Petition — Erftmier v. Rowan Cos.

Office - Supreme Court, U.S

FILED

83-794 NOV 9 1983

ALEXANDER L. STEVAS,

CLERK

NO.

IN THE £.

Supreme Court of the United States

OCTOBER TERM, 1983

BRUCE ERFTMIER,

Petitioner

V.

ROWAN COMPANIES, INC.,

Respondent

Petition for Writ of Certiorari to the

United States Court of Appeals

For the Fifth Circuit

Don R. Riddle

David D. Williams

5629 FM 1960 West, Suite 326

Houston, Texas 77069

(713) 893-4567

Attorneys for Petitioner

Of Counsel:

Don R. Riddle & Associates, P.C.

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

BRUCE ERFTMIER,

Petitioner

Vv

ROWAN COMPANIES, INC.,

Respondent

Petition for Writ of Certiorari to the

United States Court of Appeals

For the Fifth Circuit

QUESTIONS PRESENTED

1. Can reversal of a District Court's findings be allowed to stand

when the basis for reversal are facts “found™ by the Court of

Appeals which have no support in the record and which are

contrary to facts found by the trial court?

2. Does the permissible scope of review under Fed. R. Civ. P. 52

(a) allow a Court of Appeals to made de novo factual

determinations contrary to those found by the trial court and

supported by the evidence?

3. Whether such conduct by a Court of Appeals (as enumerated

above) constitutes a sufficient departure from the accepted and

usual interpretations of the “clearly erroneous” standard of

review so as to call upon this Court's exercise of supervisory

power.

LIST OF PARTIES

The names of all parties to the proceeding in the United States

Court ot Appeals for the Fifth Circuit are contained in the caption

of the case in this Court.

TABLE OF CONTENTS

UE Pee FRESE L EE? seccccccccovvvemeee

Be AAT FETED edocs nes wens tcusevacte as

The decision of the Fifth Circuit repeatedly contains

and relies upon facts which do not appear in the record

and which are contrary to evidence which is in the

record; such conduct constituting a significant

departure from the appropriate scope of appellate

review and calls for an exercise of supervisory power

OF EP, od ed ckcscbesksccnrewadebene

In violation of the decisions of this Court and various

Circuits, the decision of the Court of Appeals disregards

and misapplies the proper standard of review mandated

by Rule 52 (a) in so great a manner as to comp el this

OUNCES BUMSNTION 00 COTTOEE pect ccécicccvese

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TABLE OF AUTHORITIES

CASES Page

Commissioner v. Duberstein, 363 U.S. 278 (1960) ...... 14

Guzman v. Pichirilo, 369 U.S. 698 (1962) .......e000. 16

McAllister v. United States, 348 U.S. 19(1954) ........ .

|

McCaughan v. Real Estate Land, title & T. Co., 297 U.S 606

(Sree rrr rrerr rrr rrr. Tre 16

McKensie v. Sea Land Service, Inc., 551 F.2d 91 (Sth Cir.

[tt -setnbwh > ealebis CAREAEA EY Eh dae Oe 12, 14

Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107

GHD cvisacsesdvewawneape canes bab onawewsye 17

Skidmore v. Gureninger, 506 F2d 716 (Sth Cir. 1975) .... 12, 14

United States v. State of Florida, 482 F.2d 205 (Sth Cir.

EE Pare rer ry ere Pr Pe oe eee Pee 16

United States v. Gypsum Co., 333 U.S. 364 (1947) ...... 12

Uniited States v. Yellow Cab, 338 U.S. 338 (1949) ...... 17

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100

Ge ee ccsdscvabannae Obed sawed tewes Oe we 12, 13, 16, 17

STATUTES

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p ek | re rae er er 6

De OF EEE) 6 boo on. de eon 6h 0058s eakesand 5

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth

Circuit is unreported, and is reproduced in the Appendix hereto at

p. A-2. The order of the Court of Appeals denying a Petition for

Rehearing appears in the Appendix at p. A-8. The judgment of the

United States District Court for the Southern District of Texas

appears in the appendix at p. A-9 and its findings of fact and

conclusions of law are printed in the Appendix at p. A-10.

JURISDICTION

The date of the judgment of the United States Court of Appeals

for the Fifth Circuit sought to be reviewed in July 28, 1983. A timely

Petition for Rehearing was denied by the Fifth Circuit on September

12, 1983.

The statutory provision confering jurisdiction on this Court to

review the judgment in question by writ of certiorari is 28 U.S.C. §

1254(1).

STATUTES INVOLVED

Fed. R. Civ. P. 52(a) which provides as follows:

(a) Effect. In all actions tried upon the facts without a jury or withan

advisory jury, the court shall find the facts specially and state seperately its

conclusions of law thereon, and judgment shall be entered pursuant to

Rule 58; and in granting or refusing interlocutory injunctions the court

shall similarly set forth the findings of fact and conclusions of law which

constitute the grounds of its action. Requests for findings are not necessary

for purposes of review. Findings of fact shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of the trial

court to judge the credibility of the witnesses. The findings of a master, to

the extent that the court adopts them, shall be considered as the findings of

the court. If an opinion or memorandum of decision is filed, it will be

sufficient if the findings of fact and conclusions of law appear therein.

Findings of fact and conclusions of law are unnecessary on decisions of

motions under Rules 12 or 56 of an other motion except as provided in

Rule 41(b).

The Jones Act, 46 U.S.C. § 688, which provides as follows:

Any seaman who shall suffer personal injury in the course of his

employment may, at his election, maintain an action 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 common-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

representative 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 applicable. Jurisdiction in such action shall be

under the court of the district in which the defendant employer resides or in

which his principal office is located.

STATEMENT OF THE CASE

This is an action by Petitioner, a seaman, against the

Respondent vessel owner under the Jones Act, 46 U.S.C. § 688 and

general maritime law, for damages arising out of personal injuries

sustained by Petitioner while working aboard the Respondent's

vessel in November 1980.

Jurisdiction in the court of first instance, the United States

District Court for the Southern District of Texas, existed by virtue

of 28 U.S.C. § 1331.

Trial was to the court before the Honorable George E. Cire,

District Judge. The District Court entered detailed findings of fact

and conclusions of law upon which a Judgment in favor of the

seaman, Brus Erftmier, was entered against the vessel owner,

Rowan Companies, Inc. (Rowan), in the amount of $600,000.

Rowan appealed the judgment to the United States Court of

Appeals for the Fifth Circuit attacking the District Court’s liability

and damages findings as being clearly erroneous. A quorum! of a

Fifth Circuit panel reversed and rendered judgment in favor of

Rowan, holding that the District Court's findings of unseaworthiness

and negligence were clearly erroneous. A summary of the essential

liability facts, developed in the trial record, and upon which the

District Court's findings of fact were based, is therefore necessary at

this point.

In November 1980, Bruce Erftmier was employed by Rowan as

a head roustabout aboard the drill tender vesse)] ROWAN III

located in the Gulf of Mexico (T. 12-15). On the date Mr. Erftmier

was injured, he was supervising three other crew members who had

been assigned to chip, clean, and paint a void or crawl space located

on the lower deck of the vessel (T. 16, 24). Mr. Erftmier suffered

disabling and permanent injury to his back when he attempted to

enter the void or crawl space through a “scuttle hole” which was a

small opening or access way in the bulkhead that led to the void area

where the other members were working (T. 18). The scuttle hole was

located approximately 4 to 5 inches above the deck floor, (T. 179),

and was partially obstructed by the presence of hot pipes and an

electrical switch or fuse box (T. 18 Plt’s EX Nos. 1-4). Becuase of

the small size, shape, and location of the scuttle hole in question,

Mr. Erftmier bent over, got on his hands and knees, and had to twist

and bend to attempt entry at which time he sustained injury (T.

18-19, 57).

Two crew members, whose deposition testimony was offered at

trial, detailed that the size and location of the scuttle hole near the

deck floor, close to some hot pipes and a fuse box posed obstacles to

safe and direct entry to the void area (Johnson depo., at 18; Loftin

depo. at 9-11). Seaman Johnson further testified that the pipes and

' The panel consisted of Chief Judge Clark. Circuit Judges Goldbert and Politz.

Judge Politz recused himself after hearing oral argument and did not participate

in the preparation of the opinion.

the fuse box could have been repositioned so as to provide better

access to the scuttle hole (Johnson depo. at 19). These witnesses,

and Mr. Erftmier, identified potographs of the scuttle hole where

the injury took place (T. 21-22; Johnson depo at | 3-14; Loftin depo

at 9-10; Pit's Ex Nos 1-4).

Estimates of the dimensions of the scuttle hole varied from 1'4

to 2 feet high (Johnson depo. at 60; T. 178) and 16 to 18 inches wide

(T. 54) to 2'4 feet high and 18 to 20 inches whide (T. 99).

Witnesses called live at trial by Rowan included another crew

member who testified that the access ways, because of pipes, were

difficult to enter (T. 101); and the head supervisor on the vessel

testified that the access ways were not only small but somewhat

impeded or obstructed by pipes (T. 180).

The principal conflict in the testimony before the District

Court concerned previous passage through the scuttle hole into the

void or crawl space. Mr. Erftmier testified that he had never been

through the hole or in the void to which it led (T. 16,51). Seamen

Loftin and Johnson also testified that before this particular work

assignment, they had never been in the void area (Johnson depo. 16;

Loftin, 11,20). Donald Kervin, a member of the same crew testified,

however, that he had been in the void area 200 to 300 times (T. 100,

115-116). Two supervisors aboard the vessel, Nugent and McDonald,

testifying live at trial, stated that they too had frequently encountered

the access hole (T. 176,137).

Against this factual development in the record, the trial court,

after observing Mr. Erftmier’s demeanor and credibility as well as

that of all witnesses called by Rowan, made the following pertinent

findings:

No.8. The void space was aft of the boiler room and its entry

was through a vertical, oblong access way (sometimes referred

to as a scuttle hole), approximately 2-2'4 feet high and 18-20

inches wide. The bottom of the access wi was approximately

6 inches above the deck.

No.9. There were one or more steel pipes partially obstructing

the scuttle hole leading into the void space.

No. 10. Because of the small size. shape, and location of the

scuttle hole, Plaintiff had to stoop and bend his body in order

to attempt an entry. During this effort, he injured his back.

* * *

No. 21. Because of the size, configuration, and distance off

the deck, the scuttle hole which Plaintiff attempted to crawl

through in November 1980, was not a reasonably safe place for

Plaintiff to work aboard the vessel.

No. 22. The Defendant was negligent in its failure to provide

a reasonably safe place for Plaintiff to work and such

negligence was the proximate and, or producing cause of the

Plaintiff's injuries.

No. 23. The Defendant’s failure to provide a reasonably safe

place to work for Plaintiff rendered the vessel unseaworthy

and such unseaworthy condition was the proximate and

producing cause of Plaintiff's injuries.

(R. 7.9). These findings, against the record detailed above, were

held to be clearly erroneous by the Court of Appeals.

REASONS FOR GRANTING THE WRIT

I.

THE DECISION OF THE FIFTH CIRCUIT

REPEATEDLY CONTAINS AND RELIES UPON

FACTS WHICH DO NOT APPEAR IN THE RECORD

AND WHICH ARE CONTRARY TO EVIDENCE

9

WHICH IS IN THE RECORD: SUCH CONDUCT

CONSTITUTING A SIGNIFICANT DEPARTURE

FROM THE APPROPRIATE SCOPE OF

APPELLATE REVIEW AND CALLS FOR AN

EXERCISE OF SUPERVISORY POWER BY THIS

COURT.

As a basis for the Court of Appeals reversal of the liability

findings of the District Court, the opinion alludes to and relies upon

matters not in the record. The opinion sought to be reviewed

rationalizes with the following, none of which is in the record:

A. “It is also a prevalent practice to locate scuttle holes and

hatches several inches above deck level.”

B. “The purpose of this practice is to prevent water. . .from

flowing between compartments.”

C. “In this way standing water may be isolated, and instead of

two or more compartments having wet and slippery floors,

only one compartment will be affected.”

D. “Safety on board, as well as the integrity of the ship, is

promoted, not impeded.”

(Opinion, p. 6). The record is completely devoid of any evidence

regarding (A) custom, (B) purpose, (C) effect, or (D) result of so

locating scuttle holes. Even so, the fact that the scuttle hole was

raised a few inches off of the deck floor was not the basis for the

lower court's finding - the basis may well have been that location

higher off the deck was needed, not that the hole should have been

down to the deck.

The Court of Appeals further rationalizes outside the record:

E. “.. .many, if not most scuttle holes are found deep in the

“innards of a ship where pipelines and conduits abound.”

and

10

F. “it would be extremely difficult to design all such passage-

ways so that ingress would never be imparied by conduits,

valves, meters, beams, fittings, cylinders, or other

obstructions.”

(Opinion, p. 6). Again, there is no evidence in the record of (E)

where many or most such holes are located, or (F) design alternative

difficulties. The record does not support such “fact findings” by this

Court. In fact, the evidence in the record on the point of reasonable

alternatives is contrary to that found by the Court of Appeals.* The

direct evidence of an uncorrected, yet correctable, unsafe condition

certainly formed a permissible basis for the trier of fact to determine

negligence and unseaworthiness. Futher, such direct evidence in the

record conflicts with the assertion by the Court of Appeals,

unsupported by the record, that it would be extremely difficult to

design the hole so as not to be impaired by obstructions.

There is further rationalization outside the record by the Court

of Appeals in its opinion:

G. “. . .passage through the hole was no more bothersome

than many of the normal tasks of a seaman.”

H. “The hole was virtually identical in size and shape to many

other scuttle holes fould in the Rowan III and other

modern vessels.”

(Opinion, p. 5-6). Not only is there no evidence to support such a

statement by the Court of Appeals, there was direct evidence to the

> One crewman testified that obstructions to safe ingress and egress could have

been climinated. (Johnson depo. p. 19)

contrary.*> Futher, the photographic evidence in the record

demonstrated that the hole in question was more obstructed than

others aboard the vessel. (Cf Pit’s Ex. 1-4 and Def. Ex. 6A and 6B

with Def. Ex. 6C, G, and L).

Petitioner respectfully submits that the Fifth Circuit, through

these examples above noted, accomplished in its opinion what no

trial court, much less an appellate tribunal, can permissibly do:

that is, make critical fact findings at the very core of the

controversy (the “reasonableness” of the working environment)

without evidence in the record for support. These matters, not in

the record, which were relied upon by the Court of Appeals and

outlined above are hardly matters about which a trial court could

have taken judicial notice. See Fed. R. Evid. 201. To cause the trial

court's judgment to fall because of facts conjured by the Court of

Appeals works a manifest w rong to the system of appellate review,

for it removes predictablility of result and reliance upon a record

developed below if a reviewing tribunal may go outside of the

record for support of a contrary result than that which was

obtained under the evidence below.

Fed. R. Civ. P. 52(a)’s express mandate, as well as the

teachings of this Court and the Fifth Circuit. make clear that

deference is to be paid to reasonable inferences drawn from the

evidence by the trial court. Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 123 (1969); McAllister v. United

States, 348 U.S. 19, 20 (1954); United States v. Gypsum Co., 333

U.S. 364, 395(° 47); McKensie v. Sea Land Service, Inc., 551 F.2d

91,92 (Sth Cir. 1977); Skidmore v. Grueninger, 506 F.2d 716, 724

(Sth Cir. 1975);

-

The evidence in the record demonstrates that the hole in question, because of its

location and the presence of obstructions, was extremely difficult to enter and

required a series of complicated body maneuvers to safely encounter. (T. 18-19,

57: Johnson depo. p. 18; Loftin depo. p. 9-11).

12

Not only does the Court of Appeals opinion ignore or

disregard those inferences made by the District Court, (as

discussed infra), but goes even further and “creates’ ‘evidence from

which it concludes a contrary result must follow. Such a gross

departure from the traditional concepts of appellate review of fact

findings does more than work injustice in the particular case, for it

signals an inherent abuse by the Fifth Circuit of its true role. If

such conduct is not corrected by this Court, it reduces the special

deference and importance which is to be afforded our district

courts, sitting as a trier of fact. The entire federal judiciary is

harmed if this practice of creating dispostive facts in the Court of

Appeals is allowed to stand. This ground, independent of the

ground that follows, constitutes sufficient cause for a writ of issue.

IN VIOLATION OF THE DECISIONS OF THIS

COURT AND VARIOUS CIRCUITS, THE DECISION

OF THE COURT OF APPEALS DISREGARDS AND

MISAPPLIES THE PROPER STANDARD OF

REVIEW MANDATED BY RULE 52(a) IN SO GREAT

A MANNER AS TO COMPEL THIS COURT'S

ATTENTION TO CORRECT,

The Fifth Circuit's decision accurately observes that it is not

permitted to disturb the District Court's assessment of the vessel

owner's liability unless the lower court's findings are clearly

erroneous. While recognizing the appropriate standard of review in

its opinion, the Court of Appeals nonetheless ignored the directive

of decisions by this Court, and the Fifth Circuit itself, regarding

how a Rule 52(a) review should be undertaken.

This Court expressly reaffirmed the proper standard of review

mandated by Rule 52(a) in Zenith Corp. vs. Hazeltine, 395 U.S. 100

(1969) when it stated:

13

In applying the clearly erroneous standard to the findings of a district

court sitting without a jury, appellate courts must constantly have in

mind their function is not to decide factual issues de novo. The

authority of an appellate court, when reviewing the findings of a

judge as well as those of a jury, is circumscribed by the deference it

must give to decisions of the trier of fact, who is usually in a superior

position to appraise and weigh the evidence

395 U.S. at 123. Where the findings of the trial judge may

reasonably be inferred from the record they should not be disturbed

on appeal even if conflicting inferences of equal reasonableness may

be drawn from the review of the same evidence. Commissioner v.

Duberstein, 363 U.S. 278, 290-91 (1960); McKensie v. Sea Land

Service, Inc., 551 F.2d 91, 92 (Sth Cir. 1977); Skidmore vy.

Grueninger, 506 F.2d 716, 724 (Sth Cir, 1975).

It is upon this interpretation of the clear error standard of

review that Petitioner properly relied in presenting its appeal before

the Court of Appeals. It is under this test that the record should have

been viewed by the Fifth Circuit. However, Petitioner submits that

upon even a cursory examination of the Fifth Circuit opinion, and

its efiect, it is readily apparent that the Fifth Circuit review was not

that of deciding if the District Court could have permissibly found

as it did under the record presented, but rather one of merely

arriving at a different conclusion. Importantly, the Court of

Appeals entirely disregarded, and failed to discuss or to distinguish,

the foilowing evidence which was adduced in the District Court and

which permissibly supports unseaworthiness and negligence findings:

A. The obstructions to safe ingress and egress at the hole in

question could have been eliminated. (Johnson depo. p.

19),

B. The hole, because of its location and the presence of

obstructions, was extremely difficult to enter and required

a series of complicated body maneuvers to safely encounter.

(T. 18-19, 57; Johnson depo. p. 18; Loftin depo. 9-11).

14

C. The photographic evidence demonstrated that the hole in

question was more obstructed than others aboard the

vessel. (Cf. Plt's Ex. 104 and Det.’s Ex. 6A and 6B with

Def.’s Ex 6C, E and L).

This evidence alone was permissible support for the trial court in

finding that the hole in question was an unsafe place to work

although the Court of Appeals ignored or disregarded any such

permissible implication by broadly stating that the hole in question

was “virtually identical” to others. It was not, as the record above

demonstrates.

Other evidence which the Court of Appeals ignored or

disregarded, and which permit the District Court findings of

liability, is as follows:

D. Witnesses called live by the Defendant testified that the

hole was difficult to enter because of the obstructions and

its location. (T. 1Ot, 180).

E. There was clear dispute as to the number of safe encounters

by other seamen through the hole in question; such dispute

going to the issue of “reasonable fitness”. (C/. T. 100,

115-16 with T. 16, 15; Johnson depo. p. 16; Loftin depo. p.

11, 20).

The Court of Appeals’ error in relitigating the disputed facts

resolved by the court below is underscored from the opinion itself

wherein the Fifth Circuit at one point finds support for its result by

observing that the scuttle hole was “passed through” as “part of the

ordinary run-of-the-mill duties” of seamen (Opinion p. 6), yet at

another point cites as “particularly relevant” to reversal the fact that

the hole was rarely entered. (Opinion p. 7). The Court of Appeals

stated an “entirely different case” would be presented if the hole was

ordinarily or regularly encountered, (Opinion p. 7); a fact, as shown

above, the Court noted earlier in the opinion but chose to ignore

15

when creating the distinction of non-use. Such incongruity is the

product of a reviewing court sitting as a second fact finder, passing

upon questions of credibility, persuasiveness, and weight to be given

the evidence rather than making its proper inquiry under the clear

error standard which is to inquire whether there is evidence and

reasonable inferences therefrom which allow the trial court to

permissibly find as it did. See McCaughan v. Real Estate Land,

Title and T. Co., 297 U.S. 606, 606-08 (1935).

A critical element in the instant suit was the credibility of the

witnesses who gave testimony regarding the liability facts. The

express mandante of Fed. R. Civ. P. $2(a) requires that “due regard

should be given to the opportunity of the trial court to judge the

credibility of the witnesses”. The trial court, as this Court has

observed, is in the unique position and has the special opportunity

to listen to and observe witnesses and determine if they speak the

truth. Guzman vy. Pichiriio, 369 U.S. 698, 701-03 (1962). See also,

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123

(1969); United States v. State of Florida, 482 F.2d 205, 208 (Sth Cir.

1973).

The Fifth Circuit opinion, although not directly questioning

the validity of such mandated deference to the lower court, does

great disservice to same by disregarding direct evidence which the

District Court apparently attached great weight after seeing key

witnesses testify live, observing their demeanor, hearing the tenor

and persuasiveness of their testimony, and passing upon the weight

to be given their evidence. To entirely disregard evidence and

reasonable inferences which support the District Court's findings

and to adopt conflicting inferences destroys the meaning ol}

decisions interpreting Rule 52(a)’s standard of review which hold a

second trial on the merits in the appellate courts must be avoided.

Petitioner submits that the Court of Appeals’ conduct in the instant

case renders Rule §2(a)'s provision of deference to the trial court an

empty formalism of words. The proper and consistent appiication

«the clear error standard of review is essential to the integrity of the

16

judicial system and uniformity of results. If a court of appeals has

unbridled authority to disregard or alter controlling facts without

explanation then cfforts expended by a conscientious district court

are wasted. If the clear error standard of review means that a court

of appeals can review the same body of evidence and decide the case

differently with no deference to the findings below, then our district

courts become analogous to an administrative tribunal or board,

whose determinations are reviewable de novo. This ts precisely the

evil recognized by this Court and sought to be avoided in its decision

in Zenith Corp. v. Hazeltine, 395 U.S. 100, 123 (1969).

The clear error standard is limited to correcting mistakes by the

district court in arriving at fact findings which are impermissible

under the record. The record in this case certainly contains evidence

which permits findings of liability; that is, which created a fact

dispute and provided the trier of fact with sufficient evidence to

resolve the issue as it did. The true function of a court of appeals is to

compare the record evidence and findings against settled principles

of law. It is not the function of the Fiith Circuit to relitigate the

controversy. The question of “reasonable fitness” of the scuttle hole

was presented as a fact dispute in the trial court and was permissibly

resolved in favor of the seaman.

Petitioner's judgment was not reversed because of the

application of a wrong theory of liability or other error of law. That

such ts the case is evident from the fact that the Court of Appeals’

opinion neither discusses nor decides any point of law but merely

outlines evidence which it rationalized supports a different result

from that which obtained in the trial. Perhaps a different trier of fact

would have reached a different conclusion. However, the Court of

Appeals ts not to sit as a new fact finder, and evena choice between

two permissible views of the evidence does not render one view

clearly erroneous. United States v. Yellow Cab, 338 U.S. 338, 342

(1949).

This Court's decision in Sentilles v. Inter-Caribbean Shipping

Corp, 361 U.S. 107 (1959) is also instructive as to the proper role of

17

an appellate court reviewing the actions of a fact finder. Although,

in Sentilles this Court reversed the court of appeals in reinstating a

jury's verdict, the following teachings from that case have meaning

here:

It is not the function of a Court to search the record for conflicting

circumstantial evidence in order to take the case away from the jury

on the theory that the proof gives equal support to inconsistent and

uncertain inferences. . .Courts are not free to reweigh the evidence

and set aside the jury verdict merely because the jury could have

drawn different inferences or conclusions or because judges felt that

other results are more reasonable

The Fifth Circuit has improperly substituted its own

conclusions for those of the trial court, sitting as a fact finder.

Such represents so substantial a departure from the accepted

and usual course of judicial proceedings as to require and

compel this Court to exercise its powers of supervision over the

courts of appeals. Certiorari is warranted in the instant case,

not merely to bring justice to the respective litigants, but also

to establish that a court of appeals may not set aside findings of

a district court which have reasonable support in the record,

substituting instead their own de novo view of the case which

entirely disregards or fails to expain evidence to which the fact

finder attached weight. The Court of Appeals’ opinion creates

a dangerous precedent and is unfair to this Petitioner.

The Fifth Circuit’s error in considering and relying upon

matters not in the record, together with its improper application

of Rule 52(a)’s standard of review, has the cumulative effect of

producing an opinion which is not the product of an

examination of the ful! record, with appropriate deference

paid to the trial court's findings. Instead, the opinion represents

agad initio determination by the Fifth Circuit of the central

liability fact question. A redetermination has been made by the

Court of Appeals on the basis of matters not in the record and

upon the recitation of “facts” which conflict with those found

18

by the trial court, upon evidence presented, and which have

obvious support in the record.

CONCLUSION

The decision of the Court of Appeals for the Fifth Circuit

works a manifest injustice to the rights of Petitioner from which

there is no effective relief by reason of the improper substitution by

the appellate court of its views and judgment of facts different from

that permissibly found by the District Court. This case. therefore,

poses serious questions of importance not only to these litigants but

central to the effective administration of justice in the federal

appellate judiciary. Petitioner, therefore, respectfully prays that a

Writ of Certiorari should issue to review the judgment and opinion

of the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

DON R. RIDDLE

DAVID D. WILLIAMS

Attorney for Petitioner

November 2, 1983

CERTIFICATE OF SERVICE

° ven on R. Riddle, hereby certify that on the FL day of

yA ‘r, 1983 1 mailed certified mail, return receipt requested, 40

copies of this petition to the Clerk, U.S. Supreme Court; and mailed

3 copies, certified ma.!, return receipt requested to Mr. Theodore

Goller, Fulbright & Jaworski, 800 Bank of the Southwest Building,

Housto , fexas 77002, Counsel for Respondent.

pba thiihlle

DON R. RIDDLE

APPENDIX INDEX

Opinion of the U.S. Court of Appeals for the Fifth

Circuit, Bruce Erftmier v. Rowan Companies,

inc., Gated July 2B, 1963 .cccovcccccsvvesens

Order of the United States Court of Appeals for the

Fifth Circuit on Petition for Rehearing, Bruce

Erftmier v. Rowan Companies, dated September

te ePoreerrrer reer rr errr ern rere

Judgment of the U.S. District Court for the Southern

District of Texas, Bruce Erftmier v. Rowan

COMPOMME, ING. sc deccccacscccveoseresons

Findings of Fact and Conclusions of Law of the United

States District Court for the Southern District of

Texas, Bruce Erftmier vs. Rowan Companies,

B. 6 ap v.c0ceo bb wks eng eassebesaeaeeseeet

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT]

No. 82-2465

BRUCE ERFIMIER,

. Plaintiff{-Appellee,

versus

ROWAN COMPANIE, INC.,

Defendant-Appellant.

:

Appeal from the United States District Court

for the Southern District of Texas

(JULY 28, 1983)

Before CLARK, Chief Judge, GOLDBERG and POLIT Z, Circuit

Judges*. CLARK, Chief Judge

Bruce Erftmier was employed by Rowan Companies, Inc. asa

: head roustabout on board its vessel, the ROWAN III. Erftmier

injured his back during the course of performing his duties. He

brought this action pursuant to the Jones Act, 46 U.S.C. § 688, and

* Judge Politz recused himself after hearing agrument. He did not participate in the

preparation of this opinion by a quorum of the court. 28 U.S.C. § 464d)

A-3

general maritime law alleging that his injury was caused by the

negligence of his employer and the unseaworthiness of the ROWAN

111. After a bench trial, the district court held in favor of Erftmier on

both claims and awarded him $600,000. Rowan appeals. It argues

that the critical finding of the district court that the design of an

access hole created an unreasonably dangerous working condition

was clearly erroneous. We agree, and reverse and render judgment

here in favor of Rowan.

Erftmier supervised a crew of three roustabouts. His crew was

assigned to repainta void space located beneath a bathroom on the

port side of the ROWAN III. The void space was immediately aft of

the boiler room. The space contained numero"!s pipes, beams, and

columns of various shapes and sizes. The purpose of the space was

to allow access to those pipes and supports. The area was not used

on a regular basis for any other purpose. The space was approxi-

mately three and one-half feet high. 't was illuminated by a

temporary work light.

Access to the void space was gained through an oval opening

cut into the steel bulkhead that separated the space from the boiler

room. The bulkhead was less than an inch thick at the place of the

opening. The hole measured two and one-half feet high at its highest

point and tenty inches at its widest. The bottom of the hole was six

inches above the deck.

An electrical junction box was attached to the bulkhead

immediately above the hole. The box stood out about five inches

from the bulkhead. Two electrical conduits led down from inside

the box. One conduit bent ninety degree and proceeded almost

horizontally to the right. The other conduit proceeded downward,

but then bent into a U-shape and proceeded toward the ceiling. Both

conduits were fastened to the bulkhead. Both were roughly one inch

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in diameter. The U-shaped conduit partially obstructed entry into

the access hole. The conduit that was bent horizontally obstructed

the hole very little if at all.

Off to the left of the access hole was a large cylindrical tank of

the kind used to store hot water. A very large pipe passed below the

hole close to the bulkhead. Ata higher level, and somewhat further

from the bulkhead, was a smaller pipe. The pipe made several

angled turns. Numerous fittings, valves, faucets, dials, and other

appendage were attached to the pipe. It was necessary for a seaman

to cross Over these pipes to get to the access hole. The presence of

these pipes made entry into the hole more difficult than it would

have been in their absence.

The roustabouts in Erftmier’s crew had already been working

in the void space without him for two days when he attempted to

enter through the access hole in order to check their progress. As he

stooped down and attempted entry, Erftmier felt a sharp pain in his

leg. The pain was eventually diagnosed as the outward evidence of a

back injury. The injury required surgery. Despite the operation,

Erftmier remains disabled. As a result of the incident, his ability to

continue employment as a physical laborer has been permanently

impaired.

The district court found that, because of its size, configuration,

location, and distance off the deck, the access hole was not a

reasonably safe place for work aboard the vessel. The court

concluded that Rowan was negligent in its failure to provide a

reasonably safe work environment, and its negligence caused

Erftmier’s injury. The court also found that Rowan’s failure to

provide a reasonably safe work place rendered the ROWAN III

unseaworthy. It is these findings that Rowan contends are clearly

erroneous,

Under the Jones Act, a vessel owner will be deemed negligent if

he fails to exercize reasonable care to maintain a reasonably safe

work environment, Michalic v. Cleveland Tankers, Inc., 364 U.S.

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325, 327 (1960); Verrett v. McDonough Marine Service, No. 82-

3001, slip. op. 4700, 4704 (Sth Cir. May 31, 1983); Ober v. Penrod

Drilling Co., 694 F.2d 68, 70 (Sth Cir. 1982); Ceja v. Mike Hooks,

Inc., 690 F.2d 1191, 1193 (Sth Cir. 1982). This court may not disturb

the district court's assessment of the owner's negligence unless the

court's finding is clearly erroneous. Verritt, slip op. at 4704; Ober at

70.

A vessel is unseaworthy if it and its appurtenances are not

reasonably safe and fit for their intended use. Mitchell v. Trawler

Racer, Inc., 363 U.S. 539, $50 (1960); Ceya at 1193; Stevens v.

East-West Towing Co., 649 F.2d 1104, 1107 (Sth Cir. 1981). cert.

denied, 102 S. Ct. 1007 (1982). Again, the district court's findings

with respect to the vessel's seaworthiness are entitled to clearly

erroneous review. Ober at 70. The burden of proving unsea-

worthiness and negligence is on the seaman. Loehr v. Offshore

Logistics, Inc., 691 F.2d 758, 762 (Sth Cir. 1982).

A review of the record leaves us with a definite and firm

conviction that a mistake has been made. There is no question that a

seaman was required to bend over in order to pass through the

access hole. It is likewise true that the conduits, pipes and associated

hardware made entry more difficult. But passage through the hole

was no more bothersome than many of the normal tasks of a

seaman. The job by its very nature is an arduous one. In the

ordinary course of his duties, a typical seaman must bend over and

reach up. He must lift heavy objects, work in confined spaces, and

traverse wet and inclined decks. He must climb down ladders, pass

through scuttle holes, manuever in difficult areas, and negotiate

narrow catwalks. He must operate intricate equipment, handle

potentially dangerous tools, suffer the wrath of the elements, and

work long, weary hours. “There are inevitable hazards--some of a

very severe nature--in the calling of those who go to the sea in ships,

hazards which when not occasioned by negligence or unsea-

worthiness, have to be borne by those who follow the calling.”

Massey v. Williams-McWilliams, Inc., 414 F.2d 675, 678 (Sth Cirs),

A-6

cert. denied, 396 U.S. 1037 (1969). It is the responsibility of the

owner to supply a reasonably safe work environment in which the

seaman can perform his demanding duties, not an accident-free

ship. Trawler Racer, Inc., 362 U.S. at 550.

If the size and shape alone of the access hole rendered the

ROWAN III unseaworthy, then record testimony indicates that

almost every modern ship of a substantial size is unseaworthy. The

hole was virtually identical in size and shape to many other scuttle

holes found in the ROWAN II and other modern vessels. Several

seamen testified that they had passed through such holes, and

particularly this hole, without incident. They testified that passage

through such holes is part of the ordinary, run-of-the-mill duties of

a roustabout.

It is also a prevalent practice to locate scuttle holes and hatches

several inches above deck level. The purpose of this practice is to

prevent water that may collect on some portions of a deck from

flow ng between compartments. In this way, standing water may be

isolated, and instead of two or more compartments having wet and

slippery floors, only one compartment will be affected. Safety on

board, as weell as the integrity of the ship, is promoted, not

impeded.

The record, including photographic evidence, shows that it was

necessary lor a seaman to negotiate two pipes and avoid two small

electrical conduits in order to enter the hole. But many, if not most

scuttle holes are found deep in the innards of a ship where such

pipelines and conduits abound. It would be extremely difficult to

design all such passagways so that ingress would never be imparied

by conduits, valves, meters, beams, fittings, cylinders, or other

obstructions. This is especially true when the hole must be located

below a bathroom and beside a boiler room.

Of particular relevance is the fact that the void space was rarely

entered. The only need to enter the area was to do maintenance

work. Asa result, long stretches of time would pass during which no

A-7

crew members would go into the area. We woul be presented with an

entirely different case if the hole provided access to a dining or

sleeping area, a workshop, or a regularly used storage area.

The court’s finding that the access hole created an unreasonably

dangerous working environment is clearly erroneous. Because the

court's conclusions that Rowan was negligent and thatthe ROWAN

11] was unseaworthy were completely dependent on this finding, we

reverse. Because no further factual development is called for, we

render judgment here for Rowan.

REVERSED AND RENDERED

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No, 82-2465

BRUCE ERFIMIER,

Plaintiff-Appellee,

versus

ROWAN COMPANIES, INC...

Defendant-Appellant

Appeal trom the United States District Court for the

Southern District of Texas

(September 12, 1983)

ON PETITION FOR REHEARING

Before CLARK, Chiet Judge, and GOLDBERG, Circuit Judges.*

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the

above entitled and numbered cause be and the same is hereby

DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

* This order ts being entered by a quorum of this court pursuant to 28 U.S.C. § 46

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

BRUCE ERFIMIER

Vs

ROWAN COMPANIES, INC

C.A. NO. H-81-2475

FINAL JUDGMENT

In accordance with the Findings of Fact and Conclusions of

Law entered this date, the Court hereby ORDERS:

that Plaintiff have judgrnent against Defendant in the amount

of six hundred thousand dollars ($600,000) with interest at 10.41%

from the date of judgment until paid;

that costs of Court are taxed to Defendant.

This isa FINAL JUDGMENT.

SIGNED AND ENTERED this 4th day of October 1982.

GEORGE E. CIRE

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

BRUCE ERFTMIER

vs

ROWAN COMPANIES, INC

C.A. NO. H-&1-2475

FINDINGS OF FACT

AND CONCLUSIONS OF LAW

[his case was tried to the Court on Tuesday, September 21,

1982 and oral argument was concluded on Wednesday, September

22. 1982. The Court heard all the evidence, the counsel's arguments

of law, and rendered judgment for Plaintiff in the amount of

$600,000.

Findings of Fact

|. The Plainuff. Bruce A. Erftmier, a seaman roustabout,

brought this action against his employer, Rowan companies, Inc.,

the owner and operator of the Drilling Tender ROWAN Iil, to

recover damages tor personal injuries he sustained on board the

vessel on or about November 30, 1980.

2. Plaintiff's cause of action was brought pursuant to the

Jones Act, 42 U.S.C. § 688, and the General Maritime Law of the

United States.

3. The Plaintiff, at all times material hereto, was and now isa

resident of the State of Texas.

4. The Defendant, Rowan Companies, Inc.. was at all

material times hereto the owner and operator of the vessel, a drilling

A-11

tender barge without motor power. The D T ROWAN III was

anchored alongside an offshore oil well drilling platform off the

coast of Louisiana, in the Gult of Mexico, and served as a tender to

Rowan Rig | 1, which was located on the platform.

5. Defendant no longer owns D T ROWAN III, which was

sold to South Texas Offshore Drilling Company, Inc. in January

1982.

6. Onthe date of the incident leading to this suit, the Plaintff

was classified as a head roustabout and had three other roustabouts

in his crew, Robert Johnson, Paul Loftin, and Donald Kervin. The

roustabout crew was chipping rust and cleaning and painting a void

space located beneath a bathroom on the port side of the vessel.

7. The roustabouts in the Plaintiff's crew had been chipping,

cleaning, and painting in the void space for approximately two days

when he attempted to enter the void space to supervise their work.

8. The void space was aft of the boiler room and its entry was

through a vertical, oblong access way (sometimes referred to as a

scuttle hole), approximately 2 -2'4 feet high and 18 -20 inches wide.

The bottom of the access way was approximately 6 inches above the

deck.

9. There were one or more steel pipes partially obstructing

the scuttle hole leading into the void space.

10. Because of the small size, shape, and location of the scuttle

hole, Plaintiff had to stoop and bend his body in order to attempt an

entry. During this effort, he injured his back.

11. Although Plaintiff expereinced pain in only his leg at the

time, subsequent medical eximinations determined that the pain he

experienced in his leg derived from an injury to his back.

12. Although Plaintiff did not recall specifically mentioning

the incident to other crewmembers, he testified that he did cry out at

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the time of his injury. Seaman Lottin testified on deposition that he

heard Plaintiff groan or cry out at the time.

13. Plaintiff did not report this incident to his supervisor at the

time, but continued to complete his hitch before being retured to

shore ona regular rotational schedule. He stayed off his leg for most

of the time during his week off because he thought he had merely

pulled a muscle.

14. During his next hitch on the vessel, Plaintiff tried to

continue his duties as head roustabout, but the pain became worse

and he had difficulty walking.

1S. Still believing that his problems lay with the muscle in his

ieg. Plaintiff saw his regular physician, Dr. Joseph Davidow, about

three time during the month of December 1980. At the end of the

third visit Dr. Davidow speculated that the problem was an injury

to the back rather than his leg and Dr. Davidow referred him toa

hospital. Upon Detendant’s suggestion, however, Plaintiff instead

made an appointment with Dr. Robert A. Fulford.

16. Under Dr. Fultord’s care, Plaintiff was admitted to St.

Luke’s Hospital on January 11, 1981. While there, Plaintiff

underwent lumbar spine X-rays, a lumbar myelogram and

discogram, a CAT scan, and various other tests. The physician's

| diagnosis at the time was that there was a bulging of the LS-S1 disc,

or degenerative lumbar disc disease. Planutf however was released

| trom the hospital on January 22, 1981 without surgery because the

physician telt that further conservative treatment at home could

improve Plaintiff's situation.

17. Afteranaggravating incident, Plaintiff was finally admitted

for surgery on February 5, 1981. On February 6, 1981, Plaintiff

underwent a lumbar laminotomy. Plaintitf testified that as a result

of this surgery a majority of the pain that he had previously

exprienced was relieved.

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18. Plaintiff returned to work inabout May of 1981. Although

he resumed the position of head roustabout on the same vessel, he

subsequently requested to be dropped to the position of a regualr

roustabout because the position of head roustabout required too

much physical activity for his impaired condition.

19. A second incident on board the vessel further aggravated

Plainutt’s back pain. As the deposition of Dr fulford evidences,

the date of the second incident was on or before November 9, 1981.

20. After the second event Plaintiff took some time off from

work because he did not feel physically capable of the job

requirements. When he returned to the vessel later that month he

wus terminated.

2!. Because of the size, configuration, and distance off the

deck, the scuttle hole which Plaintiff attempted to craw! through in

Novebmer 1980, was not a reasonably safe place for Plaintiff to

work aboard the vessel.

22. The Defendant was negligent in its failure to provide a

reasonably safe place for Plantiff to work and such negligence was

the proximate and or producing cause of the Plaintiff's injuries.

23. The Defendant’s failure to provide a reasonably safe place

to work for Plaintiff rendered the vessel unseaworthy and such

unseaworthy condition was the proximate and producing cause of

Plaintiff's injuries.

24. Plaintiff performed his job ina manner that was reasonably

expected of him, i.e. he did exactly what he was told to do by his

supervisors. The Plaintiff was merely attempting to perform the

tasks assigned to him by Defendant and he was not guilty of

contributory negligence in any degree.

25. As a direct result of the incident in question, Plaintiff

suffered serious injuries to his back and body generally, which

required medical care and treatment, including back surgery.

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26. Plaintiff has not yet fully recovered from his injuries and

will undoubtedly require additional medical treatment in the future.

Plaintiff is still experiencing a great deal of pain from the injury he

received in November 1980 and will continue to do so in the future.

His ability to obtain and retain employment has been permanently

imparied.

27. for physical pain, mental suffering. physical impairment, |

and loss of earnings, both past and future, Plaintiff has sustained

$600,000 in damage for which he ts due compensation trom

Detendant.

Conclusions of Law

1. Atalltimes material hereto the Plaintiff was a seaman and

member of the crew of Drilling Tender ROWAN III, a vessel in

navigation as that term is known in maritime law, and as such ts

entitled toall the protections and remedies afforded a seaman under

the Jones Act. 46 U.S.C. § 688. and the General Maritime Law of

the United States. See Producers Drilling Company v. Gray, 361

F.2d 432 (Sth Cir. 1966).

2. The doctorine of unscaworthiness and seamans’ personal

injury actions “comtemplates that a ship’s hull, gear. applicances,

ways, appurtenance and manning will be reasonably fit for its

intended purpose.” 2 M. Norris. THE LAW OF MARITIME

PERSONAL INJURIES 3d, § 298 at 1 (1975 & Supp. 1982). See

Mitchell y. Trawler Laser, Inc.. 362 U.S. 3539. 80S. Ct. 926 (1960):

Webb vy. Dressler Industries, 536, F.2d603,606 (5th Cir. 1976), cert.

denied, 429 U.S. 1121.978. Ct. 1187(1977): Wilkerson v. Teledyne

Movable Offshore, Inc..496 &. Supp. 1279, 1284 (E.D. Tex. 1980).

3. The doctrine of unseaworthiness extends to the ship-

owner's duty to provide the crew of a vessel with a reasonably safe

place in which to work. Rogers v. United States, 452 F.2d 1149,

1154 (Sth Cir. 1971); Corraru v. M/V ACT 111, 359 F. Supp. 1160.

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1163-64 (S.D. Fla. 1973). The Drilling Tender ROWAN III was

unseaworthy tn that, because of its size, shape and location, the

entranceway to the void or crawl space did not provide for safe

ingress to and egress from the void or crawl space. This unseaworthy

condition was aproximate cause of Plaintiff's injuries.

4. In Jones Act negligence cases, the employer's negligence

need be only slight and then need be merely a contributing cause of

Plaintiff's injuries. Reyes v. Vantage Steamship Co., 609 F.2d 140,

146 (Sth Cir. 1980); Wilkerson, supra at 1284.

5. Defendant was negligent because it failed to provide a safe

place for Plaintiff to perform his assigned tasks.

6. Plaintiff was merely performing the work that he had been

assigned by Defendant and his acts did not constitute any con-

tributory negligence.

7. For past and future physical pain, mental suffering,

physical impairment, and loss of earnings, Plaintiff is entitled to

recover oi and from Defendant the sum of $600,000.

8. Inthe event that any of the foregoing findings of facts are

properly conclusions of law, they are so adopted. In the event that

any of the precedinv conclusions of law are more properly findings

of fact, they are so adopted

SIGNED AND ENTERED this 4th day of October 1982.

October 1982.

GEORGE E. CIRE

UNITED STATES DISTRICT JUDGE