Brock v. Coral Drilling, Inc.

• Decision Date: 15 June 1973
• Docket Number: No. 72-1892.,72-1892.
• Citation: 477 F.2d 211
• Parties: Mack L. BROCK, Plaintiff-Appellee, v. CORAL DRILLING, INC., et al., Defendants-Third-Party Defendants-Intervenors-Cross Appellees. BAROID DIVISION OF NATIONAL LEAD COMPANY, Defendant-Third-Party Plaintiff-Appellant-Cross Appellee, v. SHELL OIL COMPANY, Third-Party Defendant-Appellee-Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

477 F.2d 211 (1973)

Mack L. BROCK, Plaintiff-Appellee, v. CORAL DRILLING, INC., et al., Defendants-Third-Party Defendants-Intervenors-Cross Appellees.

BAROID DIVISION OF NATIONAL LEAD COMPANY, Defendant-Third-Party Plaintiff-Appellant-Cross Appellee, v. SHELL OIL COMPANY, Third-Party Defendant-Appellee-Cross Appellant.

No. 72-1892.

United States Court of Appeals, Fifth Circuit.

April 20, 1973.

Rehearing Denied June 15, 1973.

COPYRIGHT MATERIAL OMITTED

Francis Emmet, New Orleans, La., for Baroid Div. of National Lead Co.

John C. Theus, Thomas W. Leigh, Monroe, La., for Mack L. Brock.

William G. Kelly, Jr., Monroe, La., Gordon F. Wilson, Jr., New Orleans, La., for Coral Drilling Inc.

Thomas M. Hayes, Jr., Monroe, La., Frank C. Allen, Jr., New Orleans, La., for Shell Oil Co.

Before WISDOM, BELL and COLEMAN, Circuit Judges.

WISDOM, Circuit Judge:

Once again, we go down to the sea in drilling rigs. This case presents another question concerning the scope of the implied warranty of workmanlike service when measured in light of the indemnity principles of Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133.¹ Mack L. Brock, a roustabout Sieracki seaman working on a stationary drilling rig in the Gulf of Mexico, was injured while unloading deck cargo from a supply boat, the M/V Baroid Rocket. Brock sued the shipowner, who in turn sought indemnity from Brock's employer, a drilling company. The district court permitted Brock to recover against the shipowner but denied the shipowner's action for recovery over. We affirm in part and reverse in part.

I.

At the time of the accident, Mack L. Brock was employed as a roustabout by Coral Drilling Company to perform general labor in the drilling of an oil well on the continental shelf off the Louisiana coast in the Gulf of Mexico. Shell Oil Company had contracted with Coral to drill the well and had agreed to furnish certain supplies, including drilling mud, necessary to the operation. Under the contract, Shell purchased drilling mud from the Baroid Division of National Lead Company to be delivered by Baroid f. o. b. the rig. Coral agreed to furnish all personnel necessary to the operation of the rig, including roustabouts to unload bagged drilling mud from supply boats. Coral was given complete control and supervision over the discharge of supplies.

On November 15, 1968, Baroid's supply boat, the M/V Baroid Rocket, was loaded at the Mayronne Dock in Venice, Louisiana. Captain Hoyt Bergeron, in charge of the vessel, was responsible for instructing the dock hands how to locate and secure the deck cargo, some 500 bags of drilling mud or gel, to stabilize the vessel. The deck cargo was on wooden pallets, with between 35 to 50 sacks per pallet, and was placed as far forward as possible behind the wheelhouse. Although such cargo is sometimes covered with tarpaulins or lashed to the deck to prevent shifting in heavy weather, the captain determined that this was not necessary.

The vessel got under way at 6 p. m. and reached the rig about midnight, tying up port side to, with stern to the wind. During the trip, the weather was rough and the deck cargo shifted considerably. A few of the stacks were leaning, others had fallen to the deck, and some of the fallen sacks were broken. At about 1 a. m., Emery Sonnier, the Coral crew operator and roustabout pusher, assembled Brock and the other members of the roustabout gang to unload the deck cargo. Sonnier directed Brock and another roustabout to descend to the deck of the supply boat to unload the sacked mud. The weather was rough at this time. The seas were running from 6 to 12 feet high and the wind was blowing at 20 to 30 knots. Brock suggested to Sonnier that the weather was too rough to unload. The condition of the deck cargo was visible from the platform, and Sonnier could see that waves were washing over the stern, through the bulwark. Sonnier told Brock, however, that if the boat could tie up, he would unload it.

Brock descended to the deck of the vessel to reload the sacks on pallets so that they could be lifted to the platform. Since most of the spilled sacks were toward the stern, Brock placed the pallets there and began restacking. Waves continued to wash over the deck, through the bulwark. While Brock was picking up a sack of drilling mud and placing it on one of the pallets, a heavy wave came over the stern, lifted the pallet, and drove it toward Brock, pushing him back. Still holding the sack, Brock was backed into another pallet of stacked mud, striking his back and part of his leg. After this, Brock continued to work until the unloading operation was completed.

On January 14, 1970, Brock initiated suit against Baroid and Shell.² Coral later intervened to claim reimbursement from Baroid for compensation paid to Brock under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. Baroid then crossclaimed against Coral and Shell for Ryan indemnity. Shell, in turn, crossclaimed against Coral for indemnity under its contract and against Baroid for breach of its obligation to deliver the goods safely to the rig. On February 4, 1972, the district court rendered its decision. The court found that the proximate cause of Brock's injury was the unseaworthy condition of the deck of the M/V Baroid Rocket. The unseaworthy condition was caused by Baroid's improper loading of the cargo at Venice the day before the accident, coupled with the failure to secure the cargo in any way, and was compounded by the captain's negligence in mooring the vessel port side to, with stern to seas running 6 to 12 feet, and with knowledge that the roustabouts would have to restack the cargo in those conditions. The court denied Baroid's claim for indemnity against Coral and Shell, finding that Coral had not breached its warranty of workmanlike service. Baroid appealed.³

II.

At the outset we meet the contention that Brock should have been denied recovery against the shipowner because of Brock's contributory negligence. The district court found that Brock's conduct was reasonable in the circumstances. It is clear that Brock was aware of the hazards caused by the condition of the deck and the position of the vessel. He protested that the weather was too rough, but nevertheless proceeded to unload the cargo after the Coral pusher directed him to do so. Baroid suggests that Brock should have refused. We cannot say, however, that the district court clearly erred in finding that Brock's conduct met the standard of ordinary prudence. F.R.Civ.P. 52(a). Brock relied upon the judgment of the Coral pusher who had experience in such operations. Moreover, Brock's decision must be evaluated in light of his economic dependence on Coral for future employment and the general principle that liability for failure to comply with safety regulations should be imposed on the party exposing the injured employee to the dangerous condition. Burrage v. Flota Mercante Grancolombiana, 5 Cir. 1970, 431 F.2d 1229. We therefore conclude that Brock was not contributorily negligent.

III.

Baroid next contends that it is entitled to indemnity from Coral for breach of its warranty of workmanlike service. A shipowner, of course, has an absolute duty to furnish a vessel and gear reasonably fit for the purposes for which they were intended and is strictly liable for injury resulting from the unseaworthy condition of either. This liability is nondelegable and extends to longshoremen, stevedore employees, and others aboard the vessel. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S. Ct. 872, 90 L.Ed. 1099, Mitchell v. Trawler Racer, 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941.

In some circumstances, however, a shipowner may be entitled to indemnity from a stevedore company for breach of its warranty of workmanlike service. In the litigation-generating Ryan case the Supreme Court held that a stevedoring company that enters into a service agreement with a shipowner is liable to indemnify the owner for damages sustained as a result of its improper stowage of cargo. The Court reasoned that the essence of the stevedore's contract was the obligation to perform its work "properly and safely." "Competency and safety . . . are inescapable elements of the service undertaken." The Court emphasized that this implied "warranty of workmanlike service" finds its origin in contract, rather than tort, and is "comparable to a manufacturer's warranty of the soundness of its manufactured product." 350 U.S. at 133, 134, 76 S.Ct. at 237.⁴

In Italia Societa per Azioni Di Navigazione v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732, the Supreme Court, in holding that a stevedore breached its warranty of workmanlike service by supplying latently defective equipment, noted that the Ryan doctrine is premised on the idea that "liability should fall upon the party best situated to adopt preventive measures and thereby to reduce the likelihood of injury. Where, as here, the injury-producing and defective equipment is under the supervision and control of the stevedore, the shipowner is powerless to minimize the risk; the stevedore is not." 376 U.S. at 324, 84 S.Ct. at 754.

Coral contends, however, that the dangerous condition of the vessel's deck was caused by Baroid's improper loading of the cargo and positioning of the vessel when it was moored to the drilling rig. Coral would conclude that indemnity is precluded by Baroid's breach of its duty of seaworthiness. We disagree. Although a stevedore is not obligated to make an intensive inspection of the vessel, once aware of a dangerous condition, the stevedore may not ignore it. D/S Ove Skou v. Hebert, 5 Cir. 1966, 365 F.2d 341; T. Smith & Son, Inc. v. Skibs A/S Hassel, 5 Cir. 1966, 362 F.2d 745. The shipowner's breach of the duty of seaworthiness does not provide a license for the stevedore to ignore the consequences of its own actions since the...