 5(b -+ee passim

Section 4l(a), 44 Stat.

1444, 33 U.S.C. § 941(a)..... 9

Page In The

Miscellaneous: SUPREME COURT OF THE UNITED STATES

George, The Content of the Negligence Sateen Term. 1977

Action by a Se eet , : ’

powners Under the Amendments

to the Longshoremen's and Harbor c

Workers’ Compensation Act, Volume II, No. 77-1059

No. 2 The Maritime Lawyer 15, -

31 ghd eeeeneeee . *“eere

J. Moore FEDERAL PRACTICE

ELLA WEESE WATSON BOSSARD, et al.,

456. tate} (1976). sree ate lids 1 Petitioner

RESTATEMENT SECOND) OF “TORTS (1965) ie

Section epepeeeaeeeeebeaas +:

DUOUEOE Gite ccc60000600e8bet

Section 416..ccccccececs 16, 17, 18 EXXON CORPORATION, 5 hat

Dees Tem. sescoeeeeseeesesesnee Et

Section 427...cccccceccecs 14, 16

RESTATEMENT (SECOND) OF TORTS,

Special Note to Chapter 15

(Tent. Draft No. 7, P1962),

ON PETITION FOR A WRIT OF CERTIORARI

. TO THE UNITED STATES COURT OF APPEALS FOR

pp. 1l7- 18. *e e*eeeseeeneeee#ee 9

S. Rep. No. 92- ~1125, 92 Cong.,

BG GOSS, 2 CAGE Pcccccsccescoese

THE FIFTH CIRCUIT

BRIEF FOR RESPONDENT EXXON CORPORATION

IN OPPOSITION

OPINIONS BELOW

The judgment of the District Court

granting respondent's motion to dismiss

' , for failure to state a claim, reprinted

| as Appendix F of Petition, is unreported,

The opinion of the Court of Appeals for

the Fifth Circuit (App. A otf Petition) is 4. Should the respondent, Exxon, have

reported at 559 F.2d 1040, been granted its motion to dismiss

JURISDICTION ‘ , for failure to state a claim?

The jurisdictional requisites are STATUTES INVOLVED

adequately set forth in the Petition. The pertinent provisions of the Long-

shoremen's and Harborworkers' Compensation

QUESTIONS PRESENTED Act, as amended on October 27, 1972 (86

Be Should the principles of maritime Stat. 1263, 33 U.S.C. § 905 (a) and (b)),

negligence espoused in Kermarec vy,

are set forth in the Petitioa at pp. 3

Compagnie Generale Transatlantique, and 4

358 U.S. 625 (1957), be applied in

an action under 33 U.S.C. § 905(b)?

STATEMENT OF THE CASE

The EXXON BARGE 217 is an unmanned

2. If maritime negligence is rejected barge owned by respondent. It had dis-

in favor of land-based principles of charged its previous cargo of gasoline

law in a claim under 33 U.S.C. § 905 end, on or ebout January 4, 1975, wae

(b), should the Restatement (Second)

of Torts, §§ 411, 413, 416, 423 and

427 be applied?

delivered to the Baton Rouge facilities

of Port Allen Marine Service to be clean-

ed and certified gas free preparatory to

3. Should principles of strict liability drydocking for repairs

be applied in cases involving 33

U.S.C. § 905(b)?

On the morning of January 5, 1975,

decedent Donald Bossard was one of three

employees of Port Allen Marine Service

assigned to perform the cleaning opera-

tions on the barge, which included venti-

lating the cargo compartments and washing

down the sides and bottom with hot water.

Bossard was a barge cleaner of some

thirteen years experience.

In accordance with Port Allen

Marine's safety rules and procedures,

forced air breathing masks were issued

for use by Bossard and his co-workers

while inside the cargo compartments.

After preliminary operations on deck, the

three men commenced the cleaning process

inside separate compartments.

Although one of his co-workers claims

to have been overcome by gasoline fumes in

the course of the morning and was taken to

the hospital, neither Bossard's supervisor

nor any of his co-workers advised him of

this fact or checked on him until near

noon. At that time, Bossard was dis-

covered lying face down in the cargo

compartment in which he had been working.

He was taken to a local hospital where

he was pronounced dead by asphyxiation.

Bossard was not wearing an air mask

when found, The mask believed to have

been his was found in operating condition

on deck outside the compartment entrance.

As a result of the foregoing, peti-

tioners brought the instant action in the

federal court in the district of peti-

tioners' domicile. Jurisdiction was

based on the allegation that the claim

arose "...out of and from the unseaworthi-

ness of a vessel and a maritime tort

occurring upon the navigable territorial

waters of the Mississippi River at the

Port of Baton Rouge."' (Para. 5, Original

Complaint, App. F)

ARGUMENT

THE APPLICATION OF MARITIME PRINCIPLES OF

NEGLIGENCE IS CONTRARY TO CONGRESSIONAL

INTENT

In its decisions in the instant case

and in the companion case of Hess v. Upper

Mississippi Towing Corp., 559 F.2d 1030

(5th Cir. 1977)2/, the court below speci-

fically held that "general maritime law,

as such, does not control [the! outcome of

these third party actions [under § 905

(b)]"' and refueed to apply the principles

of vicarious or strict liability to the

vessel owner. (App. A, p. 8) Although

petitioners concede that the object of

Congress in enacting § 905(b) was "to

limit actions against the shipowner and

eliminate strict liability" (Petition,

p. 7), nonetheless they urge this Court

to apply vicarious and strict liability

1/Petition for a writ of certiorari

was filed with this Court on January 18,

1978, under Docket No. 77-1025. The opin-

ion below is reprinted herein as Appendix A.

concepts purportedly enunciated by this

court in Kermarec v. Compagnie Generale

Transatlantique, 358 U.S.625, 630 (1958)2/ ,

suggesting that these are principles of

maritime negligence.3/

The Circuit courts have been uniform

in applying the congressional intent to

look to land-based principles of negli-

gence to the exclusion of maritime con-

cepts of negligence. See Hurst v. Triad

2/It should be noted that Kermarec is

fully distinguishable from the facts at

bar in that the plaintiff there was not

an employee of an independent contractor

and the vessel was, at all material times,

fully within the owner's control.

3/No authority is cited to support

the contention that principles of vica-

rious or strict liability are in any way

incorporated within the Kermarec duty of

the exercise of reasonable care under the

circumstances of each case, It is well

established that "negligence" does not

encompass "Strict liability." Dalehite

v. United States, 346 U.S. 15 (1953).

Shipping Co., 554 F.2d 1237 (3rd Cir.

1977); Gay v. Ocean Transport & Trading,

Ltd., 546 F.2d 1233, 1237 (5th Cir. 1977),

and the cases cited therein at note 7.

The Third Circuit is not in conflict

with this principle in Brown v. Ivarans

Rederi A/S, 545 F.2d 854 (3rd Cir. 1976),

cert. denied, U.S.___, 97 S.Ct. 1652

(1977). The correct quotation, at p. 863,

is as follows:

It would appear that the princi-

ples of the law of negligence,

as adopted in the admiralty field

during the history of our country,

are to form the basis of any re-

covery against shipowners insofar

as such principles are not incon-

sistent with § 22th). (Emphasis

added, footnote omitted)

It is apparent from this language that

Brown does not hold, as suggested by peti-

tioner (Petition, p. 8), that principles

of maritime negligence may be applicable

to shipowners in a § 905(b) action.

Petitioner further suggests that the

safety of longshoremen, ship repairers

and other shore-based employees was ig-

nored by Congress. On the contrary, the

Act provides that the major responsibility

for proper and safe conduct of the work is

to be borne by the employer. 33 U.S.C.

§ 941(a). The entire scheme of compensa-

tion under this Act insures that the

employer will pay a substantial penalty

in terms of increased workmen's compensa-

tion insurance rates if it shirks this

responsibility. Some portion of this

economic penalty, of course, is passed

on to the vessel owner in the contract

price for the work to be performed. See

Eutsler v. United States, 376 F.2d 634,

636 (10th Cir. 1967), citing Tentative

Draft No. 7, Restatement (Second) of Torts,

Special note to Chapter 15, pp. 17-18.4/

4/Although not cited in the final

publication of Restatement (Second), this

note has been cited with approval in

Richardson v. United States, 251 F.Supp.

-D. Tenn. » and Welker v.

Kennecott Copper Co., 403 P.

(C.A. Ariz. rSEsy-

Thus, as one commentator has recent-

ly noted:

The Act, as amended, takes care to

impose primary responsibility for

the safe conduct of the work upon

the stevedore-employer, preserve

the shipowner's responsibility

for actions of the vessel only,

and refrain from - interference

in the economic symbiosis existing

between the shipowner afid steve-

dore. George, The Content of the

Negligence Action by Longshoremen

Against Shipowners fader the 1972

Amendments to the Longshoremen’s

and Harbor Workers’ Compensation

Act, 11, 2 The Maritime Lawyer

I5, 31 (1977).

Petitioners argue that there remains

a non-delegable duty on the vessel owner

to provide the contractor's employee with

a safe place to work. It is now generally

recognized, however, that,

[The stevedoring company] is in

the position best to provide for

the safe unloading of the cargo.

[It] is hired for its expertise

in handling cargo safely and its

personnel make all of the deci-

sions as to how best to conduct

the —_ Ramirez v. Toko

Kaiun K.K., 385 F.Supp. 644,

653 (N.D.Cal. 1974).

Thus, once control of the vessel

has been turned over to the ship repair-

er, the vessel owner's duty to provide

a safe place to work is reduced to those

matters remaining in his control.

Petitioners suggest, without cita-

tion of authority, that respondent some-

how retained some aspect of control of

the vessel on the basis of constructive

knowledge of allegedly improper work

methods of Port Alien Marine Service,

obtained through Joseph LaBauve .2/ There

is no factual or legal basis for this

contention,

5/Defendants Lamar and Joseph LaBauve,

Tom Wolfe and Delta Laboratories were dis-

missed without opposition by petitioners

upon showing that they had no connection

whatsoever with the EXXON BARGE 217 or

with the events of which petitioners com-

plained. (Minute Entry of Trial Court,

April 3, 1975, App. B). Mr. LaBauve was

employed by respondent on a full-time

basis as a laboratory supervisor as well

as engaging in part-time activities on

behalf of Delta Laboratories as a certi-

fied gas chemist.

On deposition, Mr. LaBauve testified

that, in the course of his activities as

a gas chemist for Delta Laboratories, he

had never been called upon to inspect or

test any barge prior to its being cleaned

and that he was not familiar with the

procedures used in cleaning and gas-free-

ing barges at any of the various facili-

ties where he performed these duties.

(Deposition of Joseph LaBauve, pp. 8-9,

App. C)

Mr. LaBauve was not, as petitioners

argue, "wearing two hats" for respondent.

Rather, he had two separate employers and

was "moonlighting" for Delta Laboratories.

Any knowledge he may have acquired while

performing activities on behalf of Delta

Laboratories was outside the scope of his

employment with respondent and cannot be

charged or imputed to it. England v.

American Southern Insurance Company, 380

F.2d 137 (4th Cir. 1967)

RESTATEMENT (SECOND) OF TORTS

§§ 411 AND 413 HAVE NO APPLICATION

TO THE INSTANT CASE

As a matter of land-based law, the

clear weight of authority holds that the

cited Restatement sections have no appli-

cation to employees of independent con-

tractors. In Hess, supra (App. A, pp. 18-

21), the Court below exhaustively discusses

the unanimity of the Circuits in holding

that the employee of an independent con-

tractor cannot recover from the employer

of the contractor on the basis of Restate-

ment (Second) §§ 411 and 413.

Respondent particularly invites the

Court's attention to Parsons v. Amerada

Hess Corp., 422 F.2d 610 (10th Cir. 1970),

by virtue of its factual similarity to

Bossard and Hess. There, the employee of

an independent contractor hired by Amerada

to perform cleaning operations entered a

tank used for storage of crude oil con-

taining deadly hydrogen sulfide gas. He

—_ —

ee —EEE Se —— ——— — ~~

used a gas mask but was asphyxiated by the

fumes. The Parsons court held, in con-

struing the phrase, "to others" as used

in §§ 413, 416 and 427, that,

An employee of an independent con-

tractor is not within the class

of third persons to whom the

employer of the independent con-

tractor owes the non-delegable

duty of due care [under Restate-

ment (Second) §§ 413, 416 and

427] when such employee is engaged

in the performance of inherently

dangerous work. Id. at p. 616.

Parsons notes, but dismisses as the

minority view, those few cases construing

"to others" to include employees of an in-

dependent contractor.6/ Petitioner's re-

liance upon Lindler is misplaced, as the

injury in Lindler occurred in 1970, prior

to the amendments to the Longshoremen's

Act. At that time the contractee had a

6/With the exception of Lindler v.

District of Columbia, 164 U.S.App.D.C.

35, 502 F.2d 495 (1074) , these are state

court cases applying state law.

clear right of indemnity under Ryan

Stevedoring Co., Inc. v. Pan-Atlantic

Steamship Corp., 350 U.S. 124 (1956),

against the negligent contractor, a right

specifically eliminated by the 1972 amend-

ments of § 905(b).

Distinguishing the Parsons facts from

a situation in which the employee of an

independent contractor is injured by

latent or hidden dangers, Chief Judge

Murrah noted that,

Everyone, including the decedent,

knew of the danger inherent in the

performance of the work and rea-

lized the necessity of taking

special precautions to make the

work safe. Id. at p. 616.

In the instant case, there is no dis-

pute that the condition which caused the

death of Mr. Bossard was known to all con-

cerned and was precisely that which Port

Allen Marine Service had been hired to

eliminate. As a matter of general common

law, it has long been held that, where the

employee is injured as the proximate re-

sult of conditions or defects which his

employer, the independent contractor, is

engaged to correct, liability cannot be

predicated on the mere fact alone that

these conditions were unsafe. Whitlow v.

Seaboard Air Line R.R. Co., 222 F.2d 57,

59 (4th Cir. 1955).

IT WAS THE CLEAR INTENT OF CONGRESS

TO ELIMINATE STRICT AND VICARIOUS

LIABILITY ON THE PART OF VESSEL OWNERS

IN A § 905(b) ACTION

Petitioners admit that Restatement

(Second) §§ 416, 423 and 427 impose strict

and/or vicarious liability. Having so

concluded, petitioners cannot then seek

to reinstate, through these sections of

the Restatement (Second), the non-delegable

and absolute duties which Congress set out

to eliminate.

In Teofilovich v. d'Amico Mediter-

ranean/Pacific Line, 415 F.Supp. 732

(C.D.Cal. 1976), the court refused to

apply Restatement (Second) §§ 413 and 416

to hold a shipowner vicariously liable for

the negligence of the stevedore, holding

that,

This would do violence to the

letter and policy of 33 U.S.C.

§ 905(b)....Congress specifi-

cally excluded a rule of vicari-

ous liability, specifically ex-

cluded a rule of liability

without fault and specifically

excluded the concept of a non-

delegable duty, all of which

are the express and explicit

result of Section 416, 415

F.Supp. at 734036.

See also, Frasca v. Prudential-Grace Lines,

Inc., 394 F.Supp. 1092 (D.C.Md. 1975);

Anuszewski v. Dynamic Mariners Corp.

Panama, 391 F.Supp. 1143, 1145 (D.C.Md.

1975), aff'd, 540 F.2d 757 (4th Cir. 1976)

(per curiam), Gay v. Ocean Transport &

Trading, Ltd., supra, at 1239,

In making reference to the legisla-

tive history of the 1972 amendments to the

Longshoremen's Act, the Third Circuit in

Brown v. Irarans Rederi, A/S, supra,

referred to Senate Report No. 92-1125,

92nd Congress, Second Session 2 (1972),

in stating:

These authorities highlight the

principal shortcoming of § 416

as a basis of imposing liability

on the shipowner: It contravenes

the express statutory purpose of

§ 905(b) by imposing vicarious

liability on the shipowner for the

negligent conduct of the stevedore

or the stevedore's employees.

545 F.2d at 861.

Finally, despite the foregoing, pe-

titioner urges the Court to adopt a prin-

ciple of strict liability by virtue of

the alleged ultra-hazardous nature of

the work being performed by decedent. It

is apparent that the work being performed

by decedents in Parsons v. Amerada Hess

Corp., supra, (exposure to hydrogen sul-

fide fumes while cleaning a crude oil

storage tank) and in Eutsler v. United

States, supra, and United States v. Page,

350 F.2d 28 (10th Cir. 1965), (preparation

of solid rocket propellant) is no less

inherently dangerous than that being per-

formed by Mr. Bossard., Far more control

over the premises and the work being per-

formed was exercised by the owner of the

premises in Eutsler and Page than in

Parsons or in the instant case, Nonethe-

less, the Tenth Circuit rejected the argu-

ment that the activity in which the dece-

dent was involved was so dangerous as to

impose liability on the one who hired the

decedent's employer.

THE DISTRICT COURT PROPERLY

CONSIDERED RESPONDENT'S MOTION TO DISMISS

AS A MOTION FOR SUMMARY JUDGMENT

The court below recognized in its Per

Curiam opinion that, in granting respon-

dent's motion to dismiss, the trial court

properly treated it as a motion for sum-

mary judgment. Petitioners now argue that,

if this be true, the trial court then en-

tertained improperly two such motions

dealing with the same issues.

A close examination of respondent's

original motion for summary judgment (App. D)

reflects that the sole issue presented

there was whether a warranty of sea-

worthiness was owed by respondent-vessel

owner to the decedent. The trial court

held that no such warranty was owed and

granted the motion as pleaded. Respon-

dent's subsequent motion to dismiss

addressed only the alleged negligence

action under 33 U.S.C. § 905(b), preserved

to petitioners by the trial court in its

ruling on the first motion. (App. E)

Thus, it cannot be maintained that re-

spotident's basis for dismissal of the

§ 905(b) negligence action received con-

sideration by the trial court more than

once.

Assuming, arguendo, that respondent

was afforded two opportunites to present

its motion for summary judgment on the

negligence action, petitioner cites to

this Court no authority prohibiting suc-

cessive motions for summary judgment as

to all or part of a given cause of action.

In fact, the authorities are to the con-

trary. See Namirowski v. Nabisco, Inc.,

421 F.Supp. 349, (N.D.1I11. 1976); Brown-

field v. Landon, 113 U.S. App.D.C. 248,

307 F.2d 389, 393, cert. denied, 371 U.S.

924 (1962); Allstate Finance Corp. v.

Zimmerman, 296 F.2d 797, 799 (5th Cir.

1961); 6 J. MOORE, FEDERAL PRACTICE

456.14[2] (1974).

CONCLUSION

For the foregoing reasons, it is

respectfully submitted that the decision

below was clearly correct; there is no

significant conflict within the Circuits

as to the non-applicability of the prin-

ciples which petitioners espouse. In

short, the petition fails to disclose any

matter or ground justifying review by

this Honorable Court.

Respectfully submitted,

Original Signed by

By: E. BURT HARRIS

Counsel for Respondent

P. O. Box 60626

New Orleans, La. 70160

OF COUNSEL:

BERNARD J. CAILLOUET

ELLIOTTE M. HAROLD, JR.

P. O. Box 60626

New Orleans, La. 70160

CERTIFICATE

I hereby certify that on this 24th

day of February, 1978, three copies of

the Brief for Respondent in Opposition

were mailed, postage prepaid, to John F.

McKay, 7465 Exchange Place, Baton Rouge,

Louisiana 70806, Counsel for the Petition-

er, and David W. Robinson, P. 0. Box 2995,

Baton Rouge, Louisiana 70821, Counsel for

Intervenor below, pursuant to Rule 33(3)

(b).

Original Signed by

E. BURT HARRIS

~ By, BURT HARRIS

APPENDIX A

PHILLIP HESS, Plaintiff-Appellant,

Vv.

UPPER MISSISSIPPI TOWING CORP.

and Penlatex Barge Lines, Inc.,

Defendants-Appellees,

Fidelity & Casualty Co. of New York,

Intervenor.

No. 75-4353

United States Court of Appeals,

Fifth Circuit

September 23, 1977.

Before GEWIN, RONEY and HILL,

Circuit Judges

RONEY, Circuit Judge:

The plaintiff worked for an indepen-

dent contractor employed by defendants

to "free" a barge of gasoline. An explo-

sion burned him severely, and he sued

the defendants, alleging failure to pro-

vide a safe place to work, negligent em-

ployment of an independent contractor,

strict liability, and negligent mainte-

nance of dangerous premises. At the

close of plaintiff's evidence, the dis-

trict court directed a verdict against

him. On appeal, he alleges the district

court misapplied the Longshoremen's and

Harbor Workers' Compensation Act, 33

U.S.C.A. § 905(b) (Supp. 1977),to fore-

close his case. Because the Longshore-

men's Act's compensation provisions

afford the exclusive remedy for his

injuries, we affirm.

The accident took place in 1973.

Plaintiff's employer, Port Allen Marine,

operated a facility on the Mississippi

River for cleaning barges used to trans-

port petroleum products. Pentalex Barge

Lines, Inc. delivered to Port Allen

Marine a barge owned by Upper Mississippi

Towing Corp. The barge had recently

carried a cargo of high-grade gasoline,

but was empty except for residual gasoline

and vapors which Port Allen was hired to

remove. While the plaintiff was using

water to flush gasoline out of the barge's

piping system, an explosion occurred

which burned him severely. Plaintiff

collected compensation benefits from Port

Allen Marine under the Longshoremen's

Act, and brought this tort action against

the owner and the operator of the barge.

In directing a verdict, the district

court found that, at the time of the acci-

dent, the barge was in the sole control of

Port Allen Marine, a specialist in gas-

freeing barges. The court held the de-

fendants did not supervise the gas-free-

ing process, and were not apprised of any

facts which would lead them to believe

Port Allen Marine was not fully qualified

for the job. On appeal, the plaintiff

alleges the court erred in limiting his

cause of action to one stated by § 905(b)

of the Longshoremen's Act; in not apply-

two important respects. G. Gilmore & C.

ing general maritime law under § 905(b); P P

Black, The Law of Admiralty 542 (2d ed.

and in misapplying land-based law, includ- ? y (2d e

1975). First, the shipowner was lLiabl

ing several sections of the Restatement ) ’ po e

(S d) of Torts (1965) for "transitory" defects which arose

econd) of Tor ‘

§ 905(b) Exclusive Remedy after his opportunity to correct them had

passed, Mitchell v. Trawler Racer, Inc.,

362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941

[1] The history of § 905(b) is

important to the resolution of this case.

' j (1960). Second, the shipowner was re-

The Longshoremen’s Act provides compensa-

sponsible for unsafe conditions caused

tion benefits to injured maritime workers. ”

entirely by the act of a third ty, in-

The Act forecloses negligence suits Mid re party, in

—— : cluding the independent contractor.

against the worker's immediate employer,

Alaska Steamship Co. v. Patterson, 347

U.S. 396, 74 S.Ct. 601, 98 L.Ed.2d 798

but allows litigation against third

parties. In the past, the Supreme Court

1954). In 1972, however, C

adopted a liberal view of the third-party ( ) ’ er, vLongress

amended the Longshoremen's Act. UC

suit and held shipowners liable under a & eme c ongress

; substantially raised the compensation

warranty of seaworthiness to injured

benefits payable, eliminated th 1 :

employees of independent contractors pay MLEStS e empioyee s

unseaworthiness acti d i

working on board the ship. Seas Shipping — ess action and restricted his

f s

Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. recovery from the shipowner to negligence

872, 90 L.Ed. 1099 (1946). The seawor- In the event of a negligence recovery

against th 1, th ,

thiness remedy went beyond negligence in — e vessel, the worker's employer

would not be liable to the shipowner for

such damages. On the other hand, if the

injury was caused by the negligence of

the worker's employer engaged in repair

service, no action is permitted against

the vessel. The remedy provided by the

statute against the vessel "shall be

exclusive.'' The language of § 905(b) now

provides:

(quotation omitted)

The language of the statute defeats

the plaintiff's claim that § 905(b) is

not his exclusive avenue of remedy. Fur-

thermore, the elimination of the warranty

of seaworthiness evinces congressional

intent to curtail shipowner liability for

conditions arising when the vessel is not

within. the owner's control and for inju-

ries caused solely by independent con-

tractors. Remaining is the maritime

worker's right to sue for negligence only.

General Maritime Law Under § 905(b)

[2] The legislative history, as

recently discussed by this Court in Gay v.

Ocean Transport & Trading, Ltd., 546 F.2d

1233 (5th Cir. 1977), discloses an intent

that the negligence acticn be a matter of

uniform federal law, and, with certain

exceptions, be designed to give the mari-

time worker the same rights against third

parties as his land-based counterparts

would have. One articulation of those

rights, Gay noted, is the Restatement

(Second) of Torts (1965). Accordingly,

the plaintiff's second allegation of error

must also be rejected. General maritime

law no longer governs third party actions

by maritime workers except to the extent

that the maritime concepts have an analo-

gy in land-based law. For instance, the

Committee expressly intended that the

admiralty concept of comparative negli-

gence, rather than the common law rule as

to contributory negligence would apply,

and that the admiralty rule precluding

"assumption of risks’ as a defense would

be applicable. But these concepts are

not exclusively maritime, and do not alter

the fact that general maritime law, as

such, does not control outcome of these

third party actions.

Negligence Under Land-Based

Law Concepts

To evaluate the plaintiff's third

claim, that the court misapplied land-

based law to the facts of this case, it

is necessary to examine each of the

plaintiff's theories of liability.

I. Duty to Provide a Safe Place to

Work

The plaintiff invokes the doctrine

that a shipowner has a duty to provide

invitees with a safe place to work. To

the extent that doctrine encompasses

liability without fault, a maritime con-

cept, it no longer applies under § 905(b).

Gay, 546 F.2d at 1239; Bess v. Agromar

Line, 518 F.2d 738 (4th Cir. 1975). The

doctrine does, however, have a land-based

counterpart based on negligence. See

Prosser on Torts § 80 (4th ed. 1971);

Annot., 31 A.L.R.2d 1375.

[3] Im this case, however, the doc-

trine does not provide a basis for recov-

ery by the plaintiff. Under traditional

interpretation the duty to provide a safe

place to work does not extend to protect

employees of an independent contractor

from dangers the contractor was hired

to correct. Whitlow v. Seaboard Air Line

R. R., 222 F.2d 57 (5th Cir. 1955). The

plaintiff's reliance on Halecki v. United

New York & N. J. Sandy Hook Pilots Ass'n,

302 F.2d 840 (2d Cir.), cert. denied, 371

U. S. 825, 83 S.Ct. 46, 9 L.Ed.2d 64

(1962), is misplaced, In that case the

shipowner directed the contractor's

method of repair. Halecki v. United New

York & N. J. Sandy Hook Pilots Ass'n, 282

F.2d 137, 142 (2d Cir. 1960), cert.

denied, 364 U.S. 941, 81 S.Ct. 461, 5

L.Ed.2d 372 (1961). In contrast, the

defendants here made no attempt to con-

trol the details of the work done by Port

Allen Marine,

II. Duty on Employers of Independent

Contractors

[4] Plaintiff alleges the district

court misapplied several sections of the

Restatement which impose liability on

those who employ negligent independent

contractors, Seé Restatement (Second) of

Torts §§ 411, 413, 416, 423, 427 (1965).

Freely admitting that Congress foreclosed

any maritime liability of a shipowner to

the employee of an independent contractor

for negligence of that contractor, the

plaintiff invokes land-based law which

holds an employer responsible for negli-

gence of his independent contractors when

the work involves danger. He cites § 411,

which imposes a duty to select a contrac-

tor carefully, and § 413, which says an

employer should take steps to ensure that

an independent contractor will take spe-

cial precautions when performing work

creating a peculiar, unreasonable risk of

harm. Plaintiff also cites several sec-

tions which impose vicarious liability on

the employer. Included are § 416, which

imposes liability if the contractor

ignores the employer's instructions and

fails to take precautions; § 423, which

makes the employer equally liable with

the contractor when the work involves

maintaining an instrumentality used in

highly dangerous activities; and § 427,

which imposes joint liability if the con-

tractor fails to take precautions with

respect to work involving inherent danger.

These sections of the Restatement, however,

cannot support the plaintiff's action be-

cause he is an employee of the independent

contractor, and the sections only impose

liability with respect to third parties.

The language of the cited sections

is silent on this issue. While § 411

envisions liability to "third persons,"

§§ 413, 416 and 427 speak in terms of

responsibility to "others," a term which

arguably could indlude the employees of

the independent contractor. Cf, Halecki

v. United New York & N. J. Sandy Hook

Pilots Ass'n, 282 F.2d 137, 139 (2d Cir.

1960), cert. denied, 364 U.S. 941, 81

S.Ct. 461, 5 L.Ed.2d 372 (1961) (employee

of independent contractor covered under

original Restatement of Torts § 344).

But cf. Restatement (Second) of Torts

§ 344, comment c (duty is "for the pro-

tection of the public who enter").

In a series of opinions, the Tenth

Circuit has interpreted this ambiguity to

exclude employees of independent con-

tractors from protection. Parsons v.

Amerada Hess Corp., 422 F.2d 610 (10th

Cir. 1970); Eutsler v. United States, 376

F.2d 634 (10th Cir. 1967); see United

States v. Page, 350 F.2d 28 (10th Cir.

1965), cert. denied, 382 U.S. 979, 86

S.Ct. 552, 15 L.Ed.2d 470 (1966). The

purpose for imposing a duty of care on

the employer of an independent contractor

is to ensure that his enterprise will

bear the costs it creates, and will not

escape liability for mishandling of

inherently dangerous work by delegating it

to an independent contractor. Eutsler

ceasoned that the employer's liability

should not encompass injuries to the

employees of the independent contractor

because, under workmen's compensation

laws, the contractor is already strictly

liable for their cost. As argued in

Tentative Draft No. 7, Restatement

(Second) of Torts 17-18 (1962):

"It is to be expected that the

cost of the workmen's compen-

sation insurance will be in-

cluded by the contractor in

his contract price for the

work, and so will in any case

ultimately be borne by the

defendant who hires him."

See Eutsler, supra, 376 F.2d at 636.

The plaintiff counters this argument

by citing Lindler v. District of Columbia,

164 U.S.App.D.C. 35, 502 F.2d 495 (1974),

a case in which the D.C. Circuit allowed

an independent contractor's employee to

recover from the contractor's employer

under a common law theory similar to

Restatement (Second) of Torts § 413. See

also Fitzgerald v. Compania Naviera La

Molinera,394 F.Supp. 413, 417 (E.D. La.

1975) (dictum). The D.C. Circuit reject-

ed the reasoning of the note in the

Tentative Draft. The court observed the

note was not included in the final version

of Restatement (Second), and said the

courts should not assume costs would be

passed to the employer when the employer

had no legal duty to pay them. 502 F.2d

at 499. Because the Longshoremen's Act

is the workmen's compensation statute for

the District of Columbia, the court also

gave weight to several cases stating a

policy favoring liberal construction of

the Act to favor third party suits by

injured employees. See, e.g., Potomac

Electric Power Co. v. Wynn, 120 U.S.App.

D.C. 13, 343 F.2d 295 (1965).

Lindler, however, represents a

minority view of land-based law which has

been undermined by the 1972 amendments to

the Longshoremen's Act. The Lindler

accident took place in 1970, The subse-

quent amendments to the Act expressly

rejected the line of cases favoring third

party suits upon which Lindler relied.

Congress eliminated the shipowner's no-

fault liability for unseaworthiness, and

stated that land-based legal principles

were to control the liability of third

parties. To the extent the present

Longshoremen's Act creates any special

rules which affect the liability of

those who hire independent contractors,

it argues against employee suits. The

Long-shoremen's Act employer, unlike his

land-based counterpart, cannot seek a

contractual indemnity from the indepen-

dent contractor whose negligence caused

the injury. See 33 U.S.C.A. § 905(b)

(Supp. 1977). Furthermore, Congress in-

tended for the rights of an employee to

be the same whether he was hired by an

independent contractor or was employed

directly by the shipowner. Smith v. M/V

Captain Fred, 546 F.2d 119, 123 (5th Cir.

1977); cf. Restatement (Second) of Torts

§ 423 (1965) (employer's liability to be

same as contractor's liability). It makes

little sense to allow a suit for negligent

supervision of an independent contractor

when liability for negligent supervision

of the employer's own employees would be

foreclosed by the compensation statute,

The statute itself indicates that an

employee hired by the ship directly can-

not sue the ship for injury "caused by

the negligence of persons engaged in

providing...repair services to the

vessel." 33 U.S.C.A. § 905(b) (Supp.1977).

The Committe reports indicate the word

"persons" not only included fellow ser-

vants, but was also intended to include

the shipowner in his capacity as an em-

ployer of the workers doing the repair

work. G. Gilmore & C. Black, The Law of

Admiralty 450 (2d ed. 1975); see H.R. 92-

1441, 92d Cong., 2d Sess. (1972), re-

printed in [1972] U.S. Code Cong. &

Admin. News, pp. 4698, 4705.

Lindler also represents a minority

view among the federal circuits. Con-

gress intended a uniform federal inter-

pretation of § 905(b). For this Circuit

to follow Lindler would militate against

uniformity. As noted above, the Tenth

Circuit has twice held the employee of

an independent contractor cannot recover

from the employer of the contractor.

Eutsler, supra, 376 F.2d at 634, Parsons,

supra, 422 F.2d at 610. In Eutsler, the

court said that although the relevant

language of the Tentative Draft was not

included in the final Restatement (Second),

the language had nevertheless become an

accepted part of the judicial gloss on

the text. 376 F.2d at 636. Both cases

involved situations where the court was

not bound by applicable state law and so

was free to determine the most desirable

rule. Confronted with a similar oppor-

tunity, the Second Circuit reached the

same conclusion. Lipka v. United States,

369 F.2d 288 (2d Cir. 1966), cert. denied,

387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d

997 (1967) The Eighth Circuit has split.

In its most recent case, the Circuit

affirmed a district court decision con-

cluding that, as a matter of general law,

the employee should not recover. Olson

v. Red Wing Shoe Co., 456 F.2d 1299 (8th

Cir. 1972), aff'g Olson v. Kilstofte &

Vosejpka, Inc., 327 F.Supp. 583 (D.Minn.

1971). Im an earlier case, however, the

Eighth Circuit assumed without discussion

that the opposite rule would apply.

Associated Engineers v. Job, 370 F.2d 633,

647 (8th Cir. 1966), cert. denied sub

nom., Troy Cannon Const. Co. v. Job, 389

U.S. 823, 88 S.Ct. 59, 19 L.Ed.2d 77

(1967), followed in Hagberg v. City of

Sioux Falls, 281 F.Supp. 460 (D.S.D. 1968).

The Fifth Circuit, interpreting language

in 27 Am.Jur. Independent Contractors

§ 39 which parallels that of the Restate-

ment, has held the employee cannot re-

cover. Corban v. Skelly Oil Co., 256 F.2d

775 (5th Cir. 1958). Applying the Re-

statement under the influence of a bind-

ing state decision, two other Circuit

decisions have also denied recovery.

Sword v. Gulf Oil Co., 251 F.2d 829 (5th

Cir.), cert. denied, 358 U.S. 824, 79

S.Ct. 41, 3 L.Ed.2d 65 (1958) (Texas);

Craig v. Olin Mathieson Chemical Corp.,

427 F.2d 962 (7th Cir.), cert. denied,

400 U.S. 964, 91 S.Ct. 365, 27 L.Ed.2d

383 (1970) (Illinois). Two decisions

applying the law of other states have

reached the opposite conclusion. United

States v. DeCamp, 478 F.2d 1188 (9th Cir.),

cert. denjed, 414 U.S. 924, 94 S.Ct. 232,

38 L.Ed.2d 158 (1973) (California);

Grogan v. United States, 341 F.2d 39

(6th Cir. 1965) (Kentucky) (dictum).

III. Strict Liability

[5] The plaintiff also asserts that

because gas-freeing a vess~l is "ultrahaz-

" the barge owner should be strict-

ardous,

ly liable for his damages under Restate-

ment (Second) of Torts § 519 (1977).

Again, however, plaintiff's status as an

employee of the independent contractor

defeats his claim. He cannot sue Port

Allen Marine for strict liability because

it has paid compensation benefits, 33

U.S.C.A. § 905(a) (Supp. 1977). He can-

not sue the defendants because the Long-

shoremen's Act only allows him to sue

them for their "negligence,"

a phrase

which on its face does not encompass

strict liability. See Dalehite v. United

States, 346 U.S. 15, 44-45, 73 S.Ct. 956,

97 L.Ed. 1427 (1953) (Federal Tort Claims

Act). The congressional committee reports

accompanying the 1972 amenaments emphasize

an intent to eliminate unseaworthiness,

a strict liability concept, and to limit

the liability of the shipowner to inju-

ries for which the shipowner was at

fault. It would be inappropriate to

judicially read strict liability into

the text of the statute in view of ob-

vious congressional intent. See Brown

v. Ivarans Rederi A/S, 545 F.2d 854, 861

(3d Cir. 1976), cert. denied,---U.S.---,

97 S.Ct. 1652, 52 L.Ed.2d 361 (1977)

(vicarious liability inappropriate under

§ 905(b)). Contra Streach v. Associated

Container Transport, Ltd., 388 F.Supp.

935, 940 (C.D.Cal.1975); 29 A.L.R.Fed.

771 (1976).

IV. Duty to Maintain Premises Safe

for Invitees

[6] The plaintiff alleges that even

though the gasoline was an "open and

obvious" danger, the defendants are lia-

ble as landlords who failed to take due

care with respect to a dangerous condition

aboard their barge. Restatement (Second)

of Torts §§ 343, 343A (1965). Gay, in

dictum, recognizes such a cause of action

if invitees aboard the vessel, though

aware of the danger, either could not

appreciate it or could not avoid it.

Brown v. Mitsubishi Shintaku Ginko, 550

F.2d 331 (5th Cir. 1977), dealt with these

Restatement sections in a case where the

plaintiff employee of an independent

contractor was cleaning the cargo hold

of defendant's vessel. A dangerous con-~

dition developed and plaintiff was in-

jured by a falling rack. The Court held

that even if the ship's crew were aware of

the danger, there could be no duty owed

by the ship where the hazardous condition

was created by the stevedore's employees,

and the ship's personnel were less capable

of abating the danger than the independent

contractor's employees.

Here the danger inherent in removing

gasoline and fumes from a barge was well

known to all concerned. At oral argument

the Court was informed that the reason

for placing Port Allen Marine on a remote

stretch of the Mississippi River was to

limit the possible damage an explosion

would cause. The facts of this case pre-

sent no basis for imposing a duty of care

on the defendants. Port Allen Marine

was found by the trial court to be a

specialist possessing expertise in "gas-

freeing" barges. As in Brown, the plain-

tiff here was "the person best able to

appreciate the potential consequences of

the danger." 550 F.2d at 334. The pre-

cise reason for plaintiff's employment

was to make an unsafe condition safe,

V. Limitation of Testimony

[7,8] Plaintiff's final contention

is that the trial court erred in refusing

to allow expert testimony concerning the

design of the barge. While the plaintiff

correctly asserts that exclusion of the

doctrine of unseaworthiness does not pre-

vent recovery for actual negligence in

vessel design, the plaintiff misapprehends

the ruling of the trial court. The court

questioned the expert, who stated the

barge had a customary design and was

reasonably fit for its intended purpose.

The trial court concluded that the expert

had established the vessel was not negli-

gently designed, and that any critical

testimony he might give would go to un-

seaworthiness. The court then correctly

held such testimony inadmissible.

AFFIRMED.

CAPTION DELETED APPENDIX B

MINUTE ENTRY:

APRIL 3, 1975

WEST, J.

This matter is before the Court on

motion of the defendants, Lamar E. LaBauve,

Thomas A. Wolfe, Joseph E. LaBauve, and

Delta Laboratory for summary judgment.

Exxon Corporation, another defendant, has

moved for summary judgment but the Court

has granted a continuance on the hearing

of that motion until April 18, 1975.

Donald Bossard, plaintiff's decedent,

was apparently discovered unconscious in

a cargo tank of an Exxon Barge around

12:00 noon on January 5, 1975. He was

removed therefrom and taken to a hospital

and at 1:30 p.m. that day he died. After

that time, at approximately 2:00 p.m.,

Delta Laboratory and Testing, Inc., was

requested to test the barge for gas leaks

and combustibility. Their testing began

about 3:00 p.m, that day. Prior to the

time of their testing at 3:00 p.m. on

January 5, 1975, neither Delta Laboratory,

nor their employees, Lamar LaBauve, Tom

Wolfe, and Joseph LaBauve, had any con-

nection whatsoever with the vessel upon

which the decedent died. These facts are

not disputed by the plaintiff.’ It is

obvious, therefore, that based upon these

facts, which are supported by affidavits

filed in the record, that none of these

defendants had anything to do with the

incident complained of by the plaintiff

in this case, and that therefore, as a

matter of law, they should be dismissed

as defendants herein. Therefore:

IT IS ORDERED that the motions for

summary judgment filed by Lamar E. LaBauve,

Joseph E. LaBauve, Thomas A. Wolfe, and

Delta Laboratory and Gas Testing, Inc.,

be, and they are hereby GRANTED, and this

case is DISMISSED as to these defendants,

reserving to the plaintiff, however, all

rights which she has or may have against

the defendant, Exxon Corporation.

RDUON_ WEST

John F. McKay, Esq.

E. Burt Harris, Esq.

Bernard J. Caillouet, Esq.

John F. Reid, Esq.

Andrew J. Bennett, Jr., Esq.

CAPTION DELeitD APPENDIX C

The deposition of Joseph LaBauve, a defen-

dant in the Federal Court Action, taken

at the instance of plaintiff in the

Federal Court Action in the offices of

Janet L. Parker & Associates, 982 Govern-

ment Street, Baton Rouge, Louisiana, on

the 10th day of March, 1975, commencing

at 10:08 A.M.

Page 8

way you all are called out is by an

individual phone call basis?

That's true,

You do work evidently for Port Allen

Marine. Do you do any work for

Gilmar Marine?

True.

Are there any other companies in

this area that you do business for?

What do you mean by this area?

Say in the Baton Rouge proper.

Yaun's.

‘ Yaun's?

Q A. No.

We have done work for Yaun's before.

Q. Did you go aboard this particular

Yaun's Manufacturing.

Exxon barge on January 5?

Q. Do any of the procedures that you

A. Yes.

follow at any of thee other plants

Q. You went aboard with your son?

where you test barges, does it

A. Yes.

differ from the procedure used at

Q. You hadn't been there any time

Port Allen Marine?

earlier in the day?

A. No.

Q. You have never tested for toxicity

. Q. To your knowledge had anyone been

and combustibility prior to a

there from Delta Lab?

cleaning plant sending its

A. No one that I know of. Not to my

employees down to clean?

knowledge.

A. I don't think I have ever been

Q. You only have three people that do

called on a barge prior to cleaning.

the testing?

Q. Are you familiar with the type of

Aw True,

procedure used in cleaning the

Q. Do you know of your own personal

barges?

knowledge whether a toxicity test

Page 9 . ‘

~=5S = was done by anyone?

A. No, Im not.

F i A. I do not,

Q. You are not?

Q. You know it wasn't done by you?

Correct.

Could you explain to me this--I

notice in your affidavit you stated

that when you made a gas test Exxon

did not allow you to make tests on

its own barges?

CAPTION DELETED APPENDIX D

MOTION FOR SUMMARY JUDGMENT ON BEHALF

OF EXXON CORPORATION

NOW INTO COURT, through undersigned

counsel, comes Exxon Corporation and

moves for Summary Judgment pursuant to

the Rule 56 of the Federal Rules of Civil

Procedure, dismissing it from this action,

Plaintiffs allege in paragraph 5 of

their complaint that their claim arises

out of and from the unseaworthiness of

a vessel and is a Maritime Tort.

The deposition of Mr. Thomas Wolfe,

Plant Manager of Port Allen Marine Ser-

vices, Inc., as well as the affidavit of

Mr. C. G. Bough, Repair Inspector of the

Baton Rouge Branch of the Marine Depart-

ment of Exxon Corporation, show that the

deceased was performing work not tradi-

tionally performed by seamen, on a barge

out of navigation and under the control

of Port Allen Marine Services, Inc. and

was owed no warranty of seaworthiness.

Furthermore, Donald Bossard met his de-

mise due to a condition which he had gone

on the barge to correct, and no warranty

of seaworthiness is owed in such an

instance.

WHEREFORE, defendant Exxon Corpora-

tion prays that Summary Judgment be ren-

dered herein in its favor and against

plaintiffs dismissing their suit with

prejudice and at plaintiffs' cost.

BERNARD J. CAILLOUET

E. BURT HARRIS

JOHN F. REID

BY: _/s/ E. BURT HARRIS

Attorneys for Exxon Corpora-

tion

Post Office Box 60626

Room 602-G, 210 O'Keefe

Street

Telephone: 504-527-4274

CAPTION DELETED APPENDIX E

MINUTE ENTRY:

APRIL 17, 1975

WEST, J.

This matter is before the Court on

the motion of the defendant, Exxon Corp-

oration, for summary judgment. No oral

argument is required. This is a suit

brought by the survivors of an employee

of Port Allen Marine Services, Inc., who

died as a restlt of work being performed

by him on a barge owned by Exxon Corpora-

tion. The complaint seeks recovery based

on both an alleged unseaworthy condition

of the barge and also on alleged negli-

gence of Exxon Corporation. The plain-

tiffs, taking cognizance of the 1972

amendment to the Longshoremen and Harbor

Workers’ Act, 33 U.S.C. § 905(b), concede

that the plaintiffs have no case against

Exxon Corporation based — unseaworthi-

ness. With this, the Court agrees.

However, the plaintiffs' claim is also

a | 7

based on allegations of negligence on the Corporation be, and it is hereby DENIED,

part of Exxon. Such a claim is preserved é |

by the 1972 amendment to the Longshoremen ; he E. GORDON WEST

and Harbor Workers’ Compensation Act. In .

connection with that claim, there are an Ss ee ee

material issues of fact involved, and He 3, Gutta Esq.

thus that claim would not be subject to Andrew J. Bennett, Jr., Esq.

consideration pursuant to a motion for

summary judgment.

Therefore: | °

IT IS ORDERED that the motion of ,

Exxon Corporation for summary judgment in

its favor in connection with the plaintiffs'

claim based upon alleged unseaworthiness

of the barge involved be, and it is here-

by GRANTED, and

IT IS FURTHER ORDERED that the motion

of Exxon Corporation for summary judgment

on the remaining claims made by the plain-

tiffs, particularly those based upon '

alleged acts of negligence of Exxon

CAPTION DELETED APPENDIX F

ACTION UNDER THE SPECIAL RULE FOR

LONGSHOREMEN AND HARBOR WORKERS AND/OR

SEAMEN TO SUE WITHOUT SECURITY OR

PREPAYMENT OF FEES FOR ENFORCEMENT

OF THE LAWS OF THE UNITED STATES,

COMMON AND STATUTORY, FOR THE PROTECTION

OF THE HEALTH AND SAFETY OF SEAMEN AT SEA:

Jurisdiction is based on the fact

that this is a claim arising out of and

from the unseaworthiness of a vessel, and

a maritime tort occurring upon the navi-

gable territorial waters of the Mississip-

pi River at the Port of Baton Rouge.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.