Gele v. Chevron Oil Co.

• Decision Date: 02 June 1978
• Docket Number: No. 75-3509,75-3509
• Citation: 574 F.2d 243
• Parties: George H. GELE (Mrs. Patricia Kellog Gele substituted in the place and stead of George Gele, deceased), Plaintiff-Appellee-Appellant, v. CHEVRON OIL COMPANY, Defendant-Appellant-Appellee, and B. A. Wilson, Henry Herr and Centennial Insurance Company, Defendants-Appellees-Cross Appellants, and The Travelers Insurance Company, Defendant-Appellee-Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 243

574 F.2d 243

George H. GELE (Mrs. Patricia Kellog Gele substituted in the place and stead of George Gele, deceased) Plaintiff-Appellee-Appellant, v. CHEVRON OIL COMPANY, Defendant-Appellant-Appellee and B. A. Wilson, Henry Herr and Centennial Insurance Company Defendants-Appellees-Cross Appellants and The Travelers Insurance Company, Defendant-Appellee-Cross Appellant.

No. 75-3509.

United States Court of Appeals, Fifth Circuit.

June 2, 1978.

Lloyd C. Melancon, New Orleans, La., for Chevron Oil Co.

John F. Fox, Jr., New Orleans, La., for Gele.

Ralph E. Smith, New Orleans, La., for B. A. Wilson et al.

Fred E. Salley, New Orleans, La., for Travelers Ins. Co. Russell J. Schonekas, New Orleans, La., for Henry Herr.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOHN R. BROWN, Chief Judge, GEWIN and TJOFLAT, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This is a genuine maritime Donnybrook resulting from a nocturnal collision of the TIKI TOO, a 31-foot pleasure craft, with a structure in the Gulf of Mexico, allegedly belonging to Chevron Oil Company (Chevron). George Gele, who was aboard the vessel, was injured and sued Chevron, B. A. Wilson, as the owner of the TIKI TOO, Henry Herr, who was momentarily the boat's operator at the time of collision, Centennial Insurance Company (Centennial), as Wilson's liability insurer, and Travelers Insurance Company (Travelers), as Herr's alleged liability insurer. True to the traditions of the sea, or more accurately to those who follow the sea to a land based tribunal, all lashed out against each other with the usual cross claims for indemnity, contribution, or whatever lesser morsel could be had. The District Court held that Chevron was solely responsible for the collision. No one, however, is completely happy with the decision. All six parties ask that at least part of the lower court's opinion be reversed. After reviewing the massive record, we reverse in part and remand. In particular, we hold that the TIKI TOO was also at fault in the collision.

A Flair For Disaster

Several days prior to the tragic event, B. A. Wilson invited Gele, the proprietor of a sporting goods store in New Orleans, to go on a flare fishing expedition. ¹ Gele accepted, but when he arrived at the New Orleans marina at the appointed hour on May 29, 1971, he learned that defendant Wilson could not accompany the party as planned. Already aboard the TIKI TOO for the trip, however, were Henry Herr and Stewart Wilson, the 16-year-old son of the boat owner. Gele was accompanied by his minor son Michael and his minor nephew James Gele.

After leaving the New Orleans marina in the early afternoon, the TIKI TOO stopped for bait and ice at a marina on Shell Beach, where Donald Bousquet, an acquaintance of Gele, joined the party. The TIKI TOO then proceeded southeast toward the Gulf of Mexico on the Mississippi River-Gulf Outlet Canal, and eventually arrived while it was still daylight in Chevron's Block 41 Field, Main Pass Area, ² which is generally south and west of the entrance to the Canal. During this trip, Herr and Stewart Wilson alternated in operating the boat, although Gele said that on certain occasions he would hold the wheel for a few seconds.

At approximately 10:30 p. m., after fishing near several flares, the party decided to move to another flare northeast of their location in the direction of the Gulf Outlet Canal. Herr was in the forward starboard seat at the controls. Stewart Wilson was seated next to him, and George Gele was on the forward port seat making fishing leaders. Donald Bousquet was seated in the aft section of the boat, and the two young boys were asleep in the cabin below. Herr set his course, in the words of the District Court, to "skirt a lighted platform" between the TIKI TOO and the intended new fishing area. The seas were light, the weather was clear, and only the running lights of the TIKI TOO were on at this time. The boat was planing at 15-16 knots when suddenly the starboard bow collided with an object in the water. Although the description of the object varied, members of the fishing party described it in general as a cylindrical piling structure or flare pipe extending 10 to 15 feet above the water. Whatever it was, witnesses agreed it was unlighted and unmarked by any reflective material.

The impact of the collision threw Gele against the dashboard of the boat. Four of his lower teeth were broken and his mouth and lips were cut. More importantly, as Gele later learned, he bruised the inner side of his left knee on some object or part of the vessel. No one else was injured.

A quick check for damage revealed that the TIKI TOO was taking water through a split along the chine on the starboard side of the boat. The party stuffed the opening with rags and, with the aid of automatic bilge pumps, the TIKI TOO returned safely to port unassisted. A few days later, Gele was treated by a dentist for his broken teeth and the replacement of upper and lower partial plates. Centennial, the P & I insurer of B.A. Wilson, reimbursed him for the treatment.

Approximately seven weeks after the accident, Gele complained to his family physician about persistent pain in the lower part of his left leg. After Gele failed to respond to medication, he was examined by Dr. Robert Schramel, a vascular specialist, who diagnosed an occlusion of the left popliteal artery behind the left knee, which was evidence of arteriosclerosis. Subsequently, Dr. Schramel performed a bypass vein graft on Gele's left leg in August 1971. A year later another vascular surgeon, Dr. White Gibson, performed an aorto-femoral bypass operation affecting arterial input to both legs. Gele's circulation problems, however, failed to respond to treatment and eventually his left leg had to be amputated above the knee.

The District Court awarded Gele $75,000 in damages to be paid solely by Chevron. Cross claims for indemnity by Chevron against B.A. Wilson, Centennial, Herr, and Travelers and cross claims for indemnity by B.A. Wilson, Centennial, and Travelers against Chevron were dismissed. ³

Lost Horizon

Chevron argues that it is not liable primarily because the plaintiff never established the precise location or ownership of the object with which the TIKI TOO collided. Chevron points out that at least one witness, in estimating the location of the collision, placed the accident completely outside the Block 41 Field. We hold, however, that the District Court's finding that the flare pipe belonged to Chevron is well above the Plimsoll line of F.R.Civ.P. 52(a).

Chevron holds a blanket permit from the U.S. Army Corps of Engineers for the Main Pass Block 41 Field and is the sole operator in that area. Even without using charts, the field apparently is easy to find. The platforms in the area can be seen off starboard as one approaches the end of the Mississippi River-Gulf Outlet Canal, a well marked, much traveled thrufare. In fact, the entrance to the Canal is within Block 41 Field. The field, moreover, is a favorite of fishermen because it has numerous flares. It is unlikely, therefore, that these fishermen could mistake another field for Block 41.

During the excitement aboard the TIKI TOO following the collision, no one was sure, however, what number was on the nearby platform. Herr, Bousquet, and Stewart Wilson did not remember any signs or writings on the platform, although Gele said that he saw the letters "41" and "Chevron."

Members of the party also gave varying estimates for the number of miles from the Canal at which the accident occurred. Herr, Gele, Bousquet, and Wilson all agreed, on the other hand, that they could see the lights of the Canal from the location of the collision. Herr said that the visibility of a light on this night was from five to six miles. The Judge could find, therefore, that the collision presumably occurred no more than five to six miles south of the Canal which would place it in the Block 41 area.

Bousquet, however, testified that the collision was eight to ten nautical miles from the channel which would be outside the Block 41 field. Bousquet had navigation experience in the military, but on this trip he never took a turn at the wheel. He based his judgment, in part, on the fact he could see the lights of the Canal buoys from the collision site. His eight to ten nautical mile estimate, therefore, is inconsistent with Herr's statement that lights could be seen for only five to six miles.

Young Stewart Wilson, in contrast, who along with Herr had shared time at operating the boat, set the site of the collision at two miles to the "right" of the Canal's entrance. According to a chart in evidence, ⁴ this places the collision in the midst of several Chevron platforms.

Wilson's opinion should be highly regarded because two weeks after the casualty Wilson guided another fishing party directly to a flare pipe in the Main Pass Block 41 Field that had blue paint smudges similar to the blue paint on the hull of the TIKI TOO. The pipe was unlighted and unmarked with reflective material. In addition, George Van Geffen, who was along for that trip, estimated the distance from the entrance of the canal to the flare pipe at five to six statute miles. Although further from the center of activity in Block 41, nonetheless, this location also placed the offending flare pipe within Main Pass Block 41 area. ⁵

In sum, although the members of this nocturnal fishing crew could not pinpoint the exact location of the collision within Block 41, we cannot say the District Court was clearly erroneous in concluding that the TIKI TOO collided with a structure belonging to Chevron since the oil company was the exclusive operator in this area.

Close Encounters Of The Chevron Kind

With an obstacle in navigable waters, Chevron had a statutory duty to install lights or reflective material. 33 C.F.R. § 67.05-1. ⁶ If the object was within 100 yards of...