Stoot v. D & D Catering Service, Inc.

• Decision Date: 30 September 1985
• Docket Number: Civ. A. No. 83-0887.
• Citation: 618 F. Supp. 1274
• Court: U.S. District Court — Western District of Louisiana
• Parties: Joseph Robert STOOT v. D & D CATERING SERVICE, INC.

618 F. Supp. 1274

Joseph Robert STOOT v. D & D CATERING SERVICE, INC.

Civ. A. No. 83-0887.

United States District Court, W.D. Louisiana, Lake Charles Division.

September 30, 1985.

Anthony D. Moroux, Domengeaux & Wright, Lafayette, La., for plaintiff.

Norman P. Foret, McBride, Foret, Rozas & Leonard, Lafayette, La., Scott E. Delacroix and Lawrence E. Abbott, Hebert & Abbott, New Orleans, La., for defendant.

MEMORANDUM OPINION

VERON, District Judge.

In this suit, Joseph Robert Stoot seeks recovery from D & D Catering Service, Inc. under the General Maritime Law. Fluor Drilling Services, Inc. and its compensation insurer, Hartford Accident & Indemnity Company, have intervened for reimbursement for compensation and medical benefits paid to and on behalf of plaintiff. The matter came on before this Court, without a jury, on December 12, 1984.

FINDINGS OF FACT

On April 18, 1982, the plaintiff, Joseph Robert Stoot, was employed as a derrick-hand aboard the vessel "Mr. Dave," a jack-up drilling rig located approximately 12 miles offshore from Corpus Christi, Texas. The Mr. Dave was owned and operated by the intervenor, Fluor Drilling Services. Also employed aboard the Mr. Dave was Eloise Porter, a cook who was in control of the galley and had served the vessel by and through her galley services since November 3, 1981. Both plaintiff and Porter were crewmembers of the Mr. Dave. While Porter served the vessel over the course of several months prior to April, 1982, she was generally employed by D & D Catering Services, Inc., a labor service contractor and the sole defendant herein.

According to the testimony of Porter, the only other employees of D & D Catering aboard the rig were a galleyman, a bedroom man, and a night cook, along with a steward's helper. Porter had no supervisor or superior employee of defendant on board the vessel with her to exercise any degree of direct control over her day-to-day activities.

The plaintiff and Porter had been in contact since Porter was first assigned aboard the rig in November of 1981 and apparently enjoyed a casual and uneventful relationship until shortly before April 18, 1982. Problems arose between the two when the plaintiff began to work an earlier shift than usual, causing him to request meals from the galley at irregular hours. Porter apparently objected to feeding plaintiff at irregular hours and plaintiff reported this difficulty to Mr. Jaubert, his toolpusher. As a result, the toolpusher thereafter spoke directly to Porter about the situation, causing her to become upset.

On April 18, 1982, Porter and plaintiff had an altercation in the galley. When plaintiff entered the galley that morning just before 10:30 A.M., Porter told the plaintiff that he was "nothing but a troublemaker" because he had complained to his toolpusher, Jaubert about her not wanting to feed plaintiff at irregular hours. Without giving plaintiff an opportunity to deliver a retort, Porter marched back into the kitchen. Plaintiff then went to the ice machine in the dining area, turned and told Porter, "Kiss my ass," whereupon Porter came out of the kitchen into the dining area wielding a carving or butcher knife and replied that, "Nobody tells me to kiss their ass." In the ensuing encounter, Porter swung the knife at the plaintiff, severing the third and fourth digits, and lacerating the fifth digit of the plaintiff's right hand.

The plaintiff was flown by helicopter to the Memorial Medical Center in Corpus Christi, Texas, where the distal joint of his right ring finger was amputated and lacerations of his third and fifth digits were also treated. Plaintiff's third digit was partially amputated in January, 1983 and surgery was subsequently performed on his right hand on four additional occasions. The medical testimony shows that the plaintiff has been left with a forty-four percent disability of his right hand as a result of the knife slash.

CONCLUSIONS OF LAW

I. This action is brought pursuant to the General Maritime Law of the United States and this Court is vested with subject matter jurisdiction pursuant to 28 U.S.C. § 1333.

II. The plaintiff's cause of action fails to state a claim upon which relief can be granted under the General Maritime Law because recovery under the facts of this case may be had only against the vessel owner or operator.

A. The plaintiff's complaint seeks to hold the defendant vicariously liable for the assault of its general employee, Eloise Porter, upon plaintiff. While assigned by her general employer, defendant D & D Catering, aboard the Mr. Dave, Porter was a crewmember serving as galley cook in the furtherance of the vessel's mission. As a crewmember, any negligent actions on the part of Porter are traditionally charged to the owner or operator of the vessel for which Porter served.¹ In this case, however, plaintiff has already received $23,821.84 and has had medical expenses in the amount of $19,125.46 paid by his employer, Fluor Drilling Services, Inc. and its insurer, Hartford Accident & Indemnity Company, intervenors herein. As plaintiff's employer, Fluor, is both the owner and operator of the drilling vessel, Mr. Dave, it is the entity against which plaintiff has the traditional maritime remedies of vessel unseaworthiness and/or Jones Act negligence.² Having already been compensated by Fluor, however, plaintiff seeks to recover further damages from D & D Catering, which apparently assigned Porter aboard the Mr. Dave pursuant to an agreement³ with Fluor.

The novel question thus presented by this case is not whether Porter acted or intended to act on the vessel's behalf by assaulting plaintiff, but rather whether Porter acted within the course and scope of her employment with defendant, D & D Catering, by assaulting the plaintiff. After the parties submitted post-trial memoranda on the standard to be applied in determining whether the actions of Porter were within the course and scope of her employment, it became abundantly clear that no such standard exists under the General Maritime Law because the cause of action asserted by the plaintiff has never been recognized under the General Maritime Law.

This Court has found only one case where the remedy for an injury sustained from an assault upon a seaman by a fellow crewmember was sought under the General Maritime Law against a party other than the vessel owner or operator. In Hartsfield v. Seafarers International Union, 427 F.Supp. 264 (S.D.Ala.1977), the personal representative of a fatally assaulted seaman brought suit against the labor union that had allegedly undertaken the duty of supplying a crew to the vessel S.S. "Eagle Warrior," alleging that it negligently performed that duty in causing an individual to be a crewmember when it knew or should have known that that individual was unstable and dangerous to his fellow crewmembers, and that said negligence proximately caused the death of plaintiff's decedent. In noting that a labor organization is not in any position to supervise a crewmember while at sea, the Court recognized that the cause of action asserted by the plaintiff had no basis under the General Maritime Law.

A seaman who is assaulted may, under proper circumstances, recover damages for breach of the warranty of seaworthiness. Boudoin v. Lykes Bros. Steamship Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955). However, recovery in such a case may be had only against the vessel owner or operator. The history of litigation arising out of an assault by a fellow crewmember, whether the theory of liability has been unseaworthiness, negligence or respondeat superior, has dealt with the liability of SHIPOWNER to the injured seaman. Hartsfield, supra at 268, citing Annotation, 99 L.Ed. 359 (emphasis added).

Thus, it is clear that the General Maritime Law has never recognized a cause of action against any party, apart from the vessel owner or operator, seeking damages resulting from an assault perpetrated by a fellow crewmember. Id.; but c.f., Baggett v. Richardson, 342 F.Supp. 1024 (E.D.La. 1972) (wherein a cause of action was recognized under the General Maritime Law for an assault by persons who were not crewmembers of the vessel perpetrated upon the vessel's captain).⁴

B. The plaintiff nevertheless contends that because the admiralty law uses principles of the common law to fix its liability, Daigle v. Point Landing, Inc., 616 F.2d 825 (5th Cir.1980), this Court should apply common law principles of respondeat superior to find the defendant vicariously liable for the assault perpetrated by Porter. The General Maritime Law incorporates the general law of torts, however, only when doing so would not be inconsistent with the law of admiralty. Harrison v. Flota Mercante Grand Colombia S.A.,⁵ 577 F.2d 968, 977 (5th Cir.1978); Spinks v. Chevron Oil Company, 507 F.2d 216, 222 n. 8 (5th Cir.1975). It is a fundamental principle of the maritime law of the United States that it is to be uniform throughout the country. All of those cases brought under the General Maritime Law in which recovery has been awarded to a seaman for injuries sustained as a result of an assault by a fellow crewmember have been had only against the vessel owner or operator, usually involving a finding of unseaworthiness of the vessel as a result of the unfit nature of the crewmember perpetrating the assault. See, e.g., Clevenger v. Starfish & Oyster Co., 325 F.2d 397 (5th Cir.1963). In Clevenger, the Fifth Circuit Court of Appeals, noting that the warranty of seaworthiness extending from the shipowner has its roots deep in maritime history, held that a savage assault with a meat cleaver or similarly dangerous weapon by one crewmember upon another does, as a matter of law, constitute a breach of the warranty of seaworthiness. Id. at 402. The Court further noted that "when the action for unseaworthiness is available, its notion of liability swallows up any notion of maritime negligence, no matter how leniently...