Barger v. Petroleum Helicopters, Inc.

Decision Date21 May 1981
Docket NumberCiv. A. No. B-77-180-CA.
PartiesMary E. BARGER v. PETROLEUM HELICOPTERS, INC., and Bell Helicopters International, Inc.
CourtU.S. District Court — Eastern District of Texas

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Hubert Oxford, III, Benckenstein, McNicholas, Oxford, Radford, Johnson & Nathan, Beaumont, Tex., for plaintiffs.

Vance E. Ellefson, Lugenbuhl, Larzelere & Ellefson, New Orleans, La., for defendant Petroleum Helicopters, Inc., and intervenor American Home Assur. Co.

J. E. Williams, Jr., Fulbright & Jaworski, Houston, Tex., for defendant Bell Helicopters/Textron.

MEMORANDUM OPINION1

JOE J. FISHER, District Judge.

Just after sunrise on the morning of April 23, 1976, the helicopter piloted by the Plaintiffs' decedent, Walter Barger, crashed into the Gulf of Mexico some 40 miles off the coast of Louisiana. Barger and all eleven of his passengers were killed. The Plaintiffs2 brought this suit pursuant to Rule 9(h) of the Federal Rules of Civil Procedure, the Jones Act, 46 U.S.C. § 688, the Death on the High Seas Act, 46 U.S.C. § 761 et seq. (DOHSA), and the general maritime law to recover for Barger's death. The Defendants are Petroleum Helicopters, Inc. (PHI), Barger's employer and the owner of the helicopter, and Bell Helicopters/Textron (Bell), the helicopter's manufacturer. The cause of action against Bell is based on Texas tort law applicable in admiralty through DOHSA, see, e. g., Fosen v. United Technologies Corp., 484 F.Supp. 490, 496 (S.D.N.Y.), aff'd, 633 F.2d 203 (2d Cir. 1980), and is pendent to the federal statutory and admiralty claims against PHI.3 Trial was to the Court.

PHI is engaged in the business of transporting workers to and from drilling platforms in, among other places, the Gulf of Mexico off the coast of Texas and Louisiana. It maintains offices in Sabine Pass, Texas, and Cameron, Louisiana. Barger was employed by PHI as a pilot of one of its helicopters. On the day in question, Barger was operating a Bell 205A-1 PHI-owned helicopter bearing aircraft registration number N8167J from Cameron to a drilling rig owned by Blue Dolphin Corporation in the Gulf of Mexico. Barger was ferrying eleven Blue Dolphin employees to the rig. Approximately 40 miles offshore and 5 to 6 miles from the Blue Dolphin rig, the tail boom separated from the main body of the helicopter in flight, causing it to spin uncontrollably and crash into the Gulf.4

The tail boom separated when two of the four longeron fittings that attach the tail to the cabin failed. The evidence establishes that the upper left longeron fitting failed due to corrosion5 and metal fatigue. The lower left longeron fitting failed immediately afterward, likewise due to corrosion and metal fatigue. Prior to the time of the crash, the two left fittings exhibited fatigue striations, which are marks on a fatigue fracture made by an advancing crack. The fatigue portions of the cracks were over an inch wide and an inch long in the upper left fitting and almost an inch and a half to an inch in the lower left. There were two cracks in each of the left longeron fittings. These cracks had been present for at least several hundred flight hours prior to the crash.

PHI had removed the tail boom from the helicopter in question three years and 3,747 flight hours prior to the crash. On reassembly, one of the bolts used was of an incorrect type and five of other fasteners were installed backwards.6 Both the Bell instruction manual and PHI's own inspection and maintenance procedures required that the longeron fittings be visually inspected every 100 flight hours. PHI had knowledge that there could be problems with these fittings in a corrosive environment by virtue of its having submitted to Bell nearly three years earlier a Malfunction Defect Report (MDR) along with a failed upper left fitting.7 In early 1974, Bell reported to PHI the cause of the failure, and orally advised a PHI employee that its inspection procedures should be modified so as to more closely inspect the longeron fittings, without providing specific instructions on how to do so.

PHI is the largest commercial helicopter firm in the world and clearly has the requisite experience and expertise to properly inspect and maintain its helicopters. In particular, PHI's mechanics are experts in the field of helicopter repair and maintenance, are FAA certified, and should be held to the standard of an expert. Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 464, 465-66 (5th Cir. 1976). As such, PHI could have been reasonably expected to devise a proper method of inspecting the longeron fittings on its helicopters, despite the lack of formal instructions from Bell.8 In fact, the National Transportation Safety Board inspector assigned to this crash found that, prior to the crash, PHI had in fact established a procedure to inspect these fittings. The failure of PHI's employees to discover the cracks and the gouge in the two left longeron fittings during one of the 100 hour inspections that took place while the cracks were in existence and visible for about 300 flight hours prior to the crash constitutes negligence, which was a contributing cause of the crash and the death of the Plaintiffs' decedent.

The evidence indicates that the tail boom of helicopters operating in a corrosive environment should be completely removed and carefully scrutinized at no more than 1,000 flight-hour intervals.9 Such an inspection would have readily disclosed the fatigue cracks in the left longeron fittings. The failure of PHI to remove the tail boom from Barger's helicopter for a period in excess of 3,700 flight-hours constitutes negligence, which was a contributing cause of the crash made the basis of this suit. PHI's negligence in failing to perform this type of inspection is particularly blameworthy, as it previously had knowledge of the tendency of the longeron fittings to fail in the environment in which its business is conducted.

The quantum of negligence required to impose liability under the Jones Act is very slight, and it need only be a contributing cause of the incident giving rise to the suit. Allen v. Seacoast Products, Inc., 623 F.2d 355, 361 (5th Cir. 1980); Reyes v. Vantage Steamship Co., 609 F.2d 140, 142 (5th Cir. 1980); Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir. 1977); Bush v. Texaco, Inc., 504 F.Supp. 670, 672 (E.D.Tex. 1981). The Plaintiffs easily satisfied this featherweight burden.

The duty to provide a reasonably seaworthy vessel is absolute and is completely independent of the employer's obligation to exercise reasonable care. Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 327, 81 S.Ct. 6, 9, 5 L.Ed.2d 20 (1960); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 932, 4 L.Ed.2d 941 (1960). If, as the Plaintiffs contend, the helicopter, under the facts of this case, was a vessel within the meaning of the Jones Act and the general maritime law, then it is abundantly clear that it was not reasonably fit for its intended purpose and, therefore, unseaworthy. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971); Mitchell, 362 U.S. at 550, 80 S.Ct. at 933. The Court finds that such unseaworthy condition was a proximate cause of the crash.

The helicopter was in normal use at the time of the crash, and was in substantially the same condition as when it was sold to PHI by Bell in 1970. The helicopter was designed so that a part which is subjected to a great amount of stress, the upper left longeron fitting, was located in a position not readily accessible for inspection. The evidence at trial shows that Bell could have designed the 205A-1 to eliminate the joint requiring longeron fittings completely, used fittings made of steel or some other non-critical alloy, placed the fittings on the outside of the craft for easy inspection, or provided an easily removable inspection panel on the skin of the tail boom.

Moreover, the Court finds that the upper left longeron fitting, which is subject to more stress while underway than the other three fittings, was of insufficient strength and design for the use for which it is intended. The benefits, if any, from the use of longeron fittings as described above are heavily outweighed by the risks such design imposes upon the user of the product. Turner v. General Motors Corp., 584 S.W.2d 844, 847 & n. 1 (Tex.1979). As designed, the Bell 205A-1 helicopter was defective and unreasonably dangerous within the meaning of section 402A of the Restatement (Second) of Torts (1965). McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 789 (Tex. 1967); Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519, 530 (Tex.Civ.App.—Corpus Christi 1979, writ ref'd n.r.e.). Such defective design was a producing cause of the crash of April 23, 1976. General Motors Corp. v. Hopkins, 548 S.W.2d 344, 351 & n. 3 (Tex.1977).

The evidence unequivocally shows that Barger in no way contributed to causing the accident. In addition, there was nothing he could have done after the tail boom separated to prevent the crash. The Court finds that, on the occasion in question, the Plaintiffs' decedent was not negligent.

The comparative fault of the Defendants will be assessed at 80% for PHI and 20% for Bell. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 204, 98 L.Ed. 143 (1953); Leger v. Drilling Well Control, Inc., 592 F.2d 1246, 1249 (5th Cir. 1979); Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d 968, 982 (5th Cir. 1978). Cf. United States v. Reliable Transfer Co., 421 U.S. 397, 407, 95 S.Ct. 1708, 1713, 44 L.Ed.2d 251 (1975).

In order for the Plaintiffs to recover under the Jones Act, 46 U.S.C. § 688,10 they must show that Barger was a seaman. Swanson v. Marra Brothers, Inc., 328 U.S. 1, 5, 66 S.Ct. 869, 871, 90 L.Ed. 1045 (1946); Wixom v. Boland Marine & Manufacturing Co., Inc., 614 F.2d 956, 957 (5th Cir. 1980); Guidry v. South...

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