347 F.Supp. 485 (E.D.La. 1972), Civ. A. 69-225, Parfait v. Jahncke Service, Inc.

Docket Nº:Civ. A. 69-225
Citation:347 F.Supp. 485
Party Name:Parfait v. Jahncke Service, Inc.
Case Date:July 21, 1972
Court:United States District Courts, 5th Circuit, Eastern District of Louisiana

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347 F.Supp. 485 (E.D.La. 1972)




Civ. A. No. 69-225.

United States District Court, E.D. Louisiana.

July 21, 1972.

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[Copyrighted Material Omitted]

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William J. Daly and Samuel C. Gainsburgh, Kierr, Gainsburgh & Benjamin, New Orleans, La., for plaintiff.

Christopher Tompkins and Leonard N. Bouzon, Deutsch, Kerrigan & Stiles, New Orleans, La., for defendant, Jahncke Service, Inc.

Walter F. Gemeinhardt, New Orleans, La., for third-party defendant, Yo-Ro Diesel Service, Inc.

John R. Peters, Jr. and Herschel E. Richard, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for third-party defendant, Travelers Indemnity Co.

M. N. Grossel-Rossi and Michael A. Britt, Leach, Grossel-Rossi & Paysse,

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New Orleans, La., for third-party defendant, Home Indemnity Co.


JACK M. GORDON, District Judge:

On or about October 1, 1967, Wilson J. Parfait, a welder employed by Yo-Ro Diesel Service, Inc., was repairing a broken cylinder block on a diesel engine aboard the Diesel Dredge Manchac (hereinafter "The Manchac"), which was owned and operated by Jahncke Service, Inc. While he was working on the engine, Parfait slipped on the floor of the engine room causing serious injury to his back and neck.

As a result of this accident Parfait brought the instant action against Jahncke Service, Inc. (hereinafter referred to as "Jahncke"), based on the alleged unseaworthiness of The Manchac and the alleged negligence of Jahncke. Jahncke then filed a third party complaint against Parfait's employer, Yo-Ro Diesel Service, Inc. (hereinafter referred to as "Yo-Ro") seeking indemnification from Yo-Ro for any liability to Parfait that Jahncke might incur. Jahncke based its claim for indemnification from Yo-Ro on the theory that Yo-Ro had breached its implied warranty of workmanlike performance. Both Jahncke and Yo-Ro then filed third party demands against Yo-Ro's two insurers, Travelers Indemnity Company (hereinafter referred to as "Travelers") and Home Indemnity Company (hereinafter referred to as "Home"). The two insurance companies were made third parties so that any possible indemnification Yo-Ro owed to Jahncke would be covered by either or both insurance policies. Both insurance companies, however, contend that there is no coverage under their policies.

Prior to the trial of this matter the main action between Wilson Parfait and Jahncke was compromised, and trial only as to the third party actions was conducted before this Court. At the conclusion of the trial the parties were required to submit additional memoranda on the issues before the Court, which are: (i) is Jahncke entitled to indemnification from Yo-Ro, (ii) is coverage provided for Yo-Ro's liability to Jahncke by Travelers' policy, (iii) is coverage provided for Yo-Ro's liability to Jahncke by Home's policy, and (iv) is the settlement between Parfait and Jahncke reasonable. The Court has decided the foregoing issues after consideration of the testimony and evidence presented at the trial, and the memoranda submitted by the parties.


Upon discovering that the main pump engine aboard The Manchac was broken, Jahncke contracted with Yo-Ro to weld the broken part. Parfait, the working foreman for Yo-Ro, came aboard the vessel to inspect the broken pump engine and determine what equipment should be used to make the repair. After completing his inspection Parfait left the vessel to obtain the tools and equipment needed for performance of the repair job. About two hours later Parfait returned with his son, Wilson J. Parfait, Jr., who was employed by Yo-Ro as an apprentice welder and was to assist his father in the welding job. While Parfait was gone Jahncke's employees had dismantled part of the engine to enable Parfait to perform his repair work, and, in so doing, the Jahncke employees disconnected a fuel line from which fuel oil was allowed to drip and accumulate on a catwalk adjacent to the engine, creating a dangerous condition. The Jahncke employees were not aware that fuel oil had dripped and created a hazard. Parfait, while standing on the catwalk to work on the engine, noticed that fuel oil was dripping and that it had accumulated on the floor where he was working; however, he neither attempted to remove the oil nor did he request Jahncke's employees to clean it up.

After working for approximately two hours on the repair, Parfait reached a point where the weld had to cool before he could continue. He walked to the end of the catwalk and up a short ladder to the deck above and proceeded straight to

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a wash stand a short distance away. After washing his hands he returned, in the same direction from which he had come, and headed for the ladder leading down to the catwalk. As he neared the ladder he slipped and fell, either as a result of fuel oil on the soles of his shoes that had been picked up while he worked on the catwalk where fuel oil had accumulated, or as a result of fuel oil tracked on the steel deck by his shoes when he walked toward the wash stand.

Jahncke employees were cleaning engine parts in cans of fuel oil on the deck where the wash stand was located at the time Parfait walked to and from the wash stand. This activity, however, was well away from Parfait's path between the ladder and the wash stand and did not in any way contribute to the accident.

The accumulated fuel oil on the catwalk of The Manchac was a hazardous condition which rendered the vessel unseaworthy, Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960), and that unseaworthiness was a proximate cause of the accident.

Yo-Ro, as a contractor aboard Jahncke's vessel, The Manchac, owed Jahncke, as owner of the vessel, a warranty of workmanlike performance. Whisenant v. Brewster-Bartle Offshore Company, 446 F.2d 394 (5th Cir. 1971).

The warranty of workmanlike performance was breached by Yo-Ro when it failed either to clean up the accumulated oil on the catwalk before its crew began working or to inform Jahncke personnel that its crew would not commence working until the accumulated oil was cleaned up. The Fifth Circuit in Burrage v. Flota Mercante Grancolombiana, 431 F.2d 1229 (5th Cir. 1970) stated:

The notion of workmanlike performance certainly encompasses an obligation by the contractor to take notice of those deficiencies and hazards likely to give rise to damage to life, limb, or property and then take requisite action depending on the nature of the relationship of the parties and their contractual obligations, express or implied, either to eliminate or minimize the hazard or to stop work until the situation is corrected. 431 F.2d at 1232.

In Burrage, supra, the court found that a stevedore had breached its warranty of workmanlike performance when its longshoremen who were assisting in the unloading of a ship noticed beans spilled on the wharf. The longshoremen knew this condition was unsafe, and yet they did nothing about it. Furthermore, the Court said that the spillage did not have to be excessive. The condition had rendered the vessel unseaworthy, and this was sufficient to compel a conclusion that workmanlike performance called for a stevedore to do something.

This Court must conclude that the Fifth Circuit's rationale and holding in Burrage, supra, is controlling. Yo-Ro breached its warranty of workmanlike performance when its working foreman, Wilson Parfait, after noticing the unseaworthy condition, the accumulated fuel oil on the catwalk, failed either to clean up the oil or to discontinue his repair work until it was removed by Jahncke's employees.

Yo-Ro argues that Jahncke's action for indemnification is precluded by certain conduct on its part; namely, the disconnection of the fuel line from which the fuel oil dripped. In Weyerhaeuser Steamship Co. v. Nacirema Operating Co., Inc., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958), the Supreme Court indicated that conduct on the part of the shipowner could preclude contractual indemnification. The Fifth Circuit in Waterman Steamship Corporation v. David, 353 F.2d 660 (5th Cir. 1965), stated that contract principles are to be applied by the trier of fact to determine what conduct on the part of the shipowner will preclude indemnity.

In the instant case, although the unseaworthy condition was caused by Jahncke, Yo-Ro did nothing to remedy the hazardous condition that it noticed was present. A similar situation was present in T. Smith & Son, Inc. v. Skibs A/S Hassel, 362 F.2d 745 (5th Cir. 1966),

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wherein the court held that negligence of the shipowner did not preclude indemnification. The stevedore's employee was aware of the condition and did nothing to correct it. The Fifth Circuit in Southern Stevedoring & Contract Co. v. Hellenic Lines, Ltd., 388 F.2d 267, 271-272 (5th Cir. 1968), stated:

[Shipowner's] conduct, to preclude indemnity, must be sufficient to bar the enforcement of the contract. ** The vessel's unseaworthiness, although a proximate cause of the accident, is not in itself conduct necessarily sufficient to preclude recovery. *** Without entering the thicket of primary and secondary, or active and passive negligence *** the trier of fact must weigh the substantiality of the fault of the shipowner against the breach of warranty by the stevedore to determine whether the former's conduct is "sufficient to preclude indemnity." (citations omitted).

This Court, after weighing the substantiality of the fault of Jahncke against the breach of warranty by Yo-Ro, is of the opinion, under all of the circumstances, that any fault by Jahncke and unseaworthiness created thereby, would not have prevented Yo-Ro from performing its operations in a workmanlike manner. Accordingly, it is held that Jahncke is entitled to indemnification from Yo-Ro.

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