Petition — Leonard v. Exxon Corp.
Supreme Court brief1979
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Supreme Court, U.
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IN THE MAR 2 1979
1}
SUPREME COURT OF THE UNITED SYATBBAX, jn. cLeRK
OCTOBER TERM, 1979
NUMBER 78 at | 350
WESLEY J. LEONARD,
Petitioner-Appellant
VERSUS
EX”.ON CORPORATION and/or NICHOLS
CONSTRUCTION CORPORATION, and
FIREMAN'S FUND INSURANCE COMPANY,
Defendants~-Appellees
THE PETITION OF WESLEY J. LEONARD
POR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
Donald G, Cave
CAVE & MCKAY
7465 Exchange Place
Baton Rouge, Louisiana 70806
Telephone: 504/924-3641
Attorney for Petitioner-
Appellant
INDEX
Page
OPINIONS BELOW 1
JURISDICTION 1
QUESTIONS PRESENTED 2
STATUTORY PROVISIONS INVOLVED 4
STATEMENT OF THE CASE 6
ARGUMENT AND REASONS FOR
ALLOWANCE OF THE WRIT 16
SUMMARY 69
CONCLUSION 74
CERTIFICATE 75
APPENDIX
Appendix A - Court Opinion
of Fifth Circuit 76
Appendix B - Denial of Appli®
cation for
Rehearing 90
Appendix C - Judgment of
District Court
on Motion for
Summary Judgment 91
Appendix D - Findings of
Pact and Con-
clusions of
- Law of the
District Court 95
i
Appendix E - Judgment of the
District Court
ii
Page CITATIONS
| Cases:
Atkins v. Greenville
Shipbuilding Corporation,
411 F.2d 279 (5th Cir.,
. | RR Sr col ae 06 bc Rae Sd che oe
;
}
Banks v. Hanover S.S.
corporaun 43 F.R.D.
37 ) ay 7 SERVE bes éeeceus
Barrios v. Louisiana
Construction Materials
Company. 465 F.2d 1157
< io} L972) wcccee eeeere .
Bennett v. Perini Corpora-
tion, 510 F.2d 114
at GB lee
Blanchard v. Engine and
Gas compre Services,
Inc. , F. a 1140
(5th Gis., 1978). eeeree eoeeeveve
Bodden v. Coordinated
Caribbean Transport, Inc.,
369 F.2q 273 (5th Cir.,
BOGE) 6.6 a:b 6 660 On 00 CRO 0's 0 0 08 0
Cook v. Belden Concrete 18,
Products, Inc., 472 F.2d 28,
999 (5th Cir., 1973) ....+.82,
88,
Cope v. Vallette Dry Dock
Company, 198987, 119 S.Ct.
625, 7 S.Ct. 336, 30 L.Ed.
| ree a ee eee a 2 2 oe
iii
Page
18, 20, 21
50
22, 78
32, 34, 35
80
20
23, 25, 26,
33, 37, 80,
83, 85, 86,
93
17, 20,
21, 24
Page
Davis v. Hill Engineer*nd.
Inc., 549 P.2d 324 (5t
Civ. , UM) cccccccecscceces SE
Giafala v. Texas Com P
1955, 350 U.S. 879
76 S.Ct. 141, 100 L.Ed.
TIS. «vcccectsaeeseuenteeees a
Hicks v. Ocean Drilling
and Exploration
Compan Si2 F.2d 817
TEER Che. . 1975) scccccccess 270 28, 36
Jeter v. Star Fish &
Oyster etc
P.2 t CEP sc
1973) ceccesecsecesseeesesege 63, 64
Marine Drilling Company v.
Autin, 363 F.2d a5
(5th | LOSS? ccacvccooce 22
McAlister v. United States,
. S.ct. 6, 348
U.S. 19, 99 L.Ed. 2Occeccocs 61
Norton v. Warner Company,
1944, 321 U.S. 565,
64 S.Ct. 747, 88 L.Ed.
|) err pe eS
offshore Company v. Robison, 17, 18,
266 F.2d 769 tSth Cif. 20, 22,
1959) -cccccccccesecescecces 28, 36, 77
Porche v. Gulf Mississippi
Marine Corporation,
o upp. -D.La.,
1975) .cccccccccccvceeeesece 30
iv
at pe
muy
2 NE RECT ETN,
Producers Drilling Company
5th Gael. s 0
The Robert W. Parsons,
1903, 191 U.S. ’
30 S.Ct. 8, 48 L.Ed. 73....
Romero v. Bethlehem Steel
Corporation, 515 F.2d
1249 (5th Cir., 1975)......
Senko v. LaCrosse
SEL Corporation,
957, U.S. 370,
77 S.Ct. 415, 1 L.Ed, 2d
a ee eevee: oe 23.06 -9 ©
Snyder v. A Floating Dry
Dock, D.N.J., 1884
22 F. ERS CF AC ae
South Chicago Coal & Dock
Company v. Basset, 1940,
Sus U.B. 20k, 60 8.Ct.
ee a, Gees Paso ec ech ee
Stanley v. Guy Scroggins
Construction Company,
297 F.2d 3°4 (5th
Deed SUR POC rings ebeccesces
Wilkes v. Mississippi River
Sand & Gravel Company,
202 F.2d 383 (6th Cir,,
SE Ae er
Statutes:
United States Constitution,
Amendment VII.....cccccces
Vv
18,
28,
28
46,
51,
54,
20,
17
19
Page
22,
36
47, 48,
52, 53,
55, 56
21
21, 22
19
53
Rule 35,
Rule 41, Federal Rules of
Appellate Procedure...,..
Rule 9(h), Federal Rules
of Civil Procedure.......
Rule 38(e), Federal Rules
of Civil Procedure.......
Rule 51, Federal Rules of
Civil Procedure...cccervesr
Rule 52, Federal Rules of
Civil Procedure....cceces
Rule 56, Federal Rules of
Civil Procedure.....ceoee
Rule 56(c), Federal Rules
of Civil Procedure.......
28 U.S.C.
28 U.S.C.
33 U.S.C.
33 G.iesGe
46 U.S.C.
§ 1254(1)..eeeeee
§ L333. cceeeeeeee
§ DOL. wc eeeeevees
§ 9O5(b) eee eeeeee
© GBS cacaccssaces
vi
Federal Rules of
Appellate Procedure.,....
\
Page
90
90
3,:5,. £5). 41,
47, 48, 49,
50, 52, 53,
54, 55, 56, 72
49
2
53
43
13, 43
2, 4, 16, 17,
18, 25, 29,
37, 38, 40,
43, 68, 69,
70, 75, 76,
80, 94, 95,
97
Rr ereeneernesremnmenners
Pt Peta, S
®
R
£
«
.
Louisiana Statutes
Annotated - Revised
Statute Betas edb eetencesuses
Treatises:
Wright & Miller, Federal
Practice and Procedure,
§ 1313, West,
1969. cece
vii
43
50,
54
Page
OPINIONS BELOW
The opinion of the United States
Fifth Circuit Court of Appeals, rendered
October 6, 1978, and appearing at 581 F.2d
522 (5th Cir., 1978), is reprinted as Ap-
pendix A herein. The denial of the peti-
tion for rehearing, rendered December 4,
1978, is reprinted as Appendix B. The
judgment of the United States District
Court, Middle District of Louisiana, grant-
ing defendants-appellee's motion for sum-
mary judgment on March 31, 1976, is
reprinted as Appendix C herein. The find-
ings of fact and conclusions of law of the
District Court, rendered June 15, 1976, are
reprinted as Appendix D herein, and the
Judgment of the District Court, also ren-
dered June 15, 1976, is reprinted as
Appendix E.
JURISDICTION
The opinion and judgment of the
United States Fifth Circuit Court of
Appeals for which this Writ of Certiorari
is sought were rendered on October 6, 1978.
The order denying a rehearing by that
court was rendered on December 4, 1978.
The jurisdiction of this court over
this petition for certiorari is conferred
by 28 U.S.C. 1254(1) which permits review
by the United States Supreme Court to any
party by writ of certiorari.
QUESTIONS PRESENTED
1. Should threshold questions of status
invoiving "vessels" and “seamen" under
46 U.S.C. 688, the Jones Act, be deci-
ded as a matter of law through summary
proceedings, thereby circumventing the
right to trial by jury granted seamen,
when there exists genuine issues as to
material facts regarding such status
and conflicting inferences from those
facts could lead to different conclu-
sions among reasonable men?
aQu
If non-diverse defendants are dismiss-
ed from an action by summary proceed-
ings and no remaining theories of
liability are or can be asserted
against such non-diverse defendants
upon the facts presented, should peti-
tioner be entitled to a trial by jury,
pursuant to the rules governing civil
actions, when complete diversity
exists with respect to the remaining
defendant, the pleadings have been ex-
panded to include diversity as an al-
ternate basis of jurisdiction, and no
Rule 9(h), Federal Rules of Civil Pro-
cedure, identifying statement assert-
ing the cause in admiralty has been
filed?
Should the finding of the District
Court that there existed no negligence
by any defendant in the case at bar be
set aside when review of the case
demonstrates the record is replete with
=3-
many instances of negligence and that
the findings by the District Court are
clearly erroneous, pursuant to Rule 51, °
Federal Rules of Civil Procedure?
STATUTORY PROVISIONS INVOLVED
Jones Act, 46 U.S.C. § 688
Any seaman who shall suffer personal
injury in the course of his employment
may, at his election, maintain an ac-
tion for damages at law, with the
right of trial by jury, and in such
action all statutes of the United
States modifying or extending the com-
mon-law right or remedy in cases of
personal injury to railway employees
shall apply; and in case of the death
of any seaman as a result of any such
personal injury the personal represen-
tative of such seaman may maintain an
action for damages at law with the
right of trial by jury, and in such
action all statutes of the United
States conferring or regulating the
right of action for death in the case
of railway employees shall be appli-
cable. Jurisdiction in such actions
shall be under the court of the dis-
trict in which the defendant employer
resides or in which his principal
office is located.
Federal Rules of Civil Procedure, :
Rule 56(c)
(c) Motion and Proceedings Thereon. ‘
The motion shall be served at least
10 days before the time fixed for the
=4-
hearing. The adverse party prior to
the day of hearing may serve opposing
affidavits. The judgment sought chall
be rendered forthwith if the pleadings,
depositions, answers to interrogatories,
and admissions on file, together with
the affidavits, if any, show that there
is no genuine issue as to any material
fact and that the moving party is entit-
led to a judgment as a matter of law.
A summary judgment, interlocutory in
character, may be rendered on the issue
of liability alone although there is a
genuine issue as to the amount of
damages,
Federal Rules of Civil Procedure,
Rule 9(h)
(h) Admiralty and maritime claims.
A pleading or count setting forth a
claim for relief within the admiralty
and maritime jurisdiction that is also
within the jurisdiction of the district
court on some other ground may contain
a statement identifying the claim as an
admiralty or maritime claim for the
purposes of Rules 14(c), 38(e), 82, and
the Supplemental Rules for Certain Ad-
miralty and Maritime Claims. If the
claim is cognizable only in admiralty,
it is an admiralty or maritime claim
for those purposes whether so identi-
fied or not. The amendment of a plead-
ing to add or withdraw an identifying
statement is governed by the principles
of Rule 15. The reference in Title 28,
U.S.C. § 1292(a) (3), to admiralty cases
shall be construed to mean admiralty
and maritime claims within the mean-
ing of this subdivision (h).
-5-
STATEMENT OF THE CASE
Wesley J. Leonard filed this action
against Nichols Construction Company
(Nichols), his employer, Fireman's Fund
Insurance Company (Fireman's Fund),
Nichols' insurer, and Exxon Corporation
(Exxon) for personal injuries sustained on
August 26, 1974. This petition for cer-
tiorari is submitted by plaintiff, Wesley J.
Leonard, following a decision adverse to
plaintiff by» the United States Fifth Cir-
cuit Court of Appeals.
The accident from which this action
stems occurred at the site of a construc-
tion project by Nichols on the Mississippi
River near the Exxon plant at Baton Rouge,
Louisiana.
Nichols entered into a contract with
Exxon whereby Nichols was to construct a
pipeline which would connect the Exxon dock
located some distance from shore with its
shore-side facility. This pipeline was
-6-
PO rer: wer -
essential to permit deep-draft ocean-going
ships to load and unload petroleum pro-
ducts from a location in the Mississippi
River some distance from the bank of the
River.
In order to construct and transport
this pipeline, Nichols assembled a work
area consisting of three barges backed to-
gether. These barges were attached end-to-
end and were positioned parallel to the
bank, but on the "water" side of a sta-
tionary barge which was secured to the
bank. A crane used in the pipeline fabri-
cation process was mounted on the station-
ary barge. The three barges were tied to
the stationary barge and also secured to
two tie-up dolphins on the bank by means
of cables. It was necessary that the en-
tire work area be accessible to the crane
and accordingly, the barges were often
untied, repositioned and resecured.
~ P
The pipeline under construction was
built in sections. As each section was
completed, the barges were unsecured and
maneuvered into the Mississippi River by
means of a tugboat. The tug transported
the completed section to the designated
area in the Mississippi River in order that
it could be attached to the section pre-
viously built and positioned. After reach-
ing the correct position, the CP-12 was
partially submerged to permit the attach-
ment to those sections already in place.
Thereafter, it was refloated and manuever-
ed back alongside the stationary barge.
The barge on which Leonard was injured
was known as the CP-12. The CP-12 was de-
signed and equipped for use in navigable
waters. It had a raked bow, and was issued
a United States Coast Guard certificate of
registration and an identification number.
It was upon the navigable waters of the
Mississippi River at the time of the
=8-
Oe. 8m
ore
accident herein. Although moored at the
time of the accident, the two cables and
other smaller ropes were by no means per-
manent. The CP-12 carried United States
Coast Guard approved safety equipment,
lights, and lifesaving equipment. The
barge transported the completed pipeline
sections, as cargo, across the navigable
waters of the United States.
The plaintiff was employed by Nichols
as a foreman supervising all the work be-
ing performed aboard the CP-12. The acci-
dent giving rise to this suit occurred on
August 26, 1974, which was a Monday.
Plaintiff had last worked at the construc-
tion site on the preceding Friday evening
or Saturday morning. However, when
Mr. Leonard arrived at work on the Monday
in question, he found an assembly of some
eight Exxon fuel barges moored to and
alongside the barges. This array of fuel
barges had been thus positioned on the
=-9=
previous morning, Sunday, August 25.
On Monday morning, shortly after 7 a.m.,
plaintiff was aboard barge CP-12, which was
the up-river barge of the three barges,
with a gas permit man, when Leonard obser-
ved one of the shore lines unraveling and
breaking. The shore line was a five-
eighths (5/8") inch cable that secured the
CP-12 to the “tie-up dolphin" situated on
the bank. The weight or load of the Exxon
fuel barges secured to the three barge
string had placed too great a strain on
the line securing the CP-12 to the river
bank.
The plaintiff immediately notified
Mr. E. M. Henderson, the project coordina-
tor for Exxon, who in turn called the tug
EXXON PENNSYLVANIA to remove the defendant's
fuel barges.
It was the plaintiff's intention to
remove the two lines fastening the fuel
barges to the barge CP-12 as soon as
-10-
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|
|
|
possible. The weight of the fuel barges
was already placing tremendous stress on
the CP-12-to-shore cable and Mr. Leonard
believed that the wash from the approach-
ing ‘tug would place even more strain on
the failing cable.
Consequently, when the Exxon tug was
almost in position to remove the barges
(shortly before 8 a.m,), the permit man
suggested untying the two lines to the
fuel barges and the plaintiff agreed.
The permit man removed the first line
while the plaintiff bent over to remove
the second. This action required bending
over to the deck of the CP-12 and remov-
ing the "eye" of the line from the cavil
of the CP-12. While removing the line and
casting it over the side, Mr. Leonard's
right foot slipped on a foreign substance
(sand), and he immediately experienced
pain in his back. (It should be noted
that the Exxon fuel barges, in addition to
elle
being secured to the construction barge,
were primarily fastened to a large landing |
barge or dock located some distance up-
stream. Therefore, removing the two lines
in question would not result in launching
the fuel barges downstream: it simply
alleviated the stress on the weakened ca-
ble connecting the construction barge to
the river bank.)
The Fifth Circuit affirmed the action
of the United States District Court wherein
Judge E. Gordon West granted Nichols' and
Fireman's Fund's Motion for Summary Judg-
ment of April 2, 1976, which contended that,
as a matter of law, the CP-12, upon which
plaintiff was injured, was not a "vessel".
Consequently, plaintiff's Jones Act and
unseaworthiness claims were dismissed.
However, Judge West did not dismiss
Nichols or Fireman's Fund from the case,
although no other theory of liability was ,
asserted or could have been asserted
=12-
BRE ere —_
against these parties. Obviously there
could be no 905(b) claim without a vessel.
When Nichols' Motion was granted,
counsel for plaintiff immediately appealed
this action, The Jones Act and unsea-
worthiness claims were a substantial, if
not the major, portion of plaintiff's law-
suit. Plaintiff filed a Notice of Appeal
on April 21, 1976. On May 20, 1976, Judge
West signed an order retaining the record
in the Clerk's office of the District Court,
which record was due to be lodged in the
Court of Appeals on June 1, 1976. Rather
than continue the trial (set for June 14,
1976) until plaintiff could appeal the dis-
missal of the Jones Act and unseaworthi-
ness claims on specious grounds, Judge West
ordered the case heard as originally
scheduled.
On May 1l, 1976, a pretrial conference
was held and attended by counsel for all
parties in the action. At this conference,
-13-
counsel for plaintiff asserted that as the
claims against Nichols and Fireman's Fund
had been dismissed and no other theory of
liability against these defendants was as-
serted, there existed complete diversity
of citizenship between plaintiff and the
remaining defendant, Exxon, Plaintiff
thus expanded the basis upon which juris-
diction existed to include diversity as
well as the general maritime law, as as-
serted in the original petition.
On June 7, 1976, seven days before
the scheduled trial date, Judge West
granted Exxon's Motion to Strike Request
for Trial by Jury without prior notifica-
tion to counsel for plaintiff. There was
neither sufficient notice nor an opportu-
nity for a contradictory hearing on this
most important issue.
On June 14, 1976, the day of the
trial, counsel for plaintiff submitted a
Motion to Reconsider Plaintiff's Request
“ihe
ro RS ren, a
for Trial by Jury directly to Judge West
immediately prior to the proceedings.
Therein plaintiff withdrew any claim de-
signated under Rule 9(h), Federal Rules of
Civil Procedure, against Exxon. Judge
West denied this motion, and plaintiff
moved for a mistrial, which motion was
also denied. Consequently, insofar as
plaintiff had alleged general maritime
negligence as a basis of jurisdiction,
the cause proceeded to trial on the negli-
gence claim without a jury. At the con-
clusion of the trial, Judge West ruled
there was no negligence proven against
Exxon or Nichols and judgment was rendered
in favor of the defendants and against
Leonard. From the judgment on June 15,
1976, plaintiff appealed on the issues of:
(1) vessel status; (2) right to a jury
trial; and, (3) negligence and unsea-
worthiness of Exxon and Nichols and their
respective vessels.
-15-
The Fifth Circuit Court of Appeals
affirmed the trial court's denial of ves-
sel status, apparently ignored plaintiff's
issue of a right to a trial by jury, and
affirmed a finding of no negligence on the
part of the defendants, Plaintiff request-
ed a rehearing and this too was denied,
Therefore, plaintiff has filed this appeal
and writ of certiorari to the United
States Supreme Court,
ARGUMENT AND REASONS FOR
ALLOWANCE OF THE WRIT
I.
With few exceptions, questions of sta-
tus under 46 U.S.C. 688, commonly known as
the Jones Act, involving “seamen" and
_“vessels" have traditionally been questions
for a jury. Over a long period of time
numerous particular factual situations and
controversies involving these questions
have been addressed by the judiciary. The
liberal interpretation accorded the Jones
Act has made it exceedingly difficult if
—y
i
:
'
not impossible, to define these terms.
The hallmark case of Offshore Company v.
Robison, 266 F.2d 769 (5th Cir., 1959),
addressing the Jones Act, stated this
succinctly:
"Attempts to fix unvarying meanings
having a firm legal significance to
such terms as 'seaman,' ‘'vessel,'
‘member of a crew' must come to
grief on the facts. These terms
have such a wide range of meaning,
under the Jones Act as interpreted
in the courts, that, except in
rare cases, only a jury or trier of
facts can determine their applica-
tion in the circumstances of a par-
ticular case."
However, jurisprudence has conceived
several exceptions which have become firm-
ly encrusted into the law. For example,
floating dry docks were declared not to be
vessels in Cope v. Vallette Dry Dock Com-
pany, 1887, 119 U.S. 625, 7 S.Ct. 336,
30 L.Ed. 501, if not before, Snyder v. A
Floating Dry Dock, D.N.J., 1884, 22 F. 685.
Subsequently, when threshold status ques-
tions have arisen concerning floating dry
oj Pa
docks, the various Circuit Courts of the
United States have held such an issue
could be decided summarily as a matter of
law, Atkins v. Greenville Shipbuilding
Corporation, 411 F.2d 279 (5th Cir., 1969);
Cook v. Belden Concrete Products, Inc.,
472 F.2d 999 (5th Cir., 1973), pursuant to
Rule 56, Federal Rules of Civil Procedure,
without infringing upon a seaman's right
to trial by jury under the Jones Act.
In enacting the Jones Act, Congress
saw fit to allow juries to decide who are
seamen “within broad limits of what is
reasonable". Offshore Company v. Robison,
supra. Considering the liberal interpre-
tation traditionally applied to the Jones
Act, threshold questions of "vessel" sta-
tus can reasonably be said to fall within
the Congressional intent, as the same con-
siderations apply. Producers Drilling Com-
pany v. Gray, 361 F.2d 432 (5th Cir., 1966).
=18<
In a series of cases beginning with
South Chicago Coal & Dock Company v.
Basset, 1940, 309 U.S. 251, 60 S.Ct. 544,
80 L.Ed. 732, this Court concluded ques-
tions of status are for the trier of facts.
Basset was cited in Giafala v. Texas Com-
pany, 1955, 350 U.S. 879, 76 S.Ct. 141,
100 L.Ed. 775, which reinstated a district
court's determination that a status issue
concerning a man killed on a submersible
drilling barge was a question for the jury.
Both Basset and Wilkes v. Mississippi
River Sand & Gravel Company, 202 F.2d 383
(6th Cir., 1953), stated that in deter-
mining whether a person was "a member of a
‘crew'", the word "crew" has a "wide range
of variation" and that it does not have
“absolutely unvarying legal significance".
Such status questions are "primarily a
question of fact that is to be left to the
trier of fact."
-19-
In Senko v, LaCrosse Dredging Corpora-
tion, 1957, 352 U.S. 370, 77 S.Ct. 415,
1 L.Ed.2d 404, this Court specifically ‘
recognized that except in "rare cases",
status questions are for the trier of
facts. Many Circuit Court decisions have
recognized and applied this approach.
Offshore Company v. Robison, supra; Bodden
v. Coordinated Caribbean Transport, Inc.,
369 F.2d 273 (5th Cir., 1966). This
language invariably sanctioned the more
liberal use of summary procedures in
limited factual situations where threshold
status issues could be resolved as a mat-
ter of law, based upon prior jurisprudence
such as Cope v. Vallette Dry Dock, supra.
See Atkins v. Greenville Shipbuilding
Corporation, supra. The use of summary
process in these cases entails a stricter
standard of review; the record, including
the pleadings, affidavits, and depositions, b
must negate the probability that evidence
-20-
that could persuade reasonable men to
draw different conclusions might be
developed at trial. Stanley v. Guy
Scroggins Construction Company, 297 F.2d
374 (5th Cir., 1961).
Although Senko recognized "in rare
cases" exceptions do exist to the general
rule that siete questions are for the
jury, the jurisprudence reflects the
liberal interpretation accorded threshold
status questions. In the reported cases
where status issues have been decided as
a matter of law, the facts therein have
fallen almost squarely within the para-
meters of prior cases such as Cope v.
Vallette Dry Dock Co., supra. See Atkins
v. Greenville Shipbuilding Corporation,
supra. The decisions make clear that based
upon all the facts and admissions therein,
when there exists no genuine issue as to
any material fact regarding status, and
no conflicting inferences could be drawn
wttin
from those underlying facts, a summary
decision is proper, However, although sta-
tus issues are not ipso facto for the jury,
if conflicting inferences from one set of
facts could lead to differing conclusions
among reasonable men, the determination of
status, even though marginal, must be made
by a jury. Offshore Company v. Robison,
supra; Stanley v. Guy Scroggins Construc-
tion Co., 297 F.2d 374 (5th Cir., 1961);
Producers Drilling Co. v,. Gray, 361 F.2d
432 (5th Cir., 1966); Marine Drilling Co.
v. Autin, 363 P.2d 579 (5th Cir., 1966);
Barrios v. Louisiana Construction Materials
Co., 465 F.2d 1157 (5th Cir., 1972). The
Fifth Circuit, in Offshore Company v. Robi-
son, supra has gone so far as to hold that
even where the underlying facts are largely
undisputed, the determination of status
will ordinarily be left to the jury:
"Attempts to fix unvarying meanings
having a firm legal significance to
such terms as 'seaman,* ‘'vessel,'
n22e
tte hae
‘member of a crew' must come to
grief on the facts. These terms
have such a wide range of mean-
ing, under the Jones Act as in-
terpreted in the courts, that,
except in rare cases, only a jury
or trier of facts can determine
their application in the circum-
stances of a particular case.
Even where the facts are largely
undisputed, the question at issue
is not solely a question of law,
when, because of conflicting in-
ferences that may lead to different
conclusions among reasonable men,
a trial judge cannot state an un-
varying rule of law that fits
the facts."
In the instant case, the district
court notes a few factual similarities be-
between the CP-12 and the floating dry dock
in Cook v. Belden Concrete Products, Inc.,
472 F.2d 999 (5th Cir., 1973). Upon this
weak predicate the trial court concluded
summary disposition of "vessel" status was
proper. Cook is distinguishable in several
important respects, as discussed later, and
should not have been authority for the pro-
position that, as a matter of law, the
CP-12 was not a "vessel". Moreover, the
“~
-23-
fact that the three judge appellate panel
split two-to-one in its decision that a
jury issue was or was not presented demon-
strates precisely the fact that conflicting
inferences from the facts presented could
lead to differing conclusions among rea-
sonable men.
This decision of the Fifth Circuit
and District Court has bridged the murky
gap between that line of jurisprudence
which has utilizeca summary process to re-
solve status issues as a matter of law
(i.e., cases involving structures which are
undisputably not "vessels" [Cope v. Vallette
Dry Dock Company, supra]) and cases wherein
_ reasonable men could draw conflicting in-
ferences from one set of facts. It raises
the low evidentiary threshold which has
heretofore sufficed in Jones Act cases to
a much higher level than previously re-
quired. As pointed out by Judge Godbold
=24-
oO
in his dissent, the majority of the Fifth
Circuit panel are uncomfortable with the
conclusion they reached on this issue:
"Nonetheless, we note that Cook
and now the instant case deviate
from the general practice per-
mitting Jones Act issues to be
submitted to the jury, and ac-
cordingly should be applied
restrictively." at p. 127.
Cook is not valid authority for the deci-
sion reached in this case because cf fac-
tual dissimilarities. As a result, if
this decision is maintained, the right of
seamen to a jury trial "in a proper case"
under the Jones Act will be severely
eroded. The lower court's decision con-
tradicts prior jurisprudence and will fos-
ter continued infringement upon the rights
of seamen to a jury trial when material
facts are in dispute and reasonable men
might reach different conclusions from con-
flicting inferences drawn from one set of
facts.
-25-
There are several critical factual
distinctions between Cook v. Belden Con-
crete Products, Inc., supra, and this case.
First and foremost, the structure in Cook
alleged to be a "vessel" was characterized
in fact as a more or less permanently
moored floating dry dock. More accurately,
it was a flat deck barge upon which Belden
employees fabricated other barges or ves-
sels. During the construction of other
vessels, this barge would occasionally be
moved slightly to different positions
along the dock, and, upon completion of a
new vessel or barge, it would be towed into
deeper water by tugboats and submerged for
launching. This construction platform was
‘geet eam designed for navigation, nor en-
gaged in navigation at the time of the acci-
dent therein. The district court in the
instant case focused almost entirely on
the singular fact that both the CP-12 and
the Cook dry dock were used for
-26-
ere:
construction purposes. The Court ignored
the fact that the CP-12 was designed and
equipped for navigation, that it was not
permanently moored, and that, in addition
to its functions as a construction facili-
ty, its major function was to transport its
cargo - the completed pipeline sections -
across navigable waters, The CP-1l2 was
not a dry dock: it was used neither to
construct nor repair vessels. The most ex-
peditious, if not the only, method of in-
stallation of the pipeline in the Missis-
sippi River was to construct that pipeline
in sections aboard a vessel, the CP-12,
which could then be towed from the river
bank for placement of the section into the
river. It was established long ago that
barges are vessels. Norton v. Warner Com-
pany, 1944, 321 U.S. 565, 64 S.Ct. 747,
88 L.Ed. 931. In determining whether or
not a structure is a vessel, the Fifth
Circuit in Hicks v. Ocean Drilling and
oli Fon
Exploration Company, 512 F.2d 817 (1975),
citing Cook, stated:
". . .the purpose for which a
facility was constructed and
the business in which it is
engaged are the controlling
considerations in determining
whether or not the facility is
a vessel." Citing The Robert
W. Parsons, 191 U.S. 17, 30,
24 S.Ct. 8, 48 L.Ed. 73 (1903).
The Fifth Circuit has recognized in many
instances special purpose structures may
be vessels. Hicks v. Ocean Drilling,
supra; Offshore Company v. Robison, supra.
Several cases indicate that these special
purpose "vessels" are structures which
serve as something more than a means of
transport on water. Producers Drilling
Co. v. Gray, supra. The barge CP-12 was
part of the three barge assembly used to
facilitate the construction and installa-
tion of the Exxon pipeline, It should be
noted that the CP-12 was not indispensible
in the actual construction of the pipeline
sections. Those sections could have been
=2Q«
OSE BIEN ee Ky
constructed on land. However, the fact
that these sections were constructed on
the CP-12 only facilitated the primary
purpose of the CP-12: to transport these
assembled sections across the navigable
waters of the Mississippi River and then
connect them to the facility under con-
struction in the River; that the actual
construction occurred on the CP-12 was,
therefore, only incidental to its major
purpose.
It would still have been necessary to
transport the assembled sections across a
part of the River had they been construc-
ted on land, irrespective of the frequency
of such trips.
There should be no negative effect
. On the considerations applicable when at-
tempting to determine if a structure is a
"vessel" within the parameters of the Jones
Act if, in addition to utilization as a
means of transport of cargo across navigable
-29-
water, the structure is utilized for con-
struction purposes. In Porche v. Gulf
Mississippi Marine Corporation, 390 F.Supp.
624 (E.D.La., 1975), the structure upon
which the plaintiff therein was contended
to be a member of the crew was remarkably
similar to the CP-12. The Porche barge,
designated RB-2, was "a barge afloat and
engaged in laying pipe in the Gulf of
Mexico." The pipeline in Porche was con-
structed aboard the RB-2. Even though
engaged in construction, transportation,
and installation of a pipeline in navi-
gable waters, precisely the same functions
of the CP-12, the distinguished Judge Alvin
Rubin brushed over the "vessel" status
issue of the RB-2 by stating:
", . .it is now well-settled that
such structures are 'vessels'."
- (Citations omitted.)
The defendant in the instant case "distin-
guished" Porche from this case by stating ‘
the RB-2 in Porche was "a ‘barge afloat’
=30-
i tre seer.
out in the Gulf" and that the RB-2 was "a
barge 'floating offshore'." Such a "dis-
tinction" is meaningless and should have
been recognized as such by the Fifth Cir-
cuit. The CP-12 was also a barge afloat;
that it was not floating in the Gulf of
Mexico is completely irrelevant. The cri-
tical element is that the RB-2 and the
CP-12 were both located upon the navigable
waters of the United States. The fact that
the CP-12 was temporarily moored in the
Mississippi River is of no moment. To dis-
tinguish Porche from this case on the ba-
sis that the RB-2 was "floating offshore"
as opposed to the CP-12 floating in the
Mississippi River demonstrates remarkably
little understanding of a fundamental pre-
mise upon which the broad definition of
"vessel" rests.
In a case which the First Circuit in-
quired into the status of a construction
barge, that Court stated it could not say
eh D as
as a matter of law that the construction
barge was not a "vessel". Bennett v.
Perini Corporation, 510 F.2d 114 (lst Cir.,
1975). The facts in Bennett relating to
the barge bear a strong resemblance to the
facts in the instant case. The construc-
tion barge in Bennett, designated the
"Scow 101", was without motive power of
its own, had a crane mounted on its deck,
and had to be towed from place to place.
The Scow 101 was utilized in construction
of a bridge, and there was evidence from
which one could infer that it could be
moved to other piers along the bridge.
At the time of the accident it was moored
_in navigable water along the pier of the
bridge in such a manner that the crane
could move materials for the bridge while
its deck could be used as a storage area
and work platform for the construction
crews. A major function of that barge
appeared to have been the transportation
=32@
of the structural materials and tools used
to build the bridge across the navigable
waters of a bay, In stating they could
not say as a matter of law that "Scow 101
was not a vessel", the court said:
"Whether a marginal structure is a
vessel is a question for the jury
unless the craft is clearly outside
any permissible understanding of
the term,”
In citing Cook v, Belden Concrete Products,
supra, and recognizing that similarities
existed between the Cook structure and
Scow 101, that court further stated:
"In those 'rare cases‘ where rafts
or barges have been held, as a
matter of law, not to be vessels,
it has often been because of their
close similarity to floating docks
or dry docks, traditionally regard-
ed as extensions of land.”
The Court noted some similarity between
the Scow 101 and a dry dock, but recogni-
zed another major function: the inter-
mittent transportation of structural
materials across navigable waters. This
same principle should have operated in the
«33-
instant case, and "vessel" status should
not have been decided as a matter of law.
The Fifth Circuit and the District Court
failed to accord the same importance to
the major function of the CP-12: trans-~
portation of the completed pipeline sec-
tions, as cargo, across navigable waters.
The Bennett court thought a jury could
find the Scow 101 was one of the “special
purpose floating structures" which the
maritime law has included within that term.
Implicit in this statement is the assump-
tion that conflicting inferences could be
drawn from the same facts by reasonable
men. In the instant case, the fact that
the Fifth Circuit split two-to-one demon-
strates the same result that might be ob-
tained by a jury. The logical conclusion
to be drawn indicates "vessel" status
should not have been decided as a matter
of law by the trial court in Mr. Leonard's
case. In fact, the status of CP-12 in the
-34-
instant case is almost factually the same
as the Scow 101 in the Bennett decision.
Nichols also argued that neither the
CP-12 nor plaintiff were subjected to the
elements of risk and hazards of the sea.
However, the entire series of events com-
menced when eight Exxon fuel barges were
tied to the CP-12, thereby causing one of
two steel cables running from the CP-12 to
dolphins on the bank to start unraveling.
In addition to breaking the CP-12 mooring
lines, the Exxon barges caused buffeting
of the barges which in turn damaged the
sand coating around the pipeline section
under construction. In attempting to un-
tie the mooring lines of the Exxon fuel
barges, Mr. Leonard was injured. It should
be clear the CP-12 was in danger of break-
ing away from its mooring and being carried
away by the current. Even in its most re-
mote sense, a definition of “hazards of
the sea” would encompass the danger
-35-
confronted when a vessel or structure is
swept away by the current.
The mere fact that the CP-12 was not
self-propelled is not determinative of
"vessel" status. In many cases involving
special purpose structures and barges, es-
pecially submergible drilling barges,
those structures had no motive power of
their own; many are towed or maneuvered
by tugboats. Despite this fact, "vessel"
status was determined to exist. Producers
Drilling Company v. Gray, 361 F.2d 432
(Sth Cir., 1966); Offshore Company v. Robi-
son, supra; Hicks v. Ocean Drilling, supra;
Davis v. Hill Engineering, Inc., 549 F.2d
324 (Sth Cir., 1977).
Plaintiff submits that, although the
issue of status is not perforce one of fact
for the jury, the Fifth Circuit erred in
failing to reverse the decision of the Dis-
trict Court. From the facts in the record,
it it clear that conflicting inferences
-36-
could be drawn from these facts, thereby
leading reasonable men to different conclu-
sions. Under Rule 56, Federal Rules of
Civil Procedure, summary judgment is pro-
per only when there exists no genuine issue
as to material facts. At the hearing on
the motion and on appeal plaintiff estab-
lished facts sufficient to demonstrate the
existence of a genuine issue of material
fact. This decision flies into the face
of the liberal construction previously ac-
corded cases arising under the Jones Act.
Judge West has, in effect, treated Cook v.
Belden Concrete Products, Inc., supra, as
stating an “unvarying rule of law". Juris-
prudence states a wide range of meaning is
to be accorded the term "vessel" under the
Jones Act; this, coupled with the fact that
conflicting inferences may lead to dif-
ferent conclusions among reasonable men
based on the facts presented, should have
been sufficient to defeat Nichols' motion
o37=
this result would be a serious injustice,
for summary judgment. The Leonard de-
ee ee and would substantially alter the existing
cision establishes poor precedent and '
. maritime jurisprudence. The Court is re-
severely restricts a seaman's right to
minded that “seamen are wards of the court"
trial under the Jones Act. The Leonard hy |
; er and their interest should be guarded and
decision appears to be contrary to prior |
| protected. The Supreme Court of the United
jurisprudence and attempts to circumvent
States is presented with an opportunity to
established procedure in "status" cases.
protect and define seaman rights in the
This Honorable Court has not had
Leonard case by clearly establishing the
the opportunity to review controversies
guidelines to be followed in determining
of this nature in recent years. However,
when and under what circumstances the
it is urged that review is necessary in
trier of fact is entitled to determine
order to clarify and define the scope of
"vessel status" questions.
"vessel status" issues under the Jones
Act and General Maritime Law, and to
check the gradual erosion of a seaman's
right to trial by jury on status issues.
If the Leonard decision is not reviewed
and reversed, the foreseeable result is
that every issue of status somewhat an- ‘ .
alogous to another set of facts will be
decided as a matter of law without ever
reaching the trier of fact. To allow
-39-
-38-
II.
The second issue presented to this
Honorable Court is whether the trial court
erred in denying Leonard's right to a jury
trial against Exxon after ruling theft no
vessel was involved in this action. Plain-
tiff's contention throughout this case has
been that once vessel status was denied,
Nichols, the employer of plaintiff, was
out of the case leaving only Exxon, and
therefore plaintiff is entitled to a jury
trial against Exxon since complete diver-
sity existed between plaintiff and Exxon.
Plaintiff maintains that after a close
review of the decision of the Fifth Cir-
cuit, one will find that that court glossed
over the procedural irregularities and
errors committed prior to and during the
trial of this case and thus failed to ad-
dress or resolve the more complex issues.
Plaintiff's original complaint al-
leged a claim under the Jones Act with a
o40=
request for a trial by jury. Plaintiff
further alleged unseaworthiness and negli-
gence of the barges and their owners, in-
voking jurisdiction of the federal court
under the General Maritime Law. Plaintiff
shows that in his complaint there does not
exist any designation of a claim under
Rule 9(h), Federal Rules of Civil Pro-
cedure. When filed, complete diversity
between all parties did not exist as
Nichols was a Louisiana corporation. At
that time, no other basis for federal juris-
diction existed and any Rule 9(h) statement
identifying plaintiff's claim to be in ad-
miralty and general maritime law was un-
necessary.
When the District Court granted
Nichols' motion for summary judgment on
vessel status, plaintiff's Jones Act, un-
seaworthiness and maintenance and cure
claims should have been dismissed. When
plaintiff attempted to appeal the decision
-4l1-
on this motion, the court withheld the :
record from the Court of Appeals, refused |
to grant a continuance and ordered that
the trial proceed as scheduled. With the
trial court dismissing the Jones Act and
unseaworthiness claims, plaintiff's sole
remaining theory of liability as alleged
in his complaint was one in maritime tort
(i.e., negligence). However, the District
Court did not simultaneously dismiss
Nichols and Fireman's Fund from the action.
Plaintiff was not then, and is not now,
aware of any theory of negligence allowing
any action against his employer, Nichols,
to continue in federal court once vessel
status was denied.
Assuming, arguendo, that the District
Court decided correctly on the motion
filed by Nichols and affirmed by the Fifth
Circuit, there no longer existed any basis
in the pleadings upon which plaintiff
could proceed against Nichols or Fireman's
-42%
Fund in federal court. The District Court
decided there did not exist a “vessel”
within the parameters of the Jones Act,
thus "seaman" status could not exist, nor
could the Jones Act action be maintained.
Failing "seaman" status, plaintiff's ac-
tions against Nichols, his employer, and
Fireman's Fund, were severely restricted.
If he was considered a maritime worker,
he would fall under the “exclusive remedy"
provisions of the Longshoremen and Harbor
Workers' Compensation Act, 33 U.S.C. § 901
(et.seq.), thereby precluding an action in
maritime tort. [Any action in negligence
under 33 U.S.C. § 905(b) also depends on
an initial finding of "vessel" status.]
If plaintiff was determined not to be a
maritime worker, by the process of elimina-
tion he would fall under the “exclusive
remedy" provisions of the Louisiana Work-
ments Compensation statute, L.S.A.-R.S.
23:1 (et.seq.), again precluding any action
wa
in tort. Plaintiff asserted neither of
these claims. In effect, the decision of
the District Court in granting Nichols’
Motion for Summary Judgment should have
eliminated Nichols and Fireman's Fund from
the case entirely. In point of fact, the
District Court did not dismiss either of
these defendants from the case and did not
state any reasons for this action. Had
that Court dismissed these defendants, as
it should have, the sole remaining defen-
dant would have been Exxon. Plaintiff con-
tended on appeal, and so urges this
Honorable Court now, that, contrary to the
decision of the District Court, Exxon was
the only defendant in the trial. Nichols
was not a defendant after the trial court
granted its motion.
Plaintiff was cognizant of the fact
that he was no longer entitled to a jury
trial in view of the fact that the court
had dismissed his Jones Act claim (whether
-44-
correctly or incorrectly). However, plain-
tiff recognized complete diversity existed
after the summary judgment was granted,
notwithstanding the actions of the District
Court. A pretrial conference was held on
May 11, 1976. At that time plaintiff
asserted that in addition to the General
Maritime Law, jurisdiction would also be
based on diversity of citizenship in order
that a jury trial might still obtain.
Paragraph four (4) of the Pretrial Order
states:
"Jurisdiction is based on the
general maritime law, and diver-
sity of citizenship with the
amount of damages exceeding Ten
Thousand and No/100 ($10,000.00)
Dollars.
Exxon Corporation questions
whether the plaintiff's cause
of action falls within the ad-
miralty jurisdiction of the
court or within the diversity
jurisdiction of the court."
Plaintiff respectfully submits that dual
jurisdiction does not preclude his right to
a jury trial on the law side of the court
~~
when his right to a jury is based on
diversity jurisdiction. To deny plaintiff's
fundamental right to a jury trial does a
gross injustice to plaintiff and the jury
system.
Exxon's Motion to Strike Trial by
Jury was filed June 7, 1976, and granted
that same day without prior notification
to plaintiff's counsel. The motion alleged
jurisdiction was predicated on the general
maritime law and that a jury trial is not
permitted in such cases. There was no op~
portunity for a contradictory hearing on
the issue of diversity. At the pretrial
conference, counsel for plaintiff asserted
_ jurisdiction was based not only upon the
general maritime law, but included diver-
sity of citizenship as another basis. In
granting Exxon's motion without a hearing,
plaintiff was denied his fundamental right
to a jury in diversity cases. Romero v.
Bethlehem Steel Corporation, 515 F.2d 1249
-46-
(Sth Cir.,1975), involved somewhat simi-
lar facts, but there are important factual
dissimilarities in the instant case upon
which the Court should have reached a dif-
ferent decision than that obtained in
Romero. Therein, Romero's complaint was
specifically designated under Rule 9(h).
To the pretrial order, which based juris-
Giction in admiralty, plaintiff inserted
a sentence stating diversity of citizen-
ship was also a basis of jurisdiction,
after the language in the order’ had been
agreed upon. Another paragraph of the pre-
trial order demonstrated there existed a
dispute regarding the status of the case .
as a jury or non-jury trial because of the
Rule 9(h) designation, Leonard, however,
never brought his action under Rule 9(h).
Plaintiff urges that the dual bases of
jurisdiction in the pretrial order were
admiralty and diversity of citizenship and
were sufficient to notify the Court and
=47<
Exxon of plaintiff's right to a trial by
jury.
Romero states the mere addition to
the pretrial order of diversity as a juris-
dictional ground is insufficient to notify
the court or the opposing party of the in-
tent to expand the jurisdictional base,
especially where there is no attempt to
withdraw a Rule 9(h) claim. In this case
it should be unnecessary to completely
withdraw any allegation of admiralty or
maritime jurisdiction because there existed
no Rule 9(h) designation. Certainly Exxon
was notified of plaintiff's right to a
diversity cause of seiner because Exxon
included a paragraph in the order question-
ing plaintiff's right to proceed in admiral-
ty and on the law side with jurisdiction
based on diversity.
Plaintiff's remaining negligence
claim against Exxon was cognizable in
admiralty or in a civil action, with
atta
diversity of citizenship as the basis
for jurisdiction for the civil action.
The 1966 amendment to the Federal Rules of
Civil Procedure, unifying the admiralty
and civil rules, was not intended to
change the general rule that admiralty
claims are to be tried without a jury.
Federal Rules of Civil Procedure, Rules
9(h), 38(e), and Notes of Advisory Com-
mittee on Rules. The Advistory Committee
notes state:
"It is no part of the purpose of
unification to inject a right to
jury trial into those admiralty
cases in which that right is not
provided by statute."
After unification, a single form of plead-
i is sufficient, as the unification
abolished the distinction between civil ac-
tions and suits in admiralty. Rule 9(h)
was drafted as an identification device to
enable the pleader to identify his claim
either as one in admiralty so that the
parties would know whether the special
-49-
admiralty remedies and rules of procedure
would apply (Advisory Committee Notes;
Wright & Miller, Federal Practice and Pro-
cedure § 1313 at 453 [1969]), or asa
civil action if diversity of citizenship
exists. Thus the pleader has within his
‘power to determine the procedural con-
sequences of his cause of action. Advisory
Committee Notes, Rule 9(h).
In factual situations where admiralty
jurisdiction and some other form of federal
jurisdiction exists, a special identifying
statement asserting the pleader's claim
falls within Rule 9(h) is necessary, or
the rules governing civil action will ap-
ply. The allegation of admiralty and mari-
pte jurisdiction does not ipso facto
make it an admiralty claim within the para-
meter of Rule 9(h). Banks v. Hanover S.S.
Corp., 43 F.R.D. 374 (D.C.Md., 1967).
Wright and Miller, Federal Practice
and Procedure § 1313 at 454 (1969),
-50-
succinctly stated it thus;
with
"If the pleading shows that both
admiralty and another basis of
federal jurisdiction exist, the
suit will be treated as an ad-
miralty claim for purposes of in-
voking the special admiralty
procedures and remedies only if
the pleading or court setting
forth the matter contains a
statement identifying the claim
as an admiralty or maritime
claim. It is not sufficient
merely to allege that the claim
is within the admiralty and mari-
time jurisdiction. Official
Forms 2(d) and 15, as amended in
1966, indicate how the pleader
may make his choice of procedures
Clear. If he wishes the rules
governing civil actions to apply,
the pleader need not so specify.
If he wishes to avail himself of
the special admiralty rules, it
it suggested that he follow the
jurisdictional allegation with
the statement that: 'This is an
admiralty or maritime claim with-
in the meaning of Rule 9(h).' If
only grounds for admiralty juris-
diction are shown in the pleading,
the claim will be governed by the
special rules even in the absence
of an identifying statement."
(emphasis added)
The language in Romero is consistent
this statement:
"Fed. R. Civ. P. 9(h) serves only
as a device by which the pleader
aSi«
may Claim the special benefits of
admiralty procedures and remedies,
including a nonjury trial, when
the pleadings show that both ad-
miralty and some other basis of
federal jurisdiction exist." citing
Wright & Miller (citation omitted).
The statement necessarily implies if the
pleader does not utilize the 9(h) "device"
to claim the special admiralty benefits,
his action will be governed by the rules
governing civil actions. After the Dis-
trict Court granted Nichols' Motion for Sum-
mary Judgment, the pretrial order makes it
clear plaintiff did not intend that admiral-
ty and maritime jurisdiction constitute
the sole basis of jurisdiction. Counsel
specifically asserted diversity as the
other basis of jurisdiction of the District
Court over the sole remaining claim against
Exxon. Plaintiff did not allege any Rule
9(h) designation of this claim as did the
Romero plaintiff. In the absence of the
necessary Rule 9(h) identifying statement,
plaintiff's claim should have been heard
=$2~
ep et EE LOE L EO LLG LILLE OPER K:
on che law side of the court, and that
claim should have been governed by the
rules governing civil actions, including
a trial by jury pursuant to 28 U.S.C.
§ 1333 (the "savings to suitors" clause)
and as granted by the Amendment VII of
the United States Constitution.
The Fifth Circuit glossed over these
issues by holding there was no complete
diversity, without any analysis of the dis-
missal of Nichols or Fireman's Fund in the
course of the proceedings. It did not
address Romero or the issues raised by
Rule 9(h). In effect, the Panel assumed
there was no complete diversity simply
from the initial allegations in plaintiff's
complaint, without analysis of the pro-
cedural irregularities involved and without
fully understanding that without a vessel,
the employer, Nichols, could not stay in
the lawsuit; without Nichols, there existed
diversity.
mS
Plaintiff did not indirectly attempt
to provide notice that there was complete
diversity between the parties. The state-
ment in the pretrial order alleged diver-
sity as a basis of jurisdiction with the
admiralty and maritime jurisdiction. The
absence of any Rule 9(h) identifying state-
ment could only butress plaintiff's posi-
tion that he intended to try the action
under the rules governing civil actions,
including a trial by jury. See Wright
and Miller cited above.
When the time frame, in which the
proceedings below developed, is examined,
it becomes apparent that plaintiff had
little time to secure a trial by jury af-
ter Exxon filed its motion to strike the
jury. Immediately prior to trial he sub-
mitted a formal motion to the District
Court to reconsider his request for a jury
trial. Similar action was taken by the
plaintiff in Romero. However, therein
=§4~
appellant made no request, express or
implied, to withdraw the Rule 9(h) desig-
nation in his complaint. The Fifth Cir-
cuit flatly stated withdrawing the Rule
9(h) designation and bringing the entire
suit as a civil action would have -been
sufficient to secure a jury trial because
of the diversity issue. In this case,
not only did plaintiff not make any Rule
9(h) designation in his pleadings or in
the pretrial order, he attempted to with-
draw any potential reference to Rule 9(h)
by complying with the rules established
in Romero.
The District Court and the opposing
party were given good cause to believe
plaintiff intended to proceed under the
rules governing civil actions, based on
diversity of citizenship. In addition to
the statement in the pretrial order of
May 11, 1976, counsel for plaintiff timely
submitted Jury Instructions to the
=8o—
District Court and to opposing counsel on
June 4, 1976.
Plaintiff submits that review by this
Honorable Court is necessary for several
reasons. The decision reached in this
case is not consistent with the decision
in Romero v. Bethlehem Steel Corporation,
supra. Review is also necessary to ad-
dress the special questions raised in this
case when more than one basis of federal
jurisdiction is extant and the issues
raised by Rule 9(h), Federal Rules of
Civil Procedure, are completely ignored
by the Circuit Court. The failure of the
Circuit Court to address the diversity
jurisdiction issue and the Rule 9(h) issue
has operated to deny plaintiff his con-
stitutional right to a trial by jury.
Itt.
The third issue presented to this
Court for review concerns the District
Court's failure to find negligence on the
-56-
part of Exxon and Nichols, and unsea-
worthiness of the vessels involved. The
Fifth Circuit opinion did not even address
this issue on appeal.
A brief review of the relevant facts
is necessary. The joints of pipe fabri-
cated into the pipeline assembly on the
three barge unit were encased in a layer
of concrete. When jarred, various sized
chunks of the concrete tended to break off,
thereby creatirg a hazardous condition by
coating the working surfaces of the barges
with sand and other granules of the con-
crete. Initially, the barges were secured
end to end by mooring lines. The barges
had a tendency to “walk" or climb on top
one another because the barges were with-
out some form of hinge system to keep the
three surfaces level. This “bobbing” ac-
tion which resulted caused damage to the
concrete casings. This problem was par-
tially alleviated when Nichols installed
~57~-
I-beams across the barges to keep the sur-
faces level, but these I-beams were not
sufficient to correct the breaking of the
concrete on the pipes.
The caqncrete casing suffered damage
whenever other barges were moored or tied
to the three barges herein. In fact,
other barges were frequently moored to
the Nichols' barges and caused, in the
words of Mr. A. J, Shaffer, superintendent
for Nichols, ". . .a continuing problem".
Exxon barges often tied onto Nichols'
barges, and Nichols was aware of the dam-
age to the concrete casing and resultant
sand and granules deposited on the deck.
(Trial Transcript, p. 16). The cracks
created had to be repaired often. Mr.
Shaffer testified at trial "it was a con-
tinuing problem, keeping these things
untied from our barges." (Trial Trans-
cript, p. 16). tenes had prior know-
ledge of this problem and the hazardous
-58-
condition created, but did not take suf-
ficient action to correct the problem,
Particulate matter and sand collected on
the barge surfaces the entire time the
Exxon barges were moored thereto. Only
infrequently did Nichols provide main-
tenance and custodial personnel, and none
were provided on the day of plaintiff's
accident.
Exxon was negligent in several res-
pects. Several requests, prior to the date
of the accident, were submitted to Exxon
to halt the continued mooring of Exxon
barges to the Nichols' barges. (Trial
Transcript, p. 20-21). These Exxon barges
continually jarred and buffeted Nichols’
barges, resulting in damage to the cement
casing and deposits of sand on the work
surface. Many of the barges were fuel
barges, similar to the ones moored on the
day of the accident. The welding and
other “hot work" necessary on the Nichols'
-59-
barges could not commence until these
fuel barges were removed. Exxon was
aware of the problems created well in
advance, yet it took no action to correct
the potentially dangerous situation,
The eight fuel barges moored to
Nichols' barges were maneuvered there by
the tug EXXON PENNSYLVANIA. The captain
of the tug, Mr. Elmer Worley, had moored
the tow of eight fuel barges to the
northernmost of Nichols' barges, the CP-12.
The CP-12 was moored to the bank by only
one five-eighths (5/8") inch cable. The
stress created by the eight fuel barges
caused that cable to fray to the point of
breaking. Prior to mooring the fuel
barges, the Exxon tug captain did not in-
vestigate the mooring of the Nichols'
barges to determine if they could accomo-
date the stress created by the fuel barges.
Mr. wor ber testified he had no personal
knowledge of the type of mooring of the
-60-
Nichols' barges or the size of the line,
and that he did not inspect it. A simple
inspection would have revealed the Nichols'
barges and the five-eighths (5/8") cable
inadequate to the task, and inka have pre-
cluded the dangerous situation which re-
sulted. It was in direct consequence to
the fraying line, due to the weight of the
fuel barges, and the negligent oversight
by the Exxon tug captain, that plaintiff
was compelled to release the line thereby
Slipping on the accumulation of sand and
injuring his back.
Review of the findings of fact of a
trial court is governed by the "clearly
erroneous" rule of Rule 52, Federal Rules
of Civil Procedure. The leading case on
scope of review in negligence cases is
McAlister v. United States, 1954, 75 §.Ct.
6, 348 U.S. 19, 99 L.Ed 20. Therein this
Court held determinations of negligence
are reviewed under the "clearly erroneous”
-6l1-
rule of Rule 52. In requesting review by
this Honorable Court, plaintiff submits
that the finding of the District Court
that there existed no negligence by either
Exxon or Nichols is clearly erroneous and
should be set aside. A short review of
the record will reveal there was substan-
tial evidence from which negligence could
be found.
There is ample evidence in the record
to support a finding of negligence by
Exxon and Nichols. The District Court
does not even address the negligence of
Nichols in failing to provide a safe place
to work and failing to maintain the work
area free of potentially hazardous sand
and other particulate matter. The Dis-
trict Court stated the presence of sand
and other particular matter was a "normal"
condition on Nichols' barges. Most of
the sand and other matter present resulted
from damage to the cement encasement of
-62-
the pipe on board. Much action was taken
by Nichols to prevent damage to the pipe.
The pipeline had to be installed in an
"undamaged" condition. Damaged pipe nor
damaged pipe casing was not a normal con-
dition; consequently, neither was the sand
and other matter derived from the damaged
pipe a normal condition. Much effort was
expended to prevent damage to these joints
of pipe, but little or no effort was ex-
pended to correct the dangerously slip-
pery condition on the deck created by the
sand when the pipe was damaged.
The “normal" presence of sand herein
is analogous to the "normal" presence of
fish slime on a pier used to unload fish
from a fishing boat in Jeter v. Star Fish
& Oyster Company, 482 F.2d 457 (5th Cir.,
1973). Therein the defendant vessel
owner was negligent for not washing off
fish slime, a “normal” condition en-
countered on such piers, prior to the
=-63-
unloading of the fish, The fish slime
caused Jeter to slip and fall. The Dis-
trict Court in Jeter found "no evidence"
presented regarding the substance which
caused Jeter to fall. The Fifth Circuit
held this clearly erroneous and reversed.
The same considerations apply herein.
The presence of sand and other matter on
Nichols' barges was an unwanted condition
which could not be characterized as “nor-
mal", It clearly contributed to plain-
tiff's accident and injury by causing him
to slip. It is respectfully submitted
that the finding of the District Court on
this issue is clearly erroneous and should
_ be reversed.
The District Court found no negligence
of Exxon or its tug captain. Stated the
Court:
"Now, there is no evidence, as I
recall, in this case to indicate
that Exxon was in any way negli-
gent by permitting barges to tie
up, if they permitted it -- to
=64=
tie up these barges, This acci-
dent did not occur because the
fuel barges were tied up to the
work barges, except in the very
remotest sense [sic] that if
they had not been there, there
would have been no lines to cast
off; but this certainly can't
be considered as a proximate
cause or a cause in fact of this
accident." (Transcript, p. 283).
This "finding" completely overlooks the
evidence which demonstrated Exxon had
prior knowledge of the practice that its
barges frequently tied up to Nichols'
barges and damaged the pipeline on board,
under construction. It completely ignores
the actions of the Exxon tug captain, an
experienced port pilot, who had no person-
al knowledge of the moorings of Nichols’
barges and who failed to inspect these
barges and their moorings prior to tying
up eight laden fuel barges thereto. That
action, chargeable to Exxon, demonstrated
his failure to exercise reasonable care
and that degree of maritime skill which
prudent navigators employ in performing
-65-
similar services, Yet the Court persisted breaking, because "hot work" couldn't
there was "no evidence" Exxon was in any | commence and because the five-eighths (5/8")
way negligent. Again, plaintiff respect- : ; inch cable wouldn't hold additional vessels.
fully submits the findings of the District The District Court finds Mr. Leonard's
Court that there was no negligence was back injury resulted from "an unstable back"
clearly erroneous and should be reversed.
The District Court holds the accident
herein "did not occur because the fuel
barges were tied up to the work barges."
Again, plaintiff respectfully submits this
is clearly erroneous. As a direct con-
sequence of the stress created by the
Exxon fuel barges on the moorings of
Nichols' barges, the Nichols' moorings
were unraveling and breaking. Responding
to this potentially dangerous situation
created by Exxon, Mr. Leonard was injured.
It is entirely accurate to state the ac-
tions of Exxon were a cause in fact of the
accident herein. Clearly Exxon had been
warned not to tie up to the Nichols' barges
because the concrete encased pipe was
$6
name oe Ones, — <
(Transcript, p. 283). The Court infers
this unstable back condition was a result
of two prior back injuries, one in 1963
and one in 1968. in fact, since the back
injury in 1968 until August, 1974, Mr.
Leonard had continually been employed in
"pipeline and related fields" doing hard
and laborious work. (Transcript, p. 213-
214). The record shows Mr. Leonard had
no trouble or difficulty with his back
prior to the accident in August, 1974.
Plaintiff respectfully submits the conclu-
sion by the District Court that Mr. Leo-
nard's injury resulted from an "unstable
back" is unsupported by the evidence and
is clearly erroneous, Mr. Leonard had
just completed working on a pipe-laying
-67-
barge, prior to coming to work for
Nichols. He did not have an unstable
back that prevented him from being gain-
fully employed.
Plaintiff maintains that since his
claim under the Jones Act, argued as
improperly dismissed, should have been
tried to a jury, that body is the proper
entity to make findings of fact regarding
negligence under the Jones Act. Accord-
ingly, any determination by the District
Court as to negligence is improper. Addi-
tionally, the standard by which liability
and negligence are determined under the
Jones Act is not as stringent as the stan-
dard applied in a maritime tort or in a
diversity action. The Court is familiar
with the standard of negligence as "any
negligence, however slight" in a Jones Act
claim.
Plaintiff respectfully submits to
this Honorable Court that the evidence
-68-
presented in this case clearly demonstrates
negligence by both Nichols and Exxon, con-
trary to the findings of the District
Court. The Fifth Circuit did not even
address the merits of the negligence issue.
SUMMARY
Threshol questions of status under
the Jones Act involving "seamen" and
"vessels" have traditionally been, except
in “rare cases", questions for a jury.
The decision of the District Court and the
Fifth Circuit, holding as a matter of law
that the structure herein was not a ves-
sel or a “special purpose" craft, flies
into the teeth of established jurispru-
dence wherein there exists genuine issues
as to material facts and conflicting in-
ferences could be drawn from underlying
facts by reasonable men. The exceptions
to these principles have been very narrow-
ly drawn, the evidentiary threshold has
consistently been very low, and the
+§9—
provisions of the Jones Act have tradition-
ally been liberally construed. The de-
cision below contradicts these well
established concepts. A principal func-
tion of the barges herein involved trans-
portation of numerous pipeline section
assemblies, as cargo, across navigable
waters. The barges were designed and
equipped for use in navigable waters, and
were in navigable waters when the acci-
dent herein occurred, The characteriza-
tion and analogy of these barges to a
floating dry dock may be appealing, super-
ficially. However, close analysis of the
facts within the context of prior juris-
prudence reveals disposition of this issue
by summary judgment was improper, and that
the threshold issue of "vessel" status
should have been submitted to a jury.
If the decision of the District
Court which granted the summary judgment
on the issue of “vessel” status was
=70<
correct, defendants, Nichols and Fire-
man's Fund, should have been dismissed
from the suit. The dismissal of these
defendants would have resulted in estab-
lishment of complete diversity between
the plaintiff and the remaining defendant,
Exxon. The failure of the District Court
to so act in effect "defeated" diversity
jurisdiction thereby prejudicing plain-
tiff's right to a trial by jury as granted
by the laws of the United States. Plain-
tiff asserts that diversity was establish-
ed as a basis for jurisdiction at the
pretrial conference and in the Pretrial
Order which Order in effect amends the
pleadings. The Court and Exxon were
thereby sufficiently appraised of this
allegation of jurisdiction and of plain-
tiff's demand for a trial by jury.
Plaintiff further asserts that the juris-
diction of the District Court after the
Order was based upon the general maritime
-7l-
law and diversity; the absence of any
designation of plaintiff's claims under
Rule 9(h) or any similar identifying state-
ment indicated plaintiff intended the pro-
ceedings be governed by the rules applica-
ble to civil actions, including trial by
jury, and not by the rules governing civil
actions in admiralty. Accordingly, the
allegations of negligence by Exxon should
have been tried to a jury.
The finding by the District Court
that neither Nichols nor Exxon were negli-
gent is clearly erroneous. Nichols had
prior knowledge of the dangers and slip-
pery condition created when the concrete
casing on the pipeline sections was damaged.
Nichols was aware of the damage caused
when various barges, especially Exxon's
barges, were moored to Nichols' three
barge unit. The evidence demonstrated, in
addition to Nichols' failure to prevent
this practice, Nichols' only infrequently
be
provided custodial personnel to maintain
the barges and remove the sand and par-
ticulate matter which accumulated on the
barge surfaces and created the dangerous
and slippery condition which caused
Leonard's accident. Exxon had prior know-
ledge of the problems and dangerous condi-
tion created when its barges were moored
to Nichols' barges, The testimony at
trial showed responsible Exxon personnel
received repeated requests to halt the
practice of mooring Exxon barges to
Nichols' barges because of the damage and
conditions the practice caused. Further,
the captain of the tug EXXON PENNSYLVANIA,
an experienced port pilot, acknowledged
he had no knowledge of the type of mooring
securing Nichols' barges to the bank and
that he did not inspect these mooring
lines in order to determine if they were
sufficiently strong to accomodate the
weight of the fuel-laden Exxon barges. In
oF 30
spite of evidence and testimony which
demonstrated these acts of negligence,
the District Court stated there was no
negligence by either Nichols or Exxon.
This finding is clearly erroneous, even
within the narrow scope and strict con-
struction applied to that phrase, and
should be reviewed by this Honorable
Court, pursuant to Rule 52, Federal Rules
of Civil Procedure, and reversed.
CONCLUSION
It is respectfully suggested that a
Writ of Certiorari issue, directed to the
Fifth Circuit Court of Appeals, in order
that this Court consicer the decision of
_the Fifth Circuit in the case at bar as
this decision is in conflict with decisions
of the Fifth Circuit and other courts of
appeal on the same matter, and has so far
departed from the accepted and usual
course of judicial proceedings and has so
far sanctioned such a departure by a lower
-74-
court in a Jones Act case as to call for
an exercise of this Court's power of super-
vision.
Respectfully submitted:
CAVE & MCKAY
nald G. Cave
' 7465 Exchange Place
Baton Rouge, LA 70806
Telephone: 504/924-3641
CAEP 2G AES
I hereby certify that three copies of
the foregoing has been mailed this date,
postage prepaid, to all counsel of record:
Boris F. Navratil, P. 0. Box 3197, Baton
Rouge, Louisiana 70821; Richard A. Chopin,
P. O. Box 60626, New Orleans, Louisiana
70160; and James C. Dixon, P. O. Box
15782, Baton Rouge, Louisiana 70815,
Baton Rouge, Louisiana, this 22
day of Eh. , 1979.
APPENDIX A
COURT OPINION
Before GEWIN, GODBOLD and MORGAN, Circuit
Judges
LEWIS R. MORGAN, Circuit Judge:
On August 26, 1974, Wesley Leonard
was injured while working on a floating
construction platform moored to the bank
of the Mississippi River near Baton Rouge,
Louisiana. Suit was filed alleging three
theories of recovery: the Jones Act, 46
U.S.C. § 688 (1976); unseaworthiness of
the platform; and maritime tort. Named as
defendants were Nichols Construction Com-
pany, Leonard's employer, Fireman's Fund,
Nichols' insurer, and Exxon Corporatiou.
Determining that the construction platform
was not a vessel, the court below granted
summary judgment against Leonard on the
Jones Act claim. With regard to plaintiff's
remaining claims, judgment was entered for
defendants following trial by the court.
-76-
ee ee ek
In this appeal, Leonard asserts that
the trial court erroneously granted summary
judgment, ruling that the platform was not
a vessel, and further that the remaining
claims should have been tried by a jury.
Finding no error, we affirm.
On numerous occasions this court has
struggled with the problem raised by
Leonard's first contention - what is a
vessel? As Judge Wisdom succinctly point-
ed out, there may be no precise answer:
Attempts to fix unvarying meanings
have a firm legal significance to
such terms as 'seaman,' ‘'vessel,'
*‘member[s] of a crew,' must come
to grief on the facts. These
terms have such a wide range of
meaning under the Jones Act as
interpreted in the courts, that,
except in rare cases, only a jury
or trier of facts can determine
their application in the circum-
stances of a particular case.
Offshore Company v. Robison, 266 F.2d 769,
779 (5th Cir. 1959). Thus has evolved the
general rule in this circuit that such
issues are sent to the jury:
-77-
(1) [I]£ there is evidence that
the injured workman was assigned
permanently to a vessel (includ-
ing special purpose structures
not usually employed as a means
of transport by water but design-
ed to float on water) or perform-
ed a substantial part of his work
on the vessel, and (2) if the ca-
pacity in which he was employed
or the duties which he performed
contributed to the function of
the vessel or to the accomplish-
ment of its mission, or to the
operation or welfare of the ves-
sel in terms of its maintenance
during its movement or during
anchorage for its future trips.
266 F.2d at 779. Because of the policy of
providing an expansive remedy for seamen,
submission of Jones Act claims to a jury
requires a very low evidentiary threshold;
even marginal claims are properly left for
jury determination. Barrios v. Louisiana
‘Construction Materials Company, 465 F.2d
1157, 1162 (5th Cir. 1972).
With this general approach in mind,
we consider the structure on which Leonard
was injured. The platform consisted of
four flat-deck barges. These barges were
-78-
;
-
&
*
.
.
‘
”
.
not self-propelled, and could be moved only
by the application of some external source
of power. Three of the barges were placed
end to end and lashed securely together.
According to the trial court, this three-
barge structure was moored "more or less
permanently" to the shore by separate steel
cables. The fourth barge, which served as
a crane platform and as an access ramp to
the other three barges, was located between
the shore and the remaining barges. This
fourth barge was connected to shore by a
wooden ramp. To permit the crane to ser-
vice each of the three outer barges, the
three-barge platform would occasionally be
untied and moved slightly forward or back-
ward until properly positioned.
This court has previously held that a
similar floating construction platform,
which was neither designed for navigation
nor engaged in navigation at the time of
the accident, was, as a matter of law, not
-79-
a vessel under the Jones Act. Cook v.
Belden Concrete Products, Inc., 472 F.2d
999 (5th Cir. 1973). In Cook, as in the
instant case, the barges were afloat, but
that fact alone was not determinative of
status. See also Blanchard v. Engine and
Gas Compressor Services, Inc., 575 F.2d
1140 (5th Cir. 1978). Because appellant's
proffered distinctions between Cook and the
instant case are unpersuasive, and because
we can find no material differences between
the two cases, we are compelled to uphold
the determination below that Leonard was
not injured on a vessel. Accordingly, sum-
mary judyment was properly granted on that
issue. Nonetheless, we note that Cook and
“i the instant case deviate from the
general practice permitting Jones Act
issues to be submitted to the jury, and
accordingly should be applied restrictively.
Appellant next contends that the re-
maining counts should have been tried by a
-80-
jury, rather than by the court. Appellant
concedes that his original complaint as-
serted only maritime claims, for which no
jury trial would have been available.
However, pointing to the pretrial order,
which mentions diversity as a possible
basis for jurisdiction, and to a brief
colloquy at trial :.1 which plaintiff re-
quested reconsideration of the denial of
the jury request, appellant asserts that
the court and defendant had adequate no-
tice of appellant's intention to abandon
the admiralty claims and proceed solely in
diversity, seeking recovery for negligence.
We need not speculate about possible jus-
tifications for appellant's indirect
attempts to provide notice rather than
filing a formal motion because, in any
event, there was no complete diversity be-
tween the parties. According to the com-
plaint, both Leonard and the defendant
Nichols were Louisiana residents. Thus,
=$i<
the trial court properly proceeded in ad-
miralty. Appellant's other arguments on
appeal are without merit and need not be
discussed.
AFFIRMED.
GODBOLD, Circuit Judge, dissenting:
I believe that whether the construc-
tion platform was a vessel was a jury issue
and not properly decided on summary judg-
ment as an issue of law.
The trial court and this court stand
on Cook v. Belden Concrete Products, Inc.,
472 F.2d 999 (CA5, 1973). The plaintiff
in Cook was working on a single barge moor-
ed to the dock by ropes and used as the
site for fabricating concrete barges.
ail fabrication the barge-platform was
moved from time to time along the dock to
pick up materials. Upon completion of
construction of a concrete barge the plat-
form would be towed a short distance into
deeper water for launching the newly built
=$7-
barge. Plaintiff Cook was a carpenter en-
gaged in erecting forms on the platform
preparatory to pouring concrete for a
barge under construction. The district
court granted summary judgment for the de-
fendant on the ground that the platform
was not a vessel.
The underpinning of Cook is the ana-
logy of the barge-platform to a dry dock
used as a site for shipbuilding and to the
plaintiff's activity thereon as a ship-
builder. In the present case four barges
floating in the Mississippi River were be-
ing used as a site to weld together pipes
into a completed pipeline and to transport
the pipeline to its proposed location, a
short distance away, and to lay it under
navigable waters of the Mississippi where
it would connect a fuel unloading point in
the river with Exxon's shore facility.
The platform on which plaintiff was
injured consisted of a "crane barge,"
-§8 3-
moored lengthwise along the bank and con-
nected to the bank by a ramp of boards and
dirt. Outward from the “crane barge" were
three other barges, lashed together end-to-
end in a three-barge string parallel to the
bank. Steel cables ran from the string of
barges to dolphins on the bank. The crane
on the shoreward barge was used for materi-
al handling, and this crane barge also was
the means of access to the string of barges
offshore. Actual work of welding the pipes
was done on the offshore barges. Several
times during fabrication the offshore
string of barges was moved so that the crane
on the shoreward barge could reach places
of work on the offshore barges.
1/The terms "platform" and "site" are
used as convenient shorthand words without
substantive significance. They convey
neither more nor less permanence and unity
to the four-barge operation than the facts
in.part.
It is not clear to me whether the out-
ward string of three barges, lashed together,
were connected in any manner to the crane
barge or simply moored offshore of its and
adjacent to it.
-84-
The work being done on the outward
barges, welding pipe, does not have the
same connexity to shore as does shipbuild-
ing - it can as well be done aboard a ship
as ashore. Once the pipeline had been
fabricated the string of offshore barges
was towed into deeper water, and the assem-
bled pipeline was slipped off into its des-
tined place underneath the navigable waters
of the Mississippi. The assembled pipeline
was ina traditional sense cargo, trans-
ported (alr :it a short distance) through
navigable waters to its destined location
underneath navigable waters. This trans-
portation function necessarily had to be
performed by a moving vessel. The barge
fabricated in Cook was not cargo in the
traditional sense, and the manner of launch-
ing it was a matter of convenience rather
than necessity.
Also the activity carried on by the
plaintiff and the manner in which he was
=§$~
injured distinguish this case from Cook.
Plaintiff was employed by the pipeline fab-
rication contractor and was in general
charge of the job being done by contract
with Exxon, Over a weekend eight Exxon
fuel barges moored along the exposed side
of the three-barge string. They tied up
to a dock nearby and also put two lines to
one or more of the offshore barges. When
plaintiff arrived on Monday he noted the
presence of the fuel barges and went
aboard the fabrication barge string. He
found that the steel cable running from one
of these offshore barges to a dolphin
ashore was unraveling and breaking. He
feared that the strain imposed by the fuel
jaatebaata and their weight, and the wash of
the current, would cause the line to break.
This was not the first time fuel
barges had tied up to the offshore string,
and *hose working on the fabrication barges
objected to this because it pulled the
-86-
fabrication barges away from the bank and
tended to break the lines tying them to
the bank. Also it caused the fabrication
barges to buffet and slam against each
other, which in turn dislocated and damaged
the pipes on board.
A tug was called to remove the fuel
barges. When the tug arrived it was sug-
gested to plaintiff that the two lines
from the fuel barges to the offshore string
be untied. While plaintiff was engaged in
untying one of these lines he was injured.
Thus the purpose of plaintiff's activity
at the moment of his injury involved dis-
engaging the fuel barges from their moor-
ing to the offshore string of barges
because the mooring exposed the offshore
barges to the perils of navigable water.
The chief peril from which plaintiff was
protecting the barges was the possibility
that the unraveling barge-to-shore cable
would break and the lashed-together string
a§F=
of barges would be carried away by the cur-
rent. Also he was protecting the barges
from a repetition of what had occurred in
the past, the barges being banged and buf-
feted together with the result of damage
to them and to the pipe stacked aboard.
Under these circumstances I think
: Cook is not controlling as a matter of law.
Under the low threshold to which the major-
ity opinion refers, the jury should have
determined whether plaintiff was injured
on a vessel.”
The defendant answers the conditions
and circumstances which I have described
with the disingenuous argument that the
trial court disregarded as not believable
plaintiff's testimony that an emergency
2/It is obvious that the majority are
not quite comfortable with the conclusion
they reach, since they say: "[(Wje note
that Cook and now the instant case deviate
from the general practice permitting Jones
Act issues to be submitted to the jury,
and accordingly should be applied restric-
tively.”
situation existed which caused him to cast
off the mooring line from fuel barges to
the floating barge string. The short an-
swer to this is, of course, that credibili-
ty is an issue for the jury and not for the
trial judge on summary judgment.
-89-
APPENDIX B
DENIAL
December 4, 1978
Dear Counsel:
This is to advise that an order has this
day been entered denying the petition( )
for rehearing, and no member of the panel
nor Judge in regular active service on the
Court having requested that the Court be
polled on rehearing en banc (Rule 35,
Federal Rules of Appellate Procedure;
Local Fifth Circuit Rule 16) the petition( )
for rehearing en banc has also been denied.
See Rule 41, Federal Rules of Appellate
Procedure for issuance and stay of the
' mandate.
EDWARD W. WADSWORTH
Clerk :
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CAPTION DELETED APPENDIX C
MINUTE ENTRY:
MARCH 31, 1976
WEST, J.
This matter is before the Court on the
motion of the defendant, Nichols Construc-
tion Corporation, and Fireman's Fund
Insurance Company for summary judgment on
the ground that this suit is not maintain-
able within the admiralty jurisdiction of
this Court. It is the contention of the
defendants that the barge on which the
plaintiff was working at the time of his
injury was not a “vessel in navigation"
and that therefore this case is not main-
tainable within the admiralty jurisdiction
of the Court. The structure on which the
plaintiff was allegedly injured was an
assembly barge comprised of three barges
lashed together, end to end, by steel
cables and moored, more or less permanent-
ly, to the river bank by separate cables.
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There was a fourth barge anchored between
the construction barge assembly and the
shore to serve as a platform for a crane
and as an access ramp to and from the con-
struction barge. This assembly barge was
being used by Nichols Construction Corpora-
tion while constructing a pipeline assembly
for Exxon Corporation to facilitate the
loading and unloading of petroleum products
at the Exxon refinery. These barges were
not in navigation nor were they designed
for transportation of passengers, cargo or
equipment from place to place across navi-
gable waters, It is true that they were,
putiodiesliiy, aoeet during the course of
construction to facilitate the crane's
access to the different parts of the assem-
bly platform. This was accomplished simply
by loosening the mooring cables secured to
the shore dolphins, and then pushing the
total platform up river with an Exxon tug
and then readjusting and tightening the
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mooring cables. These moves were performed,
when necessary, by Nichols personnel. This
moving of the barge assembly in no way
amounted to "vessels in navigation." See
Cook v. Belden Concrete Products, Inc.,
472 F.2d 999 (CA 5 - 1973). Thus, this
barge assembly not being a “vessel in navi-
gation" the plaintiff cannot maintain this
claim under the Jones Act or under the doc-
trine of unseaworthiness. Insofar as the
plaintiff's claims are based upon the Jones
Act or unseaworthiness, they must be dis-
missed. However, the plaintiff also al-
leges general maritime negligence as a
cause of his injury. As this record now
stands, the Court cannot say that there
Clearly is a lack of significant relation-
ship between the alleged tort and tradi-
tional maritime activity. At the present
time, this is a factual issue which pre-
vents summary disposition. Therefore, for
these reasons:
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IT IS ORDERED that the motion of the
defendants for summary judgment insofar as
plaintiff's claim is based upon the Jones
Act and the doctrine of unseaworthiness
be, and it is hereby GRANTED, and plain-
tiff's case as to those two claims is
DISMISSED, reserving, however, to the
plaintiff his right to pursue his claim
insofar as it is based upon an allegation
of general maritime negligence.
E. Gordon West
UNITED STATES
DISTRICT JUDGE
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APPENDIX D
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
These remarks will be considered my
findings of facts and conclusions of law,
reserving to the Court the right to redo
them if it wishes to do so, or if it be-
comes necessary to do so without in any
way changing the general content or mean-
ing of the findings of facts and conclu-
sions of law.
This case involves an accident which
occurred on -- allegedly occurred on
August 26, 1974. When this suit was ori-
ginally filed, the plaintiff filed suit
against Exxon Corporation and also against
Nichols Construction Company and certain
insurers of these parties, and alleged in
the original complaint that suit was
brought under maritime law and that suit
was brought under the Jones Act, also
brought for unseaworthiness and general
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maritime law.
Later on, in the pre-trial order,
while in the beginning in the pretrial
order it again reiterates the fact that
the case is founded in maritime law, there
js later on a vague jurisdictional alle-
gation that the suit is also brought as a
diversity suit because of the fact that
plaintiff has sued both Exxon and Nichols
Construction Company and alleged affirma~
tively that Nichols Construction Company
was a citizen of the State of Louisiana,
thus destroying any possible diversity
that could have existed. So the case was
not considered by the Court to be a diver-
sity case.
In some of the prior proceedings,
the court granted motions to dismiss the
Jones Act claim and the unseaworthiness
claim for written reasons that were placed
in the record, reserving to the plaintiff
the right to proceed with his action
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against one or both of the parties based
entirely on maritime negligence.
Thereafter, motion of the defendant
for a denial of the request by plaintiff
for trial by jury was granted on the
ground of the court already having found
that there was no diversity involved,
having found that there was no Jones Act
involved, having found that the only basis
for the claim -- that the only possible
claim could be maritime negligence; and
maritime negligence did not permit or re-
quire trial by jury. Consequently the
case proceeded to trial before the court
without the intervention of a jury on the
basis of alleged maritime negligence.
Now, the statement of the accident in
this case is very simple to make, because
the best evidence, of course, of the way
the accident happened would be the plain-
tiff's own version rather than having to
speculate from evidence presented by others
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who testified for the plaintiff, but who
readily admitted that they did not see the
accident,
Plaintiff's accident can be summed up
in this way: Plaintiff was attempting to
cast off a line that originated with the
oil barges that were tied up to the pipe
or work barges, the eye of the line being
over a cavil or cleat located on the work
barge; that as the plaintiff bent down to
disengage the eye of the line from the
cleat or the cavil, and attempted to cast
it off the work barge, he felt a burning
sensation in his back which apparently re-
sulted or was the manifestation of the in-
jury about which he now complains.
While there has been some testimony
in this case concerning sand or some such
substance on the deck of the work barge,
the Court considers this to be totally and
completely inconsequential for two reasons:
first of all the plaintiff's version of
o§t.
the accident certainly in no way attributes
the pain or catch in his back to any sand
on the deck, he attributes it to the act
of bending over and picking up or lifting
off or casting off of the line in question.
Secondly, there is ample testimony in the
record that the so-called sand came off
these concrete coated pipes and was a nor-
mal customary condition on the barge and
not one which was causing anyone any
trouble,
There has been some testimony in the
record that all of a sudden, there was a
dire extreme emergency that arose; that
everyone turned and ran from the vessel,
the barge, the work barge. Of course, the
Court places no credence in that testimony
and simply doesn't believe it.
Plaintiff has been forthright with
his testimony that the reason for the work
stoppage that morning was not the odor of
gas nor was it any visible leakage of gas,
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but was solely and entirely because of bad
weather. It rained and they had to quit
working. This is borne out, of course, by
the fact that the plaintiff did have in
his possession a "hot work" permit which
had been issued some time prior to eight
o'clock that morning.
The court discounts as not worthy of
belief the testimony in this case to the
effect that there was such an odor of gas
and such a visible leakage of fuel around
the area that everybody had to, in essence,
run for their lives. The court simply does
not believe that testimony.
The source of that testimony further
makes it unbelievable because these same
witnesses testified that these barges,
fuel barges, remained tied up to the work
barges for apparently the better part of
the day of August 26, 1974, and that ob-
viously was not so. The log of the vessel
Exxon Pennsylvania shows the removal of
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- those barges commencing some time around
eight A.M. and being completed some time
around nine A.M. that morning; and this
fact is borne out by the testimony of the
plaintiff himself, who says that his acci-
dent occurred around eight o'clock, as the
tug Exxon Pennsylvania was approaching the
fuel barges and in answer to the Court's
question, stated that they were removed
completely from the site by approximately
nine o'clock in the morning. I take that
to be the corroborated and proper testi-
mony in the case.
So this brings us down to the question
of what caused the accident and by what
negligence and by whose negligence, if any,
did this accident occur? The only possible
negligence that this Court can see -- or
rather to put it differently -- the only
negligence that plaintiff claims by evi-
dence to have occurred in this case, seems
to be the tying up of the fuel barges to
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the Nichols Construction Company work
barges or pipe barges. There is evidence
in the case to indicate that Nichols did
not want barges tied up to their work
barges, that this has happened before,
that they had been requested not to do so
and that in this instance there is at
least some evidence that work on pipe
barges was not to proceed as ee as these
barges were tied up to these work barges.
Now, there is no evidence, as I recall, in
this case to indicate that Exxon was in any
way negligent by permitting barges to tie
up, if they permitted it -- to tie up to
these barges. This accident did not occur
because the fuel barges were tied up to the
work barges, except in the very remotest
sense that if they had not been there,
there would have been no lines to cast off;
but this certainly can't be considered as
aproximate cause or a cause in fact of
this accident,
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The evidence in this case is clear,
both from the medical history of plaintiff,
and from plaintiff's own testimony, that he
had sustained two prior back injuries quite
some time ago, one in 1963 and one in 1968,
both of which resulted in surgery apparent-
ly for correction of herniated disks; and
there is no doubt from the evidence, des-
pite the fact that the plaintiff was able
to do certain work, that he did have what
is referred to as an unstable back. An
unstable back, of course, is more suscepti-
ble to injury than is a perfectly sound
back and that fact is amply indicated and
borne out by what happened in this case.
Now, some of the evidence in this
case was introduced, I'm sure, for the pur-
pose of trying to establish the fact that
this accident was the result of an emer-
gency; that that emergency was caused by
the unravelling or fraying of a mooring
line that secured the upriver end of the
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pipe or work barges to a dead-man on shore,
The evidence was apparently designed to
show that there was some unravelling of
this line and that the plaintiff saw it
and felt the necessity of casting off the
tied up fuel barges before the tug Exxon
Pennsylvania got too close alongside be-
cause he feared that the approach of the
Pennsylvania might cause currents that
would cause the fuel barges to place an
undue strain on the pipe barges' mooring
lines and that because he felt that this
might happen, that he thought it wise to
cast off the line tying together the pipe
barges and the fuel barges.
Now, this may well have been the rea-
son for the attempt to cast off these lines,
and the Court has no reason to doubt that
this was the motivation for the plaintiff
to attempt to cast these lines off. But
according to the plaintiff's own testimony,
and I quote, “there was no emergency, it
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ee + ew
could have happened to anyone; maybe it
was just a freak accident."
I dare say that whether the mooring
line was fraying or not, the mere fact
that the barges had to be moved would have
required these lines to have been cast off,
and I dare say that had the plaintiff
been there as he was, he would have cast
these lines off fo that the tug could re-
move the fuel barges, because after all
the plaintiff was the supervisor and was
charged with the operation of the barges
and they did not like to work with the
barges attached -- the fuel barges attach-
ed, that is.
And I think it could probably be con-
cluded that had it happened that way, the
very same result would have occurred that
did, in fact, occur, that is that when the
plaintiff bent down to cast off this moor-
ing line, he hurt his back. I fail to see
the evidence in this case that could in
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any way be considered to constitute negli-
gence on the part of anyone which could be
considered a proximate cause or a cause in
fact, or any other kind of cause of this
accident.
I don't believe the plaintiff was
negligent. I believe that the plaintiff
was doing what anyone else in his position
would have done, whether the line was fray-
ing or whether it was not fraying. I be-
lieve that the plaintiff unfortunately had
a bad back and when he attempted to cast
off this line, he strained his back. This
is not an uncommon occurrence. I know of
an instance not long ago, where a person
with an unstable back simply bent over to
tee off a golf ball and they had to carry
him off the golf course and he was in bed
for goodness knows how long. So it's not
an uncommon occurrence for a person with a
bad back to aggravate it and have a problem
by the slightest unuSual motion. The motion
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through which the plaintiff went to per-
form this particular task was certainly
not the result of negligence on the part
of anyone, including himself.
I am convinced that the evidence in
this case does not warrant a finding of
negligence on the part of Exxon Corporation
nor on the part of Nichols Construction
Corporation. I find that there is no evi-
dence in this case to indicate any negli-
gence on the part of the plaintiff. I
find that plaintiff's injured back resulted
from his normal and usual work and opera-
tion, without the intervention of negli-
gence on the part of anyone.
And, of course, as a matter of law,
absent a showing by a preponderance of evi-
dence that there is negligence on the part
of the defendant, the defendant may not,
of course, be cast in judgment.
It is therefore the judgment of this
Court that there be judgment herein in
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favor of both defendants, all defendants,
including the insurance companies made de-
fendants, and against the plaintiff, dis-
missing the suit in its entirety at
plaintiff's costs. }
That will constitute the findings of
fact and conclusions of law, gentlemen,
and as I say, if there is need -- if the
court feels the need to redo them in any
way, it will do so -- it reserves the
right to do so; but it will not necessari-
ly change them; and anyone that needs
those findings and conclesions for the pur-
pose of appeal or any other purpose, may
get them by way of a transcript from the
Court Reporter,
All right, gentlemen, Court will be
at recess.
(Whereupon Court adjourned for the
day.)
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CAPTION DELETED APPENDIX E
JUDGMENT
This cause came before the Court for
trial, Honorable E. Gordon West, District
Judge, presiding, and the issues having
been heard and the Court having duly ren-
dered a decision for oral reasons assigned,
IT IS ORDERED AND ADJUDGED that judg-
ment be entered herein in favor of defen-
dants, Exxon Corporation, Nichols Construc-
tion Corporation, and Fireman's Fund
Insurance Company, and against plaintiff,
Wesley J. Leonard, dismissing plaintiff's
suit at his cost.
Baton Rouge, Louisiana, June 15, 1976
Charles H. Banta
CLERK
APPROVED:
E. Gordon West
UNITED STATES DISTRICT JUDGE
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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.