Fountain v. John E. Graham & Sons

• Decision Date: 03 March 1993
• Docket Number: Civ. A. No. 90-0495-P-M.
• Citation: 833 F. Supp. 873
• Parties: Sean FOUNTAIN, Plaintiff, v. JOHN E. GRAHAM & SONS, Defendant. JOHN E. GRAHAM & SONS, Plaintiff, v. Sean FOUNTAIN, Defendant.
• Court: U.S. District Court — Southern District of Alabama

833 F. Supp. 873

Sean FOUNTAIN, Plaintiff, v. JOHN E. GRAHAM & SONS, Defendant.

JOHN E. GRAHAM & SONS, Plaintiff, v. Sean FOUNTAIN, Defendant.

Civ. A. No. 90-0495-P-M.

United States District Court, S.D. Alabama, S.D.

March 3, 1993.

COPYRIGHT MATERIAL OMITTED

J. Hodge Alves, III and G. Hamp Uzzelle, III, Mobile, AL, for plaintiff.

David Paul Bains and Jack W. Harang, New Orleans, LA, for defendant.

ORDER GRANTING GRAHAM'S MOTION FOR JUDGMENT AS A MATTER OF LAW

PITTMAN, Senior District Judge.

These cases are before the court on John E. Graham & Sons' (Graham's) motion for judgment as a matter of law at the close of Fountain's evidence at trial on the issue of liability. For the reasons set forth below, the motion is GRANTED as to all of Fountain's claims.

Graham had filed for a declaratory judgment in this court. That case was consolidated with a suit brought by Fountain, originally filed in the Eastern District of Louisiana, raising claims for Jones Act negligence, unseaworthiness, and maintenance and cure against Graham.

I. SUMMARY OF THE EVIDENCE

The claims in this case arose from an incident on board the M/V BARRY G, a vessel owned by Graham. The BARRY G was tied to a buoy in the Gulf of Mexico late during the night of March 16, 1990 and early the following morning. The boat was on standby duty, in case any emergency arose on oil platforms serviced by Graham, or on other Graham boats. The BARRY G had a crew of four: Captain Mike Quint, Second Captain Sean Fountain, Engineer Willie McRand, and Deckhand Clancy Pettway. Quint and Fountain are white, and McRand and Pettway are African Americans. McRand is about 5 feet 10 inches tall, and weighs around 175 pounds. Fountain is about 6 feet two inches tall and weighs around 200 pounds.

The plaintiff contends that the incident which occurred between him and McRand, a fellow seaman, arose out of a dispute over the temperature setting on the air conditioner, and that this was the cause of the pushing and shoving, and blows he claimed were struck by McRand. The plaintiff is correct that the dispute first arose because of the temperature setting; however, the evidence is undisputed that only mouthing and foul language occurred before the pushing, shoving, and alleged blows. Such language is not uncommon among seamen aboard vessels, and was not uncommon aboard this vessel. The evidence is undisputed that pushing, shoving, and alleged blows came after the plaintiff, a white person, made racial slurs to McRand, a black person. It is unquestionable that these racial slurs were the cause of the incident on which the plaintiff's claim is based.

This case from the selection of the jury has had an undercurrent of racism. There were 14 jurors seated, from which the jury of eight were to be selected, with three strikes to each side. The plaintiff attempted to strike two of the four blacks. The defendant made objections based on violations of Batson and its progeny. The reasons for striking the blacks were obviously pretextual and without merit. They were restored to the panel. This resulted in a jury being seated of four blacks and four whites.

Throughout the trial, both attorneys for the plaintiff repeatedly violated the court's sidebar orders with reference to the sustaining and over-ruling of objections; so much so that the defendant's attorney, during the third day of the trial, charged the plaintiff with attempting to seek a mistrial.

The court has set this out so that the reviewing court can have an understanding of the totality of the underlying racial issues in this case. These actions of the attorneys for the plaintiff do not directly bear on whether or not they had presented sufficient evidence for the case to go to the jury but illustrate the racial matter, the racial slurs by the plaintiff which are the core of this incident, i.e., the real origin of the alleged assault and battery by McRand, a black seaman aboard the vessel, upon the plaintiff, a white person and McRand's superior.

There are four different versions of the incident. There are two different standards of review for a motion for judgment as a matter of law involved in this case. On the Jones Act claim based on assault and battery by a fellow seaman, on the foreseeability issue, the standard for granting judgment is more stringent than the standard on the seaworthiness and maintenance and cure claims. The court considers the plaintiff's version of the incident to be the most favorable to him; therefore, his version of the incident will be set out first.

A. Testimony of Second Captain Fountain

Sean Fountain was first hired by Graham in August of 1988, as a Second Captain. He was involved in a car wreck in October of 1990. Fountain suffered whiplash and a dislocated hip in this wreck, for which he was treated by a physical therapist. Fountain was discharged by Graham for failing a drug screen after the wreck. Fountain maintains that he failed the screen because he forgot to tell the examiner that he was taking Tylenol 3, though Fountain was aware that Tylenol 3 was a narcotic and Graham had a policy against taking narcotics.

Fountain then went to work on a non-Graham boat. Fountain alleges that he was laid off from this boat because of a misunderstanding with the First Captain.

Fountain alleges that he had received no reprimands regarding cooperation with other crewmen during his first stint at Graham. Graham had black First Captains, and Fountain had served under them. According to Fountain, McRand is the only African American with whom he has ever had a problem.

Fountain returned to Graham during late January or early February of 1990. He served part of a hitch on the BARRY G with McRand. He first said that he had no problems with McRand on this hitch. Fountain later testified differently. He then said that McRand disobeyed a direct order from him regarding a water line. Fountain wrote and signed a performance report on McRand for this hitch. No reference or inference was made of any disobedience or bad attitude. Until the incident on the second hitch, McRand had exhibited no violent propensities and was not easily riled.

During Fountain's second hitch on the BARRY G — the hitch on which the scuffle occurred — there were disagreements regarding the temperature. After a meeting with the crew, Captain Quint ordered that the thermostat be set to 72 degrees and left at that temperature. Fountain alleges that — both before and after this meeting — he reset the temperature to 72 after it had been set to 80. Fountain did not believe that he was disobeying Quint's orders in doing so.

On the night of the 16th, Fountain woke up angry and irritated because it was too hot. He had not planned to rise before 6 a.m., but woke up because it was too hot. Fountain went below to the crew quarters to lower the thermostat. He testified that he did not go back to bed because he wanted to see if McRand would obey his orders regarding the thermostat. Fountain told McRand that it was not possible for everyone to be comfortable and that he, Fountain, had set the temperature and McRand was to leave it alone. McRand cursed and replied that "I wouldn't freeze for anyone." Fountain had no previous problems with McRand on this hitch. Fountain claims that, after he tried to reason with McRand, he told McRand that McRand would be put off the boat. McRand replied that Fountain had no right to do so.¹

Fountain alleges that he then lost his temper and cursed, saying to McRand "fuck you, you black ass."² Fountain testified that McRand then threw an apple at Fountain and lunged, pinning Fountain to a table in the galley. According to Fountain, McRand also confessed to raising the thermostat. Fountain testified that his hands were on the table during the entire incident, and that he never threw a punch. According to Fountain, McRand pinned him to the table, holding him with one hand and punching him with the other.

McRand got off Fountain because Pettway, who had come up from the crew quarters, told McRand to stop. McRand went towards the galley. Fountain alleges that he went to wake up Quint. He admitted that McRand did not do or say anything, when Fountain passed him on the way to Quint's quarters.

Quint came out, and all four men were in the galley. Quint was slow-moving because he had just awakened. According to Fountain, McRand lied to Quint and told Quint that Fountain had called him a "nigger."

Fountain was still angry, and told McRand that McRand would pay for the incident. Fountain then called McRand either a "black mother fucker" or a "black ass." Fountain claims that McRand attacked again; that McRand flew at Fountain, while Fountain was retreating; that McRand pushed Fountain and Fountain hit the bench and then fell to the floor; that McRand was on top of Fountain and the two men almost went down the stairwell. He said McRand stopped when Pettway said "it's not worth it."

Fountain left to start the engines because he wanted to get off the boat. Fountain threw off a bow line which weighed around 100 pounds when wet. Fountain wanted to go onto the platform, but, he was instead released to the GLEN AUTRY G, another Graham boat.

Fountain admitted that he had a duty to Graham to maintain harmony aboard the BARRY G. He admits that he breached this duty, because, according to him, it is more important to stamp out insubordination than to maintain harmony on the ship. If Quint had given Fountain an order not to use racial slurs — an order which Fountain denies receiving — disobedience of such an order would breach a duty Fountain owed to Graham. If a Second Captain provoked a fight, that would breach a duty Fountain owed to Graham.

B. Testimony of Captain Quint

Mike Quint was, at the time of the incident, the Captain of the BARRY G. He still works as a Captain for Graham.

Sometime before the incident, Fountain made a racial epithet, that "everyone should own a nigger." Quint was shocked, as he saw no...