Hebert v. Diamond M. Co.

• Decision Date: 15 December 1978
• Docket Number: No. 12463,12463
• Citation: 367 So.2d 1210
• Parties: Everette P. HEBERT v. DIAMOND M. COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1210

367 So.2d 1210

Everette P. HEBERT v. DIAMOND M. COMPANY et al.

No. 12463.

Court of Appeal of Louisiana, First Circuit.

Dec. 15, 1978.

Joseph L. Waitz, Houma, for plaintiff.

Christopher B. Siegrist, Houma, Raymond Morgan Allen, Lafayette, for defendants.

John J. Weigel, New Orleans, for third-party defendant.

J. Mark Graham, Houma, for intervenor.

Before ELLIS, BLANCHE and LOTTINGER, JJ.

BLANCHE, Judge.

This is an action for damages for injuries which occurred when plaintiff, Everette P. Hebert, was being transferred from the crew boat, "Master Jody," to a tender barge serving an offshore platform.

Plaintiff alleges that the crane lifting the personnel carrier in which he was riding malfunctioned during the transfer, causing him to be dropped and sustain serious injuries. In his petition plaintiff alleges the claim is one cognizable in admiralty, that he is entitled to bring the action in state court under the "Savings to Suitors" clause, and that the applicable substantive law is the general federal maritime law, including but not limited to the Doctrine of Unseaworthiness.

Defendants, Diamond M. Company and Joseph Hawks (the company's safety director), answered the petition, prayed for a jury trial, and subsequently filed a Motion to Fix Bond for Jury Trial. The trial judge denied the motion, noting briefly that the "lawsuit involves a claim under the General Maritime Law in which plaintiff has invoked the admiralty jurisdiction of the court, and since in federal law such a claim does not give right to trial by jury, the motion * * * is denied."

On defendants' application to this Court, we issued an alternative writ of mandamus directing the trial judge to grant a jury trial or, in the alternative, directing the trial judge and the respondent Hebert to show cause in this Court why the writ should not be made peremptory. The trial judge elected the alternative and filed a brief in support of his decision. No brief was filed by Hebert. After careful consideration, this Court has determined that the writ should be made peremptory.

In his brief, the trial judge advanced three bases to support his decision:

1. "(T)he granting of defendants' request for trial by jury would immediately lead to other litigants making the same request and thereby creating a court docket condition where all litigants seeking recourse to the courts will be denied their right to a speedy trial";

2. "(T)he granting of a jury trial in this case would be an unnecessary and unreasonable burden and imposition upon the citizens of this parish who will be called at personal sacrifice to serve on the jury"; and

3. "(T)rial by jury in a general maritime tort action such as this case is prohibited."

We find that the first two grounds asserted by the trial judge are totally unpersuasive. While it is unfortunate that our lower courts' dockets may suffer overcrowding, and it is no doubt an inconvenience may be occasioned to citizens who must serve on juries, civil or criminal, these reasons should not be sufficient to deny a litigant a jury trial to which he may otherwise be entitled.

The trial judge's third claim, that a trial by jury in a general maritime tort action is prohibited, while deserving of more careful consideration, is likewise without merit. Two recent Louisiana cases were cited in support of that proposition: Benoit v. Fireman's Fund Insurance Company, 347 So.2d 269 (La.App. 3rd Cir. 1977); and Lavergne v. Western Company of North America, Inc., 363 So.2d 1243 (La.App. 4th Cir. 1978).

Benoit v. Fireman's Fund Insurance Company, supra, involved an action by a wife and three children for the wrongful death of the husband which occurred when he drowned while working on the defendant's crew boat. Recovery was sought under the Jones Act, the Death on the High Seas Act (DOHSA) and the general maritime law. Trial was by jury. The Court noted in dicta:

" * * * When joined with a Jones Act claim, a DOHSA action may be tried by a jury; however, by itself it does not afford such a right. See Green v. Ross, 481 F.2d 102 (C.A. 5th Cir. 1972)." (Benoit v. Fireman's Fund Insurance Company, 347 So.2d at 272)

In Green v. Ross, supra, an action for wrongful death under the general maritime law was brought in federal district court based upon Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). The U. S. Fifth Circuit Court of Appeals affirmed the trial court's denial of a jury trial. However, the important factor in Green, supra, as it relates to Benoit and the instant case is that in Green the plaintiff invoked the Admiralty jurisdiction of the federal district court. In federal procedural parlance prior to 1966, the action was brought "on the admiralty side" of the court where trial is without a jury; and this is, in our opinion, what prompted the Fifth Circuit Court of Appeals to say:

" * * * Historically, actions for personal injury brought in the Federal admiralty jurisdiction under general maritime law have not entitled the injured plaintiff to a jury trial, unless he establishes an independent jurisdictional basis for such a trial." (Citations omitted) (Green v. Ross, 481 F.2d at 103 Emphasis added)

Since Green involved a claim on the admiralty side of federal court, it cannot possibly be authority for the proposition that a party who asserts a general maritime or DOHSA claim in state court under the savings to suitors clause does not have a right to a jury trial. On the contrary, the court clearly states that a litigant would have a right to jury trial on the "law side" of federal court if he were able to establish an "independent jurisdictional basis" for the admiralty claim. Hence, the dicta in Benoit relied upon by the trial judge in his brief does not support his judgment that a litigant in a maritime tort action brought in state court is not entitled to a jury trial.

The second case relied upon by the trial judge is the case of Lavergne v. Western Company of North America, Inc., supra. There, in an action for injuries which occurred while appellant was an equipment operator on a barge owned by the defendant-appellee, the Fourth Circuit Court of Appeal refused to reverse the judgment of the trial court granting defendant's motion to strike plaintiff-appellant's prayer for a jury trial. The Court reasoned, by analogy, as follows:

"Since there is no uniformity in Louisiana regarding the application of procedural rules of the forum in admiralty matters, * * * we base our decision on a more fundamental concept. The rule is generally recognized that even though this court possesses the right of review of both law and fact, in maritime matters the admiralty law prevails and this court is powerless to redetermine facts found by the jury even though it may reach a different conclusion or be of the opinion that a contrary result is more reasonable. (Citing Guilbeau v. Calzada, 240 So.2d 104 (La.App. 4th Cir. 1970), and Ferdinandtsen v. Delta Marine Drilling Company, 235 So.2d 641 (La.App. 4th Cir. 1970)) The clear import of these decisions is that federal maritime procedure is controlling, at least in procedural matters which go to the heart of the nature of the ultimate factual determination. A jury trial, like the scope of appellate review, is also a procedural matter which goes to the heart of the nature of the ultimate factual determination. Therefore, we are of the opinion the maritime law, which here would not permit trial by jury, should prevail with regard to a litigant's right to trial by jury in our state courts under the savings to suitors clause. * * * " (363 So.2d at 1246)

We find this analogy by the Fourth Circuit unpersuasive for two reasons. First, this Court is not convinced that in a general maritime action brought under the savings to suitors clause it is required to apply a federal rule regarding review of jury verdicts. The cases relied upon by the Fourth Circuit to reach this conclusion are easily distinguishable and do not support that proposition. Second, the analogy itself is self-contradictory in that the basic premise includes the possibility of a jury trial.

Ferdinandtsen v. Delta Marine Drilling Company, supra, is easily distinguishable from the case at bar since it involves a Jones Act claim. There, the Fourth Circuit relied upon Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1956), a case involving a claim under the Federal Employers Liability Act (FELA), in holding that it was severely limited in its scope of review of the factual findings of the jury. In Rogers the United States Supreme Court held that to allow lower federal and state courts to "deprive litigants of their right to a jury determination" by substituting their own judgment for that of the jury's would frustrate the congressional intent, since Congress had expressly stipulated that FELA claimants had a right to a jury trial. The Louisiana Supreme Court, in Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971), a case involving a claim under the Jones Act, followed Ferdinandtsen, supra, noting that Congress made the Federal Employers Liability Act applicable to seamen when it enacted the Jones Act, and held that a limited scope of review was mandated by Rogers. Therefore, Ferdinandtsen does not stand for the proposition that a Louisiana court cannot review facts in an action brought under the general maritime law since the underlying reasoning of that case is based upon statutory construction of congressional intent regarding specific congressional acts ¹ and has little to do with general admiralty or maritime principles.

Neither can Guilbeau v. Calzada, supra, be relied upon in support of the above proposition, for the single authority upon which it relied was its own opinion in Ferdinandtsen. Guilbeau did involve a general maritime tort claim under the savings to suitors clause, but the claim was tried before a judge and the court...