727 F.2d 427 (5th Cir. 1984), 81-3004, Wallace v. Oceaneering Intern.

Docket Nº:81-3004.
Citation:727 F.2d 427
Party Name:Jerome D. WALLACE, Plaintiff-Appellee, v. OCEANEERING INTERNATIONAL, Defendant-Appellant-Appellee, and CITIES SERVICE COMPANY, Defendant-Appellant, v. ZAPATA OFFSHORE CO., Defendant-Appellant.
Case Date:March 19, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 427

727 F.2d 427 (5th Cir. 1984)

Jerome D. WALLACE, Plaintiff-Appellee,

v.

OCEANEERING INTERNATIONAL, Defendant-Appellant-Appellee,

and

CITIES SERVICE COMPANY, Defendant-Appellant,

v.

ZAPATA OFFSHORE CO., Defendant-Appellant.

No. 81-3004.

United States Court of Appeals, Fifth Circuit

March 19, 1984

Page 428

[Copyrighted Material Omitted]

Page 429

Patrick A. Juneau, Jr., Kathleen A. Manning, Lafayette, La., for Oceaneering Intern.

St. Paul Bourgeois, IV, Lafayette, La., for Cities Service Co.

John A. Jeansonne, Jr., Lafayette, La., for Zapata Offshore Co.

William D. Hunter, Morgan City, La., for plaintiff-appellee.

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

Before BROWN, GOLDBERG and HIGGINBOTHAM, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This case takes us on a familiar voyage. We are confronted here with claims of the seaman status of an offshore oil field diver, improper jury instructions on inflation, insubstantial evidence and an excessive jury verdict. Holding that the plaintiff was a seaman, we affirm the damage award against the employer-diving contractor and against the drilling contractor-vessel owner. However, we reverse the judgment against the oil company for whom the diving and drilling was being performed.

Jerome Wallace, a commercial diver, brought this action against his employer, Oceaneering International, Inc. (Oceaneering), a diving service contractor, for maintenance and cure and for damages under the Jones Act and the general maritime law. He brought a claim of negligence and unseaworthiness against Zapata Offshore Company (Zapata), the drilling contractor who owned the semi-submersible drilling vessel from which Wallace was working. Wallace also brought a negligence claim against Cities Service, for whom the drilling and diving work was performed and who maintained an employee on the drilling vessel to oversee the operation. Under special interrogatories a jury found for Wallace on all claims, awarded him damages of $1,581,792,

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and assigned percentages of responsibility for his damages as follows: 1

For more than nine years, Jerome Wallace worked as a commercial diver aboard vessels in the Gulf of Mexico. Prior to his accident, he was employed by Norman Industries and performed diving work and other chores aboard three vessels to which he was permanently assigned--the PIPELINER I, PIPELINER VI, and PIPELINER VII. As is the plight of many workers who go down to the sea in ships, Wallace made these vessels his home for as long as a month at a time, eating and sleeping aboard the vessels.

While still in the employ of Norman Industries, Wallace was contacted about possible employment with Oceaneering. Wallace indicated a preference for construction work diving as opposed to inspection diving. Wallace took this employment on the condition that he would be permanently assigned to the company's vessel, OCEANEER I, when it returned to the Gulf of Mexico. Meanwhile, Wallace was assigned to diving operations aboard the Zapata INTREPID. Wallace was promised that if things worked out well, he could become a supervisor aboard the OCEANEER I.

On September 9, 1978, Wallace first went out to the INTREPID in the Gulf of Mexico. He joined a diving crew that was hired by Cities Service and assigned to the Zapata INTREPID for an indefinite time and which, as it happened, worked for five days on the INTREPID.

The INTREPID crew consisted of its own Zapata drilling crew, the Oceaneering diving crew, and a representative from Cities Service who had overall supervising authority aboard the vessel. Cities Service had

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contracted with both Zapata and Oceaneering to perform drilling and diving services respectively. Clarence Stroud was toolpusher for Zapata. Kenneth Edwards was lead diver for Oceaneering and acted as supervisor of its diving crew. Although, in a sense, carrying the "big stick" aboard the INTREPID, John Quigel, Cities Service's company man, spoke softly and did not interfere with the diving operations.

Drilling operations were completed on one well and the INTREPID was skidded to another position approximately seven and one-half feet laterally in order to begin the drilling of a well at a new position. In order accurately to space the second well from the first, a template was to be lowered to the floor of the Gulf of Mexico. The diving crew was needed to make sure that the template was properly positioned and also to assist in the removal of the template once the operation had been completed. Thus, services of the diving crew were essential to the completion of the drilling operation and to the movement of the INTREPID from one drilling spot to another. On September 11, 1978, two days after coming aboard, Wallace was ordered by his supervisor, Ken Edwards, to make the deepest and most difficult dive of the entire operation. Wallace was ordered to descend approximately 155 feet to the ocean floor, and unbolt and remove the template so that drilling operations could proceed. He was instructed to stand on the template while it was being raised. As he was participating in the lifting of the template, a rusted, frayed cable used for hoisting the template broke, fell on him, and threw him to the ocean floor. Approximately 150 feet of cable recoiled striking Wallace's head, shoulders, and back. Managing to free himself of the cable, Wallace ascended to his first decompression water stop.

At his first water stop, Wallace was placed on an inadequate decompression schedule. As a result of the underwater accident and improper decompression procedures, Wallace developed serious symptoms 2 of decompression sickness at his 40 feet water stop. He was raised to the surface in a metal basket and was dazed. Proper treatment required that he be placed in a recompression chamber within five minutes so that he could avoid decompression sickness and the related physiological disorders. Unfortunately, there was at least a 12-minute delay. The delay was caused in part because Wallace's diving supervisor entered the recompression chamber with a cigarette lighter. To avoid an explosion, the chamber had to be depressurized, the lighter brought out, and the chamber re-recompressed.

Oceaneering's policy required that diving supervisors be familiar with both the safety manual of the company and the diving manual of the United States Navy and that both be kept aboard a vessel from which diving operations took place. Neither was aboard.

These mistakes were costly. As a result of this accident, Jerome Wallace's intelligence quotient has been reduced; his motor faculties are impaired; he has developed diplopia (double vision); he sometimes has a nervous jerk; he is permanently consigned to the use of crutches; and he suffers from severe depression, which, if it continues, may result in institutionalization. His prognosis for recovery is poor. 3

Seaman Status

Oceaneering argues that the District Court erred in denying its motion for directed verdict and j.n.o.v. on the question of Jones Act seaman status. The Jones Act incorporates the FELA standard, under which a directed verdict against the plaintiff is proper only when there is a complete absence of probative facts. Thezan v. Maritime Overseas Corp., 708 F.2d 175 (5th Cir.1983); Comeaux v. T.L. James & Co., 666 F.2d 294 (5th Cir.1982); Jussila v. M/T

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LOUISIANA BRIMSTONE, 691 F.2d 217 (5th Cir.1982); Allen v. Seacoast Products, Inc., 623 F.2d 355 (5th Cir.1980); Caldwell v. Manhattan Tankers Corp., 618 F.2d 361 (5th Cir.1980). However, contrary to the contentions of Wallace, Zapata, and Cities Service, that extremely low evidentiary standard applies only to questions of liability or damages once the claim is within the Jones Act; the FELA standard is not applicable to the threshold issue of seaman status. Cases deciding the propriety of directed verdict on issues of Jones Act seaman status have not used the "complete absence of probative facts" test. Jones v. Mississippi River Grain Elevator Co., 703 F.2d 108 (5th Cir.1983); Savoie v. Otto Candies, 692 F.2d 363 (5th Cir.1982) ("reasonable evidentiary basis"); Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir.1982) ("any substantial evidence"); Bazile v. Bisso Marine Co., 606 F.2d 101 (5th Cir.1979) ("Boeing" reasonable men standard); Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 454 (5th Cir.1980). Although the language in these cases varies somewhat, we conclude that a motion for a directed verdict denying Jones Act seaman status should be judged, as in Boeing, by whether there was a reasonable evidentiary basis for a jury finding that the plaintiff was a seaman. Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 374, 77 S.Ct. 415, 417, 1 L.Ed.2d 404 (1957); Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 253, 78 S.Ct. 687, 688, 2 L.Ed.2d 737 (1958); Guidry v. South Louisiana Contractors, 614 F.2d 447 (5th Cir.1982). Seaman status is generally a question for the jury. Only in rare cases is the question taken from the jury or trier of facts. Brunet v. Boh Brothers Construction Co., 715 F.2d 196, 198 (5th Cir.1983), citing Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959). The issue is to be left to the jury even when the claim to seaman status appears to be relatively marginal. Bouvier v. Krenz, 702 F.2d 89, 90 (5 Cir.1983); Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir.1982), citing Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957).

The substantive test for seaman status was established in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959). In essence, Robison and later cases held that to qualify as a seaman a claimant under the Jones Act "must be...

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