Verrett v. McDonough Marine Service

• Decision Date: 31 May 1983
• Docket Number: No. 82-3001.,82-3001.
• Citation: 705 F.2d 1437
• Parties: Jerry Joseph VERRETT, Plaintiff-Appellee, Cross-Appellant, v. McDONOUGH MARINE SERVICE, Defendant-Appellee, BOUDREAUX TOWING COMPANY, INC., Defendant-Third-Party-Plaintiff-Appellee-Cross-Appellant, v. SUPERIOR OIL COMPANY, Third-Party-Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

705 F.2d 1437

Jerry Joseph VERRETT, Plaintiff-Appellee, Cross-Appellant, v. McDONOUGH MARINE SERVICE, Defendant-Appellee, BOUDREAUX TOWING COMPANY, INC., Defendant-Third-Party-Plaintiff-Appellee-Cross-Appellant, v. SUPERIOR OIL COMPANY, Third-Party-Defendant-Appellant, Cross-Appellee.

No. 82-3001.

United States Court of Appeals, Fifth Circuit.

May 31, 1983.

COPYRIGHT MATERIAL OMITTED

Liskow & Lewis, Robert W. Booksh, Jr., Charles M. Steen, Donald R. Abaunza, New Orleans, La., for third-party-defendant-appellant.

Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Eldon E. Fallon, New Orleans, La., for Verrett.

Hebert, Abbott & Horack, Andre J. Mouledoux, New Orleans, La., Diaz & Cheramie, Carlton J. Cheramie, Golden Meadow, La., for Boudreaux Towing.

Before BROWN, GOLDBERG and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

In this personal injury action arising under the Jones Act, 46 U.S.C. § 688, and the General Maritime Law, appellant, Superior Oil Company (Superior), and cross-appellant, Boudreaux Towing Co. (Boudreaux), challenge the district court's finding of negligence on their parts, of no contributory negligence on the part of the plaintiff-appellee, Verrett, the district court's dismissal of their respective cross-claims for indemnity, and its assessment of the percentages of fault and of damages. In addition, Boudreaux contests the district court's denying it limitation of liability. Because we find that the decision of the district court, in all respects save its award of damages for future pain, is not clearly erroneous, we affirm and remand.

I. The Facts

Superior owned certain production facilities in the Bayou Penchant field, located inshore, Louisiana. The field was positioned in a marshy area and linked by a series of navigable canals. At the end of each canal in the field there was a well with a walk-around platform which enabled the wells to be checked. The plaintiff, Jerry Joseph Verrett, was employed by Superior as a pumper. His duties required him to check routinely gauges, make recordings of temperature and flow rate and to perform required maintenance on oil or gas producing wells in the Bayou Penchant field by riding to each well in a company-owned vessel, the M/V MISS SUPERIOR 75.

Diamond M Drilling Company was drilling a well for Superior in the Bayou Penchant field. Superior was represented on the drilling by a Bull Durham, its employee. Superior had contracted with Boudreaux to supply a tug and personnel to navigate that vessel. Pursuant to this arrangement, Boudreaux supplied the M/V ELAINE B, whose captain was Roy Matherne.

On December 22, 1977, the Diamond M rig had completed its drilling operations and was scheduled to be moved out of the field the next day. As a result, some of the barges providing support services for the drilling operation had to be moved. One of these was a pollution barge owned by McDonough Marine Service, Inc. which had been bareboat chartered to Superior. Durham requested that Matherne and his crew from the M/V ELAINE B remove the pollution barge so that he (Durham) could relocate the rig the following day.

The M/V ELAINE B removed the barge from the rig and placed it in the B-5 canal (the nearest canal to the drilling rig) by securing one end of the barge to a cypress tree on the right bank. The tug then came around and pushed the opposite end of the barge close to the right bank.

The pollution barge was 30 feet wide and 110 feet long, approximately half the width of the canal. On December 22, 1977, the monitoring board in a shack used as headquarters by Superior employees maintaining the field indicated a problem at one of the wells. Verrett, as one of two Superior employees in the shack, was responsible for checking the malfunctioning well. In the early morning hours of December 23, 1977, Verrett set out alone aboard the M/V MISS SUPERIOR 75 to locate and repair the malfunctioning well.

The M/V MISS SUPERIOR 75 was a small speedboat, equipped with running lights as well as a spotlight. Verrett, in navigating the MISS SUPERIOR, used only his running lights, not the spotlight. He began the inspection with the A-9 well located in the A-9 canal, then proceeded to check the B-5 well. As the M/V MISS SUPERIOR turned into the B-5 canal, it collided with the pollution barge which was blocking part of the canal near the entrance on the right side. The unsecured end of the barge had swung out to block about half of the canal. It was in this collision, which occurred shortly after 2:00 a.m., that Mr. Verrett sustained the back injuries giving rise to this lawsuit.

II. The Appeal

A. Superior's Negligence

Superior objects first to the district court's finding it negligent and that such negligence contributed to the collision. The district court found that Verrett was a seaman as a member of the crew of the MISS SUPERIOR. As such, it held that Verrett had a claim against his employer, Superior, under the Jones Act, 46 U.S.C. § 688. The court held that "Superior was under a duty to supervise plaintiff's work and, in so doing, to warn him of all impending dangers of which it was aware or should have been aware, being charged with the employee's lack of knowledge. A failure to satisfy this duty constitutes negligence." Olsen v. States Line, 378 F.2d 217, 221 (9th Cir.1967). The court reasoned that there was a duty on the part of Superior's employee, Bull Durham, to see that the pollution barge was moored safely, which included mooring it in a proper location and in a safe manner with respect to lights and lines. It held further that Durham was in a position of authority to have so instructed Boudreaux's captain, Matherne, and that Durham's failure to do so constituted negligence. On this basis, the court found that Superior's negligence in failing to see that the barge was properly moored or to notify Superior employees of its location contributed to the collision that ensued.

Findings of fact by the district court will not be disturbed unless clearly erroneous. F.R.Civ.P. 52(a); see Chisholm v. Sabine Towing & Transportation Co., 679 F.2d 60 (5th Cir.1982); Sebree v. United States, 567 F.2d 292, 293-94 (5th Cir.1978). A finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Ferrero v. United States, 603 F.2d 510, 512 (5th Cir.1979). Measured by this standard, we hold that the district court's determination that Superior was negligent is not clearly erroneous.

Under the Jones Act, an employer has a duty to provide a safe place to work. This duty extends to areas over which the employer has control. Broussard v. Marine Transport Lines, Inc., 369 F.Supp. 103, 105 (E.D.Tex.1974); see also Vincent v. Harvey Well Service, 441 F.2d 146 (5th Cir.1971). Contrary to the assertion of Superior in its brief that the district court did not base its finding of liability on the part of Superior on a failure to fulfill this duty, the court implicitly at least found that Superior's duty and control extended to mooring the barge in the B-5 canal. Because it failed to supervise the mooring of the barge, the court found Superior negligent.

Here, Durham was superintendent of the drilling operation and knew that the Superior pumpers, such as Verrett, would be traveling in the deadend canals at night. As such, Durham, Superior's employee, had a duty to warn Superior employees of the location of the barge.

The evidence also shows that Durham made no attempt to notify either the Superior production or drilling departments about the placement of the barge. Moreover, Durham did not ask Matherne in which canal the barge had been placed. Instead, Durham testified that the particular placement of the barge did not matter to him so long as the barge was out of his way. We hold that such actions clearly support the district court's finding that Superior violated its duty to provide a safe work place and that this failure to see that the barge was properly moored or to notify Superior employees of its location was a producing cause of Verrett's injury. Under the Jones Act, that is sufficient for a finding of negligence. See Chisholm, 679 F.2d at 62.¹

B. Boudreaux's Negligence

The second issue which must be addressed in this appeal is Boudreaux's argument that the district court's holding of negligence on its part was unjustified. The district court found that Boudreaux had been negligent in improperly mooring the pollution barge and in failing to put lights or reflectors on the barge so that it would be illuminated at night. Both omissions constituted violations of Coast Guard regulations. See 33 C.F.R. § 80.16(a) and (h), and 33 C.F.R. § 162.75(3)(ii). The court found that failure to comply with these regulations constituted negligence per se. Reyes v. Vantage S.S. Co., 558 F.2d 238, 243 (5th Cir.1977); modified, 609 F.2d 140 (5th Cir.1980).

This finding of negligence included as well a determination that Matherne should have known or should have found out that the barge would remain in the canal overnight. Moreover, the court found that the only possible reason for not mooring both ends of the barge or lighting it was lack of adequate equipment on the tug being used by Matherne. Since the court found that neither of these factors would constitute sufficient justification for failure to comply with the statutes, it held that the negligence of the crew and the unseaworthiness of the vessel contributed to the collision between the MISS SUPERIOR and the pollution barge.

Boudreaux takes exception first to the court's finding that it had improperly moored the pollution barge. It argues first that the testimony at trial indicated that Matherne could not have placed the barge anywhere but in the B-5 canal because the only other available site,...