Petition for Writ of Certiorari — Casaceli v. Cheramie Bo Truc 11, Inc.

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CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1985

DOLORES BODD CASACELIT, Individually and As Duly

Authorized Representative of the Estate of Joseph Stanley

Bodd,

and EVELYN BODD,

Petitioners

VERSUS

CHERAMIE BO TRUC 411, INC., and TRANSOCEAN

CONTRACTORS, INC.,

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

PETITION FOR CERTIORARI

JAMES P. RYAN

Morrow & Morrow

324 W. Landry Street

P. O. Drawer 7090

Opelousas, LA 70571

318/948-4483

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

QUESTIONS PRESENTED

Did the Court of Appeals violate petitioners’

Seventh Amendment right to a trial by jury by failing to

use the proper standard of appellate review in reversing the

jury verdict on the basis that the evidence was insufficient

to support the verdict?

Did the Court of Appeals err in finding the evidence

insufficient to support the jury’s conclusion that respon-

dent, Cheramie Bo Truc #11, Inc., was negligent?

Did the Court of Appeals err in finding the evidence

insufficient to support the jury’s conclusion that respon-

dent, Transocean Contractors, Inc., was negligent?

TABLE OF CONTENTS

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Constitutional Provisions and Federal Statutes............... 3

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I. Did the Court of Appeals Violate Petitioners’

Seventh Amendment Right to a Trial by

Jury By Failing to use the Proper Standard

of Appellate Review in Reversing the Jury

Verdict on the Basis that the Evidence was

Insufficient to Support the Verdict?...................... 9

II. Did the Court of Appeals Err in Finding the

Evidence Insufficient to Support the Jury’s

Conclusion That Respondent, Cheramie Bo

Truc #11, Inc., Was Negligent?.........................008 13

III. Did the Court of Appeals Err in Finding the

Evidence Insufficient to Support the Jury’s

Conclusion that Respondent, Transocean

Contractors Inc., Was Negligent?...................00000 22

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TABLE OF AUTHORITIES

Cheek V. Williams-Mc Williams, 697 F.2d 649 (1983)......... 9

Daigle V. Point Landing, Inc., 616 F.2d 825 (1980)....... 25

Gross V. Black & Decker (U.S.), Inc., 695 F.2d

aed acca hainehhatlansensieatios seiedianbainhihiuiabitisaniniiein 10

Moragne V. State Marine Lines, Inc., 398 U.S.

Morein V. Reading & Bates Drilling Co., Et Al,

Fifth Circuit No. 83-4768 (1984)...........cccccccceessceeeeseees 21

Scindia Steam Navigation Co. V. De Los Santos,

on sais ne vcauencbasccbenssease 5,19,20,21

U.S. V. Mowbray’s Floating Equipment,

ee ca achuliuasudaveinensekennaa’ 26

Seventh Amendment to the U.S. Constitution................. 3

I INN gc ciccccickscicvscosecsessensvesesavecnensanseacreansancccctly(

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

NO.

DOLORES BODD CASACELI, Individually And As

Duly Authorized Representative of the Estate of Joseph

Stanley Bodd and EVELYN BODD,

Petitioners

VERSUS

CHERAMIE BO TRUC #11, INC. and

TRANSOCEAN CONTRACTORS, INC.,

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

KKK KKK EK KE KK

PETITION FOR CERTIORARI

KKK KKK KK KKK

OPINIONS BELOW

The judgment of the jury in the United States

District Court for the Western District of Louisiana in the

case entitled ‘‘Dolores Bodd Casaceli, et al v. Martech In-

ternational, Inc., et al’’ bearing Civil Action No. 80-0097,

consolidated with ‘‘Dolores Bodd Casaceli, et al v.

Cheramie Bo Truc #11, Inc."’ bearing Civil Action No.

80-0098, dated April 12, 1984, is not reported, but is

reprinted in the Appendix hereto, Pages A-1—A-6, infra.

The ruling by the United States District Court for

the Western District of Louisiana on the post-trial motions

filed by respondents in the case entitled ‘Dolores Bodd

Casaceli, et al v. Martech International, Inc.’’ bearing Civil

Action No. 80-0097, consolidated with “Dolores Bodd

Casaceli, et al v. Cheramie Bo Truc #11, Inc.”’ bearing Civil

Action No. 80-0098, dated June 22, 1984, is not reported,

but is reprinted in the Appendix hereto, Pages A-7—A-13,

infra.

The Opinion of the United States Court of Appeals

for the Fifth Circuit in the case entitled ‘‘Dolores Bodd

Casaceli, , Individually and as Representative of Succes-

sion of Joseph Stanley Bodd, etc, v.Martech International,

Inc., Transocean Contractors, Inc. and Cheramie Bo Truc

#11, Inc.”’ Opinion No. 84-4452 dated October 29, 1985, is

not reported, but is reprinted in the Appendix hereto,

PagesA-14—A-33, infra.

The denial of petitioners’ Petition for Rehearing by

the United States Court of Appeals for the Fifth Circuit in

the case entitled ‘‘Dolores Bodd Casaceli, Individually and

as Representative of Succession of Joseph Stanley Bodd,

etc. v. Martech International Inc., Transocean Contrac-

tors, Inc. and Cheramie Bo Truc #11, Inc.’’ No. 84-4452,

dated December 11, 1985, is not reported, but is reprinted

in the Appendix hereto, Pages A-34—A-35, infra.

JURISDICTION

The Opinion of the Court of Appeals for the Fifth Cir-

cuit was filed on October 29, 1985, and a copy of the opi-

nion is attached to this petition in the Appendix. The denial

of petitioners’ Petition for Rehearing was entered by the

Court of Appeals for the Fifth Circuit on December 13,

1985, and a copy of the denial is attached to this petition

in the Appendix. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS AND

FEDERAL STATUTES

Seventh Amendment, United States Constitution:

‘In Suits at common law, where the value in

controversy shall exceed twenty dollars, the right of

trial by jury shall be preserved, and no fact tried by a

jury, shall be otherwise reexamined in any Court of the

United States, than according to the rules of the com-

mon law.”’

Title 33 U.S.C. §905(b):

“In the event of injury to a person covered

under this chapter caused by the negligence of a

vessel, then such person, or anyone otherwise entitled

to recover damages by reason thereof, may bring an

action against such vessel as a third party in accor-

dance with the provisions of section 933 of this title,

and the employer shall not be liable to the vessel for

such damages directly or indirectly and any

agreements or warranties to the contrary shall be

void. If such person was employed by the vessel to

provide stevedoring services, no such action shall be

permitted if the injury was caused by the negligence of

persons engaged in providing stevedoring services to

the vessel. If such person was employed to provide

shipbuilding, repairing, or breaking services and such

person's employer was the owner, owner pro hac vice,

agent, operator or charterer of the vessel, no such ac-

tion shall be permitted, in whole or in part or directly

or indirectly, against the injured person’s employer (in

any capacity, including as the vessel's owner, owner

pro hac vice, agent, operator, or charterer) or against

the employees of the employer. The liability of the

vessel under this subsection shall not be based upon

the warranty of seaworthiness or a breach thereof at

the time the injury occurred. The remedy provided in

this subsection shall be exclusive of all other remedies

against the vessel except remedies available under

this chapter.”’

STATEMENT OF THE CASE

On August 12, 1978, Joseph Bodd, an employee of

Martech International, Inc., drowned while attempting

underwater repairs to the propellors of a vessel owned by

respondent, Cheramie Bo Truc #11, Inc. (Cheramie). At the

time of his accident, Joseph Bodd was working in a slip

owned and operated by respondent, Transocean Contrac-

tors, Inc. (Transocean).

Dolores Bodd Casaceli, the representative of Bodd's

estate, and Evelyn Bodd, Joseph Bodd’s mother, sued

Cheramie and Transocean alleging both Cheramie and

Transocean were liable for the death of Joseph Boda. The

suit alleged that Cheramie and Transocean were guilty of

ordinary negligence and gross negligence. Compensatory

and punitive damages were sought against both Cheramie

and Transocean.

The jurisdiction against the owner of the vessel, Cheramie,

was based on 33 U.S.C. §905(b). Petitioners argued to the

jury that the vessel owner, Cheramie, violated all three of

the duties owed Joseph Bodd, as enunciated by this court

in Scindia Steam Navigation Co. v. De Los Santos, 451

U.S. 156 (1981).

The jurisdiction against the owner of the slip, Tran-

socean, was based upon the general maritime law. See

Moragne v. State Marine Lines, Inc., 398 U.S. 375 (1970).

Petitioners argued to the jury that the slip owner, Transo-

cean, violated several duties owed Joseph Bodd under the

general maritime law.

After a trial on the merits before a jury, the jury returned

a verdict and answered special interrogatories propounded

to it. The jury found that both Cheramie and Transocean

acted in gross and wanton disregard of the safety of Joseph

Rodd and awarded petitioners both compensatory and

punitive damages. A judgment was entered by the trial

court which recited the findings of the jury. See Appendix,

Pages A-1—A-6, infra.

After the judgment, both Cheramie and Transocean filed

lengthy post-trial motions with the trial judge. Both par-

ties moved for judgments notwithstanding the verdict, in

the alternative, a new trial, and in the further alternative,

remittitur. With the exception of the motion for remittitur

of the award for loss of society, the trial judge denied all

post-trial motions in an eight page decision signed on June

22, 1984. See Appendix, Pages A-7—A-13, infra. A reading

of the trial judge's ruling shows that all post-trial motions

were carefully considered and that the trial judge was not

reluctant to grant relief when he felt the evidence was in-

sufficient to support the jury’s verdict. After considera-

tion, the trial judge concluded that the evidence was suffi-

cient to support the jury’s conclusion that Cheramie and

Transocean were both guilty of ordinary negligence and

gross negligence.

In an October 29, 1985 opinion, the Court of Appeals

for the Fifth Circuit reversed the verdict of the jury and the

judgment of the trial judge and held that the evidence was

insufficient to support even a finding of ordinary

negligence against either Cheramie or Transocean. The

issues of gross negligence and punitive damages were not

even addressed by the Court of Appeals.

A careful reading and analysis of the Court of Ap-

peals’ Opinion is critical to an understanding of the ques-

tions presented in this Petition. The Court of Appeals’ Opi-

nion is divided into six sections and each section contains

a different analysis by the Court of Appeals. It is easy to

identify each section of the Opinion because the Court of

Appeals has labeled the sections by Roman Numerals I

through VI. An identification and summary of the contents

of each section of the Opinion is helpful to an understan-

ding of the questions presented in this Petition, and will

therefore be set forth below. Petitioners respectfully invite

the Court to read the following summary of the analysis oc-

curring in each section of the Court of Appeal’s Opinion

and then turn to and read the actual language contained in

the corresponding language of the opinion, to determine

that the following summary accurately reflects the

analysis contained in each section:

A) Section I -- In this section of the Opinion, the

Court of Appeals sets forth a summary of its understan-

ding of the facts in the case. See Court of Appeals Opinion,

Pages 358-360, reproduced in the Appendix at Pages

A-16—A-19, infra.

B) Section II -- In this section of the Opinion, the

Court of Appeals reviews the proceedings occurring in the

District Court. See Court of Appeals Opinion, Page 360,

reproduced in the Appendix at Page A-19, infra.

C) Section III -- In this section of the Opinion, the

Court of Appeals discusses the statutes and jurisprudence

which define and govern the various duties owed by a

vessel owner to a person engaged in longshoring or ship-

repair work on the vessel. See Court of Appeals Opinion,

Pages 360-364,reproduced in the Appendix at Pages

A-19—A-25, infra.

D) Section IV -- In this section of the Opinion, the

Court of Appeals addresses the law applicable to the duty

of the slipowner, Transocean, under the general maritime

law. See Court of Appeals Opinion, Pages 364-365,

reproduced in the Appendix at Pages A-25—A-27,infra.

E) Section V -- This section of the Opinion is most im-

portant to the questions presented in this Petition. After

setting forth the proper standard by which the “‘sufficiency

of the evidence”’ is to be judged, the Court of Appeals sub-

divides Section V into ‘‘A”’ and ‘‘B’’. Section V(A) appears

to be an analysis of the ‘‘sufficiency of the evidence”’ in the

record to support the jury’s verdict against the vessel

owner, Cheramie. See Court of Appeals Opinion, Pages

365-369, reproduced in the Appendix at Pages A-27—A-32,

infra. Section V(B) appears to be an analysis of the ‘“‘suffi-

ciency of the evidence”’ in the record to support the jury’s

verdict against the slip owner, Transocean. See Court of

Appeals Opinion, Page 369, reproduced in the Appendix at

Pages A-32—A-33, infra.

F) Section VI -- In this section of the Opinion, the

Court of Appeals restates its conclusion that: ‘The

evidence is not sufficient to support the verdicts against

either appellant.’’ See Court of Appeals Opinion, Pages

369-370, reproduced in the Appendix at Page A-33, infra.

As stated above, the language of the Court of Appeals’

decision that addresses itself to the sufficiency of the

evidence to support the jury’s conclusion of negligence is

found in Section V of the Opinion. This writer has pain-

stakingly analyzed and counted each sentence appearing in

Section V of the Opinion. Section V contains 73 sentences.

With the exception of one sentence, none of the 73

sentences in Section V of the Opinion addresses any facts

or inferences which might support the jury’s finding that

both Cheramie and Transocean were negligent. Instead, 72

out of the 73 sentences appearing in Section V either:

1) state conclusions of law; or

2) discuss facts which would support a conclusion

that Cheramie and Transocean were not

negligent; or

3) discuss facts which would support a finding of

negligence as to Joseph Bodd; or

4) discuss inferences drawn from facts to support

conclusions made about the knowledge or lack of

knowledge on behalf of Cheramie or Transocean;

5) discuss inferences drawn from facts to support

conclusions made about the knowledge or lack of

“knowledge of Joseph Bodd.

If the questions presented in this Petition are to be fairly

reviewed, then this Court must examine each sentence in

Section V of the Opinion in order to determine whether that

sentence fits into one of the five categories set forth above

or whether that sentence addresses itself to the sufficiency

of the facts or inferences which might support the jury’s

finding of negligence. If this analysis is performed and this

Petition denied, then justice will have been served. If this

analysis is not performed and this Petition denied, then a

grave injustice will have been done to petitioners.

In Section I of tre Court of Appeals’ Opinion, the

Court states its appreciation of the facts. Petitioners sub-

mit that the record contains many facts which would sup-

port the jury’s finding of negligence that do not appear in

Section I of the Opinion. However, it is not necessary that

this Court have these additional facts before it to fairly

decide the questions presented in this Petition. If the facts

recited by the Court of Appeals in Section I of its Opinion

are fairly analyzed using the proper standard of appellate

review, it is clear that these facts alone are sufficient to sus-

tain the jury’s verdict.

ARGUMENT

Review by this Court is necessary because the Court

of Appeals for the Fifth Circuit blatantly substituted its

opinion for that of the jury’s and effectively denied peti-

tioners their Seventh Amendment right to a trial by jury.

The opinion of the Court of Appeals does not contain any

language to demonstrate that it was attempting to follow

the traditional standard of appellate review in reversing

the verdict of the jury below. This total disregard for the

proper standard of appellate review is a gross departure

from the usval course of appellate judicial review and war-

rants an exercise of this Court’s power of supervision. Even

though petitioners strongly disagree with the result reach-

ed by the Court of Appeals, it is not for this reason that

this Court should review the Opinion of the Court of Ap-

peals. Even if the result would be the same, this Court

should review the Opinion of the Court of Appeals because

of the manner in which the Court of Appeals reached its

decision. If allowed to stand in its present form, the Opi-

nion of the Court of Appeals will create a dangerous prece-

dent and stand as an open invitation to all unsuccessfu]

litigants to attempt to re-litigate adverse factual findings

by the trial court in the Court of Appeals.

I. DID THE COURT OF APPEALS VIOLATE

PETITIONERS’ SEVENTH AMENDMENT

RIGHT TO A TRIAL BY JURY BY FAILING

TO USE THE PROPER STANDARD OF AP-.-

PELLATE REVIEW IN REVERSING THE

JURY VERDICT ON THE BASIS THAT THE

EVIDENCE WAS INSUFFICIENT TO SUP-

PORT THE VERDICT?

In admiralty cases, conclusions of negligence and

proximate cause are treated as fact questions. This princi-

ple was addressed in Cheek v. Williams-McWilliams, 697

F.2d 649 (1983), where the court stated:

“Questions of negligence and proximate cause in ad-

miralty cases are treated as fact questions. Marcona

Corp. v. Oil Screw Shifty III, 615 F. 2d 206, 208 (5th

Cir. 1980); S.C. Loveland, 608 F.2d at 166.”’ 697 F.2d

at 649.

The proper standard of appellate review of facts has been

addressed many times by this Court. It has been repeated-

ly held that findings of fact by the trial court will not be

disturbed if supported by sufficient evidence in the record.

The decision of the court in Gross v. Black & Decker (U.S.),

Inc., 695 F.2d 585 (5th Cir.1983)., contains an excellent

description of the proper role of an appellate court in

reviewing findings of fact. In Gross, the court stated:

‘This Court affords great deference to jury findings.

The Seventh Amendment to the Constsitution pro-

vides that no fact tried by a jury shall be re-examined

by any court of the United States except according to

the rules of common law. For that reason, an appellate

court may not reweigh the evidence or set aside the

jury’s verdict merely because the appellate judges

could have drawn different inferences or conclusions

from the evidence, or feel that other results might be

more reasonable. Boeing, 411 F.2d at 376 N. 16;

Gallick v. Baltimore & Ohio Railroad Co., 372 U. S.

108, 83 S. Ct. 659, 9 L.Ed.2d 618 (1963); Sentilles v.

Inter-Carribean Shipping Corp., 361 U.S. 107, 80 S.Ct.

173, 4 L.Ed. 2d 142 (1959). Thus, the most an appellate

court can do is to determine whether there was any

competent and substantial evidence in the record

which fairly tends to support the verdict. Mortenson v.

United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed.

1331 (1944). An appellate court will not overturn a

jury’s verdict then, even though contradictory

evidence has been presented, if there is any eviden-

tiary basis for the verdict.’’ 695 F.2d at 865 (emphasis

added).

It is clear that in reviewing findings of fact of a jury, an ap-

pellate court should concern itself with determining

‘whether there was any competent and substantial

evidence in the record which fairly tends to support the

verdict.”’

The essence of this petition lies in the fact that the

Court of Appeals failed to identify and examine the facts

which tend to support the verdict. Rather, the Court of Ap-

peals sought out facts which support respondents’ version.

If an opinion of an appellate court reverses a finding

of fact without attempting to identify and evaluate the suf-

ficiency of the evidence presented that might support the

finding, then the only conclusion is that the appellate court

is not following the proper standard of appellate review.

If the October 29, 1985 opinion is read with the

above principles in mind, the conclusion is inescapable that

the Court of Appeals did not follow the proper standard of

appellate review in arriving at its decision. After stating on

Page 366 of the opinion that ‘‘the record contains no

evidence of negligence sufficient to sustain the jury’s ver-

dict’’ against Cheramie, the Court spends the next three

pages of the opinion explaining how it reached tha conclu-

sion. See Appendix, Pages A-27—A-32, infra. Petitioners

request that this Court examine that language and find any

language that addresses itself to the issue as to whether

there was sufficient evidence to support the jury’s finding.

With the exception of one sentence,! this discussion con-

tains absolutely no language discussing the lack of

evidence to support the jury’s finding. Instead of address-

ing the sufficiency of the evidence which might support a

conclusion that Cheramie was negligent, the Court of

Appeals:

10n Page 367 of the opinion is found the following statement:

‘The record contains no evidence that any vessel passed by the Transo-

cean slip during or around the time of Bodd’s final dive.’’ See Appendix,

Page A-28, infra.

(1)

(2)

(3)

(4)

(5)

Discusses facts which would support a conclusion

that Cheramie was not negligent;

draws inferences from facts to support conclu-

sions made about the knowledge or lack of

knowledge of Cheramie;

states conclusions of law;

discusses facts which would support a finding of

negligence on the part of Joseph Bodd; and

draws inferences from facts to support conclu-

sions made about the knowledge or lack of

knowledge of Joseph Bodd.

In one single paragraph on Page 369 of the opinion,

the Court of Appeals discusses the evidence it considered

in arriving at the conclusion that there was insufficient

evidence to support the jury’s finding of negligence on

behalf of Transocean. See Appendix, Page A-32, infra.

Again, petitioners request that this Court examine that

language and point out any language that addresses itself

to the issue as to whether sufficient evidence exists in the

record from which a jury could infer that Transocean was

negligent. This issue was not addressed. Instead, the Court

of Appeals:

(1)

(2)

(3)

(4)

makes conclusions of law;

draws inferences from the facts to support conclu-

sions made about the knowledge or lack of

knowledge of Transocean;

discusses facts which might support a conclusion

that Transocean was not negligent; and

discusses facts which would support a finding of

negligence as to Joseph Bodd, and makes in-

ferences from facts to support conclusions about

the negligence of Joseph Bodd.

Simply put, the language of the opinion

demonstrates the Court of Appeals reweighed the evidence

and substituted its conclusions for those of the jury. This

fundamental error has resulted in petitioners being effec-

tively denied their Seventh Amendment right to a trial by

jury. If the language in Section V of the Opinion is careful-

ly examined, there can be no other conclusion but that the

Court of Appeals merely decided the case differently than

the jury and then attempted to justify its decision with

facts and inferences that would support a different conclu-

sion than that reached by the jury. This total disregard for

the proper standard of appellate review is a gross departure

from the usual course of conduct by an appellate court and

warrants an exercise of this Court’s power of supervision.

The remainder of this brief will attempt to identify

the facts and evidence supporting the verdict which were

identified in Section I of the Opinion, but not addressed by

the Court of Appeals in Section V of its Opinion. See Ap-

pendix, Pages A-16—A-19, infra. The Court is asked to

keep an open mind in reviewing these facts, as the Court of

Appeals’ reversal of the jury’s mandate affects Joseph

Bodd’s survivors greatly.

Il. DID THE COURT OF APPEALS ERR IN FIN-

DING THE EVIDENCE INSUFFICIENT TO

SUPPORT THE JURY’S CONCLUSION THAT

CHERAMIE WAS NEGLIGENT?

It is not the intention of petitioners to convince this

Court that Cheramie was negligent. The evidence suppor-

ting the conclusion that Cheramie was not negligent has

already been thoroughly discussed and set forth in the

Court of Appeals’ Opinion. See Appendix, Pages

A-27—A-32, infra. However, as was discussed in the forego-

ing section, the Opinion does not contain any language to

suggest that the Court of Appeals has evaluated the

evidence to see if it is clearly sufficient to support the

jury’s conclusion that Cheramie was negligent. If the

record is evaluated only to determine whether it reasonably

supports the jury’s finding of negligence, then the judg-

ment against Cheramie would be reinstated.

While the facts are conflicting, there are certainly enough

facts both in the record and in the Court of Appeals’ Opi-

nion to conclude that Cheramie may have been negligent.

Before addressing the matter as to how the facts recited by

the Court of Appeals support a finding of negligence, it

would be helpful to lists the facts upon which the jury could

reasonably have relied in reaching its conclusion that

Cheramie was negligent. To keep matters simple, only facts

listed in this Court’s October 29, 1985 opinion will be

evaluated. It is also important to discuss the reasonable in-

ferences or conclusions the jury could have drawn from

knowledge of these facts. After each fact is set forth below,

a discussion of the reasonable inferences which the jury

might have drawn from knowledge of that particular fact

will immediately follow. The pertinent facts and reasonable

inferences are:

FACT NO. 1:

‘‘Joseph Bodd, an employee of Martech International, Inc.

(Martech), worked as a diver’s tender on board the

Cheramie Bo-Truc #11 for the two weeks prior to August

12, 1979.” (Opinion Page 358, reproduced in Appendix,

Page A-16, infra.)

The jury could very well have concluded from this

fact that Cheramie had knowledge of the fact that Bodd

was inexperienced, because of Cheramie’s past dealings

with Bodd. Perhaps the jury concluded that Cheramie

knew Bodd was merely a diver’s helper who was inex-

perienced and making his debut as a diver. This inference

is certainly reasonable and would be relevant in evaluating

the negligence of Cheramie.

FACT NO. 2:

‘While backing into the Transocean slip, the right pro-

pellor of the Bo-Truc became fouled and the starboard

engine shut down. The captain docked the vessel by

using the port engine.”’ (Opinion Page 358, reproduced

in Appendix, Page A-17, infra.)

Despite this fact, Captain Gaspard was still able to

dock the vessel with the use of the port engine only. The

jury could easily have concluded from this fact that Cap-

tain Gaspard knew the vessel was capable of being moved

after one of its propellors became fouled and one engine

shut down.

FACT NO. 3:

“The slip contained a great deal of junk and debris.”’

(Page 358) ‘“The owners of the Cheramie knew the slip

water was muddy and that debris was floating in the

slip.” (Opinion Page 358, reproduced in Appendix,

Page A-17, infra.)

The crew of the Cheramie had been working with

divers in the two-week period before Bodd’s accident. The

Captain and crew were not strangers to divers and their

equipment. One need not be an expert diver to realize that

it is dangerous for a diver to allow his air hose to get tangl-

ed in debris. The jury could have concluded that the Cap-

tain of the vessel either knew or should have known that

the Transocean slip was not a safe place to attempt under-

water repairs.

FACT NO. 4:

“Although Captain Gaspard recommended dry-

docking the Bo-Truc for repairs, his supervisors decid-

ed to contract with Martech for a diver to free the pro-

pellor. Martech sent Joseph Bodd and a diver’s tender,

Thomas Runnels, to perform the contract.’’ (Opinion

Page 358, reproduced in Appendix, Page A-17, infra.)

Why did Captain Gaspard recommend to his superiv-

sors that they move the boat out of the Transocean slip and

dry-dock it for repairs when the Martech office and divers

were 100 feet away? This question was never addressed in

_ the Court’s opinion. While several conclusions are possible,

it is submitted the jury may reasonably have concluded

that Gaspard recommended dry-docking the boat because

he recognized that the deplorable condition of the Transo-

cean slip would not allow for safe and efficient underwater

repair. Furthermore, the fact that he was recommending

the vessel be moved and dry-docked for repairs certainly

supports the conclusion that the Captain knew the vessel

could be moved with only the use of the port engine. What

inference could the jury have drawn from knowledge of the

fact that Gaspard’s recommendation to dry-dock the vessel

was ignored by someone in an office 100 mile away, who

decided to go ahead and attempt repairs with divers. After

all, Captain Gaspard was at the slip and could see the

debris in and along the slip firsthand. He was in the best

position to decide how to safely repair the vessel. No ex-

planation was provided for why his recommendation was

ignored.

FACT NO. 5:

‘‘Bodd and Runnels set up their diving station at the

rear of the slip, sixty feet from the stern of the vessel.

Debris in the dock area of the Transocean slip made it

impossible for them to set up the station at the

customary location, the stern of the vessel.’’ (Page

358) ‘‘This was a sixty foot walk, during which Bodd's

air hose had to be dragged over debris on the bottom

of the slip.’’ (Opinion Pages 358-359, reproduced in

Appendix, Page A-17,infra.)

This fact was observed by both Cheramie super-

visors. The jury certainly could have concluded that the

Cheramie supervisors were aware that the forced location

of Bodd’s dive station created a hazardous situation. The

jury could have concluded that the Cheramie supervisors

knew that the debris on the bottom of the slip would be

hazardous to Bodd in light of the fact that he had to drag

his air hose 60 feet behind him to reach the work place. The

jury also could have concluded that the forced location of

the dive station seriously lessened the chances of effecting

a safe rescue in the event Bodd did get into trouble.

FACTS NO. 6 & 7:

‘‘Bodd first performed an inspection drive which

lasted fifteen or twenty minutes. Bodd inspected

both propellors and reported to Gaspard and

Gaspard’s supervisor, Buddy Curoles, that the star-

board wheel was fouled with rope and the port wheel

with cable. The Cheramie supervisors did not know

the port wheel was also fouled until this time.” (Opi-

nion Page 359, reproduced in Appendix, Page A-18,

infra.)

“Gaspard testified without contradiction that he

relies on the diver’s recommendations in these situa-

tions and that he would have moved the vessel if

Bodd had so requested. However, he did not so advise

Bodd. Runnels testified that he and Bodd did not re-

quest that the boat be moved because both propellors

were fouled and they did not know it could be mov-

ed."’ (Opinion Page 359, reproduced in Appendix,

Page A-18. infra.)

The jury could easily have concluded that Cheramie

acted unreasonably in failing to tell Bodd that the vessel

was capable of being moved to a slip where Bodd could set

up his equipment next to the vessel and not have to drag

his air hose over debris. The jury could reasaonably have

concluded that only Gaspard knew the vessel was capable

of moving to a safer work place after being informed both

propellors were fouled. Since the jury may have concluded

that only Cheramie had knowledge of the fact that the

vessel could be moved to a safer work place and that only

Cheramie had authority to move the vessel to a safer place,

it violated its duty to Bodd to provide a safe place in which

to work by not moving the vessel to a safer slip.

FACT NO. 8:

“Gaspard and Curoles then contacted the

the charterer, CNG Producing Company. Curoles recom:

mended dry-docking the boat. Because the vessel was need-

ed for another job and it was thought dry-docking might

take too long, the decision was made to request the diver

to proceed with the wheel job in the Transocean slip.’’ (Opi-

nion Page 359, reproduced in Appendix, Page A-18, infra.)

While the exact reason behind Curoles’ recommenda-

tion to dry-dock the vessel was never identified, the jury

could reasonably have concluded that Curoles made this

recommendation because of the hazardous conditions he

had observed firsthand in the Transocean slip. He was

aware of the debris on the bottom of the slip. He was aware

that Bodd was forced to drag his air hose 60 feet over

debris on the bottom of the slip. He was aware of the fact

that Bodd was an inexperienced diver. He was aware that

the location of the dive station severely hampered any

possibility of a rescue operation in the event the diver did

get into trouble. The jury could easily have concluded that

Cheramie acted unreasonably in ignoring the second recom-

mendation of an on-site supervisor to dry-dock the vessel

for repairs and allowing the decision to proceed with the

divers to be made by someone 100 miles away and for

economic reasons.

FACTS NO. 9 & 10:

‘“‘Bodd performed three more dives. On each dive

he complained over the radio to his tender about

his air hose becoming tangled with the debris on

the bottom of the slip. Gaspard and Curoles

observed Bodd's dives. Gaspard heard the radio

communications between Bodd and his tender.”

(Opinion Page 359, reproduced in Appendix, Page

A-18, infra.)

‘‘During Bodd’s fourth dive, Runnels noticed that

the radio was dead and that air bubbles were no

longer apparent.’(Page 359) ‘Gaspard and

Curoles had great difficulty in pulling up the air

hose which seemed to snap several times on

something under the surface.’’ ***‘‘Bodd's body was later

found floating under the vessel near its bow."’ (Opinion

Pages 359-360, reproduced in Appendix, Pages

A-18—A-19, infra.)

Consider the following inferences which the jury

might have drawn and which were not addressed in the

Court of Appeals’ Opinion:

(1) that Cheramie had actual knowledge that

Bodd was in danger because they observed his air

hose become tangled in debris and heard Bodd

complain about the problem on his radio;

(2) that Cheramie acted unreasonably in failing

to move the vessel to a safer work place or to in-

tervene and stop Bodd;

(3) that Bodd was young and inexperienced and

that the Cheramie supervisors knew this;

(4) that the two on-site supervisors allowed

Bodd to continue to subject himself to danger

because they had already twice recommended

that the vessel be dry docked for repairs and

these recommendations were ignored;

(5) that Gaspard and Curoles failed to intervene

and to stop Bodd because they were under orders

to continue repair operations with a diver, when

both of them had previously recommended a dif-

ferent and safer method of repair;

(6) that Bodd’s air hose became tangled on

debris in the slip and, faced with a desperate

situation, Bodd released his air hose and swam to

what he thought was the rear of the boat.

The list could go on. Suffice it to say, that there were many

inferences of Cheramie’s negligence unaddressed by the

Court of Appeals in its opinion.

Let us now discuss the above facts and reasonable in-

ferences in light of the three duties owed by the owner of

a vessel to a ship repairer, set forth in Scindia Steam

Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). The

first duty owed by a vessel owner toa ship repairer is to fur-

nish the repairer a safe place to work. Consider the follow-

ing inferences the jury may have drawn from the evidence

which established that Bodd was not furnished a safe place

in which to work:

1) Cheramie did not provide Bodd with a work

space where he could properly set up his dive sta-

tion next to the stern of the vessel and where

Bodd could perform underwater repairs without

encountering debris that would snag his air hose;

and

2) Cheramie did not provide Bodd a safe place to

work in failing to move the vessel to a safe slip.

Cheramie controlled the decision as to where the work was

to be performed. While Cheramie could not make safe the

‘“‘underwater conditions’’ in the Transocean slip, it could

have made the underwater conditions safe by moving the

vessel to a safe slip.

The second duty owed by a vessel owner to a ship

repairer under Scindia is to warn the ship repairer of any

hidden dangers which the owner knows or should know

about in the ecercise of due care. A logicial extension of this

duty would require that the vessel owner warn or inform

the ship repairer that it is possible to avoid a danger when

only the vessel owner has knowledge that it is possible to

avoid a danger. The facts and inferences discussed above

certainly support a finding by the jury that Chermie was

negligent for failing to warn Bodd that it was possible to

avoid the dangers existing in the Transocean slip by mov-

ing the vessel to a safer slip. The jury could have concluded

also that only Cheramie knew the vessel was capable of be-

ing moved to another location and was negligent for failing

to inform Bodd when he was under the impression the

vessel was incapable of movement. This effectively depriv-

ed Bodd of an infcrmed and voluntary choice concerning

his decision to work in hazardous conditions existing in the slip.

Under Scindia, the third duty owed by a vessel owner

to a ship repairer is to intervene and stop the ship repairer

if the vessel owner acquires knowledge that a condition is

presenting a danger to the ship repairer and that the

employer of the ship repairer is unreasonably failing to pro-

tect the ship repairer from that damage. Actual knowledge

can be inferred from the evidence and can be proven by cir-

cumstantial evidence. This was made clear in the case of

Morein v. Reading & Bates Drilling Co., et al, Fifth Circuit

No. 83-4768 (1984), where the court stated:

“The jury couid have inferred such actual

knowledge on the basis of evidence from which it

could have found that the condition of the seas

was obvious to both the N.J. Guilbeau and the

M/V State Pride personnel and that it was

likewise obvious to the latter that the former were

aware of the dangerous conditions of the sea but

nevertheless commenced and _ continued

unloading operations. There is no requirement

that actual knowledge be proved by direct

testimony, such a witness testifying he knew

something, or testimony that a particular

employee was expressly told of a given situation.

Actual knowledge, like any other matter at issue

can be proved by circumstantial evidence.”

The evidence discussed earlier is clearly sufficient to

support a finding that Cheramie had actual knowledge of

the snagging of Bodd’s air hose on debris and that this was

a dangerous situation. On two occasions, Cheramie super-

visors requested the vessel be moved out to the Transocean

slip for repairs, and twice these recommendations were ig-

nored. The debris in and along the slip was obvious to

everyone before the diving operation began. The Cheramie

supervisors observed that Bodd was forced to set up his

dive station 60 feet away from the stern of the vessel and

drag his air hose over obvious debris sticking out of the

water. The Cheramie supervisors actually observed Bodd

encounter problems with his air hose becoming tangled in

the debris and heard him complain about this problem over

the radio. Furthermore, the Cheramie employees knew

Bodd was inexperienced. They saw Bodd continue to at-

tempt repair work in spite of the fact that his air hose was

getting snagged in debris. The Cheramie employees knew

that no Martech supervisor was around to protect Bodd

from unreasonably exposing himself to these dangers in his

eagerness to successfully complete his first job as a diver.

Despite this actual knowledge, Cheramie failed to in-

tervene and to stop Bodd.

A fair consideration of all the facts in light of Scin-

dia, supra, reveals that there is abundant evidence in the

record to support the jury’s finding that Cheramie violated

all three of its duties to Bodd.

III. DID THE COURT OF APPEALS ERR IN

FINDING THE EVIDENCE INSUFFI-

CIENT TO SUPPORT THE JURY’S CON-

CLUSION THAT RESPONDENT, TRANS-

OCEAN CONTRACTORS, INC. WAS

NEGLIGENT?

In one paragraph on Page 369 of its opinion, the

Court of Appeals concludes that the evidence was insuffi-

cient to support a finding of negligence against the slip

owner, Transocean. See Appendix, Page A-32. infra. A fair

review of the facts demonstrates that there was a great

deal of evidence to support a finding of negligence as to

Transocean. Since the Court of Appeals failed to discuss

facts which might have supported a finding of negligence

against Transocean in its opinion, an examination of these

facts is in order. Once again, to simplify matters, only facts

that appear in the Court of Appeals’ Opinion will be set

forth After each fact is set forth below, a discussion of the

reasonable inferences which the jury may have drawn from

these facts follows.

FACT NO. 1:

“While backing into the Transocean slip, the

right propellor of the Bo-Truc became fouled and

the starboard engine shut down.”’ (Opinion Page

358, reproduced in Appendix, Page A-17, infra.)

The jury could very well have concluded from the

above fact: that the Transocean slip was not properly main-

tained by Transocean; that Transocean was not keeping its

slip free of debris, since a vessel entering the slip was

unable to do so without getting debris entangled in its pro-

pellors; that a reasonable slip owner will anticipate that

vesels will enter its slip and that it has the duty to keep the

slip free of debris and obstructions. The fact that Bo-Truc

could not even enter the Transocean slip without getting

its propellors fouled, certainly supports the conslusion that

Transocean was violating its duty to keep the slip free of

obstructions. The jury could also have reasonably conclud-

ed that it was the violation of this duty that started the

chain of events that led to Bodd’s death. If Transocean had

keep its slip clean, the Bo-Truc could have entered the slip

without difficulty and it would never have been necessary

to request divers to perform repair work.

FACT NO. 2:

“The slip contained a great deal of junk and

debris.’’ (Page 358) “‘Visible debris floated at the

edge of the slip.” (Opinion Page 358, reproduced

in Appendix, Page A-17, infra.)

The jury could have very well concluded from these

facts: that Transocean was unreasonably failing to main-

tain its slip and that this unreasonable conduct had been

occurring for some time; that the Transocean employees

had knowledge that the bottom of the slip was covered with

debris; that Transocean either knew or should have known

that the debris in the slip would create problems for vessels

entering the slip and dangers to divers attempting to work

in the slip; that Transocean acted unreasonably in failing to

keep its slip free of debris and this unreasonable conduct

contributed to Bodd’s death; that, if the slip was properly

maintained, then the propellors of the vessel would not

have become fouled and the air hose would not have

become tangled.

FACT NO. 3:

‘“‘Bodd and Runnels set up their diving station at

the rear of the slip, sixty feet from the stern of the

vessel. Debris in the dock area of the Transocean

slip made it impossible for them to set up the sta-

tion at the customary location, the stern of the

vessel.’’ (Opinion Page 358, reproduced in Appen-

dix, Page A-17, infra.)

From the above facts, the jury could reasonably have

concluded: that Transocean’s failure to maintain the dock

area of the slip forced Bodd to set up his diving station 60

feet from the vessel; that this unreasonable failure to main-

tain the dock area played a casual relationship in bringing

about Bodd’s death. If Bodd had not been prevented from

setting up his dive station next to the vessel because of

junk lying along the side of the slip, he would not have been

forced to drag his air hose 60 feet over the debris in the slip

itself. Furthermore, if Bodd could have set up his dive sta-

tion next to the vessel, it would have greatly increased the

potential to rescue Bodd. The jury could have concluded

that Transocean acted unreasonably in allowing debris to

accumulate along the side of the slip, when it either knew

or should have known this accumulation of debris would

hamper the activities of people working in the slip.

FACT NO. 4:

‘‘Bodd performed three more dives. On each dive

he complained over the radio to his tender about

his air hose becoming tangled with the debris on

the bottom of the slip.’’ (Page 359) ‘‘Transocean

employees were also present during these diving

operations.’’ (Opinion Page 359, reproduced in

Appendix, Page A-18, infra.)

From knowledge of the fact that Transocean

employees were present during the dives, the jury could

have concluded many things. It could have concluded: that

Transocean had knowledge that Bodd was forced to set up

his diving station 60 feet from the stern of the vessel and

forced to drag his air hose over obvious debris in the slip;

that since Transocean employees were present during the

dives and that Bodd experienced difficulty with his air hose

becoming tangied in debris each dive, that Transocean had

knowledge of the problems which Bodd was experiencing.

Perhaps the jury concluded that Transocean should not

have allowed Bodd to attempt the repairs even if it did not

have actual knowledge of the problems experienced by

Bodd. Under the general maritime law, it is not necessary

to prove “actual knowledge’ to prove negligence. Perhaps

the jury felt Transocean ‘‘should have known”’ it was

hazardous to allow Bodd to attempt the repairs.

Now that the facts and inferences upon which the

jury may have relied in finding Transocean negligent have

been identified, it now becomes possible to evaluate

whether the evidence is sufficient to sustain the verdict.

While contradictory and sometimes confusing, the facts

and inferences discussed above are clearly sufficient to sup-

port the jury’s conclusion that Transocean was negligent.

Before addressing the findings of negligence, a few words

are in order concerning the standard which should be used

in evaluating Transocean’s conduct.

In the only paragraph of the opinion directed to the

sufficiency of the evidence against Transocean, the Court

of Appeal discussed only one possible duty which Transo-

cean may have violated. See Cpinion Page 369, reproduced

in Appendix, Page 432, infra. Curiously, the duty discuss-

ed is the duty of Transocean ‘‘to warn Bodd only of dangers

that were reasonably forseeable.’’ The reason this is

curious is that petitioners never argued to the jury that

Transocean violated any duty it may or may not have had

to warn Bodd of dangers. If it was never urged that Transo-

cean was negligent for failing to warn Bodd of dangers,

then it is clear that the Court of Appeals did not properly

———

evaluate the evidence that the Court of Appeals cites the

decision of Daigle v. Point Landing, Inc., 616 F.2d 825

(1980), in support of the conclusion that: ‘Transocean had

a duty to warn Bodd only of dangers that were reasonably

forseeable.’’ See Opinion Page 369, reproduced in Appen-

dix, Page A-32, infra. Petitioners do not quarrel with this

statement, but submit that focus of the Court on the ‘‘duty

to warn’”’ and the Daigle decision, shows that the Court

never evaluated the sufficiency of the evidence under the

theories of negligence advanced by petitioners at trial. The

Daigle decision is a case where the oniy theory of

negligence advanced by the plaintiff was that the owner of

a vessel failed to warn him before applying power to the

engine. In the immediate case, it was urged that Transo-

cean was negligent for several reasons, but failure to warn

was not one of them. For this reason alone, this petition for

certiorari should be granted and the sufficiency to the

evidence against Transocean evaluated under the theories

of negligence argued to the jury.

The Daigle case is one arising under the general

maritime law and does discuss the proper standard by

which the conduct of a defendant should be evaluated. In

addressing that standard of care, the Court states:

‘Ta analyzing a maritime tort case we rely on

general principles of negligence law. S.C.

Loveland, Inc. v. East West Towing, Inc. 608

F.2d 160, 165 (5th Cir, 1979). The plaintiff is owed

a duty of ordinary care.’’ 616 F.2d at 827 (em-

phasis added)

Thus, in a maritime tort case, the standard of care

owed by a defendant is one of reasonableness or ordinary

care. With this understanding of the standard of care re-

quired of a defendant in a maritime tort case, it now

becomes possible to evaluate whether the facts and in-

ferences discussed above are sufficient to support a conclu-

sion that Transocean failed to exercise ‘‘ordinary care.”

From the facts and inferences above, the jury could have

concluded that it was unreasonable for Transocean not to

maintain the bottom or side of its slip and that these inac-

tions contributed to Bodd’s death. It has been held that a

dock owner has a duty to exercise reasonable diligence in

ascertaining the condition of its slip and to remove any

dangerous obstructions. This duty was addressed in U. S.

v. Mowbray’s Floating Equip., 601 F.2d 645 (1979), where

the court stated:

‘“‘A wharfinger’s obligation is not to ‘guarantee

the safety of his vessels coming to his wharves’

but to ‘exercise reasonable diligence in ascertain-

ing the condition of the berths thereat, and if

there is any dangerous obstruction, to remove it,

or to give due notice of its existence to vessels

about to use the berths.’’ 601 F.2d 646 (emphasis

added)

It was also urged that Transocean was negligent in

allowing diving operations in the slip and the evidence

clearly supports such a finding. Perhaps the jury felt that

if Transocean did not have the good sense to maintain its

slip, then it was unreasonable for it to allow underwater

repairs to be attempted. Perhaps the jury felt it was

negligent for Transocean not to have ordered the diver out

of its slip or to have ordered the captain to move the vessel

to a safer slip. It was also urged that if Transocean did not

know underwater repairs were taking place in its slip, then

it was negligent for failing to properly supervise its slip.

Such a finding would be supported by the evidence. The

jury may also have concluded that Transocean employees

were aware of the problems Bodd was experiencing and

acted unreasonably in allowing him to continue. All of the

actions and omissions are sufficient to support a finding

that Transocean was negligent.

It is submitted that if this Court evaluates the facts

and inferences in the record upon which the jury might

have relied in finding Transocean negligent, it will conclude

that this result is supported by the record. For this reason,

petitioners pray that this petition for certiorari be granted

and judgment against Transocean be reinstated.

CONCLUSION

For the reasons stated above, it is respectfully sub-

mitted that this petition for a writ of certiorari should be

granted.

MORROW & MORROW

Attorneys for Petitioners

JAMES P. RYAN

324 W. Landry

P. O. Drawer 7090

Opelousas, LA 70571

318/948-4483

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this Petition

for Certiorari has this day been forwarded to the following

counsel of record, by depositing same in the United States

Mail, postage prepaid and properly addressed, to-wit:

RANDALL K. THEUNISSEN, At-

torney for Transocean

Contractors, Inc., P. O. Drawer 3768,

Lafayette,

Louisiana 70502

JAMES R. CARTER and GLENN B.

ADAMS, Attorneys

for Cheramie Bo Truc #11, Inc., 704

Carondelet St.,

New Orleans, Louisiana 70130

This 108 day of February, 1986.

JAMES P. RYAN

A-l

APPENDIX A

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

DOLORES BODD CASACELI, ET AL

CIVIL ACTION NO.

VS. 800097 SECTION O

MARTECH INTERNATIONAL, INC.

CONSOLIDATED WITH

DOLORES BODD CASACELI, ET AL

CIVIL ACTION NO.

VS. 800098 SECTION O

CHERAMIE BO TRUC 411, INC.

FILED APRIL 12, 1984

JUDGMENT

These actions came on for trial before the Court and

a jury, Honorable John M. Shaw, District Judge, presiding,

and the issues having been duly tried, and the Court having

instructed the jury to make answer to certain special inter-

rogatories, and the jury having duly rendered a verdict and

having made answer to said special interrogatories as

follows:

SPECIAL INTERROGATORY TO THE JURY:

SEAMAN STATUS

Do you find that at the time of death Joseph Stanley

Bodd was a seaman and member of the crew of a vessel, or

a fleet of vessels?

Answer Yes or No (NO)

A-2

SPECIAL INTERROGATORIES

Do you find from a preponderance of the

evidence that Cheramie Bo Truc #11, Inc. was

negligent in the manner claimed by the plain-

tiffs and that such negligence was a legal cause

of Joseph Bodd’s death?

Answer Yes or No (YES)

Do you find from a preponderance of the

evidence that Transocean Contractors, Inc.

was negligent in the manner claimed by the

plaintiffs and that such negligence was a legal

cause of Joseph Bodd’s death?

Answer Yes or No (YES)

If you answered ‘‘Yes’’ to eny of the questions

above, do you find from a preponderance of the

evidence that the decedent himself was

negligent in the manner claimed by the defen-

dants and that such negligence was a legal

cause of decedent’s own death?

Answer Yes or No (YES)

If you answered ‘‘Yes’’ to Question One, what

proportion or percentage of Josephs Bodd’s

death do you find from a preponderance of the

evidence to have been legally caused by

Cheramie Bo Truc #11, Inc.?

Answer in Terms of Percentage: (45%)

A-3

5) If you answered ‘‘Yes’’ to Question Two, what

proportion or percentage of Joseph Bodd’s

death do you find from a preponderance of the

evidence to have been legally caused by Transo-

cean Contractors, Inc.?

Answer in Terms of Percentage: (45%)

6)If you answered ‘‘Yes’”’

to Question Three, what

proportion or percentage of

plaintiffs’ damages do you

find from a preponderance

of the evidence to have

been legally caused by the

negligence of Joseph

Bodd?

Answer in Terms of

Percentage: (10%)

7) If you answered ‘‘Yes” to Question One or

Two, what sum of money do you find from a

preponderance of the evidence to be the total

amount of damages, if any, resulting from

Joseph Bodd’s conscious pain and suffering

prior to his death?

Answer in Dollars: ($75,000)

8) If you answered ‘‘Yes’’ to Question One or

Two, what sum of money do you find from a

preponderance of the evidence to be the total

amount of damages, if any, resulting from the

loss of society suffered by Evelyn Bodd as a

result of her son’s death?

Answer in Dollars: ($150,000)

10)

11)

12)

13)

14)

A-4

If you ansewered ‘‘Yes’” to Question One,

should punitive damages be assessed against

Cheramie Bo Truc #11, Inc.?

Answer Yes or No (YES)

If you answered ‘‘Yes’’ to Question Nine, what

amount of punitive damages should be asessed

against Cheramie Bo Truc 411, Inc.?

Answer in Dollars: ($250,000)

If you answered ‘‘Yes’” to Question Two,

should punitive damages be assessed against

Transocean Contractors, Inc.?

Answer Yes or No (YES)

If you answered ‘‘Yes’’ to Question Eleven,

what amount of punitive damages should be

assessed against Transocean Contractors,

Inc.?

Answer in Dollars: ($250,000)

If you answered ‘‘Yes’”’ to Question One or

Two, do you find froma preponderance of the

evidence that plaintiffs are entitled to an award

of prejudgment interest?

Answer Yes or No (YES)

If you answered “Yes’’ to Question Thirteen,

what rate of prejudgment interest do you find

from a preponderance of the evidence to be due

plaintiffs?

Answer: (10%)

A-5

15) If you answered ‘‘yes’’ to Question Thirteen,

from what date does prejudgment interest

begin to run?

Answer: (First trial date set in this case)

IT IS ORDERED AND ADJUDGED that there be

judgment herein in favor of plaintiff, DOLORES BODD

CASACELI, individually and as duly authorized represen-

tative of the Estate of Joseph Stanley Bodd, and against

defendants, CHERAMIE BO TRUC 411, INC. and TRAN-

SOCEAN CONTRACTORS, INC., jointly, severally, and

in solido, in the full sum and amount of SIXTY-SEVEN

THOUSAND FIVE HUNDRED AND _ NO/100

($67,500.00) DOLLARS, together with interest at the rate

of 10% from October 13, 1981, the first trial date set in this

case, to date of judgment and interest at the rate of 10.60%

from date of judgment, until paid.

IT IS FURTHER ORDERED AND ADJUDGED

that there be judgment herein in favor of plaintiff,

EVELYN BODD, and against defendants, CHERAMIE

BO TRUC #11, INC. and TRANSOCEAN CONTRAC-

TORS, INC., jointly, severally, and in solido, in the full

sum and amount of ONE HUNDRED THIRTY-FIVE

THOUSAND AND NO/100 ($135,000.00) DOLLARS,

together with interest at the rate of 10% from October 13,

1981, the first trial date set in this case, to date of judg-

ment and interest at the rate of 10.60% from date of judg-

ment, until paid.

IT IS FURTHER ORDERED AND ADJUDGED

that there be judgment herein in favor of plaintiffs,

DOLORES BODD CASACELI, Individually and as duly

authorized representative of the Estate of Joseph Stanley

Bodd, and EVELYN BODD, and against defendant,

A-6

CHERAMIE BO TRUC 411, INC. in the full sum and

amount of TWO HUNDRED FIFTY THOUSAND AND

NO/100 ($250,000.00) DOLLARS, together with interest at

the rate of 10.% from October 13, 1981, the first trial date

set in this case, to date of judgment and interest at the rate

of 10.60% from date of judgment, until paid.

IT IS FURTHER ORDERED AND ADJUDGED

that there be judgment herein in favor of plaintiffs,

DOLORES BODD CASACELI, Individually and as duly

authorized representative of the Estate of Joseph Stanley

Bodd, and EVELYN BODD, and against defendant,

TRANSOCEAN CONTRACTORS, INC., in the full

amount of TWO HUNDRED FIFTY THOUSAND AND

NO/100 ($250,000.00) DOLLARS, together with interest at

the rate of 10% from October 13, 1981, the first trial date

set in this case, to date of judgment and interest at the rate

of 10.60% from date of judgment, until paid.

IT IS FURTHER ORDERED AND ADJUDGED

that the defendants, CHERAMIE BO TRUC 411, INC.

and TRANSOCEAN CONTRACTORS, INC., pay all costs

of this action.

OPELOUSAS, LOUISIANA, this 12th day of April,

1984.

ROBERT H. SHEMWELL, CLERK

BY: /s/ Mildred Baker

MILDRED BAKER, DEPUTY CLERK

APPROVED AS TO FORM:

/s/ John M. Shaw

JOHN M. SHAW, JUDGE

UNITED STATES DISTRICT COURT

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APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

DOLORES BODD CASACELI, ET AL

CIVIL ACTION NUMBER

VS. 800097

MARTECH INTERNATIONAL, INC.

SECTION O

CONSOLIDATED WITH

DOLORES BODD CASACELI, ET AL

CIVIL ACTION NUMBER

VS. 800098

CHERAMIE, BO TRUC 411, INC.

SECTION O

RULING

The defendants, Cheramie Bo Truc No. 11, Inc.

(hereafter Cheramie) and Transocean Contractors, Inc.

(hereafter Transocean) have both moved for judgments not-

withstanding the verdict, in the alternative, a new trial,

and in the further alternative, remittiur.

I. JNOV - NEGLIGENCE

Cheramie argues that in light of recent

jurisprudence, specifically Hili v. Texaco, Inc. 674 F.2d 447

(5th Cir. 1982) and Stass v. American Commercial Lines,

Inc., 720 F.2d 879 (5th Cir. 1983), Cheramie cannot

hea i

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be found liable as a matter of law under 33 U.S.C. § 905(b).

We disagree.

We preface our discussion with a statement of the

test for determining whether to grant a motion for judg-

ment notwithstanding the verdict. The standard is the

same as that applied to a motion for directed verdict. This

Court must examine the evidence in the light and with all

reasonable inferences most favorable to the party opposing

the motion. ‘‘[I]f there is substantial evidence opposed to

the motions, that is, evidence of such quality and weight

that reasonable and fair minded men in the exercise of im-

partial judgment might reach different conclusions, the

motions should be denied.,...’’ Boeing Co. v. Shipman, 411

F.2d 365, 374 (5th Cir. 1969)(en banc).

In the trial court’s recollection the evidence

presented to the jury inferred two possible theories of

Cheramie negligence: (1) that Cheramie was negligent in re-

questing that the wheel job be performed in the Transocean

slip rather than in dry dock or, at least, in another slip not

so filled with debris; (2) that Cheramie failed to moor the

vessel in a secure manner so as to avoid a substantial back

and forth movement of the vessel with each fluctuation of

the water level in the slip.

Cheramie relies upon a principle of law recognized in

West v. United States, 361 U.S. 118 (1959), and reasserted

in Hill and Stass, supra, that the shipowner who has hired

an independent contractor to perform repairs to the vessel

is under no duty to protect the longshoreman performing

the repairs from risks that are inherent in carrying out the

contract. Cheramie argues that this principle precludes im-

position of liability in this case. However, we do not believe

that the facts of this case invoke application of the

preclusive West principle. In West, the court denying relief

stated:

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“It appears manifestly unfair to apply the

requirements of a safe place to work to the

shipowner when he has no control over the ship or

the repairs, and the work of repair in effect

creates the danger which makes the place un-

safe.’’ Jd. at 123.

In the instant case we note that the owner and/or

master of the vessel had control over the decision regarding

where repairs should be conducted and also over the proper

mooring of the vessel. Although the dangerous condition of

the Transocean slip and the back and forth movement of

the vessel were dangers that the decedent was forced to

face as a result of the work of repair which he had under-

taken, they were not dangers created by the repair work

itself. The cluttered condition of the Transocean slip and

the improperly moored vessel were dangerous conditions

independent of the work of repair. Thus, the West principle

does not dictate that Cheramie must be absolved of liabili-

ty as a matter of law in this case.

Scindia Steam Navigation Co. v. De Los Santos, 451

U.S. 156 (1981), established the requirement that the

shipowner has a responsibility to eliminate dangerous con-

ditions which exist at the outset of repair operations, that

is, to turn over to the longshoreman a reasonably safe place

to work. The jury may reasonably have concluded that

Cheramie breached this obligation. We would also note

that the fact that a dangerous condition may have been

open and obvious to the longshoreman does not negate the

duty of care otherwise owed by the shipowner. Stass, 720

F.2d 879, at 882.

Considering the evidence in a light most favorable to

the plaintiff, we must deny Cheramie’s motion for a

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judgment notwithstanding the verdict. The Transocean

motion for a judgment notwithstanding the verdict is also

denied because there was sufficient evidence to withstand

a directed verdict on the causation issue raised by

Transocean.

II. JNOV - Conscious Pain and Suffering, or Alternatively

a Remittitur

Both defendants also moved for a judgment not-

withstanding the verdict on the award for conscious pain

and suffering on the basis that there was no evidence to

support such an award, Pertinent evidence adduced on this

issue included: (1) a photograph of a cut on the decedent’s

face; (2) the fact that the decedent’s right arm was frozen

into an uplifted position and his fist was tightly clinched

when his body was recovered, and (3) that certain pieces of

his diving head gear which should never be removed under-

water had been so removed. Although there was no

eyewitness, the evidence presented was sufficient for the

jury to infer that the decedent was conscious for some time

period before death, and that he must have suffered severe

conscious mental and physical pain and fright of his impen-

ding death, See, Consolidated Machines, Inc. v. Protein

Product Corporation, 428 F. Supp. 209, 229 (M.D. Fla.

1976); Complaint of Metcalf, 530 F. Supp. 446, 459 (S.D.Tx.

1981). Thus, the motions for judgment notwithstanding

the verdict on this issue are denied.

In the alternative, the defendants have requested a

remittitur because the $75,000 award for conscious pain

and suffering is excessive and against the weight of the

evidence. The test for deciding when a remittitur is ap-

propriate has been set forth as follows:

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The Court is not free to set aside the verdict merely

because the judge might have awarded a different amount

of damages, but it may do so if the proceedings have been

tainted by appeals to prejudice or if the verdict, in the light

of the evidence, is so unreasonable that it would be uncons-

cionable to permit to stand. Wright & Miller, Federal Prac-

tice and Procedure: Civil § 2807.

Several federal cases very much in point were cited,

but we do not find that they mandate remittitur. In the

cases cited involving deaths by drowning there was either

direct evidence or inference that the decedent had suffered

more than a few minutes. See Cook v. Ross Island Sand and

Gravel, 621 F.2d 746 (9th Cir. 1980); Hlodan v. Ohio Barge

Line, Inc., 611 F.2d 71 (5th Cir. 1980). A lack of evidence

in this case made it impossible to determine exactly how

long Joseph Bodd suffered prior to his death. However, it

was inferred and the jury may have reasonably concluded

that Mr. Bodd somehow became entangled or trapped

below the surface of water and that he struggled to free

himself for an extended period of time knowing as he

struggled that death was imminent when his oxygen was

exhausted. Thus, we must defer to the jury’s award

because we do not find the award shocking to the cons-

cience in light of the evidence. The motion for remittitur of

the award for conscious pain and suffering is denied.

III. Loss of Society - Remittitur

The jury awarded Evelyn Bodd, the decedent’s

mother, $150,000 for loss of society. Loss of society is, in-

deed, a compensable element of damages in this case. It is

defined as the loss of positive benefits, i.e., ‘‘the broad

range of mutuai benefits each family member receives from

another’s continued existence, including love, affection,

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care, attention, companionship, comfort and protection.”’

It does not include the mental anguish or grief suffered as

an emotional response to the death. Cruz v. Hendy Intern,

Co., 638 F.2d 719, 726 (5th Cir. 1981) citing Sea Land Ser-

vices v. Gaudet, 414 U.S. 573, 585 (1974).

The evidence adduced regarding Mrs. Bodd’s rela-

tionship with her son during the years from 1975 up until

the time of his death in 1981 indicated that they did not

maintain a close relationship. He left home in New York in

1975 and went home only infrequently for Christmas visits.

In light of the evidence and the awards given in similar

cases, we believe that the award for loss of society was

unreasonably high. See LaBoeff v. Goodyear Tire and Rub-

ber Co., 451 F. Supp. 253 (W.D.La. 1978); Crabtree v. Mar-

tin Exploration Co., 467 F. Supp. 1269 (E.D.La. 1979). Ac-

cordingly, the Court orders a remittitur of the award from

$150,000 to SEVENTY-FIVE THOUSAND AND NO/100

($75,000.00) DOLLARS. Alternatively, the Court will

grant a new trial on the loss of society element of damages

in the event that plaintiff does not consent to the

remittitur.

IV. JNOV - Punitive Damages, or Alternatively,

Remittitur

Defendants argue that punitive damages may not be

awarded as a matter of law in a case under 905(b). Counsel

specifically argue that the statement in Complaint of Merry

Shipping, 650 F.2d 622 (5th Cir. 1981) that punitive

damages may be recovered under general maritime law is

inapplicable to a 905(b) action. We disagree. Statements by

the Supreme Court in Edmonds v. Compagnie Generale

Transatl., 443 U.S. 256, 259 (1979) and by the Fifth Circuit

A-13

in Russell v. Atlantic & Gulf Stevedores, 625 F.2d 71, 72

(5th Cir. 1980) make it clear that section 905(b) did not

create a new cause of action but merely recognized an ex-

isting general maritime law claim. Thus, 905(b) is a general

maritime cause of action and punitive damages may, accor-

dingly, be awarded in a 905(b) case. The motion to remit the

punitive damages award is also denied.

V. Motions for New Trial

The motions for a new trial filed by Cheramie and

Transocean are denied, except in the event that the plain-

tiff refuses to accept a remittitur of the award for loss of

society damages as discussed, supra.

In summary, the motion for remittitur of the award

of damages for los of society is GRANTED with the condi-

tion that if plaintiff refused to accept a remittitur, a new

trial solely on that issue of damages will be granted. All