Foster v. Destin Trading Corp.

• Decision Date: 30 May 1997
• Citation: 700 So.2d 199
• Parties: 96-0803 La
• Court: Louisiana Supreme Court

Page 199

700 So.2d 199

96-0803 La. 5/30/97

Melvin and Lou M. FOSTER v. DESTIN TRADING CORPORATION and Blessey Marine Services, Inc.

No. 96-C-0803.

Supreme Court of Louisiana.

May 30, 1997.

Order Clarifying Decision on

Grant of Rehearing Oct. 21, 1997.

John J. McKeithen, Russell Alan Woodard, McKeithen, Ryland & Champagne, Columbia, for Applicant.

John J. McKeithen, Louis V. Champagne, Rebel G. Ryland, McKeithen, Ryland & Champagne, Columbia, Russell A. Woodard, Woodard & Woodard, Columbia, for Applicant on Rehearing.

Daniel Edward Knowles, Lars Perkins, Burke & Mayer, New Orleans, for Respondent.

[96-0803 La. 1] JOHNSON, Justice. ^*

Plaintiffs, Melvin and Lou M. Foster filed this action for damages under 46 U.S.C. § 688, commonly referred to as the Jones Act, and general maritime law pursuant to the saving to suitor clause. Foster suffered an injury on September 5, 1991, while employed as a relief captain on the M/V Laura Ann Blessey. Named as defendants were Destin Trading Corporation (hereinafter referred to as "Destin"), owner of the two barges and Foster's employer, Blessey Marine Services, Inc. (hereinafter referred to as "Blessey"). The trial court found the law and evidence to favor the defendants and dismissed the action. ¹ Foster then appealed to the Fifth Circuit. Foster v. Destin Trading Corp., 670 So.2d 1342 (La.App. 5 Cir.1996). In a 2-1 decision, the appellate court found that Foster knew that his use of the board was against company policy and that Blessey had advised its employees not to use boards as a walkway. They opined "We cannot say the trial court erred in finding Blessey exercised reasonable care to maintain a reasonable safe work environment and is therefore not negligent." ² In his dissenting opinion, Judge Cannella found that the vessel was unseaworthy and that Blessey was negligent. He assessed 20% liability to the owner, 40% liability for the employer's negligence with the remaining 40% placed on Foster for his failure to take action in disposing of the cracked board. ³

Plaintiff's writ application was granted so that we could determine whether the court of appeal applied the appropriate standard of review. Because we find [96-0803 La. 2] that both lower courts erred in denying recovery to plaintiff, we reverse the assessment of liability and remand this matter to the court of appeal for a ruling consistent with the conclusions reached herein.

FACTS

Plaintiff, Melvin Foster was employed as a relief captain aboard the M/V Laura Ann Blessey on the date of his injury, September 5, 1991. The M/V Laura Ann Blessey had two barges in tow, WEB 205 and WEB 206 both of which were owned by Destin. The vessels were moored at the dock of the Houston Fuel Oil Terminal in Houston, Texas.

Oil was being discharged from each of the barges to the terminal. The two barges had cargo compartments thirty inches above the walkway of the vessel. Each barge had a hatch cover located at the mid point and at both ends. Three boards extended across from the tank of WEB 205 to WEB 206 at points approximately even with the hatch covers. These boards provided a direct route from cargo compartment to cargo compartment and were requested by the tankermen to conveniently cross from barge to barge. The tankermen would put the boards out when the barges were breasted (side by side) at the dock and take them down when the barges were moved. The boards that were used as a walkway were three 2" X 12" X 16' pressure treated pine boards.

During pumping operations, the tankermen checked the cargo compartment hatches for the level of product. The boards were laid even with the three hatches, so that the tankermen moved from cargo compartment to cargo compartment rather than down to the walkway across to the connecting barge then up to the cargo compartment.

Just before the accident, two U.S. Coast Guard officers boarded one of the barges for a routine inspection, and one of Blessey's seamen was asked to produce [96-0803 La. 3] his tankerman's certificate. Because he did not have the document on his person, the tankerman went to the Laura Ann Blessey and asked Foster to retrieve it. When he returned with the certificate, plaintiff was informed by the tankerman that he believed the Coast Guard was going to issue a citation because the hatches were open. Plaintiff was injured as he was crossing from the top of barge WEB 205 to barge WEB 206 which was the shortest route, when the wooden board connecting the barges broke, causing him to fall approximately 30 inches to the walkway below.

Foster was taken to Hermann Hospital and diagnosed with an open medial dislocation of the right subtalar joint and the right talonavicular joint. The treating physician also noted torn ligaments. Surgery was performed with screws placed in plaintiff's right ankle to assist in the healing process. He was released after a seven day hospital stay.

DISCUSSION

Plaintiff has asserted two theories for his recovery, namely negligence and unseaworthiness. Based on these theories, the appropriate standard of review is the manifest error, clearly wrong standard. Cormier v. Cliff's Drilling Co., 640 So.2d 552 (La.App. 3 Cir.1994).

Plaintiff was employed by Blessey and the barges were owned by Destin. Both corporations are owned by the same individuals, Walter Blessey, Jr., President of the corporations and his children. The facts of this case place it in a rather unique posture based on the apparent inseparability of employer and owner. This fact is noted in plaintiff's petition wherein it states that plaintiff was an employee of Destin and/or Blessey, and that the vessel was owned and operated by Destin and/or Blessey. However, plaintiff's asserted theories of recovery are separate and distinct, therefore he must meet two burdens of proof. Cormier, supra at 555; Hae [96-0803 La. 4] Woo Youn v. Maritime Overseas Corp., 605 So.2d 187 (La.App. 5 Cir.1992), modified on other grounds 623 So.2d 1257 (La.1993); Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971).

An injured seaman is allowed to join a claim for unseaworthiness, for maintenance, cure and wages, with a Jones Act suit. ⁴ Seamen are allowed to bring their Jones Act claims in state court pursuant to the "saving to suitor" clause of the Judiciary Act of 1789. In matters involving admiralty and maritime jurisdiction, the saving to suitor clause permits state courts to have concurrent jurisdiction with the federal district courts. Green v. Industrial Helicopters, Inc., 593 So.2d 634 (La.1992), rehearing denied, certiorari denied, 506 U.S. 819, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992); Parker v. Rowan Companies, Inc., 599 So.2d 296, certiorari denied, 506 U.S. 871, 113 S.Ct. 203, 121 L.Ed.2d 145 (1992); La. C.C.P. art. 1732(6). Accordingly, jurisdiction of this matter was proper in state court. ⁵

Unseaworthiness

The doctrine of unseaworthiness was introduced to general maritime law in 1903 in The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760. ⁶ The case holds that an owner is responsible to the captain or any seaman thereof for injuries received because of the unseaworthiness of the vessel. This liability was imposed on the owner by the Merchants' Shipping Act of 1876, and there is an implied obligation that all reasonable means shall be employed to insure the seaworthiness of a vessel before and during voyage.

[96-0803 La. 5] A vessel is unseaworthy unless all of its appurtenances and crew are reasonably fit and safe for their intended purposes. Griffin v. LeCompte 471 So.2d 1382 (La.1985); Youn, supra at 198: Cormier, supra at 555; Faul v. State, DOTD, 649 So.2d 493 (La.App. 3 Cir.1994); See also, Phillips v. Western Co. of North America, 953 F.2d 923 (5th Cir.1992).

Our case law places a very high burden on a vessel owner to provide its crew with a seaworthy ship. This duty is absolute, non-delegable and completely independent of the Jones Act requirement to exercise reasonable care. To prevail on an unseaworthiness claim, a seaman must prove that the unseaworthy condition was the proximate cause of his injury. Youn, supra at 198. Cormier, supra at 555.

An owner's absolute duty to provide a seaworthy vessel may not be delegated to anyone. Liability for an unseaworthy condition does not depend on negligence, fault or blame. Thus, if an owner does not provide a seaworthy vessel, then no amount of prudence will excuse him, whether he knew of or should have known of the unseaworthy condition. T.J. Schoenbaum, Admiralty and Maritime Law, Second Edition § 6-26 (1994).

An owner's duty to provide a seaworthy vessel has been held to encompass the means by which individuals are provided ingress and egress to the vessel. In Reyes v. Marine Enterprises, Inc., et al, 494 F.2d 866 (1974) a longshoreman ⁷ filed an action based on injuries received when he slipped and fell from an allegedly unstable, poorly lit gangway while boarding a barge. He sued the defendants under both theories of unseaworthiness and negligence. At the close of his evidence, a directed verdict was granted on both counts for the defense, and plaintiff appealed.

[96-0803 La. 6] On appeal, the case was reversed and remanded for a new trial. The appellate court determined that seaworthiness entails a vessel owner's duty to provide his crew with a ship and equipment that are suitable, including suitable means to board and disembark the vessel. The court concluded that this duty extends to gangways by whomever supplied, controlled or owned. The court further concluded that where a crewman is injured by an "unfit", unseaworthy gangplank which is an appurtenance of the ship, he has the right to recover from the vessel's owner.

In THE PHOENIX, 3 F.Supp. 1017 (S.D.Tex.1933), a seaman was awarded damages for injuries sustained while descending a ship by means of a Jacob's (rope) ladder. In that case, the plaintiff boarded the steamship Phoenix, in an attempt to find employment. He climbed...