Halliburton Company v. Norton Drilling Company

• Decision Date: 25 April 1962
• Docket Number: No. 19043.,19043.
• Parties: HALLIBURTON COMPANY and Continental Casualty Company, Appellants, v. NORTON DRILLING COMPANY and Liberty Mutual Insurance Company, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

302 F.2d 431 (1962)

HALLIBURTON COMPANY and Continental Casualty Company, Appellants, v. NORTON DRILLING COMPANY and Liberty Mutual Insurance Company, Appellees.

No. 19043.

United States Court of Appeals Fifth Circuit.

April 25, 1962.

Paul A. Gaudet, New Orleans, La., for appellants, Deutsch, Kerrigan & Stiles, William S. Stone, New Orleans, La., of counsel.

John V. Baus, New Orleans, La., John J. Weigel, New Orleans, La., for appellees, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., of counsel.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

TUTTLE, Chief Judge.

This is an appeal from the dismissal of the appellants' third-party complaint wherein the appellants asserted a right to be indemnified by the appellee, the employer of the injured plaintiff, for any damages which might be recovered by by the plaintiff from the appellants. We affirm the judgment below.

In February, 1960, the appellee Norton, a drilling contractor, was engaged in drilling for oil in Lake Barre, in Terrebonne Parish, Louisiana. It was conducting the drilling operations from its submersible drilling barge. The plaintiff, Adam J. Sims, was employed by Norton as a member of the drilling crew of the barge.

On the morning of February 14, 1960, the appellant Halliburton, an oil well servicing concern, ran cemented casing into the well being drilled by Norton and furnished and installed what is referred to as a "cementing head" on top of the casing. This cementing head was a round, dome-shaped metallic object, weighing from 500 to 750 pounds. To facilitate the lifting of the cementing head off the casing when the casing was sufficiently hardened, there was attached to the top of the cementing head a metal, link-type chain.

On the afternoon of February 14, 1960, Sims and others in Norton's crew were directed to remove the cementing head from the casing. They apparently followed customary procedure by attaching a "catline" running from the barge's hoisting device to the chain on the cementing head. As the hoist started to lift the cementing head off the casing, the metal chain on the cementing head parted, causing Sims to become entangled in the catline and to fall from the place where he had been working to the drilling floor deck of the barge some 35 feet below. As a result, Sims sustained severe injuries.

Sims brought suit for damages against Halliburton and its liability insurance carrier, the appellant Continental Casualty Company, alleging that his injuries were caused by:

"* * * the negligence, carelessness and inattention of the defendant, Halliburton Co., its agents, servants and employees, and each of them, with respect to the manufacture, maintenance, upkeep and repair of the said cementing head and its appurtenances, particularly, but not exclusively the said handling chain of the said cementing head, as well as the negligent failure of the said defendant to furnish reasonably proper tools and appliances and to warn the plaintiff and others in his position of the dangers inherent therein."

The action was brought under the general maritime law, Lake Barre being a navigable waterway of the United States, and under the Louisiana Direct Action Statute, LSA-R.S. 22:655. The appellee Liberty Mutual Insurance Company, Norton's workmen's compensation carrier, intervened on the ground that it was subrogated to the rights of Sims for payments made under the applicable workmen's compensation statute.

Halliburton and Continental then filed a third party complaint against Norton. This complaint contained the following pertinent allegations:

"The cementing head, which had been screwed into the collar at the top of the casing, was equipped with a chain bridle, of adequate strength and in good condition, to facilitate lifting it off and lowering it to the drilling floor.

"If the chain bridle parted as alleged in plaintiff\'s complaint, it was solely and proximately caused to do so by the negligence and improper handling of the cementing head by plaintiff and/or other employees of Norton Drilling Company and/or other persons for whose acts Norton Drilling Company is responsible and answerable.

"In the event that third-party complainants are held to have incurred any liability to plaintiff, Adam J. Sims, by reason of the facts and matters alleged in his complaint, which is expressly denied, third-party complainants are entitled to indemnity from Norton Drilling Company by virtue of its implied contractual warranty to remove the cementing head in a careful and workmanlike manner, and/or because Norton Drilling Company\'s primary, active and moving negligence proximately caused plaintiff\'s alleged injuries."

Norton moved to dismiss or for summary judgment on the ground that the third-party complaint failed to state a claim upon which relief could be granted in that it was merely an attempt to enforce contribution between joint tortfeasors, and action not recognized under maritime law in personal injury cases. None of the parties having offered supporting affidavits, the motion to dismiss was granted on the pleadings alone.

The appellants pitch their case on two alternative theories. First, they claim that Norton is obliged to indemnify because Norton was "actively" or "primarily" negligent, whereas Halliburton was merely guilty of "passive" or "secondary" negligence. Second, they assert that the obligation to indemnify arose from Norton's breach of a contractual warranty to perform its services in a careful and workmanlike manner.

Appellant's claim based on the active-passive negligence dichotomy is clearly without merit. For one thing, the pleadings manifest no distinction in the kind or degree of negligence asserted against Halliburton and Norton. Sims, the plaintiff, seeks to hold Halliburton for furnishing defective equipment. Halliburton charges that Norton was negligent in handling this equipment. Both parties, therefore, are charged with active and affirmative negligence. See Peak Drilling Company v. Halliburton Oil Well Cementing Company, 10 Cir., 215 F.2d 368. Furthermore, even if we were to agree with Halliburton that its fault was only passive or secondary, there is a serious doubt that this alone would be a sufficient ground for imposing an obligation to indemnify upon Norton, in view of the fact that the applicable workmen's compensation statutes have completely abolished an employer's tort liability for injuries to his employees. See Brown v. American-Hawaiian S. S. Company, 3 Cir., 211 F.2d 16 (Longshoremans Act); Mickle v. The Henriette Wilhelmine Schulte, N.D.Cal., 188 F.Supp. 77 (Long-shoremans Act); McClintic-Marshall Co. v. O'Leary, 147 La. 85, 84 So. 503 (Louisiana Workmen's Compensation Law, LSA-R.S. 23:1021 et seq.).

The implied warranty claim is equally unavailing. In this regard, the appellants rest their hopes on Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, and the cases following in its wake. Ryan involved a claim for indemnity by a shipowner against a stevedoring company. An employee of the stevedoring company had been injured due to the improper stowage of cargo by the company. The employee brought suit against the shipowner based on the latter's absolute liability for injuries caused by the vessel's unseaworthy condition. The shipowner thereupon sought to hold the stevedoring company for any damages which the plaintiff-employee might recover. The Supreme Court allowed the claim for indemnity on the theory that the stevedoring company had contracted with the shipowner to perform its services in a careful and workmanlike manner, and that this constituted an agreement to indemnify the shipowner for any losses attributable to the company's failure to so perform. In a later case, Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, the Supreme Court extended the holding of Ryan to a situation where the unseaworthy condition had been created by the shipowner rather than the stevedoring company, but where the latter's negligence "brought the unseaworthiness of the vessel into play," thereby causing injury to the plaintiff-employee and exposing the shipowner to liability.

The initial defect in the appellants' claim based on the theory of implied warranty is that the pleadings are completely devoid of any indication that Norton promised Halliburton that it would remove the cementing head in a careful and workmanlike manner. In other words, the pleadings do not show that there was a contract between Norton and Halliburton, and, in the absence of a contractual relationship, there is no basis for a claim of contract indemnity. The third-party complaint states simply that Norton breached an implied contractual warranty to remove the cementing head in a careful and workmanlike manner. This is a naked conclusion of law, unsupported by the factual allegations of the complaint, and which need be given no weight in determining the sufficiency of the complaint. Mickle v. The Henriette Wilhelmine Schulte, supra, 188 F.Supp. at page 80.

Indeed, that there was no contract between Norton and Halliburton is demonstrated by the assertion in Halliburton's own brief that Norton's obligation to indemnify arose under "its i. e. Norton's drilling contract" with the owner of the well. It seems clear, therefore, that Halliburton and Norton were both merely independent contractors of the owner of the well and that there was no contract between them which would obligate Norton to make indemnity in the instant case. See Peak Drilling Company v. Halliburton Oil Well Cementing Company, supra.

But Halliburton then says that it is entitled to indemnity as a third party beneficiary of Norton's promise to the owner of the well that it would perform its drilling services in a careful and workmanlike manner. In support of this proposition, Halliburton points to Crumady v. The Joachim Hendrik Fisser, supra, where the...