Drachenberg v. Canal Barge Co., Inc.

• Decision Date: 21 April 1978
• Docket Number: No. 74-2050,74-2050
• Parties: Inez Marie DRACHENBERG, widow of Tracy V. Lilly, Plaintiff-Appellant, v. CANAL BARGE COMPANY, INC., Jena Marine Corporation and XYZ Insurance Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 912

571 F.2d 912

Inez Marie DRACHENBERG, widow of Tracy V. Lilly, Plaintiff-Appellant, v. CANAL BARGE COMPANY, INC., Jena Marine Corporation and XYZ

Insurance Company, Defendants-Appellees.

No. 74-2050.

United States Court of Appeals, Fifth Circuit.

April 21, 1978.

Rehearing Denied May 18, 1978.

Christopher Tompkins, New Orleans, La., for plaintiff-appellant.

Robert B. Acomb, Jr., New Orleans, La., for defendants-appellees.

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

Before BROWN, Chief Judge, and WISDOM and COLEMAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Tracy V. Lilly (Decedent), an employee of the Freeport Gulf Sulphur Company, was supervising the unloading of molten sulphur from a barge in the Mississippi River into storage tanks on the shore, when the marine unloading arm which connected the barge piping system to the storage tanks broke, spilling molten sulphur on Lilly and causing injuries which resulted in his death. Decedent's widow, Inez Marie Drachenberg (plaintiff) brought suit against the barge company for damages for her husband's death. The District Court, although finding that admiralty jurisdiction attached because the accident occurred on the deck of the barge, denied recovery. Crucial to its judgment were its findings and conclusions of law (i) that the marine unloading arm affixed to the barge was not an appurtenance of the barge, under Victory Carriers, Inc. v. Law, 1971, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383, 1972 A.M.C. 1; (ii) that the owners of the barge and the barge crew were guilty of no negligence whatsoever; (iii) that Decedent was not a Sieracki ¹ seaman; (iv) that the sole proximate cause of Decedent's accident was his own negligence; and (v) that Decedent was 100% Contributorily negligent. Because we find that Decedent was a Sieracki seaman entitled to a guarantee of seaworthiness, which guarantee extended to the unloading arm, and that the marine unloading arm was unseaworthy, that the doctrine of assumption of risk is inapplicable here, and that the finding that Decedent was 100% Contributorily negligent is clearly erroneous, we reverse the District Court and remand for trial on the issue of damages.

On May 6, 1972, the Tow Boat M/V ELIZABETH HUGER ² and the unmanned barge CBC-31 ³ were moored at the Freeport sulphur unloading facility at the Stauffer Chemical Dock on the Mississippi River in Baton Rouge, Louisiana. The barge, handled by the crew from the ELIZABETH HUGER, was laden with a cargo of liquid molten sulphur maintained at 270o Fahrenheit. The cargo sulphur was owned by Freeport Sulphur Company, Inc., and was to be unloaded into the Freeport storage tanks located at the Freeport unloading dock facility.

The Decedent was employed by Freeport as Transportation Manager and Terminal Supervisor. Although he maintained an office in the Freeport office in the Commerce Building in New Orleans, where he had a desk job, he was required to go to Baton Rouge whenever sulphur was being unloaded, in order to supervise the unloading. Decedent had overall control of the dock facility, which included the responsibility for the inspection and maintenance of all machinery and equipment and the arranging for whatever repairs were necessary. He was also in charge of operating all of Freeport's dock equipment and had general supervision of the unloading of molten sulphur from barges.

The dock had a piping system which permitted barges to be unloaded and their cargoes to be pumped directly into the shoreside lines and then into Freeport's tanks on shore. This dock-side piping system was permanently affixed to the dock. Presumably to permit the molten sulphur to be pumped into tanks or other containers, where as it cooled it would solidify, the discharge line ran vertically to an elevation of approximately 55 to 60 feet (the water level being approximately 23 feet). The critical element in the dock piping system was a marine unloading arm made of aluminum consisting of a series of swivel joints, 90o elbow pipes, and straight pipes. The arm connected by a swivel joint to the seaward edge of the dock piping system at an elevation of 43 feet. The arm was in two sections of substantially equal length. The two sections were joined by a swivel joint. At the vessel end of the second pipe was a 90o elbow which by a swivel was connected to a similar elbow which in turn was bolted to the flange on a short extension of the barge's header. This extension, likewise a short 90o elbow, was bolted by a flange to the header. The connection from the pipe to the elbow attached to the barge's header was during operation somewhat in the shape of an horizontal "S". There was a wire cable from the area of the swiveled joint between the two sections of pipes running vertically to an electrical hoist at an elevation exceeding 60 feet. The function of this arrangement was to permit three dimensional movement vertically as the barge's draft lessened with cargo discharge, horizontally as the barge moved to and from the dockside from current, swells or waves in the river, and longitudinally as like forces moved the barge up or down the dock plus a combination of one or more or all these movements.

Although the loading arm was a permanent part of the dock-side piping system it is obvious that it and the receiving connections permanently on the barge were designed to function together as an integrated system, each being indispensable and neither being more important than the other. Like the good marriage it was one no man could put asunder.

On May 6, 1972, during the unloading of the barge, Decedent operated the electric hoist and lowered the marine unloading arm down to the members of the crew of the ELIZABETH HUGER, who were handling the barge. These crew members secured the nuts and bolts which connected the 90o elbow flange of the dock-side unloading arm to the barge piping system. Under Decedent's directions, pumping was started. At 11:50 a. m., pumping was shut down due to a clogged or plugged side line. Decedent cleared the line and pumping started again at 3:30 p. m.

At 8:00 p. m., Decedent went on board the barge to talk with a mate of the ELIZABETH HUGER's crew. He told the mate that he was going to gauge the shoreside tanks and would signal to him with a flashlight when the tanks were full, so that pumping operations could be shut down. Ending this discussion, Decedent turned and walked on the deck of the barge toward the dock, where he was going to measure the tanks. While walking across the deck of the barge toward the dock, the marine unloading arm, part of which hung over the deck of the barge, broke.

The swivel joint in the center of the horizontal "S" connection broke. The break involved only the unloading arm and not the regular barge piping system. After the break the severed loading arm, still connected to the seaward edge of the dock piping system and supported by the electric hoist, swung away about three feet from the opening created by the rupture. Molten sulphur poured backwards out of the arm, covering Decedent, and causing the injuries from which he died eight days later.

The District Court found as a fact a fact not disputed here that "the arm broke as a direct result of the fact that the last section of the dock-side unloading arm was reversed so that there was not the proper number of swivels in the arm at the point where the swivels were required to allow the arm to move freely with anticipated movement of the barge." The record also discloses that, on several previous occasions, Decedent had had trouble with the unloading arm and had supervised its repair. However, the reasons thought by Decedent and his supervisors at Freeport to be causing the failures of the arm were bad welds, deteriorated swivel joints, worn out ballbearings and the like. The evidence does not support a finding that Decedent or any others at Freeport were aware that the last section of the loading arm was reversed or that there was any risk in using the arm. The uncontradicted testimony of Decedent's predecessor at the Freeport dock shows that the unloading arm was in this reversed position the entire time he worked for Freeport as dock supervisor, so that the arm was in a reversed position when Decedent took over the job. The evidence also shows that an engineering study conducted by Freeport's engineering department prior to the accident for the purpose of recommending necessary improvements in the unloading arm did not disclose the reversal of the last section of the arm. Thus, although Decedent and Freeport knew that something had gone wrong with the arm in the past, there was no explicit evidence that the last section of the arm was reversed or that there was reason for them to suspect that there was any particular risk involved in using the arm.

The liability stage at this trial was before a Judge sitting without a jury, and his disposition of the case made trial on damages unnecessary. In his findings of fact, he found, among others, that (i) Decedent "knew or should have known that the lower arm of the unloading arm was installed backwards;" (ii) Decedent's work was "not that of a seaman or member of a crew of a vessel but was the work of a shore side employee;" (iii) the "dock-side unloading arm was permanent shore side equipment and not a part of the ship's equipment;" (iv) the "equipment was not an appurtenance of the vessel and not attached to the vessel despite the temporary fixing of the arm to the barge discharge piping; ⁴" (v) there is "maritime jurisdiction based upon the fact that Mr. Lilly was injured while physically on the barge itself;" (vi) "Canal Barge Company, Inc. and its crew were not guilty of any negligence contributing to this casualty, and that their actions were those of reasonable men under the circumstances;" (vii) "the accident resulting in Mr. Lilly's death was caused solely because of his own...