446 F.2d 394 (5th Cir. 1971), 31020, Whisenant v. Brewster-Bartle Offshore Co.

Docket Nº:31020.
Citation:446 F.2d 394
Party Name:Earline WHISENANT, individually and as tutrix of her minor children, Sheila Dianne Whisenant, et al., Plaintiffs, v. BREWSTER-BARTLE OFFSHORE COMPANY et al., Defendants-Appellees, v. LOOMIS HYDRAULIC TESTING CO., Inc., et al., Third Party Defendants-Appellants.
Case Date:July 20, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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446 F.2d 394 (5th Cir. 1971)

Earline WHISENANT, individually and as tutrix of her minor children, Sheila Dianne Whisenant, et al., Plaintiffs,

v.

BREWSTER-BARTLE OFFSHORE COMPANY et al., Defendants-Appellees, v. LOOMIS HYDRAULIC TESTING CO., Inc., et al., Third Party Defendants-Appellants.

No. 31020.

United States Court of Appeals, Fifth Circuit.

July 20, 1971

Rehearing and Rehearing En Banc Denied Sept. 29, 1971.

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[Copyrighted Material Omitted]

Page 396

Thomas W. Thorne, Jr., New Orleans, La., Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, La., for appellants.

Philip E. Henderson, of O'Neal, Henderson, Hanemann & Morris, Houma, La., for appellees.

Before GEWIN, BELL and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

This multiparty maritime suit arose out of an accident which killed an employee of an independent contractor while he was engaged in specialized testing of an oil well drill aboard a submersible drilling barge. In the aftermath the decedent's widow and minor children (heirs) sued the barge owner; the barge owner sued the decedent's employer; and the decedent's compensation insurer intervened for benefits paid. Following a settlement between the decedent's heirs and the barge owner, the district court granted the barge owner Ryan 1 indemnification over against the decedent's employer, and denied the compensation insurer's claim for intervention. The employer and the compensation insurer appeal. While we do not disagree with all of the findings of the trial court, we do conclude that we must reverse and remand for the reasons hereinafter stated. 2

I. Facts

Ray Whisenant, an employee of Loomis Hydraulic Testing Co., Inc. (Loomis), was crushed to death while working on a submersible drilling barge (vessel) owned by Brewster-Bartle Offshore Company (Brewster-Bartle). At the time of the accident the drilling barge was drilling an oil well off the coast of Louisiana pursuant to a contract with Texaco Inc. (Texaco). Texaco, in turn, had contracted with Loomis to perform certain specialized testing services on the drill pipe being used in the drilling of the well. The contract stipulated that the testing would be performed while the pipe was on board the drilling barge. No privity of contract existed between Loomis and Brewster-Bartle.

On the evening of September 7, 1964, Loomis sent a two-man testing team, along with the necessary testing equipment, to perform the test; Ray Whisenant was the 'operator' of the team, and his brother-in-law, W. A. Russ, was his helper. They commenced their work at approximately 1:00 a.m. on the morning of September 8, 1964.

Loomis' testing procedure called for a small sheave or pulley to be hung at the top of the derrick so that a small cable (wireline) could be run through it. One end of the wireline would then be attached to a winch operated on the ground by a loomis employee and the other end would be attached to the testing tool which would be lowered into the drill pipe as it stood upright in the derrick.

As is customary when a specialized crew comes aboard a rig, the 'operator' of the crew, here Whisenant, discussed his proposed plan of procedure with the rig personnel before commencing to work. 3 Whisenant then met with Athos

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Danos, the Brewster-Bartle driller, to discuss how the pulley, which was too heavy for one man to carry, was to be secured at the top of the derrick. After some discussion Whisenant told Danos that he was going to tie the pulley to the top of the traveling block 4 and have Danos raise the block to the top of the derrick by means of the rig's drawwork (a large winch). Whisenant advised Danos that he himself planned to ride the derrick's elevator up to the monkey board (platform) and then climb the ladder on the outside of the derrick to a point below the crown of the derrick. From that point Whisenant planned to give Danos a hand signal for him to raise the traveling block upward by operating the drawworks from below until it reached a point four or five feet from the bottom of the sills at the top of the derrick. At that point Whisenant intended to give Danos a second hand signal to stop the upward movement of the block. Once the traveling block stopped, Whisenant planned to step out on the top of the block, using the top of the block as a work platform, and hang the pulley from the crown of the derrick. 5 Danos approved the plan of procedure suggested by Whisenant and testified that he saw nothing inherently unsafe about the mode of operation; he did, however, offer to send one of his crew members up with Whisenant to assist him but Whisenant indicated that this would not be necessary.

In accordance with his plan Whisenant chained the pulley to the top of the traveling block and climbed the ladder to the top girder directly below the crown. Next he stepped from the ladder to the girder, and after positioning himself firmly, signalled Danos to raise the traveling block. Upon seeing the signal to raise the traveling block Danos released the brake and the clutch on the drawworks fixing it in 'idle' speed so that the traveling block began moving slowly upward. After the traveling block began to rise Danos looked for, but did not see, any further hand signal indicating that he should stop the motion of the traveling block. As a consequence, the traveling block struck the sill at the top of the derrick; Whisenant, who had jumped onto the top of the traveling block unseen by Danos was crushed.

Following the accident the decedent's widow (acting individually and as Tutrix of her minor children) filed this suit on September 1, 1965, against the barge owner, Brewster-Bartle, and Texaco alleging that Whisenant's death was caused by their negligence. Before answer was filed Employers National Insurance Company, Loomis' compensation insurer, intervened claiming sums expended for funeral expenses and death

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benefits paid under the Louisiana Workmen's Compensation Act. Shortly there-after on August 9, 1967, Brewster-Bartle filed a third party complaint against Loomis. On June 3, 1968, Brewster-Bartle settled the cause of action brought against it by the Whisenant heirs for the sum of $22,500 net to the heirs over and above compensation payments made, and the suit was dismissed. Brewster-Bartle did not notify Loomis or Employers National, the compensation carrier, of the settlement negotiations; nor did it tender to either for approval the proposed settlement agreement or offer Loomis the defense of the suit. 6 After the settlement was concluded, the Whisenant heirs moved the district court to dismiss their claim against Brewster-Bartle. Accordingly, their claim was dismissed but the claim of the intervenor as well as the third party claim against Loomis were reserved. Thereafter on July 5, 1968, Brewster-Bartle filed a supplemental and amended third-party complaint against Loomis for indemnification.

After hearing the case without a jury the district court rendered findings of fact and conclusions of law denying the claim of Employers National for intervention and granting Brewster-Bartle indemnity over against Loomis, plus attorney's fees and costs. In support of its conclusions the trial court found that the procedure used by Loomis to attach the pulley was unsafe and that it was this procedure which proximately caused the accident. 7 The court also found that Whisenant's action in stepping on the block while it was in motion amounted to contributory negligence on Whisenant's part and was likewise a proximate cause of the accident. 8 And finally, the court rejected the contention that the conduct of Brewster-Bartle's driller (Danos) was a proximate cause of the accident. 9 Instead the court reached the following conclusion:

The unsafe method of procedure devised and executed by Loomis' employee Whisenant, and the decedent's contributory negligence set the sequence for the resultant accident and

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the shipowner's negligence through Danos, if any, could not possibly have converted Loomis' ill conceived and unsafe method of operation into a safe and sound method of operation. The warranty of workmanlike or seaworthy performance was already well breached by Loomis without regard to the latter fault of Danos, if any.

Thus, the court concluded that since Loomis' breach of its implied warranty of workmanlike service proximately caused the accident and thereby rendered Brewster-Bartle's vessel unseaworthy, Brewster-Bartle should be indemnified by Loomis pursuant to the Ryan 10 doctrine.

II. Ryan Doctrine

On appeal Loomis argues that the district court erred in failing to grant its motion to dismiss Brewster-Bartle's third party complaint. Loomis' first contention is based on the general proposition that the District Court should not have applied the Ryan doctrine of indemnification to the facts of this case. It insists that Ryan should not be extended beyond the traditional stevedore-vessel relationship to a situation in which a specialized service company comes aboard a drilling vessel and renders it unseaworthy. It is urgently insisted that there must be privity of contract between Brewster-Bartle and Loomis. We disagree with these contentions and agree with the trial court's reasoning on this phase of the case.

In Ryan Stevedoring Co. v. Pan Atlantic Steamship Co. 11 the Supreme Court allowed a shipowner to maintain an action for indemnity against the employer of injured persons who were temporarily aboard the vessel to do the work of seamen and whose injuries arose out of unseaworthiness created by their employer. The Court said that even in the absence of an express agreement of indemnity, a contractor entering into a service agreement with a shipowner was obligated to reimburse the shipowner for foreseeable damages resulting from the contractor's failure to perform its services in a workmanlike manner. The theory behind the...

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