Hanks v. California Company, Civ. A. No. 9795.

• Decision Date: 09 November 1967
• Docket Number: Civ. A. No. 9795.
• Citation: 280 F. Supp. 730
• Parties: Richard D. HANKS v. The CALIFORNIA COMPANY.
• Court: U.S. District Court — Western District of Louisiana

280 F. Supp. 730

Richard D. HANKS v. The CALIFORNIA COMPANY.

Civ. A. No. 9795.

United States District Court W. D. Louisiana, Lafayette Division.

November 9, 1967.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Domengeaux, Wright & Bienvenu, Bob F. Wright, Lafayette, La., for plaintiff.

McLoughlin, Barranger, West, Provosty & Melancon, Lloyd C. Melancon, New Orleans, La., for defendant.

Davidson, Meaux, Onebane & Donohoe, John Allen Bernard, Lafayette, La., for third party defendants, Universal and Travelers.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Acomb, Jr., New Orleans, La., for Universal Services and Travelers.

Adams & Reese, George V. Baus, New Orleans, La., for Noble Drilling Corp., and Aetna Casualty & Surety Co.

OPINION

PUTNAM, District Judge.

This is a companion case to Hebert v. California Oil Co., D. C., 280 F.Supp. 754, in which our decree was handed down this day. Plaintiff Hanks, whose immediate employer was Universal Services, Inc., filed suit against defendant, California Oil Company, for injuries received while working aboard a drilling tender owned and operated by California, providing supporting services for a drilling operation of that company being conducted from a stationary platform located on the outer continental shelf, in the Gulf of Mexico.

Hanks sued only California, alleging acts of negligence and the unseaworthiness of its vessel, the M/V S-24, which caused his injuries. California filed third party demands against Noble Drilling Corporation and its insurer, Aetna Casualty and Surety Company, and Universal Services, Inc., and its insurer, The Travelers Insurance Company, claiming indemnity. By cross-claims and additional third party demands brought by these litigants against each other and Fireman's Fund Insurance Company, insurer of California, all parties are before the court and the identical issues made as were raised in Hebert, supra.

The injuries suffered by Hanks were serious and were compromised by payment of $43,000.00 by California, which amount was stipulated to be a reasonable settlement of the claim, commensurate with the injuries sustained by plaintiff, with reservation of all rights of third party litigants under the pleadings and pretrial stipulations. The matter was submitted for decision after filing of briefs.

The contractual and insuring agreements set out fully in the Hebert case are identical to those presented here. We will not reiterate them herein except as may be necessary. Our factual determinations in this case, based upon the record submitted, follow.

The M/V S-24 is a converted LST of the type developed for and widely used in amphibious operations in World War II. The galley is located on the first deck, and the refrigeration spaces on the third deck, aft of the drilling mud room, tanks, pumps and hoppers, on the starboard side. The accident occurred in the meat locker or "reefer" box, where frozen meats are stored. Hanks was chief steward of the crew furnished to California by Universal to man the galley and provide steward's service to others aboard the vessel. He went aboard the S-24 in April of 1962, as first cook, working regular shifts until the date of the accident on November 1, 1962; he was promoted to chief steward about six weeks after reporting for duty. He held seaman's papers and was "signed on" by the captain, but copies of the articles, if any, are not in the record. We entertain no illusion that they were articles as required for blue water sailors on ocean-going vessels.

Stores had come aboard on November 1st. As part of his job, Hanks was seeing to storage. He was working with packages of meat weighing between fifty and a hundred pounds. These supplies were lowered to the third deck through a hatch by means of a boom located topside, transported to the dry provision room using a hand truck or dolly and unloaded by hand, stacked in the provision room, then again moved manually into the "vestibule" or thaw room where they were stacked in preparation for moving them into the freezer itself.¹ After the thaw room door was closed, the boxes were again moved and stacked in the "reefer" or freezer box.

According to Mr. Stickney, a marine surveyor who measured the box, the working space consisted of a passage approximately three feet wide and fifteen feet long, running between shelves eighteen inches in depth, from deck to overhead. The headroom in this compartment is five feet one and one-half inches. Hanks was five feet nine inches tall and weighed about 195 pounds. He was in the freezer box, engaged in shifting large cartons of meat and poultry about, opening them and stacking the individual packages contained therein on the shelves. Old stores were moved up so that the supplies would be rotated, to minimize loss from dehydration or "freezer burn".²

Two men moved the cartons to the freezer door, but the space was not sufficient for more than one man to work inside the box itself. After getting into the box, "it was all stooping and bending because you couldn't stand up.³" He was bending forward to move a box weighing about 80 pounds out of the doorway, when it hung on the corner of another box, causing him to jerk forward. He states it was then that he felt a "catch" in his back.⁴ His foot slipped, but he is unable to say whether this was before or after he felt the pain in his back.⁵ He fell forward, twisted and "just sat down on the box".⁶ After sitting there for a while, he told the two men working with him, both members of the Universal crew, that he had hurt his back, then went topside to his quarters where he proceeded to examine the invoices for the stores received that day.⁷ He remained on the job attending to his normal supervisory duties for about eight days, then went ashore for his customary break. He also reported the fact of his injury to the acting master, Captain Gettel, who entered it in the ship's "medical log".⁸

A considerable portion of Hanks' testimony was devoted to conditions in the refrigeration rooms and storage area which would tend to show that at times other crew members aboard the tender would track drilling mud through the engine room and in the passageways in which they worked, "some of which might have been brought into the `reefer' box on his shoes"; that when it was raining the hatch remained open and they had to move the stores to one side, and that sometimes the deck in the freezer was damp and slippery. We cannot find any positive testimony in his deposition that these conditions existed on the day of the accident, and must regard the testimony as window dressing. The wood grating in the box itself was covered with cardboard by Hanks and his crew to keep it clean, simply to minimize their own work in this respect. Captain Gettel's testimony was that he went to the area after the accident was reported to him and at that time the deck of these working spaces was clean.⁹

As chief steward, Hanks was in charge of this operation. He was custodian of the keys to the provision rooms, including refrigeration spaces. The men working with him at the time of his accident were under his direction, and the crowded condition of the storage area was due to the method he employed to get the stores out of the heat and under refrigeration as soon as possible. The manner in which the provisions were packaged was under the direction of Universal's agents ashore, as well as the quantity of stores sent out, according to the Noble-Universal contract, which we presume was followed, absent evidence to the contrary.

Hanks complained to his superiors with Universal about the crowded working conditions. The nature of his complaints is vague. The first one to which he alludes was purportedly made to a Mr. Ball who came aboard to check the ice-box for cleanliness, etc. This gentleman was a tall man and cut his head when he ran into one of the circulating fans in the icebox. He was, in Hanks' words, "* * * quite outdone about that," and we suspect that Hanks' complaints were more in the nature of sympathizing with his superior, for he says that Mr. Ball did not tell him anything, "He just did a lot of cussing about his head being cut. I just said that there should be something done and I don't know what he told me * * *." He states further that he told two other Universal supervisors, that it was just "difficult to work in those boxes," and they replied simply that they did not know what could be done about it.¹⁰

He did not complain to the Master or to any of the California officers on board the S-24 about the working area being unsafe or the vessel unseaworthy because of the cramped quarters arising out of the vessel's construction. The men under him complained, and he did speak to the chief engineer of the vessel, but the tenor of this testimony is that they discussed beween themselves the common problem their respective departments had to keep their areas of the ship clean because other members of the crew and personnel aboard were required to use the passageways and the after-ladder leading topside to go through the "hole", as he termed it, an obvious reference to the 'tween decks hatch. In the process they tracked drilling mud and grease on the decks, thus increasing the work of the galley and the engine-room hands. This is a continual process aboard a drilling tender, particularly when the mud pumps supplying drilling mud to the platform rig were operating. As we have said, this equipment was installed on the same deck level as the refrigeration and storage compartments, refrigeration equipment being in the sphere of the chief engineer's responsibility.¹¹ We do not believe that these conversations were notice to California of any purported unsafe condition of its vessel, and the refrigeration space in particular.¹²

Captain William F. Gettel testified that he was acting Master of the S-24 at the time of the accident. The inconsistency of his position as master, with...