Barrios v. Louisiana Construction Materials Company

• Decision Date: 19 September 1972
• Docket Number: No. 71-2029.,71-2029.
• Citation: 465 F.2d 1157
• Parties: Nolan Joseph BARRIOS, Plaintiff-Appellee-Cross Appellant, v. LOUISIANA CONSTRUCTION MATERIALS COMPANY et al., Defendants-Appellees, Williams-McWilliams Industries, Inc., Defendant-Appellant-Cross Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 1157 (1972)

Nolan Joseph BARRIOS, Plaintiff-Appellee-Cross Appellant, v. LOUISIANA CONSTRUCTION MATERIALS COMPANY et al., Defendants-Appellees Williams-McWilliams Industries, Inc., Defendant-Appellant-Cross Appellee.

No. 71-2029.

United States Court of Appeals, Fifth Circuit.

August 1, 1972.

Rehearing and Rehearing Denied September 19, 1972.

COPYRIGHT MATERIAL OMITTED

Ralph E. Smith, Deutsch, Kerrigan & Stiles, New Orleans, La., for Employers Group Ins. Co. and Williams-McWilliams Industries, Inc.

James A. Wysocki, Fritz H. Windhorst, for Barrios.

Clarence A. Frost, Robert O. Holmes, Faris, Ellis, Cutrone, Gilmore & Lautenschlaeger, New Orleans, La., for A. O. Rappelet and Louisiana Const. Materials Co.

Before RIVES, BELL and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied September 19, 1972.

LEWIS R. MORGAN, Circuit Judge:

This case involves a claim for personal injuries under the Jones Act¹ and the general maritime law. In the court below, Nolan J. Barrios obtained a judgment against Williams-McWilliams Industries, Inc. (hereinafter Williams-McWilliams) and A. O. Rappelet d/b/a Louisiana Construction Materials (hereinafter Rappelet) as joint tort-feasors. Rappelet successfully cross-claimed against Williams-McWilliams for indemnification. On appeal, all of the parties have assigned various points of error. After reviewing these contentions, we affirm the judgment of the district court in all respects.

I.

In 1965 Williams-McWilliams contraced with the Greater Lafourche Port Commission for construction of port facilities adjacent to Bayou Lafourche, Louisiana. The contract called, inter alia, for the construction of a flood protection levee near Bayou Fourchon. To build the levee, Williams-McWilliams rented from Louisiana Construction Materials Company a 90-ton dragline.

Louisiana Construction Materials Company was a sole proprietorship owned by A. O. Rappelet who was also president of the Greater Lafourche Port Commission. Rappelet's position on the Port Commission barred his company from contracting directly with the Port Commission, but did not prohibit the leasing of equipment to the various contractors doing work for the Port Commission.

Williams-McWilliams hired appellee Barrios to serve as an oiler on the dragline. Barrios had been employed by Rappelet as an oiler on the dragline prior to its rental to Williams-McWilliams for the levee work, and was hired by Williams-McWilliams because he was familar with the equipment and available for work. Also hired was another former Rappelet employee, Junius Dufrene, to serve as the operator of the dragline.

Work commenced on the levee in August, 1965, when the dragline was loaded on a spud barge and transported to Bayou Fourchon where it was unloaded. The dragline began operations 500 feet from the water's edge and moved inland. The barge remained at the worksite and was used to store oil, fuel, and equipment for the dragline.

Shortly thereafter operations were suspended because of Hurricane Betsy. While the work was suspended, the dragline was loaded on the barge and returned to Leeville and subsequently rented to Gulf Oil Corporation for dredging operations in Timbalier Bay. During the operation in Timbalier Bay, the dragline remained onboard the barge and operated from it. Dufrene and Barrios remained with the dragline and were shifted back to Rappelet's payroll. By late November, 1965, the work for Gulf was completed and the dragline was moved back to Bayou Fourchon where work on the levee resumed. Dufrene and Barrios returned to the Williams-McWilliams payroll.

In January, 1966, the dragline became bogged down in mud. The spud barge with Dufrene and Barrios aboard was towed to the Port Commission facility in order to obtain a second dragline to help free the first 90-ton dragline and get it back into operation. The second dragline was loaded on the barge on January 21, 1966.

Shortly after the second dragline was loaded on the barge, it was discovered that the lifting cable of one of the barge's spuds was fouled. Spuds are vertical steel columns at each end of the barge. When the barge is afloat, the spuds are lowered to the water bottom and serve to hold the barge in place. Each spud is equipped with a power winch and cable by which it is raised or lowered. Thus, it was necessary to remove and replace the fouled cable before the barge could be moved.

The second dragline, which was then on the barge, was used to raise the spud. On this particular spud, the dogs had been removed so that the spud could not be locked in the raised position. Thus, it was necessary to use the dragline to hold up the spud. With the weight of the spud off the cable, the cable was pulled from the sheaves in the spud by hand. While physically pulling on the cable, Barrios sustained an injury to his back. Barrios reported his injury within a few days. Thereafter, he began receiving Louisiana State Workmen's Compensation from Williams-McWilliams at the rate of $35.00 per week.

Payments were terminated when Barrios brought the instant suit naming Rappelet and Williams-McWilliams as defendants. Also named as defendants were Employers Group Insurance Company and ABC Insurance Group, the liability insurers for the two companies. Barrios' complaint alleged Jones Act negligence as well as unseaworthiness as the bases for recovery. Simultaneously, Barrios brought a second action against Rappelet and Williams-McWilliams for maintenance and cure and for damages for failure to pay maintenance and cure. The two actions were consolidated for trial.

Williams-McWilliams cross-claimed against Rappelet for indemnification and for recovery of $4,628.21 in workmen's compensation benefits paid to Barrios. Likewise, Rappelet cross-claimed against Williams-McWilliams for indemnification. The cases were tried to a jury, except that the cross-claims for indemnification were tried to the court. On the basis of answers to written interrogatories to the jury,² judgment was entered for the plaintiff Barrios against all defendants on all claims except for damages for willful failure to pay maintenance and cure. On that issue, the jury failed to reach a verdict, and by agreement, the matter was submitted to the court. The court dismissed the claim. The court ruled in favor of Rappelet and against Williams-McWilliams on the cross-claims for indemnification.

II.

A. The remedial ambit of the Jones Act extends only to injured individuals who are "seamen" and "members of a crew" of a vessel.³ See Swanson v. Marra Bros., Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946). Williams-McWilliams' initial contention is that the evidence is insufficient to support the jury's finding that Barrios was a seaman. We disagree.

Traditionally, it has been said that there are three requirements which must be present in order for the injured individual to qualify as a seaman: (1) there must be a vessel in navigation; (2) the individual must have a more or less permanent connection with the ship ; (3) the capacity in which the individual is employed or the duties which he performs must contribute to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. See Offshore Company v. Robison, 5 Cir. 1959, 266 F.2d 769; McKie v. Diamond Marine Company, 5 Cir. 1953, 204 F.2d 132 ; Brannan v. Great Lakes Dredge & Dock Co., 253 Minn. 28, 91 N.W.2d 166 (1958).

However, at least since the Supreme Court's two decisions in Senko v. La Crosse Dredging Corporation, (1957) 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404, reh. den. 353 U.S. 931, 77 S.Ct. 716, 1 L.Ed.2d 724 and Grimes v. Raymond Concrete Pile Co. (1958), 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737, it has been clear that it is a rare case indeed in which a court may conclude as a matter of law that an injured individual is not a seaman within the meaning of the Jones Act. In Senko the court held that :

Our holding * * * that the determination of whether an injured person was a "member of a crew" is to be left to the finder of fact means that juries have the same discretion they have in finding negligence or any other fact. The essence of this discretion is that a jury\'s decision is final if it has a reasonable basis, whether or not the appellate court agrees with the jury\'s estimate.

The facts of these two cases, particularly of Grimes, make it plain that the issue is to be left to the jury even when the claim to seaman status appears to be a relatively marginal one.⁴

In applying Senko and Grimes, this circuit has held that even where the underlying facts are largely undisputed, the determination of whether an individual is a seaman will ordinarily be left to the jury. As this court observed in the leading case of Offshore Company v. Robison, 5 Cir. 1959, 266 F.2d 769, 780:

Attempts to fix unvarying meanings having a firm legal significance to such terms as "seaman", "vessel", "member of a crew" must come to grief on the facts. These terms have such a wide range of meaning, under the Jones Act as interpreted in the courts, that, except in rare cases, only a jury or trier of facts can determine their application in the circumstances of a particular case. Even where the facts are largely undisputed, the question at issue is not solely a question of law, when, because of conflicting inferences that may lead to different conclusions among reasonable men, a trial judge cannot state an unvarying rule of law that fits the facts.

See also Bodden v. Coordinated Caribbean Transport, Inc., 5 Cir. 1966, 369 F.2d 273.

After reviewing this record carefully, we conclude that it affords a reasonable basis for the jury's conclusion that Barrios was a member of the crew of the spud barge. The record reveals that Barrios started working with the spud barge and dragline in May, 1965, and that he continued to...