Spinks v. Chevron Oil Co.
| Decision Date | 27 January 1975 |
| Docket Number | No. 73-3618,73-3618 |
| Citation | 507 F.2d 216 |
| Parties | Donnie E. SPINKS, Plaintiff-Appellant-Cross Appellee, v. CHEVRON OIL COMPANY and Barge Facilities, Inc., Defendants-Third-Party Plaintiffs-Appellees-Cross Appellants, LABOR SERVICES, INC., et al., Third-Party Defendants-Appellees- Cross Appellants. Donnie E. SPINKS, Plaintiff-Appellant, v. LABOR SERVICES, INC., Defendant-Appellee (two cases). |
| Court | U.S. Court of Appeals — Fifth Circuit |
Philip E. Henderson, Houma, La., for Spinks.
Lloyd C. Melancon, New Orleans, La., for Chevron Oil Co.
Tom F. Phillips, John R. Tharp, Baton Rouge, La., for Labor Services et al.
James H. Drury, New Orleans, La., for Surplus Lines Ins. T. C. W. Ellis, New Orleans, La., for Steamship Mutual, etc.
Donald M. Pierce, Donald V. Organ, New Orleans, La., for Seguros America Banamex.
Lawrence D. Wiedemann, New Orleans, La., for Welch Sales & Service.
Appeals from the United States District Court for the Middle District of Louisiana.
Before RIVES, WISDOM and COLEMAN, Circuit Judges.
Donnie E. Spinks, plaintiff-appellant, employed by Labor Services, Inc., was injured while performing work for Chevron Oil Company on one of Chevron's drilling barges in the Gulf of Mexico. The accident generated three suits by Spinks and multitudinous pleadings, including third party demands, counterclaims and cross-claims for indemnity and attorney's fees. 1 The suits were consolidated for trial and on appeal. The principal issue is whether the district court erred in denying relief to Spinks; the court found that Spinks' 'negligence was the sole proximate cause of the accident.' Another issue is whether, although Spinks was a borrowed servant of Chevron, he remained, for purposes of the Jones Act, an employee of Labor Services, his original employer. We reverse in part and remand.
In Civil Action No. 70-251 Spinks sued Chevron for damages under the general maritime law alleging that he was injured as a result of the Chevron's negligence and the unseaworthiness of its jack-up drilling barge, the S-66. Chevron filed a third party complaint against Labor Services claiming indemnity and attorney's fees, under the terms of a contract obligating Labor Services to defend Chevron in any suit brought against it by any of Labor Services' employees. 2 Labor Services counterclaimed against Chevron for indemnity or contribution, should Labor Services be cast in judgment. It also demanded that Chevron indemnify it for medical expenses and maintenance paid by Labor Services as a result of plaintiff's injury. The counter-claim rests on the theory that Spinks was the borrowed employee of Chevron. The district court granted judgment for Chevron on the merits.
In No. 70-252 Spinks sued only Labor Services (his immediate employer), Travelers Insurance Company, and the excess insurers of Labor Services, basing his suit on the Jones Act, 46 U.S.C. 688, 3 and the general maritime law. Labor Services filed a third party complaint against Chevron and Chevron filed a cross complaint against Labor Services. The district court dismissed this action.
In No. 71-150 (389) Spinks sued Labor Services for maintenance during a limited period of time, about four weeks, during which Labor Services discontinued the payment of maintenance while he was convalescing from his first disc surgery. According to Labor Services, the payments were discontinued to enable the employer to recover overpayment of maintenance. Before trial the parties stipulated that the plaintiff was not seeking future maintenance and cure.
Labor Services, which had, through its insurers, paid maintenance and cure to the plaintiff sought to recover these payments from Chevron. The district court enforced the agreement between Labor Services and Chevron subjecting Labor Services for liability for maintenance and cure payments. 4
The court did not enforce the agreement as to attorney's fees. The court concluded that 'the ends of justice would best be met by Chevron and Labor Services each being responsible for its own cost of defense.' 5
Chevron's jack-up drilling barge, the S-66, has a crew of thirty-five or thirty-six men who work, eat, and sleep aboard the barge. Of these, about eighteen are employees of Labor Services who the year around do maintenance work on the barge and perform the labor in jacking the barge up and down at each marine destination. Part of Labor Services' business is the supplying of laborers to work on oil rigs and drilling barges.
In March 1970 oil sprayed from a Chevron platform blew on the barge S-66. Chevron rented a small, portable steam-cleaning machine. The rental invoice reflects that the machine was used from March 3, 1970 to April 20, 1970 and that it was returned with the notation 'unit inoperative'. The regular Labor Services crew used the steam-cleaning machine every day after its arrival. Labor Services made the operation of the steam-cleaning machine a two-man job, one man to handle the nozzle and the other man to keep the machine running. The machine was equipped with a forty foot long hose. Keeping the machine running required supplying the machine with diesel fuel and with liquid detergent. Five-gallon cans were provided for carrying the fuel and the detergent. Each can when filled weighed forty pounds. The man who had the job of 'keeping the steam-cleaning machine going' had the duty of 'watching the machine' and spraying the belt with a nonslip compound to attempt to keep the machine from over-heating and stopping. The machine leaked liquid soap almost constantly.
Donnie Spinks was injured on the morning of April 8, 1970 when he stepped on a ramp aboard the S-66. He was nineteen years old at the time, a seaman, and a member of the crew of the barge. He had been employed by Labor Services for about eight months, all of which time had been spent aboard the S-66. On the day of the accident he was working with William Walker in steam-cleaning the heliport. Walker, an older and more experienced man, had been on the barge for about two and a half years. Walker's job was to handle the nozzle and Spinks' job was to supply the soap and diesel and keep the machine running. Their 'pusher' (supervisor or foreman) was George Hanks. Walker and Hanks were also employees of Labor Services. Labor Services provided Spinks' pay slips, withheld social security payments and taxes from his salary, and listed him as its employee. As noted, its contract with Chevron made it responsible for maintenance and cure payments for the employees furnished Chevron. Chevron controlled the operations of the S-66, supplied the tools and equipment, and assigned general tasks. The details of work were left to the pushers.
The heliport was connected to the barge proper by a ramp. This ramp was about three to four feet wide and ten to fifteen feet long, on about a three-step incline, and was equipped with handrails. Spinks had to make periodic trips to the barge for soap and fuel used in the spraying machine. Hanks knew that Spinks had made several trips carrying two buckets, one in each hand. Neither Hanks nor anyone else told Spinks to carry or not to carry two buckets. The district court found that the soapy condition on the walkway, which Hanks knew about, had existed for at least four hours. The court found that 'it had not been washed down as it should have been and plaintiff and his co-worker must bear the responsibility for that failure.' There was available on the barge an absorbent substance known as Dresser-Dri, the use of which might have made the footing less slippery. Spinks could have used it without permission, but did not. Nor did Hanks direct him to use it. The Chevron barge maintenance foreman testified that Labor Services pusher was the one to initiate the placing of the Dresser-Dri in the area where men would work.
On the first step of the ramp, Spinks fell, while carrying the heavy buckets. He suffered spinal disc damage which required two surgical operations to repair.
The trial court found that both Labor Services and Chevron were negligent in permitting the soap machine to run on diesel fuel instead of kerosene, in not correcting the leak around the piston pump of the machine, and that this use of a faulty soap machine, 'that is one with a leak in the pump area and one on which the belt frequently slipped, might be deemed to constitute an unseaworthy condition.' But the court held that their negligence and the 'deemed' unseaworthiness were not proximate causes of Spinks' injury. Indeed, the court found that Spinks' negligence was the sole proximate cause of his injury, because of (1) his 'and his co-worker's' failure to wash down the deck and ramp, (2) his decision to carry two heavy buckets, (3) his failure to use handrails, and (4) his failure to use Dresser-Dri. The court held that, as far as Spinks was concerned, the vessel was not unseaworthy, for Spinks' job was to repair the very conditions that were the subject of the unseaworthiness.
Spinks sued only Labor Services under the Jones Act. The district court granted an involuntary dismissal on the Jones Act claim, because (1) Labor Services was neither the owner nor the operator of the vessel, and (2) Spinks was the borrowed employee of Chevron. Spinks appeals this ruling, as well as the finding that his injury was caused by his sole negligence. He argues that (1) a seaman may have more than one Jones Act employer, and (2) under the admiralty doctrine of comparative negligence, at least some of the blame must be imputed to Labor Services through Hanks' failure to supervise Spinks properly and Walker's failure (with Spinks) to wash down the deck.
A. We conclude that the district court erred in denying recovery on the ground that Spinks' negligence was the sole proximate cause of his injuries. An employer's negligence need not be the sole proximate cause of an injury to result in his liability, but...
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