Petition for Writ of Certiorari — Patterson v. Humble Oil & Refining Co.

eee

ROBERT WAYNE PATTERSON

Petitioner.

Petition Fer A Writ Of Cortiovari Te The

United States Court of Appeals For The Fifth Circuit

—

g SAMUEL c. GAINSBURGH

1718 National Bank of Commerce

Bidg.

New Orleans, Louisiana 70112

J ATTORNEY FOR PETITIONER

Of Commact : *

KIERR and GAINSBURGH

New leds. Louisiana

|

7

7

bbb

Argument

Conctuston

_ Proof of Service

9

Appendix A

‘Appendix R

Appendix C

TABLE OF CASES

Alaska S.C. Co. v. Petterson, 347 U.S. 396, 74 S.Ct.

601, 98 L.Ed. 499 (1954) 5, 7, 8

Crumady v. The Joachim Hendrik Fisser, 358

US. 423, 79 S.Ct. 445, 3 L.Ed. 2d 413 (1958) 8

Mascuilli v. US, 37 US. N. 7 Sc. 1705, 18

N L. Ed. 2d 743 (1967) *

Mitchell v. Trawier Racer, Inc., 362 U.S. 539, 80

S.Ct. $26, 4 L.Ed. 2d 941 (1960) 5,7

Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202,

98 L.Ed. 143 (1954) | 5, 7. 8. 9

1

8 ——

Rogers v. U Lines Co, 347 U.S. 984, 74 SCL. O48,

98 l. Ma. 1120 (1954)

Roper v. United States, U. S. 20, 2 SCL 5,7

L. Fd. ad 1 (1961)

Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct.

872, 90 l. Na. 1099 (1946) ‘ 3

Waldron v. Moore-McCormack Lines, Inc., 336

U.S. 724, 87 S.Ct. 1410, 18 1. Na. 2d 482 (1967)

West v. United States, 361 US. 118, 80 S.Ct. 188,

LSA

2

Page

38

5, 6

67

& 2

: IN THE

SUPREME COURT OF THE UNITED STATES

0 OCTOBER TERM, u :

No.

i)

ROBERT WAYNE PATTERSON,

° Petitioner,

; versus

HUMBLE On. AND REFINING COMPANY and

h JAMESTOWN,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

COURT OF THE UNITED STATES:

Petitioner, Robert Wayne Patterson, prays that a

writ of certiorari issue to the United States Court of

Appeals for the Fifth Circuit to review the decisign

of that Court rendered in this cause on Februar) 27,

3 *

The denial of rehearing by the Court of Ajipeats for

the n Circudt ts printed m Appendix “RB” hereof,

The een of the United States District Court for

the Eastern Deetrict of Louraana, Baten Rouge Divi. _

ston, reperted at 274 F Supp. 84, ix reprinted in Ap-

pendin “C" hereof, —

: JURTATTION :

(emal purvsdictien in the District Court was wund

ed upon R USC, Aan, as a case of admiralty

and mardime jurisdiction. i

This Honorable Court's — is Naked under

the provisions of 28 U Sc., $1254 1).

THE QUESTION PRESENTED g

Dees the owner of a vessel “in navigation”

wartant us seawerthiness uniformly to long-

shoremen and to repairmen, or is the owner's

obligation te repairmen limited te unseaworthy

_conditiens that de not arise out of —

of the repair work?

s

Petitioner instituted this action for damages for per-

sonal injumes that he sustained aboard respondent's

Jo

e

3 2

“were caused by unseawarthiness of the vessel end hy

6— io a

Petitioner was mowed when | a chan bearing cap,

weighing some 58) pounds, fell from atap the what

and —— his foot.

The KSSO JAMESTOWN, con its arrival in Paton

Rouge, Louisiana, was experiencing overheating prob-

lems with one of its main shaft bearings. The veswel’s

crew had already removed the top half of thechearing

(the bearing cap) in order to attempt to “determine

the cause of the difficulty. Inspection disclowd an

parent damage to the bebbit surfece of the bearing

that would require repair. Petitioner's employer, Youn

Welding and Machine Works, Inc, was engaged “by

respondent, Humble, to repair the besting and Vous

sent a gang of men, including petit aner, aboard the

ship. Knowing that the bearing cap would have to be

removed; the ship’s crew had left it off, but had. secured

it suspended a fraction of an inch above its normal

position on thé shaft by a chain fall.

During their course of the work, the Faun crew low- ~

eréd the cap onto the shaft and removed the chain

fall. thus leaving the cap unsupported on the rounded

*

{

shaft. The cap remained in this precarious position

for about three hours while other work continued.

Yaun's foreman then ordered petitioner to rig a bridie

be

*

„

foot.

After trial, the District Court dismissed petitioner's

entire claim, holding that respondent was not negli-

gent, that petitioner's injury was caused by opera-

tional negligence” and not by unseaworthiness, as well

us by his own contributory negligence and, alternative-

ly, that no warranty of seaworthiness extended to pe-

titioner regarding the condition of the unsecured bear-

ing cap because his injury was caused by the very

defect he had come on board to repair.

\ 5

On appeal, petitioner did not challenge the District

Court's finding of no negligence on respondent's part.

nor did petitioner dispute the Court's finding that the

cap was negligently placed in an unsafe position during

the course of the repairs at the direction and under

the supervision of his employer, Yaun. Instead, peti-

tioner contended that the unsafe condition of three

‘hours’ direction constituted “unseaworthiness” as

a matter of law and that he should not have been

held to have been contributorily negligent since he

was ordered to work on re-securing the chain fall to

the bearing cap by his superior, the foreman; alterna-

tively, petitioner contended that the Trial Court’s find-

ing that he was injured by the very unseaworthy con-

dition he was aboard to repair was clearly erroneous

because the Court had found specifically that this con-

dition did not exist at the time the Yaun crew came

aboard the vessel.“

U

statement of Relied Upon for Appeal; R. pp. 337-338; Trial

Court of Fact No. 6, Appendix C. p. 27.

The Court of Appeals sidestepped the unseaworthi-

ness vel non and the “operational negligence” issues

by holding that the unsafe condition did not constitute

unseaworthiness because “no duty of seaworthiness

existed regarding the transitory condition. The de-

cision of the Court of Appeals was rendered February

27, 1970; rehearing was denied April 10, 1970.¢

the decision of the Court of Appeals for the Fifth

Circuit deals with an important aspect of the general

maritime law of the United States, to wii: the extent

of a shipowner’s warranty of seaworthiness to harbor

workers other than longshoremen who are injured a-

board vessels “in navigation.”

The effect of the decision is to place upon the obli-

gation of seaworthiness, recognized in Seas Shipping

Co. v. Sieracki,* a limitation not intended by this Hon-

orable Court in Pope & Talbot v. Haun, by the Court

of Appeals’ reliance upon criteria held to be irrelevant

by this Court in Alaska Steamship Co. v. Petterson,’

Rogers v. US. Lines Co.“ and in Mitchell v. Trawler

Racer, Inc.®

The decision of the Court of Appeals has decided

0

©

‘

4 *

with applicable decisions of this Honorable Court and,

therefore, the petition merits faverable conssderation.

0

As noted in petitioner's statement of the case, his

clouim for damages erginally was founded upon dual

“lesal theories (1) that the vessel owner was negli-

gent; and. d that the ship was “unseawerthy 7 Thas

petition challenges only the dispesstisen made of the

chum based upen the alleged breach of the warranty

of seaworthiness and, specially, the helding of the

Court of Appeals that:

“On these limited facts, ne duty of seawerthi-

ness e@\isted regarding the transstery condi-

tion.“ a

\ |

The “limited facts” are: that petijsoner’s injury was

caused in part by an admittedly safe condition of

some three hours’ duration, arising of repair work

by petitigner's emplover aboard respondent's vessel

that had vot been withdrawn from commerce ‘but re-

muined a vessel in navigation at all times pertinent

to thus suit.’

In Seas Shipping Co. v. Sieracki,* this Honorable

Court decided that a vessel owner owed to longshore-

men the same warranty of seaworthiness that the mari-

time law recognized in faver of seamen. In Waldron

‘Appendix A. page 15 of the Court of Appesis’ epinion.

rial Court's Finding of Fact Me. 20. Appendix C. . 31: See

also, Roper v. U. 368 US. 20, 62 SCt 5, 7 L. £424 1 (1961).

*2Supre, Note 5. .

7

„. — Lines de the Court held that

breach of the seaworthiness warranty may result from

the misuse of ship's a.

In Pope & Talbot v. Hawn,“ this Court held that

a ship repairman was entitled to the same protection

from unseaworthiness that was recognized in Sieracki,

supra, and declined to discriminate against maritime

workers on the flimsy basis of job nomenclature.

If, therefore, longshoremen und ship repairmen are

to be given rights and remedies equal to those of sea-

men for shipboard injuries due to unseaworthiness,

petitioner should not have been denied relief.

Apparently, the Court of Appeals reasoned that, since

Patterson's injuries occurred out of unseaworthiness

(called an “unsafe” and a “transitory” condition) aris-

ing out of the performance of the repair contract, pe-

titioner’s work was, therefore, not within the shipown-

er's “control” and for that reuson the vessel did not

warrant its seaworthiness as to work-created condi-

tions.

But, in Alaska Steamship Co. v. Petterson,'® accord-

ing to Mitchell v. Trawler Racer, Inc., “e this Honor-

able Court held that: ©

“There is no suggestion in any of the decisions

that the duty [to furnish a seaworthy ship] ves

$9386 US. 724, 87 S.Ct. 1410, 18 L.Ed. 2d 482 (1967).

*4Supre, Note 6.

*8Supra, Note 7.

„ ome

DR MIE IOP ee

is any less with respect to an unseaworthy con-

dition which may be only temporary. Of par-

ticular relevance here is Alaska Steamship Co.

v. Petterson, supra.In that case th Court af-

firmed a judgment holding the shipowner liable

for injuries caused by defective equipment

temporarily brought on board by an independ-

ent contractor over which the owner had no

control. That decision is thus specific authority

for the proposition that the shipowner’s actual

or constructive knowledge of the unseaworthy

condition is not essential to liability. That de-

cision also effectively disposes of the sugges-

tion that liability for a temporary unseaworthy

condition is different from the liability that at-

taches when the condition is permanent.“ “

(Emphasis added)

In the event it may be thought that petitioner’s case

is factually distinguishable from Pope & Talbot

v. Hawn, supra, because the unsafe condition by which

Hawn was injured did not arise out of the contractual

undertaking of his employer, petitioner submits that

this is a distinction without a legal difference.

In Alaska Steamship Co. v. Petterson and Rogers

v. U. S. Lines Co., supra, the unseaworthiness arose

out of performing the stevedoring contracts and con-

sisted of defective appliances supplied by the injureds’

employers pursuant to their contractual obligations.

In Crumady v. The Joachim Hendrik Fisser“ and

$7362 U.S. at pp. 549-550.

— 70 S.Ct 445, 3 LEA. 24 413 (1980)

in Mascuilli v. U. S. % this Honorable Court imposed

liability on vessel owners for unseaworthiness

“brought into play” in the course of the stevedoring

operations by longshoremen, one of whom was injured.

.

Therefore, if a vessel owner is liable to a longsbore-

man for injuries occasioned by unseaworthiness aris-

ing during and out of the performance of a stevedoring

operation, a ship repairman injure aboard a vessel

“in navigation” by conditions arising out of perform-

ance of the repair contract should likewise be protected

by the seaworthiness warranty as to such conditions.

Pope & Talbot v. Hawn, supra.

West v. United States, upon which the Court of

Appeals for the Fifth Circuit seems to have placed

strong reliance, does not support the denial of peti-

tioner’s claim for at least one significant reason: the

District Court in petitioner’s case found that respond-

ent had not withdrawn the S/S ESSO JAMESTOWN

from commerce (the vessel had her full crew aboard)

and that the ship remained a vessel “in navigation”

at all times pertinent to petitioner's suit. Whereas,

in West, supra, the entire rationale of the Court's de-

nial of a seaworthiness warranty was predicated upon

its conclusion that the vessel there involved was not

in maritime service, i.e., had been withdrawn from

commerce and was not “in navigation” at the time

West was injured. Indeed, the language quoted by the

$9387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed. 24 743 (1967).

20361 U.S. 118, 60 8. Ct. 180, 4 L. Ed. 2d 161 (1958).

2tTrial Court's Finding of Fact No. 20, Appendix C, p. 31; et:

Roper v. U. &., supra, note 1

——

D .

———ꝙ—r˙ẽ[—᷑ĩ ͤ ———— iN RAM | AN B .

Court of Appeals for the Fifth Circuit“ from the West

case dealt only with the two-faceted aspect of West's

negligence theory of liability and, thus, has no rele-

vance, per se, to petitioner's claim based upon breach

of the seaworthiness warranty.

This is not a case in which so-called “Operational

Negligence” not culminating in an unsafe “condition”

is involved.“ The District Court feund as an unchal-

lenged fact that the unsafe condition (the unsecured —

heavy bearing cap atop the rounded shaft) existed

about three hours** before it finally fell when peti-

tioner attempted to affix it to a lifting device.

The decision of the Court of Appeals for the Fifth

Circuit misapplies the principles enunciated by this

Honorable Court as applicable to maritime workers

injured aboard vessels “in navigation”; the decision

excludes from the seaworthiness warranty of such ves-

sels unseaworthy conditions created during and aris-

ing out of repair work. This exclusion is unwarranted

and undesirable; certiorari should be granted, to the

22Court of Appeals’ opinion, Appendix A, p. 16. .

22Guch a case is Usner v. Luckenbach Overseas Corp., No. 675, Oct.

Term. 1969. on certiorari to the United States Court of Appeais

for the Fifth Circuit, writ granted February 27, 1970. Petition-

er's case is also factually distinguishable from Parker v. Car-

gill, Inc., 417 F.2d 772 (CCA 5, 1968), cert. denied, March 9,

1970; in Parker the vessel was a barge without crew or motive

power that had been delivered into the exclusive custody of the

shipyerd.

24Trial Court's Findings of Fact Nos. 8 and 14, Appendix C.

pp. 27. 29.

end that the decision of the Court of Appeals is reviewed

and reversed, with petitioner's case being remanded

to the Appellate Court for consideration of the ober

legal issues presented by petitioner's appeal.

Respectfully submitted,

Samuel C. Gainsburgh |

1718 Nationa] Bank of

Commerce Bidg.

New Orleans, Louisiana 70112

ATTORNEY FOR

PETITIONER

Of Counsel:

KIERR and GAINSBURGH

New Orleans, Louisiana

I, the undersigned member of the Bar of the Supreme

Court of the United States, hereby certify that a copy

of this Petition for a Writ of Certiorari, has been served

upon all other counsel by depositing the same, properly

addressed, in the United States Mails, postage prepaid,

at New Orleans, Louisiana, this day of May, 1970.

SAMUEL C. GAINSBURGH

12

APPENDIX “A”

| IN THE ,

UNITED STATES COURT OF ApPEM

FOR THE FIFTH CIRCUIT

a

No. 26365

ROBERT WAYNE PATTERSON,

Appellant,

versus

HUMBLE OIL AND REFINING COMPANY

and “ESSO JAMESTOWN”,

) Appellees.

YAUN WELDING & MACHINE WORKS, INC.,

f Appellant,

versus

MARYLAND CASUALTY COMPANY, ET AL,

Appellees.

Appeals from the United States District Court for the

Eastern District of Louisiana

(February 27, 1970)

8

—

Before GEWIN and GODBOLD, Circuit Judges, and

CHOATE, Senior District Judge.

CHOATE, Senior District Judge: The appellant

Patterson, a ship repairman employed by Yaun Weld-

ing & Machine Works, Inc., brought this action against

the appellees Humble Oil and its ship, the “ESSO

JAMESTOWN”, alleging that he had sustained injuries

caused by an unsenworthy condition on the vessel

“JAMESTOWN” and by the negligence of Humble’s

employees. Humble denied liability and filed a third

party complaint against Yaun seeking indemnity. and

recovery of costs, attorney's fees, and expenses in-

curred in defense of the litigation. Yaun impleaded

its compensation carrier, Maryland Casualty Com-

pany. Maryland denied that it was liable to Yaun for

these fees under the terms of the insurance policy.

Patterson was injured when a bearing cap, weighing

some 500 pounds, fell from a shaft and struck his foot.

The events leading up to the injury may be summarized

as follows.

The “JAMESTOWN”, upon its arrival in Baton

Rouge, Louisiana, was experiencing overheating prob-

lems with one of its main bearings. The ship's crew

had removed the top half of the bearing (the bearing

cap) in order to determine the cause of the difficulty.

Inspection disclosed apparent damage to the babbitt

surface. of the bearing which would require repair.

Yaun, an independent contractor engaged by Humble

for this purpose, sent a repair gang, which included

Patterson, aboard the vessel. The ship’s crew, knowing

the cap would have to be removed, had left it securely

suspended a fraction of an inch above its normal posi-

tion on the shaft by a chain fall.

Pe

14

The Yaun crew. during the course of their work,

lowered the cap onto the shaft and removed the chain

fall, thus leaving the cap unsupported on the rounded

shaft. The cap remained in this .position. while, other

werk continsed. The foreman of Yaun’s crew then or-

Patterson to rig a bridle to the bearing cap

se that it could again be lifted by a chain fall and

placed on the deck where repairs on the cap could

be carried out. While attempting to thread. the bridle

through an eve balt on top of the bearing cap, Patterson |

shipped and fell and, as he did, the boasting cap rolled

tt the shaft and struck his foot.

After a full trial on the merits, the district court

dismissed Patterson's claim for damages, holding, in

summary, that there was no negligence on the part

of any’ Humble employee; that Patterson's injury was

not caused by a condition of utiseaworthiness; and that

the injury was caused by the operational negligence

of the employer, Yaun, an independent contractor. to-

gether with Patterson's own contributory negligence.

Alternatively, the court held that no warranty of sen-

worthiness extended to Patterson regarding the condi-

tion in question because his injury was caused by the

very defect he had come on board to repair, The dis-

trict Court ‘also held that Humble was entitled to be

‘indemnified by Yaun for the expenses and attorney's

fees incurred by Humble in defending the main claim

and lastly. that Maryland Casualty, Vaun's insurer,

liable to Yaun for these sums under the policy

od insurance. We turn first’to the issues raised -by

Patterson.

Preliminarily, we note that Patterson does not

challenge. the district court's finding that there was

3

ae 15

80

2D

no negligence on the part of Humble or its employees.

The evidence indicates that the bearing cap was sifely

secured whea tendered by Humble to the independent

contractor. Nor does Patterson dispute the court's find-

ing that the cap was negligently placed in an ungafe

position during the course of the repairs at the direction —

and under the supervision of his employer, Yaun. Pat- -

terson rests his case ‘on the proposition that the un-

secured bearing cap became G unsea worthy nden

an n matter of law and that any negligence of his

employer “came to rest” thus shifting the responsibili-

ty back to the shipowner. : esi

Whether or not vaun's negligence “came: to. rest”,

so as to allow Patéerson’s claim to escape the disqualiſi-

cation of cases of #enstant junsea worthiness”, Hamble

is not liable in the present case. The crucial ‘factor

is that he was injured as-a result z0f a “transitory |

condition. resulting from the course of performing the

contract ...” Moye d. Sioux City & New Orleans Barge

Lines, Inc., 402 F.2d 238 (5th Cir. 1968) (concurring —

opinion) to repair an unseaworthy condition on the

vessel. On these limited facts, no duty of seaworthiness‘

existed regarding the transitory* condition.

or f

|

:

|

f

Fl

ö

i

Kerr McGee Oil Indus., Inc., 376 F.2d 467 (Sth Cir. 1967);

. Grigsby, etc. v. Coastal Marine Service of Tegps, ine. et al.,

412 F. ad 1011 (Sth Cir. 1969). . 2.

2Appeliant did not fall from a ladder, slip on the deck. or fail

prey to any of the other myriad of hazards commonly found

aboard a vessel.

r

i

r

;

i

i

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3

„ een d re eee e ZI CY

.

16

In West v. U.S., 361 U.S. 118, 80 S. Ct. 189, 4 L. Ed. 2d

161 (1959), the claimant argued that a shipowner has

a non-delegable duty, not dependent on fault, to provide

a “safe place to work.” The Court held that no such

duty exists, apart from fault, and stated that:

“It appears manifestly unfair to apply the re-

quirement of a safe place to work to the ship-

owner when he has no control over the ship or

the repairs, and the work of repair in effect

creates the danger which niakes the place un-

safe.” 361 U.S. at 123. Emphasis supplied.

Suceinetly stated, the owner's warranty of seaworthi-

ness does not extend to non-crew members regarding

transitory conditions created by an outside repair crew

during the course of substantial repairs to an existing

unseaworthy condition when the transitory condition

relates to the subject matter of the repair contract.

We emphasize we are not called upon to express an

opinion regarding conditions so created that are not

so intimately connected with the contract. The war-

ranty “may exist simultaneously as to these very same

shore workers concerning conditions over which the

operating ship owner (charterer) has a realistic physi-

cal responsibility ...." Moye, supra, pg. 8, concurring

opinion,

The District Court also found that Yaun, appellant’s

employer, breached its duty to perform its work in

a reasonably safe and workmanlike manner and that

the shipowner was therefore entitled to recover from

Yaun the reasonable attorney's fees and costs incur-

red in defense of the litigation. See Strachan Shipping

17

Co. v. Koninklyke Nederlandsche S.M., M.V., 324 F.2d

746 (5 Cir. 1963). It is now clear that the claimant’s

contributory fault or lack of it is not a factor in de-

_ termining this obligation to indemnify, SS Lena Luck-

enbach v. Walsh Stevedoring Co., Inc., 395 F.2d 217

(5 Cir. 1968), and the District Court’s holding on this

point was correct.

Lastly, the District Court held that Yaun was not

covered for these fees and expenses under the policy

of insurance issued by Maryland. |

The policy obligates Maryland

To pay on behalf of the insured all sums which

the insured shall become legally obligated to

pay as damages because of bodily injury ...

sustained ... by any employee of the insured

arising out of and in the course of his employ-

ment by the insured.

The phrase “damages because of bodily injury” is

defined, in part, as including

.. damages for which the insured is liable by

reason of suits or claims brought against the in-

sured by others to recover the damages ob-

tained from such others because of such bodily

injury sustained by employees....

Yaun contends that this language encompasses all

damages “for which the insured is liable by reason

of suits or claims” and is not restricted to damages

awarded for bodily injury. Putting aside the question

.

of whether the fees and expenses here involved are

“damages” in the ordinary sense of that term, the

quoted language will not support the construction urged

by Yaun.

It seems clear that there would be coverage if Yuun

were able to Humble for damages obtained from

Humble by the employee because of his injuries.” Here,

however, while the fees and expenses were assessed

agameat Humble, the employee's suit was unsuccessful

and no damages were obtained from Humble. The per-

tinent policy provision is clear. It refers only to suits

or claims “brought against the insured (Yaun) by oth-

ers (Humble) to recover the damages obtained from

such others (Humble) because of such bodily injury

... No mages were “obtained from” Mumble and

Humble s present claim against Yaun does not fall

within the defined category. The result is that Vaun

wus not covered for the items in question under the

policy.

For the reasons stated, the holdings of 10 District

Court are Affirmed. |

19

APPENDIX “B”

IN THE

UNITED STATES COURT OF APPEALS _

FOR THE FIFTH CIRCUIT

No, 26365

ROBERT WAYNE PATTERSON,

Appellant,

. versus

HUMBLE OL. AND RHFINING COMPANY and

“ESSO JAMESTOWN”,

Appellees.

YAUN WELDING & MACHINE WORKS, INC.,

Appellant,

versus —

MARYLAND CASUALTY COMPANY, ET AL.,

Appellees.

Appeals from the United States District Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING AND PETITION

_ FOR REHEARING EN BANC

(April 10, 1970)

RECT ae

„*

20

Before GEWIN and GODBOLD, Circuit Judges, and

CHOATE, Senior District Judge.

PER CURIAM: The Petition for Rehearing is DE-

NIED and no member of this panel nor Judge in regu-

lar active service on the Court having requested that

the Court be polled on rehearing en bance, (Rule 35

Federal Rules of Appellate Procedure; Local Fifth Cir-

cuit Rule 12) the Petition for Rehearing En Banc is

DENIED. N

APPENDIX c“

Robert Wayne PATTERSON

versus

ESSO JAMESTOWN and Esso, Inc.

No. 780 *

United Stute District Court

E. D. Louisiana,

Baton Rouge Division.

Oct, 20, 1967.

WEST, District Judge: This is u suit for damages

for personal injuries sustained by plaintiff, Robert

Wayne Patterson, as a result of the alleged unsea-

worthiness of the defendant vessel, “ESSO JAMES-

TOWN,” and or the alleged negligence of the vessel's

. owner, the defendant Humble Oil and Refining Com-

&

pany. (The original defendant, Esso, Inc., was dis-

missed and the proper defendant, Humble Oil and Re-

21

fining Company, substituted in its place. Plaintiff, at

the time of the accident, was employed by Yaun Weld-

ing and Machine Works, Inc., an independent cortrac-

tor employed by Humble to perform certain work a-

bourd the JAMESTOWN, The JAMESTOWN upon ar-

riving at the port of Baton Rouge, was experiencing

difficulty with one of her main shaft bearings, and

in order to determine the extent of the difficulty, mem-

bers of the ship's crew rigged a chain fall above the

bearing and lifted the top half of the bearing, called

the bearing cap, off of the shaft about one-quarter

to one-half inch, for the purpose of inspecting the bab-

bitt insert in the bearing. After concluding that the

babbitt surface of the bearing had been damaged and

that it would be necessary to completely remove both

halves of the bearing from the shaft in order to per-

form the required work, Yaun was called upon, as

an independent’ contractor, to perform this work. As

a result of being thus employed, Yaun sent a crew

of four men, including plaintiff, aboard the vessel to

remove and repair the damaged bearing. While the

evidence is in conflict in many respects concerning

the position of the bearing when plaintiff first arrived

aboard, it is nevertheless the opinion of this Court

that the credible evidence preponderates in favor of

the conclusion that when plaintiff first arrived aboard

the vessel, the top half of the bearing was suspended

by a chain fall directly over the shaft, about one-quar-

ter to one-half inch above its usual working site. Mem-

bers of the ship's crew had rigged the chain fall, un-

bolted the bearing cap, and raised it, by use of the

chain fall, to that position, This bearing cap weighed

some 500 pounds or more. It was after the bearing

cap had been unbolted and raised by the ship's crew

—

— ä —„—V— 2

22

ar)

that their inspection revealed the necessity of the as-

sistance of Yaun in making the necessary repairs to

the babbitt surface of the bearing. No further work

was done on the bearing or shaft by the ship’s crew

between the time plaintiff came aboard and the time

of the accident, some three hours later. The evidence

is also in conflict as to how the bearing cap was hand-

led thereafter, but certain pertinent facts seem quite

evident from the record, There is no question but that

some time after the Yaun crew commenced its work,

the bearing cap was moved by use of the chain fall

from its original suspended position over the shaft to

a position two or three feet down the shaft. This was

necessary in order to make room for the crew to re-

move the bottom half of the bearing. It is also certain

that at some point prior to the accident the bearing

cap was lowered by the chain fall and placed on top

of the shaft some two or three feet from its original

suspended position. It is also quite clear that at some

point prior to the accident the chain fall was disengaged

from the bearing cap leaving the cap resting without

other support on top of the shaft. And lastly, it is es-

tablished by a clear preponderance of the evidence

that while plaintiff was attempting to attach a bridle

or choker to the eye bolts of the bearing cap so that

it could again be lifted by the chain fall, he slipped

and fell and the bearing cap rolled off of the shaft,

striking him and causing him injury. While plaintiff

argues that the accident was caused by the negligence

of Humble, the vessel owner, there is simply no evi-

dence whatsoever to support such a position. No em-

ployee of Humble, and no member of the ship's crew,

had a thing to do with placing the bearing cap, un-

supported, on top of the shaft. No member of the ship’s

_ crew had anything to do with moving or touching the

shaft or the bearing after the bearing cap had been

first lifted from the shaft and safely suspended by

the chain fall. The ship's crew turned the job over

to the Yaun crew with the bearing cap safely suspended

above the shaft by the chain fall. Whatever change

in position of the bearing cap took place after that

was the sole responsibility of the Yaun crew. There

was not the slightest evidence to support a claim of

negligence.on the part of any member of the crew

of the JAMESTOWN, and thus plaintiff's claim, insofar

us it is predicated on alleged negligence of Humble

or its employees must fall. But a much more serious

question is presented on plaintiff's claim for damages

based upon the alleged unseaworthiness of the vessel

JAMESTOWN. In short it is plaintiff's contention that

the placing of the bearing cap in a precarious position

on top of the shaft by the Yaun. crew constituted negli-

Bence on their part, and the fact that the bearing cap

remained in that precarious position for some three

hours prior to the accident rendered the vessel unsea-

worthy during that period of time. Plaintiff then con-

cludes that since it was this alleged unseaworthy con-

dition, i. e., the precarious position of the bearing cap

on the shaft} that caused his injuries, he is entitled

to recover therefor from the vessel and her owner.

[1] When a plaintiff sues for injuries allegedly sus-

tained as a result of an unseaworthy condition of a

vessel, the burden is, of course, upon him to prove

his claim by a preponderance of the evidence.

The Court concludes that plaintiff has failed to Carry

this burden. Plaintiff does not claim that he was injured

a fo

24

© .

because of any part of the ship's hull,- gear, tackle,

appliances or appurtenances. His only claim of unsea-

worthiness is based upon the contention that the Yaun

repair crew, called upon by the defendant to repair

u damaged bearing cap aboard the vessel JAMES- > —

TOWN, committed an act of negligence’ when they,

_the repair crew, placed the bearing cap unsupported

upon the shaft of this vessel and allowed it to remain

in that position for about three hours prior to the acci-

dent. Plaintiff contends that this act of negligence,

which he says was committed and came to rest about

three hours prior to the accident, created an unsea-

worthy condition, ie., caused the bearing cap to be

left in a precarious place rendering unsafe the place

where the repair crew had to work, and that three

hours after the act ‘of negligence was committed and

had come to rest, the plaintiff was injured as a result

of the unseaworthy conditio aused by the negligence.

2J There can, of course, no longer be any doubt

that a shipowner owes:a nondelegable duty to furnish

a seaworthy vessel, and that this duty extends to in-

termediary employers who are performing a portion

of the ship's work. Generally speaking this warranty

of seaworthiness runs in favor of longshoremen and

repairmen alike. Seas Shipping Co. v. Sieracki, 328

U.S. 878, 66 S.Ct. 1116, 90 L. Ed. 1646 (1946); Pope and

Talbot, Inc. v. Hawn, 346, U.8. 406, 74 S.Ct. 202, 98

L. Ed. 143 (1953). But when the unseaworthy condition

is brought about by the negligence of a fellow employee

of the injured repairman, then the question of when |

the act of negligence was committed in relation to

when the accident occurred becomes important, and

indeed, contralling. Antoine v. Lake Charles Steve-

25

_ dores, Inc., ot ul., 376 F.2d 443 (CA 5-1967); Robichaux

v. Kerr McGee Oil Industries, Inc., 376 F.2d 447 (CA

5-1967). The conclusion of the Court in Antoine was:

“*** that the operational negligence of the

employee of an independent contractor, occur-

ring at the moment of injury to a co-worker,

daes not render the vessel unseaworthy.”

And in Robichaux, the Court concluded:

if there is an improper use of seaworthy

equipment by the intermediary employees, re-

sulting in injury to a worker, his claim might

come squarely within the doctrine. of Sieracki,

supra, depending of course, upon whether. the

injury came at the very moment of the negli-

gent use, or after the negligence of the fellow

worker had come to rest and the equipment

had been left in an unsafe conditign, See An-

toine v. Lake Charles Stevedores, 376 F.2d 443

(5th Cir, 1967), decided this day.”

13 Antoine and Robichaux being the latest expres-.

sions of The Appellate Court in this Circuit on the ques-

tion of operational negligence are, of course, control-

ling in this case. As of now, at least, the law by which

this Cou is bound is clear, i. e., if an employee of

an intermediary employer is injured as a result of

operational negligence of a co-employee occurring at.

the time of the accident, such operational negligence’

does not create an unseaworthy condition for which

the shipowner can be held liable. But if the negligence _

of the fellow worker had come to rest, and as a re-

2

*

sult of the negligence the ship's gear or equipment

was left in an unsafe condition ciusing injury to the

plaintiff, the ship and its owner may be liable fer in-

juries resulting from the unseaworthy condition thus

created. When the negligence occurred in relation to

the happening of the accident is, of course, a question

of fact. While there is conflicting evidence on many

of the salient points involved in this case, this Court

finds that the evidence preponderates in favor of the

following findings of fact.

FINDINGS OF FACT

1. Plaintiff, at the time of his injury, was an employ-

ee of Yaun Welding and Machine Works, Inc., an in-

dependent contractor. 1

2. At the time of the accident the defendant vessel

JAMESTOWN was owned and operated by the defend-

ant, Humble Oil and Refining Company.

3. When the JAMESTOWN arrived at the Port of

Baton Rouge, she was experiencing difficulty with one

of her shaft bearings, and in order to determine the

extent of the damage to the bearing, the members

of the ship's crew rigged up a chain fall, unbolted

gthe top half, or cap, of the bearing, and raiséd it a

"rection at an inch by means of the chain fall so that

the babbitt surface of the bearing cap could be inspeet-

4. This inspection revealed that there was some ap-

parent damage to the babbitt surface of the bearing.

and rather than have the ship’s crew attempt to re-

27

pair it, Youn Welding and Machine Works, Ind, was

culled upon to make the repairs,

5. -Yuun sent a crew of four men, including the lain

tiff, to the vessel to make the repairs.

6. When the Yaun crew boarded the vessel, the beur-

ing cab, which weighed 500-pounds or more, wus safely

suspended by the chain fall a fraction of an inch above

its normal position on the shaft.

7. In order to remove the bottom half of the bearing

from underneath the shaft, it was necessary to lift

the weight of the shaft off of the bearing, This would

permit the bottom half of the bearing to be rolled out

from under the shaft.

n. Prior to attempting to slightly raise the shaft

in order to lift its weight off of the bottom half of

the bearing, the foreman of Vuun's crew, Mr. Perkins,

ordered his men to move the suspended bearing cup

away from its position over its normal working site,

und to let it down on the shaft, two or three feet for-

ward of its normal position, It was thus moved, by

use of the chain fall, and then was lowered by use

of the same chain fall and made to rest on the shaft.

Either at that time, or some time later, the chain

fall was disengaged from the bearing cap and the cap

„ Continued to rest on the shaft with no support other ;

than its own: weight holding it in its position on top

of the shaft.

9. In order to rotate the bottom half of the bearing

out from under the shaft it was necessary to exert

3 2

e abe

„ ye oe

28

un upward pressure on the shaft, thus relieving the

bottom half of the bearing of the weight which the

shaft was exerting upon it. While there is conflict in

the evidence on this point, the Court concludes that

this was probably done by use of a heavy jack, while

the lower half of the bearing was being handled with

the help of the chain fall that had previously been

used to lift the bearing cap off of the shaft and to

place it on top of the shaft at the position it was in

just prior to the accident,

10. The lower half of the bearing was removed, and

its babbitt surface was worked on, and the crew was

in the process of relocating the bottom half of the

bearing in its normal working position just prior to

the happening of the accident in which the plaintiff

Was injured,

11. As the lower half of the bearing was being re-

placed under the shaft, the foreman, Mr. Perkins, in-

structed the crew to rig up the bridle on the bearing

cap which was resting on the shaft so that it could

then be lifted by the chain fall and placed on the floor,

or deck, so that its bearing surface could be repaired.

12. "Pursuant to this order, plaintiff proceeded to

attempt to thread the bridle through the eye bolts on

the bearing cap, and while attempting to do so, he

slipped and fell, and as he fell, the bearing cap rolled

over on the shaft and fell off of the shaft, striking

plaintiff on the foot, causing him the injuries of which

he now complains.

13. There is no credible evidence in the record to

29

0

lead to the conclusion that the owner, operators, or

members of the crew of the JAMESTOWN were guilty

of any negligence whatsoever causing or contributing

to the cause of this accident.

14. Approximately three hours elapsed between the

time Yaun’s crew moved the bearing cap from over

its working site to its location on the shaft from which

it fell to the time when it fell and injured plaintiff.

15. The foreman of the Yaun crew was uuilty of

negligence when he ordered or permitted the chain

fall to be disengaged from the bearing cap and allowed

it to rest, unsupported, on top of the shaft, and he

was guilty of continuing negligence for allowing it to

so remain from the time it was placed there until

the accident occurred. He was again guilty of a sep-

arate act of negligence when he ordered or permitted

plaintiff to rig up the bridle on the bearing cap without

making sure that the necessary precautions were taken

to see that the bearing cap was made fast during that

operation. And plaintiff himself was guilty of negli-

gence at the moment of the accident for failing to

take the necessary precautions to see that the bearing

cap was held in some manner before he attempted

to thread the bridle through the eye bolts.

16. The original act of negligence, i. e., leaving the

bearing cap unsupported on the shaft, did not cease

when the chain fall was disengaged from the bearing

cap, but this act of negligence continued right down

to the moment of the accident, and was a proximate.

cause of the accident itself. The negligence of Yaun’s

foreman in ordering or permitting the members of

—— —

—

— — —

40

his crew, including plaintiff, to work upon (Her 1e

cured bearing cup, 1. c, to ullempt to mg up a bridle

thereon without first ascertaiming that it wis in a sate

position to dose, Was an mel of negligence occurring

atthe time of the accident itself und wis abst a proxi

mate cause of the accident und resulting injuries to

plamtiff, And finally, the neghpence of the plamtiff

himself in attempting to work on the bearing, cap when

it was im a position that he also knew was unsafe wan

an net of negligence on his part occurring at the precise

moment of the accident which was a prokiuinate couse

of the accident and resulting injuries,

17. None of the previously enumerated sets of neg-

ligence had come to rest prior to the seeident, but

instead were all acts of operational negligence on the

part of the independent contractor, Vun, or on the

part of persons for whom Yaun was responsible, which

continued right down to the moment of the injury,

and whieh, acting together, constituted the proximate

cause of this accident,

18. At the time the Yaun crew reported wbourd the

JAMESTOWN, the vessel wus indeed unseaworthy, not

because of anything the Yaun crew did, but becuuse

of the fact that a shaft bearing had been disengaged

from the shaft by the ship's crew, and the top half

of the bearing was suspended by a chuin fall above

the shalt. As the vessel then stood, she wus unseu-

worthy and unable to go to sea, and it wus for the

purpose of correcting this very unseaworthy condition

that the plainuff and the other members of the Yaun

crew were called aboard,

*

31

10. The procedure to be used in correcting this un-

seaworthy condition, that is, in repairing and replacing

the bearing in order to make the vessel seaworthy

und operable, was entirely within the discretion of and

under the control of the Yaun repair crew.

20. The vessel JAMESTOWN was not taken out of

navigation for these repairs to be made but remained

„ vessel in navigation at all times pertinent to this

suit,

“1, Plaintiff was injured while in the course of cor-

recting the very unseaworthy condition which he was

culled abourd to correct, and the proximate cause of

the accident was the negligent acts committed by him

und his co-workers while ullempting to correct the

unseaworthy condition,

CONCLUSIONS OF LAW

14-6} 1, The Court has jurisdiction over this mat-

ter und venue is properly laid in the Eastern District

of Loujsiana,

2. The Court finds as a matter of law that neither

defendant, Humble Oil and Refining Company, nor any-

one for whose action said defendant is liable, was guilty

of uny negligence which in any way caused or con-

tributed to the cause of the accident and resulting in-

juries herein involved.

3. The Court finds as a matter of law that the sole

proximate cause of plaintiff's injuries was the concur-

rent negligence of plaintiff himself and his co-workers,

all employees of the independent contractor, Yaun

Welding and Machine Company.

— Nag

PLUG aoa nt Ane re is

32

4. The Court, having found as a matter of fuct that

the operational negligence of the plamtiff and his co-

workers did not come to rest prior to the accident,

und did not, prior to the accident, create an unien-

worthy condition, but instead continued down to ‘the

very moment of the accident, now finds us a mutter

of luw that the operational negligence of the plaintiff

and his coworkers did net render the vessel JAMES-

TOWN unseaworthy, Antoine V. Lake Charles Steve-

doves, Tne, et ab, supra; Robiehaux vo K. MeGee Oil

Tivcbusestrseres, Ine, roaaporas,

„. When a repalrmän, Nie un poland, iss Calle

aboard un vessel to repair an unseaworthy condition

then existing, there in, af course, no warranty of sen

Worthiness running uin his favor with respect to the

Unseaworthy condition whieh he is called upor ho re-

pair, and il he in injured as a result of the very un-

seaworthy condition he in attempting to correct, he

may not recover for his injuries from the shipowner

on the grounds of unseaworthiness, Pinion vo Missis-

sippi Shipping Company, 156 „ Supp. 65% CD La. -

1957); Bruszewski v. Isthmian 8. 8. Co., 163 F.2d 720

(CA 3 - 1947). The Court, having found as a matter of

fact, that the vessel was unseaworthy because of a

damaged bearing rather than because of any act of

Negligence on the part of the plaintiff or his co-work-

ers, and that plaintiff was aboard the vessel to help

correct this known unseaworthy condition, and that

he was injured in the course thereof, now finds, as

a matter of law, that in respect to this bearing and

the unseaworthiness caused by its defective condition,

and with respect to the activities engaged in by the

33

plaintiff and his co-workers to correct this condition,

pluimtill was not entitled to a warranty of seuworthi-

ness, Quite the contrary, by virtue of the fact that

he was called ubourd to repair the bearing in order

lo muke the vessel seaworthy, he was udvised of the

fuct that the Unseuworthy condition existed, and after

he cume ubourd, when he saw the bearing first nun-

pended over the shaft and later, with his help, resting

on the shaft, he wos assured of the existence of the

unseuworthy condition, The vessel could not operate

until the bearing was repaired and replaced in its work-

ng site, Plamtilf was injured while attempting to re-

pulr this unseaworthy condition, and cannot now re-

cover because of the very unseaworthy condition which

he was attempting to repair,

6. The Court having concluded, us utter of law,

that the negligence which resulted in plaintiff's injury

wus in no way attributable to defendant Humble, nor

lo anyone for whom Humble is legally liable, and that

Plaintiff wan not injured Gs a result of a breach of

Warranty of seuworthiness, he is not entitled to recover

for his injuries from either the vessel ESSO JAMES

TOWN or its owner and operator, Humble Oi! and Re-

fining Company,

7. Since the Court concludes that the plaintiff's in-

juries were caused solely and entirely by the negli-

Bence of Vuun's employees, and since this negligence

constitutes a breach of Yaun's duty to perform its

work in a workmanlike manner, the Court finds. as

4 matter of law, that Humble Oil and Refining Com-

pany is entitled to recover from Yaun, pursuant to

„

Re tr!

EAE > ot Ast VER gles DA BEATE IN GORE, MALIN Be OP TI Eo

POL AERO RR Pm woe

———ͤ̃ —

34

iis third-party demand, reasonable attorney fees and

costs incurred in defense of this suit. Strachan Shipping

Company v. Koninklyke Nederlandsche S. M. N. V., 324

Pid 746 (CA 5-1963); American Export Lines v. Nor-

folk Shipbuilding and Drydock Corporation, 336 F.2d

$25 (CA 4 1964); Damanti v. A'S Inger, 314 F.2d 305

(CA 2- 19633),

B. Since the Court finds that Yaun’s obligation to

reimburseo Humble a reasonable amount for attorney

fees and costs incurred in defense of this action arises

out of a breach of contract rather than out of bodily

injury sustained by the plaintiff, the Court further finds

as amatter of law that the third-party defendant,

Maryland Casualty Company, is not obligated under

its polley No, 01-690 320 to indemnify Yaun ‘for such

attorney fees and costs, and hence, Vaun's third-party

claim against Maryland Casualty Company must fall,

9 Since the Court finds that the plaintiff is not en-

titled to recover in this suit, the intervention filed by

Maryland Casualty Company for recovery of work-

men's compensation, benefits previously paid to the

plaintiff must, as a matter of law, be dismissed,

10. In the event Humble and Yaun are unable to

agree on what is reasonable for attorney fees and costs,

the Court will, upon application of either party, nner

evidence pertaining thereto.

Judgment will be entered accordingly.

OS Or aa | — — * 7 . JJ AE NTR %]