410 F.2d 178 (5th Cir. 1969), 25475, Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Co.

Docket Nº:25475.
Citation:410 F.2d 178
Party Name:TRI-STATE OIL TOOL INDUSTRIES, INC., et al., Appellants, v. DELTA MARINE DRILLING COMPANY et al., Appellees. DELTA MARINE DRILLING COMPANY et al., Appellants, v. TRI-STATE OIL TOOL INDUSTRIES, INC., et al., Appellees.
Case Date:April 15, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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410 F.2d 178 (5th Cir. 1969)







No. 25475.

United States Court of Appeals, Fifth Circuit.

April 15, 1969

Rehearing Denied May 19, 1969.

Thomas L. Raggio, Lake Charles, La., for Tri-State Oil Tool Industries, Inc., and Aetna Cas. & Sur. Co., Hall, Raggio, Farrar & Barnett, Lake Charles, La., of counsel.

Fred H. Sievert, Jr., Lake Charles, La., for Delta Marine Drilling Co. and others.

Before GOLDBERG and AINSWORTH, Circuit Judges, and SPEARS, District judge.

AINSWORTH, Circuit Judge:

This federal maritime case presents the complex legal question whether indemnity shall be permitted by a tort-feasor, claiming to be only passively or secondarily liable; against a joint tort-feasor guilty of active or affirmative negligence-- where no contractual relationship exists between the parties. We hold that the party which is actively negligent should bear the consequences of its wrong and is responsible for the damages incurred.

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Accordingly, it should indemnify the party which is only vicariously or secondarily wrong, for any damages the latter has been compelled to pay.

Thomas D. Fontenot, employed by Delta Marine Drilling Company as a roughneck and member of a drilling crew, was seriously injured aboard Delta Marine's submersible drilling barge when he was struck by a large, heavy piece of wash pipe which had been dropped from an 'elevator' belonging to and furnished by Tri-State Oil Industries, Inc. The accident occurred on navigable waters in Louisiana while the barge was submerged for the purpose of drilling for oil. Fontenot filed a complaint under the Jones Act and the general maritime law against Delta Marine and its insurer, Fidelity & Casualty Company of New York, and in maritime tort against Tri-State and its insurer, Aetna Casualty & Surety Company. The case was tried to the District Court without a jury. Judgment was rendered in favor of Fontenot and against defendants Delta Marine and Tri-State jointly and in solido. The District Court dismissed the cross-claims for indemnity filed by Delta Marine and Tri-State against each other, and both appeal that dismissal only. Plaintiff Fontenot was paid his judgment by the parties and has no further interest in the matter.

The issues for decision are stated as follows: (1) Delta Marine, owner of the drilling barge, contends that it is entitled to indemnity from Tri-State, a service contractor, because the contractor negligently furnished defective equipment to the drilling barge which thus rendered the barge unseaworthy causing it to be cast in damages jointly with the contractor; and (2) Tri-State, the service contractor, contends that neither of the cross-claimants, Delta Marine or Tri-State, is entitled to indemnity from the other under existing law, because there was no contractual relationship between them-- Tri-State's services and equipment having been procured by the lease owner rather than Delta Marine-- but that if there is an extension of the law in this case to permit indemnity, it should be granted to Tri-State because Delta Marine was in charge of the operation and handling of Tri-State's equipment at the time of the accidental injury to Fontenot.

The cross-claims for indemnity grow out of the following circumstances. Ashland Oil and Refining Company, operator of an oil lease, contracted with Delta Marine to drill a well on the lease. During the course of the operations, drill pipe became lodged in the hole. Ashland then contracted with Tri-State to perform what is well known in the industry as a 'fishing operation' to dislodge the drilling pipe. Thus Delta Marine and Tri-State contracted independently with Ashland Oil and there was no contract between Delta Marine and Tri-State. Tri-State furnished the necessary equipment, including twenty-four joints of wash pipe, and an 'elevator,' which were used in the fishing operation. This consisted generally of picking up wash pipe, lowering it into the hole, and then the reverse operation of pulling the wash pipe out of the hole in an effort to catch the drilling pipe. The procedure was described by the District Court in the following language:

'The operation of lifting wash pipe out of the hole is not particularly complicated. The crown of the rig is located some 130 to 136 feet above the drill floor, and from it is suspended the traveling block. Several 'bails' are used to connect the block to the elevator. After one length of pipe has been taken away, the block is lowered over the next section which protrudes slightly above the drill floor. The driller lowers the block so that the elevator stops slightly below the collar of the pipe to be lifted. The backup man pushes the open elevator around the wash pipe below the collar. The lead tong man slams the swinging door shut and the pipe is ready to life. The driller engages the clutch and the traveling block moves upward, pulling the entire length of pipe up the hole. When a 30-foot joint has cleared the drill floor,

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the driller stops while slips and safety clamps are installed so as to avoid dropping the lower part back into the hole. Then the lead tongs are clamped on the top pipe and the backup tongs are put on the bottom pipe. The rotary turns the bottom pipe, and it is thereby unscrewed from the top joint. The roughnecks in the drilling crew grab the suspended end of the wash pipe and walk it toward the 'V' door. The pipe is pushed out of the 'V' door and the driller lowers it down the ramp. There, another crew takes over and the joint is secured in a pipe rack on the barge below.'

The operation was performed by Delta Marine under the general supervision of Tri-State but under the immediate control of Delta Marine. 1 On the night of the accident, Fontenot was working as a lead tong man. It was his job to close the elevator doors on the wash pipe. It was Delta's responsibility to ascertain that everything was in order with the wash pipe and elevator before the draw works were raised to pull or pick up the pipe. When the accident occurred approximately twelve joints of pipe remained in the hole. A joint had been unscrewed and had been 'walked' toward the 'V' door. Richardson, one of the Tri-State men aboard the barge, heard a rattle from above. At about that time the pipe touched the ramp and fell from the elevator, striking Fontenot, whereupon the crew looked up and saw that the elevator door was open.

The District Court concluded that the 'elevator was defective and unfit for use'; that the cause of the accident was 'the malfunction of Tri-State's defective elevator'; that plaintiff Fontenot was not negligent; that the defective elevator was 'a part of the barge's gear, appurtenant appliances and equipment' which 'rendered the barge unseaworthy and was a proximate cause of Fontenot's injuries.' The Court also found that 'Tri-State was negligent in furnishing the defective equipment (elevator) and this negligence was a proximate cause of Fontenot's injuries.' On the basis of his findings of negligence of Tri-State and unseaworthiness of Delta Marine's vessel, the District Judge held both defendants liable. In refusing recovery over in the absence of a contractual relationship between the parties, the District Court relied on this Circuit's decision in Halliburton Company v. Norton Drilling Company, 5 Cir., 1962, 302 F.2d 431; rehearing denied, 1963, 313 F.2d 380; cert. denied, 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1032 (1963), and said:

'We recognize that the facts and the rationale in Halliburton are distinguishable, and that the employee of the vessel had not sued the vessel owner but the independent contractor, but as I read that case it governs my decision here. This conclusion has been reached after mature deliberation and some degree of hesitancy.'

In Halliburton, the facts were as follows: Sims, an employee of Norton Drilling Company, a drilling contractor operating on its own submersible barge in navigable waters, was injured aboard the barge when a chain on a cementing head, furnished by Halliburton, an oil well service concern, broke while Sims and other Norton employees were removing it from the casing. Sims brought his action

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against Halliburton alleging that his injury was the result of defective equipment which had been supplied by it, and Halliburton filed a third-party complaint for indemnity against Norton alleging negligence and improper handling of the equipment, entitling it to indemnity from Norton by virtue of the implied contractual warranty to remove the cementing head in a careful and workmanlike manner. Halliburton claimed it was entitled to indemnity...

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