Feurtado v. Zapata Gulf Marine Corp.

• Decision Date: 12 January 2000
• Docket Number: No. 99-CA-1510.,99-CA-1510.
• Citation: 751 So.2d 379
• Parties: Frank M. FEURTADO v. ZAPATA GULF MARINE CORPORATION, et al.
• Court: Court of Appeal of Louisiana — District of US

751 So.2d 379

Frank M. FEURTADO v. ZAPATA GULF MARINE CORPORATION, et al.

No. 99-CA-1510.

Court of Appeal of Louisiana, Fourth Circuit.

January 12, 2000.

Rehearing Denied February 15, 2000.

Thomas A. Gennusa, II, Charles J. Ferrara, Law Offices of Thomas A. Gennusa, II, Metairie, Louisiana, Counsel for Plaintiff-Appellee.

Miles P. Clements, Monique G. Morial, Robin Wood Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, Louisiana, Counsel for Defendant-Appellee.

Lindsay A. Larson, III, Michael L. Vincenzo, New Orleans, Louisiana, Counsel for Defendant-Appellant.

Court composed of Judge WILLIAM H. BYRNES, III, Judge MOON LANDRIEU, Judge JAMES F. McKAY, III.

BYRNES, Judge.

Defendant-appellant, Universal Services and Associates, Inc. ("Universal"), appeals a judgment on the issue of liability only (the right to try the issue of damages being reserved to the plaintiff for a later date), finding that the plaintiff-appellee, Frank M. Feurtado, was injured through the sole negligence of Universal, and that Zapata Gulf Marine Corporation ("Zapata"), Jackson Marine Corporation ("Jackson"), and Tidewater, Inc. were free from fault. The judgment also held that Mr. Feurtado is not a seaman and thus not entitled to remedies under the Jones Act, 46 U.S.C.A.App. § 688. The judgment further held that Feurtado was a repairman within the meaning of Section 905(b) and, therefore, could not recover damages from defendants Zapata, Tidewater, Inc., and Jackson Marine under Section 905(b) of the Longshore and Harbor Workers' Compensation Act. Universal appealed assigning as error only the following findings of the trial court: (1) The finding that Universal was negligent and that said negligence was the proximate cause of Feurtado's injuries; (2) the failure to find that Feurtado was contributorily negligent; (3) the failure to find that Zapata was contributorily negligent in failing to warn Feurtado of the presence of the slippery substance on the floor of the fuel tank; (4) the finding that Feurtado was a repairman under 33 U.S.C.A. § 905(b). Feurtado did not assign as error the finding of the trial court that he was not a Jones Act seaman. No other party appealed or answered the appeal.

At the time he was injured on November 21, 1989, the plaintiff, Frank M. Feurtado, had been employed as a port captain by Zapata Gulf Marine Corporation ("Zapata") for several years. On the day he was injured, he descended into the M/V Raleigh Ann's ("the vessel") No. 4 port fuel tank to inspect the tank in response to a report of a water leak. While trying to pass from one section of the tank to another he allegedly slipped and fell on a slippery substance resulting in the injuries that led to the filing of this suit. Universal cleaned and de-gassed the tank a week earlier.

It was stipulated that the vessel was owned by the defendant, Jackson Marine Corporation, and Zapata was the owner pro hac vice. Tidewater was named simply as the corporate successor to Zapata as of January of 1992.

I. Was Universal negligent and was that negligence the proximate cause of the accident?

Universal assigns as error the finding of the trial court that Universal's negligence was the sole cause of the accident. Universal argues that it was not responsible for the substance which caused plaintiff to slip, that Zapata was contributorily negligent in failing to warn Feurtado of the presence of the slippery substance and that Feurtado's own negligence in proceeding into the fuel tank after noticing that it was slippery was a contributed to the accident.

Universal asserts that it was hired by Zapata, not to make the fuel tank free of slippery substances, but to remove combustible contents so that "hot work" could be done in the tank without the risk of explosion. Universal notes that the independent professional inspection conducted immediately after Universal completed its work on November 14, 1998, shows that the tank was, in fact, free of "substantial residue" and that the air inside was noncombustible and breathable. Universal also contends that it was not responsible for slippery substances that may have accumulated on the floor in the week after it cleaned the tank on November 14, and the time that Feurtado allegedly slipped and fell a week later on November 21.

Universal states in its brief that it is undisputed that it "was hired by Zapata, through Feurtado, to pressure wash, clean¹ and "gas free" the no. 4 fuel tank..."

Universal's invoice for "11/13/89" states the following:

# 4 PORT AND STARBOARD FUEL OIL TANKS Ins. Claim # A0H050

1) As instructed, began pumping waste diesel fuel oil from # 4 port and starboard fuel oil tanks into vacuum truck for disposal.

2) Manually removed all sludge and debris from both tanks and prepared them for gas freeing.

3) Pressure washed and chemical cleaned both tanks for gas-freeing purposes.

4) Pumped wash water and fuel oil residue from both tanks into vacuum truck for disposal.

5) Acquired gas free certificate for both # 4 port and starboard fuel oil tanks to perform hot work.

6) Provided vacuum turck [sic] service for the disposal of wash water and diesel fuel oil.

7) Provided an E.P.A. approved site for the disposal of wash water and diesel fuel oil.

Mr. Rodney Abshire testified as the corporate representative of Zapata/Tidewater. At the time of Mr. Feurtado's accident he was the operations manager for Zapata, giving him authority over Mr. Feurtado. Mr. Abshire testified that Universal was contacted "to go up there and clean² the floors ..." Mr. Abshire was under the impression that once a gas-free certificate was issued it was good until the ship moved.

Mr. Feurtado testified that when he entered the # 4 tank he wore safety shoes which he described as "oil resistant" which we may assume means that they were intended to resist skids on oily surfaces. No one told him that they had smelled a strong odor of fuel oil in the tank. Mr. Abshire had told him that the tank had been cleaned. When asked what conditions he encountered when he started to make his way towards the back for inspection purposes he replied: "The bottom of the tank was extremely slippery." He also testified that this was not normal following the cleaning of a tank. He testified that you never really get rid of the odor of diesel, but he recalled no particular intensity of the odor on the day he slipped.

Mr. Carl Bandy, the Chief Engineer aboard the vessel, testified that on November 18 he noted a "very strong odor of diesel fuel and also a lot of rust in the corners and underneath high beamers with pockets of fuel under the rust." He testified that he saw more residue in the # 4 port tank than he had ever seen in a tank that had been gas freed. When Mr. Bandy observed the tank on November 18, there had been no work done in the tank since the time it had been cleaned by Universal on November 18. He did not note anything particularly slippery when he inspected the tank, but indicated that if you stepped on a rust covered pocket of fuel you could come into contact with slippery oil.

Mr. Frank Valls a Marine Chemist for O'Connor, Valls laboratory testified that his job was to test confined spaces for the presence of flammable, combustible or toxic materials or vapors. He testified that a gas free certificate is not intended to mean that the floor is not slippery. He said that reinspection is necessary every twenty-four hours if anyone intends to work in the tank, but Mr. Bandy gave uncontradicted testimony to the effect that no work had been done in the tank between the time it was cleaned by Universal on November 13-14, and the time Mr. Feurtado was injured on November 21.

Based on our review of the record as a whole we find that Universal's duty to render the tank "gas-free" is not necessarily identical to its duty to clean the tank. Regardless of what it may mean to render the tank gas-free, Universal's own invoice references cleaning services, its brief as quoted earlier lists cleaning among the services it rendered in this case, Mr. Abshire testified that Universal was contacted "to go up there and clean the floors...," and Mr. Bandy testified that he saw more residue in the tank than he had ever seen in a tank that had been gas-freed. We cannot say that the trial court was manifestly erroneous in choosing to credit this evidence as it implicitly must have, and in doing so, inferring that Universal had undertaken to clean the tank, an undertaking which was not properly discharged, resulting in the injuries to Mr. Feurtado that are the subject of this suit.

II. Was Mr. Feurtado contributorily negligent?

Mr. Abshire was not present the day Mr. Feurtado was injured and had no independent recollection of what occurred on that day. He did not recall whether it was he who instructed Mr. Feurtado to inspect the No. 4 tank for a leak on November 21. Mr. Feurtado testified that he was directed by Mr. Abshire, his supervisor, to inspect the tank.

Mr. Feurtado testified that the tank "had excessive slippery fill over the bottom of the tank" and that it had not been properly cleaned by Universal. He said that he was wrong to proceed after he knew that it was slippery.³ He said that he thought it was dangerous but elected to proceed anyway. When asked what conditions he encountered when he started to make his way towards the back for inspection purposes he replied: "The bottom of the tank was extremely slippery." In fact, he had to brace himself against the walls to keep from slipping. Mr. Abshire testified that Mr. Feurtado could have asked Universal to return if he felt that the # 4 fuel tank had not been properly cleaned, and in fact it was his duty to do so. But it was implied that Mr. Feurtado had to go into the tank to determine if cleaning were necessary.

In the face of Mr. Feurtado's admission that he knew that the surface of the tank was excessively slippery, we would normally be compelled to find that Mr. Feurtado was...