Petition — Diamond M Drilling Co. v. Cason

63-1379 [Pri |

NO. FEB 16 1908

In the

Supreme Court of the Bnited States

OCTOBER TERM, 1983

DELTON H. CASON

Petitioner

VERSUS

DIAMOND M DRILLING COMPANY, AND

UNION OIL COMPANY OF CALIFORNIA

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE LOUISIANA STATE SUPREME COURT

JOSEPH J. WEIGAND, JR.

WEIGAND, WEIGAND & MEYER

#7 Progressive Bivd.

Houma, La. 70361

Tel: (504) 876-3071

Attorney for Respondents

iblus inn ie Gann LLL ee

i

QUESTION PRESENTED FOR REVIEW

The sole issue is whether or not a State Court sitting

as an Admiralty Court is bound by the admiralty laws of

the United States.

ii

LIST OF INTERESTED PARTIES

Diamond M Drilling Company is a company owned

by Kaneb which is a publicly-traded corporation.

Union Oil Company of California is a publicly-traded

corporation.

iii

TABLE OF CONTENTS

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TABLE OF AUTHORITIES ~

CASE P

EE RP re ae

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

DELTON H. CASON

Petitioner

VERSUS

DIAMOND M DRILLING COMPANY, AND

UNION OIL COMPANY OF CALIFORNIA

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE LOUISIANA STATE SUPREME COURT

DECISIONS BELOW

The Supreme Court of the State of Louisiana denied

Supervisory Writs for the First Circuit Court of Appeal! on

November 18, 1983. A copy of that Order as to Union Oil

Company is attached as Appendix ‘‘A”’ and a copy of that

order as to Diamond M Drilling Company is attached as

Appendix “‘B’’. Applications for rehearing to the First Cir-

cuit Court of Appeal, State of Louisiana were denied on

September 7, 1983 and are attached as Appendix ‘‘C’’. The

decision of the First Circuit Court of Appeal, State of Loui-

siana was lodged on August 23, 1982. A copy of that Judg-

ment and decision is attached hereto and is marked Appen-

dix “‘D’’. The opinion of the First Circuit Court of Appeal

is reported at 423 So.2d 108. The Sixteenth Judicial

District Court, Parish of St. Mary, State of Louisiana,

2

rendered its Judgment and Reasons for Judgment, the first

Judgment was dated September 2, 1981 and was supported

by Reasons for Judgment of the same date. These are at-

tached as Appendix ‘“‘E’’. The second Judgment entered by

the Sixteenth Judicial District Court, Parish of St. Mary,

State of Louisiana is dated February 2, 1982 and is attach-

ed as Appendix “F’’.

JURISDICTION

The District Court, Parish of St. Mary, State of Loui-

siana, originally entered Judgment on September 4, 1981.

After a partial new trial, a second Judgment was entered

on February 2, 1982. A Devolutive Appeal was taken and

the Court of Appeals, First Circuit, State of Louisiana,

vacated the Judgment of the District Court and entered

Judgment based upon new findings of fact by the Court of

Appeals. Application for Writs to the Supreme Court of

Louisiana were denied on November 18, 1983. The Supreme

Court of the State of Louisiana stayed the Judgment of the

First Circuit Court of Appeal, State of Louisiana pending

application of writs to this Court.

Jurisdiction is conferred upon this Court pursuant to

28 U.S.C. §1254(1) and 28 U.S.C. §2101(c).

STATUTES .

There is no particular statute involved in this case.

The law applicable is the Jones Act, 46 U.S.C. 688, Federal

Statute and the Admiralty Laws of the United States as

derived from the Constitution.

3

STATEMENT OF THE CASE

The plaintiff, Delton H. Cason, filed suit under the

Jones Act and ‘Admiralty Laws of the State of Loui-

siana,’’ for injuries sustained on December 31, 1977 on Dia-

mond M Company’s vessel, RIG 99, in the Gulf of Mexico

off the Coast of Texas, against Diamond M Drilling Com-

pany. This suit was filed on May 30, 1979. Subsequently,

on November 29, 1979, the plaintiff amended his suit to

plead a claim against Union Oil Company for negligence

under the General Maritime law.

The case was tried to a jury on July 7, 8 and 9, 1981

and the jury found in favor of the plaintiff and awarded

$493,000.00. The jury found the plaintiff ten (10%) percent

contributorily negligent and the Judgment was reduced to

$443,000.00. As to the defendants, the jury found that Dia-

mond M was negligent under the Jones Act, but found that

its rig was not unseaworthy. The jury found Union Oil

negligent for failing to properly supervise the work and for

furnishing a defective well templet to be used on Diamond

M’s RIG 99. The jury allotted sixty (60%) percent

negligence to Diamond M and forty (40%) percent

negligence to Union Oil pursuant to the Admiralty Laws of

the United States,

Additional issues included prejudgment interest and

an indemnity agreement between Union Oil and Diamond

M which issues were taken under advisement by the

district judge. The district judge concluded that prejudg-

ment interest would not be awarded and awarded indemni-

ty to Union Oil in the amount of $100,000.00 based upon

the contract between Diamond M and Union Oil. The

district court applied Texas law to the contract. Diamond

M and Union Oil both moved for a new trial. Diamond M's

4

motion was denied and Union Oil was granted a new trial.

Diamond M objected to the retrial of the case to Union Oil

only, because the issues were so entwined that the second

jury could not properly decide the case unless the entire

case was retried. The jury on the second trial found Union

Oil free of negligence and the district judge, without

authority, assessed a forty (40%) percent negligence,

assessed by the first jury against Union Oil, against Dia-

mond M.

The district court then took under advisement court

costs and prejudgment interest. Despite the Court’s state-

ment that prejudgment interest would not be awarded, in

the judgment of February 2, 1982, prejudgment interest

was awarded from July 9, 1981. Diamond M appealed to

the First Circuit alleging that the doctrine of unseawor-

thiness was not properly pled under the General Maritime

Law co: the United States, the district court was in error in

granting a new trial to Union Oil only because the

negligence of Union Oil and Diamond M was so interwoven

that a fair trial could not be obtained, the damages were ex-

cessive because the treating physician testified the plain-

tiff could return to his previous employment and the plain-

tiff was engaged as a logger at the time of the trial; and

finally, based upon Texas law, the contract between Dia-

mond M and Union Oil did not require Diamond M to in-

demnify Union Oil for $100,000.00.

Union Oil appealed to the First Circuit, contending

that it was entitled to full indemnity from Diamond M and

that the case had prescribed, because it was not filed within

one year.

Delton H. Cason appealed to the First Circuit conten-

ding that the second trial as to Union Oil was improper,

5

and that the ten (10%) percent contributory negligence ap-

plied to the plaintiff was ‘clearly erroneous.”

The First Circuit found that the claim against Union

Oil was not untimely, in that laches applied, because

Federal Law applied to a maritime claim; the district court

erred in finding a new trial to Union Oil only; the First Cir-

cuit reinstated the forty (40%) percent negligence against

Union Oil Company; the First Circuit found that in a

maritime claim brought in State Court, the trial court must

have been ‘‘clearly erroneous”’ in order for its holding to be

overturned and the finding of negligence against Union Oil

was not ‘‘clearly erroneous;’’ that the finding of ten (10%)

percent comparative negligence as to the plaintiff was

“clearly erroneous;”’ and finally, that maritime law govern-

ed the contract between Diamond M and Union Oil and

that based upon the maritime law, Union Oil was entitled

to full indemnity from Diamond M Company.

A rehearing was applied for by Union Oil and Dia-

mond M and both were denied.

Writs to the Supreme Court, State of Louisiana were

denied.

ARGUMENT

At the District Court level, the jury found the plain-

tiff to be ten (10%) percent contributorily negligent. The

Court of Appeals First Circuit State of Louisiana reversed

the findings of fact of the jury as to the plaintiff's con-

tributory negligence and made the plaintiff whole.

The Appellate Courts of the State of Louisiana under

the laws of the State of Louisiana reserve the right to

6

review the findings of fact of the lower Courts and/or juries

and to amend or alter the facts.

CONCLUSION

In this case, the First Circuit Court of Appeal State

of Louisiana was sitting as an admiralty court under the

laws of the Constitution of the United States. This fact is

recognized in the opinion rendered by the First Circuit

Court of Appeal State of Louisiana. Sitting as an admiralty

court under the laws of the United States, the First Circuit

Court of Appeal State of Louisiana, did not have the right

to alter or amend the findings of fact of the jury unless

those facts were clearly erroneous. The First Circuit Court

of Appeal State of Louisiana did not adhere to its respon-

sibility under the Admiralty Laws of the United States but

in fact, acted as a typical Louisiana Court of Appeal and

reversed the findings of fact of the jury as to the plaintiff's

contributorily negligence. It is respectfully submitted that

had the First Circuit Court of Appeal State of Louisiana

acted as an Admiralty Court under the Laws of the United

States that it would not have reversed the findings of fact

of the jury as to the plaintiff's contributorily negligence.

JOSEPH J. WEIGAND, JR.

P.O. Box 6062

#7 Progressive Blvd.

Houma, La. 70361

Tel: (504) 876-3071

Counsel for DIAMOND M

DRILLING COMPANY AND

UNION OIL COMPANY OF

CALIFORNIA

7

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of the

foregoing Petition for Writ were served upon counsel of

record in this matter by United States Postal Service, first

class postage, properly addressed, on this 16th day of

February, 1984.

JOSEPH J. WEIGAND, JR.

A-l

APPENDIX “A”

THE SUPREME COURT OF THE

STATE OF LOUISIANA

DELTON H. CASON |

vs NUMBER 83-C-2091

DIAMOND M. DRILLING COMPANY ET AL

In Re: Diamond M. Drilling Company et al, apply-

ing for writs of Certiorari and/or Review to

the First Circuit Court of Appeal, Number

82-CA-0638; 16th Judicial District Court,

Parish of St. Mary, Number 60,777

November 18, 1983

Denied.

JCW

JAD

PFC

WFM

JLD

FAB

HTL

Supreme Court of Louisiana

November 18, 1983

Clerk of Court

For the Court

73

A-2

APPENDIX “B”

THE SUPREME COURT OF THE

STATE OF LOUISIANA

DELTON H. CASON

VS NUMBER 83-C-2118

DIAMOND M. DRILLING COMPANY AND

UNION OIL COMPANY OF CALIFORNIA

In Re: Union Oil Company of California, applying

for Supervisory Writs to the First Circuit

Court of Appeal, Number 82-CA-0638; from

the Sixteenth Judicial District Court, Parish

of St. Mary, Number 60,777

November 18, 1983

Denied.

HTL

Supreme Court of Louisiana

November 18, 1983

Clerk of Court

For the Court

A-3

APPENDIX “C”’

COURT OF APPEAL, FIRST CIRCUIT

STATE OF LOUISIANA

No. 82-CA 0638

Parish of St. Mary

DELTON H. CASON

US.

DIAMOND M. DRILLING COMPANY, ET AL

On Applications For Rehearing.

Rehearings Denied

Baton Rouge, Louisiana Sep. 7, 1983

(Signed)

Edwards, J.

(Signed)

Watkins, J.

(Signed)

Shortess, J.

Filed Sep. 7, 1983

Clerk

A-4

I hereby certify this document was mailed to: William Bag-

gett, Joseph Weigand, & Raymond Allen, Attys. This Date

Sep. 7, 1983

/S/Karen West

Dp. Clerk of Court

A-5

APPENDIX “D”

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

P.O. Box 3237

Baton Rouge, Louisiana 70821

DATE: OF LODGING: August 23, 1982

Docket Number: 82 CA 0638

DELTON H. CASON

VERSUS

DIAMOND M. DRILLING CO., ET AL

NOTICE OF JUDGMENT

TO:

William B. Baggett, Atty.

Joseph J. Weigand, Jr., Atty.

Raymond Morgan Allen, Atty.

Dear Sirs:

You are hereby served with a copy of the opinion in

the above case in which you are an attorney of record.

Your attention is invited to the amended Rule XI of

the Uniform Rules of the Courts of Appeal. Please note Ar-

ticle 2166 of the Code of Civil Procedure, as amended effec-

tive January 1, 1978.

CLERK OF COURT

I hereby certify this notice of judgment was mailed

to the above listed attorneys and/or parties this date Jun

28, 1983.

/S/Karen West

DP. CLERK OF COURT

A-6

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 82 CA 0638

DELTON H. CASON

VERSUS

DIAMOND M DRILLING COMPANY, ET AL.

ON APPEAL FROM THE SIXTEENTH

JUDICIAL DISTRICT COURT, PARISH OF

ST. MARY, HONORABLE ROBERT E.

JOHNSON, JUDGE PRESIDING.

BEFORE: EDWARDS, WATKINS AND SHORTESS,

JJ.

WATKINS, J.

This is a personal injury action brought by Delton H.

Cason against Diamond M Drilling Company and Union

Oil Company of California for injuries sustained by Cason

when a well guide or templet on which Cason was engaged

in welding fell into the Gulf of Mexico from a jackup rig,

Diamond M 99. Diamond M had drilled a well from the rig,

which was in the process of being plugged and abandoned.

Cason was on the well guide cutting gussets with a welding

torch, carrying out his duties as a maintenance welder

employed by Diamond M, when the well guide fell into the

Gulf. Union Oil owned the well guide and gussets, as well

as the drive shaft to which the gussets were attached.

Union Oil filed a third party demand against Dia-

mond M, seeking indemnification under a contract alleged-

ly providing for indemnity, if Union Oil was found liable.

A-7

Suit was originally filed in Cameron Parish. The case

was transferred to St. Mary Parish before trial after the fil-

ing of an exception of improper venue by Diamond M.

Thereafter, Diamond M again filed an exception of im-

proper venue,! and Union Oil filed an exception of lack of

jurisdic .ion over the subject matter, as the rig upon which

the accident had occurred had been located near Texas ter-

ritorial waters off High Island, Texas. Also, exceptions of

prescription or laches were filed by both defendants. All ex-

ceptions were overruled and the case proceeded to trial on

the merits, which took place before a jury on all issues, ex-

cept indemnity. The sole basis for possible liability of Dia-

mond M was under the Jones Act (as Cason’s employer)

and the sole basis for possible liability of Union Oil was

under the general maritime law of negligence.

The jury returned a verdict finding Cason 10%

negligent, and ‘using 100% as the total amount of

negligence by the defendants’ found Diamond M 60%

negligent and Union Oil 40% negligent. Total damages to

plaintiff were assessed by the jury in the amount of

$493,000.00. Union Oil and Diamond M filed motions for a

new trial or remittitur. Only Union Oil was granted a new

trial, which was limited to the question of the liability of

Union Oil. A new trial was held before a separate jury on

this issue, which found Union Oil not negligent undex the

general maritime law, and hence not liable. The trial court,

based upon the jury’s finding of 10% comparative

negligence on the part of Cason, rendered judgment in

favor of Cason and against Diamond M in the sum of

$443,700.00. From the judgment Diamond M and Cason

Appealed. We affirm in part and reverse in part.

? Diamond M also filed an exception of no right of action which

was overruled by the trial court. No appeal from that ruling was taken.

A-8

FACTS

Cason, who was previously employed as a bench

welder and as a logger, had only a high school education.

At the time of the accident, he was in his early thirties, and

was employed as a maintenance welder.

The rig on which Cason was employed was owned by

Diamond M, which as an independent contractor had

undertaken to drill the well in question for Union Oil by

modification of a prior agreement to drill a well in a dif-

ferent location (at Main Pass) for Mobil Oil. A Union Oil

representative was on the rig, Dennis Romero, who was a

graduate petroleum engineer, and who had general supervi-

sion over the tool pusher, Ken Smith. Romero testified at

both the original trial and the new trial, but Smith could

not be located to testify.

Diamond M had drilled a well for Union Oil from the

rig in question, which operated from a movable drilling

barge with jackup legs. The well was being plugged and

abandoned. On the date of the accident on or about

December 31, 1977, the well guide, which was used to guide

the drive shaft, had been lifted from the ocean floor. The

well guide was a 5 or 6 ton steel girder box which was held

up, once lifted from the water, by gussets attached to the

drive shaft both at the top and bottom of the box-like well

guide. It was necessary to cut the gussets to salvage the

well guide, which, as we have said, belonged to Union Oil.

Cason, the maintenance welder, and a worker named Stelly,

were assigned the task of cutting the gussets.

Smith explained the procedure to Romero. Romero

had no experience in retrieving well guides, although he

had had several years practical experience in working on

A-9

drilling rigs. After hearing Smith’s explanation, Romero

agreed to the procedure. The bottom gussets were to be cut

first. The well guide was to have a secundary support from

two air hoists, the lines of which ran near the edge of the

Texas Deck, which lay immediately below the drilling deck.

When Cason was assigned the task of cutting the

gussets, he expressed apprehension to both Smith and

Romero, but Smith assured him the procedure was safe.

Cason was lowered to the well guide.

The air hoist lines if left taut would brush the sides

of the Texas Deck. For this reason the lines were left slack

until pads could be placed at the ends of the Texas Deck to

cover the sharp edges of the deck. Although Romero was

on the Texas Deck for about ten minutes, he failed to

observe that the lines were not taut.

Cason started to cut the bottom gussets, and while

he was in the act of cutting the last bottom gusset, the

gussets on the top or the supports leading from the top

gussets to the well guide gave way, and the entire weight

of the well guide fell on the air hoist lines, which also gave

way because they were slack. The well guide plummeted to

the Gulf, which was about 30 or 40 feet below, carrying

Cason and Stelly.

Cason blacked out momentarily while he was falling,

but after going beneath the surface of the Gulf, to a con-

‘siderable depth, rose to the surface. Both Cason and Stelly

were saved.

Cason suffered a compression fracture of the first

and second lumbar vertebrae. He also suffered a burst ear

drum. He was taken to John Sealy Hospital in Galveston,

A-10

and then placed under the care of Dr. Don H. Burt, an or-

thopedic surgeon in Shreveport. Following Dr. Burt’s ad-

vice, Cason attempted to return to work, but had to stop

working after a short time because of intense pain, which

was caused by assuming awkward positions while welding.

Cason thereupon started logging with his father, at a con-

siderable reduction in wages. He appears to have been

engaged in logging up to the time of the trial.

The appeals raise practically the entire range of

issues considered by the trial court, including the

exceptions.

EXCEPTIONS

The present action seeking recovery under the Jones

Act and general maritime law is brought under the “‘saving

to suitors” clause of 28 USC § 1333, which saves to suitors,

bringing an in personam claim seeking relief under the laws

of admiralty, a remedy in a ‘‘common law’”’ (i.e., non-

admiralty) court. In an action brought in state court under

the ‘‘saving to suitors” clause, federal substantive law ap-

plies, but where the result is not substantially affected, the

procedural law of the forum applies. Lavergne v. Western

Co. of North America, Inc., 371 So.2d 807 (La. 1979),

Gilmore and Black on Admiralty, §§ 1-13 (2d ed. 1975). As

the forum is the District Court of Louisiana, this State’s

procedural law applies in all aspects of the present case

where the result is not substantially affected.

Jurisdiction and venue are quite obviously matters

that are governed by Louisiana law in the present case.

Diamond M is a foreign corporation authorized to do

business in Louisiana, having an agent for service of pro-

cess in this state. Therefore, LSA-C.C.P. art. 42(4) applies

A-11

in determining whether or not venue lies in St. Mary

Parish, Louisiana:

“The general rules of venue are that an action

against:

(4) A foreign corporation licensed to do business

in this state shall be brought in the parish where

its principal business establishment in the state

is located, as designated in its application to do

business in the state;’’

It appears to be agreed by all parties that the prin-

cipal place of business of Diamond M in this state is in St.

Mary Parish. Therefore, venue lies in St. Mary Parish.

As to Union Oil's exception of lack of subject matter

jurisdiction, the trial court obtained jurisdiction over the

person of both Diamond M and Union Oil. A Louisiana

court which has jurisdiction over the person and which has

before it a ‘saving to suitors’’ action brought in personam

under the Jones Act and general maritime law clearly has

jurisdiction over the subject matter. See LSA-C.C.P. art. 2.

Thus, there is no merit to Union Oil's exception of lack of

subject matter.

As to the pleas of prescription and laches, these are

substantive matters, to which federal law applies. The

statute of limitations under the Jones Act is 3 years.

Laches applies to a general maritime claim. The accident

occurred on or about December 31, 1977. Cason filed suit

in state court against Diamond M on May 30, 1979. A suit

had earlier been filed in Federal court against both Dia-

mond M and Union Oil, which was dismissed without pre-

judice on May 16, 1979. Plaintiff filed a pleading styled

A-12

“Second Supplemental and Amending Petition’ in state

court naming Union Oil as an additional party defendant

on November 29, 1979.

Clearly, the 3 year statute of limitations under the

Jones Act had not expired. Especially in view of the fact

that an earlier suit had been filed in Federal court against

both Diamond M and Union, we find that the equitable doc-

trine of laches is inapplicable to the maritime claim.

NEW TRIAL

Diamond M and Cason contend that a new trial

should not have been granted to Union Oil, because (1) a

new trial may be granted only if the jury’s finding is con-

trary to the ‘‘great weight”’ of the evidence (Narcisse v. II-

linois Central Gulf Ry. Co., 620 F.2d 544 (5th Cir. 1980)),

and (2) the respective liabilities of Union Oil and Diamond

M were so intertwined that a new trial should not have

been granted as to one only. Because we agree with the se-

cond contention, we find it unnecessary to consider the

merits of the first.

Applying the admiralty doctrine of comparative

negligence, the jury in the first trial, as we have stated,

found Diamond M 60% negligent, Union Oil 40% negligent

as between the two defendants, and Cason 10% negligent.

Granting a new trial to determine the negligence vel non of

Union Oil inevitably affected the percentage of com-

parative negligence for which Diamond M would be held

liable under the Jones Act. As stated in Moore’s Federal

Practice, Vol. 6, § 59.06 at pp. 59-80, and the cases cited

therein, a partial new trial cannot be granted if the issues

as to which the partial new trial is ordered are so intertwin-

ed with issues as to which it is not ordered that the partial

A-13

new trial cannot be held without substantial injustice

resulting therefrom. We find the granting of the new trial

in the present case to have resulted in serious injustice to

Diamond M, as the question of the comparative negligence

of Diamend M was determined although it was not granted

a new trial, and although the relative or comparative

percentages of liability of Diamond M and Union Oil were

bound one by the other.

As we find a partial new trial was improperly

granted, we are limited to the transcript of the proceedings

of the first trial in our review, and it is to that transcript

that we shall confine our further consideration.

LIABILITY OF DIAMOND M

Diamond M was clearly negligent through its tool

pusher, Ken Smith, in having ordered Cason to cut the

gussets above the Gulf, especially in view of the fact that

the well guide was not properly secured. We affirm the fin-

ding of negligence on the part of Diamond M.

LIABILITY OF UNION OIL

The original jury found Union Oil to have been 40%

negligent.

In a maritime claim brought in state court, the trial

court must have been ‘‘clearly erroneous’’ in order for its

holding to be overturned. Rivers v. Schlumberger Well

Surveying Corp., 389 So.2d 807 (La. App. 3d Cir. 1980);

Portier v. Texaco, Inc., 426 So.2d 623 (La. App. 1st Cir.

1983).

The finding that Union Oil was 40% negligent, which

A-14

was arrived at by the jury in the original trial, was not

clearly erroneous, but was supported by the great weight

of the evidence. Union Oil was negligent, in the first in-

stance, in stationing a company representative to super-

vise retrieval of a well guide who had no experience with

that type of procedure. Furthermore, Romero, the company

representative actually so stationed, was himself guilty of

negligence. Romero approved the outline of the procedures

described to him by the tool pusher, Ken Smith, with

regard to cutting the gussets. Romero was on the Texas

Deck and should have seen that the secondary supports for

the well guide in the event the upper gussets were to fail,

viz. the air hoist lines, were not taut, but slack, and hence,

also likely to fail in the event the upper gussets were to fail.

Romero was on the Texas Deck for some 10 minutes and

failed to inspect that aspect of the procedure. If Romero

would have had proper and sufficient experience, or had

refused to approve the procedure, or had demanded the air

hoist lines be taut, the accident would not have occurred.

Clearly, a finding of 40% negligence on the part of Union

Oil is justified by the record.

NEGLIGENCE OF CASON

Applying comparative negligence under admiralty

law, the first jury found Cason 10% negligent. This finding

was clearly erroneous.

The duty of a seaman, such as Cason, is not to find

the safest method for doing the work, but to do the work

assigned. The seaman’s duty to protect himself is slight.

Bobb v. Modern Products, Inc., 648 F.2d 1051 (5th Cir.

1981).

Cason worried aloud of the dangers of cutting the

A-15

gussets in his conversations with both Romero and Smith.

Smith assured him the procedure was safe, and in effect,

ordered Cason to perform the task. Cason had no choice but

to perform the task as assigned. There is nothing that

would indicate he violated instructions, or failed to perform

the assigned task in the safest possible manner. The jury

was clearly erroneous to have found any contributory

negligence on the part of Cason, in any percentage at all.

Accordingly, we hold Cason free from negligence.

QUANTUM

After Cason sustained his injury and was discharged

from treatment by Dr. Burt, Cason attempted to return to

his old job as a maintenance welder for Diamond M. After

a brief time, he found that he could not perform his duties

without suffering intense pain, as he was required to

assume awkward postures, principally crouching, while

welding. For that reason, Cason quit his job as welder, and

went to work for his father as a logger near his family home

at Campti, Louisiana. He works only part time, because of

pain. However, the pain is somewhat less in logging, in

which he can kneel, than in welding, in which he is required

to crouch.

Cason’s earnings as a logger are considerably less

than his earnings received when his physical condition per-

mitted him to weld. Cason called Donald Cornwell of the

Economics faculty at the University of Southwestern Loui-

siana to testify as to past and future loss of earnings. Mr.

Cornwell testified that the loss of earnings from date of ac-

cident to date of trial was $61,048.97, bearing in mind that

he worked for Diamond M as a maintenance welder briefly

and as a logger on a rather permanent basis during this

period. As to future loss of earnings, Mr. Cornwell testified

A-16

that Cason’s work life expectancy, at date of trial, was

30.15 years. Using this figure, Mr. Cornwell testified that

future loss of earnings, assuming Cason were to continue to

work as a logger, would come to $239,706.72, without con-

sideration of inflation. The total figure would thus be

$300,755.69. If Cason were to receive only the minimum

wage, rather than wages as a logger, his total loss of earn-

ings would come to $467,718.97.

The jury found total damages to plaintiff in the

amount of $493,000. The interrogatories submitted to the

jury did not permit the jury to break this sum down. Cason

testified that he continued to suffer pain up to the date of

the trial. Dr. Burt, the treating physician, testified that he

had no reason to doubt the veracity of Cason’s statement

that he continued to experience pain as a result of the in-

jury to his back. He testified that in his opinion Cason had

sustained a permanent disability to the entire body of 15 to

35% as a result of the accident. He further testified that

the American College of Orthopedic Surgeons would place

the disability of the entire body at 25%. A specielist who

saw Cason on two occasions as an examining physician, Dr.

Norman H. Morin of New Orleans, likewise testified that

Cason continued to experience pain, and should not return

to any type of work requiring bending, as to do so would in-

evitably cause his condition to worsen.

Thus, Cason experienced severe pain, and will con-

tinue to experience pain, in all likelihood, the remainder of

his life. Considering the pain and suffering, and partial

future loss of income, we do not find the jury’s assessment

of the loss to be excessive.

Defendants contend that the testimony of Dr. Burt

and Dr. Morin was in conflict, as Dr. Morin seemed to think

A-17

that Cason should not return to his job as maintenance

welder while Dr. Burt released Cason to return to his job in

that capacity. Defendants cite the well-known proposition

that the testimony of the treating physician is to be prefer-

red to that of a physician who examines the injured person

only once or twice. Lockhart v. Pargas, Inc., 271 So.2d 664

(La. App. lst Cir. 1972), writ refused 273 So.2d 844 (1973).

Knighten v. AM Amusement Co., 272 So.2d 60 (La. App.

4th Cir. 1973). The statement that the physicians’ testi-

mony is in conflict glosses over the essential similarity of

their respective findings. Taking their testimony as a

whole, we see from a reading of the transcript that both Dr.

M >rin and Dr. Burt thought Cason has sustained perma-

nent damage to the discs lying between the compressed

vertebrae, and both believed him to be in pain at their last

examination. Neither physician was an expert in the re-

quirements of the duties of a maintenance welder. Cason

testified that because he was required to assume a

crouching position while welding, he could not perform his

duties as maintenance welder without severe pain. The

trier of fact has to weigh both medical and lay testimony

in assessing damages, and considering the credibility and

the relative qualifications of the experts and the credibility

of all witnesses, to arrive at a result. Touchet v. Fidelity

and Cas. Co. of New York, 264 So.2d 752 (La. App. 3d Cir.

1972); Guidry v. Davis, 382 So.2d 250 (La. App. 3d Cir.

1980).

The trial court’s charge to the jury contained the

following statement:

‘““You as members of the jury are entitled to give

greater weight to the opinion of a treating physi-

cian than that of a physician who has not examin-

ed the patient, or who has examined the patient

A-18

or purposes of evaluation only. However, you are

entitled to give credibility to the testimony of any

witness as you think it deserves.”’

We cannot say, in the light of the law, that this por-

tion of the charge to the jury was in error, or, in light of the

great weight of the medical and lay testimony that Cason

was still in pain, or especially Dr. Burt’s testimony that

Cason had sustained a 15% to 35% permanent disability of

the entire body as a result of the accident, that the jury’s

assessment of damages was clearly erroneous. See Rivers

v. Schlumberger Well Surveying Corp., supra.

The trial court limited the award of damages to

Cason to the sum of $443,700.00, because of the jury’s fin-

ding of 10% negligence on the part of Cason. As we have

found Cason not to have been negligent at all, we increase

the total award to the full sum of $493,000.00. The percen-

tages of negligence shall be apportioned between Diamond

M and Union Oil as set forth below:

LIABILITY

As we find that Cason was not negligent in any

degree, it follows that 60% of the total negligence is at-

tributable to Diamond M, and 40% of the total negligence

is attributable to Union Oil.

However, the original drilling contract, entered into

between Diamond M and Mobil Oil Corporation, under date

of February 21, 1977, contained an indemnity clause in

favor of Mobil in which Diamond M agreed to hold Mobil

harmless from death, injury, or property damage arising

out of the performance of the contract. This contract

A-19

provided for Diamond M to drill a well at Main Pass Block

72 - 74 #2. By letter from Mobil to Diamond M, dated

August 25, 1977, with copy to Union Oil, it was stated that

pursuant to telephone conversation, Diamond M was to

drill a well under the same drilling contract in Union-Mobil

High Island Block A-443, with Union as operator. The

signature of a representative of Diamond M appears at the

bottom of the letter approving the agreement. The letter

states that the agreement ‘‘will fulfill commitments’’ of

both parties. Both Diamond M and Union agree that by

virtue of this letter all provisions of the drilling contract,

including the indemnity provisions, were made applicable

in favor of Union Oil against Diamond M.

The indemnity and insurance provisions of the con-

tract between Mobil and Diamond M, the rights under

which, as we have stated, were made applicable in favor of

Union Oil, read in their entirety as follows.

“14. INSURANCE AND INDEMNITY

14.1 At any and all times during the term of

this agreement, Contractor agrees to maintain in

force and submit evidence of insurance equal to or

in excess of the requirements detailed in Exhibit

B attached hereto and made a part hereof.

14.2 All insurance shall be carried in a company

or companies acceptable to Mobil and shall be

maintained in full force and effect during the term

of this agreement, and shall not be canceled,

altered, or amended without ten (10) days prior

written notice having first been furnished Mobil.

Upon request Mobil shall be furnished certified

copies of all such insurance policies.

14.3 In the event Contractor is a self-insurer

A-20

and Mobil has consented to Contractor’s being a

self-insurer as to any one or more of the risks as

to which coverage is required, evidence of such

consent must be in writing and approved by a

representative of Mobil authorized to enter into

such consent agreement. It is recognized that

Contractor is self-insured for $250,000.00 of

Workmen’s Compensation and General Liability.

14.4 Contractor shall protect, indemnity [sic]

and save Mobil harmless against any and all

claims, demands and causes of action of every

kind and character made against Mobil or in

which Mobil may be named party defendant by

Contractor’s employees, agents, or invitees, on

account of personal injury or death, or on account

of property damages (other than property

damages specifically provided for in paragraphs

6.1, 6.2 and 6.3) occurring, growing out of, inci-

dent to, or resulting directly or indirectly from,

the work to be performed by Contractor

hereunder, irrespective of whether such claims

are occasioned, brought about, or caused in whole

or in part by the negligence of Mobil, or by the

unseaworthiness of the Diamond M 99, and for

damages for infringement of any patent as more

particularly set forth in Paragraph 22 hereof.”

Paragraph 14.4 clearly obligates Diamond M to in-

demnify Mobil, and thereby Union Oil, from all claims

against Mobil (Union Oil) arising out of property damages,

personal injury, or death, in the performance of the con-

tract, even claims arising in whole or in part from the

negligence of Mobil. Thus, the contract, unless limited by

state or admiralty law, obligates Diamond M to indemnify

Union Oil fully from all claims Cason has against Union Oil

arising out of the accident sued upon, even though, as in

the present case, the accident resulted in part from the

A-21

negligence of Union Oil.

The trial court applied Texas statutory law to the in-

demnity agreement, and limited Union Oil's right to indem-

nity to $100,000.00 under effect of Texas law. The provi-

sions of Texas Revised Civil Code Annotated, Article 2212,

would, generally stated, have the effect of limiting liability

of a drilling contractor under an indemnity clause to the

amount agreed to be covered by insurance. Louisiana, after

the date of the accident sued upon, adopted an even

broader statute, voiding indemnity provisions in such cir-

cumstances. See LSA-R.S. 9:2780, added Act No. 427 of

1981, amended 1981, 1982.

However, we find that neither Louisiana law nor

Texas law applies, but as the contract between Diamond M

and Mobil (Union Oil) is a maritime contract, the admiralty

law affecting indemnity contracts as applied by courts in

the United States applies. See A/S J. Ludwig Mowinckels

Rederi v. Commercial Stevedoring Co., 256 F.2d 227 (2nd -

Cir. 1958); Hudson Waterways Corp. v. Coastal Marine Ser-

vice, Inc. 436 F.Supp. 597 (E.D. Tex. 1977).2 These cases

“ Cf. Dickerson v. Continental Oil Co., 449 F.2d 1209 (5th Cir.

1971), which held that the Outer Continental Shelf Lands Act, 43

U.S.C.A. Sec. 1331 et seq., made Louisiana law applicable to an indemni-

ty agreement affecting a fixed drilling platform because the fixed drill-

ing platform was not a ‘‘vessel’’. The case of Hicks v. Ocean Drilling and

Exploration Co., 512 F.2d 817 (5th Cir. 1975) held that Louisiana law ap-

plied to an indemnity agreement, relying solely upon Dickerson as

authority although it found the movable storage tank therein involved

to be a “‘vessel’’. If Dickerson had been interpreted properly, Louisiana

law would not have been applied in Hicks, as in Hicks the indemnity

agreement involved a ‘‘vessel’’, which is clearly excluded from the Outer

Continental Shelf Lands Act, to which the reasoning in Dickerson is

limited. Clearly the drilling barge involved in the present case was

likewise a ‘‘vessel’’, and Federal law, not Louisiana law adopted as

Federal authority by the Outer Continental Shelf Lands Act, applies to

the present indemnity agreement.

A-22

recognize the need for uniformity between the laws affec-

ting indemnity under maritime contracts, and clearly and

squarely hold that the Federal admiralty law affecting in-

demnity contracts is to be applied. Hudson Waterways

states that clauses in maritime contracts containing indem-

nity or release from liability provisions which indemnify

the indemnitee for the consequences of its own negligence

are to be fully enforced, with but one exception, towing con-

tracts. In these contracts release from liability clauses pro-

viding indemnity for the indemnitee’s negligence are

denied any effect whatsoever as a matter of public policy.

The towing contract exception with regard to release

clauses was first clearly recognized in Bisso v. Inland

Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911

(1955), as a matter of public policy, for two main reasons,

the court stated, (1) to discourage negligence and (2) to pro-

tect those who are unable to negotiate on equal terms with

towing companies. It is true that drilling companies often

do not negotiate on equal terms with major oil companies

in entering into contracts to drill wells, and Bisso’s policy

consideration clearly lies behind the Louisiana and Texas

statutes cited above. However, under Ludwig, supra, and

Hudson Waterways, supra, the statutes of these states are

inapplicable, and we are reluctant indeed and unwilling to

create an additional exception to the general rule of the

federal courts that indemnity clauses in admiralty con-

tracts shall be enforced as written where, as in this con-

tract, the language of the indemnity provision is clear and

unequivocal.

We, therefore, give effect to paragraph 14.4 of the

drilling contract between Mobil and Diamond M obligating

Diamond M to indemnify Mobil, and, by subsequent agree-

ment, Union Oil, from any claim from personal injury,

death, or property damage made against Mobil (Union Oil).

A-23

Thus, Union Oil must be indemnified by Diamond M to the

full extent of its liability to Cason arising out of the acci-

dent sued upon.

DECREE

For the reasons set forth above, we set aside and

vacate the judgment of the trial court, and render

judgment:

(1) In favor of Delton H. Cason, and against Union

Oil Company of California, for 40% of $493,000.00, or

$197,200.00, together with legal interest from July 9, 1981.

(2) In favor of Delton H. Cason, and against Diamond

M Drilling Company, for 60% of $493,000.00, or

$295,800.00, together with legal interest from July 9, 1981.

(3) In favor of Union Oil Company of California and

against Diamond M Drilling Company, for 40% of

$493,000.00, or $197,200.00, together with legal interest

from July 9, 1981.

(4) Against Diamond M Drilling Company, for all

costs at trial and on appeal.

VACATED AND RENDERED.

A-24

APPENDIX “E”

16TH JUDICIAL DISTRICT COURT

PARISH OF ST. MARY

STATE OF LOUISIANA

DELTON CASON

VS. NO. 60,777

DIAMOND M. DRILLING CO., ET AL:

FILED: SEP 4, 1981

JANE C. PILANT

DEPUTY CLERK

JUDGMENT

This case came on for trial pursuant to regular

assignment on July 6, 1981. Present at the trial were

William B. Baggett of the firm Baggett, McCall, Singleton

& Ranier, and Marvin F. Gahagan, attorneys of record for

plaintiff; Joseph J. Weigand, attorney for the defendant

DIAMOND M. DRILLING CO.; and Mr. Randall

Theunissen, attorney of record for the defendant UNION

OIL COMPANY OF CALIFORNIA.

This cause, after having been duly tried before and

submitted to the jury, and the jury having returned on

July 9, 1981, a verdict in words and figures as follows:

VERDICT OF THE JURY

‘1. Was there any negligence under the Jones

Act on the part of the defendant, Diamond M,

which was the cause of plaintiff's injuries?

A-25

Yes_X No

‘2. Was there any unseaworthiness of defend-

ant Diamond M's vessel, RIG 99, which was the

proximate cause of plaintiff's injuries?

Yes No_X

‘3. Was there any negligence under the General

Maritime Law on the part of the defendant,

Union Oil Company, which was a proximate cause

of plaintiff's injuries?

Yes_X No

‘4. What amount of damages, if any, expressed

in dollars, did the plaintiff sustain as a result of

these injures?

$493,000

‘‘5(a). Was there any negligence on the part of

the plaintiff which was the proximate cause of his

own injuries?

Yes_X No

“5(b). If the answer to Question 5(a) is ‘‘yes,”’

by what percentage did the plaintiff's negligence

contribute to his own injuries?

10%

“Franklin, St. Mary Parish, Louisiana, this 9 day of July

1981.

_s/Don R. Goos

FOREPERSON

A-26

“Using 100% as the total amount of negligence

by the defendants:

‘‘What percentage of negligence do you attribute

to Diamond M.

60%

‘What percentage of negligence do you attribute

to Union Oil.

40%

s/Don R. Goos

FOREPERSON’”’

THEREFORE, IT IS ORDERED, ADJUDGED

AND DECREED that the said verdict be, and it is hereby,

made the judgment of this Court. Defendant DIAMOND

M. DRILLING CO. is condemned to pay to plaintiff,

DELTON CASON, the sum of $266,220.00. Defendant

UNION OIL is condemned to pay to plaintiff, DELTON

CASON, the sum of $177,480.00.

Matters not submitted to the jury were by stipula-

tion of all parties submitted to the Court for decision. The

Court finding in favor ofp DIAMOND M DRILLING COM-

PANY and UNION OIL COMPANY OF CALIFORNIA

and against DELTON CASON on the question of pre

judgment interest and the Court further finding in favor of

UNION OIL COMPANY OF CALIFORNIA and against ©

DIAMOND M DRILLING COMPANY to the extent of

$100,000.00 on the indemnity agreement, therefore,

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of

A-27

UNION OIL COMPANY OF CALIFORNIA and against

DIAMOND M DRILLING COMPANY in the sum of

$100,000.00 with legal interest from date of judgment until

paid.

IT IS FURTHER ORDERED that DIAMOND M

DRILLING COMPANY and UNION OIL COMPANY OF

CALIFORNIA are liable unto plaintiff for legal interest

from date of judgment until paid, and for all costs of these

proceedings, 75% Diamond M and 25% Union Oil.

IT IS FURTHER ORDERED that the following ex-

pert witness fees be taxes as costs:

Paul Montgomery $350.00

Don Cromwell $350.00

Judgment read, rendered and signed in Chambers at

New Iberia, Louisiana, this 2nd day of September, 1981.

(SIGNED)

JUDGE

RECEIVED AND FILED

SEP 4, 1981

JANE C. PILANT

Dy. Clerk of Court

CLERK’S OFFICE, FRANKLIN, LA.

Received and filed for recordation at 10:30 A.M.

SEP 4, 1981

JANE C. PILANT

Dy. Clerk of Court

STATE OF LOUISIANA

PARISH OF ST. MARY

A-28

I, the undersigned Deputy Clerk, 16th Judicial

District Court, St. Mary Parish, La., Ex-Offico Recorder

thereof, duly commissioned and qualified, do hereby certify

the above and foregoing is a true and correct copy of the

original judgment rendered 9-2-81, filed in (Civil-

Prebate) proceeding No. 60777 and recorded in

COB Entry No. Page

MOB 437 Entry No. 151,052 Page 793

CMB Entry No. Page

of date Sept. 4th 1981.

IN EVIDENCE WHEREOF, witness my official

signature and the impress of the seal of my office this 4th

day of Sept. A.D., 1981, at Franklin, St. Mary Parish, La.

ISIJANE C. PILANT

DEPUTY CLERK OF COURT

A-29

SIXTEENTH JUDICIAL DISTRICT COURT

STATE OF LOUISIANA

NEW IBERIA, LOUISIANA 70560

P.O. BOX 1058

September 2, 1981

Hon. Benny Blakeman

Clerk of Court

St. Mary Parish Courthouse

Franklin, LA 70538

RE: DELTON H. CASON

V. NO. 60777

DIAMOND M. DRILLING COMPANY

Dear Benny:

I enclose herewith Reasons for Judgment and Judg-

ment in the above referenced matter. Please see that all at-

torneys of record are furnished with a copy of each.

With kindest personal regards, I am,

Very truly yours,

Robert E. Johnson

REJ:dpe

A-30

BENNY A. BLAKEMAN

CLERK

SIXTEENTH JUDICIAL DISTRICT COURT

PARISH OF ST. MARY

P.O. DRAWER 1231

FRANKLIN, LOUISIANA

September 4th, 1981

MR. JOSEPH J. WEIGAND, JR.

WEIGAND & SIEGRIST

ATTORNEYS AT LAW

P.O. BOX 6062

NO. 7 PROGRESSIVE BLDG.

HOUMA, LOUISIANA 70361

RE: DELTON H. CASON

VS. NO. 60,777

DIAMOND M. DRILLING CO.

Dear Sir:

Enclosed are certified copies of Reasons for Judg-

ment and Judgment rendered by Judge Robert E. Johnson

and filed this date in the above captioned proceeding.

Sincerely,

/S/ JANE C. PILANT

Deputy Clerk of Court

A-31

16TH JUDICIAL DISTRICT COURT

PARISH OF ST. MARY

STATE OF LOUISIANA

DELTON H. CASON

VERSUS NO. 60777

DIAMOND M. DRILLING CO.

COUNSEL FOR PLAINTIFF:

WILLIAM B. BAGGETT

Baggett, McCall, Singleton, Ranier & leyoub

P.O. Box 1645

Lake Charles, LA 70602

CO-COUNSEL FOR PLAINTIFF:

MARVIN F. GAHAGAN

Gahagan & Gahagan

113 St. Denis St.

Natchitoches, LA 71457

COUNSEL FOR DIAMOND M. DRILLING COMPANY:

JOSEPH J. WEIGAND, JR.

Weigand & Siegrist

P.O. Box 6062

No. 7 Progressive Bldg.

Houma, LA 70361

COUNSEL FOR UNION OIL Co.

RANDALL THEUNISSEN

Allen, Gooch & Bourgeois

P.O. Box 3204

Lafayette, LA 70502

A-32

REASONS FOR JUDGMENT

This case was tried to a jury July 6th through July

9th, 1981, in Franklin, St. Mary Parish, Louisiana. Suit

was originally filed in the 38th Judicial District Court of

the Parish of Cameron, in Cameron, Louisiana, and, in the

Lake Charles Division of the Federal District Court for the

Western District of Louisiana. Subsequently, on objections

to the venue in Cameron, the suit was ordered transfered to

the 16th Judicial District Court for St. Mary Parish, Loui-

siana. The principal defendant, Diamond M Drilling Com-

pany, has its principal place of business in Louisiana at

Morgan City, St. Mary Parish, Louisiana. Previously,

while the matter was still pending in Cameron Parish, suit

in Federal Court in Lake Charles was dismissed, without

prejudice, because of an Exception of Lis Pendens filed in

the Cameron suit by defendant, Diamond M. Numerous ex-

ceptions were filed in the matter but were not heard, nor

strenuously urged, before the Court at least, not until the

commencement of trial. The Court considers that they

have, in effect, been abandoned; or, in any event, the Court

finds no merit to them and overrules and denies all of them.

At the commencement of the trial, it was stipulated either,

(1) that all matters not tried to the jury would be decided

by the Court, or, (2) that the Court would decide the ques-

tions involving indemnity as between Union Oil Company

and Diamond M.

The plaintiff was a welder employee of Diamond M

Drilling Company. At the time he was injured, on

December 31, 1977, he was working on an oil drilling,

jackup type, movable barge rig located some 80-90 miles

off Freeport, Texas, in what was offshore Texas waters in

the Gulf of Mexico. The parties stipulate or acknowledge

that plaintiff was a ‘“‘Jones Act seaman.”’

A-33

The original contract herein was entered into bet-

ween Mobil Oil Company and Diamond M Company in

February of 1977 for the purpose of drilling in offshore

Louisiana waters by Diamond M Drilling Company. Dia-

mond M owned the jackup rig designated #99, its ap-

purtenances, tackle and equipment, etc. Diamond M em-

ployees also manned the rig in the drilling operations, all as

much particularly shown by the contract, a copy of which

is included in the record. The one exception to the above is

that Union Oil furnished the some 200 feet or so of the

Drive Pipe, as well as the Drill Guide. The plaintiff was in-

jured while he was working on the Drill Guide.

In August of 1977, Diamond M, Mobil Oil, and

Union Oil Company of California, (the former and latter

defendants herein) entered into an agreement whereby

Mobil permitted Diamond M. to drill the number one well

in the Union-Mobil High Island Block A-433 area, with

Union as operator. This is in the area off the coast of Texas

referred to hereinabove. Rather than drawing up a new con-

tract, the parties, Diamond M and Union; agreed by letter,

to all the terms and conditions of the contract between

Mobil and Diamond M. Copies of these letters are contain-

ed in the record.

The contract was handled through the offices of

Union Oil and of Diamond M both located in Houston,

Texas. The original contract was also handled through the

Houston, Texas offices of Mobil and Diamond M. Whereas

the original contract was for the purpose of drilling oil wells

off the coast of Louisiana, the Union Oil contract with Dia-

mond M was for the purpose of drilling a well off the coast

of Texas in the High Island area off Freeport, Texas.

The employee, plaintiff herein Delton Cason, sued his

A-34

employer, Diamond M, both under the Jones Act and under

the admiralty doctrine of unseaworthiness of the vessel. The

parties concede, and the evidence shows, the maritime nature

of the employment, and the applicability of the Jones Act,

Admiralty principles of law, and General Maritime principles

of negligence. Cason sued the defendant, Union Oil Company,

by means of a supplemental and amending petition under

the General Maritime Law alleging negligence of Union Oil

Company. The jury found the plaintiff's damages to be in

the sum of $493,000.00. They found that there was negligence

under the Jones Act on the part of defendant, Diamond M.

They found in favor of Diamond M on the question of

unseaworthiness of its vessel, Rig #99. The jury further found

negligence under the General Maritime Law on the part of

the defendant Union Oil Company. They found, under the

comparative negligence doctrine, that the plaintiff's

negligence contributed 10 percent to his own injuries.

Upon being sent back a second time with instructions

to apportion the negligence of the defendants, Diamond M,

and Union Oil, the jury found 60 percent negligence at-

tributable to Diamond M; and 40 percent negligence at-

tributable to Union Oil.

QUESTIONS FOR THE COURT TO DECIDE

The first question for the Court to decide is whether

or not to award pre-judgment interest against Diamond M

and against Union Oil Company. Secondly, the question the

Court is required to decide, is the indemnification question

as between Union Oil and Diamond M. Further, if necessary,

the Court is to decide whether or not Union Oil should recover

from Diamond M under the theory that Union Oil's

negligence, if any, was passive, and Diamond M's negligence

was active, and; therefore, should result in Union Oil's

A-35

recovering from Diamond M even if the indemnification

agreement were found to be invalid.

The parties all apparently concede that there is no

recovery of pre-judgment interest under the Jones Act. The

cases cited hereinafter on pre-judgment interest as to Union

Oil establish this clearly.

With respect to pre-judgment interest as to Union Oil,

the law provides, as all parties agree, that it is entirely discre-

tionary with the Court whether to allow pre-judgment

interest.

Generally in maritime matters, pre-judgment interest

is not allowed. In Admiralty matters and in General

Maritime Law, it is within the discretion of the Court. In

this particular case, the plaintiff returned to work some seven

or nine months after being injured and has been employable

since that time. Since February of 1979, he has been

employed as a logger with his father in North Louisiana

working with a power saw cutting trees and trimming them

preparatory to their being hauled out of the forest. He has

made very good money at this occupation, having earned in

the neighborhood of $22,000.00-$23,000.00 during the year

1980. The Court would further consider that the jury's award

of $493,000.00, to be diminished by plaintiff's apportioned

negligence to an award of approximately $450,000.00, is en-

tirely adequate for the plaintiff's injuries, suffering,

disabilities, and losses. His award is adequate to say the

least, if not considerably on the high side. Additionally,

delays herein cannot be attributed to defendants. Consider-

ing all of these circumstances, the Court will order that in-

terest on the judgment, as against Union Oil, as well as

against Diamond M, will run from time of judgment.

Pellegrin v. Fidelity & Casualty Co. of New York, 193 So.

“a

A-36

2d 392; Ferdinandtsen v. Delta Marine Drilling Company,

235 So. 2d 641; Hebert v. Diamond M, 385 So. 2d 410;

Doucet v. Wheless Drilling Company, 467 F.2d 336 (1972);

Barton v. Zapata Offshore Company, 397 F.Supp. 778

(1975); Aymond v. Texaco, Inc., 554 F.2d 206 (1977) and

Parisi v. Lady In Blue, Inc., 433 F.Supp. 681 (1977).

The Parisi case «ited last indicates that a jury must

determine whether or not to award pre-judgment interest.

At this moment (the transcript not having been typed yet)

the Court is not aware of whether or not the parties left all

questions, not directly left to the jury, to the trial judge's

decision, or whether the parties merely left, to the trial

judge's decision, the one question of indemnification. If the

latter, then the failure to present the pre-judgment interest

question to the jury under Parisi above would result in de-

nying pre-judgment interest to the plaintiff. In the event

that all matters were presented to the trial judge for deci-

sion that were not directly decided by the jury, then the

Court’s decision above denies pre-judgment interest as

against Union. In any event, plaintiff would lose as to this

claimed item of damages.

UNION OIL’S CLAIM FOR INDEMNIFICATION

The next question for decision by the Court is the

question of Union Oil’s claim for indemnification. The

Court considers that the first matter to be decided is as to

which law is to be applied in this instance.

With respect to the law to be applied, the Court

agrees with and reproduces here a paragraph from the brief

of counsel for Diamond M and I quote:

“In the case of J. Ray McDermott & Co., Inc. v.

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Fidelity & Cas. Co. of New York, 466 F.Supp. 353

(D.C. La), the Court held that Texas law would

apply to a contract for construction and installa-

tion of an offshore platform that was to be per-

formed in the offshore waters of Texas. See also

Bolin Farms v. American Cotton Shippers Assn.,

370 F.Supp. 1353, affirmed, 505 F.2d 732, which

held under Louisiana Article 10, the general rule

is that validity and construction of a contract is

determined by /ex loci contractus and the remedy

to lex fori.”

The Court considers and feels that all attorneys

agree with the Court that Texas law, insofar as it is not in

conflict with the Jones Act, Admiralty Law, and general

principles of Maritime Law, is to be applied herein. The

contracts were made by two foreign corporations neither of

whom were domiciled in Texas or Louisiana. Both the

original and the supplemental contracts and negotiations

for the same were, from the evidence, conducted in

Houston, Texas. The accident causing the injuries com-

plained of herein occurred offshore from Texas. State law

can be applied in matters such as involved herein when not

in conflict with or contrary to Admiralty and Maritime

Law.

When an admiralty matter is pending in a state

court, the action is governed by general admiralty law sup-

plemented and modified by state law, where the application

of state laws broaden the scope of liability beyond general

maritime standards. See Beavers v. Butler, 188 So.2d 725

(La. App. 2nd Cir. 1966); Rojas v. Robin, 90 So.2d 58 (S. Ct.

1956); Jansson v. Swedish American Line, 185 F.2d 212

(1st Cir. 1950); and St. Hilaire Moye v. Henderson, 496 F.2d

973 (8th Cir. 1974). The Court in St. Hilaire Moye in

deciding the applicable law to be applied in an admiralty

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case stated that:

‘**A federal court sitting in admiralty does not sit

as a diversity court; therefore, this is not a case

where state substantive law must be ascertained

and applied. Spiller v. Lowe, 446 F.2d 903, 907,

908n.6 (8th Cir. 1972). Rather, admiralty suits are

governed by federal substantive and procedural

law. Kermarec v. Compagnie Generale Trans-

atlantique, 358 U.S. 625, 628, 79 S.Ct. 306, 3 L.

Ed. 2nd 550 (1959); Pope & Talbot, Inc. v. Hawn,

346 U.S. 406, 409, 74 S.Ct. 202, 98 L. Ed. 143

(1953); Branch v. Schumann, 445 F.2d 175, 178

(5th Cir. 1971). However, a federal court sitting in

admiralty need not ‘invariably refuse to recognize

and enforce a liability which the state has

established in dealing with a maritime subject.

On the contrary, there are numerous instances in

which the general maritime law has been modified

or supplemented by state action...’ Just v.

Chambers, 312 U.S. 383, 387-388, 61 S.Ct. 687,

691, 85 L. Ed. 903 (1941). See Southern Pacific

Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 61

L. Ed. 1086 (1917). Thus, admiralty courts may

apply state law by expressed or implied reference

or when the federal law of admiralty is in-

complete. Baggett v. Richardson, 473 F.2d 863,

864 (5th Cir. 1973). See Tungus v. Skovgaard,

358, U.S. 588, 594, 79 S.Ct. 503, 3 L.Ed.2d 524

(1959). THE SUPREME COURT HAS SUS-

TAINED THE APPLICATION OF STATE

LAWS WHICH BROADEN THE SCOPE OF

LIABILITY BEYOND THE GENERAL MARI-

TIME STANDARD. See Hess v. U.S., 361 U.S.

314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960); Just,

supra. See also M/T. Alva Capte, 405 F.2d 962,

969-970 (2nd Cir. 1969).’ ”’

Counsel for Union Oil takes the position that the

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Texas law has not been proven before this Court. Counsel

for Diamond M briefed the court extensively on the ap-

plicable Texas law prior to the trial of the matter herein

citing appropriate sections from that law. Subsequent to

the trial, counsel for Diamond M provided the Court with

a copy of the Texas statute. A copy is attached hereto and

made part of these reasons and marked Exhibit ‘‘1’’. On

June 23, 1981, Diamond M Company notified counsel for

Union Oil Company that it was withdrawing its offer of

tender to defend and indemnify Union in its entirety, Ex-

hibit ‘“‘D-2”’.

LSA-C.C.P. Article 1391 reads as follows:

“Art. 1391. Judicial notice of laws

Every court of this state shall take judicial

notice of the common law and statutes of every

state, territory and other jurisdiction of the

United States.

The Court may inform itself of such laws in any

manner as it may deem proper, and the court may

call upon counsel to aid it in obtaining such

information.

The determination of such laws shall be made

by the court, and not by the jury, and shall be

reviewable.

A party may also present to the trial court any

admissible evidence of such laws, but, to enable a

party to offer evidence of the law in another

jurisdiction or to ask that judicial notice be taken

thereof, reasonable notice shall be given to the

adverse parties either in the pleadings or

otherwise.

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The law of a jurisdiction other than those refer-

red to in the first paragraph of this article shall be

an issue for the court, but shall not be subject to

the foregoing provisions concerning judicial

notice.”

The case of Cambre v. St. Paul Fire & Marine In-

surance Co., 331 So.2d 585 establishes that the law of other

states, can be brought to the Court’s attention by means of

attorney's briefs. This has been done here. The Court con-

siders that the Texas statute is properly before it. The

statute in its entirety is attached hereto and made a part

of these reasons for judgment. As relevant herein it reads

as follows:

“Art. 2212b. Indemnity provisions in mineral

agreements where negligence attributable to

indemnitee.

Section 1. The legislature finds that an inequity is

fostered on certain contractors by the indemnity

provisions contained in some agreements pertain-

ing to weils for oil, gas, or water, or mines for

other minerals. It is the intent of the legislature

and the purpose of this Act to declare provisions

for indemnity in certain agreements where there

is negligence attributable to the indemnitee to be

against the public policy of the State of Texas.

Section 2. Except as specified in Section 4 of this

Act, a covenant, premise, agreement, or under-

standing contained in, collateral to, or affecting

an agreement pertaining to a well for oil, gas, or

water, or mine for any mineral, is void and unen-

forceable if it purports to indemnify the indem-

nitee against loss or liability for damages arising

from either death or bodily injury to persons, or

injury to property, or any other loss, damage, or

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expense arising from either death or bodily in-

jury, injury to property, or loss, damage, or ex-

pense, which is caused by or results from the sole

or concurrent negligence of the indemnitee, or an

agent or employee of the indemnitee, or an in-

dependent contractor who is directly responsible

to the indemnitee.

Section 3...

Section 4...

Section 4(c). The provisions of Section 2 of this

Act shall not apply to any agreement providing

for indemnity with respect to claims for personal

injury or death to indemnitor’s employees or

agents, or the employees or agent of indemnitor's

sub-contractors if the parties agree in writing

that such indemnity obligation will be supported

by available liability insurance coverage to be fur-

nished by indemnitor; provided however, that

such indemnity obligation shall be only to the ex-

tent of the coverages and dollar limits of in-

surance agreed to be furnished; but in no event

shall said insurance be required in an amount in

excess of twelve times state basic limits for bodi-

ly injury, approved by the Board of Insurance

Commissioners in accordance with Article 5.15 of

the Texas Insurance Code. (Emphasis ours)

It can be seen from the foregoing excerpts from the

Texas law applicable that as a general rule agreements pro-

viding for indemnity, where there is negligence at-

tributable to the indemnitee (in this instance Union) are

against the public policy of the State of Texas. Section 4 of

the act lists a number of exclusions or exceptions to the

provisions of the Act. Section 4 (c) provides that if there is

personal injury to indemnitor’s employees or agents (Cason

- Diamond M's employee here); and, if the parties agree

that such indemnity obligation will be supported by

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available liability insurance coverage to be furnished by in-

demnitor (Diamond M) that it will be an exception to the

general principles of law concerning these agreements. The

copy of the contract filed in evidence D-1 ‘‘Exhibit B, page

1", of said contract shows that the contract between Mobil

and Diamond M (adopted by (Union) provides that Dia-

mond M will carry $100,000.00 per person, and $300,000.00

per accident, for bodily injury liability. Exhibit B page 1 of

the contract, as relevant is as follows:

Insurance Requirements

Offshore Contracts

Schedule C

Workmen's compensation

Comprehensive General Liability

Bodily Injury Liability

$100,000.00 each person

$300,000.00 each accident

Property Damage Liability

Include

ae

4. Contractual liability to cover ‘hold

harmless’’ clause in our contract.

Section 14 (contract page 6) provides as follows:

‘14. INSURANCE AND INDEMNITY:

14.1 At any and all times during the term of this

agreement, Contractor agrees to maintain in force

and submit evidence of insurance equal to or in

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excess of the requirements detailed in Exhibit B

attached hereto and made a part hereof. (Exhibit

“B” being the Exhibit “‘B’’, page 1, referred to in

the preceding paragraph)

14.2 ...

14.3. In the event Contractor is self-insurer and

Mobil has consented to Contractor's being a self-

insurer as to any one or more of the risks as to

which coverage is required, evidence of such con-

sent must be in writing and approved by a repre-

sentative of Mobil authorized to enter into such

consent agreement. It is recognized that Contrac-

tor is self-insured for $250,000.00 of Workmen's

Compensation and General Liability.

14.4 Contractor shall protect, indemnity and save

Mobile harmless against any and all claims,

demands and causes of action of every kind and

character made against Mobil or in which Mobil

may be named party defendant by Contractor's

employees, agents, or invitees, on account of per-

sonal injury or death, or on account of property

damages (other than property damages specifical-

ly provided for in paragraphs 6.1, 6.2 and 6.3) oc-

curring, growing out of, incident to, or resulting

directly or indirectly from, the work to be per-

formed by Contractor hereunder, irrespective of

whether such claims are occasioned, brought

about, or caused in whole or in part by the

negligence of Mobile, or by the unseaworthiness

of the Diamond M 99, and for damages for infr-

ingement of any patent as more particularly set

forth in Paragraph 22 hereof. (Substitute

“Union” for “‘Mobil’’ hereinabove).

Section 14.3 is a mutual recognition by the parties to the

contract, that contractor is self-insured for $250,000.00 of

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workmen’s compensation and general liability. It thus ap-

pears that there is no insurance for the first $250,000.00 of

liability and that the Texas statute would thus negative

any indemnity herein as Union’s liability, determined by

the jury, is in the neighborhood of $180,000.00

The Texas statute however does not require that the

insurance for indemnity be actually furnished. A careful

reading of Section 4(c) of the Texas Statute, in relevant

part, reads as follows:

“If the parties agree in writing that such indemni-

ty obligation will be supported by available

liability insurance coverage to be furnished by

indemnitor.”’

The parties herein Diamond M - Mobil (Union) have agreed

in the contract (Exhibit B Page 1) of the contract as shown

hereinabove, to carry $100,000.00 for each person for bodi-

ly injury liability under comprehensive general liability. It

is shown among the matters included and I quote:

“‘Number 4. Contractual liability to cover ‘‘hold

harmiless’’ clause in our contract.”

Diamond M has thus contracted with Union Oil to carry

$100,000.00 per person on an employee under its indemnity

agreement with Union Oil.

It can thus be seen that Section 14.3 of the contract

provides for self insurance for $250,000.00 on workmen’s

compensation and general liability. On the other hand Sec-

tion “Exhibit B, page 1” of the same contract obligates

Diamond M to carry $100,000.00 for each person for bodily

injury liability under comprehensive general liability.

A-45

Diamond M is the obligor under this contract. Applying

generally recognized legal principles which require that am-

biguities in a contract be construed against the obligor

under the contract, the Court holds that the agreement to

carry $100,000.00 per person is valid and of course it is in

writing. This is all that Section (4) (c) of Section 2212 b of

the Texas law requires as previously shown hereinabove.

In accordance with Subsection 4 (c) of Article 2212 b

of the Texas statute this agreement to carry this amount

of coverage is valid and is an exception to the statute in its

prohibition against any indemnity agreement.

Counsel for Union argues that since the contract bet-

ween the parties herein contains a general indemnification

agreement (Sections 14.1 through 14.4); and, further on,

contains a limiting agreement limiting the amount of in-

demnification per person and per accident to be furnished

(Exhibit B page 1 of the contract) that the contract is am-

biguous and must be construed against the obligor under

the contract. He thus argues that the general provision

prevails and the specific provision is invalid. In support of

this, he furnishes to the Court an opinion by Judge Peter

Beer of the United States District Court of the Eastern

District of Louisiana in New Orleans being Civil Action

79-2712 Joseph Antoine v. Transocean Contractors, Inc., et

al. In this opinion, Judge Beer holds that the general in-

demnity agreement would prevail over that portion of the

contract setting forth specific amounts of indemnivy. A

copy of Judge Beer’s opinion is attached hereto and mark-

ed ‘Exhibit B’’. Judge Beer in effect goes contrary to the

two prior 5th Circuit decisions, cited in his opinion, which

held that the specific agreement limited the previous gen-

eral indemnification agreement. The Court agrees with the

Dickerson and Hicks cases rather than with the Antoine

A-46

case. It is a general rule of construction as to laws and con-

tracts between parties that if it is possible to construe laws

or contracts in such a way that all the provisions thereof

are given validity, such a construction is preferable to one

which holds invalid sections of the laws or contracts.

The Dickerson and Hicks cases limited indemnity

under the general unlimited indemnity of the contract (Sec-

tion 14 herein) to the specific amount specified in the other

portions of the contract (Exhibit B page 1 of contract

herein).

Judge Beer finds no conflict in holding the unlimited

indemnity provision controlling and not being modified by

the specific limiting agreements. He sees no conflict bet-

ween the two provisions. The writer’s opinion is that the

Dickerson and Hicks cases reconcile and give meaning to

both provisions and that the general agreement is modified

by the specific agreement, and adopts the rationale of the

two 5th Circuit Court decisions.

The Court therefore holds that Diamond M owes

Union Oil $100,000.00 with interest from date of judgment

under the indemnity agreements between the parties in ac-

cordance with Texas law and with the contract entered into

between the parties.

Counsel for Union Oil vigorously argues for judg-

ment for attorney’s fees, litigation expenses, investigative

expenses and costs incurred by Union in the defense of

itself as provided for in the contract. The Court is unable

to find in Section 14 of the contract on page 6 or Section

B page 1 of the contract, or elsewhere in the contract, any

provision for attorney’s fees or the other various expenses

set forth by counsel for Union Oil. There is no evidence in

A-47

the record to support any such charges. The Court feels

that it could take judicial notice of the value of attorney's

fees and the amount of work by Union’s counsel on the re-

quest for attorney’s fees if the law allowed the Court to do

so. The general rule of Louisiana law is that attorney’s fees

are not granted unless provided for by law or by contract.

No such provision of law or the contract has been brought

to the Court’s attention, therefore, these claims will be

denied.

Counsel for Union argues that it is the primary ac-

tive negligence of Diamond M which caused the injuries

complained of herein. They argue that any negligence of

Union, through its company man on the rig, was passive

negligence. Counsel cites to the Court, Bourque v. Texaco

Oil Company, Inc., 578 F.2d 1117 (5th Cir. 1978) which

stands for the proposition that a general contractor, who is

otherwise free from negligence, and who hires an experienc-

ed independent contractor and assigns to that contractor

some work, should not be legally responsible for negligent

work methods utilized by that contractor.

The law of Louisiana is set forth in the case

Washington v. Degelos, 312 So.2d 918 (4th Cir. 1975) and

on page 922 we find the following language.

‘As the doctrine exists in Louisiana, the right to

indemnity from the person primarily negligent

exists only in favor of one who is vicariously

liable for the damages caused because of merely

technical or constructive fault. Appalachian

Corp. v. Brooklyn Cooperage Co. cited above;

Stewart v. Roosevelt Hotel, La. App. 4 Cir. 170

So.2d 681; American Employers Insurance Co. v.

Gulf States U. Co., La. App. 1 Cir. 4 So.2d 628.

See also Williams v. Marionneaux, 240 La. 712,

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124 So.2d 919. The right to indemnity does not

exist in favor of a joint tortfeasor whose act or

failure in the performance of a duty was a con-

tributory cause of the accident, and there is no

right to indemnity where the liability of the one

seeking it cannot be regarded as secondary,

vicarious, or derivative, Lee v. City of Baton

Rouge, 243 La. 850, 147 So.2d 868; Second

Church of Christ Scientist v. Spencer, 230 La.

432, La. 88 So.2d 810, discussed at 17 La. L. Rev.

348, 350 (1957); Travelers Insurance Co. v. Hard-

ware Mutual Cas. Co. La. App. 2 Cir., 186 So.2d

185 (rendered April 27, 1966)’’ 187 So.2d at 802.

Also see Appalachian Corporation v. Brooklyn Cooperage

Co., 91 So. 539.

This Court cannot conclude from the trial hereof that

the jury found Union Oil Company’s representative guilty

of passive, derivative, or vicarious or secondary negligence.

As the Court states in the citation above ‘‘where the liabili-

ty of the one seeking it (indemnity) cannot be regarded as

secondary, vicarious, or derivative’. The Court can only

conclude from the evidence and from the fact that Union’s

company man, Dennis Wade Romero, was on the rig, and

to some extent participated in the operations being con-

ducted; and that he discussed the activities with the tool

pusher for Diamond M; that the jury found him actively

negligent. He was put on the stand and the jury heard his

testimony. In response to the question as to the extent of

his negligence, the jury found his negligence to contribute

40% of the cause of the accident.

If the company man was guilty of any negligence at

the scene of this accident, it would have had to be as a

result of his failure to properly supervise the activities in

A-49

dismantling the well guide. There is no question here of

secondary or vicarious or derivative negligence. The Court

also feels that counsel for Union Oil, in asking the Court to

determine the active versus passive negligence of Union

Oil, is asking the Court to usurp the function of the jury in

this regard. The Court feels that this was a question which

should properly have been presented to the jury as the jury

was charged with the duty of determining the negligence of

the parties and the percentage thereof to be allocated bet-

ween the parties. The claim for Union Oil for indemnity on

the theory of the passive negligence by Union's represen-

tative is therefore denied.

Finally, Union argues that the Texas statute is un-

constitutional as to the Texas state constitution and the

constitution of the United States. It is posited that it

violates the parties’ constitutional right to contract; that it

is discriminatory in that it applies only to a particular kind

of contract; and, that it is a denial of equal protection, both

on its face and as applied. Counsel cites no authority nor

does the Court know of any to support the contentions of

unconstitutionality urged by defendant Union. The

Legislature of the State of Texas apparently felt that it was

answering a need which had arisen in the drilling of oil, gas,

water wells, or mining for other minerals; and, that it was

against the public policy for people engaged in such occupa-

tions to be indemnified for damages caused by their own

misdeeds. The law applies equally to all engaged in such

pursuits. The Court finds that the constitutional objections

raised herein lack merit.

There will be judgment in accordance with the above

and foregoing.

Officially granted and signed at New Iberia,

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Louisiana, this 2nd day of September, 1981.

(Signed)

JUDGE

CLERK'S OFFICE, FRANKLIN, LA.

SEP 4, 1981

A true copy of the original

Attest Jane C. Pilant

Dy. Clerk of Court

RECEIVED AND FILED

SEP 4, 1981

Jane C. Pilant

Dy. Clerk of Court

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APPENDIX “F”

16TH JUDICIAL DISTRICT COURT

PARISH OF ST. MARY

STATE OF LOUISIANA

DELTON CASON

VS. NO. 60,777

DIAMOND M. DRILLING CO., ET AL:

FILED: FEBRUARY 3, 1982

CHRISTINE DIAMOND, DY. CLK.

JUDGMENT

This case came on for trial pursuant to regular

assignment on July 6, 1981, and thereafter on a new trial

granted to defendant, Union Oil Company, on the issue of

liability only, on January 11, 1982. Present at the trial and

new trial were William B. Baggett of the firm Baggett,

McCall, Singleton & Ranier, attorney of record for plaintiff;

Delton Cason, Joseph J. Wiegand, Jr., attorney for the

defendant Diamond M Drilling Company, and Mr. Randall

Theunissen, attorney of record for the defendant, Union Oil

Company of California.

This cause, after having been duly tried before and

submitted to the jury, and the jury having returned on

July 9, 1981, a verdict in words and figures as follows:

VERDICT OF THE JURY

“1. Was there any negligence under the Jones

Act on the part of the defendant, Diamond M,

which was the cause of plaintiff's injuries?

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Yes_xX No

‘2. Was there any unseaworthiness of defen-

dant Diamond M’s vessel, RIG 99, which was the

proximate cause of plaintiff's injuries?

Yes No_X

‘*3. Was there any negligence under the General

Maritime Law on the part of the defendant,

Union Oil Company, which was a proximate cause

of plaintiff's injuries?

Yes_X No

‘4. What amount of damages, if any, expressed

in dollars, did the plaintiff sustain as a result of

these injures?

$493,000

‘5(a). Was there any negligence on the part of

the plaintiff which was the proximate cause of his

own injuries?

Yes_X No

“5(b). If the answer to Question 5(a) is ‘‘yes,”’

by what percentage did the plaintiff's negligence

contribute to his own injuries?

10%

“Franklin, St. Mary Parish, Louisiana, this 9th day of

July, 1981.

s/Don R. Goos

FOREPERSON

A-53

“Using 100% as the total amount of negligence

by the defendants:

‘‘What percentage of negligence do you attribute

to Diamond M.

60%

‘‘What percentage of negligence do you attribute

to Union Oil.

40%

s/Don R. Goos

FOREPERSON”

This cause, after having been duly retried before and

submitted to the jury solely on the issue of liability of the

defendant, Union Oil of California, and the jury having

returned on January 14, 1982, a verdict in words and

figures as follows:

JURY VERDICT FORM

‘1. Was there any negligence under the General

Maritime Law on the part of the defendant,

Union Oil Company?

Yes No_X _

‘2. Was the negligence of Union Oil Company a

proximate cause of plaintiff's injuries?

Yes No

Franklin, St. Mary Parish, Louisiana, this 14th day of

January, 1982.

A-54

s/Steve Larcade

FOREPERSON

The original judgment herein, by stipulation of all

counsel, reserved from the jury and submitted to the Court

the questions of pre-judgment interest on the verdict in

favor of Delton Cason and further reserving to the Court,

in said stipulation, the question of whether or not indemni-

ty was due Union Oil Company of California against Dia-

mond M Drilling Company. The question of indemnity for

Union Oil Company against Diamond M Drilling Company

has become moot in the view of the jury’s verdict on new

trial absolving Union Oil Company of negligence and reliev-

ing them of liability. The Court reaffirms its prior denial of

prejudgment interest in favor of plaintiff and against Dia-

mond M.

THEREFORE, IT IS ORDERED, ADJUDGED,

AND DECREED that the said verdicts be, and they are

hereby made the judgment of this Court. Defendant, Dia-

mond M Drilling Company, is condemned to pay to plain-

tiff, Delton Cason, the sum of $443,700.00, together with

legal interest from July 9, 1981, until paid and all costs of

the original proceeding culminating on the verdict of July

19, 1981. All costs attributable to the application for and

new trial culminating in the judgment of January 14, 1982

are assessed against plaintiff Delton Cason. Union Oil is

absolved from the payment of any Court costs.

IT IS FURTHER ORDERED that the following ex-

pert witness fees be taxes as costs;

Paul Montgomery (First trial) $350.00

Paul Montgomery (Second trial) $350.00

Don Cornwell $350.00

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JUDGMENT READ, RENDERED AND SIGNED

in Chambers at New Iberia, Louisiana, this 2nd day of

February, 1982.

(Signed)

DISTRICT JUDGE

RECEIVED AND FILED

FEBRUARY 3, 1982

CHRISTINE DIAMOND

Dy. Clerk of Court