Petition for Writ of Certiorari — Union Oil Co. v. Dugas

Supreme Court brief1973

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iicocswse COURT, U. Ss. OCT 2 1973

Jn. CLERK

IN THE I ou

Supreme Court of the United States

OCTOBER TERM, 1973

in: Shon Soe eriiki e,

NO. 73 _ 589

UNION OIL COMPANY OF CALIFORNIA,

Petitioner,

versus

LLOYD DUGAS, PELICAN CONSTRUCTION

COMPANY, INC., and TRI-STATE

INSURANCE COMPANY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ADAMS and REESE,

HENRY B. ALSOBROOK, JR.

GEORGE V. BAUS

HAROLD A. THOMAS

4500 One Shell Square

New Orleans, Louisiana 70139

Telephone: (504) 581-3234

Counsel for Union Oil Company

of California.

;

SUBJECT INDEX

Table of Authorities

Jurisdictional Statement

Questions Presented for Review ------

Statement of the Case ---

Reasons for Granting Writ of

Certiorari -

Argument -- -

Conclusion ~-

Certificate

Appendix A -------

Appendix B ---

Appendix C -

on > fF an

TABLE OF AUTHORITIES

Cases Page

Chesapeake & O.R.Co. v. Mihas, 280

U.S. 102, 74 L. Ed. 207 w-- 5

Demarest v. T.C. Bateson Construction

Co., 370 F. 2d 281 (5th Cir. 1966)---- 6

Italia Societa v. Oregon Stevedoring

Company, 376 U.S. 315, 84 S.Ct. 748,

11 L. Ed. 2d 732 (1964) --------------- 4,6,7

Leisner v. Atlantic Coastline Rail-

road Co., 420 F.2d 682 (5th Cir.1969)- 6

Parsons v. Amerada Hess Corporation,

422 F.2d 610 (5th Cir. 1970)---------- 6

Ryan Stevedoring Company v. Pan Atlan-

tic Steamship Corporation, 350 U.S.

124, 76 S.Ct.232, 100 L.Ed. 133------- 7

Sword v. Gulf Oil Corporation, 251

F.2d 829 (5th Cir. 1958)-------------- 6

Ward v. Hobart Manufacturing Co., 450

F.2d 1176 (5th Cir. 1971)------------- 6

Wisenant v. Brewster-Bartle Offshore

Company, 446 F.2d 394 (5th Cir.1971)-- 7

Statutes

46 U.8.C. 688------------ 22 e nnn nen 4

i IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO,

UNION OIL COMPANY OF CALIFORNIA,

Petitioner

VERSUS

LLOYD DUGAS, PELICAN CONSTRUCTION

COMPANY, INC. AND TRI-STATE

INSURANCE COMPANY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JURISDICTIONAL STATEMENT

The Court of Appeals for the Fifth Cir-

cuit entered its opinion on June 1l, 1973, and

a judgment was thereafter rendered on July 13,

1973, in accordance with Rule 36 of the Federal

Rules of Appellate Procedure. On July 5, 1973, |

United States Court of Appeals for the Fifth

Circuit entered an order on the Petition for

Rehearing denying same.

This Court has jurisdiction pursuant to

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

set, Sinan tea mene)

QUESTIONS PRESENTED FOR REVIEW

Whether liability can attach to a con- |

tractee in absence of a duty owed under the

General Maritime Law, and whether an appellate

court, after vitiating the basis upon which

the trial court found liability, may enter a

judgment without remand for additional fact

finding by the trial court.

STATEMENT OF THE CASE

The present action is a Jones Act claim

against Pelican Construction Company (Peli-

can), Rowan Drilling Company (Rowan) and Union

Oil Company of California (Union). The plain-

tiff also seeks relief under the General Mari-

time Law.

The plaintiff, Lloyd Dugas, was employed

by Pelican as a roustabout, or jack-of-all-

trades. Pelican was in the business of pro-

viding roustabout labor in oilfield operations.

Union had contracted with Rowan to drill

a well to 13,000 feet. Rowan provided a sub-

mersible drilling barge, the drilling rig, and

personnel to operate the drilling rig. After

the contract depth was reached, Union deter-

mined to drill a deeper hole, and it then was

Union's obligation, rather than Rowan's, to

furnish the drill pipe.

On the particular drilling barge in ques-

tion, the Rowan No. 1, Union at all times kept

one man aboard the rig to see that the terms

of the drilling contract were fulfilled.

On the day before the accident, Union had

contacted Pelican to furnish it with a labor

crew and supervisors (pushers) to unload drill

pipe from a barge which it had delivered to

the drilling site. Pelican sent out a crew

with supervisors as requested.

While engaged in unloading a pipe barge

and supplying the Rowan drilling crew with

drill pipe as needed, the plaintiff, a member

of the Pelican crew, was injured. The injury

occurred when Pelican's pusher, Mr. George,

lifted a load of pipe with an air hoist,

which load twisted striking plaintiff. The

load was then allowed to come to rest on the

plaintiff's leg.

At the end of the trial, the trial judge

stated that he felt that the evidence in the

case showed that Mr. Dugas' injuries were

caused by the negligence of Mr. George, the

hoist operator, and partly by the plaintiff's

own contributory negligence. Two years later,

the court, in its reasons for judgment, held

that the accident was caused sOlely by the

fatigue of the Pelican crew, and that the

Plaintiff was a borrowed servant of Union and

a Jones Act seaman. The court further stated

that Union was negligent in failing to provide

an adequate crew for the Rowan No. 1 drilling

barge, even though Union had not undertaken

to provide a crew to man the drilling barge,

Union's only representative was asleep, having

no knowledge that the Pelican crew may have

been fatigued and had contracted with independ- ©

ent contractors to get the work at hand done.

gos

On review, the Fifth Circuit Court of

Appeals, held that as a matter of law, the

plaintiff was not a Jones Act seaman, nor was {

a borrowed employee of Union's. The court ;

further held that he was a Sieracki seaman :

and entitled to the warranty of seaworthiness.

The court further held Union liable on the

trial court's finding that Union was negli-

gent, and because of Union's negligence, it

held that the Rowan No. 1 drilling barge was

unseaworthy.. .

rye FOR GRANTING CERTIORARI |

The. opinion for the Court of snedsite for

tl 2 Fifth Circuit established liability on the

part of Union Oil Company of California after

severing all legal relationships between the

plaintiff and Union as found by the lower

court.

The Court of Appeals for the Fifth Cir-

cuit failed to remand the case for additional

findings regarding the conduct of the steve-

doring company in light of its reversal of the

lower court's determination of legal relations,

contrary to this Court's ruling in Italia

Societa v. Oregon Stevedoring Co., 376 U.S.

318, 64 S. Ct. 748, ll L. Ed. 20 732 (1964).

ARGUMENT

4 THE DECISION OF THE FIFTH CIRCUIT COURT OF AP-

PEALS ESTABLISHING LIABILITY ON THE PART OF

UNION OIL COMPANY OF CALIFORNIA IS WITHOUT

BASIS UNDER THE GENERAL MARITIME LAW OR ANY

OTHER LAW.

The Fifth Circuit's opinion, in the pre-

sent case, has created liability without a

breach of a legal duty. It is obvious that

the district court relied on the Jones Act,

46 U.S.C. 688, for the existence of a duty

owed by Union to Dugas. However, the Fifth

Circuit reversed the finding of the lower

court on the status of Dugas as a seaman and

a “borrowed employee" of Union. It is sub-

mitted to this Court that no independent duty

other than that not to physically harm plain-

*, tiff was owed to Dugas by Union.

a ee pe

ify ee 4 CARLA ET LG DORIA ART ANE NG tee Fi

EBA se: PELE ELUM BEET LON ARTS II II CH EPEAT TSI ILL LTE OLAS IONS OES TIE YEMEN ELS PETE

This Court has previously held that:

"[t]he rule is well established that

it is not sufficient for a complain-

ant to show that he has been injured

by the failure of another to perform

a duty or obligation unless that duty

or obligation was owing to the complain-

ant."

Chesapeake & O.R. Co. v. Mihas, 280 U.S.

102, 74 L. Ed. 207.

In order for such a duty to be owed to

Dugas by Union, there must exist a relation-

ship between the two which would establish a

duty. Regarding a relationship between Union

and Dugas, the Fifth Circuit stated:

"In this case there is not even

minimal suggestion, criticism, re-

commendation or advice in any form

by Ditch (Union representative) to

Dugas regarding any details of the

Operation. Dugas has no contact

whatsoever with Ditch. He took or-

ders from his pusher only."

PB POO CER

Re eat Stone

and

"There is nothing in the record to

indicate that Pelican or Union either

intended or desired to establish a

borrowed employee relationship be-

tween Union and the man Pelican

supplied."

yet, the Fifth Circuit held that the negli-

gence of Ditch, who had retired for the even-

ing, was the sole cause of an accident which

Occurred during a drilling operation.

ee ee

Od 7 a ae, PA:

It is hornbook law that a defendant can-

not be held negligent if he does not owe a duty

to the aggrieved party... Leisner v. Atlantic

Coastline Railroad £0.» 420 F. 2d 662 (5th.

Cir: .. 3; Ward v. Hobart Mfg. Co., 450 F.2d

1176 (5th Cir.

An owner or contractee has no direct duty

to employees of an independent contractor in

the absence of actual control of operations

by the owner or its employees. Sword v. Guif

Oil Corporation, 251 F. 2d 829 (5th Cir: 1958);

Parsons v. Amerada Hess Corp., 422 F.2d 610

(Sth Cir. 1970); and, Demarest v. T. C. Bate-

son Construction Co., 370 F.2d 281 (5th Cir.

1966).

It is clear that the Fifth Circuit erred

in accepting the factual findings of the lower

court which were predicated on its legal theor-

ies of status.and employment, while reversing

the basis of such findings.

THE FIFTH CIRCUIT COURT OF APPEALS WRONGFULLY

DECIDED THE PRESENT ACTION WITHOUT A REMAND

FOR FURTHER FINDINGS BY THE LOWER COURT CON-

TRARY TO THIS COURT'S DECISION IN ITALIA V.

OREGON STEVEDORING CO., 376 U.S. 315, 84S.

CT. 74, 11 L. ED. 2D 732 (1964).

In light of its holding that Dugas, and

for that matter all members of the Pelican

crew, were not borrowed employees of Union,

the Fifth Circuit's failure to remand the

case for additional findings of fact was im-

proper.

Because the lower court held in essence

that all employees aboard the rig were “bor-

rowed servants" of Union, it held that Union,

as the Jones Act employer, had failed to

exercise due care for its employees.

By holding that Rowan, Union and Pelican

were in fact independent contractors, the

Fifth Circuit should have remanded the case

to the lower court for a determination of whose }

duty it was and who breached the duty of fail-

ing to exercise reasonable care for the plain-

tiff's safety, instead of accepting the deter-

mination of the lower court that Union (in-

cluding employees of Rowan and Pelican) was

guilty of negligence.

Certainly, if the ultimate determination

of supplying a relief crew or ordering rest

breaks was vested in the Pelican pushers, the

warranty of workmanlike performance was

breached and complete indemnity would be owed

to Union Oil Company of California and Rowan

Drilling Company by Pelican Construction Com-

pany. Italia Societa v. Oregon Seeger

Co., 376 U.S. 315, 84 S. Ct. 748, LIL. 2d

732 ” (1964) ; Ryan Stevedoring Co. v. Pan etn

tic Steamship Corp., 350 U.S. 124, 76 S. Ct.

232, 100 L. Ed. 133 (1956); and, Wisenant Vv.

Brewster-Bartle Offshore Co., 446 6 F. 2d 394

gen Gar. I97k)

CONCLUSION

It is apparent that Union Oil Company of

California was held liable to the plaintiff

without having breached a legal duty owed to

him. It is further submitted that the Fifth

Circuit Court of Appeals erred in failing to

remand the case to the lower court for addi-

tional factual findings in accordance with

its opinion. For the reasons and arguments

ja he it

SNL LEY TOT

Ae NPR OR INEST OE

on |

set forth above, a Writ of Certiorari should

issue herein. |

s Le is? wh Mo: Mises DUS

Respectfully submitted,

ADAMS AND REESE

BY:

HENRY B. ALSOBROOK, JR.

GEORGE V. BAUS .

HAROLD A. THOMAS

4500 One Shell Square

New Orleans, Louisiana 70139

Telephone: (504) 581-3234

Counsel for Union Oil Company

of California

CERTIFICATE

I hereby certify that a copy of the above

and foregoing has been served upon Mr. H. Alva

Brumfield, III, 509 St. Louis Street, Baton

Rouge, Louisiana; Mr. A. R. Christovich, Jr.,

1815 American Bank Building, New Orleans,

Louisiana; Mr. Clarence Frost, 1207 Whitney

Building, New Orleans, Louisiana; Mr. Nicholas

Pugh, Post Office Box 3118, Lafayette, Louisi-

ana; and Mr. Donald Organ, 1740 National Bank

of Commerce Building, New Orleans, Louisiana,

by depositing same in the United States Mails,

postage prepaid, this 2nd day of October,

1973.

HENRY B. ALSOBROOK, JR.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO.

UNION OIL COMPANY OF CALIFORNIA

Petitioner

VERSUS

LLOYD DUGAS, PELICAN CONSTRUCTION

COMPANY, INC. AND TRI-STATE

INSURANCE COMPANY,

Respondents.

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

ADAMS AND REESE,

HENRY B. ALSOBROOK, JR.

GEORGE V. BAUS

HAROLD A. THOMAS

4500 One Shell Square

New Orleans, Louisiana 70139

Telephone; (504) 581-3234

Counsel for Union Oil Company

of California

tee withing mente tise

“TABLE OF CONTENTS

Page

APPENDIX A

Opinion of the U. S. Court of

Appeals, Fifth Circuit issued

June 11, 1973 - - ill

APPENDIX B

Order Denying Petition for Re-

hearing - 28

APPENDIX C

Order of the U.S. District Court,

Western District of Louisiana,

dated March 22, 1972 ------------ 29

APPENDIX A

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 72-2546

LLOYD DUGAS,

Plaintiff-Appellee,

versus

PELICAN CONSTRUCTION COMPANY, INC., ET AL.,

Defendants-Appellees,

ROWAN DRILLING COMPANY and 4

UNION OIL COMPANY OF CALIFORNIA,

Defendants-Appellants,

TRI-STATE INSURANCE COMPANY, ET AL., §

Third-Party Defendants. ‘

Appeals from the United States District Court for the

Western District of Louisiana

(June 11, 1973)

Before BROWN, Chief Judge, WISDOM and

AINSWORTH, Circuit Judges,

AINSWORTH, Circuit Judge: Lloyd Dugas, a roust-

about employed by Pelican Construction Company,

Inc., brought this suit for damages growing out of per-

i OP PEEL FS EEE I ES EES OT

Sica YE CRORE SEIT TOLLE SROEE IN IE ARR NET IN BAP A OREN

2 L. DUGAS v. PELICAN CON. CO., INC., ET AL

sonal'injury sustained aboard a submersible drilling

barge, ROWAN NO. 1, owned by Rowan Drilling Com-

pany and located on navigable waters at Northeast

Patterson Prospect Field, south of Morgan City, St.

Martin Parish, Louisiana.

Union Oil Company of California had contracted with

Rowan for the drilling of an oil and gas well at that

location. The contract provided that Rowan furnish a

drilling rig and barge and the necessary personnel to

operate them. Union was required unde: the contract

to furnish a tugboat and service barge to be used in

connection with the operation. Contract depth was

specified to be 13,500 feet, for which Rowan was to be

paid a fixed rate per linear foot. Rowan was to provide

the drilling pipe up to the contract depth. Bevond 13,500

feet the operations were to be conducted on a day-work

basis agreement under which Union would furnish the

drilling pipe to Rowan.

In addition to the contract with Rowan, Union had

a service contract with Pelican for the furnishing of

labor crews as requested by Union.

On September 8. 1964, Rowan was in the process of

drilling the well for Union and was operating on day

rate, having exceeded the contract depth. Kenneth

Ditch, the foreman for Union and its only representa-

tive on the drilling barge, called Pelican’s office and

requested that a crew of roustabouts be sent out to

work aboard the drilling barge. Accordingly, a Peli-

can crew of two pushers, Edward George and Oris

Cormier, and four roustabouts, including plaintiff Du-

pam

L, DUGAS v. PELICAN CON. CO., INC., ET AL 3

gas, Jeft Morgan City, Louisiana, by crewboat and pro-

ceeded to the drilling barge, where they arrived at

approximately 10 a.m. George was informed by Ditch

that the Pelican crew was to unload drilling pipe from

a pipe barge onto the drilling barge. The pipe barge,

owned by Union and loaded with 4 1/2-inch drill pipe

provided by Union, was lying alongside the drilling

barge, unmanned. The drilling barge was equipped

with a crane and air hoist for use in moving pipe from

the pipe barge to the pipe rack aboard the ROWAN

NO. 1, and thence to the V-door at the drilling floor

when needed by Rowan to run the pipe into the well

hole.

Upon arrival at the drilling site. the Pelican crew

were assigned various jobs preparatory to unloading

the pipe. Sometime in the afternoon the unloading op-

eration began, with George, an experienced air hoist

operator, operating the hoist and crane. At 7 p.m. Ro-

wan began putting the pipe into the hole.

The accident which precipitated this suit occurred

at about 4:30 a.m., the following day. Dugas was then

working at the far end of the pipe rack on the drilling

barge. He and a Pelican co-worker had just attached

a sling to a load of six joints of pipe. George then

lifted the pipe but the load instead of moving to the

V-door, swung back and hit Dugas, who had turned

and was walking in the opposite direction, knocking

him to the floor of the rig. When observing Dugas fall, j

George placed the hoist in neutral, left the contzols, :

and ran to a point on the upper deck where he could ’

4 L. DUGAS v. PELICAN CON. CO., INC., ET AL

__ gee Dugas, at which time the air hoist “bled off” al-

lowing the load of pipe to settle on Dugas’ legs.

Dugas claimed damages from Pelican,’ his employ- |

er, Union and Rowan, asserting liability under the

Jones Act, the general maritime law and maritime

tort. His theory for Jones Act liability against Union

and Rowan was based on the theory that he was the

A borrowed servant of these defendants.

Thereafter a progression of cross-claims between de-

fendants followed, with the parties asserting every

known theory of maritime indemnity — tort, contrac-

tual (express and implied) and third-party beneficiar-

ies to rights of others under contracts. Virtually every-

one claimed over against virtually everyone else.? As

a result of these numerous claims and long, protracted

pretrial procedures, including the taking of deposi-

tions, interrogatories and the utilization of other dis-

covery devices, the case did not proceed to trial until!

almost five years after the initial complaint was filed

and approximately six years following the accident,

a period much longer than the memory span of most

of the testifying witnesses. Consequently, the evidence

was in many instances sketchy or conflicting. Never-

: theless, the district judge, sitting without a jury, found

that the sole proximate cause of the injury was the

negligence of Union in allowing the Pelican crew to

‘.

'Pelican’s insurance carrier, Tri-State Insurance Company, was also

7 named as a defendant.

i 2Rowan filed no cross-claim against Union, We understand from

counsel at oral argument, however, that Rowan has insti-

tuted separate proceedings against Union seeking indemnity.

wen ’ | ;

L. DUGAS v. PELICAN CON. CO., INC., ET AL 5

become fatigued and overworked on an undermanned

vessel which thus became unseaworthy. In this regard

the district judge made the following pertinent find-

ings:

“All of the Pelican crew testified that they

were very tired. Cormier requested relief at

ten o’clock p.m. and again at about two o’clock

a.m. Mr. Ditch, the Union superintendent, and

the man in charge, had retired for the night.

None of the Rowan men had authority to order

a relief crew to come out. Mr. Bevills, Rowan’s

toolpusher, stated that no one requested relief

of him that he can remember; but if they had,

he would h:'ve taken the matter up with Mr.

Ditch. Under these circumstances, Union’s

failure to exercise reasonable care for the

safety of the men furnished to it by Pelican was

negligence, and its failure to provide a suf-

ficient number of men to do the work that had

to be done resulted in an unseaworthy, under-

manned ship, which rendered the vessel itself

not reasonably fit for her intended use and dan-

gerous to the well being of those aboard her

... We find that the inattention of George in

allowing the load to swing toward Dugas, as

well as the fact that Dugas has turned his back

to the load and failed to watch it, as he should

have, were the result of their fatigue, a condi-

tion that could and should have been foreseen

by Union. No effort was made to allow these

men to even have a few minutes rest after they

began running pipe, or to provide them with

HEN ALYY RORY oeeeES Gam eBy

my ie alana verre sem

LN SP OR Se rer gt ete Ger

Pa es

2 FR Hen =

. 6 \L. DUGAS v. PELICAN CON. CO., INC., ET AL

food although there was food available. They

came aboard, went about their appointed tasks

as directed by Mr. Ditch and were therafter

completely neglected. We hold that this failure

on the part of Union and the resulting unsea-

worthiness of the ship was the sole proximate

cause of the accident.”

The district court further found that the dereliction

of George and Dugas, if any, was caused by fatigue

due to the unrelieved long hours and sustained heavy

labor, and did not under the circumstances constitute

negligence on their part which was a contributing

cause of the accident. The district court concluded that

Dugas was a Jones Act seaman of Union under the

borrowed servant theory. Damages were assessed in

the sum of $45,000 against Union and Rowan as joint

tort-feasors — Union, because of its negligence, and

Rowan, because of the unseaworthiness of the ROWAN

No. 1 caused by Union’s negligence. Judgment was

also rendered in favor of Union on its cross-claim a-

gainst Rowan for contribution in the sum of $22,500.

Judgment was then rendered in favor of Union on its

cross-claim against Pelican and Tri-State for one half

the amount of the award, under the terms of the con-

tract between the parties, which the district court con-

strued as requiring indemnification for injuries to Peli-

can’s employees regardless of causal negligence by

Union. All of the other cross-claims and a counterclaim

by Pelican against Market Insurance Company, its

public liability insurance carrier, were denied. In

short, Rowan and Pelican were each liable for one

L. DUGAS v. PELICAN CON. CO., INC., ETAL 7

half the amount of judgment, or $22,500 each, under

the district court’s decree.

Rowan and Union have appealed; Pelican has not

appealed inasmuch as it has filed a motion for new

trial which inexplicably is still pending in the lower

court. Consequently, the issues of contractual indemni-

ty between Union and Pelican and the dismissal of

Market Insurance Company are not before us.

ISSUES ON APPEAL COMMON TO

ROWAN AND UNION

Both Rowan and Union contend that the district court

erred in finding that Dugas was a Jones Act seaman

and a borrowed employee of Union; that fatigue con-

tributed to the accident; and in that there was no cau-

sal relationship between the accident and the joint and

concurrent negligence of plaintiff in turning his back

on the pipe, and George in negligently operating the

air hoist.

ADDITIONAL ISSUES URGED BY ROWAN

Rowan further contends that the district court erred

in basing a finding of unseaworthiness on the under-

manning of Pelican’s crew. and in failing to award

Rowan full indemnity against Pelican because of the

latter’s alleged breach of the implied warranty of

workmanlike service owed to Rowan’ under

the “Ryan”*® theory of indemnity, as extended by

*Ryan Stevedor. Co. v. Pan-Atlantic Steam. Corp., 350 U. S. 124,

76 S. Ct. 232 (1956).

;

}

{

8 L. DUGAS v. PELICAN CON. CO., INC., ET AL

Whisenant v. Brewster-Bartle . cert Company,

5 Cir., 1971, 446 F.2d 394.

ADDITIONAL ISSUES URGED BY UNION

Union further contends that the district court erred

in failing to grant it full contractual and tort indemnity

from both Rowan and Pelican under its contracts with

the respective parties and under the active-passive the-

ory of tort indemnity enunciated in Tri-State Oil Tool

Indus., Inc. v. Delta Marine Drill. Co., 5 Cir., 1969,

410 F.2d 178.4

The evidence does not support the district court’s

findings that Dugas was a Jones Act seaman or a bor-

rowed employee of Union. To qualify for Jones Act

benefits, an injured worker must be on more or less

permanent assignment to a vessel or performing a sub-

stantial part of his work aboard a vessel. Offshore

Company v. Robison, 5 Cir., 1959, 266 F.2d 769, 779;5

Thibodeaur v. J. Ray McDermott & Co., 5 Cir., 1960,

276 F.2d 42; Rotolo v. Halliburton Company, 5 Cir.,

4Union seeks full indemnity against Pelican as a protective measure

in the event that Rowan should fail to satisfy Union’s judg-

ment for contribution.

SAccording to Robison, there is an evidentiary basis for a Jones

Act case “(1) if there is evidence that the injured workman

was assigned permanently to a vessel (including special pur-

pose structures not usually employed as a means of transport

by water but designed to float on water) or performed a sub-

stantial part of his work on the vessel; and (2) if the capacity

in which he was employed or the duties which he performed

contributed to the function of the vessei or to the accomp-

lishment of its mission, or to the operation or welfare of the

vessel in terms of its maintenance during its movement or

during anchorage for its future trips.” 266 F.2d at 779.

2 et

Lalani eer eh cnt hiaiin sant un ican.

L. DUGAS v. PELICAN CON. CO., INC., ET AL 9

1963, 317 F.2d 9. Dugas had been employed by Pelican

approximately one week prior to his going aboard the

ROWAN NO. 1 for the first and only time. Pelican

was not the vessel owner and the duties which it as-

signed to Dugas during that week — cutting grass,

repairing a bridge, and land-based office work — were

not duties performed aboard a vessel. He and the other

Pelican roustabouts were sent out to the ROWAN No.

1 to do one job — unload a certain number of pipe

joints. When the assignment was completed their tour

of duty aboard the barge terminated. The job was ex-

pected to last, and did last, only a day. Plaintiff’s brief

tenure aboard the vessel fell far short of establishing

seaman status. However, Dugas was entitled, by virtue

of the maritime character of the work he performed,

to the warranty of a seaworthy vessel. Seas Shipping

Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872 (1946). Rowan

and Union concede as much, denying, however, that

that warranty was breached.

Nor do we think Dugas was a borrowed employee

of Union. In Ruiz v. Shell Oil Company, 5 Cir., 1969,

413 F.2d 310, we listed various factors to be considered

in determining whether or not a borrowed employee

relationship exists. Id. at 313. Although the trial judge

employed the correct legal standards, citing Ruiz as

authority for his holding, he erroneously concluded

that Dugas was a borrowed employee of Union. In Ruiz

we held that the borrowed employee status did not

exist because the factor of control, inter alia, had not

been relinquished by the general employer nor accept-

| ed by the temporary employer. The facts in the present

| case lead us to the same conclusion. We recognized

pai tins hag

10. L., DUGAS v: PELICAN CON. CO., INC., ET AL |

in Ruiz a distinction between authoritative direction

and control over the servant, and meré suggestion as

to details or cooperation by the servant with the tem-

porary employer where the work being furnished was |

part of a larger undertaking.* In this case there is

not even minimal suggestion, criticism, recommenda-

tion or advice in any form by Ditch to Dugas regarding

any details of the operation. Dugas had no contact

whatsoever with Ditch. He took orders from his push- |

ers only. While numerous factors must be considered

to determine whether an individual is a borrowed serv-

ant or employee of another, essential to that relation-

ship is some type of agreement, written or verbal,

formal or informal, between the general employer and

the temporary employer evidencing an intention to

create that relationship. There is nothing in the record

to indicate that Pelican or Union either intended or

desired to establish a borrowed employee relationship

between Union and the men Pelican supplied. The writ-

ten contract itself negates such an intention. The per-

tinent clause provides that

“In the performance of the work herein con-

templated, CONTRACTOR [Pelican] is an in-

dependent Contractor, with the authority to

control and direct the performance of the de-

tails of the work, UNION being interested only

in the results obtained, but the work contem-

plated herein shall meet the approval of UN-

ION. CONTRACTOR specifically agrees that

€See Standard Oil Co. v. Anderson, 212 U.S. 215, 222, 29 S.Ct.

252, 254 (1909); Ruiz v. Shell Oil Company, 5 Cir., 1969, 413

F.2d 310 at 313.

L. DUGAS v. PELICAN CON. CO., INC., ET AL 11

all persons employed by CONTRACTOR in

performing the work covered by this Contract,

or by CONTRACTOR'S sub-contractors, are

not the employees of UNION for any purpose

whatsoever. .. .” [Emphasis supplied.]

Other traditional factors generally indicative of the

borrowed employee relationship, and absent here, are

“acquiescence by [the employee] that he be employed

by [the temporary employer]”; a “temporary termi-

nation by the general employer of its relationship with

the servant”; “the furnishing by the temporary em-

ployer of the necessary instruments and the place for

performance of the work in question”; “employment

of the servant over a considerable length of time”;

and “the customary right to discharge the servant and

the obligation for payment of his wages.”” While no

one factor or specific combination of factors is deter-

minative of the borrowed employee relationship, the

evidence here preponderates toward the conclusion

that such a relationship was not present.

The trial judge held — and we agree — that the

negligence of Union, with resultant unseaworthiness

of the vessel, was the sole proximate cause of the ac-

cident. The trial judge found that the Pelican men were

fatigued and ascribed this to the failure of Union to

provide them with necessary rest periods, thus causing

an undermanned and therefore unseaworthy vessel.

Both Union and Rowan strongly contest these findings

and urge that the negligence of George, in his operation

7Ruiz v. Shell Oil Company, 5 Cir., 1969, 413 F.2d 310 at 313.

ra’ ote.

PAR

at,

ae |

sty Sig }

Roe My

ud Ps. ee eee Pike J

42 L. DUGAS-v. PELICAN CON. CO., INC., ET AL

of the crane and air hoist, and the contributory negli- |

gence of Dugas, in turning his back to the load of pipe,

and not fatigue, were the proximate causes of the ac-

cident. Various reasons were advanced in regard to

what caused the pipe to fall on Dugas. The testimony

of the only two eyewitnesses, George and a Pelican

roustabout, Russell Palombo, was not too helpful ex-

cept to verify the fact of the accident. We are unable

to say from the tenuous and conflicting evidence ad- |

duced at the trial that the district judge’s finding was ©

clearly erroneous in declining to attribute causal negli- ©

gence to Pelican or to Dugas.

The evidence fully supported the finding that the men :

were fatigued and overworked. The Pelican crew had —

been working at the drilling site for approximately

18 1/2 hours without relief. By way of contrast, Ro-

wan’s men worked 12-hour shifts. Dugas and Palombo,

the only other Pelican roustabout to testify, both re-

quested relief. Dugas said that he had worked continu-

ously. He was tired, worn out, could hardly go any-

more. Palombo said he was tired as they had worked

all day and all night. Cormier said they were operating

under fatigue conditions, having worked continuously

from the time they arrived at the drilling site at about

10 a.m. until Dugas was hurt at about 4 a.m. the fol-

lowing day.

The conflicting evidence in regard to whose orders

were being followed in denying relief to the Pelican

crew was hardly susceptible of a definite finding, but

the trial judge concluded, however, under all the cir-

cumstances that Union had the responsibility to take

L. DUGAS v. PELICAN CON. CO., INC., ET AL 13

necessary steps to furnish relief. We agree that the

evidence compels such a conclusion. Rowan had no

such authority. The contract for furnishing the roust-

about labor was between Union and Pelican. Rowan

had no contract with Pelican. Union’s superintendent,

Ditch, who was the top authority in this drilling opera-

tion, was the only one in a position to relieve the crew.

Ditch’s testimony corroborated this fact. He said that

he was authorized to call for a crew if he needed one.

He had hired the Pelican men, but he had not speci-

fied the length of time they were to remain on the

job. He had authority to stop operations aboard the

rig if the occasion arose necessitating it. He would

have been in a position to stop unloading if he had

seen a situation that he felt was dangerous. The Peli-

can pusher had reported to him and he put him to

work. According to Ditch, ordinarily it would take be-

tween 13 to 14 hours to unload the pipe in question,

which was in excess of 13,500 feet. Dugas and his co-

workers had been working for at least 8 1/2 hours

(from 10 or 10:30 a.m. to 7 p.m.) before beginning to

unload the pipe. Since Ditch estimated that the unload-

ing would take at least 13 hours, he should have rea-

sonably calculated that the job would not be completed

until approximately 8 a.m. the next day, at which time

the Pelican men would have worked a total of approxi-

mately 22 hours without relief. Ditch’s failure to exer- ;

cise reasonable prudence in making prior arrange- :

ments to provide for rest periods or for a substitute

crew constituted serious negligence.

The “concept that seaworthiness contemplates the

crew as well as a vessel and its gear has been firmly

44 L. DUGAS v. PELICAN CON. CO., INC., ET AL

established in maritime law. In Boudoin v. Lykes

Brothers Steamship Co., 348 U.S. 336, 339, 75 S.Ct. 382,

385, the Supreme Court found no reason “to draw a

line between the ship and the gear on the one hand

and the ship’s personnel on the other’’ in determining

whether the warranty of seaworthiness had been’

breached. In Crumady v. The Joachim Hendrik Fisser,

358 U.S. 423, 427, 79 S.Ct. 445, 447 (1959), the principle.

was reiterated that “[{u]nseaworthiness extends not

only to the vessel but to the crew.” Citing Boudoin

and Crumady the Supreme Court in Waldron v. Moore- |

McCormack Lines, Inc., 368 U.S. 724, 727, 728, 87 S.Ct. |

1410, 1412 (1967), said: |

)

“[I]t makes no difference that respondent’s

vessel was fully manned or that there was a

sufficient complement of seamen engaged in

the overall docking operation, for there were

too few men assigned ‘when and where’ the

job of uncoiling the rope was to be done.”®

Summarizing, we agree with the district court that |

Union’s failure to exercise reasonable care for the safe- |

ty of the Pelican men was negligence and that Union’s

failure to provide a sufficient number of men resulted |

in an unseaworthy, undermanned ship. The district |

court also correctly cast Rowan in judgment to plain-

tiff as jointly and solidarily liable with Union on the >

main demand, in view of the finding of unseaworthi- |

ness of Rowan’s vessel.

®See also Morales v. City of Galveston, Texas, 370 U.S. 165, 82 |

S.Ct. 1226 (1962); Price v. SS Yaracuy, 5 Cir., 1967, 378 F.2d

156, 160 n. 9.

ERE AA HY

L. DUGAS v. PELICAN CON. CO., INC., ET AL 15

THE CROSS-CLAIMS FOR INDEMNITY

Union v. Rowan. Having found that Union was sole-

ly at fault, the district court correctly dismissed the 4

claim of Union seeking indemnity from Rowan under i]

the contract by the terms of which Rowan agreed to = &&

indemnify Union except for loss “caused by the sole

negligence of Union.” Nevertheless, the trial court con- |

sidered Union’s claim broad enough to support a claim

for contribution under Horton & Horton, Inc. v. T/S

J. E. Dyer, 5 Cir., 1970, 428 F.2d 1131, and rendered

judgment in favor of Union and against Rowan for

one half of the amount of the award. This was an er-

roneous conclusion. In Horton we allowed contribution

between two joint tort-feasor vessel owners, Horton

& Horton, Inc. and Vaughan Marine, Inc., both

of which had been found at fault in causing the drown-

ing of a seaman when the barge on which he was work-

ing capsized. Horton’s fault was based, inter alia, on

negligence and breach of the warranty of seaworthi-

ness because of a leaking and otherwise defective hull.

Vaughan Marine’s fault was based, inter alia, on its

negligence in failing to accept the use of pumps. Unlike

the present case in which the unseaworthy condition

of Rowan’s vessel emanated from the negligent act

of Union and without which negligence there would

have been no unseaworthiness, in Horton each of the

tort-feasors was guilty of negligence. The district

court, therefore, erred in rendering judgment in favor

of Union against Rowan for one half of the award.®

®Union’s argument is predicated on our treating as error the find-

ing by the trial court of Union's causal negligence. It alleges

16'L. DUGAS v. PELICAN CON. Co., INC., ET AL

Union v. Pelican and Tri-State. Union’s claim a-

gainst Pelican under the terms of the service contract

between the parties was allowed, based on the trial

court’s interpretation of the indemnity provision of the

contract as imposing the duty upon Pelican to hold

Union harmless for injury to its employees even if the

injury resulted from Union’s negligence. Accordingly,

judgment was entered against Pelican in favor of Un-

ion for one half of the award. Pelican has not appealed

from this ruling, apparently because it is not final,

Pelican having filed a motion for new trial. Union con-

tends, however, that the court erred in failing to allow

it full indemnity against Pelican based on an active-

passive tort theory of indemnity enunciated in Tri-

State Oil Tool Industries, Inc. v. Delta Marine Drilling

Company, 5 Cir., 1969, 410 F.2d 178. Implicit in this

contention is that there was active negligence in Peli-

can through the actions of its employees George and

Dugas. Since we find no clear error in the trial court’s

finding which absolved Pelican of negligence, the legal

theory advanced by Union must fall, and indemnity

against Pelican denied.

Rowan v. Pelican. Having found that Pelican was

not at fault, the trial court correctly dismissed Ro-

wan’s claim against Pelican based on tort theory of

active negligence by Rowan in failing to inform Union of the

fatigued condition of the Pelican crew, and therefore that it is

entitled to recover over from Rowan under an active-passive

tort theory. See Tri-State Oil Tool Indus., Inc. v. Delta Marine

Drill. Co., 5 Cir., 1969, 410 F.2d 178. Since we are unable

to say that the finding of negligence was clearly erroneous,

the doctrine of Tri-State inures to the benefit of Rowan, the

non-negligent party, and not of Union.

L. DUGAS v. PELICAN CON. CO., INC., ET AL 17

indemnity. It further declined to apply the Ryan'® doc-

trine concept of liability to Rowan’s claim of a breach

of the warranty of workmanlike performance

(WWLP). There was no written contract between Ro-

wan and Pelican. Rowan contends it should prevail,

however, under the implied warranty doctrine of Ryan,

as extended by Whisenant v. Brewster-Bartle Offshore

Company, 5 Cir., 1971, 446 F.2d 394, to encompass not

only stevedore employers but the specialized independ-

ent contractor employer of an injured seaman. Ro-

wan’s argument, of course, is predicated on a breach

by Pelican of the WWLP. By attributing the accident

solely to the negligence of Union, the trial court negat-

ed the possibility of any causal breach by Pelican.

Even where such a breach occurs, it is immaterial

unless it is a proximate cause of the accident or in-

juries. Garner v. Cities Service Tankers Corporation,

5 Cir., 1972, 457 F.2d 476, 481.

Payment to Dugas to compensate him for his injuries

is long overdue. Union and Rowan, having been cast

as joint tort-feasors on the main demand, must now

satisfy their liability. Any further delay, contingent

on the ultimate determination of liability as a result

of Pelican’s pending motion for a new trial on its cross-

claim, would be improper.

AFFIRMED in part; REVERSED in part.

‘oRyan Stevedor. Co. v. Pan-Atlantic Steam. Corp., 350 U.S. 124,

76 S.Ct. 232 (1956).

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.

APPENDIX B

, IN THE ba fl J ;

UNITED STATES COURT OF APPEA

FOR THE FIFTH CIRCUIT

NO. 72-2546

LLOYD DUGAS,

Plaintiff-Appellee,

versus

PELICAN CONSTRUCTION COMPANY, INC., ET AL.,

Defendants ~-Appellees,

ROWAN DRILLING COMPANY and

UNION OIL COMPANY OF CALIFORNIA

Defendants-Appeilants,

TRI-STATE INSURANCE COMPANY, ET AL.,

Third-Party Defendants.

ON PETITION FOR REHEARING

(JULY 5, 1973)

Before BROWN, Chief Judge, WISDOM and

AINSWORTH, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for re-

hearing filed on behalf of Union Oil Company

of California in the above entitled and num-

bered cause be and the same is hereby denied.

APPENDIX C

Filed Mar 22, 1972

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

CIVIL ACTION

NUMBER 11,372

LLOYD DUGAS

versus

PELICAN CONSTRUCTION COMPANY, INC., et al

Messrs.

FOR PLAINTIFF Brumfield & Brumfield, H.Alva

Brumfield III, and Sylvia

Roberts, 509 St. Louis Street,

Baton Rouge, Louisiana 70802

FOR DEFENDANTS Faris, Ellis Cutrone, Gilmore &

Lautenschlaeger, Clarence A,

Frost, Whitney Bldg., New Or-

leans, La.

and

Pugh & Boudreaux, Nicholls Pugh,/

Jr., Post Office Box 3118,

Lafayette, Louisiana, 70501

FOR PELICAN CONSTRUCTION COM-

PANY, INC. and TRI-STATE IN-

SURANCE COMPANY

Adams & Reese, George V. Baus,

847 National Bank of Commerce

Bldg., New Orleans, Louisiana

70112, FOR UNION OIL COMPANY

Christovich & Kearney, W. K.

Christovich, American Bank Bldg.

New Orleans, Louisiana 70130

FOR ROWAN DRILLING COMPANY, INC.

ORGAN & PIERCE, Donald M. Pierce

1750 Nat'l Bank of Commerce Bldg

New Orleans, Louisiana 70112,

FOR MARKET INSURANCE COMPANY,

Third Party Defendant

MEMORANDUM OPINION

Lloyd Dugas, an employee of Pelican Con-

struction Company, Inc. (Pelican) was injured

in the course of his employment on September

9, 1964, at about 4:30 a.m., while working on

a submersible drilling barge owned ang operat-

ed by Rowan Drilling Company (Rowan) ,2/ while

that company was engaged in drilling a well

in search of oil, gas and other minerals in

navigable waters of Louisiana. Rowan was un-

der contract for the well to Union Oil Com-

pany (Union), and at the time had exceeded i

the contract depth of 13,500 feet and was

operat}n9 on day rate as provided in the con-

tract. Under the terms of this contract

Union was requirg to furnish a tugboat and

a service barge. The parties were in the

process of “running” the drill stem (drill-

ing pipe) of some 13,500 feet of 4-1/2" pipe

into the hole, preparatory to drilling to a

it Ce

pa Sa Ri a a

a ee eee oe

reater de » Union's service barge was lay-

Tos alongside Rowan's drilling barge (Rowan

No. 1), loaded with 4-1/2 inch drill pipe

furnished by Union for operations below con-

tract depth on a day work basis. Ditch, the

Union representative on the job, testified

that while Rowan was on day ra e Union fur-

nished its own pipe to Rowan.

The service barge:was not manned. Mr.

Ditch called Pelican to furnish a crew of men

to unload the drill pipe as required by the

crew Of Rowan No. 1 for drilling the well.

Pelican had a standing contract to "furnish

labor crews and equipmeng s requested by

Union's representative". In response to

this call, two roustabout pushers, Edward

George and Oris Cormier, and four roustabouts,

including plaintiff and Frank Palombo, were

dispatched for the work.

Mr. Earl Boudreau, president of Pelican,

testified that the company was engaged in the

business of contracting out labor crews. It

employed no specialists, just common laborers.

Pelican charged Union for each man sent out.

Generally, when a work crew reported for work

the foreman took orders from the operator's

representative and proceeded to direct his men

in the performance of the work they were as-

signed. The largest percentage of Pelican's

work was maintenance of equipment and running

flow lines for oil companies, both inland and

offshore. Only ten or fifteen per cent of the

work was performed on or about drilling rigs.

Oris Cormier left for this job from Abbe-

ville, Louisiana, with three roustabouts, in-

cluding Dugas. They met George and another

man somewhere in the vicinity of Morgan City,

and went from there to the rig by crewboat.

They arrived at the rig at about ten o'clock

.vkn the morning. Cormier and George could not

remember who they reported to, but from Mr.

Ditch's testimony we conclude that they re~+

to him and were instructed’ to unload

the drilling pipe as and when Rowan needed it

on the drilling floor aboard Rowan No. l. |

George did not remember any other order, but

Frank Palombo, one of the roustabouts, testi-~

fied that they: were put to work on the barge

tying on protectors for the pipe, did other

jobs, then waited until Rowan's drilling

crew was ready to use the drill pipe. The

daily drilling report shows that Rowan began

running pipe back into the hole at seven

o'clock p.m. George was told to use the air

hoist and crane on Rowan No, 1, but was un-

able to say whether this order came from Mr.

Ditch or one of the Rowan employees. He did

not remember who showed him how to operate

the hoist, whether Mr. Ditch or a Rowan em-

ployee. In view of Mr. Ditch's testimony

that he did not know how to operate a hoist,

and Cormier's testimony that one of the rough-

necks instructed George when they started work,

we conclude that a Rowan employee gave George

his instructions.

From the time they arrived at the well

location until 4:00 or 4:30 a.m. the next day

when the accident happened, the Pelican men

were working; they had brought only one meal

with them and had had no rest for approximate-

ly eighteen hours. More than ten hours of

this time was spent in unloading the drill

pipe.

At the time plaintiff was injured,

George operated the crane, Cormier and Palom-

bo were on the cargo or pipe barge, plaintiff

and another roustabout were on the pipe rack

On Rowan No. 1, and one man worked tailing .

pipe as it was lifted to the V-door, at the .

drilling floor.

tremens

Only plaintiff, Palombo and George had any

idea as to how the accident in this case happen-

ed. Using the crane and hoist, pipe was re-

moved from the Union barge alongside Rowan No.

1 to the pipe rack aboard that vessel. From

the pipe rack it was raised to the V-door at

the drilling floor, as needed by Rowan's crew.

Rope slings separated by a singletree were

used to tie on the joints. Plaintiff was at

the far end of the pipe. rack, about 50 feet

from the hoist. He and his co-worker attached

the slings to a load of six joints of pipe;

when George lifted this load it swung, strik-

ing plaintiff in the legs and knocking him

down. George placed the crane in neutral and

ran to a point on the upper deck where he could

see Dugas. The hoist was equipped with a manu-

ally operated brake, which he did not engage.

When George left the controls, the air hoist

"bled off" and the load settled on plaintiff's

legs.

Plaintiff contends that the hoist was un-

seaworthy in that the controls used to swing

the boom laterally did not operate properly.

The evidence is in hopeless conflict on this

issue. The Rowan crew testified that occa-

sionally the cables located on the drum be-

neath the turntable slipped out of place and

when this happened it was necessary to replac

them before continuing with hoist operation.

They also testified that the hoist was operat-

ing properly on the night in question; however,

their opportunity to observe its operation was

limited due to the fact that they were all en-

gaged in other duties on the rig floor.

On the other hand, Cormier and Palombo,

who were working on the pipe barge when the

accident happened, said that they had to use

ropes to swing the boom laterally in lifting

the pipe to the drilling barge. Palombo

te SR ay ie CNR iy

‘34

_,estified. that. from.the pipe: rack on Rowan No.

. ok eo the. V-door, the automatic controls seemed

to-work.."pretty well". .On cross-examination

he stated that sometimes the hoist would "slip"

if. a: load.was. lifted. and held suspended. -Cor-

mier testified that-the hoist seemed to lose

,and the load would “drop a couple of

feet", and that because of this he had instruc-

ted the men to be very careful. This testi-

mony is inconclusive and contradicted by some

of the Rowan crew who had used the hoist re-

gularly in prior operations. The weight indi-

cator charts used on the rig during this opera-

tion show that there was no down time or work

stoppage during this entire operation such as

would have occurred if the cabl¢ ad slipped

off the drum and been replaced.

We find from a preponderance of the evi-~-

dence on these issues that the cables on the

turntable drum did not slip out of place on

the night in question, and that the boom re-

sponded properly to the automatic controls

when lifting pipe from the pipe rack to the

vV-door. And, we cannot say from the evidence

that the “bleed off" under a heavy load was

the result of any other failure or defect in

the hoist such as to render it unseaworthy,

or not reasonably fit for its intended use.

All of the Pelican crew testified that

they were very tired. Cormier requested re- ‘

lief at ten o'clock p.m. and again at about §

two o'clock a.m. Mr. Ditch, the Union super-

intendent, and the man in charge, had retired

for the night. None of the Rowan men had

authority to order a relief crew to come out. |

Mr. Beville, Rowan's toolpusher, stated that 4

no one requested relief of him that he can

remember; but if they had, he would have taken —

the matter up with Mr. Ditch. Under these p

circumstances, Union's failure to exercise

reasonable care for the safety of the men fur-

nished to it by Pelican was negligence, and

its failure to provide a sufficient number of

men to do the work that had to be done re-

sulted in an unseaworthy, undermanned ship,

which rendered the vessel itself not reason-

ably fit for her intended use and dangerous

to the well being of those aboard her. See

Norris, Law of Seamen 3rd. Ed. § 616, at p.

176; Waldron v. Moore-McCormack Lines, 1967,

386 U.S. 724, 87 S. Ct. 1410, 18 L. Ed. 2d j

482; American President Lines, Ltd. v. Welch

9 cir. 1967, 377 F. 2d 501, cert. den. 389

U.S. 940. We find that the inattention of

George in allowing the load to swing toward

Dugas, as well as the fact that Dugas had

turned his back to the load and failed to

watch it, as he should have, were the result

of their fatigue, a condition that could and

should have been foreseen by Union. No effort

was made to allow these men to even have a

few minutes rest after they began running pipe,

or to provide them with food although there

was food available. They came aboard, went

about their appointed tasks as directed by

Mr. Ditch and were thereafter completely neg-

lected. We hold that this failure on the part

Of Union and the resulting unseaworthiness of

the ship was the sole proximate cause of the

accident.

We are convinced, after reviewing our

trial notes, that the observation made by the

Court at the conclusion of the trial that

George and plaintiff were themselves negli-

gent on this occasion was erroneous, and now

correct it. Their dereliction, if any, was

caused by fatigue due to the hours they had

been required to engage in sustained heavy

labor without relief, and cannot, in our

Opinion, be charged against either one of

them as negligence contributing causally to

this accident. It was, in fact, a reasonably

wen

reseeable consequence of Union's failure to

Ovide an adequate crew for the Rowan No. 1,

ich wes at that time under its control. © ©

‘Plaintiff, by original complaint and a

series of amendments, began the trial claim-

ing damages from his employer Pelican and its

insurers, Tri-State Insurance Company and

Underwriters of Lloyds of London (hereinafter

referred to as Tri-State), under the Jones Act

46 U.S.C.A. § 688, and Union and Rowan as a

Sieracki Seaman®/ for negligence and the unsea

worthiness of the vessel Rowan No. 1 and, al-

ternatively, under the Jones Act as the bor-

rowed servant of Union and/or Rowan. These

alternative claims under the Jones Act were

not formally pleaded until October 30, 1967,

when the last amended complaint was filed.

We start with the question of whether or

not Dugas was a seaman or member of the crew

of any vessel in the flotilla assembled at

this location for the special purpose of fos-

tering the prima mission of the mother ship

Rowan No. 1, and/or of that sometimes floating

sometimes sunken navigational hybrid herself.

To classify as a member of the crew of a

vessel one must be employed in the sense that

(1) he is more or less permanently assigned

to a vessel in navigation, or performs a sub-

stantial part of his work on the vessel, (2)

his duties aboard her are of such.nature that

they contribute to the function of the vessel

or to the accomplishment of its mission, or to

the operation or welfare of the vessel in

terms of its maintenance during its movement

or during anchorage for its future trips.

Offshore Company v. Robison, 5 Cir. 1959, 266

F. 2d 769, 75 ALR 6; Producers Drilling

Co. v. EAS 5 Cir. 1966, 361 F. 2d 432;

Marine Drilling co Inc., et al v. Aut 5

Cir. 66, 363 F. 2d 579, fully discuss the

a Bo ee a ne ee

development of the law on this question. In

Stanley v. Guy Scroggins Const. Co.. 5 Cir.

length of time a person might be employed

aboard a vessel was not necessarily deter-

minative of his status as a member of the

crew, if his employment was on a full time,

twenty-four hour basis to work " in the regu-

lar operations of the vessel." (297 PF, at

378, emphasis added. )

In this case, Union owned the service

barge on which the pipe was located when the

Pelican crew reported aboard. It was in navi-

gation at that time, its purpose being to

Supply drill pipe to Rowan No. 1 while the

drilling crew was in the process of "going

back into the hole," so that drilling could

be resumed. The Pelican crew was there to

get this string of pipe from the service barge

to the drilling floor. They were working mem-

bers of the crew of Rowan No. 1, sending the

pipe up when called for by the drilling crew.

All, not merely a substantial part, of the

work they did from the time they arrived on

September 8 until the time they left after

Plaintiff's accident was an integral part of

the regular operations for which the drilling

barge and its service fleet were designed and

assembled. Robison Supra. They were there

for whatever length of time was required to

complete running the pipe back into the hole,

not as specialists rendering a service not

} nbn performed by the regular drilling

crew, but providing general labor necessary

to enable Rowan No. 1 to accomplish her mis-

sion. Under Stanley,supra, the fact that

Dugas' stay aboard was Of short duration does

not, as a er of law, require a different

consiusion £7 5

duties carried him aboard more than one ves-

sel defeat his claim as a seaman. As we have

seen, the service barge was olnely an appur- .

tenance or extension of the drilling. barge |

under the circumstances of this case, lending —

support. to that.vessel. Cf. Branitf v. Jack:

son eT Inc., 5 Cir. 19600, 0

F. é .

Having concluded that plaintiff was em- |

ployed as a seaman or member of the crew, of the

vessel Rowan No. 1, it is necessary to decide

who his employer was under the Jones Act, mea-

sured by the Federal Employer's Liability Act,

Title 45.U.S.C.A. § 5l. Cosmopolitan Shipping

Co. v. McAllister, 1949 U.S. 9 S.

Se —-TSI7- 83 L. Bd. 1693 (see especially 337

U.S. at 795). The relationship is generally

to be determined by common law standards con-

sidering the words in their ordinary and usual

sense. Shenker v. Baltimore & Ohio R- CO.

1963, 374 U.S. l, §.ct. 1667, L. . 2d

709; Ward v. Atlantic Coast Line R. Co., 1960,

362 U.S. 396, 90 S. Ct. 789, 4 L. Bd. 2d 820;

Baker v. Texas & Pacific Railwa co., 1959,

359 U.S. 227, 79 S. Ct. 664, 3 L. Ed. 2d 756;

Ruiz v. Shell Oil co., 5 Cir. 1969, 413 F.2d

310; Southern Shell Fish Co. v. Plaisance

5 cir. 1952, 196 F. 2d 312; Penns lvania R.

Co. v. Barlion, 6 Cir. 1949, 172 F. 2d 710;

Cimorelli v. New york Central Railroad, 6 Cir.

1945, 148 F. 2d 575. Ruiz v. Shell Oil Co.

supra, is the latest expression in this cir-

cuit on the so-called borrowed servant or em~

ployee pro hac vice relationship, which stems

from the early case of Standard Oil Co. v.

Anderson, 1909, 212 U.S. 215, 29 S.Ct. 252,

53 L. Ed. 480. All facts and circumstances in

each particular case must be taken into con-

sideration. See Norris, Law of Seamen 3rd.

Ed. vol. 2, §§ 670, 671.

In Baker v. Texas & Pacific R. CO., supra,

the Supreme Court phrased the problem thus:

"The Federal Employers' Liability

Act does not use the terms "em- Dat

ployee" and "employed" in any special Me

sense..., $0 that the familiar general Py

legal problems as to whose "employee" i

or “servant" a worker is at a given

time present themselves as matters

of federal law under the Act ... It

has been well said of the question that :

; "[eJach case must be decided on its

peculiar facts, and ordinarily no one

feature of the relationship is deter-

minative." Cimorelli v. New York C.R.

Co. (CA 6 Ohio) 148 F.2d 575, 577...

the question --- contains factual

elements such as to make it one for

the jury under appropriate instruc-

tions as to the various relevant fac-

tors under the law. See Restatement

Agency 2d 220, comment (c):;

comment (a)." Emphasis supplied.

59 U.S. at 228)

| In Ruiz v. Shell Oil Co., supra, speaking

_ of the right to control or direct the details

| Of the work, the court said;

"The factor of control is perhaps the

most universally accepted standard

for establishing an employer-employee

| relationship, and what constitutes

"control" has been the subject of

| much litigation ....

Although a formal agreement between

the two is not considered indis-

pensable to the borrowed-servant re-

lationship, the very terms "borrowed"

and "loaned" connote some type of

agreement, understanding, or meeting

of the minds between the borrower and

the lender. . . . ." (413 F.2d 310,

at 312, 313).

RE ne ea ON eee

Based upon these and other factors involved in

that case, the court concluded that there was

no employer-employee relationship between the

plaintiff and the defendant f t feasor such

‘as would préclude recovery.L

it Cee

Restatement ngeney ao? § 220, eater ce

to in Baker, W and Ruiz, supra sts the

criteria by which the relationship is to be 4

determined.12/ applying these criteria to 7

our facts, it is clear that control over the

work done by the Pelican crew was vested in

Union, through Mr. Ditch. Under the contract

between Union and Rowan, while on day work,

the entire drilling barge was subject to

Union's right to control the operation and to ©

prescribe procedures. Even Rowan's crew was

“used” by this company. The Pelican rousta-

bouts were mere laborers, and in this instance

while performing services aboard a vessel, the —

work was necessarily done subject to the right, ©

vested in the owner or operator, to specify

when, how and in what manner the services were

to be performed. Here, Union supplied its own

service barge and pipe, but used Rowan's drill-—

ing barge and its equipment to achieve the re-

sult desired by it. Little, if any, skill was

required for the operation, the employment was

for an indefinite length of time, the Pelican

crew was paid by the hour, through Pelican,

which in turn billed Union by the hour on a

per-man basis. Further, the work was in the

regular business of Union, in furtherance of

its oil drilling operation. We conclude that

plaintiff Dugas was, at the time of his injury

an employee of Union as that term is used in

the Federal Employers' Liability Act, 45 U.S.C.”

A. § 51, incorporated into the Jones Act, 46 :

U.S.C.A. § 688, under which he claims, as were

all of the other members of the Pelican crew. ;

Cf. Hanks v. The California Co., W.D. La. 1967, ©

280 F. Supp. 754; Hebert v. California Oil

AEE cea ARS Oa aw? + on

Company, W.D. La. 1967, 280 F.Supp.754; In re

Tidewater Oil ao E.D. La. 1970, 321 F.

Supp. | » and cases there cited.

The same considerations impell us to con-

clude that the Rowan crew, drilling barge and

equipment were merely rented to Union at the

time of this accident, according to the con-

tract between those parties. The Union-

Rowan contract stops just short of being a

bareboat or demise charter of Row9 No. l,

after contract depth was passed.

Having found that plaintiff was a borrow-

ed servant of the defendant Union; that he en-

joyed seaman's status, and that his injury

was caused by the negligence of Union and the

unseaworthiness of the Rowan No. 1 brought

about by that negligence, plaintiff should

have judgment against Union under the Jones

Act, and against Rowan for the unseaworthy

condition of the vessel owned by it.

Union argues, however, that the plain-

tiff's claim against it under the Jones Act

was brought too late and is time-barred, as

plaintiff's supplemental complaint against it

was not filed until October 30, 1967, more

than three years following the injury. .

Claussen v. Mene Grande Oil Co., 3 Cir. 1960,

275 F. 2d 108; Roth v. cox, 5 Cir 1954, 210

F. 2d 76; and Lowery v. Department of the

1957 AMC

Army, 158, are cited for this posi-

tion. In Claussen, the accident occurred in

1947, suit was filed in 1956, in Roth, the

death occurred in January, 1949, suit was

filed in October, 1952. Both cases involved

actions originaliy filed after the three-year

period of Title 45 U.S.C.A. § 56 had run.

Lowery is completely inapposite. Here, the ul-

timate facts upon which plaintiff predicated

his original and first amended complaints

against Union were not changed by the amendment

nd they were sufficient

of action under the Jone

Sy tay veh ee rT ty. ny 4 a Ss

iP, pate ES (5), RE Sveum of

alternative theory

ry ba the same facts. See

s Federal Practice, paragraph 15.15(3),

s 1025 et seq. The amendment

lates expressly what was readily

! pleadings and

the contractual arrangements between Union, .

Rowan and Pelican, available to these parties

but shrounded in mystery insofar as this plain-

tiff was concerned. :

What has been said applies to the rela-

tionship of plaintiff vis-a-vis defendants

Union and Rowan. It does not necessarily

follow that he did not remain an employee of

Pelican. see Porter v- t uis-San Franciscc

Railway co. 5 Cir. 9 F. , at

page , Where the court said:

“That a servant of one master may

under some circumstances be the ser-

vant of two masters at the same time

is recognized in Lavender v. Kurn,

327 U.S. 645, 66 S. Ct. 740, 90 L.

Ed. 916; Linstead v. Ches. & Ohio

Ry., 276 U.S. 28, 48 S. Ct. 241,

72 L. Ed. 453; Brailey v- Baltimore

and Ohio Railroad, D.C., 151 F.Supp.

431; Oliver v. Northern Pac. Ry. CO-;

(D.C. E. Wash. 1912) 196 F. 432."

See generally, Restatement 2d, Agency, §§

220, 226, 227 and comments; 56 C.J.S- Master

and Servant, § 24(2), PP- 37, 38. There is

nothing inconsistent in the relationship un~

der the facts of this case; Dugas actually

served the purposes of Union and Rowan as &

crew member of Rowan No. 1, and the business

Of Pelican, which was that of a labor broker

in this instance.

Before discussing quantum, we next con-

sider the various cross-claims and third-

party demands remaining in the case.

NION v. ROWA

Union seeks indemnity from Rowan under

the express provisions of the contract, viz;

"CONTRACTOR agrees to indemnify, de-

fend and save UNION harmless, includ-

ing its officers and employees, from

any and all loss, damage, injury,

liability or other causes of action,

and costs thereof, including...

Claims for injury .. . to {any

person] .. . except such loss am-

age, injur or Tiatiltes as is, by

ginal ; ag

the sole

udgment, proven to be caused

b ne ragence of UNION,"

(Emphasis Supplied,

' In view of our findings and conclusions on

the main demand, this cross-claim, by the very

_ terms of its contractual underpinnings, must

| self-destruct.

;

Rowan is cast in judgment to plaintiff as

_& joint tort feasor because of its failure to

_ provide a seaworthy vessel, a species of tort

liability without fault. it has mac2 no claims

against Union in this case. Union's cross-~

Claim is broad enough to support a claim for

contribution under Horton & Horton Inc. v,.

(T/S J. E. Dyer, 5 Cir. 970, 428 F. 2 9

cert. den. 1971, 400 u.s. 993. Judgment will

be rendered in favor of Union for one-half

the amount: of the award.

Like plaintiff’ s case, this cross-claim

is before us in installments. Union first

asserted a ao gel omrnammets against Pelican

the terms

hibit 1, page 2, which expresely requires

Pelican to indemnify union for injuries" . - -

to Contractor's [pelican's] employees, .- >

incident to or resulting from any and all

of the terms of this contract." Union ame

to claim against Pelican and its insurer under

the insuring agreements, which required Peli-

can to obtain an endorsement on its workmen's

compensation and employer's liability policy,

providing that a claim against Union by one

of Pelican's employees “based on the ‘Borrow~

ed Servant Doctrine’ will, for the purpose of

this insurance, be treated as a claim arising

under this policy against contractor and that

union and/or its underwriters will receive the

benefit of this insurance with respect to such

claims." Union Exhibit 1, paragraph 6A, f.

Alternatively, Union seeks damages from Ppeli-

can in the event such an endorsement was not

obtained. Insurance coverages listed in the

agreement include exposure under the Long-

shoremen's and Harbor workers Act, Death on

the High Seas Act, and Admiralty coverage,

including Transportation, Wages, Maintenance

and Cure.

Pelican did not procure the endorsement

demanded by paragraph 6A, f, but it did ob-

tain Endorsement #6, amending Coverage B

(Employer's Liability) to include operations

offshore in the Gulf of Mexico, and providing

that:

“Limits of Liability - Coverage B:

The words ‘damages because of

ae injury .. .' include...

inj sustained by employees of

the Seeuree arising out of and in

the course of their employment, "

The provisions demonstrate that it was

contemplated that at least some of the laborers

furnished by Pelican to union would be requir-

ed to work on vessels on navigable waters. As

to these Operations, the contract must be con-

sidered as maritime in nature. See Benedict

On Admiralty, 6 Ed. Vol. 1, §§ 60-65. In this

case particularly, Union requested and obtain-

ed men to work running pipe on Rowan No, l,

and, in the process, to remove the pipe from

its own service barge. It was, therefore, "a

Benedict, Supra, § 64, and is governed by

federal, not State, law. Transcontinental

Gas Pipelines Corp. y. Mobil Drillin Barge

"Of course, the construction of a

maritime contract is governed by

federal, not State, law. E.g.,

Halliburton Company v. Norton

302 F. 24 431, cert. den. 374’v.s.

829, 83 S. Ct. 1870, 10 L. Bd. 34

dismissed, 58 U.S. 801, 79 Ss. ct,

9, 3 L. Ed. 2a 49,"

The rule of this circuit, as expressed

- + ony em," e oa F

that unless the contract clearly and unequi~ °

vocally expresses the intention of the parties

that the indemnitor, in this case Pelican, ~

will indemnify. the indemnitee against the con-

sequences Of his own negligence, such an in-

tent will not be read into the agreement or

otherwise presumed. The contract need not

contain the talismanic words "'even though

caused, occasioned or contributed to by: the

negligence, sole or concurrent', of the In-

demnitee, or like expressions." Transcon”

tinental Pipeline Co. v. Mobil pritling Barge,

supra, Unit States v. Seckinger 5 Cir.

1969, 408 F. 20 146, reversed on other grounds,

397 U.S. 203, 90 S. Ct. 80, 25 L. Ed. 2d 224,

1970; In re Tidewater Oil Co. B-Ba /*- 1970,

In White v. California Company, W.D. La.

1965, 260 F. Supp- 586, aff sub. nom;

le v. California Co., 5 Cir. 1966, 369 F.

2a 699, the Indemnity provision of the con~

tract was almost identical to the one before

us. Our learned brother, Judge Edwin F. Hun-

ter, Jr., allowed California's claim for in-

demnity to the extent of attorney's fees and

costs incurred to date of compromise of plain-

tiff's claim where the indemnitor refused a

defense. The facts do not disclose whether

or not the indemnitee was at fault in that

case.

Despaux v.- California Company» ” a

E.D. La. 68, F. Supp. 558, nvolved a

similar provision. Judge Rubin denied a

claim for attorney's fees, where the indemni-

tor had agreed to accept the defense, but re-

fused liability on grounds of unseaworthi-

ness if such was found. This court granted

indemnity under a much broader clause in

47 -

Seneca v. satpiornia Oil foes W-D. La, 1964,..

F. Supp. » where was apparent and.

known to the indemnitor at the time suit was

filed that the Claim was groundless as to. the

In this case, Pelican's obligation was to

furnish laborers to Union. The crew sent out

to Rowan No. 1 was carried on its payroll, and

terests of Pelican as well as Union. As we

Stated in Hanks vy. California Compan W.D.

La. 1967, F. Supp. » these service or-

ganizations "provide valuable and convenient

able to commence Operations when and where

desired on short notice,"

In the Hanks case, plaintiff was a chief

steward for Universal Services, a catering

concern aboard a California tender. We found

principal, California Company, and the duty

: AS we have pointed Out, Pelican dealt

with unskilled laborers, Dugas was not a

Specialist and neither he nor his foreman

controlled the manner in which their work was

to be done.

even if

rom Union's: neg igence.-

we note that as to damages

| t. Pelican'’s liabi-

mages resulting from its

read in connection

w the whole of paragraph 6 of the contract,

titled "Indemnification and Insurance", gives

substance to this interpretation. in fact,

Pelican did insure itself against just such

nt # 6 of

addition, attempted to engraft into this case

a suit against its insurance agent for failure

to obtain the specific endorsement called for

by paragraph 6A, f of this agreement.

ve}

°o

While not necessary to this decision, the

insuring clauses would limit Pelican's liabi-

lity to the limits of the insurance required,

$100,000.00 for each person injured and

$300,000.00 for any one accident. Dickerson

v. Continental Oil ny, 5 Cir. P

F. 5 at ;

Judgment will be entered in favor of union

against Pelican for one-half of the amount of

the award hereinafter made, plus attorney's

fees and costs of defense. The Tri-State

policy does not provide coverage to Union;

consequently, Union's cross-claim against it

is denied.

Ve. Ve RIG |

On October 19, 1967, Rowan filed a cross+

Claim against Pelican bottomed on two theories,

first that any liability that might be visited

upon it because of plaintiff's injuries would

be vicarious, caused by the active negligence

Of Pelican's employees, and it should be in-

demnified by Pelican on a tort theory of in-

demnity as in Tri-State oil Tool Industrie

Inc. v. Delta Marine Drillin Co., 5 Cir.

1969, 410 F. od 178 and, secondly, that it

is a beneficiary of any rights Union might

have under its contract with Pelican.

Shortly thereafter, Pelican and Tri-

State filed an identifical cross-claim against

Rowan.

Rowan did not provide a seaworthy vessel

to the members of the crew Of Rowan No. 1.

This is a nondelegable duty owed by the ship-

Owner. It chose, in its contract with Union,

to permit Union to man its vessel after con-

tract depth was reached, placing its own pri-

mary employees under the control of Union,

as a result of which the drilling barge was

undermanned for this particular operation

and hence unseaworthy. By recognizing the

relationship between it and Union for what

it was and providing for a demise or bareboat

charter to the latter while On day rate, it

could have avoided this responsibility, but

it did not do so. Pelican was not at fault

in this instance, so recovery on the basis

of tort indemnity as in Tri-State, supra,

is not available to Rowan.

Nor can Rowan claim the benefit of the

indemni

indemnity and insurance were were for the

benefit and protection of Union, intended to

make a source of labor available to it on

employer.

Union's benefit only. Rowan's cross-claim

against Pelican and Tri-State is, accordingly,

denied.

On the other hand, Pelican's liability to |

Union is not in tort, but is contractual. ,

Rowan has breached no duty owed to Pelican,

its responsibility to plaintiff is for the

unseaworthiness of its vessel. Pelican has

suffered no loss caused by Rowan; on the con-

trary, it benefits from Rowan's absolute lia-

bility to Dugas as shipowner to the extent

that Union's recovery against it is reduced

by one-half of the amount of the award made

to Dugas.

Tri-State

jon that Pelican dia not contract to perform

any specialized 6peration aboard Rowan No- 1

it did not take control of any. specific area

of the ship or any specific operational func

tion thereof. It merely furnished a labor .

crew: to Union to use at its pleasure and un='

der its direction. under such circumstances

we decline to apply the doctrine of Ryan

‘cd 232,100'L. Bd. 133; Crumady v.

ick 358° UB. ra

oe Eee. 3, as exteiided

ffst

The cross-claims of Pelican and

against Rowan will also be denied.

PELICAN vs. MARKET

Pelican has filed a third-party demand

against Market Insurance Company, its public

liability insurance carrier, on grounds that

Dugas was the borrowed servant of Union at

the time of his injury and, therefore, not

within the exclusionary clauses of the policy

which deny coverage for injuries to employees

of the insured. We find this demand to be

without merit. As pointed out above, Dugas

continued in Pelican's general employ under

the facts of this case, and the exclusionary

Clauses of Market's policy do have applica-

tion here. we regard the contract of insur-

ance as the law between these parties, and

deny this cross-claim.

QUANTUM

accident. Plaintiff was treated by Dr. Lopez

Of Morgan City, Louisiana, on the day of the

accident, for fracture of the left ankle and

the left leg, just above the ankle. The

breaks were serious. His leg was placed in

ville, where he lived, on the same day. He

was sedated for the trip. Thereafter he con-

sulted Dr. Larry A. Giffen, an Osteopathic

Of back pain, Dr. Giffen had x-rays made of

the lower back. These showed a narrowing of

the interspaces at the level of L4-L5, and

Straightening of the lordotic curve. “He

treated him with muscle relaxants and ultra-

SOnic vibrations. He Saw plaintiff again on

Wee

, by plaintiff. He also expressed the

view that the leg cast had been on too long’

and should be removed. pr. Giffen removed

the cast and x-rays of the leg and ankie —

showed evidence of healing. There was some

atrophy in the left leg and some residual

deformity in the ankle due to the cast having

been. on over so long a period of time. Dr.

not available to testify at the trial. Dr.

Giffen, however, was confident that plaintiff

would regain the use of his leg and ankle and

of the cast on plaintiff's leg. He did not

have the benefit of a myelogram, and his: find-

ings in regard to plaintiff's back condition

are not conclusive. He had additional x-rays

of the back made in November, 1967, but-had

not seen them or received any report in regard

thereto at the time his deposition was taken.

Dr. Thomas Campanella, an orthopedist of

Baton Rouge, saw Dugas on three occasions, the

first being in July, 1967, on September “26,

1967, and again in April, 1970. His opinion

was that the ankle and leg had healed, and

that there was a fifteen per cent disability

of the leg, or a five per cent disability of

the man as a whole. He found no disabling

back condition. His opinion as to plaintiff's

$3:

At the time of this accident in 1964

Plaintiff was twenty-nine years of age and was

ment for him in Dallas at a job that merely

required him to Push a button. He worked in

this position for @ year, and was employed at

A report prepared by Mr. Donald gE. Vaughn,

an actuary of Baton Rouge, calculates the pre-

sent value of Plaintiff's normal working in-

vionst, 7t 4% Per annum, at $151,397°00. op-

Moers £ under the facts of this case, the

n reached by mr. Vaughn is wholly

inapplicable.

The evidence shows that plaintiff suf-

fered a great deal of pain from the time of

his accident until he was sedated upon reach-

ing the hospital in Morgan City. Thereafter,

leg injuries. Furthermore, we find that

Slaintiff suffered some pain in his back dur-

ing the period of his convalescence and treat- a

rent by Dr. Giffen, but that the evidence does i

roximately caused by the accident, or that 4

t is permanent. Plaintiff also introduced i

ned largely

» Dugas. On the other

aS erty, also a psychia~

Op: t. plaintiff was. not suffering from

Ps - hiatric problem

~¥

ep ec eb mer of the parties. We agree

with Dr. - 408

“we find that the total sum of forty, thou-

sand ($40,000.00) dollars will amply and fair-

ly compensate the plaintiff for physical and

mental pain and suffering, inconvenience and

anxiety, past and future, and for loss of

future wages resulting from a diminution of

his earning power, if any, caused by this

accident, as well.as past and future medical

expenses resulting from this accident. This

lost wages during the year he was incapaci-.

tated, results in a total of forty-five

($45,000.00) thousand dollars, which recovery

is allowed. |

It was stipulated that the amount of

attorneys’ fees that might be owed under the

various claims for indemnity in this lawsuit

would be fixed by the court at a later date.

Accordingly, we will not decide the amount .

owed to Union by Pelican on this score at

this time.

A dec

DE CHT.

ree will be entered in keeping with

the foregoing

Lafayette, toussiana, » March 22nd, 1972.

8/R. J. Putnam

United States District Judge

Footnotes 1

~16 on pages 56-62

ABS yg e ah TES PPR Se pet ty

dk gd be yaaa OS oh DLW ARTE °

ry ‘Ae 5 ) » ke , ¢** : ° P my oo ea P

etrial stipulation, paragraph ‘S(b).

M has * "hi rae om : , . ei, rake a rs

willies Seville, rig superintendent for Rowan.

The drilling contract Union Exhibit 2, page

2, peragrap ne 33 3.4, sets out the respec~

tive ob igations ‘of Union and Rowan while on

a day tate basis, as follows: —

"3.3 Day Work Basis Operations: All

rations conducted after reaching the. speci-~

fied contract footage depth shall be on a day

work basis, except when Paragraph 4.2 applies

and CONTRACTOR shall be paid for such opera~

tions at the applicable day work rate speci-

fied below. If UNION so desires, CONTRACTOR

agrees to continue operations below. contract

footage depth. For all work done on day work

basis UNION shall furnish the items listed in

Exhibit "A" Paragraph 4.

3.4 Day Work Rates: When UNION shall

use CONTRACTOR'S crew, drilling machinery, and

drilling equipment in the performance of work

necessary for drilling below contract depth,

coring, logging, perforating acidizing, set~-

ting liners, swabbing, installing connections

and other items of work and labor, commonly

known as “day work", it is agreed;

(a). Save for. CONTRACTOR'S responsibility

to maintain his equipment and to operate in a

workmanlike manner, procedures under "Day Work"

shall be prescribed by UNION.

(b) While operations are being conducted

on a day work basis and expressly subject to

provisions of Paragraph 3.4(c) hereof, UNION

agrees to pay CONTRACTOR the cash value as es-

tablished by joint appraisal, of all under-

ground equipment, such as drill pipe, drill

CONTRACTOR shall Of tha hot rnte

damage to or loss of the hole while on

work basis. Any liability on the part of

UNION under the terms hereof shall be to the

while operations are being conducted on a day

work basis, for losses Occurring to equip-

ment, and for fishing expense or damage to

the hole, as a result of négligence of con-

TRACTOR, its employees, agents or represent-

atives, or their failure to properly carry

out orders of UNION'S representatives as

agreed by both parties.

(4) CONTRACTOR is to have a full drill-

ing crew of 6 men working at all times when

receiving pay at the per diem rate stipulated,

If the drilling crew numbers more than 5 men,

for each man the crew is short down to the 5

man crew level, $4.50 per hour will be deduct-

ed from the CONTRACTOR'S charges. For a short-

age of men below the 5 man crew level, 1/5 of

the per diem rate will be deducted for each

man short. It is further understood that

payment on per diem basis under this clause

does not in any way release CONTRACTOR from

the obligations set Out in Paragraph 5 here-

of, or any other responsibilities in connec-

tion with the drilling of the hole,

(€) UNION shall reimburse CONTRACTOR

for actual cost of any additional labor fur-

nished at request of UNION.

(f) While Operations are being conduct-

ed on a day work basis, UNION shall have the

. 2 4

." yak Ao oti iv

3/ Union S@xhibit 2, ‘Exhibit A attached thereto,

paar e ne St at Tug and barge were

‘to’ ed’ by and at the expense of union,

whether or not on day rate.

4/ The contract called for Rowan to furnish

‘s" @rill pipe to the contract depth, and

to furnish transportation to haul and unload

rig supplies onto the service barge, but speci-

fied that Union was to furnish any other drill

Exhibit A attached thereto, page 2; paragraphs

3.1, 3.15; page 3, a cogs 4.23. This was

a “gpecial string of drill pipe” under the

last cited contract provision.

5/ union Exhibit 1.

6/ see photographs Rowan No. 5 and No. 6.

1/ see exhibits Rowan I and II. Crowson,

Rowan's derrick man and hoist operator,

estimated time to put cable back on turntable

at 10 minutes; Williams, 15 minutes; Beville,

toolpusher, one hour; Adams, driller, 30 to

35 minutes. Crowson also testified that as

derrick man he would ordinarily operate the

hoist and had used it frequently. He used

the automatic controls, and when the hoist

lever was released by the operator it would

automatically return to neutral position.

Williams, the motorman, also operated the

hoist. He testified that if controls were in

neutral, the load would be held suspended,

but the brakes should be set to prevent the

load from “bleeding off". The brakes were

manually operated.

8/ Seas Shipping co, v. Sieracki, 1946. 328 v.

oY 85, 66 S. Ct. 872, 90 L. Bd. 1099.”

9/ Compare: Whisenant v. Brewster-Bartel off

shore Company, et al, 5 Cir. 1971, 446 F. 2

394,

10/ See also: Butler v. Whiteman 1958, 356 vu.

271, 78 S. Ct. 734, 2 L. Ed 34 754? wile

liams v.

Millwhite Mud Sales Co., E.D. La. 196

197 F. Supp. 730 j

1l/ Ward v. Atlantic Coast Line R. Co,

supra

emphasizes that the agreement between the

parties themselves is not conclusive in the

following language:

“But neither the railroads communication

of its concept of petitioner's status to

petitioner, nor his acquiscence therein,

if shown, is determinative of the issue.

Cf. Cimonelli v. new York Cent. R. Co.

(CA 6 Ohio) 148 F, 24 575, 578. The

parties’ characterization is but one

factor to be considered among others,

See Restatement, Agency 2d § 220 (2)

(i), and the issue is One for deter-

mination by the jury on the basis of

all the relevant factors..." (362

U.S. at 399,400)

12/ "g§ 220. Definition of Servant.

(2) In determining whether one acting

for another is a

contractor, the f

among others, are considered:

(a) the extent of control which,

by the agreement, the master

960 .

ae of Seay exercise over the details —

“20. O£ the work;

(bp), whether or not the one employed

"gs engaged’ in a distinct occupa-

tion or business; ¥

(ce) the kind of occupation, with re-

-° €erence to whether, in the local-

-ity, the work is usually done un-

der the direction of the employ-

er or by a specialist without .

supervision;

(a) the skill required in the parti-

cular occupation;

(e) whether the employer or the work-

man supplies the instrumentali-

ties, tools, and the place of

work for the person doing the

work ; :

(£) the length of time for which the

person is employed; .

(g) the method of payment, whether

by the time or by the job;

(h). whether or not the work is a

part of the regular business of

. the employer;

(i) whether or not the parties be-

lieve they are creating the re-

lation of master and servant ;

and

(3) whether the principal is or is

not in business."

13/ Note 2, supra, Paragraph 3.4, Union Ex-

hibit 2. This paragraph and other provi-

sions of the contract leave little doubt in our

mind that while on day work, Rowan merely

rented its equipment and crew to Union on a

daily basis. The control shifted to Union

after contract depth was reached, and Rowan's

status as an independent contractor, if it

ever existed, terminated. See: The Legal

Position of the Drilling Contractor, lst oil

& Gas Inst. 183, (SW Legal Fdn., Mathew Ben-

der, 1949)

14/ Only the fact that Rowan remained re-

sponsible for maintenance of its equip-

ment under the contract, precludes this find-

rilo, 1962, 369 U.S. 698, 82 S.ct. 1095, 8L

Ed 2d 205, summarized the requirements of a

bareboat charter as follows;

"TO create a demise the owner of the

vessel must completely and exclusive-

ly relinquish "possession, command ,

and navigation" thereof to the de-

misee. (Citing authorities.) «It is

therefore tantamount to, though just

short of, an Outright transfer of

Ownership. However , anything short

Of such a complete transfer is a time

Or _ voyage charter party or not a char-

Texas, Inc., 5 Cir. 1969, 412 F. 24 1011, at

1039; Gorsalitz vy. Olin Mathieson Chemical

Corp., 5 Cir. 1970, 429 F. 24 1033, at 1049;

Dickerson y. Continental Oil Co., 5 Cir.

1971, 449 F, 24 1209, at 1221; and cases

cited therein. But see: Chaney v. Travelers

ee a Company, 1971, 259 La. 1, 249 So.

16/ The insuring agreements would also remove

the contract from the application of the

rule of Bisso yv. Inland Waterways Company ,

1955, 349 u.s. 85, 75 S. Ct. 629, 99 L. Ed.

911; Dixilyn Drilling Corp. v. Crescent

Towing and Salvage Co., 1963, 372 u.s. 697,

ar 2

(63S ict. 967, 10 L. BA. 24 78, and California

Co. vs Tumonville, 5 Cir. 1964, 327 F. 2d

988, under the later decisions of Fluor Wes-

tern, Inc. v. G. & H Offshore Towing Co., 5

Cir. 1971, 447 F. 2d 35, cert. den. 40 L.W.

3304 (1972); Slade, Inc. v. Samson Towing

Co., B.D. Tex. 1976, 327 F. Supp. 555. Cf.

also Alcoa Steamship Co., Inc. V- Charles

Ferran & CO., Inc., et ai, 5 Cir. 1967, 383

F. 2d 46, cert. den. 1968, 393 U.S. 836. We

do not reach this question as there is no

showing of the requisite disparity of bar-

gaining power between union and Pelican in

the record before us.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.