Boyle v. Pool Offshore Co., A Div. of Enserch Corp.

• Decision Date: 05 February 1990
• Docket Number: No. 88-3924,88-3924
• Citation: 893 F.2d 713
• Parties: 29 Fed. R. Evid. Serv. 984 John BOYLE, Plaintiff-Appellee, Cross-Appellant, v. POOL OFFSHORE COMPANY, A DIVISION OF ENSERCH CORPORATION, Employers National Insurance Company & Seahorse Marine, Inc. (a/k/a Seahorse, Inc.), Defendants-Appellants, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 713

893 F.2d 713

29 Fed. R. Evid. Serv. 984

John BOYLE, Plaintiff-Appellee, Cross-Appellant, v. POOL OFFSHORE COMPANY, A DIVISION OF ENSERCH CORPORATION Employers National Insurance Company & Seahorse Marine, Inc. (a/k/a Seahorse, Inc.) Defendants-Appellants, Cross-Appellee.

No. 88-3924.

United States Court of Appeals Fifth Circuit.

Feb. 5, 1990.

Rehearing Denied March 15, 1990.

W.K. Cristovich, Kevin R. Tully, Michael Cristovich, Christovich & Kearney, New Orleans, La., for Seahorse Marine, Inc.

Thomas J. Wagner, Michael H. Bagot, Jr., Wagner & Bagor, New Orleans, La., for Pool, etc. & Employers, etc.

Nathan Greenberg, David Greenberg, Greenberg & Dallam, Gretna, La., for plaintiff-appellee, cross-appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARZA, WILLIAMS and DAVIS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This case arises out of an accident aboard an offshore drilling rig. Appellee John Boyle was injured as he assisted in transferring a flexible, four inch mud hose back to a supply vessel.

Boyle sued Pool Offshore Co., the operator of the drilling rig and Seahorse, Inc., the operator of the supply vessel. ¹ The case was tried before a jury which returned a verdict awarding Boyle $266,910.00 in damages. The jury calculated that Pool's negligence was 65% of the accident's cause, and that Seahorse's negligence was 35% to blame. The jury found that Boyle was not at fault. The district court granted judgment on the verdict, and Pool and Seahorse appeal.

I. Facts and Prior Proceedings

The weather was severe on the night of December 29, 1983. There was conflicting testimony, but it is established the temperature was below freezing, the winds were strong, and the seas were rough. The supply vessel M/V TAMPA SEAHORSE moored itself to Pool Rig 54. Among other supplies, the TAMPA SEAHORSE had brought a load of drilling mud to the rig. In order to transfer the mud, it was necessary to lift a mud hose from the vessel onto the rig. To accomplish this task, the rig's crane operator, Travis McNeese, lowered the rig's crane cable onto the vessel. Although the crane cable included several components, for purposes of this case it is important to note only that the cable assembly terminated in a safety shackle. Crew members aboard the TAMPA SEAHORSE attached the end of the mud hose to the safety shackle, and the mud hose was lifted aboard the rig. It was then lashed down at three locations so that it would not fall back onto the supply ship. The end of the hose was placed in the mud pit and the mud was pumped onto the rig.

After the mud transfer was completed, McNeese, the crane operator, directed Boyle to assist him in returning the mud hose to the supply vessel. McNeese took his station at the crane and lowered the shackle to Boyle. Boyle removed the hose from the pit, capped the hose end, and attached the hose to the shackle. At Boyle's signal, McNeese raised the hose a few feet. McNeese then removed the first tie-down. After the hose was raised some more, Boyle removed the second tie-down. Boyle then motioned McNeese to raise the hose again. Before Boyle could remove the third and final lashing, however, the hose fell a distance of at least 40 feet. Boyle was hit by the falling hose and was injured.

The dispute in this case centers around the method Boyle used to re-attach the hose to the crane cable shackle. Appellants Pool and Seahorse claim that when the mud hose came aboard the rig, it was "noosed," that the noose remained on the hose when it was in the pit, and that Boyle improperly re-attached the noose to the shackle. In the noosing procedure, a sling (a steel cable with loops or eyes affixed at either end) is wrapped around the hose. One end of the sling is then passed through the eye at the other end. When the free eye is hooked into the shackle, the noose, in effect a slip knot, draws tight around the hose and the hose can be lifted safely. Appellants suggest that Boyle must have attached the wrong sling eye to the shackle. Boyle, however, claims that the hose was not noosed. Boyle claims that when he removed the hose from the mud pit, one end of the sling was already tied to the hose with lightweight rope or cord. Boyle explains that when he re-attached the hose to the cable, he simply hooked the free end of the already attached sling to the shackle. Boyle suggests that when the hose was lifted the cord eventually failed, allowing the hose to fall.

After the accident, Pool's employees found a sling hanging from the shackle. Neither the shackle nor the sling had failed. The state of the sling after the accident is consistent with both appellants' and appellee's stories. No cord was found.

The mud hose struck Boyle on the head, back, and left side. In addition to temporary injuries, Boyle suffered a permanent injury to his lateral femoral cutaneous nerve. This injury produced a sensory problem known as meralgia paresthetica.

At the conclusion of the plaintiff's case, Pool and Seahorse filed motions for a directed verdict. These motions were denied. After the judgment was signed, appellants filed motions for judgment notwithstanding the verdict, for remittitur, and for a new trial. These motions also were denied. Appellants filed timely notices of appeal.

Appellants claim the district court erred in denying their motions for directed verdict, for judgment notwithstanding the verdict, for new trial, and for remittitur. Further, appellant Pool seeks indemnity from Seahorse. Appellant Seahorse claims it was error to award pre-judgment interest on the award for future pain and suffering. Finally, appellee Boyle seeks to impose joint liability on appellants.

II. Motions for Directed Verdict and for Judgment Notwithstanding the Verdict

A. Seahorse

The judgment against Seahorse was based on negligence under general maritime law. The standard of review of the district court's denial of Seahorse's motion for directed verdict and for judgment notwithstanding the verdict is the often-repeated standard announced by the Court in Boeing v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc). We quote this standard at some length because this is a difficult and perhaps borderline case. In Boeing, we held:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable [persons] could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded [persons] in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Boeing v. Shipman, 411 F.2d at 374-75. In the present case, therefore, we must decide whether the record contains "a conflict in substantial evidence."

Boyle testified that when he removed the hose from the mud pit, the sling was tied to the hose with a piece of cord. Boyle said that he simply attached the free end of the sling to the shackle. The sling was tied to the hose, Boyle asserted, because the noosing method can cause the hose to crimp and collapse.

Seahorse attempted to impeach Boyle's trial testimony by comparing Boyle's trial testimony with Boyle's prior deposition testimony. Though Boyle claimed at trial that the sling was tied to the hose with cotton cord, in his deposition, the following exchange occurred:

Q. How did you hook it onto the hose?

Boyle: With a piece of cable that was on the hose.

Q. How was the cable secured to the hose?

Boyle: I don't know.

Q. You attached a sling to the cable, did you not?

Boyle: Yes, sir.

Q. And you have no recollection of how the cable was attached?

Boyle: To the hose, no.

* * *

Q. As I understand it, you can't tell us how the cable was hooked to the hose or may have been secured to the hose, is that right?

Boyle: No sir, not for sure, I can't tell you.

The jury was fully apprised of the inconsistencies between Boyle's trial testimony and his deposition testimony through thorough questioning by counsel for appellants.

Boyle tried to de-fuse the effect of his apparently inconsistent statements by explaining that he remembered more details about the accident after the deposition. According to Boyle, he had not concentrated on details of the sling-to-hose attachment before the deposition. After the deposition, however, Boyle's attorney asked Boyle to diagram, in detail, the lifting apparatus. In so doing, Boyle explains, he remembered that the sling was tied to the hose with cord.

Boyle's expert witness, Donald Broussard, testified that he had seen cord used to lift mud hoses in similar situations. Broussard explained that soft line was used to avoid crimping the hose. Broussard also testified, however, that use of cord to lift a mud hose was unsafe.

Travis McNeese, the crane operator, testified that he did not know how the hose was attached. McNeese testified, however, that he had seen mud hoses lifted by soft line....