697 F.2d 1252 (5th Cir. 1983), 81-3022, Lewis v. Timco, Inc.

Docket Nº:81-3022.
Citation:697 F.2d 1252
Party Name:Alfred LEWIS, Plaintiff-Appellant Cross-Appellee, v. TIMCO, INC., et al., Defendants-Appellees, v. JOY MANUFACTURING, Defendant-Appellee Cross-Appellant.
Case Date:February 14, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1252

697 F.2d 1252 (5th Cir. 1983)

Alfred LEWIS, Plaintiff-Appellant Cross-Appellee,


TIMCO, INC., et al., Defendants-Appellees,


JOY MANUFACTURING, Defendant-Appellee Cross-Appellant.

No. 81-3022.

United States Court of Appeals, Fifth Circuit

February 14, 1983

Opinion on Granting of Rehearing En Banc April 18, 1983.

Robert K. Guillory, Cornelius Dupre, II, Eunice, La., for plaintiff-appellant, cross-appellee.

Page 1253

Patrick A. Juneau, Jr., Lafayette, La., for Home Petroleum.

Robert M. Contois, Jr., Edith Brown Clement, New Orleans, La., for Atwood Oceanic, Inc.

James E. Diaz, Lafayette, La., for Rebel Rentals.

John A. Jeansonne, Jr., Lafayette, La., for Joy Mfg.

Hal Broussard, Lafayette, La., for Timco.

Appeals from the United States District Court for the Western District of Louisiana.

Before GARZA, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

Alfred Lewis was injured while working on a jackup drilling barge in the coastal waters of Louisiana. Lewis sued Joy Manufacturing Company (manufacturer of the power tong unit involved in his injury), Home Petroleum Corporation (the offshore mineral lessee), Atwood Oceanics, Inc. (owner and operator of the VICKSBURG, the barge on which the injury occurred), Edwards Rental and Fishing Tools, Inc. (engaged in retrieving an obstruction from the drilling hole), and Rebel Rentals, Inc. (owner of the power tong unit involved in the accident). After a bench trial, the district court assessed financial responsibility 40% each to Joy Manufacturing and Rebel Rentals and 20% to Edwards Rental. 1 Lewis was found 50% at fault in a comparative negligence analysis and his damages were accordingly reduced, resulting in a net recovery of $343,027.22.

Lewis appeals contending that insofar as Joy Manufacturing is concerned, his claim sounds in strict products liability and, therefore, comparative negligence should not operate to reduce his recovery. We agree. Joy Manufacturing cross-appeals, contending that Timco and Atwood Oceanics should not have been dismissed as defendants. We disagree. Accordingly, the judgment of the trial court is affirmed in part and reversed in part.


Lewis, part of a crew furnished by Timco to the VICKSBURG, operated hydraulic tongs used in the "make-up" of tubing joints being placed in a well. 2 A computerized control unit was supplied by Rebel Rentals to monitor the torsional force applied to the tubing joints. Encountering difficulty using the original tongs with the control unit, Rebel Rentals sent the vessel a set of Hillman-Kelley Model 500C tubing tongs manufactured by Joy Manufacturing. 3 These were involved in the accident.

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Lewis was relatively inexperienced in the operation of the tongs. On the day before his accident, a piece of equipment used to test the tubing was accidentally dropped in the drilling hole. An employee of Edwards Rental was dispatched to retrieve the equipment with a special "fishing tool." While Lewis and other Timco workers were assisting in the "fishing" operation, the power tong device failed to shut off automatically upon release of the throttle, as it should have done, and Lewis was seriously injured. As the trial court found, the "tongs had a design defect in that a control setting could be imposed which would cause them to continue operating even when the throttle was released." 4 The district court considered Lewis to be negligent for "attempting to make up the fishing tool joint without adjusting the length of the snubbing line."

The findings that the power tongs were defective and unreasonably dangerous and that Lewis' negligence contributed to his injuries squarely present the question whether the general maritime law rule of comparative negligence is applicable in a products liability case by a longshoreman. 5 We conclude that it is not.

Strict Liability and Comparative Negligence

Although Joy Manufacturing challenges on appeal the trial court's conclusion that the tongs were defective, we are convinced that the district court's findings are legally and factually correct. That precipitates our consideration of the question of comparative negligence in a strict products liability suit, heard in federal court by virtue of the general maritime law. We start with the premise that comparative fault has long been the generally accepted doctrine in maritime torts. See, e.g., United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975); Pope & Talbot,

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Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143...

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