Fitzgerald v. Compania Naviera La Molinera

• Decision Date: 15 January 1975
• Docket Number: Civ. A. No. 74-598 and 74-2153.
• Citation: 394 F. Supp. 402
• Parties: Edwin Raymond FITZGERALD Sr., and his wife, Patricia B. Fitzgerald, Plaintiffs, v. COMPANIA NAVIERA LA MOLINERA et al., Defendants. Mrs. Louise Cousins PRITCHARD, Individually and as Administratrix of the Estate of Noah Pritchard, and as Administratrix of the Estate of Nolan Gerard Pritchard, Plaintiff, v. COMPANIA NAVIERA LA MOLINERA et al., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

394 F. Supp. 402

Edwin Raymond FITZGERALD Sr., and his wife, Patricia B. Fitzgerald, Plaintiffs, v. COMPANIA NAVIERA LA MOLINERA et al., Defendants.

Mrs. Louise Cousins PRITCHARD, Individually and as Administratrix of the Estate of Noah Pritchard, and as Administratrix of the Estate of Nolan Gerard Pritchard, Plaintiff, v. COMPANIA NAVIERA LA MOLINERA et al., Defendants.

Civ. A. Nos. 74-598 and 74-2153.

United States District Court, E. D. Louisiana.

December 26, 1974.

On Motion to Certify Appeal January 15, 1975.

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Steven R. Plotkin, Owen J. Bradley, New Orleans, La., for plaintiff, Edwin Raymond Fitzgerald, Sr. and his wife, Patricia B. Fitzgerald.

B. J. Trombatore, Kenner, La., for plaintiff, Mrs. Louise Cousins Pritchard.

Rufus C. Harris, Jr., Robert J. Barbier, Terriberry, Yancey, Carroll & Farrell, New Orleans, La., for defendant, Marine Trading, Ltd.

H. Edward Weidlich, Jr., Drury, Lozes & Curry, New Orleans, La., for defendant, Shilstone Testing Laboratories.

John E. Galloway, H. Barton Williams, Overton T. Harrington, Jr., Deutsch, Kerrigan & Stiles, A. R. Christovich, Jr., Christovich & Kearney, New Orleans, La., for defendant, New Orleans Public Grain Elevator.

Breard Snellings, Sessions, Fishman & Rosenson, New Orleans, La., for defendants, Guillory, Squires, Miller and Colley.

David R. Normann, Normann & Normann, New Orleans, La., for defendant, Research Products Company.

F. A. Courtenay, Jr., Rene S. Paysse, Leach, Grossel-Rossi & Paysse, New Orleans, La., James J. Donovan, Donovan, Maloof, Walsh, New York City, for Cargill, Inc.

Donald R. Kronenberger, Jr., Admiralty & Shipping Section Dept. of Justice, Washington, D. C., for U.S.A.

Donald L. King, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for Stauffer Chemical Co. Charles E. Leche, Normann & Normann, New Orleans, La., for Weivil-Cide Co. and Research Products Co.

OPINION ON MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT

ALVIN B. RUBIN, District Judge:

On October 8, 1973, the M/V La Molinera was moored alongside the lower berth of the Public Grain Elevator of New Orleans. After the loading of grain commenced, samples revealed the presence of weevils in the grain. Representatives of the New Orleans Board of Trade and representatives of the Department of Agriculture refused to certify the grain unless the condition was corrected. Accordingly, loading was stopped, and employees of the Public Grain Elevator treated the cargo in Holds Nos. 1 and 2 of the vessel with "Max-Kill High-Life" insecticide, a product regularly used for many years in this area.

The next day, the holds were opened, and Hold No. 2 was inspected. One of the inspectors became dizzy, and all persons left the hold. The other members of the party had no complaints; they waited approximately 10 minutes, re-entered the hold, and checked three samples.

Finding that the weevils in these samples were dead, the samplers employed by the New Orleans Board of Trade again entered Hold No. 1. Two of them, Edwin Raymond Fitzgerald and Nolan Gerard Pritchard, fell unconscious while in the hold. They were taken to a hospital, but were there pronounced dead as a result of being overcome by carbon tetrachloride poisoning. Carbon tetrachloride is the principal ingredient of the insecticide used to fumigate the ship.

These two workers were covered by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., under which compensation has been paid. Their representatives have sued the vessel owner, Marine Trading, and the charterer on the basis of negligence. In addition they have sued the executive officers of the Board of Trade, on the basis that they were personally negligent, the Public Grain Elevator, for negligence, and others who are not involved in the motions before the court.

The Public Grain Elevator has filed a cross claim against all of the other defendants, including the Board of Trade (the decedents' employer) and its executive officers. The vessel owner, Marine Trading, and others of the co-defendants have filed similar cross claims.

These broadsides of claims and cross claims have elicited a cross fire of motions. We deal with them separately.

I. REPRESENTATIVES' CLAIMS AGAINST THE EXECUTIVE OFFICERS OF DECEDENTS' EMPLOYER

Section 33(i) of the LHWCA, 33 U.S. C. § 933(i) provides:

The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person in the same employ: Provided, that this provision shall not affect the liability of a person other than an officer or employee of the employer. (Emphasis supplied.)

Applying this section, the Court held in Keller v. Dravo Corporation, 5 Cir. 1971, 441 F.2d 1239, cert. den. 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665, that Section 933(i) prohibited any claim against an executive officer of the employer. Earlier, in Hughes v. Chitty, E.D.La.1968, 283 F.Supp. 734, 737, affirmed 5 Cir. 1969, 415 F.2d 1150, one of the judges of this district had held that executive officers of the employer "are immune under the act from suit by injured employees." Although the act was amended in 1972, the protection provided to executive officers by Section 933(i) was left unimpaired.

Accordingly the motions to dismiss these claims are GRANTED.

II. THE VESSEL OWNER'S CROSS CLAIM AGAINST THE EXECUTIVE OFFICERS OF THE BOARD OF TRADE

While Section 5 of the LHWCA was amended in 1972, as more fully discussed below, Section 5(a) incorporates the language of the earlier statute with respect to the employer's liability: the "liability of such employer to . . . anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury" is limited to compensation payments. The owners were mindful that Section 5 has been held by the Fifth Circuit and this court to bar a tort indemnity claim against the employer, Ocean Drilling & Exploration Co. v. Berry Brothers Oil Field Service, Inc., 5 Cir. 1967, 377 F.2d 511, cert. denied 1967, 389 U.S. 849, 88 S.Ct. 102, 19 L.Ed.2d 118; Aetna Casualty & Surety Co. v. Service Contracting, Inc., 5 Cir. 1973, 490 F.2d 299; Santoy v. Shell Oil Co., E.D.La.1974, 386 F.Supp. 905. They therefore did not cross claim against the Board of Trade. But they did seek indemnity or contribution from the Board's executive officers. The cross claim is based on various theories that can best be separately discussed.

Indemnity

Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 25, 66 S.Ct. 872, 90 L.Ed. 1099, and its successors¹ established the liability of a vessel for what became known as the breach of the warranty of seaworthiness. In fact no warranty, this doctrine was a species of delictual liability without fault: those who enjoyed seamen's status, whether Jones Act (or "blue water" seamen) or shore based persons doing seamen's work (variously called constructive, quasi, or Sieracki seamen) were entitled to recover from the vessel in tort if the vessel, its gear, or appurtenances were not reasonably fit for their intended use without regard to negligence of the owner. Since in many instances the unseaworthy condition was created by or could best be guarded against or eliminated by the companies that came aboard the vessel to render services, such as stevedores, Sieracki was followed by Ryan Stevedoring Co. v. Pan Atlantic SS Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, which read into the contract between the vessel owner and the contractor a warranty that it would perform the contract in a workmanlike manner; if the contractor did not, then it owed indemnity to the vessel or its owner for any liability created by a breach of this warranty, including claims of the contractor's employees, in spite of the explicit language of the LHWCA that an employer's exclusive liability to an employee covered by the Act was for compensation. Fault was not required to establish a breach of the warranty of workmanlike service; a contractor could be held liable when no negligence on his part could be proved, as where equipment with latent defects was brought aboard the vessel. Italia Societa Per Azioni Di Navigazione v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732.

In an industry where insurance is almost universal, the tort claim against the owner was defended by its insurer; the insurer sought indemnity from the stevedore, to be borne by the stevedore's insurer; and the total cost of insurance was passed on to the vessel in the form of higher costs for stevedoring services. The inequities to which this involute pattern led, and its ultimate cost, resulted in a series of compromises that comprised part of the 1972 amendments to the LHWCA. Compensation benefits to the injured worker were increased both directly by higher weekly benefits and indirectly in a number of other aspects. While section 905(b) preserved the injured worker's action against the vessel and its owner if negligence on the part of vessel personnel could be shown, the action against the vessel and its owner on the basis of unseaworthiness was eliminated.

In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void . . . . The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of

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