Casaceli v. Martech Intern., Inc.
| Decision Date | 29 October 1985 |
| Docket Number | No. 84-4452,84-4452 |
| Parties | Dolores Bodd CASACELI, Individually & as representative of succession of Joseph Stanley Bodd, etc., Plaintiffs-Appellees, v. MARTECH INTERNATIONAL, INC., et al., Defendants, Trans Ocean Contractors, Inc. and Cheramie Bo-Truc # 11, Inc., Defendants- Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Allen, Gooch, Bourgeois, Breaux & Robison, P.C., Randall K. Theunissen, Lafayette, La., for Trans Ocean.
Porteous, Hainkel, Johnson & Sarpy, James R. Carter, Glenn R. Adams, New Orleans, La., for Cheramie.
Morrow & Morrow, James P. Ryan, Opelousas, La., for plaintiffs-appellees.
Before CLARK, Chief Judge, RANDALL and JOLLY, Circuit Judges.
Transocean Contractors, Inc., and the CHERAMIE BO-TRUC # 11 appeal the judgments against them in an action for damages resulting from the death of a diver, Joseph Bodd. Bodd drowned during an attempt to repair the CHERAMIE BO-TRUC while it was docked in a slip owned by Transocean. Because the evidence is not sufficient to support the verdicts against the appellants, we reverse.
Joseph Bodd, an employee of Martech International, Inc. (Martech), worked as a diver's tender on board the CHERAMIE BO-TRUC # 11 for the two weeks prior to August 12, 1978. The vessel was conducting a salvage operation for CNG Producing Company in the Gulf of Mexico. Although Bodd had attended diving school for six months in 1975 and was a certified professional diver, he had never performed a professional dive. He did perform one unpaid 120 foot dive during this salvage operation.
The CHERAMIE BO-TRUC # 11 returned to the intercoastal waterway on August 12, 1978, and unloaded Martech personnel and equipment at a slip owned by Martech. It then docked at the adjacent slip owned by Transocean Contractors, Inc. (Transocean), approximately 100 feet away. While backing into the Transocean slip, the right propeller of the BO-TRUC became fouled and the starboard engine shut down. The captain docked the vessel by using the port engine. The BO-TRUC had docked at this slip four or five other times without encountering any problems. The slip contained a great deal of junk and debris.
Martech is a professional diving company. Although Captain Gaspard recommended dry-docking the BO-TRUC for repairs, his supervisors decided to contract with Martech for a diver to free the propeller. Martech sent Joseph Bodd and a diver's tender, Tom Runnels, to perform the contract.
Bodd and Runnels set up their diving station at the rear of the slip, sixty feet from the stern of the vessel. Debris in the dock area of the Transocean slip made it impossible for them to set up the station at the customary location, the stern of the vessel. The water in the slip was muddy and permitted only limited visibility. Visible debris floated at the edge of the slip.
Bodd made a total of four dives, all of which involved Bodd's walking from the shallow water at the shore out to the stern of the vessel, where the water was eight to ten feet deep. This was a sixty foot walk, during which Bodd's air hose had to be dragged over debris on the bottom of the slip.
Bodd first performed an inspection dive which lasted fifteen or twenty minutes. Bodd inspected both propellers and reported to Gaspard and Gaspard's supervisor, Buddy Curoles, that the starboard wheel was fouled with rope and the port wheel with cable. The CHERAMIE supervisors did not know the port wheel was also fouled until this time. Bodd also told the captain that the water depth at the stern of the vessel was good because he could stand on the bottom and reach the propellers. Bodd did not complain about the location of the vessel nor did he ask the captain to move it out of the Transocean slip. Gaspard testified without contradiction that he relies on the diver's recommendations in these situations and that he would have moved the vessel if Bodd had so requested. However, he did not so advise Bodd. Runnels testified that he and Bodd did not request that the boat be moved because both propellers were fouled and they did not know it could be moved.
Gaspard and Curoles then contacted the charterer, CNG Producing Company. Curoles recommended dry-docking the boat. Because the vessel was needed for another job and it was thought dry-docking might take too long, the decision was made to request the diver to proceed with the wheel job in the Transocean slip.
Bodd performed three more dives. On each dive he complained over the radio to his tender about his air hose becoming tangled with the debris on the bottom of the slip. Gaspard and Curoles observed Bodd's dives. Gaspard heard the radio communications between Bodd and his tender. Transocean employees were also present during these diving operations.
On his second dive, which lasted approximately twenty minutes, Bodd unsuccessfully attempted to unravel the cable from the port wheel with a crowbar. Bodd terminated his third dive after thirty minutes because his cutting torch was not operating properly. During Bodd's fourth dive, Runnels noticed that the radio was dead and that air bubbles were no longer apparent. Runnels asked Gaspard and Curoles to pull on the air hose, and dived into the water to rescue Bodd. He was not successful. Gaspard and Curoles had great difficulty in pulling up the air hose which seemed to snag several times on something under the surface. When the air hose emerged, only the face gear was attached and the regulator was missing. Runnels testified that a missing regulator would allow water to enter the diver's mask and cut off his oxygen. Runnels also testified that the diver would have to intentionally release the life line. He indicated that a diver should not release this line since it allows him to find his way back to the surface. Bodd's body was later found floating under the vessel near its bow.
A diver from another company, after performing an inspection dive the next day, told Gaspard that the job should be done in a dry dock. The vessel was then dry docked for the repairs.
Dolores Bodd Casaceli, the representative of Bodd's estate, and Evelyn Bodd, his mother, sued Martech, Transocean and the CHERAMIE BO-TRUC # 11 for damages resulting from the death of Joseph Bodd. The plaintiffs settled with Martech. A jury found that Bodd was a longshoreman and not a seaman. The jury also found that Bodd was ten percent negligent and that Transocean and CHERAMIE were each forty-five percent at fault. The jury awarded the plaintiffs $75,000 for Bodd's conscious pain and suffering, and $150,000 for loss of love and affection to Evelyn Bodd. The plaintiffs also received an award of punitive damages in the amount of $250,000 from each defendant. The district court denied the motions of both defendants for judgment notwithstanding the verdict and a new trial. The court did remit the award for loss of love and affection from $150,000 to $75,000. CHERAMIE and Transocean appeal these judgments.
We consider first the legal principles applicable to the vessel's appeal. The 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) provided persons covered by the Act with an action against a vessel for injuries caused by the negligence of the vessel:
In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breaking services and such person's employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person's employer (in any capacity, including as the vessel's owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.
33 U.S.C. Sec. 905(b). 1 Longshoremen and harbor workers covered by the Act include persons engaged in ship repair. 33 U.S.C. Secs. 902(3), 903(a). The Act defines "vessel" as "any vessel upon which or in connection with which any person entitled to benefits under this chapter suffers injury or death arising out of or in the course of his employment, and said vessel's owner...." 33 U.S.C. Sec. 902(21). Recovery for disability or death is contingent on the occurrence of the injury while the vessel is "upon the navigable waters of the United States." 33 U.S.C. Sec. 903(a). 2
The United States Supreme Court defined the vessel's duty to longshoremen under these amendments in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981) (). The vessel owner must provide work space, ship's gear, equipment, and tools in a condition that allows a stevedore, acting with reasonable care, to carry on his operations with reasonable safety. The owner must warn the stevedore of any hidden dangers which the owner knows or should know about in the...
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