Delome v. Union Barge Line Company

• Citation: 444 F.2d 225
• Decision Date: 19 July 1971
• Docket Number: No. 31037.,31037.
• Parties: C. J. Paul DELOME, Plaintiff-Appellee, v. UNION BARGE LINE COMPANY et al., Defendants-Third-Party Plaintiffs-Appellants-Cross Appellees, v. PLATZER SHIPYARD, INC., Third-Party Defendant-Appellee-Cross Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

444 F.2d 225 (1971)

C. J. Paul DELOME, Plaintiff-Appellee, v. UNION BARGE LINE COMPANY et al., Defendants-Third-Party Plaintiffs-Appellants-Cross Appellees, v. PLATZER SHIPYARD, INC., Third-Party Defendant-Appellee-Cross Appellant.

No. 31037.

United States Court of Appeals, Fifth Circuit.

June 8, 1971.

Rehearing Denied and Rehearing Denied July 19, 1971.

John D. Rienstra, Jr., Beamont, Tex., for Union Barge Line Co.

Dewey J. Gonsoulin, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for cross-appellant, Platzer Shipyard, Inc.

Bill J. Sanders, Ned Johnson, Beaumont, Tex., Wayne Patterson, Port Arthur, Tex., Sanders & Sanders, Waldman & Smallwood, Beaumont, Tex., for appellee, C. J. Paul Delome.

Before O'SULLIVAN,^* THORNBERRY and DYER, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied July 19, 1971.

DYER, Circuit Judge.

Union Barge Line Company and Platzer Shipyard, Inc., appeal from the District Court's judgment for Delome, a shipfitter injured on the Barge UBL 550 while it rested on a marine railway. Appellants contend that the trial court had no admiralty and maritime jurisdiction over this controversy, that the court's conclusions concerning the unseaworthiness of the barge and the negligence of Union were erroneous, and that the damages assessed were excessive. We vacate with directions.

An open-hopper cargo barge, the UBL 550 had no motive power and carried no crew. On its port and starboard decks were walkways twenty inches wide. Coamings 3 5/16 inches high separated these walkways from the open cargo hatch. On the port side of the vessel, brackets extended into the walkway from the hatch coaming. Bitts (commonly known as timberheads) approximately nine inches high, as well as a circular pumpwell cover, were located in the same walkway.

On July 22, 1966, the UBL 550 was delivered to Platzer's repair facility in Green's Bayou, Texas, for repairs to its forward rake area. Two days later the barge was placed on a marine railway and moved out of the water so that workmen could take a damaged plate from the forward rake and reseal the opening. During the evening shift on July 25, a foreman ordered Delome, one of the workers, to go onto the barge and enter the forward rake space through a hatchway. To facilitate ingress and egress, Platzer had placed a ladder twenty feet from the forward bulkhead on the port side. Employees such as Delome used this ladder to climb aboard.

Following his instructions, Delome reached the port walkway, As he started forward, he was temporarily blinded by the glare of a 1000-watt onshore light located on a pole near the vessel's bow. After taking a few steps in this dazzled condition, Delome fell ten feet into the open cargo hold.

Delome collected under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950, then initiated this action against Union Barge Line Co. pursuant to Rule 9(h) of the Federal Rules of Civil Procedure.¹ Subsequently Union impleaded Platzer — the third-party complaint alleging that Platzer's negligence and breach of its duty of workmanlike performance proximately caused Delome's injury. According to the record, no party objected to the District Court's assumption of admiralty jurisdiction.

Sitting without a jury, the District Judge heard the evidence and concluded that, at the time of Delome's accident, the UBL 550 was a vessel in navigation; that Union owed a warranty of seaworthiness to Delome because he "was performing the traditional duties of a seaman in making minor repairs as a shipfitter;" and that Union had breached this warranty by providing an unseaworthy walkway, filled with trip hazards which circumscribed a hatch coaming insufficient in height. The court held that these breaches were causally related to Delome's fall. Furthermore, the court decided that Union was negligent in furnishing Delome with an unsafe place to work; it held that such negligence was a proximate cause of Delome's injuries. The court also determined that Platzer was negligent in failing to install a guard rail around the open hopper cargo area and in positioning its onshore light. Concluding that Platzer's negligence proximately caused Delome's injuries and constituted a breach of the duty of workmanlike performance owed to Union, the District Court held that Platzer was obligated to indemnify Union for all sums recovered by Delome as a result of the accident. Finally, the court found Delome 5% contributorily negligent and diminished his recovery by that percentage. It awarded damages of $213,437.69 together with interest at 6% per annum.

Both Union and Platzer have appealed. They question the District Court's assumption of admiralty jurisdiction and attack the court's conclusions with respect to the warranty of seaworthiness and duty to provide a safe place to work. They also assert that the damages assessed by the court were excessive.

ADMIRALTY JURISDICTION

A. The Navigable Waters Test

When Delome fell, the UBL 550 was located on a marine railway. Its stern was approximately sixty-five feet inland. In fact, no part of the barge was on, or even over, navigable water. Consequently the Admiralty Extension Act² is inapplicable.

Postulating that breach of the warranty of seaworthiness is a maritime tort, Union and Platzer argue that Delome's "unseaworthiness" claim was not within the District Court's "admiralty and maritime jurisdiction" as articulated by the Constitution,³ and defined by Congress⁴ and the federal courts.⁵ The vessel, the accident, and the injury were too remote from the water's edge, the traditional boundary of admiralty tort jurisdiction. Thus framed, the issue is simple, if somewhat wordy: whether the shoreward sweep of the silver oar encompasses a shipyard worker's suit against a vessel owner when the complaint alleges that the worker is a Sieracki⁶ seaman injured because of the vessel's unseaworthiness, if the vessel is located on a marine railway outside navigable water.

Born of dicta⁷ and nurtured by fiction,⁸ the shipowner's warranty of seaworthiness in personal injury cases is now firmly rooted in federal maritime law.⁹ For years this warranty was considered contractual in nature. E.g., The Osceola, 1903, 189 U.S. 158, 171-75, 23 S.Ct. 483, 47 L.Ed. 760; Hamilton v. United States, 4 Cir. 1920, 268 F. 15, 21, cert. denied, 254 U.S. 645, 41 S.Ct. 15, 65 L.Ed. 454; Rainey v. New York & P. S.S. Co., 9 Cir. 1914, 216 F. 449, 453, cert. denied, 235 U.S. 704, 35 S.Ct. 209, 59 L.Ed. 433; see Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 90, 66 S.Ct. 872, 90 L.Ed. 1099. Recently, however, some courts have articulated the thesis that breach of the warranty is tortious. E.g., Gebhard v. S.S. Hawaiian Legislator, 9 Cir. 1970, 425 F.2d 1303, 1310; Strika v. Netherlands Ministry of Traffic, 2 Cir. 1950, 185 F.2d 555, 558, cert. denied, 1951, 341 U.S. 904, 71 S.Ct. 614, 95 L.Ed. 1343; The Chiswick, 5 Cir. 1916, 231 F. 452, cert. denied, sub. nom. British Steamship Co. v. Clarke, 241 U.S. 673, 36 S.Ct. 723, 60 L.Ed. 1231, see Gutierrez v. Waterman Steamship Corp., 1963, 373 U.S. 206, 214-15, 83 S.Ct. 1185, 10 L.Ed.2d 297. Nevertheless, given their factual contexts, the latter expressions must be regarded as dicta: in each case the vessel was moored on navigable waters and the causes were, at least, within the purview of the Extension Act. See, e. g., Strika v. Netherlands Ministry of Traffic, supra, 185 F. 2d at 556. Indeed, we have found no case in which a definition of the intrinsic nature of the warranty of seaworthiness was necessary for determination of a federal court's admiralty jurisdiction.

The warranty of seaworthiness in personal injury cases essentially depends on neither common-law tort nor contract concepts. Dimas v. Lehigh Valley R.R., 2 Cir. 1956, 234 F.2d 151, 153. Instead, while the seaworthiness doctrine is comprised of both tort and contract elements, it is a creature of twentieth-century judicial policy concerning risk distribution in the shipping industry. In Seas Shipping Co. v. Sieracki, supra, the Supreme Court explicated this basis for the doctrine. It stated:

Obviously the norm of the liability has been historically and still is the case of the seaman under contract with the vessel\'s owner. This is because the work of maritime service has been done largely by such persons. * * *

* * * * * *

Because rationalizing the liability as one attached by law to the relation of shipowner and seaman, where this results from contract, may have been thought useful to negative the importation of those common-law tort limitations does not mean, however, that the liability is itself contractual or that it may not extend to situations where the ship\'s work is done by others not in such an immediate relation of employment to the owner. That the liability may not be either so founded or so limited would seem indicated by the stress the cases uniformly place upon its relation, both in character and in scope, to the hazards of marine service which unseaworthiness places on the men who perform it. * * * Those risks are avoidable by the owner to the extent that they may result from negligence. And beyond this he is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its cost.

These and other considerations arising from the hazards which maritime service places upon the men who perform it, rather than any consensual basis of responsibility, have been the paramount influences dictating the shipowner\'s liability for unseaworthiness as well as its absolute character. It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. * * * It is a form of absolute duty owing to all within the range of its

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