Harrison v. Flota Mercante Grancolombiana, S. A.

• Decision Date: 07 August 1978
• Docket Number: No. 76-2822,76-2822
• Parties: Grover HARRISON, Plaintiff-Appellee, v. FLOTA MERCANTE GRANCOLOMBIANA, S. A., Defendant-Third-Party Plaintiff-Appellee, JAMES J. FLANAGAN STEVEDORES, Third-Party Defendant-Fourth-Party Plaintiff-Appellee, v. ROHM AND HAAS COMPANY, Fourth-Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 968

577 F.2d 968

Grover HARRISON, Plaintiff-Appellee, v. FLOTA MERCANTE GRANCOLOMBIANA, S. A., Defendant-Third-Party Plaintiff-Appellee, JAMES J. FLANAGAN STEVEDORES, Third-Party Defendant-Fourth-Party Plaintiff-Appellee, v. ROHM AND HAAS COMPANY, Fourth-Party Defendant-Appellant.

No. 76-2822.

United States Court of Appeals Fifth Circuit.

Aug. 7, 1978.

John T. Golden, W. Ronald Robins, Houston, Tex., for fourth-party defendant-appellant.

John P. Forney, Jr., Houston, Tex., for J. J. Flanagan Stevedores.

Herman Wright, Houston, Tex., for G. Harrison.

Frank E. Caton, Houston, Tex., for Flota Mercante, etc.

Appeal from the United States District Court for the Southern District of Texas.

Before TUTTLE, GEE, and FAY, Circuit Judges.

FAY, Circuit Judge:

On June 29, 1971, the plaintiff, Grover Harrison, was employed by James J. Flanagan Stevedores as a longshoreman aboard the freighter M/V Ciudad De Pasto, of Colombian registry and owned by Flota Mercante Grancolombiana, S.A. The freighter was moored at City Dock No. 4 in Houston, Texas, and was receiving cargo for shipment to Colombia. At approximately 2:15 p. m., a load of six 55 gallon barrels of the liquid chemical isobutyl acrylate (IBA) ¹ was being loaded into the forward end of hatch number one by the vessel's forward winches and booms. During the loading the forward winch slipped and the load struck the hatch coaming, causing two of the barrels to fall into the hold, striking at least one other barrel. The actual falling of the barrels did not injure anyone, but the damage to at least three of the barrels caused substantial leaking, quickly filling the hold with the IBA fumes. The plaintiff thereafter descended into the hold as part of a clean-up crew and he took the initiative in removing the ruptured barrels and covering the spilled liquid with straw and sawdust. While in the hold, the plaintiff inhaled IBA fumes and the liquid splashed upon his clothing. The plaintiff experienced burning and stinging of the eyes and skin, as well as a sore throat and a headache. No special safety equipment was made available to the plaintiff.

The plaintiff returned to the dock following the clean-up efforts and remained on the job for approximately two or three hours, at which time he received a medical ticket entitling him to medical treatment. The plaintiff was unable to shower or to change clothes until returning to the union hall several hours later. During the ensuing five or six weeks, the plaintiff remained on the job but experienced a worsening condition of shortness of breath, itching and burning of the skin, and headaches. He then became seriously ill and is now totally disabled. Prior to June 29, 1971, the plaintiff was an able-bodied longshoreman who worked on a regular basis with no appreciable The plaintiff instituted this action against Flota Mercante Grancolombiana, S.A., the owner of the vessel, alleging negligence and unseaworthiness. The action was designated as one "within the admiralty jurisdiction of this Honorable Court as that term is defined by Section 9(h), Federal Rules of Civil Procedure." The owner then impleaded James J. Flanagan Stevedores, the plaintiff's employer, alleging that the unseaworthiness of the vessel, if any, was due to the employer's negligence. ² The employer in turn filed a fourth-party complaint against Rohm and Haas Company, the shipper of the IBA, seeking indemnification based upon product liability and negligent failure to warn of the dangerous propensities of IBA. The vessel owner then asserted a claim against the shipper, and the plaintiff also amended his complaint to state a claim against the shipper alleging product liability and negligent failure to warn. The plaintiff again specified in his pleading that the action was within the admiralty jurisdiction of the court within the meaning of Rule 9(h), Fed.R.Civ.P.

medical difficulties. The plaintiff's condition is diagnosed as diffuse pulmonary fibrosis and emphysema.

On May 17, 1976, the trial court awarded judgment for the plaintiff solely against Rohm and Haas, the fourth-party defendant, in the amount of $264,695.66 plus interest at the rate of 6% from June 29, 1971, the date of injury. ³ The court concluded that the vessel was unseaworthy and that the unseaworthiness caused the plaintiff's injury. However, liability was visited solely upon Rohm and Haas because the court concluded that neither the vessel owner nor the stevedore was actively negligent, and that the active negligence of Rohm and Haas in placing an inadequate warning on the barrels was the cause of the plaintiff's injury. The court held, alternatively, that the evidence adduced warranted the classification of IBA as a "Class B" poison under the Coast Guard regulations, ⁴ and, because the shipper failed to label the barrels accordingly and to specify the cargo as dangerous on the cargo manifest, the shipper was negligent per se and hence liable for the injury sustained by the plaintiff.

Rohm and Haas urges several contentions in support of its position that the judgment of the trial court is due to be reversed. It argues that the trial court was clearly erroneous in finding (1) that the plaintiff's condition was caused by exposure to IBA (2) that the warning given was inadequate (3) that the plaintiff's employer was not actively negligent in the conduct of the winch and clean-up operations (4) that IBA is a Class B poison, and (5) that the plaintiff is entitled to $60,000 in damages for future medical expenses. Rohm and Haas asserts that even if the warning was negligently inadequate, the improper warning was not the proximate cause of the injury because the plaintiff did not read the warning and would not have read a more complete warning. Finally, Rohm and Haas contends that it was deprived of the right to trial by jury and that the trial court erred in awarding pre-judgment interest.

We have concluded that the findings of the trial court on the issues of injury causation due to exposure to IBA, inadequacy of the warning, ⁵ and amount of compensable future medical expenses are not clearly erroneous.

We further conclude that the trial court did not commit error in denying the demand of Rohm and Haas for a jury trial nor in awarding pre-judgment interest. We have concluded, however, that the finding of the trial court that the stevedore-employer was not actively negligent is clearly erroneous, and, accordingly, this case must be remanded for further factual findings consistent with this opinion.

I. FINDINGS OF FACT

Our review of the trial court's findings of fact must be limited to the determination of whether the findings are clearly erroneous, according deference to the opportunity of the trial court to hear the witnesses and to judge their credibility. Fed.R.Civ.P. 52. A factual finding is clearly erroneous only if we determine that, after reviewing the entire record, and even though there may be evidence to support the finding, we are left with the firm and definite conviction that a mistake has been committed. Mercer v. C. A. Roberts Co., 570 F.2d 1232, 1236 n.5 (5th Cir. 1978); Golf City, Inc. v. Wilson Sporting Goods Co., Inc., 555 F.2d 426 (5th Cir. 1977). With this standard in mind, we shall discuss each of Rohm and Haas' contentions separately, setting forth the relevant testimony which was before the trial court on each issue.

The trial court found that immediately after the rupture of the barrels, the plaintiff descended into the hold where he remained for approximately one hour. The liquid was spilled onto the plaintiff while he attempted to remove the barrels, and because the hold was filled with the fumes the plaintiff naturally inhaled IBA fumes while performing the work. Supp.R.Vol. III, 481. ⁶ The court found that the exposure to IBA caused the emphysema and pulmonary fibrosis which disabled the plaintiff shortly after the incident in question.

On the issue of causation, the plaintiff introduced the testimony of Dr. David Mailman and Dr. Eric Comstock. Dr. Mailman, a physiologist, ⁷ testified to the possible chemical reactions which may take place in the body due to exposure to IBA. In particular, Dr. Mailman testified concerning the thin and fragile nature of lung tissue and the effect upon the respiratory system which may result when IBA reacts with the proteins, fats, and amines found in the cells which comprise the lung. Basically, the testimony reveals that inhalation of IBA may destroy the structural integrity of the cell membrane, causing the cell to die. He concluded that such reaction will produce scar or fibrous tissue and the resulting symptoms exhibited by the plaintiff. The testimony further reveals that the length and nature of exposure may be a significant factor in determining the effects upon the human body. Dr. Mailman admitted that there is a lack of scientific literature on the effect of IBA exposure on human tissue, that he had never examined the plaintiff, and that he has no expertise with acrylates or with the causes of pulmonary fibrosis. He did testify, however, that he had studied the plaintiff's medical records and history, as well as informational pamphlets supplied Dr. Comstock, a toxicologist, ⁸ testified that IBA may be extremely harmful to humans when inhaled or when exposed to the skin. Comstock testified that IBA may pass through skin tissue and pass to the lungs, a target area for toxic substances. Comstock likewise testified that the level of exposure would be a significant factor bearing upon the degree of damage to the lung tissues. After tracing the plaintiff's medical history, Dr. Comstock concluded that there is a causal relationship between the plaintiff's exposure to IBA and his condition at the time of trial. Dr. Comstock acknowledged that he has no particular expertise with IBA and has never worked with it, that his medical research revealed no connection between IBA and pulmonary fibrosis, and that he had...