Reply Brief — Short v. Edison Chouest Offshore, Inc.

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Bupreme Court, U.S,

FILED

: | AUG 1 1994

OFFICE OF THE CLERK

NO. 93-2034

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

ANTHONY SHORT

Petitioner

EDISON CHOUEST OFFSHORE, INC. ET AL

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

PETITIONER’S REPLY TO.

BRIEF IN OPPOSITION

SIDNEY H. SCHELL

Counsel of Record for Petitioner

3662 Dauphin Street

Mobile, Alabama 36608

(205) 344-4721

OF COUNSEL: REAMS,PHILIPS,BROOKS,

SCHELL,GASTON & HUDSON, P.C.

Argument:

TABLE OF CONTENTS

1. The Issue was Presented

Ee” ne

2. What Standard of Proof Was

Required by the Court Below.

3. The Defect.......

4. Summary..........

Appendix A

BONEAR Di scccsccnsavcnece

Appendix C

Appendix D.

Appendix E

Page

TABLE OF AUTHORITIES

Davis v. Odeco, Inc.,

18 F.3rd 1237 (5th Cir.

BE 3

ARGUMENT

he The Issue Was Presented Below

Respondent argues that Petitioner’s

attorney failed to properly express the

questions presented or to establish that

the questions presented were raised in the

lower court. The very issue presented

here, i.e. that the Courts of Alabama

failed in this case to apply proper

maritime law principles was presented and

argued below. Attached hereto as Exhibit

A, are pages 31 through the middle of page

46 of the Appellant’s brief filed with the

Alabama Supreme Court wherein such argument

was advanced.

2. What Standard of Proof Was Required By

the Court Below

Respondents argue that Petitioner is

misrepresenting to this court the ruling of

the court below.’ Respondents take the

position that the law applied by the court

below did not require Mr. Short to identify

the single chemical substance which caused

or triggered his occupational asthma.

Respondents contend the courts below only

required petitioner to make a showing of

evidence of a defect.

If the Alabama trial court and

Supreme Court did not require Mr. Short to

prove which specific chemical compound

triggered his occupational asthma, then why

was the motion for summary’ judgment

granted? Large quantities of breathable

chemicals in areas of a vessel where the

crew works without’ proper respiratory

protection is a defect. Davis v. Odeco,

‘The entire opinion of the court

below was copied as Appendix A to Petition

for Writ of Certiorari.

Inc., 18 F.3rd 1237 (5th Cir. 1994). Where

the exposure to such chemical dusts causes

injury, there is a cause of action.

What did the court require Mr. Short

to prove? Paragraphs 1 through 4 of its

Findings of Fact acknowledge that Mr. Short

was a seaman who as a result of 15 years of

exposure tc chemicals aboard respondents’

vessels developed occupational asthma.?

The court at that point could have found

that there was sufficient evidence for the

case to go to the jury under the Jones Act

and the General Maritime law.

Notwithstanding the above, the court

then stated in paragraph 5 of the Findings

of Fact:

‘The very diagnosis of "occupational

asthma" is a diagnosis that the asthma is

attributable to conditions in the

workplace.

"Significantly, neither the plaintiff

nor his physician can identify any

substance aboard defendants’ vessels

which caused this condition. Neither

can the plaintiff or his physician

identify the time or place of the

plaintiff’s exposure to any such un-

identified substance. In fact, Dr.

Lorino stated in his deposition that

he did not ‘know of any specific

substances or names that the plaintiff

was exposed to.’"

The court in paragraph 5 of its

Conclusions of Law stated:

"the plaintiff is unable to identify

any substance aboard any of defen-

dants’ vessels as the causative agent

of his asthma and is thus unable to

identity the instrumentality which

caused his alleged injury."

The door was then shut on Mr. Short’s

case in paragraphs 6 and 7 of the court’s

Conclusions of Law when the court held that

since he could not identify the substance

that caused his occupational asthma, he

necessarily could not show a defect and

thus he had no remedy.

Chemical dusts, etc. in a workplace

with no suitable respiratory protection

provided for seamen is certainly a defect

that renders a vessel unseaworthy. Since

the court found such exposure and found

that such exposure caused or contributed to

Mr. Short’s asthma, then the only

explanation for the ruling is that the

Alabama Courts erroneously concluded that

Mr. Short had to identify a specific

substance as the causative agent.

3. The Defect

During his 15 year employment with

respondents, Mr. Short was exposed to heavy

concentrations of various chemical dusts,

fumes and mists (including those listed in

Mr. Short’s affidavit, attached hereto as

Exhibit B) all without proper respiratory

protection. That exposure, according to his

treating physician was the cause of his

occupational asthma.

The question presented here and the

question presented below is whether the

above uncontradicted facts state a cause of

action under the General Maritime law or

the Jones Act.

Why are not large quantities of

chemical dust "a substance." Why are the

dozen or more specific chemicals listed in

Mr. Short’s affidavit not “identified

substances" to which he was exposed. Why

was the affidavit of Safety Expert Mallory

J. Lessard marked as Exhibit C_ not

considered or commented on. Why did the

court disregard the opinion of treating

physician Dr. Gaeton Lorino, (affidavit

attached hereto as Exhibit D)? who stated

* The affidavit of Dr. Gaeton R.

Lorino, as well as his deposition

testimony, was before the Supreme Court of

Alabama, as shown by the court’s order

(attached hereto as Exhibit E) of February

4, 1994, denying respondents’ motion to

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in deposition testimony that exposure to

the various chemical dusts, mists and fumes

(substances) during Mr. Short’s employment

was to a reasonable degree of medical

certainty the cause of his asthma.

The reason the courts below did not

consider the volume of evidence showing

chemical exposure with no_ respiratory

protection was that the courts applied

improper law to this case, i.e. products

liability law and a legal requirement that

Mr. Short must identify the chemical that

triggered his asthma.

The exposure to the large quantities

of chemicals without proper respiratory

protection which resulted in occupational

asthma, all as set out above, created a

jury question under the General Maritime

strike such affidavit.

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law and/or the Jones Act. Certiorari

should be granted in order to consider if

the unique law of Alabama which resulted in

summary judgment in this case is to be

allowed to stand as the maritime law.

applicable to seamen’s cases brought in

Alabama courts.

4. Summary

The requirement of the Alabama Courts

that a seaman exposed for 15 years to large

quantities of known and unknown chemicals

without respiratory protection, which

exposure caused ve occupational asthma,

must identify a single specific substance,

time, and piace, is a departure from

recognized Admiralty law principles. All

Mr. Short needed to do was to show that the

chemicals to which he was exposed without

proper respiratory protection caused or

contributed in some manner to his illness.

The alternative application of product

liability law by the court below is

improper, in that there is a large viable

body of maritime law to apply. Product

liability law is founded in contract and

does not consider the well-established

Admiralty law principle that a vessel owner

takes his crewmen as he finds them; that

the crewman does not assume the risk of

exposure to various chemicals; and that

notice or knowledge is immaterial when

there is a condition onboard which causes

injury to a seaman.

In view of all of the above, this

Court should accept certiorari, and if this

Court concludes that the courts of Alabama

were in error in requiring Mr. Short to

prove an impossibility and in applying

product liability law to Mr. Short’s

General Maritime law and Jones Act case,

then the case should be reversed and

remanded, with instructions that the

affidavits, depositions and documents

before the court below created jury

questions which require a jury trial with

the jury to be instructed as to proper and

applicable law for we ener case.

pv e/ OH

bl RK. S uP

3662 Dauphin Street

Mobile, Alabama 36608

(205) 344-4721

OF COUNSEL

REAMS , PHILIPS, BROOKS,SCHELL,

GASTON & HUDSON, P. C.

P. O. BOX 8158

MOBILE, ALABAMA 36608

APPENDIX A

BRIEF OF APPELLANT ANTHONY SHORT

IN THE SUPREME COURT OF THE

STATE OF ALABAMA, PAGES 31 THROUGH 46

SEAWORTHINESS REMEDY

The Court below apparently ignored the

fact that Mr. Short is a seaman with a

cause of action for unseaworthiness. There

was a factual question as to whether the

ehemicals that he breathed were harmless or

harmful. There was substantial evidence

that they were harmful. Dr. Lorino

testified that the various chemicals caused

Mr. Short’s illness. That testimony of

itself is sufficient to go to the jury on

Causation and unseaworthiness. There was

no evidence tendered by Edison Chouest that

the chemicals breathed by Tony Short were

in fact harmless or that they did not cause

the occupational asthma. The question of

whether the chemicals were harmful or

inline ieee

ie nena

harmless, or did or did not cause this

illness created a factual issue as to

unseawothiness.

The defendants owed to Mr. Short an

absolute and continuing obligation to

provide him with a safe place to work.

Mahnich v. Southern Steamship Co., 321 U.

S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944).

The vessels on which he worked were

unseaworthy in that during his employment

he was exposed to noxious chemical dusts,

vapors, fumes, etc. The vessels did not

have aboard for his use proper respiratory

protective devices. The vessels did not

have vacuum cleaners or sweepers for the

tanks which required the tanks to be broom

swept, thus exacerbating the dust, fume and

vapor situation.

The liability of the Edison Chouest

companies under the doctrine of unseaworth-

iness does not rest upon fault’ or

negligence. Johnson v. Offshore Express,

Inc., 845 F.2d 1347 (5th Cir. 1988);

Hussein v. Isthmian Lines, Inc., 405 Fed.2d

946 (5th Cir. 1968). Unseaworthiness is a

condition and how that condition came into

being - whether by negligence or otherwise

- is quite irrelevant to the owner’s

liability for personal injuries resulting

from it. Usner v. lLuckenbach Overseas

Corp., 400 U.S. 494, 91 S.Ct. 514, 27

L.Ed.2d 562 (1970). it does not matter

whether defendants knew or should have

known that the chemical dusts to which they

exposed Mr. Short were harmless or harmful

- actual knowledge is not a factor. The

seaworthiness concept shifts the risk that

the dust which Mr. Short might breathe

might trigger asthma from the seaman, Mr.

Short, to the shipowners, the Edison

os eect

Chouest companies. Waldron _v. Moore-

McCormack Lines, Inc., 368 U.S. 724, 728

(1966).

"The warranty of seaworthiness in

personal injury cases’ essentially

depends upon neither common law tort

nor contract concepts. Demas v. LeHigh

Valley Railroad, 234 Fed.2d 151, 153

(2nd Cir. i956). Instead, while the

seaworthiness doctrine is comprised of

both tort and contract elements, it is

a creature of twentieth-century

judicial policy concerning risk

distribution in the shipping industry.

Delome_v. Union Barge Line Company,

444 Fed.2d 225 (5th Cir. 1971). The

seaworthiness warranty is essentially

a species of liability without fault."

Delome, at 229.

Under the unseaworthiness cause of

action the shipowner is required to have in

place safety procedures to require use of

necessary protective devices. Edison

Chouest had no such procedures. Weeks v.

Alonzo Cothron, Inc., 466 F.2d 578 (5th

Cir. 1972). The use of defective or

inadequate equipment or gear not reasonably

suited for the purposes for which it was

used, such as the improper dust mask furn-

ished to plaintiff, rendered vessels upon

which plaintiff worked unseaworthy. Usher

v. Luckenbach Overseas Corp., 400 U.S. 494,

491 S.Ct. 514, 517-18, 27 L.Ed.2d 562, 567

(1971). The presence of chemical dust and

fumes in the vessels’ working area makes

the vessel unseaworthy. Smith v. Ithaca

Corporation, 612 Fed. 2d 215 (5th Cir.

1980). Edison Chouest was thus required to

furnish a vessel with work areas free from

the dust which caused the illness to the

plaintiff. Having presented to the court

substantial factual evidence that Chouest

did not do so, the question of general

maritime law liability was for the jury.

TONY SHORT’S JONES ACT REMEDY

The Jones Act is remedial and welfare

legislation which created rights to the

f See

seaman for damages arising from maritime

torts and was intended to give protection

to the seaman and those dependent upon his

earnings. Cortes v. Baltimore Insular Line,

Inc., 287 U.S. 367, 375, 77 L.Ed. 368, 373,

53 S.Ct. 173 (1932). The Jones Act remedy

is quite broad and Jones Act negligence as

well as unseaworthiness for that matter can

be a per se result of regulatory viola-

tions of the type set out in Mr. Lessard’s

affidavit (App. 2). Smith v. Transworld

Drilling Company, 772 F.2d 157 (5th Cir.

1985). The safe place to work concept is

not only a part of the unseawothiness

remedy but the vessel owner is deemed

negligent if he fails to exercise

reasonable care to maintain a reasonably

safe work environment. Ober v. Penrod

Drilling Co., 726 Fed.2d 1035 (5th Lx.

1984); Ceja v. Mike Hooks, Inc., 690 Fed.2d

1191 (5th Cir. 1982). There was evidence

from which a jury could have concluded that

a chemical dust laden atmosphere was not a

reasonably safe place to work.

Under the Jones Act the defendant

Edison Chouest companies must bear the

responsibility for any negligence, however

slightly it played a part in producing

plaintiff’s injury. Landry v. Oceanic

Contractors, Inc., 731 Fed.2d 299, 302 (5th

Cir. 1984).

"Under the Jones Act cases a jury

is entitled to make permissible

inferences even from unexplained

events. Martin v. John W. Stone

Oil Distributing Co., 819 Fed.2d

547, 549 (5th Cir. 1987).

In addition to all of the above, the

Jones Act is to be liberally construed in

favor of the injured seaman who is a ward

of the court with a featherweight burden of

proof. Spinks v. Chevon Oil Co., 507 F.2d

216. (St. Cir. 1975).

The facts as submitted to the Trial

Court in opposition to the motion for

summary judgment were not only sufficient

to defeat such motion, but were suffic-

ient, particularly under the liberal

construction required, to create a prima

facie case for plaintiff Tony Short on his

Jones Act and unseaworthiness remedy. The

court was in error in concluding that

plaintiff could not offer any evidence in

support of either such remedy and the court

was in error in granting the motion for

summary judgment.

CAUSAL CONNECTION REQUIREMENTS

The Court Below, in spite of the

medical testimony to the contrary (R.450,

451), concluded that Tony Short had to

bring to the court a single specific

chemical as being the undisputed cause of

his asthma (R.524). Not only did Dr.

Lorino state that such a burden is a

medical impossibility, but he stated in his

deposition that such was not required for

the diagnosis nor for the finding that the

occupational asthma was a result of ship-

board exposure (R. 448, 450-451). There

was no medical evidence to the contrary.

Even had there been medical testimony to

the contrary it would have only created a

factual issue for resolution by the jury.

Even testimony of a mere possibility

of a causal relationship between an injury

and an unseaworthy condition or Jones Act

negligence would have been sufficient for

the case to go to the jury. The very

definition of "occupational asthma" as

being a form of asthma caused by exposure

on the job together with the diagnosis of

such creates a factual question (R. 436).

In Sentilles _ v. Inter-Caribbean Shipping

Corp., 361 U.S. 107, 4 L.Ed.2d 142, 80

S.Ct. 173 (1959) the court concluded that

where the plaintiff claimed that his

preexisting lung condition had been

aggravated as a result of exposure onboard

and while none of three medical witnesses

were willing to definitely attribute the

aggravation of plaintiff’s illness to the

incident in question, they each indicated

that it was a possible or probable cause.

The court upheld the jury verdict, stating

that:

"The jury’s power to draw the

inference that the aggravation of

petitioner’s tubercular condi-

tion, evident so shortly after

the accident, was in fact caused

by that accident, was not im-

paired by the failure of any

medical witness to testify that

it was in fact the cause***., The

members of the jury, not the

medical witnesses, were sworn to

make a legal determination of the

question of causation. They were

entitled to take all circum-

stances, including the medical

testimony into consideration."

Id 361 U.S. at 109.

In a Jones Act case the plaintiff need

not make a showing that the employer’s

negligence was the sole cause; there must

only be some showing that a causal rela-

tionship existed. Mayhew v. Bell Steamship

Co., 917 Fed.2d 961 (6th Cir. 1990). It is

not at all necessary that a single positive

causative agent be identified in this case.

The fact that a doctor may find that Mr.

Short’s condition is idiopathic, that is,

he cannot point to a specific causative

agent, is not controlling. Harrison v.

Flota Mercante, 577 Fed.2d 968 (5th Cir.

1978). Notwithstanding that the case law

says Mr. Short did not have to prove which

Single chemical triggered his asthma (an

impossible buraen), he did tender testimony

boats (R.454-455).

A well known text states:

"It does not seem to be over-

stating *** much, if at all, to

conclude that the plaintiff makes

his prima facie case by showing

that he was injured and that the

injury could have been caused by

the negligence of the shipowner

(in furnishing defective equip-

ment) ***, Apparently, the only

way in which a defendant can win

a directed verdict is to estab-

lish by indisputable and uncon-

troverted evidence both the cause

of the accident and its own

freedom from negligence." The

Law of Admiralty, 2d ed., Gilmore

& Black, p. 378.

by Dr. Lorino that to a reasonable degree

of medical certainty Tony Short’s occupa-

tional asthma is a result of chemical dust

exposure on the Edison Chouest companies’

There was sufficient evidence of

to a jury.

causation to have allowed that issue to go

THIS IS NOT A MANUFACTURER’S LIABILITY

CASE.

The court concluded in = granting

summary judgment that Tony Short could not

recover because of his unusual suscepti-

bility to asthma. That may be a valid

point of discussion in a products liability

case, but in a tort case or unseaworthiness

case or Jones Act case, a tortfeasor takes

his victim as he finds him:

"If the victim is highly vulner-

able, that is the tortfeasor’s

bad luck; there is no discount to

average damages. This is a thor-

oughly sensible principle, by the

way. If a tortfeasor never had

to pay more than the average

victim’s damages, victims as a

class would be systematically

undercompensated and tortfeasors

as a class therefore systemat-

ically underdeterred, because

victims with above average

injuries would get their damages

cut, while victims with below

average injuries would not get an

offsetting increase." Lancaster

v. Norfolk & Western Railroad

Co., 773 F.2d 807, 822 (7th Cir.

1985).

The Lancaster case is an FELA case,

which act was incorporated by reference

into the Jones Act, U.S.C.A. § 688.

Alabama is in agreement:

"It is the law in Alabama that

when one negligently injures

another so as to aggravate a pre-

existing condition, the negligent

actor is liable for all injuries

proximately resulting therefrom,

even though a normal person’s

injury would have been much less

severe. This is in agreement

with the general rule applied

elsewhere." Henderson v. United

States, 328 Fed.2d 502 (5th Cir.

1964). See also Norris, The Law

of Seamen, 4th ed. Vol.2, §30.41

and Gamble, Alabama Law __of

Damages 2nd ed. p. 426.

The cases under the Alabama Workers

Compensation Act also provide that the

employer takes his employee subject to his

physical condition when he enters his

employment. Alien v. Metro Contract

Services, Inc., 421 So.2d 1289 (Ala.Civ.

App. 1982).

What then of the court’s findings that

the Chouest companies were not responsible

because Mr. Short may have had a predis-

position to asthma unlike other of the

defendant’s employees? The defendant

Edison Chouest companies took Tony Short

with his predilections toward asthma, if

any, and if the conditions onboard their

vessels or their negligence in whole or in

part, influenced or aggravated or caused

plaintiff asthmatic conditions, the defen-

dants are liable therefor. The fact that

Tony Short was susceptible to asthma rather

than having a weak back or a thin skull

makes no difference.

There are numerous cases in which

employees have recovered from employers for

aggravaticn of asthmatic conditions. In

Curry v. United States, 327 Fed.Supp. 155

(N.D. Calif. 1971) defendant died from a

Fee ee i ee ee

preexisting asthma condition as a result of

polluted and noxious air in the engine room

of a vessel. The court found liability

notwithstanding the preexisting condition

and applied in an Admiralty context asthma

case the general rule that the tortfeasor

takes his asthmatic victim as he finds him.

In Thompson v. Wells Lamont Corpora-

tion, 362 So.2d 538 (Miss. 1978) plaintiff

recovered as a result of an allergic

reaction to dust and lint. In Jenkins v.

Ogletree Farm Supply, 291 So.2d 560 (Miss.

1974) plaintiff’s asthma was aggravated as

a result of inhaling dust particles,

allowing a recovery against his employer.

For years, Tony Short breathed, among other

things, cement dust. In Concannon v.

Oregon Portland Cement Co., 447 P.2d 290

(Oregon 1968) the plaintiff breathed cement

dust during a period of one week while

working at a cement plant which rendered

him totally disabled as a result of asthma,

for which recover was allowed. The

Michigan case of Tolottson v. Penn-Dixie

Cement Corporation, 209 N.W.2d 611 (Mich.

1973) was another case where cement dust

had caused the plaintiff’s disability for

emphysema for which he was allowed recov-

ery. In Lang v. Birch Shipping Company,

523 Fed.Supp. 1112 (S.D.N.Y. 1981) the

plaintiff was exposed to grain dust on the

vessel where he was a seaman, from which

exposure he developed chronic asthma. His

theory was the same as Tony Short’s, i.e.

the shipping company failed to provide a

safe place to work with adequate masks or

other protective devices. The plaintiff

recovered.

The application of products liability

law to a seaman’s personal injury case was

improper. The Kentucky law case of Gordon

v. Proctor and Gamble, 789 F.Supp. 1384 (W.

D. KY 1992) relied on by the court is

totally inappropriate. None of the unique

Admiralty law requirements stated above or

set out below are part of a products

liability warranty claim.

ASSUMPTION OF RISK

The Judge below in effect stated that

the risk of a debilitating injury from

unknown chemicals to which plaintiff was

subjected while in the employ of the

defendants was a risk to be borne by the

plaintiff seaman and not the employer

shipowner. That analysis of the law is

incorrect. Assumption of risk is not a

defense to a claim of unseaworthiness.

Villers Seafood Co. Inc. v. Vest, 813

Fed.2d 339 (llth Cir. 1987) nor is

assumption of risk a defense under the

Jones Act. Bobb v. Modern Products, Inc.,

648 Fed.2d 1051 (5th Cir. 1981). Section 4

of the Railroad Employees Act, 45 U.S.C.A.

§ 53, abolished the defense of assumption

of risk. Therefore, assumption of risk - a

common law affirmative defense - is not

available as a defense to an action brought

by a seaman. Socony-Vacuum Oil Co. v.

Smith, 305 U.S. 424, 83 L.Ed. 265, 59 S.Ct.

263 (1939); Ceja v. Mike Hooks, Inc. 690

Fed.2d 1191 (5th Cir. 1982). In view of the

above it was improper to place the risk

upon Mr. Short that some unknown chemical

encountered during his employment as a

seaman might result in injury to him. By

statute and by the general maritime law,

the risk of such injury is transferred over

to the employer, the Edison Chouest

companies.

NOTICE OF DEFECT NOT REQUIRED

es or a ee vee

The Court Below concluded that before

Tony Short could recover he had to show

that the Edison Chouest companies. had

notice of the dangerous propensities of the

exact chemical which triggered Tony Short’s

problem. That conclusion is contrary to

the applicable law.

Notice of a dangerous condition or

negligence in regard to that condition is

immaterial in an action against a vessel

owner for unseaworthiness under the general

maritime law. Karvelis v. Constellation

Lines, S.A., 806 Fed.2d 49, (2nd Cir. 1986)

cert. den. 107 S.Ct. 1891, 481 U.S. 1015,

95 L.Ed. 498. A shipowner’s lack of know-

ledge of a condition which renders a vessel

unseaworthy is not a defense. Claborn v.

Star Fish & Oyster co. Inc., 578 Fed.2d 983

(Sth Cir. 1978). The duty to provide a

seaworthy vessel is non-delegable and per-

tains to latent as well as patent defects

and neither ignorance nor due diligence

will serve as an adequate defense.

Clevenger v. Star Fish & Oyster Co. inc.,

325 Fed.2d 397 (5th Cir. 1963).

"Negligence or noticy of

defective condition is not a

necessary factor to sustained the

trial court’s decision. As Judge

Hincks said in Poygnant v. United

States, 2nd Circuit, 1955, 225

Fed.2d 595, 596: ‘Under the

general maritime law an injured

seaman, once he proves an injury

caused by an unseaworthy

condition, may recover without

proof of negligence on the part

of the vessel’s owner. *** Since

the inquiry in unseaworthiness

cases is not directed to the

issue of the owner’s fault, it

follows that prior notice, actual

or constructive, of the unsea-

worthy condition is not essential

to a cause of action based on

that doctrine." Spraque v. The

Texas Company, 250 Fed.2d 123

(2nd Cir. 1957).

The Edison Chouest companies cannot

avoid their absolute duty by saying that

they do not know what caused the particular

injury or suggesting in effect that it was

an Act of God. Marshall v. Ove Skou Rederi

A/S, 378 Fed.2d 193 (5th Cir. 1967).

Notwithstanding Edison Chouest’s pro-

testations that it did not know of any

dangerous chemicals carried onboard its

vessels, it should have known such. The

case of White v. Rimrock Tidelands, Inc.,

414 Fed.2d 1336 (5th Cir. 1969) involved an

injury to a seaman from an exposure to

drilling mud. There the court found that

the absence of safety equipment for use by

the seaman directed to enter the tank

containing caustic drilling mud amounted to

unseaworthiness. The fact that safety

equipment may not have been provided by

other drillers in the business was not

controlling. There have been other

injuries to seamen as a result of exposure

to drilling mud while cleaning mud tanks,

an operation that Tony Short did on a

regular basis.

The Court was incorrect in concluding

that Tony Short could not recover unless he

could prove that defendants knew of the

specific chemical that caused his injury.

DUTY TO INSPECT

Edison Chouest has testified that it

had no knowledge of the chemicals carried

onboard its vessel and it made no effort

whatsoever to determine such (R.312-313).

Notwithstanding, the court concluded that

Since they had no knowledge they cannot be

responsible. That position is totally

contrary to the applicable law. A ship-

owner has an obligation to inspect his

vessel for hazards. Failure to inspect a

vessel for hazards is Jones Act negligence.

Joyce v. Atlantic Ritchfield Co., 651 F.2d

676, 681 (10th Cir. 1981); Davis v. Hill

Ae. : = a a idbedag

» Se we wig: 7% ashy ®

Engineering, Inc., 549 Fed. 2d 314 (5th

Cir. 1977); Matter of Texaco, Inc., 570

Fed.Supp. 1271 (E.D. LA 1983).

The failure of the Edison Chouest

companies to make any inquiry as to the

type of chemicals to which it was exposing

its employees while making no effort to

ascertain if those chemicals were or were

not harmful to their health, is a violation

of its duty under the Jones Act and under

the general maritime law. They cannot

simply close their eyes and plead ignorance

as to the work conditions onboard their

vessels.

APPENDIX B

AFFIDAVIT OF ANTHONY E. SHORT

Personally appeared before me, the

undersigned authority in and for the State

of Alabama and County of Mobile, ANTHONY E.

SHORT, who being by me first duly sworn, on

oath deposes and says:

I am the plaintiff in the above

captioned matter. Shortly after completing

high school in Bayou la Batre, Alabama, I

went to work with defendants, who operate

about 30 offshore supply boats, tugs and

other large vessels. I started as a

deckhand in 1977 and worked my way up to

Captain of 185’ offshore supply boats. My

entire work career of 15 years since 1977

was with the defendants and my last

employment was with defendants in April

1992.

During my 15 years with the Edison

Chouest companies I was regularly exposed

to, breathed and ingested heavy concen~

trations of mineral and chemical dust,

fumes and mist. The only such exposure I

have had was in connection with my employ-

ment with defendants.

For my well being and respiratory

protection while onboard defendants’

vessels I relied entirely upon Edison

Chouest. I have no chemical education and

have received no training in recognizing

different harmful chemicals, minerals,

acids and other compounds, vapors and fumes

encountered by me on a regular basis during

my employment. I frequently did not know

the chemical and mineral composition of the

various cargoes carried onboard my vessel

and I was exposed to heavy concentrations

of such mineral and chemical dusts, fumes

and mists by the necessity of broom

sweeping the cargo tanks, hosing down the

liquid tanks and spraying various

chemicals.

During the first approximately 15

years of my employment with Edison Chouest

I was provided only with paper masks of the

type that comes in the box, a copy of which

is attached hereto as Exhibit A. On many

occasions I cleaned tanks without any mask

because they were not provided by defen-

dants. Edison Chouest had no safety

program to provide proper respiratory

protection to its employees. Defendants

knew that I was on a regular basis exposed

to heavy concentrations of various chemical

and mineral dusts, fumes and mists, the

chemical and mineral makeup of which I had

no knowledge. During my employment with

Edison Chouest I made no notes of the

chemicals to which I was exposed and

undoubtedly there were many such chemicals

or minerals in addition to those listed

below.

During the 15 years of my employment

with defendants I was regularly exposed to

and breathed dust or mist or fumes from

hydrochloric acid which was regularly used

in an undiluted form to clean cement off

the deck of the vessels, Aluminex, a

corrosive aluminum cleaner the specific

chemical makeup of which I do not know,

various polyurethane varnishes which were

applied and sanded down, various paints

including multi-part epoxy paints, diesel

fumes, and various other cleaning fluids

and compounds used onboard the vessel. I

broom swept dry bulk tanks, which required

me to spend long periods of time in heavy

dust atmospheres and cleaned liquid tanks

by going into such tanks with a hose, which

exposed me to heavy mist and vapors from

such liquids.

I regularly cleaned liguid tanks which

contained oil based liquid drilling mud and

water based liquid drilling mud. Drilling

mud is barium sulphate, which contains

various heavy metals and additives, some of

which are shown on the attached safety data

sheets of various additive products. The

drill mud tanks had a strong chemical odor

but at the time I cleaned such tanks I was

not aware of the exact type of chemicals

that were added. I now know that the

barium sulphate, or drilling mud, that I

was exposed to in both dry and liquid forms

often contained formaldehyde as a

fungicide.

I was also exposed to calcium chloride

and calcium bromide in the liquid tanks and

washed down liquid tanks that brought mud

from the rig to shore tanks, which mud

contained various unknown chemical and

mineral additives. I was exposed to drill

mud from various manufacturers or suppliers

which included Bayroid, Magcobar, Mayronne,

Imco, Milchem and Hall‘burton. I was

exposed to heavy concentrations of cement

on a regular basis which would contain D-

46, a defoamant that has a distinct

chemical smell, the precise composition of

which is unknown to me, cement blend which

contains vérious additives, Class H Neat

cement with gel which is a silicone based

additive, straight gel, which is powdered

silicon with other chemicals, Pharox which

is a red mud with pulverized metals of

various types all in a dust form, Econolite

additive to the cement, as well as dust

from various bagged chemicals, the

composition of which is unknown to me.

The barium sulfate (drill mud) had

different weights because of different

additives. The average weight of liquid

mud was about 15 pounds, but I have handled

it with additives that carried the weight

to 22 pounds per gallon. Various heavy

metals were added to cement and mud in

order to increase the weight and lighteners

of unknown composition added to decrease

the weight. I breathed dust and fumes from

all the above products.

Silicate additive D-75, an alkaline

chemical with a pH of 11 is listed in the

attached materials data sheet as toxic to

mammals. Trinity Lightwate cement D-49, to

which I was exposed, contained traces of

chromium, various cement additives, and

Silicon dioxide which is a respiratory

irritant, for which special respiratory

protection was required, but which I was

never furnished. The cement dust which I

breathed on a regular basis, according to

the attached safety data sheet, is harmful

if inhaled and should not be breathed.

Other chemicals that I regularly was

exposed to, such as D-Air 1 Antifoam Agent,

copy of data sheet for which is attached

hereto marked as Plaintiff’s Exhibit 39,

states that inhalation may aggravate asthma

and other pulmonary diseases, is a

Carcinogen and repeated inhalation causes

respiratory irritation and pneumoconiosis,

with a warning that humans should avoid

creating or inhaling dust. The cement on

the data sheet attached as Plaintiff’s

Exhibit 41 states that it contains silicon

and repeated overexposure could cause

chronic lung disease. The same statement

is found in Exhibit 42. Econolite additive

to which I was exposed on a regular basis,

described in Plaintiff’s Exhibit 40,

requires for safe handling a type C

supplied air respirator with a full face

piece, helmet or hood operated in pressure

demand mode or in continuous flow mode.

The safety data information states that

Econolite dust should not be inhaled. I

was regularly exposed to and inhaled the

above.

Edison Chouest did not supply any of

its vessels with air-fed respiratory

protection devices nor warn its employees,

nor did it warn me, of any risk of

breathing any of the chemicals to which I

was exposed over my 15 years of employment.

Edison Chouest vessels I worked on were

unseaworthy in that they contained dusty

atmospheres and chemical fumes and vapors

to which I was exposed without proper res-

piratory protection. Defendants were

negligent in failing to set up a proper

safety program to provide for respiratory

protection, in failing to inquire or ascer-

tain as to what chemicals its employees

were required to breath, in failing to

provide vacuum tank cleaners, and in

failing to provide proper respiratory pro-

tection.

Prior to 1991 I did not have asthma,

had never had asthma as a child, had never

any respiratory problems until the asthma

symptoms developed that rapidly got pro-

gressively worse until now a great many

chemicals, dusts, mists and fumes trigger

asthma attacks. Prior to developing asthma

as a result of exposure as set out above, I

was able to do my work as required. I am

now unable to work.

s/ Anthony E. Short

Subscribed and sworn to before

me this 17th day of May, 1993.

s/ Joelene E. Brown

Notary Public, State at Large

APPENDIX C

AFFIDAVIT OF MALLORY J. LESSARD

Personally appeared before me, the

undersigned authority, MALLORY J. LESSARD,

who being by me first duly sworn, on oath

deposes and says:

I am Mallory J. Lessard, Occupational

Safety Consultant. I worked for many years

in the offshore oil industry and have

cleaned cement and mud tanks of the type

cleaned by Anthony E. Short. I have worked

as Safety Director for offshore oil

production companies and have set up safety

programs for such companies relating to the

respiratory safety of its employees. I am

familiar with the various government

regulations, OSHA regulations, and United

States Coast Guard regulations governing

dust protection and in tank cleaning

operations which appear to apply by analogy

if not by direct application, and I have

studied the types of respiratory protection

that was available to Edison Chouest for

its employees during the applicable time

period. Edison Chouest took my deposition

in New Orleans on May 6, 1993, and has the

complete details of my background and

training.

Edison Chouest was in actual violation

or violated the spirit of numerous

government regulations including 29 C.F.R.

1915.151-152 and 1918.86 and 93 and 1926.57

and 46 C.F.R. § 90.

For many years Anthony E. Short was

exposed to various chemical and mineral

dusts, fumes, mists and other respiratory

irritants and exposed to particularly high

concentrations of dust while cleaning

cement and drilling mud tanks. Edison

Chouest vessels on which Mr. Short worked

were, in my opinion, unseaworthy in that

work areas on those vessels contained heavy

and dangerous dust, fume and mist concen-

trations with inadequate respiratory

protective devices provided for’ the

protection of the crew. If Mr. Short had

predisposition to allergy, then that pre-

disposition rendered the crew unseaworthy

in the face of heavy dust concentrations

which after years of exposure could trigger

Mr. Short’s present asthmatic condition.

In my opinion Mr. Short’s employers,

Edison Chouest, et al, were negligent in

failing to provide proper respiratory pro-

tection, in failing to set up any type of

safety program to provide proper

respiratory protection and in acquiring no

knowledge of the chemicals or mineral

respiratory irritants or pathogens to which

the crew of its vessels were exposed.

In my opinion the Comfort Mask

supplied to Mr. Short during his first 15

or so years of employment with Edison

Chouest was not suitable for its intended

purpose and its use rendered the vessel un-

seaworthy and Edison Chouest was negligent

in providing those masks for cleaning

cement and mud tanks. Even the respiratory

devices provided occasionally over the last

two years of Mr. Short’s employment fell

far short of being suitable for use, all of

which rendered the vessels upon which Mr.

Short worked unseaworthy and_- Edison

Chouest, et al neligent in failing to

provide a reasonably safe place for Mr.

Short to work. Allowing a crew to broom

sweep dust tanks with knowledge that the

crew was doing so without providing the

crew with adequate lung protection, created

an unsafe environment that Edison Chouest

should have known was unsafe and that

providing of a dust mask rather than a

respirator exhibited conduct that could be

considered as reckless disregard for the

safety of its employees and a reckless and

willful violation of well known safety

standards.

s/ Mallory J. Lessard

Subscribed and sworn to before

me this 18 day of May, 1993.

s/ S. H. Schell

Notary Public

APPENDIX D

AFFIDAVIT OF GAETON D. LORINO

STATE OF ALABAMA

COUNTY OF MOBILE

Personally appeared before me, the

undersigned authority in and for said

county in said state, GAETON D. LORINO,

being by me first duly sworn, on oath

deposes and says:

I am Gaeton D. Lorino, M.D., Board

Certified and Licensed by the State of

Alabama, specializing in pulmonary

medicine, and I practice at the offices of

Mobile Diagnostic Center, 6701 Airport

Blvd., Suite A-101, Mobile, Alabama.

Anthony Short has been my patient since

early 1992. Anthony Short has_ been

diagnosed by me as having Occupational

Asthma, which asthma resulted from his

exposure to heavy concentrations cf various

chemical dusts, mist and fumes, during the

15 years that he worked on various offshore

supply boats in the employ of Edison

Chouest Offshore, Inc. or ns associated

Edison Chouest company.

My deposition was taken on the 2nd day

of April, 1993, in a lawsuit pending in the

Circuit Court of Mobile County by Anthony

Short seeking compensation from his

employer. In my deposition I testified

that it was my opinion to a reasonable

degree of medical certainty that Anthony

Short has occupational asthma caused by his

exposure to various chemical dusts, mists

and fumes while working on boats. [In the

history that I have from Mr. Short he

Cleaned dry and liquid caro tanks during

the 15 years that he worked offshore with

Edison Chouest without proper respiratory

protection and was exposed thereby to heavy

concentrations of chemical dusts and mists.

I have reviewed the affidavit signed by Mr.

Short on May 17, 1993, which affidavit,

together with several material safety data

sheets attached hereto, give a nonexclusive

listing of the various chemicals and types

of chemicals to which Tony was exposed over

his 15 years employment with Edison Chouest

companies. Several of the chemicals listed

and to which Mr. Short was exposed are

allergens known to cause occupational

asthma and many of the chemicals listed in

Mr. Short’s affidavit and as shown on the

safety data sheets could trigger asthma in

anyone exposed to high concentrations of

such chemicals over an extended period of

time such as the time Mr. Short worked on

offshore vessels.

In my opinion the materials to which

Mr. Short was exposed during the 15 years

ee ee re, ee ee ee ee Ce eee) ee oT he re ee ae ee ere ay Ci eel aden ’ xt

that he worked for Edison Chouest companies

did cause Mr. Short to develop Occupational

Asthma. The exposure to heavy concentra-

tions over a long period of time to the

materials listed in Mr. Short’s affidavit

of May 17, 1993, and the safety data sheets

attached thereto, would, in my opinion,

cause respiratory problems or result in

damage to a person’s respiratory system

which may lead to a number of debilitating

conditions, including occupational asthma.

Exposure to such products in heavy

concentrations without proper respiratory

protection would, in my opinion, create an

obvious danger of respiratory damage to

employees so exposed and in my opinion, an

employer should have known that’ such

exposure was danagerous to its employees

and could cause respiratory illness or

asthma.

The exposure of Anthony Short to a

wide range of chemical respiratory irri-

tants and allergens over a long period of

time was the cause of his occupational

asthma. No one single chemical can be

singled out as "the cause" of such occu-

pational induced asthma, although the list

of chemicals contained in Mr. Short’s

affidavit contains several, such as

formaldehyde, which are known to trigger

asthma, and are known to have caused

occupational asthma. It is the totality of

the exposure over a period of years to the

large quantity of various known and unknown

chemicals which resulted in Tony’s occupa-

tional induced asthma and in my opinion it

would be impossible to determine the exact

chamical that triggered his problem, if

there was just one. It could have been

many chemicals, or combinations of such

which triggered his occupational asthma.

Various chemicals listed in Mr.

Short’s affidavit and the safety data

sheets attached thereto are not harmless

substances if breathed over a period of

time in heavy concentration. In my

opinion, any of the substances listed in

such affidavit and data sheets’ are

hazardous if the dust and mist of such are

inhaled over a period of time. Mr. Short’s

present condition is not the result of a

single allegeric reaction to a subtance,

but is the result of his exposure to heavy

concentrations of various chemicals over a

long period of time. The various chemical

dusts, mists, or any one of them, to which

Anthony Short was exposed in the course of

his employment with Edision Chouest

companies was the causative agent of his

occupational asthma, and that opinion is

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clearly stated in my April 2,

deposition.

s/ Gaeton D. Lorino

Subscribed and sworn to before

me this 17 day of June, 1993.

Sidney H. Schell

Notary Public

1993

APPENDIX E

IN THE SUPREME COURT OF ALABAMA

February 4, 1994

1921522

Anthony Short v. Edison Chouest Offshore,

Inc. et al

(Mobile Cir.Ct.No.: CV-92-001715)

NOTICE

Motion to strike invalid authority and

motion to strike affidavit of Gaeton Lorino

are denied.

I, Robert G. Esdale, as Clerk of

the Supreme Court of Alabama, do

hereby certify that the foregoing

is a full, true and correct copy

of the instrument(s) herewith set

out aas same appear(s) of record

in said Court.

Witness my hand this 4th day of

Feb. 1994.

s/ Robert G. Esdale

Clerk, Supreme Court of

Alabama

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.