Dugas v. Pelican Construction Company, Inc.
| Decision Date | 05 July 1973 |
| Docket Number | No. 72-2546.,72-2546. |
| Citation | 481 F.2d 773 |
| Parties | Lloyd DUGAS, Plaintiff-Appellee, v. PELICAN CONSTRUCTION COMPANY, INC., et al., Defendants-Appellees, Rowan Drilling Company and Union Oil Company of California, Defendants-Appellants, Tri-State Insurance Company et al., Third-Party Defendants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. K. Christovich, New Orleans, La., for Rowan Drilling Co.
George V. Baus, Harold A. Thomas, New Orleans, La., for Union Oil Co.
H. Alva Brumfield, III, Baton Rouge, La., for Dugas.
Nicholls Pugh, Jr., Lafayette, La., for Pelican Constr. Co., Inc., and others.
Clarence A. Frost, New Orleans, La., for Pelican.
Donald M. Pierce, New Orleans, La., for Market.
Before JOHN R. BROWN, Chief Judge, and WISDOM and AINSWORTH, Circuit Judges.
Lloyd Dugas, a roustabout employed by Pelican Construction Company, Inc., brought this suit for damages growing out of personal injury sustained aboard a submersible drilling barge, ROWAN NO. 1, owned by Rowan Drilling Company and located on navigable waters at Northeast Patterson Prospect Field, south of Morgan City, St. Martin Parish, Louisiana.
Union Oil Company of California had contracted with Rowan for the drilling of an oil and gas well at that location. The contract provided that Rowan furnish a drilling rig and barge and the necessary personnel to operate them. Union was required under the contract to furnish a tugboat and service barge to be used in connection with the operation. Contract depth was specified to be 13,500 feet, for which Rowan was to be paid a fixed rate per linear foot. Rowan was to provide the drilling pipe up to the contract depth. Beyond 13,500 feet the operations were to be conducted on a day-work basis agreement under which Union would furnish the drilling pipe to Rowan.
In addition to the contract with Rowan, Union had a service contract with Pelican for the furnishing of labor crews as requested by Union.
On September 8, 1964, Rowan was in the process of drilling the well for Union and was operating on day rate, having exceeded the contract depth. Kenneth Ditch, the foreman for Union and its only representative on the drilling barge, called Pelican's office and requested that a crew of roustabouts be sent out to work aboard the drilling barge. Accordingly, a Pelican crew of two pushers, Edward George and Oris Cormier, and four roustabouts, including plaintiff Dugas, left Morgan City, Louisiana, by crewboat and proceeded to the drilling barge, where they arrived at approximately 10 a. m. George was informed by Ditch that the Pelican crew was to unload drilling pipe from a pipe barge onto the drilling barge. The pipe barge, owned by Union and loaded with 4½-inch drill pipe provided by Union, was lying alongside the drilling barge, unmanned. The drilling barge was equipped with a crane and air hoist for use in moving pipe from the pipe barge to the pipe rack aboard the ROWAN NO. 1, and thence to the V-door at the drilling floor when needed by Rowan to run the pipe into the well hole.
Upon arrival at the drilling site, the Pelican crew were assigned various jobs preparatory to unloading the pipe. Sometime in the afternoon the unloading operation began, with George, an experienced air hoist operator, operating the hoist and crane. At 7 p. m. Rowan begain putting the pipe into the hole.
The accident which precipitated this suit occurred at about 4:30 a. m., the following day. Dugas was then working at the far end of the pipe rack on the drilling barge. He and a Pelican co-worker had just attached a sling to a load of six joints of pipe. George then lifted the pipe but the load instead of moving to the V-door, swung back and hit Dugas, who had turned and was walking in the opposite direction, knocking him to the floor of the rig. When observing Dugas fall, George placed the hoist in neutral, left the controls and ran to a point on the upper deck where he could see Dugas, at which time the air hoist "bled off" allowing the load of pipe to settle on Dugas' legs.
Dugas claimed damages from Pelican,1 his employer, Union and Rowan, asserting liability under the Jones Act, the general maritime law and maritime tort. His theory for Jones Act liability against Union and Rowan was based on the theory that he was the borrowed servant of these defendants.
Thereafter a progression of cross-claims between defendants followed, with the parties asserting every known theory of maritime indemnity — tort, contractual (express and implied) and third-party beneficiaries to rights of others under contracts. Virtually everyone claimed over against virtually everyone else.2 As a result of these numerous claims and long, protracted pretrial procedures, including the taking of depositions, interrogatories and the utilization of other discovery devices, the case did not proceed to trial until almost five years after the initial complaint was filed and approximately six years following the accident, a period much longer than the memory span of most of the testifying witnesses. Consequently, the evidence was in many instances sketchy or conflicting. Nevertheless, the district judge, sitting without a jury found that the sole proximate cause of the injury was the negligence of Union in allowing the Pelican crew to become fatigued and overworked on an undermanned vessel which thus became unseaworthy. In this regard the district judge made the following pertinent findings:
The district court further found that the dereliction of George and Dugas, if any, was caused by fatigue due to the unrelieved long hours and sustained heavy labor, and did not under the circumstances constitute negligence on their part which was a contributing cause of the accident. The district court concluded that Dugas was a Jones Act seaman of Union under the borrowed servant theory. Damages were assessed in the sum of $45,000 against Union and Rowan as joint tort-feasors — Union, because of its negligence, and Rowan, because of the unseaworthiness of the ROWAN no. 1 caused by Union's negligence. Judgment was also rendered in favor of Union on its cross-claim against Rowan for contribution in the sum of $22,500. Judgment was then rendered in favor of Union on its cross-claim against Pelican for one half the amount of the award, under the terms of the contract between the parties, which the district court construed as requiring indemnification for injuries to Pelican's employees regardless of causal negligence by Union. All of the other cross-claims and a counterclaim by Pelican against Market Insurance Company, its public liability insurance carrier, were denied. In short, Rowan and Pelican were each liable for one half the amount of judgment, or $22,500 each, under the district court's decree.
Rowan and Union have appealed; Pelican has not appealed inasmuch as it has filed a motion for new trial which inexplicably is still pending in the lower court. Consequently, the issues of contractual indemnity between Union and Pelican and the dismissal of Market Insurance Company are not before us.
Both Rowan and Union contend that the district court erred in finding that Dugas was a Jones Act seaman and a borrowed employee of Union; that fatigue contributed to the accident; and in that there was no causal relationship between the accident and the joint and concurrent negligence of plaintiff in turning his back on the pipe, and George in negligently operating the air hoist.
Rowan further contends that the district court erred in basing a finding of unseaworthiness on the undermanning of Pelican's crew, and in failing to award Rowan full indemnity against Pelican because of the latter's alleged breach of the implied warranty of workmanlike service owed to Rowan under the "Ryan"3 theory of indemnity, as extended by Whisenant v. Brewster-Bartle Offshore Company, 5 Cir., 1971, 446 F. 2d 394.
Union further contends that the district court erred in failing to grant it full contractual and tort indemnity from both Rowan and Pelican under its contracts with the respective parties and under the active-passive theory of tort indemnity enunciated in Tri-State Oil Tool Indus., Inc. v. Delta Marine Drill Co., 5 Cir., 1969, 410 F.2d 178.4
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