Petition — Diamond M Drilling Corp. v. Tarlton

+S 2 ~ 1 2 76 sane yn us. |

NO JAN SI 1983

ei.oyvsbiOr no i STEVAS,

~~ GLERK

aon ES

Supreme Court of the United States

OCTOBER TERM, 1982

DIAMOND M DRILLING CORPORATION

Petitioner

VERSUS

DAVID R. TARLTON AND

EXXON CORPORATION

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

PHILIP E. HENDERSON

HENDERSON, HANEMANN & MORRIS

300 Lafayette Street

Houma, Louisiana 70360

Telephone: 504/868-2081

Attorneys for Petitioner,

Diamond M Drilling Corp.

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTIONS PRESENTED FOR REVIEW

1. When the trial court enters an original judgment

and then a superceding judgment— whether, as held by the

court below, the ten day time limitation for post-judgment

relief at the trial court level must run from the original

judgment rather than the superceding judgment despite

the fact that the superceding judgment makes a change of

substance which revised legal obligations of the litigants?

2. Whether it is proper for an appellate court to take

judicial notice of the appropriateness or inappropriateness

of a safety practice in a similar but factually

distinguishable circumstance and apply that ‘‘fact’”’ (the

appropriateness vel non of the safety practice) to ad-

judicate the liabilities in the case before it where counsel

are not given the opportunity to cross examine or present

contrary evidence relative to the appropriateness of the

safety practice in the fact situation borrowed from by the

appellate court?

3. Whether a jury charge with respect to the issue of

damages is proper where the sole reference to inflation was

“you may also take into consideration the decreased buy-

ing power of the dollar or what is commonly called infla-

tion’’, no guidelines etc. relative to the consideration of in-

flation being given?

ii

LIST OF PARTIES

Pursuant to the Supreme Court rule 21(b) and 28.1,

the counsel for petitioner certifies that all parties to this

proceeding are:

Diamond M Drilling Corporation

Exxon Corporation

David R. Tarlton

Goldean Meadow Enterprises, Inc.

Eserman Offshore Services

Coastal Boat Operators, Inc.

Diamond M Drilling Corporation is a wholly owned

subsidiary of Kaneb Services, Inc. Corporations related to

Kaneb Services, Inc. and/or Diamond M Drilling Corpora-

tion in a subsidiary, affiliate or parent relationship are:

PLT Engineering, Inc.

Kaneb Pipe Line Company

Interstate Coal—Executive

Stansbury & Company, Inc.

The Rein Company

PLT (BV)

PLT (PTY, LTD.)

Texas Energy Services, Inc.

Mustang Coal, Inc.

Phillips & Jordan, Inc.

Four G Investment Corporation

Interstate Coal Company, Inc.

Mountain Clay, INc.

Leeco, Inc.

Kaneb Coal Division

Eagle Creek Resources, Inc.

Ikerd-Bandy Company, Inc.

PLT (NZ)

Randall Fuel Company, Inc.

Weaver Oil and Gas, Australia

Perthshire Petroleum, Ltd.

Weaver Oil and Gas Corporation

Mesozoic Resources, Ltd.

Alpine Coal, Inc.

Ken-Coal, Inc.

United States Coal Company

Intercomp Resource Development and Engineer-

ing, Inc.

DFW Business Forms & Computer Supplies

American Oilfield Products, Inc.

Highland Coal, Inc.

Diamond M Company

Mechlenburg Coal & Mining, Inc.

Grove Coal Company

Welsh Drilling & Service, Inc.

Houston Rental Equipment, Inc.

Farmer Coal Company

Diamex Company

Consolidation (PLT & Subsidiaries)

PLT (Offshore Ltd.)

Gillette Minerals

Enhanced Energy Resources, Inc.

OTEK Equipment Manufacturing, Inc.

Kem Coal Company

Typo Mining

iv

Aceco, Inc.

EER—Brookwood Project

Kaneb Investment Corporation

Kaon Surety and Indemnity Company

Security, Incorporated

Polls Creek

Bituminous-Laurel Mining, Inc.

Energy Storage Terminals, Inc.

Vermont Wood Products, Inc.

Petroleum Operating and Support Services, Inc.

(Houston)

Petroleum Operating and Support Services, Inc.

(New Orleans Operations)

Integrated Graphic Services

Coal Consolidated

Vv

TABLE OF CONTENTS

Page

Questions Presented For Review.........ssssssssssesrerseenseeenenees i

List Of Parties............::cccsscccsssssscssreeesseesssseesssrreseessessssesssenneees ii

Table of Contents. .........:cssscsccssseeseesreessesseseerssresereessssnnessnenes v

Table of Authorities............ccccsceseeseeeesersereseeeseeassneennesnnes vii

Opinions Below..........ssssssssssssesssneenensenennensansarsnsenensensnsensanensenss 1

Statement of Jurisdictional Grounds............0sseeeserereneerers 1

Federal Rules of Civil Procedure Involved............::++++s+s+s+++ 2

Statement of the Case.........ssecseeseeseeeeeeserserserreeeesensnersrsenees 3

Reasons for Granting the Writ...........sssssssesereeesensnsnreres 7

The writ should be granted because the appellate

decision (1) abolishes the right of the litigants to

post-judgment relief in the trial court in certain

situations, a right long recognized by this court

to be important to litigants; the rule should be, as

held in other decisions, that when there is a

superceding judgment the second judgment

begins the running of the ten day limitation for

seeking post-judgment relief at the trial level if it

revised the obligations of the litigants (2) misuses

judicial notice of facts at the appellate level; this

court should not only correct the error but also

set out the criteria for judicial notice at the ap-

pellate level and (3) pronounced as appropriate

the jury instruction with respect to damages in

which the jury was told simply, with no guide-

lines being given, that it could take inflation into

consideration; whether a jury in a maritime case

should be told it may consider inflation, and if so,

the guidelines for such instructions are in today’s

state of the jurisprudence issues which should be

resolved by this court. The circuits are in conflict

on this issue.

a a de serinsapeneionh 19

a os scssasesenebnntonanenad 19

Appendix A—Opinion of the Court of Appeals................ A-l

Appendix B—Order of the Court of Appeals

Denying Petition for Rehearing.....................:cc0000+ A-22

vii

TABLE OF AUTHORITIES

Page

Federal Rule of Civil Procedure 59.....c..cccsccccssssssssoosssseecccss.., 2

Cases:

Byrd v. Reederi,

GSS F.2d 260, 6 Cir. 19B2.....0.cccscecccessesccesseescesoesosesee.-es,, 17

Cornist v. Richland Parish School Board,

Fee A POs MOF seisnssicisicssessbvisinceinccissssocsssessicee, 0)

Culver v. Slater Boat Co.,

688 F.2d 280 (5 Cir. 1982).........csccssssssecsessessscssecsceeseseese, 17

Hebron v. Union Oil of Calif,

634 F.2d 245 (5 Cir. 1981).........sccscssssesssessessssssseoesssesossss,, 6

Johnson v. Penrod Drilling Co.,

510 F.2d 234 (5 Cir. 1975); cert. denied,

423 U.S. 839, 96 S.Ct. 68, 46 L.Ed. 2d 58...cccccc.0......... 16

Pfeifer v. Jones & Laughlin Steel Corp.,

678 F.2d 453 (3 Cir. 1982).........csccscsscsessessessesoseseseeeesss,, 18

U.S. v. Indrelunas,

411 U.S. 216, 217, 93 Ct. 1562, 1563,

36 L.Ed. 2d 202 (1973)........e.cssssecsesssssecsessessessesseesseseesesse, 9

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

DIAMOND M DRILLING CORPORATION

Petitioner

VERSUS

DAVID R. TARLTON AND

EXXON CORPORATION

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals is reported at __

F.2d __ (5th Cir. 1982) and is reproduced as Appendix A

and the order of the Fifth Circuit denying the petition for

rehearing is reproduced as Appendix B.

STATEMENT OF JURISDICTIONAL GROUNDS

Judgment was rendered on September 27, 1982 by

the United States Court of Appeals for the Fifth Circuit.

Petition for rehearing was timely filed and the order deny-

ing Diamond M Drilling Company’s request for rehearing

2

was entered on November 12, 1982. This petition for writ of

certiorari was filed within 90 days of the date of the denial

of Rehearing.

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1254(1).

FEDERAL RULE OF CIVIL PROCEDURE INVOLVED

In pertinent part rule 59 of the Federal Rule of Civil

Procedure provides:

(a) GROUNDS. A new trial may be granted to all

or any of the parties and on all or part of the

issues (1) in an action in which there has been a

trial by jury, for any of the reasons for which new

trials have heretofore been granted in actions at

law in the courts of the United States;....

(b) TIME FOR MOTION. A motion for a new

trial shall be served not later than 10 days after

the entry of the judgment...

(d) ON INITIATIVE OF COURT. Not later than

10 days after entry of judgment the court of its

own initiative may order a new trial for any

reason for which it might have granted a new trial

on motion of a party. After giving the parties

notice and an opportunity to be heard on the mat-

ter, the court may grant a motion for a new trial,

timely served, for a reason not stated in the mo-

tion. In either case, the court shall specify in the

order the grounds therefor...

3

STATEMENT OF THE CASE

David Tarlton was injured while serving as captain

of the M/V BECT I, a vessel under charter to Exxon which

was used to service certain Exxon fixed platforms which

were located in the outer continental shelf off of the coast

of Louisiana. At the time, the seas were running six to

eight feet. Notwithstanding the substantial seas the plat-

form crane operator, an employee of Diamond M Drilling

Company, loaded drill collars (heavy pipe approximately

thirty feet in length by six inches in diameter) onto the

deck of the BECT I. Tarlton was not aware that the drill

collars were being loaded onto his boat until after they

were aboard. While attempting to assist the deck personnel

in securing the drill collars, which were rolling about the

deck, Tarlton was injured by the rolling drill collars.

The claim asserted against Diamond M was that its

employee crane operator should not have lowered the

tubular material (the drill collars) onto the boat, consider-

ing the height of the seas. The claims against Exxon were

that it on prior occasions dispatched supply boats of the

size of the BECT I to receive drill collars in seas of the

same height and that the Exxon representatives on the

platform on prior occasions had always condoned the

loading, and these prior! practices were factors influencing

I The prior practcies were what was at issue; on the night of the ac-

cident the Exxon representative on the platform was asleep and had no

knowledge of the then occurring activities. The prior practices were ad-

mitted by the Exxon marine transportation superintendent (tr.965,966)

and by the Exxon representative on the platform (tr.1020). The Diamond

M crane operator, the Exxon marine transportation superintendent

4

the crane operator to lower the drill collars on the occasion

of the accident. Exxon was the ultimate authority on the

job; all companies involved were working under contract to

Exxon.

The case was tried to a jury, which returned a special

verdict finding Diamond M and Exxon liable to Tarlton,

with fault percentages of 95% and 5%, respectively. The

jury awarded Tarlton $450,000.00 in damages. The jury

had been charged that in assessing damages it may take in-

flation into consideration.

The plaintiff's employer and the boat operator were

additional defendants and were cross defendants. The jury

exonerated them from negligence; the trial judge, rather

than the jury, was to rule upon the contractual matters

which were the bases of the cross claims relative to them.

Exxon and Diamond M had entered a stipulation on

the record, based upon the contractual arrangement” be-

tween them that if Diamond M and Exxon were each found

at fault Exxon would pay the entirety of any portion

of the award against Diamond M.

(Footnote 1 continued)

and the Exxon representative on the platform admitted that the practice

was unsafe. (tr. 64-65, 965-966, 1004-1005).

2 The contract provided that Exxon would indemnify Diamond M

for all claims by employees of Exxon or its subcontractors unless Dia-

mond M was solely at fault; a similar indemnity ran in favor of Exxon for

claims by Diamond M employees or employees of Diamond M subcon-

tractors, Exxon had the responsibility of providing marine transporta-

tion to the platform, and thus the employees on the BECT I were

employees of Exxon subcontractors.

5

The trial judge first entered judgment relative to the

main demand only; this judgment was in accordance with

the verdict.

Within 10 days of entry of this judgment Exxon

moved for judgment notwithstanding the verdict and

sought a remittitur. Under the stipulation between it and

Diamond M, Exxon was liable for the entire verdict.

The hearing on the motion for judgment n.o.v. and

remittitur was held more than ten days after the entry of

the judgment relative to the issues on the main demand.

Following the hearing on the motions the trial judge

granted Exxon’s motion for judgment n.o.v., totally ex-

onerating Exxon, and simultaneously, sua sponte, granted

a new trial unless the plaintiff remits $75,000.00 of the

award, and entered a judgment? in which the cross claims

as well as the main demand were treated.

Diamond M appealed. The plaintiff also appealed

contending that the trial judge erred in granting the remit-

titur.4

* Clearly this judgment rather than the earlier judgment entered

on the main demand only is the “final judgment” for appeal purposes,

but as the Court of Appeals pointed out in its opinion (see appendix A,) a

judgment which will start the 10 day post trial relief time limit running

does not, under existing jurisprudence, have to be a “final judgment.”

However, as argued in this petition, the time limit should run anew if

there is a superceding judgment revising the substance of the first judg-

ment.

4 There were also appeals relative to the cross claims involving the

other defendants; these are not at issue now.

The Court of Appeals affirmed the trial judge's judg-

ment n.o.v, exonerating Exxon, To do so it took judicial

notice of a statement of fact embodied in a holding of

another case—a case which is critically different than the

instant case, In the instant case the Court of Appeals held

“a platform owner is not negligent for dispatching a supply

vessel in six to eight foot seas, seas admittedly rough but

not necessarily dangerous for loading or unloading’’, citing

Hebron v, Union Oil of Calif, 634 F2d 245 (5 Cir, 1981)—

but the material loaded in the Hebron case was a pre

fabricated '‘A-frame"’, not tubular goods which would like-

ly roll back and forth on the small boats’ deck prior to its

being secured.

The Court of Appeals approved the jury charge

relative to inflation, With no guidelines being given, the

jury was simply told that it could take inflation into con-

sideration.

With respect to the remittitur the Court of Appeals

held that the granting of the $75,000.00 remittitur was er-

ror because it was untimely. The appeal court held that a

motion for remittitur by Diamond M or the trial judge's

granting of the remittitur sua sponte had to have occurred

within ten days of the first judgment in order to have been

timely, and accordingly vacated the granting of the remit-

titur.

A petition for rehearing was timely filed by Diamond

M and was denied on November 12, | #62.

7

REASONS FOR GRANTING THE WRIT

It is respectfully submitted that the writ should be

granted because the appellate decision (1) abolishes the

right of the litigants to post-judgment relief in the trial

court in certain situations, a right long recognized by this

court to be important to litigants; the rule should be, as

held in other decisions, that when there is a superceding

judgment the second judgment begins the running of the

ten day limitation for seeking post-judgment relief at the

trial level if it revised the legal rights and obligations of the

litigants (2) misuses judicial notice of facts at the appellate

level; this court should not only correct the error but also

set out the criteria for judicial notice at the appellate level

and (3) pronounced as appropriate the jury instruction with

respect to inflation in which the jury was told simply, ‘You

may also take into consideration the decreased purchasing

power of the dollar, or what is commonly called inflation.”’;

whether a jury in a maritime case should be told it may

consider inflation, and if so, the guidelines for such instruc-

tions are in today's state of the jurisprudence issues which

should be resolved by this court. The circuits are in conflict

on this issue.

The matters above will be treated in this petition in

the order set forth above.

POST-JUDGMENT RELIEF AT THE TRIAL LEVEL

If a superceding judgment is entered adverse to the

originally successful litigant that litigant should have an

opportunity for relief by the trial judge.

Rule 59 of the Federal Rules of Civil Procedure pro-

vides that ‘not later than ten days after entry of the judg-

ment’ a party may move for post-judgment relief or the

trial judge may grant it on his own initiative, sua sponte.

In the instant case the appellate court abolished the

originally successful litigant's right to relief from the

superceding judgment; the court below held that the ten

day period for post-judgment relief from the district court

begins to run at the entry of the first judgment regardless

of whether the second judgment, entered more than ten

days after the original judgment, reversed the liability.

That is precisely what happened in the instant case,

The record stipulation between defendants Diamond

M and Exxon is that if Exxon is decreed to be at fault to

any degree, Exxon is to pay the entirety of the judgment.

The first judgment was entered upon the jury verdict that

Exxon was negligent and liable in the amount of 5%; the

judgment accordingly was entirely favorable to Diamond

M. Under the judgment Diamond M was required to pay

nothing and the entire liability was to be borne by Exxon.

Exxon within ten days of that original judgment filed mo-

tions for post-trial relief including remittitur. More than

ten days after the original judgment the judge entered a

superceding judgment and concurrently, sua sponte,

entered an order granting a new trial unless the plaintiff

9

remits $75,000.00 of the jury award. In the superceding

judgment Exxon’s liability was removed and the entirety

of the liability placed on Diamond M such that instead of

being totally exonerated, Diamond M was, under the terms

of the superceding judgment, totally liable. Yet the ap-

pellate court held that Diamond M's opportunity for post

trial relief (the $75,000.00 remittitur) had expired before

the judgment adverse to it was rendered! Accordingly the

court below held that the sua sponte remittitur which was

entered concurrently with the superceding judgment was

untimely because it was not within ten days of the original

judgment.

Rule 59 of the Federal Rules, the rule setting forth

the rights of litigants for post-judgment relief in the trial

court, contains important rights, rights which must not be

abolished.

The right to post-judgment relief at the trial court

level is of importance and concern to every litigant in

Federal Court. (See U.S. v. Indrelunas, 411 U.S. 216, 217,

93 Ct. 1562, 1563, 36 L.Ed. 2d 202 (1973)).

In a case treating the issues as to whether the ten

day period should begin to run at the entry of the

superceding judgment the court in Cornist v. Richland

Parish School Board 479 Fd.2 37 (5 Cir. 1973) ruled:

“The District Judge on May 1, 1972 signed the

new judgment and wrote in “amended” as re-

quested. The new judgment ordered reinstate-

10

ment of plaintiffs as before, but omitted, among

other things, the provision quoted above relating

to Sidney Perkins and instead simply provided in

place of the above quoted excerpt from the judg-

ment the following:

‘{A]jll other issues were taken under advisement.’

Richland filed its Motion for New Trial on May

10, 1972. Whether it was timely and within the

ten day time limit specified by Rule 59(b), Federal

Rules of Civil Procedure depends upon the ques-

tion whether the May 1 Amended Judgment was

the judgment contemplated by that subsection.

On July 20, 1972 the District Judge denied the

Motion for New Trial ‘having been filed too late’

and determined that the April 20 judgment was

the final judgment of the Court.

[1] The Supreme Court said in United States v.

Indrelunas, 411 U.S. 216, 217, 93 S.Ct. 1562,

1563, 36 L.Ed. 2d 202 (1973), a related case, that a

‘conflict on an issue such as this is of importance

and concern to every litigant in a federal court,

since, as this case makes clear, the timeliness of

appeals, as well as the timeliness of post-trial mo-

tions, may turn on the question of when judg-

ment is entered’. To decide when judgment was

entered in this case insofar as Rule 59(b) purposes

are concerned, we must refer to a general rule

enunciated by a long line of judicial authority,

that the second judgment prevails and begins the

running of the 10-day limitation, if it is a

superceding judgment making a change of

substance which ‘disturbed or revised legal rights

and obligations’. Federal Trade Comm'n v.

Minneapolis-Honeywell Regulator Co., 344 U.S.

206, 211-212, 73 S.Ct. 245, 248-249, 97 L.Ed. 245

(1952). See Federal Power Comm’n v. Idaho

Power Co., 344 U.S. 17, 19-22, 73 S.Ct. 85,86-87,

11

97 L.Ed. 15 (1952); Zimmern v. United States,

298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118 (1936).

However, if the Court does no more in the second

judgment than make a clerical change, such as

correct the names of parties or dates, the time for

filing motions does not start to run from entry of

the second judgment, but rather runs from date

of the first judgment. See Department of Bank-

ing v. Pink, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed.

254 (1942); United States v. 1,431.80 Acres of

Land, 8 Cir., 1972, 466 F.2d 820; Albers v. Gant, 5

Cir. 1970, 435 F.2d 146; Lieberman v. Gulf Oil

Corp., 2Cir., 1963, 315 F.2d 403.

It is respectfully submitted that this court should

overturn the precedent for erosion of litigants’ rights to

post-judgment relief at the trial court level, and should

grant the writ.

JUDICIAL NOTICE AT THE APPELLATE LEVEL

In the instant case there was misuse of judicial

notice of facts at the appellate level. The court hinged its

decision on its judicial notice of ‘fact’ the contrary of

which was established in the trial and admitted by the in-

terested litigants. That the Appellate court was going to

judicially notice the ‘‘fact’’ was a surprise to counsel. The

Appellate Court’s conclusion that the ‘‘fact’’ is in-

disputable was based on a misapprehension as will be seen

below. It is respectfully submitted that this court should

reverse the decision and set out the proper criteria for

judicial notice of facts at the appellate level.

12

The court below, with respect to the key issue of

whether or not the jury could have found Exxon 5%

negligent, stated:

“Diamond M maintains that Exxon represen-

tatives previously had condoned loading vessels

in six to eight foot seas, a practice cited as

negligent. Although this proposition bears some

surface appeal, it fades upon closer examination.

As we held in Hebron v. Union Oil Co. of Calif,

634 F.2d 245 (5th Cir. 1981), a platform owner is

not negligent for dispatching a supply vessel in

six to eight foot seas, seas admittedly rough but

not necessarily dangerous for loading or

unloading. Such activity is not at all unusual at

the myriad offshore platforms in the gulf.”’

The fact situation in the instant case was critically

different from the situation in the case of Hebron v. Union,

the case in which the court held, as indicated above, that

the dispatching of a supply vessel in six to eight foot seas

is not necessarily dangerous. The critical difference is that

the cargo at issue in the instant case was tubular such that

it would likely roll from side to side on the pitching vessel

and thereby be far more dangerous than something that

was not tubular and would not constantly roll the width of

the vessel. The cargo in the Hebron case was a

prefabricated A-frame whereas the cargo in the instant

case was tubular i.e., drill collars (which are heavy pipes).

The experts consulted and questioned in the instant

case stated that six to eight foot seas while rough, are not

too dangerous to handle non tubular goods (their state-

13

ments being perfectly consistent with the court's

“holding” in Hebron), but they drew a definite distinction

when the cargo was to be tubular such as drill pipe or drill

collars. This distinction is precisely the reason why the

undersigned in questioning the Exxon experts always was

careful to use the words ‘tubular goods” or ‘drill collars”

in his questions relative to whether the practice was un-

necessarily dangerous! With reference being made to

tubular goods or “drill collars’ the Exxon personnel

themselves admitted that the practice was unsafe!

The jury listened to the evidence. The jury caught

the distinction between tubular goods and non-tubular

goods.

If some expert or other “‘pronouncer’” would have

said to the jury that Exxon could not be negligent for in-

stigating on a regular basis procedures requiring the handl-

ing of tubular goods in six to eight foot seas because it is

not necessarily negligent to send prefabricated A-frames in

six to eight foot seas for handling the undersigned in cross

examination and in closing arguments would have made

short work of such experts or ‘“‘other pronouncer” as would

the alert jurors in their deliberations.

In fact, if, as the lower court concluded from the A-

° Stevedoring operations in ports, such as the ports of New York,

Philadelphia, New Orleans, etc., ae always conducted in the calmest of

waters. Imagine the hazards in conducting stevedoring operations on

small boats in waters which cause them to roll from side to side and go

up and down—particularly when the cargo is heavy and will roll.

14

Frame case (the Hebron case), it is not negligent to load

tubular goods in six to eight foot seas—then Diamond M

did nothing wrong (the only negligence attributable to Dia-

mond M is its crane operator's lowering of tubular goods

on the vessel in six to eight foot seas) and the trial judge

should have directed a verdict in Diamond M’s favor. It is

only because tubular goods are different from other type of

goods that liability was visited!

The simple fact is that seas which are too rough for a

deck crew to be handling tubular goods may not necessari-

ly be too rough for a deck crew to handle non tubular

goods, such as a prefabricated A-frame which will not con-

stantly roll from side to side. The accident at issue occur-

red when the tubular goods were rolling from one side of

the pitching boat to the other side—back and forth. The

other cargo which had been loaded onto the boat in the ins-

tant case did not cause a problem and was readily accepted

by the captain—-the tubular goods were a different story,

by everybody’s testimony.

The issue before the jury was simply whether

Exxon’s prior consistent practice of regularly sending

vesseis the size of the BECT I to receive tubular goods in

six to eight foot seas constituted negligence causally

related to plaintiff's injury. Both the Exxon transportation

supervisor, the man who is in charge of dispatching the

vessels with cargo and who makes decisions with respect

to the appropriateness of the cargo and the seas and the

Exxon man at the platform admitted that the sending of

15

vessels to receive tubular goods in six to eight foot seas is

unsafe but that Exxon does it anyway! The jury believed,

as rightly they could, and should, that the crane operator's

decision to lower the tubular goods in the six to eight foot

seas was related to, at least partially caused by, his prior

experience on that Exxon platform. The crane operator did

not lower the drill collars in a vendetta against anyone on

the vessel. He simply did what he thought was expected of

him.

The fact that the Exxon representative on the plat-

form was asleep at the moment of this particular loading is

a ‘‘red herring’’ and has absolutely nothing to do with the

issue of Exxon's negligence in having on prior occasions

regularly actively fostered as well as condoned the admit-

ted unsafe practice on its platform.

The jury saw that the real issues were the plaintiff

versus Exxon and the plaintiff versus Diamond M. The

jury saw vis-a-vis the plaintiff and Exxon, Exxon was in-

deed partially at fault.

The fact which the appellate court overlooked or

misapprehended in its judicial notice of fact was that a

definite distinction is to be drawn between the handling of

tubular goods in six to eight foot seas and the handling of

non tubular goods under those same conditions.

It is respectfully submitted that it is improper for

the court to have used testimony relative to what was safe

16

under the circumstances existent under some other case—

particularly a borderline safety case—as the criteria for

safety in this (or any other) case which involved dif-

ferences, some subtle, some not so subtle.

The undersigned had no opportunity to cross-

examine the parties in the ‘other case" nor any opportuni-

ty to present his own experts to contradict whatever ex-

pert, if any, that testified in the other case.

It is respectfully submitted that this court should

correct the error and set out the appropriate criteria for

judicial notice of facts at the appellate level.

INFLATION

The trial judge with respect tc the issue of damages

gave the following instruction:

“You may also take into consideration the

decreased purchasing power of the dollar, or what

is commonly called inflation’’.

The above was the only mention made as to inflation.

The United States Court of Appeals for the Fifth Cir-

cuit in Johnson v. Penrod Drilling Co., 510 F.2d 234 (5 Cir.

1975); cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed 2d

5£, neld that it was error for the jury to have been charged

that it may take inflation into account in fixing the damage

award,

17

In Johnson v. Penrod Drilling Co., the court, sitting

en banc, ruled:

“We judicially notice that inflationary condi-

tions in this nation’s economy have worsened in

the interim between the November 21, 1972 panel

opinion and today and we recognize that this ac-

celerating rate of inflation increases the likeli-

hood that inflation could become a predictable

condition for the future. Nevertheless, with this

added light, we still cannot so surely discern the

shadow of inflation as a coming event as to war-

rant requiring its inclusion in a present rule for

calculating future damages. The worsening of in-

flation might as readily foretell a recession or a

depression as its continuity. Strong governmen-

tal countermeasures have been proposed and

their efficacy is still unknown. Then too, if future

inflation does cause higher wages, experience

predictably demonstrates that higher interest

rates on investments which have always accom-

panied inflation will also occur and this factor wil!

mtiigate the failure to include an inflationary sur-

charge in wage rate calculations. In addition to

the Second and Sixth Circuit decisions cited in

Judge Simpson's opinion, we note that three

other circuits appear to agree with this pro-

cedure. Cunningham v. Bay Drilling Company,

421 F.2d 1398 (5th Cir. 1970) is overruled. To the

intent that Canal Barge Company, Inc. v. Grif-

fith, 480 F.2d 11 (5th Cir. 1973) announced a con-

trary view, that opinion cannot stand.

(Quoted from 510 F.2d at 235, 236).

Recently the Fifth Circuit, en banc, in Byrd v.

Reederi, 688 F2d 324, 5 Cir, 1982 and Culver v. Slater Boat

Co., 688 F2d 280, 5 Cir. 1982 reversed Johnson v. Penrod

18

Drilling Co., but in so doing held that certain guidelines

with respect to the inflation issue must be followed.

In the instant case there was, as indicated above,

merely a blanket ‘‘carte blanche” invitation and instruc-

tion, with no guidelines or restrictions, for the application

of an increase to the award because of ‘inflation’.

The United States Court of Appeals for the Third

Circuit in Pfeifer v. Jones & Laughlin Steel Corp., 678 F2d

453 (3 Cir. 1982), cert granted 82-131, 51 LW 3253 not only

held that inflation should be taken into account, it also

specifically approved the “total offset’’ method of

calculating the future effect of inflation. The court held:

‘We therefore hold that the district court did not

err in computing damages for the loss of future

earnings, because it is not necessary to go

through the process of discounting lump sum

awards to theoretical present value; the discount

factor is presumed equal to and offset by the im-

pact of inflation on the future economic value of

the award.”

This court has granted certiorari in the Pfeifer case

under docket number 82-131.

The Fifth Circuit in Culver v. Slater Boat Co.

specifically rejected the ‘‘total offset’’ method. Thus, even

the circuits which approve the giving of an “inflation

charge”’ are in conflict.

“19

It is respectfully submitted that certiorari be

granted in the instant case so that the propriety of the

“carte blanche charge” given in the instant case can be

briefed and considered.

CONCLUSION

For the reasons set forth above, it is respectfully

submitted that this petition for certiorari should be

granted.

PHILIP E. HENDERSON

Attorney for Petitioner

CERTIFICATE

I HEREBY CERTIFY, that a copy of the foregoing

pleading has been served upon counsel for all parties by

placing same in the United States mail, postage prepaid

and properly addressed.

HOUMA, LOUISIANA this

1983.

day of January,

PHILIP E. HENDERSON

Al

APPENDIX “A”

David R, TARLTON, Plaintiff-Appellant,

v.

EXXON, Defendant and Third-Party

Plaintiff-Appellee,

DIAMOND M DRILLING, Defendant and

Third-Party Plaintiff-Appellant-Appellee,

Vv.

GOLDEN MEADOWS ENTERPRISES, INC.,

and Eserman Offshore Services,

Third-Party Defendants-Appellants,

Vv.

COASTAL BOAT OPERATORS,

Third-Party Defendants-Appellees,

No, 80-3478.

United States Court of Appeals,

Fifth Circuit,

Sept. 27, 1982.

Captain of vessel used to service offshore platforms

sued platform owner and drilling operator to recover for in-

juries sustained while attempting to secure drill collars

which a crane operator for drilling contractor had placed on

board the vessel, Third-party claims were filed. The United

States District Court for the Eastern District of Louisiana,

Adrian G, Duplantier, J., granted platform owner's motion

A-2

for judgment n.o.v. and ordered new trial conditioned of

remittitur, and appeal was taken, The Court of Appeals,

Politz, Circuit Judge, held that; (1) evidence established

that cause of accident was decision by crane operator to

sneak" the drill collars on board the vessel; (2) although

platform owner's motion extended time for filing notice of

appeal it did not extend time for the court to sua sponte

order a new trial; and (3) injuries did not arise out of

“operations of the vessel’’ within meaning of indemnity

agreement.

Affirmed in part, vacated in part and reversed in

part.

1, Federal Civil Procedure 2608

A mere scintilla of evidence is not sufficient to sus-

tain a jury determination and thereby avoid judgment

n.o.V,

2. Federal Civil Procedure 2609

In evaluating a motion for judgment notwithstand-

ing the verdict, the district court must review the evidence

in the light most favorable to the verdict.

3. Principal and Agent (2)

A principal cannot be held answerable for failure to

supervise an independent contractor.

A-3

4,Seamen 21)

An offshore platform owner is not negligent for

dispatching a supply vessel in six vo eight-foot seas, seas

admittedly rough but not necessarily dangerous for

loading or unloading.

5. Seamen 295,14)

Evidence in servic boat captain's action to recover

for injuries sustained while securing drill collars which had

been loaded by independent contractor's crane operator for

a return trip to shore established that cause of accident

was not action of offshore platform owner's representative

in condoning loading of vessels in six to eight-foot seas in

the Gulf of Mexico but the decision by the crane operator

to sneak" the collars on board the vessel, in that captain

had agreed to transport empty food box, a few passengers

and “some other small things’’ to shore,

6. Jury 31(7%)

Granting of a new civil trial, to be avoided only be ac-

ceptance of remittitur, did not violate Seventh Amend-

ment, U.S.C.A, Const, Amend, 7,

7. Federal Civil Procedure 2366

Time limit for filing a new trial motion is mandatory

and jurisdictional and cannot be extended by the trial

A-4

court. Fed. Rules Civ. Proc. Rule 59(b), 28 U.S.C.A.

8. Federal Civil Procedure 2366

A party may not belatedly join another litigant’s

new trial motion and thereby circumvent the jurisdictional

limits for filing a new trial motion. Fed. Rules Civ. Proc.

Rule 59(b), 28 U.S.C.A.

9. Federal Civil Procedure 2364

Expansion of trial court’s power to order a new trial

for reasons not raised by the movant does not operate to

extend the period in which the court can grant a new trial

on its own initiative. Fed. Rules Civ. Proc. Rule 59(d), 28

U.S.C.A.

10. Federal Civil Procedure 2364

Absent timely motion for a new trial or an order by

the trial judge within ten days of entry of judgment, the

trial court was without jurisdiction to sua sponte order a

new trial. Fed. Rules Civ. Proc. Rule 59(d), 28 U.S.C.A.

11. Federal Civil Procedure 2364

Word “‘judgment”’ in rule authorizing a trial court to

sua sponte grant a new trial not later than ten days after

entry of judgment does mean ‘final judgment”’ or “‘ap-

pealable judgment”’ and, hence, fact that motion for judg-

A-5

ment n.o.v., new trial or remittitur extended time for filing

notice of appeal did not mean that it likewise extended the

time for sua sponte order of new trial. Fed. Rules Civ. Proc.

Rule 59(d), 28 U.S.C.A.

12. Federal Civil Procedure 2364

Rule authorizing trial court to sua sponte order a

new trial not later than ten days after entry of judgment is

designed to empower the trial judge to correct an injustice

occasioned, primarily, by a jury verdict. Fed. Rules Civ.

Proc. Rule 59(d), 28 U.S.C.A.

13. Indemnity 8(4)

Where at time of injury captain of vessel used to ser-

vice offshore platforms was attempting to secure tubular

drilling collars that had been loaded onto the vessel surrep-

titiously and negligently by an independent contractor

which conducted drilling operations the accident did not

arise either from the ‘‘operation of the vessel’”’ within mean-

ing of charter agreement and was not encompassed by in-

demnity clause of service agreement for vessel operation,

which clause applied to omissions while performing or at-

tempting to perform the services contemplated.

See publication Words and Phrases for other

judicial constructions and definitions.

A-6

14. Damages 212

In action by captain of offshore platform service

vessel to recover for injuries sustained in attempting to

secure drill collars it was not error to charge that present

rate of inflation could be considered in assessing damages

award.

Appeals from the United States District Court for

the Eastern District of Louisiana.

Before POLITZ and RANDALL, Circuit Judges*.

POLITZ, Circuit Judge:

David tarlton was injured while serving as the cap-

tain of the M/V BECT I, a vessel owned by Eserman Off-

shore Services, chartered to Exxon and operated by

Golden Meaddows Enterprises, Iac. The BECT I was used

to service offshore platforms. On the day of Tarlton’s acci-

dent, it delivered food supplies to an Exxon platform, on

which Diamond M Drilling Company conducted drilling

operations.

After the food box was off-loaded, a Diamond M

employee asked Tarlton to transport the empty food box, a

few passengers, and ‘“‘some other small things” to shore.

* Jack M. Gordon, District Judge of the Eastern District of Loui-

siana, sitting by designation, was a member of the panel which heard

oral argument. Because of his death, this case is being decided by a

quorum, 28 U.S.C. § 46(d).

A-7

Tarlton agreed. At the time, seas were running six to eight

feet. Notwithstanding the substantial seas, the platform

crane operator, an employee of Diamond M, loaded tubular

drill coilars onto the deck of the BECT I. Tarlton was not

aware the “small things’’ were drill collars until after they

were placed aboard. It was imperative that the drill collars,

which were rolling about the deck, be secured. While at-

tempting to do so, Tarlton was injured. During this unfor-

tunate scenario, late in the evening, Exxon’s platform

representative was not on the platform deck; he was asleep.

Tarlton initially filed a seaman’s complaint against

Diamond M and Exxon, later amending to add Eserman,

Golden Meadows and Coastal Boat Operators (the com-

pany which brokered the BECT I to Exxon) as additional

defendants. Tarlton also alleged the unseaworthiness of

the BECT I and sought maintenance and cure in his claim.

Eserman and Golden Meadows cross-claimed

against Exxon and Diamond M for reimbursement of sums

paid Tarlton for maintenance and cure, sums in fact paid

by American Home Assurance Company. Exxon cross-

claimed against Golden Meadows, Coastal, and Eserman

for indemnification and attorney’s fees pursuant to con-

tracts extant between them. Coastal cross-claimed against

Golden Meadows and Eserman for attorney’s fees and

costs. As the parties went to trial, Exxon and Diamond M

agreed that Exxon would indemnify Diamond M if “‘a final

judgment, after completion of all post-trial motions, ap-

peals, etc. is entered, finding that the plaintiff's alleged

A-8

injuries were proximately caused by the joint negligence of

Diamond and Exxon.”!

The case was tried to a jury, which returned a special

verdict finding Diamond M and Exxon liable to Tarlton,

with fault percentages of 95% and 5%, respectively.

Coastal, Eserman, and Golden Meadows were found free of

fault and the BECT I was found seaworthy. The jury

awarded Tarlton $450,000 in damages and fixed ‘‘10-11-

79” as the date when maximum cure was reached, thus set-

ting the basis for the maintenance and cure award.

Ruling on the various cross-claims, the district court

rejected Eserman’s and Golden Meadows’ demand for

reimbursement of maintenance and cure payments from

Exxon and Diamond M, finding that American Home

Assurance Company had paid these sums and had

specifically waived its subrogation rights.” The court

granted Exxon’s claim against Golden Meadows and Eser-

man for attorneys’ fees and costs and granted Coastal’s

claim against Golden Meadows and Eserman for at-

torneys’ fees and costs.

When Tarlton sued Diamond M, it brought a cross-claim against

Exxon, calling for Exxon to defend, indemnify, and hold it harmless pur-

suant to their contract. Initially, Exxon accepted the demand and

assumed Diamond M's defense. Subsequently, Exxon informed Dia-

mond M that it would no longer defend it. Thereafter, the quoted stipula-

tion was agreed to.

2 By an order ddated May 14, 1980, the district cour’ «mended its

earlier ruling and awarded Golden Meadows $500.00 on its cross-claim

against Diamond M for reimbursement of maintenance and cure.

A-9

Exxon moved for judgment notwithstanding the

verdict and sought a remittitur. The trial judge granted

Exxon’s motion for judgment n.o.v. Additionally, on its

own mction, the trial iudge modified the judgment against

Diamond M by ordering “‘that a new trial on the issue of

damages be held unless plaintiff remits $75,000.00 of the

jury award.”

Four issues are posited for appellate review: (1)

whether the trial court erred in granting Exxon’s motion

for judgment n.o.v.; (2) whether the trial court erred in

granting a motion for a new trial on the amount of damages

conditional on the plaintiff's acceptance of a $75,000 remit-

titur in light of Rule 59(d) of the Federal Rules of Civil Pro-

cedure; (3) whether error was committed in awarding Exx-

on and Coastal costs and attorneys’ fees against Golden

Meadows and Eserman; and (4) whether the trial judge er-

red in instructing the jury to consider inflation as a factor

in assessing Tarlton’s award. Our review of the record com-

pels the conclusion that the district court erred in entering

the remittitur order and in granting Exxon’s and Coastal’s

claims for costs and attorneys’ fees against Golden

Meadows and Eserman. Accordingly, we affirm in part,

vacate in part, and reverse in part.

Judgment Notwithstanding the Verdict

[1,2] The oft-cited decision in Boeing Co. v. Shipman,

411 F.2d 365 (5th Cir. 1969) (en banc) articulates the rubric

in this circuit for the grant or denial of a judgment n.o.v. In

A-10

essence, a mere scintilla of evidence is not sufficient to sus-

tain a jury determination; ‘‘[t}here must be a conflict in

substantial evidence to create a jury question.” Id. at 375.

See, e.g., Hagans v. Oliver Machinery Co., 576 F.2d 97 (5th

Cir. 1978). In the process of evaluating the motion, the

district court is obliged to review the evidence in the light

most favorable to the jury’s verdict. This was done in the

case at bar. Having walked the same path as the trial

judge, we reach the same conclusion.

The record reflects that while the Exxon represen-

tative was on the platform at the time of the accident he

was asleep. He was not aware of the unloading of the

grocery box, that Tarlton had been requested to return

with the emptied box, or that Tarlton had been asked to

transport passengers and other small items. Nor was he

alerted to the fact that the Diamond M crane operator

might surreptitiously place the drill collars on the deck of

the vessel without first consulting Captain Tarlton. The

Exxon representative did not order the loading of the drill

collars; he did not authorize the loading; and he was in no

way forewarned. The only basis suggested for saddling Ex-

xon with negligence is that it sanctioned the type of con-

duct that occurred the night of the accident, i.e., loading in

rough seas.

[3-5] Diamond M maintains that Exxon represen-

tatives previously had condoned loading vessels in six to

eight foot seas, a practice cited as negligent.? Although

9° Diamond M would visit negligence upon Exxon for not prevent-

A-ll

this proposition bears some surface appeal, it fades upon

closer examination. As we held in Hebron v. Union Oil Co.

of Calif., 634 F.2d 245 (5th Cir. 1981), a platform owner is

not negligent for dispatching a supply vessel in six to eight

foot seas, seas admittedly rough but not necessarily

dangerous for loading or unloading. Such activity is not at

all unusual at the myriad offshore platforms in the gulf.

Our review of the testimony convinces us beyond

peradventure that the cause of the accident was the deci-

sion by the Diamond M crane operator to ‘‘sneak’’ the drill

collars on board the BECT I. The crane operator admitted

he had to act stealthily because he believed Captain

Tarlton would not have allowed him to load the tubular

drill collars on the vessel. In view of this testimony and the

other evidence, we are in total agreement with the district

judge that [i]t was the decision to load the drill collars on-

to plaintiff's vessel which was the negligence which caused

plaintiff's injury." The judgment n.o.v. was properly

granted.

Remittitur

[6] Tarlton challenges the remittitur on two grounds.

(Footnote 3 continued)

ing the loading. But it must be remembered that Diamond M was an in-

dependent contractor on Exxon's platform. The crane, the drill collars,

and the employees involved in the accident were under Diamond M's

control. Consequently, aside from the fact that the Exxon representative

did not order or authorize the loading of the tubular drill collars in seas

running six to eight feet, Diamond M must cross the legal hurdle that «

principal cannot be held answerable for failing to supervise an indepen-

dent contractor. See McCormick v. Noble Drilling Corp., 608 F.2d 169

(5th Cir. 1979). This has not been done.

A-12

We discern no merit in the first contention that the grant-

ing of a new trial, to be avoided only by acceptance of the

remittitur, was an unconstitutional act, violative of the

seventh amendment. To the contrary, it is now firmly

established that the remittitur practice is not in conflict

with the seventh amendment. See, e.g., Lowe v. General

Motors Corp., 624 F.2d 1373 (5th Cir. 1980); Shore v.

Parklane Hosiery Co., Inc., 565 F.2d 815 (2d Cir. 1977),

aff'd, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979);

Bonura v. Sea Land Serv., Inc., 505 F.2d 665 (5th Cir.

1974); Gorsalitz v. Olin Mathieson Chem. Corp., 429 F.2d

1033 (5th Cir. 1970). See also Dimick v. Scheidt, 293 U.S.

474, 55 S.Ct. 296, 79 L.Ed. 603 (1935).

Tarlton’s second attack on the remittitur presents a

serious issue, having at its core the question of the proper

application of Rule 59(d) of the Federal Rules of Civil Pro-

cedure which prescribes:

Not later than 10 days after entry of judgment

the court of its own initiative may order a new

trial for any reason for which it might have

granted a new trial on motion of a party. After

giving the parties notice and an opportunity to be

herd on the matter, the court may grant a mo-

tion for a new trial, timely served, for a reason not

stated in the motion. In either case, the court

shall specify in the order the grounds therefor.

On March 21, 1980, the jury returned a verdict in

favor of Tarlton against Diamond M and Exxon in the

amount of $450,000. The jury found Diamond M 95% at

A-13

fault and Exxon 5% at fault. Demands against all other

defendants were rejected.

Based on this verdict, the district judge entered

judgment on the main demand on March 27, 1980, casting

Diamond M for $427,500 and Exxon for $22,500. Within 10

days, on April 7, 1980, Exxon moved for a judgment n.o.v.,

a new trial, or in the alternative, a remittitur. A hearing on

Exxon's motions was held on May 14, 1980, and the mo-

tions were taken under advisement. Although initially op-

posed, Diamond M sought at this hearing to orally join in

Exxon's motions. On June 3, 1980, the trial court granted

Exxon's request for judgment non obstate veredicto and

dismissed Tarlton’s claim against it. Acting sua sponte,

the court simultaneously ordered a new trial on the issue of

damages ‘unless plaintiff remits $75,000.00 of the jury

award,

We must determine whether this order was timely.

Concluding that it was not, we vacate the order for a new

trial on the issue of damages and reinstate the judgment

based on the jury verdict, modified to delete the adjust-

ment attributable to the jury's finding of Exxon’s 5%

negligence, thus casting Diamond M for the full amount of

damages awarded by the jury.

[7,8] The time limit for filing a new trial motion im-

posed in Rule 59(b) is mandatory and jurisdictional; it can-

not be extended by the trial court. Gribble v. Harris, 625

F.2d 1173 (5th Cir. 1980); Albers v. Gant, 435 F.2d 146 (5th

A-14

Cir. 1970). Diamond M's oral motion on May 14, 1980 was

not timely and is, accordingly, without effect.4 The trial

court’s grant of a new trial can thus be upheld only if it

satisfies the provision of Rule 59(d) for sua sponte judicial

action within 10 days of the entry of judgment.

[9] Prior to its 1966 amendment, Rule 59(d) was inter-

preted to preclude a trial court from granting a new trial on

a ground not stated in a motion filed seasonably, i.e.,

within 10 days of the entry of judgment. See, e.g., Russell

v. Monongahela R.R. Co., 262 F.2d 349 (2d Cir. 1958); Freid

v. McGrath, 76 U.S.App.D.C. 388, 133 F.2d 350 (1942);

Marshall's U.S. Auto Supply, Inc. v. Cashman, 111 F.2d

140 (10th Cir.), cert. denied, 311 U.S. 667, 61 S.Ct. 26, 85

L.Ed. 428 (1940). According to the Notes of the Advisory

Committee on Rules, this situation was ‘‘undesirable."’ The

Committee noted that ‘‘[jJust as the court has power under

Rule 59(d) to grant a new trial of its own initiative within

the 10 days, so it should have the power, when an effective

new trial motion has been made and pending, to decide it

on the grounds thought meritorious by the court although

not advanced in the motion."’ The second sentence of Rule

59(d) was added in 1966 to afford the trial court this au-

thority. But the expansion of the trial court’s power to

* In addition to citing rule 59(d), although recognizing that Dia-

mond M did not join Exxon's motion—indeed, initially opposed it—the

trial judge stated that ‘at oral argument, Diamond M joined in the mo-

tion for remittitur."’ Accordingly, the trial court considered ‘the motion

for new trial or, alternatively, remittitur as having been filed on behalf of

Diamond M as well as Exxon."’ We cannot accept this reasoning. Dia-

mond M's attempt to join Exxon's motion came after the 10 days allow-

ed by Rule 59(b). A party may not belatedly join another litigant's mo-

tion and thereby circumvent the jurisdictional requirements of the rule.

A-15

order a new trial for reasons not raised by the mover does

not operate to extend the period in which the court can

grant a new trial on its own initiative.

[10] The language of rule 59(d) is explicit: the trial

court may order a new trial for any reason it might have

found sufficient on motion of a party, ‘‘not later than 10

days after entry of judgment.”’ In the case at bar, the

district court’s order of June 3 was obviously filed more

than 10 days after the March 27 judgment. And it granted

relief to Diamond M on the basis of a reason urged by Exx-

on in its timely filed motion, originally opposed by Dia-

mond M. We conclude that absent a timely motion by Dia-

mond M for a new trial, or an order by the trial judge

within the 10 days permitted by the rule, the trial court

was without jurisdiction to enter a sua sponte order for a

new trial.5

[11] Apparently in recognition of this jurisdictional

limit, Diamond M contends that ‘‘judgment”’ as used in

Rule 59(d) should be read ‘‘final judgment”’ or ‘‘appealable

judgment."’ Diamond M suggests that because the Exxon

motion extended the time for the filing of a notice of ap-

° This view is shared by our colleagues in other circuits. See peter

man v. Chicago, Rock Island & Pacific R.R. Co., 493 F.2d 88 (8th Cir.

1974), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1975);

Tsai v. Rosenthal, 297 F.2d 614, 617 (8th Cir. 1961) (‘Rule 59(d) has been

interpreted by the courts as conferring jurisdiction upon the trial court

to act upon its own initiative only during the ten days immediately

following the entry of the judgment."’); Jackson v. Wilson Trucking

Corp., 243 F.2d 212 (D.C. Cir. 1957); Kanatser v. Chrysler Corp., 199 F.2d

610 (10th Cir. 1952), cert. denied, 344 U.S. 921, 73 S.Ct. 388, 97 L.Ed.

710 (1953). A leading commentator shares the same view. C. Wright,

Law of Federal Courts § 95 at 469 (1976).

A-16

peal, Fed. R. App. P. 4(a)(4), it should likewise extend the

time for entry of a sua sponte order of new trial under Rule

59(d). We disagree. The purpose served by the two rules

differ.

Appellate Rule 4(a)(4) looks to the next level of court

and is designed in part to keep the trial court action intact,

in one appealable unit, until the entire litigation is com-

pleted in the trial court by disposition of all post-trial mo-

tions. At that point, all parties have the same time in which

to notice an appeal.

[12] Rule 59(d) is designed to empower the trial judge

to correct an injustice occasioned, primarily, by a jury ver-

dict. The error in the verdict should be, except in the rarest

of cases, apparent immediately upon return of the verdict.

In those instances, the court may act, but it must exercise

its authority with dispatch, within the limited period

established by the rule. Just as the court may not extend

the period for a party to file a motion for a new trial, it may

not extend the period for a court-initiated action.

To accept Diamond M’s argument and extend the

time for the trial court to act under 59(d) until the judg-

ment becomes appealable would require a rewriting of the

rule. This we decline to do. Nothing in the language or

history of Rule 59(d) suggests that the 10-day period is in-

tended to signify anything other than 10 days from entry

of judgment. There is no suggestion that the period may be

extended, directly or indirectly. No parallel may be drawn

A-17

to Fed. R. App. P. 4 which expressly provides that the time

for appeal is suspended by the filing of a timely post-trial

motion, running only after the court’s ruling thereon. Ac-

ceptance of Diamond M’s argument would allow the time

prescribed by Rule 59(d) to be extended indefinitely for all

defendants simply because one defendant timely sought

post-trial relief. That could result in the anomolous situa-

tion of the court, months after the verdict, denying a time-

ly filed motion of one defendant, and sua sponte, granting

relief to a defendant who sought no relief.

We conclude that the trial court was without

jurisdiction to grant Diamond M a new trial, a conclusion

which requires that we vacate the new trial ordered on the

issue of damages.

Costs and Attorneys’ Fees

Eserman and Golden Meadows contend that the trial

court erred in imposing upon them Exxon’s and Coastal’s

costs of defense and attorneys’ fees. Resolution of this

issue turns upon interpretation of contractual indemnity

agreements between these parties. Our reading of the con-

tractual language in light of LaNasse v. Travelers Ins. Co.,

450 F.2d 580 (5th Cir. 1971), convinces us that the district

court’s award of costs and attorneys’ fees was improper.

Eserman’s bareboat charter agreement with Candies

Offshore Transportation Corp., for the service of the BECT

I, contemplated Candies brokering the vessel to Exxon.

A-18

Infusing the names of the parties into the text of the con-

tract, paragraph X of the charter agreement reads:

[Eserman] agrees to indemnify and hold [Coastal]

and [Exxon] harmless...from any claims or suits

resulting from injury or damage to...third per-

sons...arising out of the operation of the vessel

under this charter, unless caused by the sole

negligence of [Candies]...

(Emphasis added.) And restructuring paragraph XIV of

the service agreement for operation of the vessel, between

Coastal and Golden Meadows, results in the following:

[Golden Meadows] binds and obligates itself to in-

demnify and save [Exxon], [Coastal] and [Can-

dies] harmless from and against any and all claim

or claims or causes of action asserted by

employees of [Golden Meadows]...resulting from

the operation of [the BECT I] and/or the acts or

omissions of the captain or crew of [the BECT I]

while performing or attempting to perform the

services herein contemplated and whether or not

arising out of the joint and concurrent acts or

omissions of [Exxon], Coastal ... and Candies...

(Emphasis added)

As we have underscored, the operative language in

both agreements focuses upon services or operations of the

vessel. In LaNasse we considered the effect of a similar

provision, which stated:

Owner [Cheramie BoTruc No. 5] hereby agrees to

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indemnify and hold harmless The California Com-

pany against all claims***as well as against any

and all claims for damages, whether to person or

property, and however arising in any way directly

or indirectly connected with the possession,

navigation, management, and operation of the

vessel.

450 F.2d at 582 n. 4 (emphasis in original). Porphire

LaNasse had been injured in the course of his duties as a

crew member aboard the utility tender BO-TRUC NO. 5,

while assisting in the transfer of a welding unit from a

vessel to a platform. The crane operator, employed by

Chevron Oil Company, caused the load to swing against

the tender’s railing and into LaNasse. Accepting the

district court’s conclusion that the proximate cause of

LaNasse’s injury was the negligence of Chevron’s crane

operator, we proceeded to declare the indemnity agreement

inapplicable:

The indemnity provision in the time charter in-

sulated Chevron only against liability for claims

“directly or indirectly connected with the posses-

sion, management, navigation, and operation”’ of

the vessel. Cheramie does not have a legal respon-

sibility for the consequences of the negligent

operation of the crane—the proximate cause of

the injury—because, on the facts found, the

operation of the crane was not even remotely

related to the operation, navigation or manage-

ment of the vessel. As broad as those terms are to

comprehend injuries caused by the operation of

the vessel in a practical sense, they do not com-

prehend an occurrence in which the vessel's sole

contribution is to be there as the carrier from

which the cargo is being removed.

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Id. at 583.

[13] The circumstances involved in the instant case

are similar to the situation addressed in LaNasse. At the

time of Tarlton’s injury, he was attempting to secure

tubular drill collars that had been loaded onto the BECT I

surreptitiously and negligently. It was the negligence of

Diamond M's crane operator that caused Tarlton’s injury.

The accident simply was not caused by the operation of the

vessel; nor did it arise from the expected performance of its

services.® Although the indemnification agreements in

dispute in this case are not identical to the contractual pro-

vision construed in LaNasse, we are not persuaded that the

variances aree significant enough to command a different

result. We conclude that the LaNasse rationale applies.

Since the cause of Tarlton’s injury did not arise from the

operation of the vessel, the district court should not have

awarded Exxon and Coastal costs and attorneys’ fees

against Eserman and Golden Meadows. That portion of the

trial court’s judgment is reversed.

© In addition, with regard to the service agreement struck by

Coastal and Golden Meadows, we note that paragraph VII states:

Notwithstanding anything to the contrary herein, it is

understood that the duties of the crew of the vessel will be

limited to navigation, maintenance and the loading and

discharge, or board of liquid cargoes. The crew shall not be

required, under any circumstances, to load or unload supplies

or cargo other than aforesaid.

(Emphasis added.) Given our construction of the indemnity contracts ac-

cording to LaNasse, however, we do not decide the issue on the basis of

this clause.

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The Inflation Factor

[14] A final issue raised for our consideration is

whether the trial court erred by instructing the jury that

the present rate of inflation may be considered in assessing

the plaintiff's award. For the reasons extensively set forth

in our recent en banc decisions in Byrd v. Reederei, __ F.2d

_, slip op. __ (5th Cir. 1982), and Culver v. Slater Boat Co.,

—. F.2d _., slip op. __ (5th Cir. 1982), this portion of the

court’s charge was not erroneously given. Accordingly,

there is no validity in this allegation of error.

For the reasons assigned, the judgments of the

district court are AFFIRMED in part, VACATED in part,

and REVERSED in part.

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APPENDIX “B”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 80-3478

DAVID R. TARLTON,

Plaintiff-Appellant,

versus

EXXON,

Defendant and Third Party

Plaintiff-Appellee,

DIAMOND M DRILLING,

Defendant and Third Party

Plair.tiff-Appellant-Appellee,

versus

GOLDEN MEADOWS ENTERPRISES, INC.

and ESERMAN OFFSHORE SERVICES

Third-Party-Defendants-Appellants,

versus

COASTAL BOAT OPERATORS,

Third-Party-Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING

(NOVEMBER 12, 1982)

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Before POLITZ and RANDALL, Circuit Judges*

PER CURIAM:

IT IS ORDERED that the petition for rehearing fil-

ed in the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

United States Circuit Judge

* Jack M. Gordon, District Judge of the Eastern District of Loui-

siana, sitting by designation, was a member of the panel which heard

oral argument. Because of his death, this case is being decided by a

quorum, 28 U.S.C. § 46(d).