Davis v. Hill Engineering, Inc., No. 75-1842

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM and INGRAHAM; WISDOM; Leibell; INGRAHAM
Citation1977 A.M.C. 1090,549 F.2d 314
Decision Date23 March 1977
Docket NumberNo. 75-1842
PartiesJerry Wayne DAVIS, Plaintiff-Appellee, v. HILL ENGINEERING, INC. and Williams-McWilliams Co., Inc., Defendants- Appellants.

Page 314

549 F.2d 314
Jerry Wayne DAVIS, Plaintiff-Appellee,
v.
HILL ENGINEERING, INC. and Williams-McWilliams Co., Inc.,
Defendants- Appellants.
No. 75-1842.
United States Court of Appeals,
Fifth Circuit.
March 23, 1977.
Rehearing and Rehearing En Banc Denied June 17, 1977.

Page 317

Robert M. Julian, Houston, Tex., for Hill Eng. Inc.

J. Walter Ward, Jr., New Orleans, La., for Williams-McWilliams Co.

Carl R. Roth, Marshall, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before WISDOM and INGRAHAM, Circuit Judges, and GROOMS, * District Judge.

WISDOM, Circuit Judge:

The initial question this case presents is whether a domestic corporation is a resident of all the districts of a multidistrict state of incorporation or of only the district of incorporation. We confront again the riddle of seaman status under the Jones Act, 1 and the liability of a shipowner to a Sieracki seaman. 2 In addition, we must consider challenges to the district court's findings on admiralty venue, liability, and damages.

I.

FACTS

The defendant-appellant, Hill Engineering, Inc. ("Hill"), entered a contract with the Columbia Gulf Transmission Company ("Columbia Gulf") in October 1971, which required Hill to fabricate and install metering facilities, including piping, on a gas gathering station located in the Gulf of Mexico approximately ninety miles off the Louisiana coast in an area commonly referred to as Eugene Island, Block 287. The

Page 318

fabrication phase of the project was completed on shore near Houma, Louisiana. Then the prefabricated structures were loaded onto barges and transported to the site of the gathering station where they were installed. The project was started at the beginning of November, 1971, and completed in mid-1972.

The defendant-appellant, Williams-McWilliams Company, Inc. ("Williams"), was the owner of two barges chartered by Hill in connection with the offshore phase of its work. The derrick barge W-701, a special purpose vessel used to transport men, equipment, and material from one location to another, was chartered complete with its own six-man crew and was at all times under the control of Williams, the shipowner. Located in the stern of the barge was a large steam-powered crane, or derrick, used to load or unload equipment and material from W-701 or from other vessels or offshore structures. The W-701 contained a galley and permanent sleeping quarters for its crew. Tugs moved the vessel. Vernon Rickerson, a Williams employee, was superintendent of the W-701 during the time it was chartered to Hill.

Under a "bareboat" charter Hill also obtained the use of the Williams barge W-504, over which Hill maintained control during the term of the project. The vessel was a "material barge" which had no derrick, living quarters, or crew. With it Hill transported material and equipment from Houma, Louisiana to the gathering station in the Gulf of Mexico. The derrick on the W-701 was used to unload the prefabricated material from the W-504 onto the gathering station platform.

The plaintiff, Jerry Wayne Davis was hired by Hill on November 4, 1971, as a welder's helper to assist in the fabrication of the pipe, the loading and unloading of the fabricated structures onto the barges, and its assembly at the platform. The fabrication was done on the bank of the intercoastal canal near Houma. When the onshore fabrication phase of the work was completed, the plaintiff helped to secure the pipe and equipment to the decks of the anchored barges W-504 and W-701 by welding U-bolts into their surfaces. In addition, he did some minor fabrication work on the pipes as defects in earlier welds were discovered through inspection. The barges were loaded on December 3 and 6, 1971. Temporary sleeping quarters were placed on the deck of the W-701 for the six Hill employees who were to install the fabricated structures at the platform. On the morning of December 7, 1971, the W-701 was placed under the tow of the tug Jonas H. for the twenty-four hour trip to Block 287 at Eugene Island. The material barge W-504 was moved into the area later under separate tow. On the trip into the Gulf the plaintiff, another Hill employee, and several crew members helped wash down the front of the barge which had become muddied as a result of the loading operation. In addition, the plaintiff and the journeyman welder he assisted, Tim Holt, continued to secure the equipment and materials to the barge. Further, at the request of the barge superintendent, they welded two cracks in the deck of the barge.

On the morning of December 8, 1971, the W-701 arrived in the Eugene Island area. After a delay in anchoring, the unloading operations were started; but, because of rough seas, only one lift of equipment to the platform was made. During the brief period unloading the plaintiff and Tim Holt remained on board the barge. They cut the equipment loose from the deck and then assisted Williams riggers who attached the load to the four long cables, or chokers, of the derrick. After the load was placed on the platform, it was cut loose. During that phase of the work, Hill employees on the platform requested that a cutting torch be sent up. At Holt's direction Davis got a torch from the bow of the vessel. The torch was then tied onto a tag line and hoisted up to the platform. After they had finished with it the platform workers sent the torch back down to the deck of the barge where the several hundred feet of hose attached to it had to be retrieved. Holt fed the slack to Davis who started walking backwards toward the bow of the barge while rolling up the hose. Just five

Page 319

to ten feet from the gantry Davis slipped and fell at the port stern of the vessel. He landed on his back on the iron deck. There was oil, water, and grease on the deck in the area where Davis fell. After the fall Davis lay for a while on his bunk in the temporary crew quarters on deck. He told the Hill foreman, Roger Meeks, about the incident but did not report it to the superintendent of the barge.

Within an hour or two after the plaintiff's fall, the barge was placed under tow for a trip to shallow water and out of the rough seas. During the twelve-hour trip no additional work was done by the Hill construction workers. On the morning of the next day, December 9, several Hill employees, including Davis and Holt, said that they were terminating their employment over a wage dispute; and the following day, December 10, a crew boat took them to shore. That was the plaintiff's last day on the job. Although the offshore phase of Hill's work for Columbia Gulf on the gathering system was originally scheduled to last only a few weeks, the project was not completed until June 1972.

II.

PROCEDURAL HISTORY

On September 5, 1972, the plaintiff filed an action in the United States District Court for the Eastern District of Texas invoking the Jones Act against his employer, Hill, to recover for damages resulting from the injury he sustained on December 6, 1971, while working on the W-701 off the coast of Louisiana. Hill is incorporated to do business in the State of Texas and has its principal place of business in Houston, in the southern district, where the complaint was served. On February 26, 1973, Hill filed a motion to dismiss the complaint for lack of admiralty jurisdiction on the ground that venue was improper in the eastern district of Texas where Hill was doing no business.

On March 1, 1973, the plaintiff amended his complaint to add Williams, owner of the barge on which he was injured, as a defendant under the admiralty jurisdiction of the court. The plaintiff sought damages for breach of the warranty of seaworthiness and for maintenance and cure. Williams, incorporated in Delaware with its principal place of business in Metairie, Louisiana, and licensed to do business in Texas, was served with the complaint in Houston through its registered agent.

Williams joined Hill's motion to dismiss for lack of venue on the ground that it too was doing no business within the eastern district of Texas. In support of its motion Williams filed the affidavit of its president, O. M. Gautreaux. After this Court refused the defendants' request to mandamus the district court to rule on the venue issue before discovery in the case, Gautreaux, in his deposition of January 22, 1974, admitted that Williams was engaged in business in the eastern district of Texas.

On January 30, 1974, the plaintiff filed a second amended complaint against Hill and Williams which was served on Joseph Champagene, deck captain of the dredge Port Arthur, located in the Neches River near Beaumont in the eastern district of Texas and owned by Williams. The dredge had no connection with the events relating to the plaintiff's injury.

The defendants filed no additional motions with the court; and on May 22, 1974, the trial court filed its memorandum opinion and order rejecting the defendants' claims of lack of venue. On May 27, 1974, the defendants filed a motion for entry of an order under 28 U.S.C. § 1292(b) (1970) allowing an immediate appeal on the venue issue to advance the ultimate termination of the litigation. On May 31, 1974, the motion was denied.

After a two-day trial without a jury held on July 29 and 30, 1974, the district court found for the plaintiff and against both defendants, awarding damages of $20,261 for loss of past earnings, $628,991 for loss of future earnings, $33,000 for past and future pain and suffering, and $8 a day for 964 days for maintenance and cure.

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III.

VENUE UNDER THE JONES ACT

The Jones Act, 3 46 U.S.C. § 688, establishes special venue requirements. It provides, in jurisdictional terms, that venue is proper in the district in which the defendant employer resides or in which his principal office is located. In Pure Oil Co. v. Suarez, 1966, 384 U.S. 202, 86 S.Ct. 1394, 16 L.Ed.2d 474, the Supreme Court held...

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167 practice notes
  • Greenbriar, Ltd. v. City of Alabaster, Nos. 88-7086
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 1, 1989
    ...issues, issue was deemed abandoned by appellant where it was not addressed anywhere else in the brief); Davis v. Hill Engineering, Inc., 549 F.2d 314, 324 (5th Cir.1977) (Mere mention in brief on appeal that district court was in error, absent any specific argument as to how the court was i......
  • Springborn v. American Commercial Barge Lines, Inc., No. 83-3692
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 18, 1985
    ...was designed to make it easier for the seaman to prove liability than in the usual negligence cases. See Davis v. Hill Engineering, Inc., 549 F.2d 314, 331, 1977 A.M.C. 1090, 1111 (5th Cir.1977). Thus, under the Jones Act Lavender standard, a directed verdict for the defendant is possible o......
  • Culver v. Slater Boat Co., No. 79-3985
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 22, 1982
    ...1975 has said it says. We will look first to the recent cases arising in this Circuit applying Penrod. In Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977), this Court reduced the District Court's award of $628,991 to $425,321 for the total loss of the plaintiff's future earning......
  • Burks v. American River Transp. Co., No. 80-3261
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 25, 1982
    ...the definition. We have held that a derrick barge used to load and unload oilfield equipment is a vessel. Davis v. Hill Engineering, Inc., 549 F.2d 314, 1977 A.M.C. 1090 (5th Cir. 1977); accord, Salgado v. M. J. Rudolph Corp., 514 F.2d 750, 755-56, 1975 A.M.C. 888, 895 (2nd Cir. 1975) (floa......
  • Request a trial to view additional results
167 cases
  • Greenbriar, Ltd. v. City of Alabaster, Nos. 88-7086
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 1, 1989
    ...issues, issue was deemed abandoned by appellant where it was not addressed anywhere else in the brief); Davis v. Hill Engineering, Inc., 549 F.2d 314, 324 (5th Cir.1977) (Mere mention in brief on appeal that district court was in error, absent any specific argument as to how the court was i......
  • Springborn v. American Commercial Barge Lines, Inc., No. 83-3692
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 18, 1985
    ...was designed to make it easier for the seaman to prove liability than in the usual negligence cases. See Davis v. Hill Engineering, Inc., 549 F.2d 314, 331, 1977 A.M.C. 1090, 1111 (5th Cir.1977). Thus, under the Jones Act Lavender standard, a directed verdict for the defendant is possible o......
  • Culver v. Slater Boat Co., No. 79-3985
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 22, 1982
    ...1975 has said it says. We will look first to the recent cases arising in this Circuit applying Penrod. In Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977), this Court reduced the District Court's award of $628,991 to $425,321 for the total loss of the plaintiff's future earning......
  • Burks v. American River Transp. Co., No. 80-3261
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 25, 1982
    ...the definition. We have held that a derrick barge used to load and unload oilfield equipment is a vessel. Davis v. Hill Engineering, Inc., 549 F.2d 314, 1977 A.M.C. 1090 (5th Cir. 1977); accord, Salgado v. M. J. Rudolph Corp., 514 F.2d 750, 755-56, 1975 A.M.C. 888, 895 (2nd Cir. 1975) (floa......
  • Request a trial to view additional results

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