Grigsby v. Coastal Marine Service of Texas, Inc.

• Citation: 412 F.2d 1011
• Decision Date: 20 June 1969
• Docket Number: No. 22451.,22451.
• 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, Appellee, v. COASTAL MARINE SERVICE OF TEXAS, INC., Maryland Casualty Company, Gulf Salt Carriers, Inc., F. E. Aiple d/b/a Aiple Towing Company, Fidelity & Casualty Company of New York, Welders Supply Company of Lake Charles, Louisiana, Appellants. Olin Mathieson Chemical Corporation, Intervenor-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

412 F.2d 1011 (1969)

Hazel Jean GRIGSBY, widow of John D. Grigsby, Individually and as Natural Tutrix of her Minor Children, Javan K. Grigsby and Jennifer Ann Grigsby, Appellee, v. COASTAL MARINE SERVICE OF TEXAS, INC., Maryland Casualty Company, Gulf Salt Carriers, Inc., F. E. Aiple d/b/a Aiple Towing Company, Fidelity & Casualty Company of New York, Welders Supply Company of Lake Charles, Louisiana, Appellants.

Olin Mathieson Chemical Corporation, Intervenor-Appellee.

No. 22451.

United States Court of Appeals Fifth Circuit.

May 1, 1969.

Rehearing Denied and Rehearing Denied June 20, 1969.

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Charles E. Dunbar, III, New Orleans, La., Thomas C. Hall, Lake Charles, La., for Gulf Salt Carriers, Inc., and F. E. Aiple, d/b/a Aiple Towing Co.; Jas. Hy. Bruns, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., Hall, Raggio & Farrar, Lake Charles, La., of counsel.

Meredith T. Holt, Donald E. Walter, Cavanaugh, Brame, Holt & Woodley, Lake Charles, La., for Coastal Marine Service of Texas, Inc., and Maryland Casualty Co., appellants-appellees.

Fred H. Sievert, Jr., Lake Charles, La., for Fidelity & Casualty Co.

William B. Baggett, Lake Charles, La., for Grigsby.

Thomas M. Bergstedt, Lake Charles, La., for Olin Mathieson Chem. Corp.

Norman F. Anderson, Kaufman, Anderson, Leithead, Scott & Boudreau, Lake Charles, La., for Welders Supply Co. of Lake Charles, Inc.

Before JOHN R. BROWN, Chief Judge, and BURGER^* and WISDOM, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied June 20, 1969.

JOHN R. BROWN, Chief Judge:

Another in that ever-growing line of multi-party 3, 4, 5, or 10-ringed amphibious Donneybrooks,¹ this one has its share of complications. At the center of the controversy is the unfortunate death of one seeking to effect a rescue aboard a seagoing barge in Louisiana. Among the questions are: Does an amphibious Good Samaritan succeed vicariously to the Sieracki² vicarious seaman's status of the ship repairer victim? If so, does the Sieracki-warranty of seaworthiness extend to him? Is a barge unseaworthy merely because a closed space, not fit nor meant for man, is a death chamber from its being long closed? If so, does the Louisiana Codal Lord Campbell's survival statute, permitting recovery for "fault", encompass a claim for non-negligent unseaworthiness? To what extent, and on what theory, is there an indemnity-contribution right among the parties and especially against the Employer of the decedent? To these are added other routine, customary ones concerning the sufficiency of the evidence to permit findings of duty, breach thereof, negligence, contributory negligence, amount of the award and the like.

On November 18, 1962, the decedent, John D. Grigsby, a plant guard of Olin Mathieson, sustained injuries from which he shortly died while undertaking to rescue a ship repairer (Sonnier) who was in the No. 2 starboard wing tank of the Barge MORTON SALT #2, then loading a bulk cargo at the dock in Olin's plant. The District Judge, sitting in admiralty, after a full trial and a record exceeding 1800 pages in length, for reasons set forth in its exhaustive opinion, Grigsby v. Coastal Marine Service of Texas, Inc., W.D.La., 1964, 235 F.Supp. 97, awarded recovery to the survivors against the ship repairer and others on the theory of negligence and against the Barge Owner for unseaworthiness and denied indemnity against the decedent's Employer sought by all who were cast.³

I. THE SETTING

Barge #2,⁴ owned by Gulf Salt, and under charter to and operated by Aiple Towing, arrived at the West Lake, Louisiana, docks of Olin on Thursday, November 15, 1962, to take on board a cargo of 1900 tons of nitrate of soda destined to Olin at Tampa, Florida. Coastal, under its contract with Aiple Towing, was to service Aiple's barges calling at the Olin terminal, including pumping out and other work preparatory to taking on cargo. On November 16, the day after arrival, Mike Morgan advised Aiple Towing that Barge #2 was clean and ready for loading, but that it was listing to starboard. Goodrich from New Orleans then instructed Mike Morgan to sound the wing tanks and if any water was found in the tanks, to "strip them out."

Coastal's business was that of ship repairing and related maritime work. For several years, Coastal serviced all of Aiple Towing's barges in the area. Morgan's inspection of the barge on November 15, 1962, revealed that she had at least a two foot list to starboard. He did not gauge or open the No. 2 starboard wing tank but gauged the No. 1 tank and found 2' 8" of water. He reported leaks in the No. 1 and No. 2 starboard wing tanks to Aiple Towing and was instructed to perform the necessary repairs to make the barge seaworthy. This would require that the wing tanks be pumped out and then inspected to determine the nature of the leaks.

After the inspection of November 15th, Morgan decided to wait until the weekend to pump out the wing tanks to avoid interfering with the loading operations. The loading of the barge did not require any Olin employees to work aboard the barge. No one from Olin had reason to inspect the No. 1 and No. 2 wing tanks.

On Sunday, November 18, 1962, prior to returning to the barge, Morgan rented a 1½" pump from Welders.

Morgan, his young son, Edward and Gary Vige, entered Olin's plant at 1:05 P.M. Both Edward and Gary Vige were in the employ and on the payroll of Coastal at the time. Edward, although young, was considered an experienced marine worker by his father. On the other hand, Gary Vige had only worked for Coastal on three or four jobs of short duration. Edward knew that Gary Vige had never helped pump out a barge.

All three went aboard the barge with the rented pump. They knew the No. 1 starboard wing tank had water in it. In order to place a hose in the tank, however, it was necessary that the hatch cover be removed. The hatch cover at the No. 1 wing tank was badly corroded and sealed tightly to the deck. In addition, when the vent plugs were removed on both the No. 1 and No. 2 wing tanks, they either "blew" or "sucked". To Edward this indicated that the wing tank had been sealed for some time.

Efforts to get the pump started at the No. 1 tank continued for about one hour because of difficulty in getting the pump to pick up suction. After working unsuccessfully for approximately an hour to get the pump started, Morgan left the barge and called Sonnier requesting that Sonnier come out and check the pump or bring another pump. Sonnier agreed to bring another pump. At 3:45 P.M. Sonnier arrived with two additional 1½" pumps. Sonnier, representing Welders, went aboard the barge with the Coastal employees and worked to start the pump at the No. 1 wing tank. Morgan went onto the dock at about 4:00 P.M. During the next 40 minute period, Sonnier, with Edward and Vige, tried to get the pump started. Morgan was on the dock approximately twenty feet away, connecting a water hose to provide a direct prime to the pump. After several attempts to get the pump to pick up suction, Sonnier, assisted by Edward and Vige, finally decided to fill the hose with water and plug the end of the hose with a rag. Sonnier then descended the ladder into the No. 1 wing tank. As Edward and Vige started the pump, Sonnier placed the hose in the water and removed the plug. He then came out of the No. 1 wing tank. The Welder's hose had no foot value to hold the prime until the pump picked up suction. In addition, the 1½" pump being used was designed to have a maximum lift of 10 to 12 feet.

At the time Sonnier entered the No. 1 wing tank, he knew nothing of a danger involved. He assumed the employees of Coastal had been in the tank. Up to this time, Morgan was not present on the barge.

At the time Sonnier entered the No. 1 tank, neither Edward nor Vige made any comment as to the propriety of his action although Edward knew the hazards and dangers involved and considered Sonnier's procedure to be unusual. He knew the safety precautions recommended for safe tank entry and the Department of Labor Regulations pertaining to safe tank entry. Vige, on the other hand, had no such knowledge nor had he ever received instruction.

After the pump was in operation at the No. 1 tank, Morgan was so informed and even though they had been trying to get the pump to pick up suction for over an hour and a half, he didn't ask how they got it started. The discharge of water from the No. 1 tank was so slow, however, that Morgan decided to use the additional pump brought by Sonnier at the No. 2 starboard wing tank. It was getting late and Morgan was in a hurry to get the job done and go home. After he informed the others of the decision to use the other pump, Vige and Edward then proceeded to remove the manhole cover from the No. 2 wing tank. While the No. 2 wing tank was being opened for the first time, Sonnier went on the dock. Morgan knew the conditions and dangers that might be encountered upon opening the No. 2 starboard wing tank. But although he knew nothing of Sonnier's experience, he made no mention of any dangers, apparently assuming that Sonnier would not enter the tank.

The bolts or nuts on the No. 2 tank were even more corroded than those on the No. 1 tank. Also, the hatch cover was sealed so tightly to the deck that Vige and Edward had to get Sonnier to help them pry the top cover off with a hammer and screw driver. It was perhaps as much as twelve months since this sealed, unventilated wing tank had been opened. At the time the No. 2 wing tank cover was removed, no odor, aroma or temperature change was noted. There was no indication or mention of any danger involved.

Within five to ten minutes after the hatch cover was removed and the pump in place Sonnier asked Edward if he wanted to take the hose down into the tank and pull the plug out. To this Edward replied: "Well, you did it in the first one, go ahead and...