Croley v. Matson Navigation Company, No. 29701.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtRIVES, WISDOM and GODBOLD, Circuit
Decision Date26 February 1971
PartiesVera CROLEY, etc., Plaintiff-Appellant, v. MATSON NAVIGATION COMPANY et al., Defendants-Appellees. David E. BOULER, Plaintiff-Appellant, v. MATSON NAVIGATION COMPANY et al., Defendants-Appellees.
Docket NumberNo. 29701.

434 F.2d 73 (1970)

Vera CROLEY, etc., Plaintiff-Appellant,
v.
MATSON NAVIGATION COMPANY et al., Defendants-Appellees.

David E. BOULER, Plaintiff-Appellant,
v.
MATSON NAVIGATION COMPANY et al., Defendants-Appellees.

No. 29701.

United States Court of Appeals, Fifth Circuit.

November 2, 1970.

Rehearing Denied February 26, 1971.


Warren L. Hammond, Jr., Richard Bounds, Cunningham, Bounds & Byrd, Mobile, Ala., for plaintiffs-appellants.

Theodore K. Jackson, W. Boyd Reeves, Mobile, Ala., for Matson Navigation Co., Armbrecht, Jackson & DeMouy, Mobile, Ala., of counsel.

Before RIVES, WISDOM and GODBOLD, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiff David E. Bouler and the plaintiff Vera Croley's intestate, Jessie O. Croley, were employees of the Alabama Dry Dock and Shipbuilding Company (ADDSCO). On October 26, 1965, Bouler was injured and Jessie O. Croley killed when gases or vapors in certain tanks on the S.S. MARINE DEVIL exploded. At the time of the explosion, the two men were working on board the vessel, a Matson Navigation Company ship that was undergoing conversion repairs at ADDSCO's shipyard in Mobile, Alabama. It is undisputed that the material that gave off the explosive vapors was a preservative known as Fluid Film, Grade BM, which was being used by ADDSCO to coat the ballast

434 F.2d 74
tanks of the vessel. Eureka Chemical Company manufactured and sold Fluid Film

In 1964 ADDSCO had contracted with Matson to convert two Matson owned vessels, the S.S. MARINE DEVIL and the S.S. MARINE DRAGON, into trailer carriers. The contract, among other things, obligated ADDSCO to indemnify Matson for any personal injury liability that it might incur as owner of the vessels in connection with the conversion work. The two vessels, both "dead ships," had to be towed from the state of Washington, where they were laid up in the "mothball fleet," to ADDSCO's shipyard in Mobile. While enroute from Washington to Mobile, the two vessels stopped in San Francisco, where Eureka placed 400 drums of Fluid Film on board the vessels for delivery to ADDSCO. Matson had specified in the conversion contract that ADDSCO was to use Fluid Film, Grade BM, a rust preventive, to coat the ballast tanks of the two ships. Eureka had formulated Fluid Film, Grade BM, especially for Matson and sold it only to Matson. Matson had purchased 400 drums of the preservative in San Francisco for ADDSCO's account and later billed ADDSCO, in accordance with the terms of the conversion contract, for the cost of the film.

During the course of the conversion work ADDSCO proceeded to coat the ballast tanks on both vessels with the Fluid Film. About ten days after the tanks of the S.S. MARINE DEVIL had been coated, ADDSCO welders cut off certain vent pipes leading to the tanks, causing molten slag to fall through the pipes into the coated tanks. The Fluid Film ignited, and minutes later, two violent explosions occurred in the tanks bringing injury to Bouler and death to Croley. A United States Coast Guard investigation of the explosions revealed that Fluid Film would burn furiously and give off explosive gases when subjected to heat.

The plaintiffs filed actions for damages against both Matson and Eureka in the United States District Court for the Southern District of Alabama. They initially sought to hold Matson liable on the theory that the vessel was unseaworthy. Through discovery proceedings, however, the plaintiffs became aware of the fact that the S.S. MARINE DEVIL was a "dead ship"; it had not been in navigation for many years. Therefore, the plaintiffs amended their complaints to allege that Matson had been negligent in that: (1) Matson specified and procured the preservative which Matson knew or should have known was capable of producing explosive gases; (2) Matson failed to warn the plaintiffs that the preservative was flammable and dangerous; and (3) Matson exercised control over the work being performed by the plaintiffs and their employer, ADDSCO. After the plaintiffs conducted discovery proceedings, Matson — but not Eureka — moved for summary judgment in its favor. The district court denied the motion, and after argument, denied Matson's motion for reconsideration. The plaintiffs took additional depositions, and Matson again filed a motion for summary judgment. The district court heard argument, and then on the basis of the pleadings, affidavits, admissions, answers to interrogatories, and depositions presented, vacated its previous rulings and granted Matson's motion for summary judgment. See S.D.Ala. 1969, 313 F. Supp. 555. The plaintiffs have appealed from that order.

Rule 56(c) of the Federal Rules of Civil Procedure allows the court to enter summary judgment in favor of the moving party only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Keating v. Jones Development of Missouri, Inc., 5 Cir. 1968, 398 F.2d 1011, 1013; Harvey v. Great Atlantic & Pacific Tea Co., 5 Cir. 1968, 388 F.2d 123, 124; Marsden v. Patane, 5 Cir. 1967, 380 F.2d 489, 491. The moving party has the burden of demonstrating clearly that there is no genuine issue of fact. Liberty Leasing Co. v.

434 F.2d 75
Hillsum Sales Corp., 5 Cir., 1967, 380 F.2d 1013, 1014; National Screen Serv. Corp. v. Poster Exchange, Inc., 5 Cir. 1962, 305 F.2d 647, 651. Moreover, the evidence presented at the hearing on the motion must be considered in the light most favorable to the opposing party, and he must be given the benefit of all inferences that might reasonably be drawn in his favor. See Harvey v. Great Atlantic & Pacific Tea Co., supra; 3 W. Barron & A. Holtzoff, Federal Practice & Procedure § 1235, at 139-140 (Wright Ed. 1958)

"Summary judgment will not usually be as feasible in negligence cases, where the standard of the reasonable man must be applied to...

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131 practice notes
  • In re Yarn Processing Patent Validity Litigation, No. 73-2420.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 1974
    ...be decided by means of summary judgment but should instead be left for the trier of fact. Croley v. Matson Navigation Co., 5 Cir. 1970, 434 F.2d 73. The court should therefore not have disregarded Leesona's evidence. Taking it into account, it is clear that Leesona succeeded in demonstratin......
  • Rodriguez v. Ritchey, No. 75-1362
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 22, 1976
    ...conclusions and inferences from the evidence, the court must submit the case to the jury." Croley v. Matson Navigation Co., 5 Cir. 1970, 434 F.2d 73, 76. Consequently, the primary issue is whether our facts permit any genuine dispute as to whether the appellees, or any of them, acted in rea......
  • Harris v. City of Chattanooga, Tenn., Civ. A. No. C79-92R.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • December 16, 1980
    ...to be more suited for juror deliberation than jurist contemplation when the facts are not certain. Cf. Croley v. Matson Nav. Co., 434 F.2d 73, 75 (5th Cir. ACCORDINGLY, defendant's motion for summary judgment is DENIED. --------Notes: 1 In its brief, C & I points to language in Blair v. Smi......
  • Collins v. Union Federal Sav. & Loan Ass'n, No. 12961
    • United States
    • Nevada Supreme Court of Nevada
    • April 21, 1983
    ...Mohammad, 586 F.2d 530 (5th Cir.1978), cert. denied, 444 U.S. 924, 100 S.Ct. 262, 62 L.Ed.2d 180 (1979); Croley v. Matson Navigation Co., 434 F.2d 73 (5th Cir.1970). Collins' argument is grounded on a well-established rule of law. Nevertheless, "a party against whom summary judgment is soug......
  • Request a trial to view additional results
132 cases
  • In re Yarn Processing Patent Validity Litigation, No. 73-2420.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 1974
    ...be decided by means of summary judgment but should instead be left for the trier of fact. Croley v. Matson Navigation Co., 5 Cir. 1970, 434 F.2d 73. The court should therefore not have disregarded Leesona's evidence. Taking it into account, it is clear that Leesona succeeded in demonstratin......
  • Rodriguez v. Ritchey, No. 75-1362
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 22, 1976
    ...conclusions and inferences from the evidence, the court must submit the case to the jury." Croley v. Matson Navigation Co., 5 Cir. 1970, 434 F.2d 73, 76. Consequently, the primary issue is whether our facts permit any genuine dispute as to whether the appellees, or any of them, acted in rea......
  • Harris v. City of Chattanooga, Tenn., Civ. A. No. C79-92R.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • December 16, 1980
    ...to be more suited for juror deliberation than jurist contemplation when the facts are not certain. Cf. Croley v. Matson Nav. Co., 434 F.2d 73, 75 (5th Cir. ACCORDINGLY, defendant's motion for summary judgment is DENIED. --------Notes: 1 In its brief, C & I points to language in Blair v. Smi......
  • Collins v. Union Federal Sav. & Loan Ass'n, No. 12961
    • United States
    • Nevada Supreme Court of Nevada
    • April 21, 1983
    ...Mohammad, 586 F.2d 530 (5th Cir.1978), cert. denied, 444 U.S. 924, 100 S.Ct. 262, 62 L.Ed.2d 180 (1979); Croley v. Matson Navigation Co., 434 F.2d 73 (5th Cir.1970). Collins' argument is grounded on a well-established rule of law. Nevertheless, "a party against whom summary judgment is soug......
  • Request a trial to view additional results

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