Constance v. Johnston Drilling Company, 28392 Summary Calendar.
| Decision Date | 13 February 1970 |
| Docket Number | No. 28392 Summary Calendar.,28392 Summary Calendar. |
| Parties | Dallas CONSTANCE, Plaintiff-Appellant, v. JOHNSTON DRILLING COMPANY, the Travelers Insurance Co., Berard Boat Rentals, Inc., Defendants-Appellees, Geophysical Service, Inc., Defendant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wilson M. Montero, Jr., New Orleans, La., for appellant.
John L. Pitts, Alexandria, La., Edwin K. Legnon, New Orleans, La., Stafford & Pitts, Alexandria, La., for appellees.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
This appeal is brought by Constance, a seaman who was injured when he fell through an open hatch on the barge M/V ATLAS on March 1, 1966. He brought suit in the District Court against Berard Boat Rentals, the owner of the vessel, and Johnston Drilling Company, his Jones Act employer. Johnston and its insurer, Travelers Insurance Company, cross claimed against Berard. Prior to trial Berard entered into a settlement agreement with Constance. The District Court found that there was no negligence on the part of Constance and that the negligence of the master of the vessel, who was an employee of Berard, in leaving the hatch open, was the sole proximate cause of the injury. The Court further held that Johnston Drilling Company, Constance's employer, was liable in solido with Berard because Johnston had breached its duty as a Jones Act employer to provide a seaworthy vessel. Johnston, however, was held to be entitled to indemnity from Berard because Johnston's negligence was passive. We affirm.1
Constance entered into a compromise and settlement agreement with Berard, which provided that he was to hold Berard harmless against the demands of Johnston and Travelers. Under the District Court's findings of fact and conclusions of law Constance ends up with no additional damages. To overcome this dilemma he urges on appeal that Berard's skipper was Johnston's agent and that this makes Johnston an active joint tort feasor, which bars his right to indemnity; that Johnston does not have an implied right of indemnity from Berard because Constance's suit is based on the Jones Act; and, finally, that Constance should have been awarded damages because he was not paid exactly the amount of maintenance which was eventually determined by the District Court as being due ($7.00 per day instead of $5.00 per day).
The District Court found These findings are not clearly erroneous. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. Indeed they are fully supported by the record. Thus there was no agency.
Constance's...
To continue reading
Request your trial
-
Spinks v. Chevron Oil Co.
...5 Cir. 1972, 465 F.2d 1157, 1164-1165. 12 Independent contractors have been held liable under the Act. Barrios; Constance v. Johnston Drilling Co., 5 Cir. 1970, 422 F.2d 369; Mahramas v. American Export Isbrandtsen Lines, 2 Cir. 1973, 475 F.2d 165; Savard v. Marine Contractors Inc., 2 Cir. ......
-
Harper v. Zapata Off-Shore Co.
...failed to demonstrate arbitrary or capricious conduct prerequisite to the allowance of attorney's fees); Constance v. Johnston Drilling Co., 422 F.2d 369 (5th Cir.1970) (per curiam) (seaman not entitled to attorney's fees; no suggestion that shipowner, who had paid lower amount of maintenan......
-
Barrios v. Louisiana Construction Materials Company
...vessel, on a more or less permanent basis, then, in law, he becomes a member of a crew of a vessel. See also Constance v. Johnston Drilling Company, 5 Cir. 1970, 422 F.2d 369 ; Davis v. Associated Pipe Line Contractors, Inc., D.C., 305 F.Supp. 1345 ; Smith v. Dale Hart, Inc., D.C., 313 F.Su......
-
Thibodeaux v. Texas Eastern Transmission Corp.
...Drill. Co., 5 Cir., 1969, 410 F.2d 178; Kelloch v. S & H Subwater Salvage, Inc., 5 Cir., 1973, 473 F.2d 767; Constance v. Johnston Drilling Company, 5 Cir., 1970, 422 F.2d 369.11 James Lacaze, an employee of Inspection Signal Service, testified that none of his fellow employees nor the Texa......