# Opposition — Bossard v. Exxon Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 934

## Text

In The | FEB 24 1978

‘

SUPREME COURT OF THE UNITEDL SHOMEESROpAx JR., CLERK

; Supreme Court, U.S, “ae
' FILED

{
|

October Term, 1977

er
—"

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

1
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

ii
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.

17

21

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

iv

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

3

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

4

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

5

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)

6

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

9

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-

10

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).

11

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.

12

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)

13

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 —— ——— — ~~

14

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.

15

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

16

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

17

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,

18

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

19

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.

20

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

21

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).

22
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

23

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

3

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-

5
4

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

6

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.

7

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-

8

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

9

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

10

(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

11

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,

12

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).

13

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

14

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

15

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

16

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

17
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

18

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),

19

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

20

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,

21

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

22

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).

23

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

24

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

25
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.

Bz

4

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

2

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,

3

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.
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.

2

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
Be

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

4

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:

De
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0394%3A2. Public record. Not legal advice.