Davis v. Associated Pipe Line Contractors, Inc., Civ. No. 12768.

• Decision Date: 04 December 1968
• Docket Number: Civ. No. 12768.
• Citation: 305 F. Supp. 1345
• Court: U.S. District Court — Western District of Louisiana
• Parties: Alvin E. DAVIS v. ASSOCIATED PIPE LINE CONTRACTORS, INC., Travelers Insurance Company, and J. Ray McDermott & Company, Inc., OFFSHORE CREWBOATS, INC., Third-Party Defendant.

305 F. Supp. 1345

Alvin E. DAVIS v. ASSOCIATED PIPE LINE CONTRACTORS, INC., Travelers Insurance Company, and J. Ray McDermott & Company, Inc., OFFSHORE CREWBOATS, INC., Third-Party Defendant.

Civ. No. 12768.

United States District Court W. D. Louisiana, Lake Charles Division.

June 20, 1968.

Supplemental Opinion December 4, 1968.

COPYRIGHT MATERIAL OMITTED

William B. Baggett, Lake Charles, La., for plaintiff.

Edmund E. Woodley, Holt & Woodley, Lake Charles, La., for defendants.

Terriberry, Rault, Carroll, Yancey & Farrell, New Orleans, La., for third party defendant.

EDWIN F. HUNTER, Jr., District Judge:

Petitioner cumulates three causes of action against his employer, Associated Pipe Line: (1) under the Jones Act, 46 U.S.C.A. § 688 for personal injuries allegedly sustained; (2) under General Maritime Law because of the alleged unseaworthiness of Derrick Barge No. 12 for the same injuries; and (3) under General Maritime Law for maintenance and cure. Joined also as a defendant under the Maritime law is J. Ray McDermott Company, the owner of the barge.

Defendants answered the suit, denying both negligence and unseaworthiness, and in addition filed a third party demand against Offshore Crewboats, Inc., alleging on information and belief that the plaintiff was injured while boarding the crewboat AILINE ELIZABETH II; and that his injuries, if any, resulted from the unskillful handling of the crewboat in violation of the express obligation in the charter agreement to furnish a competent crew. Shortly before trial (less than ten days before) counsel for defendants amended their third party demand to plead that plaintiff was injured while boarding the ALICIA VICTORIA or the PARAMOUNT, crewboats owned by Offshore, Inc. Concededly, this turn of events presented a new problem as between defendants and third party defendant. Consequently, we severed the third party demand as to the issues raised by this amendment. Counsel for third party defendant was certainly correct in his contention that this involved new issues and he was entitled to the usual legal delays. The case proceeded to trial as between plaintiff and defendants and the third party defendant only insofar as AILINE ELIZABETH II. This action was without prejudice to defendants' right to be afforded an opportunity to prove that the ALICIA VICTORIA and/or the PARAMOUNT were involved. However, this contest between defendants is not to delay the final determination between plaintiff and defendants. This case had been set for many months and plaintiff should not be delayed because of later developments between defendants.

The trial began on March 5, 1968. It was concluded on March 14, 1968. Every thing is in dispute. All issues were vigorously contested. Defendants obviously doubt that Mr. Davis was hurt on the job. We make findings and state conclusions:

FINDINGS OF FACT

1. Alvin E. Davis is a resident of Calcasieu Parish, Louisiana. Associated Pipe and J. Ray McDermott are foreign corporations authorized to do and doing business in the State of Louisiana.

2. At all times pertinent J. Ray McDermott was the owner and operator of Drilling Barge 12, a 500-ton capacity water crane barge, 400 feet long, 100 feet wide, with a depth of 28 feet.

3. At all times pertinent, Derrick Barge 12 was located some fifty miles South of Leeville, Louisiana, on the Continental Shelf, and was engaged in laying a 22" pipe line for Gulf Oil Corporation.

4. At all times pertinent Associated Pipe was a subcontractor furnishing a part of the skilled labor in the said pipe laying work.

5. Derrick Barge 12 was a vessel within the contemplation of the Jones Act and Alvin E. Davis was a member of the crew of that vessel within the meaning of the Jones Act.

6. On June 9, 1966, Alvin E. Davis was employed aboard Derrick Barge 12 as a fork-lift operator. His immediate employer was Associated Pipe.

7. On June 9, 1966, Davis and some 79 other employees of Associated Pipe were leaving the barge to return to shore, pending equipment repairs.

8. These employees of Associated Pipe were disembarking from Derrick Barge 12 into a crewboat which would take them to shore.

9. At least three crewboats were in use for this purpose. Two had already received a capacity number of passengers and departed. Alvin E. Davis was the last employee to get into the last crewboat.

10. We do not know the name of the crewboat nor the owner of it. The case as between the defendants and the third party defendant is to remain open if either party wishes it so. We would like to resolve the identity of the crewboat involved.

11. The means of transferral utilized by Alvin E. Davis and the other Associated Pipe employees was ladders made of rubber truck tires strung on steel cables which were mounted at intervals on the barge between wooden fenders made of 12" × 12" timbers. The truck tires were of various sizes. They were hung in irregular and various heights from the water line.

12. Derrick Barge No. 12, at the time of the accident (June 9, 1966) was not equipped with any other type ladder or appliance to assist the crew members in getting off the barge except for these rubber truck tires.

13. At all pertinent times the crewboat on which plaintiff departed came alongside on the windward side of the derrick barge. There were five to seven-foot seas and five to six-foot ground swells. Good seamanship dictated that the crewboat should have come along-side on the leeward side. Plaintiff descended on the rubber tires and was standing on the second tire from the top when suddenly the bottom tire in the string and the tire on which plaintiff stood was picked up 1½ to 2' by the bobbing crewboat. When the crewboat "dropped," plaintiff was jarred, and in the process twisted and injured his back.

14. At the time the tire was struck by the crewboat, the crewboat stern had drifted out at an angle of approximately 45° from the side of the barge, and the plaintiff was attempting to board the crewboat approximately ten feet back from the bow.

15. The selection of a safe berth is in general the responsibility of the crewboat operator, but the barge captain did have the final say.

16. All witnesses emphasized that transferral in open sea is an extremely hazardous undertaking. This 500-ton capacity derrick barge is one of approximately six in the entire world of its size. The Court feels that there is just no safe way to transfer personnel from it to a small crewboat in heavy seas under the total circumstances.

17. The transferral operation as it related to Davis did not afford him a reasonably safe means of departing from the barge and resulted in both unseaworthiness as found in Tate v. C. G. Willis, Inc., D. C., 154 F.Supp. 402, and actionable negligence under the Jones Act. Trahan v. Superior Oil Co., D.C., 204 F. Supp. 627. This negligence and/or unseaworthiness consisted of a combination of factors, namely:

(1) Bringing the crewboat along the windward side of the barge.

(2) Permitting Davis to begin his descent when the stern of the crewboat had drifted out.

(3) Permitting Davis to begin his descent as the bow was "bobbing up and down" and striking the tire.

(4) The practice of using fenders or bumpers made of truck tires as a ladder under these circumstances as the only means of disembarking was an unsafe practice.

(5) There was no reasonable safe means of disembarking from Barge No. 12 furnished to Davis at the pertinent time.

18. The defendants are constantly trying to improve the safety of their operations at sea and are to be commended. We find also that at the time of this accident they seriously believed that the method of transfer which was being used was the best, and that it was customary in the trade. However, we do point out that what is customary is evidence of due care—here, the reasonable fitness element on the concept of seaworthiness—but merely because something is customary is not the legal measure of the duty to furnish a seaworthy. June T, Inc. v. King, (5 Cir., 1961) 290 F.2d 404.

19. As for the crewboat, we we feel that the operator of the crewboat was negligent. We do not know its idenity or its owner. However, the obligation of Associated Pipe and McDermott to Davis remains. They were obligated to furnish him a safe method of ingress and egress. They did not do so. The failure to do so was a proximate cause of his injury. Associated Pipe and McDermott cannot contract away this obligation.

20. Defendant argues that Davis's contributory negligence was so great as to reduce the award in this case to a minimum. In view of the fact that some 79 men preceded Davis without incident, we should examine the actions of plaintiff closely. Plaintiff testified that when he got ready to get on the boat the stern had drifted away, and in relation to the barge was lying at a 45° angle. He then attempted to get on the crewboat at the angle of the bow. The stern line had been released. He was the only one to get on the crewboat after it had been released. Most of the witnesses were of the opinion that if the boat was properly tied up—that is, against the barge—the tires would not be lifted, and that the proper way to board a crewboat is from the stern. Mr. Davis was an experienced man. He was fully cognizant of the danger involved in making the transfer. He argues that he was using the only method available in making the transfer and therefore should not be held contributorily negligent. This would be cogent only if in so doing he had exercised reasonable care. His failure to request help from the captain of the crewboat or the barge personnel or to call attention in any other way to minimize his own danger was, in our opinion, a proximate cause of his injury. See Trahan v. Superior Oil Company, D.C., 204 F.Supp. 627, affirmed Fifth Circuit, 322 F.2d 234, 8 A.L.R.3d 497, and the discussion there concerning the comparative negligence ruling. In Trahan it was held that the plaintiff's fault had...