Grigsby v. Coastal Marine Service of Texas, Inc., 9949.

• Decision Date: 04 November 1964
• Docket Number: No. 9949.,9949.
• Citation: 235 F. Supp. 97
• Parties: Hazel Jean GRIGSBY, Widow of John D. Grigsby, Individually and as Natural Tutrix of Her Minor Children, Javan K. Grigsby and Jennifer Ann Grigsby, Libellant, v. COASTAL MARINE SERVICE OF TEXAS, INC., Maryland Casualty Company, Gulf Salt Carriers, Inc., F. E. Aiple, d/b/a Aiple Towing Company, and Fidelity & Casualty Company of New York, Original Respondents, Cross-Libellants, Cross-Respondents, WELDERS SUPPLY COMPANY OF LAKE CHARLES, LOUISIANA, Third Party Respondent, Cross-Libellant, Olin Mathieson Chemical Corporation, Intervenor, Cross-Respondent.
• Court: U.S. District Court — Western District of Louisiana

235 F. Supp. 97

Hazel Jean GRIGSBY, Widow of John D. Grigsby, Individually and as Natural Tutrix of Her Minor Children, Javan K. Grigsby and Jennifer Ann Grigsby, Libellant, v. COASTAL MARINE SERVICE OF TEXAS, INC., Maryland Casualty Company, Gulf Salt Carriers, Inc., F. E. Aiple, d/b/a Aiple Towing Company, and Fidelity & Casualty Company of New York, Original Respondents, Cross-Libellants, Cross-Respondents WELDERS SUPPLY COMPANY OF LAKE CHARLES, LOUISIANA, Third Party Respondent, Cross-Libellant Olin Mathieson Chemical Corporation, Intervenor, Cross-Respondent.

No. 9949.

United States District Court W. D. Louisiana, Lake Charles Division.

November 4, 1964.

COPYRIGHT MATERIAL OMITTED

Baggett & Hawsey, Lake Charles, La., for libellant.

Cavanaugh, Holt, Brame & Woodley, Lake Charles, La., Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., Hall, Raggio & Farrar, and Plauche & Stockwell, Lake Charles, La., for original respondents.

Kaufman, Anderson, Leithead, Scott & Boudreaux, Lake Charles, La., for third-party respondents.

Jones, Kimball, Harper, Tete & Wetherill, Lake Charles, La., for intervenor.

HUNTER, District Judge.

Mrs. Hazel Jean Grigsby, individually, and as natural tutrix of her minor children, Javan K. and Jennifer Ann, seeks damages for the death of John D. Grigsby, her husband.

Grigsby, while acting in an emergency and trying to render aid to or rescue employees of Coastal Marine Service of Texas and Welders' Supply Company of Louisiana, met his death aboard the barge Morton Salt II on November 18, 1962. The immediate cause of death was drowning and the contributing cause was asphyxiation. The original libel was filed against Gulf Salt Carriers, Inc.; Aiple Towing Company; Coastal Marine Service; Coastal's liability insurer, Maryland Casualty Company; and Fidelity and Casualty Company of New York, the liability insurer of Welders' Supply Company, Inc.

Olin Mathieson Chemical Corporation intervened in the main demand, seeking recovery of benefits it has paid and is paying plaintiff under the provisions of the Longshoremen's and Harbor Workers' Act.

As the pleadings developed, every defendant to the main demand filed cross-libels against virtually everyone in sight, including Olin.

The appropriate procedural device for recovery has been employed — the survivorship procedure encompassed in Article 2315 of the LSA-Civil Code.

We proceed to dispose of the main demand.

FINDINGS OF FACT

(1) The Barge Morton Salt II is a cargo barge approximately 220 feet in length, approximately 40 feet in width, and approximately 16' 3" in depth, with a registered tonnage of 1,649 tons.

(2) Morton Salt II was owned by Gulf Salt but was under bare boat charter to Aiple at all times pertinent hereto. Gulf Salt had transferred to Aiple control and possession of the vessel and Aiple was the owner pro hoc vice with the legal responsibility of ownership.

(3) Morton Salt II was dispatched from Texas City, Texas via the intercoastal canal to Lake Charles, Louisiana to load a cargo of fertilizer material at Olin's plant in West Lake, Louisiana.

(4) The Barge Morton Salt II arrived and was moored in navigable waters of the United States alongside Olin's docks near West Lake, Louisiana at 12:00 Noon on Thursday, November 15, 1962. She was listing noticeably to starboard, which was being caused by an abnormal accumulation of water in her starboard tanks.

(5) Prior to the arrival of the barge, Goodrich, an employee of Aiple, contacted Mike Morgan, an employee of Coastal and advised him that the barge was being dispatched to Lake Charles.

(6) Coastal's business was that of ship repairing and related maritime work. For several years, Coastal had serviced all of Aiple's barges in Gulf Coast traffic.

(7) Mr. Mike Morgan himself, in his capacity as an employee of Coastal, proceeded to inspect the barge and found that she had at least a two-foot list to starboard. Mr. Morgan reported this to Mr. Goodrich (Aiple's agent) who instructed Morgan to sound the single tanks and to strip them or pump them out to ascertain where the leaks were. Morgan had reported leaks in the No. 1 and No. 2 starboard tanks (Tr. 944).

(8) On Sunday, November 18th, prior to proceeding to begin work on the barge, Mr. Morgan stopped by Welders' to rent a pump which was to be used in connection with Coastal's work aboard the barge. He requested from Mr. Camille Sonnier, a Welders' employee, and obtained a 1½" Worthington Blue Brute Water Pump, and then he proceeded to the barge. With him were his son, Edward Morgan (age 17) and another employee, Gary Vige (age 18). They arrived at the docks at approximately 1:00 P.M. All three were in the employ and on the payroll of Coastal at the time.

(9) Since the barge was listing to starboard, the aforesaid Coastal employees proceeded immediately to remove the manhole cover to the No. 1 starboard wing tank in order to proceed with the pumping-out operation. They attempted to use the pump which they had obtained from Welders'. They worked with it for over a half hour but were unable to get it to draw up any water from the tank.

(10) Mike Morgan then called via telephone to Mr. Sonnier of Welders' and advised him that they were not able to get the pump to draw water, and that they would need another pump. Sonnier advised Morgan that he would meet him at Olin's gate with an additional pump. Sonnier arrived at the Olin gate at approximately 3:45 P.M. and was met by Morgan. Together they proceeded to the Olin docks.

(11) Edward Morgan and Gary Vige then began working to get one of the pumps to pull water from the No. 1 tank. Sonnier was with them, about his employer's business of proving that the rental pump could do the work. He testified that he personally felt it was his responsibility to see that the equipment worked. After trying various methods, Sonnier proceeded down into the No. 1 tank with the suction hose and after descending into the tank and immersing the end of the hose into the water and pulling rags from the end of the hose, the pump was activated and began slowly pulling water from the tank.

(12) The three then proceeded to the No. 2 starboard wing tank. They removed the manhole cover of the No. 2 wing tank. It was tight and rusty.

(13) Sonnier asked Edward Morgan if he wanted to go into the No. 2 tank, and according to Sonnier, Morgan answered, "Well, you did it in the first one, go ahead and do it again and I will start the pump," whereupon Sonnier entered the tank, and lost consciousness as he was descending the ladder and fell, to the bottom of the tank.

(14) At the time Sonnier entered the No. 1 starboard wing tank, neither Edward Morgan nor Gary Vige made any comment as to the propriety of his action, even though Edward knew the hazards and dangers involved, and considered the procedure employed by Sonnier as unusual procedure. Further, he, Edward Morgan, knew the safety precautions recommended for safe tank entry and knew the Department of Labor regulations pertaining to safe tank entry.

(15) The Coastal employees knew the conditions and dangers that might be encountered upon opening the No. 2 starboard wing tank but made no mention of any such dangers. The bolts on the No. 2 tank were even more corroded then those on the No. 1 tank. Also, the hatch cover was sealed so tight that Gary Vige and Edward Morgan asked Sonnier to help them pry the top cover off the opening with a hammer and a screw driver.

(16) At the time or shortly thereafter all of the people on the scene had occasion to be around the opening and no odor, aroma or temperature change was noted.

(17) As Sonnier descended the ladder it was obvious to Edward Morgan that something was wrong, because Sonnier had reached a point ¾ ths of the way down the ladder and then started back up the ladder, got a couple of feet from the top, and then let go of the hose "and his head fell back and his eyes shut and he just fell straight back off the ladder."

(18) Only Vige and Edward Morgan were standing by the tank opening at the time Sonnier fell off the ladder.

(19) Edward Morgan called to his father, Mike Morgan, that Sonnier needed help. Edward thought Sonnier had sustained an accidental fall and a back injury. Mike Morgan instructed Edward to try to get further help, while he, Mike Morgan, went down into the tank to help Sonnier, whose face at this time was in water.

(20) Before entering the tank Mike Morgan told Edward to "go up and call an ambulance and tell them to bring some gear down here to be able to get a man out of the hole, for I am afraid that he will have a hurt back."

(21) Mike Morgan then entered the tank, raised Buddy Sonnier out of the water, set down in the 2' 3" of water and leaned back against the bulwark with Buddy Sonnier cradled in his arms. After that, Mr. Morgan recalls nothing until he regained consciousness in the hospital.

(22) At approximately 4:50 P.M., pursuant to his father's instruction, Edward Morgan, who was "pretty excited" and "talking pretty loud" ran up to two Olin employees, one of whom was George Monroe, and asked for help. He informed the Olin employees that "one of my men has fallen on the barge down here. I think his back is broken."

(23) Edward Morgan stated that one of Olin's employees asked if there was any gas or anything like that, and he, Edward, replied, "No, there is none indicated." (Tr. 82-83).

(24) Mr. Monroe, who was the shift foreman in the soda ash department, had the impression — based on what Edward Morgan told him — that men had been working in the tank and that one had fallen and hurt his back.

(25) Monroe, at Edward Morgan's request, then called for help. He called Mr. William Nelson, the fireman on duty. Grigsby (the deceased) answered one of the two extension telephones in Nelson's office, and together with Nelson was informed by Monroe that some help was needed and that a man had been hurt.

(26) Grigsby left immediately for the dock area...