Brown & Root, Inc. v. DeSautell

• Decision Date: 16 June 1977
• Docket Number: No. 16874,16874
• Citation: 554 S.W.2d 764
• Court: Texas Court of Appeals
• Parties: BROWN & ROOT, INC., et al., Appellants, v. Warner L. DeSAUTELL, Appellee. (1st Dist.)

Page 764

554 S.W.2d 764

BROWN & ROOT, INC., et al., Appellants, v. Warner L. DeSAUTELL, Appellee.

No. 16874.

Court of Civil Appeals of Texas, Houston (1st Dist.).

June 16, 1977.

Rehearing Denied July 21, 1977.

Vinson & Elkins, William R. Eckhardt, Houston, for appellants.

Watrous & Conner, Ira D. Watrous, Houston, for appellee.

PEDEN, Justice.

Brown & Root, Inc. and Taylor Diving & Salvage Co., Inc. appeal from a judgment rendered in favor of plaintiff, Warner L. DeSautell, under the Jones Act and general maritime law for an injury incurred when he slipped and fell while working in a submerged diving bell at sea. Appellants raise questions concerning the duty of seaworthiness, the evidence supporting the findings of unseaworthiness and negligence, and the computation of damages.

When injured, DeSautell was working as a diver for Taylor Diving from Brown & Root's barge "Hugh W. Gordon" in the North Sea on the construction of a petroleum pipeline. Taylor Diving provided the complete portable diving unit on board, including a decompression chamber and the SDC-7 diving bell in which DeSautell was injured. He and another diver had been lowered in the bell for a saturation dive to work on the pipeline, and while he was assisting his partner with his mask, DeSautell's foot slipped off the rim of the open lower hatch and he fell partially through the hatch, injuring his back.

A trial to the court resulted in a joint and several judgment against Brown & Root on a finding of unseaworthiness and against Taylor Diving on a finding of Jones Act negligence.

Appellants' first point of error asserts that Brown & Root owed him no warranty of seaworthiness since he was an employee of an independent contractor. The United States Supreme Court resolved this question in Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954), aff'g per curiam 205 F.2d 478 (9th Cir. 1953), holding that a vessel owner owed the absolute duty of seaworthiness to an employee of an independent contractor who, while working on a ship, was injured by an unseaworthy appliance, even though it was supplied by an independent contractor.

Appellants' second point, urged for Brown & Root, is that the trial court erred in finding that DeSautell was a member of the crew of the Hugh W. Gordon since he was an employee of an independent contractor who neither owned nor operated the vessel and his work as a diver was not traditionally done by members of the crew of the vessel. The appellants present both no evidence and insufficient evidence arguments under this point.

In addition to finding that DeSautell was a member of the crew of the Hugh W. Gordon the trial court found that he was a seaman under the general maritime law and the Jones Act, a finding that is not disputed by appellants. "Seamen", as used in the Jones Act, and "members of the crew" are equivalent terms. Travelers Insurance Co. v. Belair, 412 F.2d 297 (1st Cir. 1969).

". . . the difference between the two terms 'seaman' and 'member of the crew of any vessel' is so slight as to be virtually indiscernable and, for all practical purposes, may be disregarded." Boatel, Inc. v. Delamore, 379 F.2d 850, 859 (5th Cir. 1967).

Either finding, that DeSautell was a member of the crew or that he was a seaman, would make him eligible to recover under the Jones Act.

"(T)here is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel . . . or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission . . . ." Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959).

It is clear that DeSautell's work was being performed on the vessel or attached to it by life-supporting lines. Marine divers are held to be seamen. Smith v. Brown & Root Marine Operators, Inc., 243 F.Supp. 130 (D.C.La.1965), aff'd, 376 F.2d 862 (5th Cir. 1967). Although the appellants denied that DeSautell was a member of its crew, they admitted that his "job function did contribute to the mission of the Hugh W. Gordon on the date in question." We hold that the trial court had adequate support for its finding that DeSautell was a member of the crew of the vessel.

Appellant next asserts that any recovery by the plaintiff against Taylor Diving must be based on negligence because Taylor diving owes the plaintiff no duty of seaworthiness. We agree, and the trial court's judgment against Taylor Diving was based on findings of negligence.

Appellants' fourth and fifth points of error are no evidence and great weight points as to the trial court's twelfth finding, that the Hugh W. Gordon and the diving bell were unseaworthy because of the following conditions:

1. There was no safety screen or covering for the open hatch of the diving bell to protect the divers from an unreasonably dangerous condition confronting them as they were getting ready to make their dive.

2. The rim of the hatch was constructed of smooth stainless steel which, when the hatch cover was open, became extremely slippery and resulted in an unreasonably dangerous condition.

3. No provision had been made to prevent slipping when the ring of the hatch had become slick and dangerous.

4. The diving bell had no safety straps, railings, bars or handholds for divers to grasp in an effort to prevent falling on the wet and dangerous surface on which divers had to stand.

The owner of a vessel is not obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). The appellants have raised great weight points as well as no evidence points, so we have carefully examined the entire record.

The first condition found by the trial court to cause unseaworthiness was the absence of a safety screen or covering for the open hatch. Appellant initially argues that a finding of unseaworthiness cannot be predicated on an unknown and untested device. However, the fact that the device used is customary in the trade is not the legal measure of the duty of seaworthiness. Little v. Green, 428 F.2d 1061, 1066 (5th Cir. 1970); Davis v. Associated Pipe Line Contractors, Inc., 305 F.Supp. 1345, 1349 (D.C.W.D.La.1968), aff'd per curiam, 418 F.2d 920 (5th Cir. 1969).

The diving bell lowers divers to the sea bottom, but their work is done outside it. It also serves as a refuge for them when they are working. The diameter of the diving bell was some 611/8 inches. The open hatch was 25 inches in diameter and had a 21/2 inch wide stainless steel rim around it. It has to be very smooth if it is to effect a seal with the hatch cover. This rim, or ring, located in the middle of the bell's floor, was surrounded by a circular, non-skid deck plate only about 151/2 inches wide. Various tools, belts, lines, pipes, some 300 feet of hose, other equipment used by the divers, and a scrubber (pump) were usually on the wall or the floor, leaving little room to stand or move in. When the diver pulled down a hinged seat and sat on it while putting on his diving gear, still less room was left for the one helping him, as DeSautell was when he was injured.

When the crew above would turn on the hot water hose that was to be attached to the diver's suit, the water would run onto the floor of the bell and out through the hatch. There was evidence that even when there was no water flowing or standing on the rim it was always wet when the hatch was open. The bell was kept in motion by wave action of the sea. When it was lowered to the depth of more than 200 feet, where the diver was to work outside the bell, the pressure in the bell would customarily be reduced by those controlling it on board the vessel, and the hatch would pop open. The divers would secure it and then the "tender" (the diver acting as helper) would usually seat the diver in front of him, stand facing him with one foot on each side of the open hatch rim, and help him hook up his hot water hose, safety latch, rubber webbing, and diving mask. The trial court heard lengthy testimony on the feasibility of a covering for the open hatch. Appellee's witness, Ron Martinez, who has done no design work but is an experienced deep sea diver, described and drew a blackboard sketch of a temporary safety grating of metal covered by plastic he said could be designed to give the helper a better place to stand while assisting the diver. Mr. Robert McArdle, Senior Vice President of Taylor Diving, after having testified that he thought the proposed grating "would be a little on the dangerous side, because the divers' lines must exit the diving bell through the open hatch and because a diver's tender (helper) might need to quickly go out through the hatch in case of an emergency," admitted that a covering would be possible.

Mr. W. R. Bryant, an engineer who designs diving bells, testified that stainless steel is the best material for the rim surface, that he was not aware of any non-skid surface or even of any less slippery surface that would allow a seal to be effected. There is a piece of rubber that goes around the hatch, is inserted in a groove in the hatch, and seals the gap between the hatch and the rim when the hatch is closed and pressure is applied to it. This seal must be tight if the bell is to be used. If the pressure in the bell got low enough, the hatch would pop open. Mr. Bryant also stated that he has never seen a temporary cover over the hatch opening of a diving bell and also thinks it might be harmful because it might slow the helper in his efforts to leave the bell to help the diver if an emergency arose.

We hold that the trial court had sufficient...