Hill v. Texaco, Inc.

• Decision Date: 30 April 1982
• Docket Number: No. 80-1926,80-1926
• Citation: 674 F.2d 447,1984 AMC 1558
• Parties: Richard HILL, Plaintiff-Appellee, v. TEXACO, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 447

674 F.2d 447

1984 A.M.C. 1558

Richard HILL, Plaintiff-Appellee, v. TEXACO, INC., Defendant-Appellant.

No. 80-1926.

United States Court of Appeals Fifth Circuit.

April 30, 1982.

Baker & Botts, Arthur Stamm, Houston, Tex., for defendant-appellant.

Edwards & Perry, Russell H. McMains, Corpus Christi, Tex., for plaintiff-appellee.

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

Before DYER ^*, SAM D. JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Richard Hill was injured when he fell from the wall of a tank he was inspecting aboard the vessel the TEXACO ILLINOIS. Hill collected compensation payments from his employer, Evans Engineering, Inc. (Evans), an independent contractor, then brought suit against the vessel's owner, Texaco, Inc. (Texaco). Hill charged the ship with negligence under § 905 of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b). ¹ After a bench trial, the court awarded damages to Hill, 499 F.Supp. 470 (S.D.Tex.1980), and Texaco appealed.

On January 17, 1975, Richard Hill began to climb the walls of a gasoline storage tank aboard the tanker the TEXACO ILLINOIS. Hill's employer, Evans, was an independent contractor that Texaco had hired to determine the effect of rust on the thickness of the tank walls. January 17 was the third day that Evans had been conducting tests on the TEXACO ILLINOIS. Hill carried with him ultrasonic testing equipment to perform the tests. Because the tank had been drained of ballast water only three hours earlier, the tank was damp and slippery. The walls of the tank were also covered with loose rust. Hill ascended by standing on "stiffeners"-shelf-like projections from the tank walls. The stiffeners were also covered with rust. When Hill was approximately 30 feet above the bottom of the tank, a piece of rust on the stiffener on which he stood became loose, and Hill lost his footing. Because Hill wore no safety belt or safety lines to break his fall, Hill fell to the tank floor. The fall resulted in heel and back injuries to Hill and a lawsuit against Texaco.

I.

The district court found that Hill was 20% negligent, that Evans, Hill's employer, was 60% negligent, and that Texaco, the vessel owner, was 20% negligent. Under the rule of Edmonds v. Campagnie General Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979), Texaco was held liable both for its own negligence and for Evans' negligence. The district court concluded that Texaco was negligent because Texaco failed to ensure that Hill used proper safety equipment when climbing the tank walls. This conclusion rested on three factual findings.

First, the district court found that Texaco knew that the sides of the walls were rusty and damp. The effect of rust on the tank walls was precisely what Evans had been hired to test. The dampness resulted from the recent discharge of ballast water from the tank, also well known to Texaco. Second, the court found that Texaco knew that to climb the walls of the tank without a safety line was dangerous. Third, the court found that Texaco knew that Hill was not using safety equipment despite both Hills' and Evans' appreciation of the danger of slipping on the wet, rusty stiffeners. On the basis of these three findings, the district court concluded that Texaco had a duty to step in and insist that Hill either use safety equipment or terminate the tests. ²

The linchpin of the district court's reasoning is its factual finding that Texaco knew that Hill was not using safety lines when he began his spider-like climb up the walls of the tank. The district court made this finding as an inference from two pieces of evidence. First, the ship's mate, Billy Yawn, testified that he saw the Evans personnel on deck before they descended into the tank and noticed that they had no safety equipment with them. From this, the court inferred that Yawn knew that Hill wore no safety lines when performing the tests. Second, because Evans had been working on the vessel for two days before the day of Hill's fall, "this court infers that the captain and other officers of the Texaco Illinois who were on board the entire time Evans' crew worked, knew or should have known the method and safety devices Evans' crew used to test the metal thickness, at least by the end of Hill's first day of work." 499 F.Supp. at 472. We think that neither inference is warranted.

A review of the record shows that Yawn, the ship's mate, did not testify that he saw Hill climb the tank without safety equipment. Nor did Yawn testify that he saw the Evans' personnel descend into the tank without such equipment. All Yawn said was that three hours before Hill's fall, Yawn saw the Evans' employees on deck and he noticed no safety equipment. This testimony does not permit the inference that Yawn knew that Hill was working below deck without safety equipment. Three hours elapsed between Yawn's observations and the beginning of the test. What Yawn saw on deck provides no good indication of what transpired below deck three hours later. The district court's inference to the contrary is clearly erroneous.

The district court also inferred that the ship had knowledge of the type of safety equipment used by Evans because Evans had been working on the ship for two days prior to Hill's fall. This inference lacks adequate foundation. There was no testimony that members of the ship's crew participated in or supervised Evans' work. Nor was there testimony that the ship asked Evans what safety equipment he used. The district court's finding rests solely on the assumption that the simultaneous presence on the ship of Evans and the crew yielded knowledge of Evans' methods.

On similar facts, we have previously rejected such a speculative leap. In Stockstill v. Gypsum Transportation, 607 F.2d 1112 (5th Cir. 1979), a welder employed by an independent contractor fell from a ladder while descending into a tank aboard the ship. After the fall, a patch of oil or grease was discovered above deck in the vicinity of the tank. The welder sued the vessel alleging that the vessel knew that the grease spot existed and negligently failed to remedy the hazardous condition. We affirmed a directed verdict for the vessel, reasoning in part that the vessel could not be charged with knowledge of the grease spot. "Appellant relies heavily on the fact that some members of the ship's crew were on board the vessel at the time of the accident. Mere presence of the vessel's crew on the ship, however, does not prove knowledge of the hazardous condition." 607 F.2d at 1117. The evidence of Texaco's knowledge here-that Evans had worked aboard the TEXACO ILLINOIS for two days prior to the injury-is no stronger than in Stockstill.

The district court also inferred that the vessel should have known what type of safety equipment Evans used. This inference presumes that the ship had some duty to supervise Evans' performance of its work. As we shall see, however, the ship had no such duty. Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). Without a duty of supervision, we cannot attribute knowledge to Texaco when it had none.

The district court's findings of fact, of course, are shielded against reversal unless "clearly erroneous." Fed.R.Civ.P. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Wright v. Western Electric Co., 664 F.2d 959, 963 (1981). We are convinced, on reviewing the record, that the inferences that the district court drew from the evidence in this case cannot stand. The evidence does not show that Texaco had knowledge that Hill ascended the tank's wall without safety equipment. We must conclude that on this record Texaco was not shown to have actual knowledge of the hazard to which Hill was exposed because of his failure to use safety equipment. Texaco cannot be held liable, then, on the basis of an alleged actual knowledge of dangers upon which it did not act.

II.

Our second inquiry is to determine if Texaco is liable to Hill even though it had no knowledge of the way the work was being carried out. We are guided in this quest by Scindia Steam Navigation Co. v. De Los Santos, supra, which the Supreme Court handed down after the district court decided this case. In Scindia, a longshoreman was struck and injured by sacks of wheat that fell from a pallet suspended by a defective ship's winch. The stevedore had been using the winch for two days prior to the accident despite its malfunction. The longshoreman sued the ship under § 905(b) of the LHWCA.

The district court applied land-based negligence standards to the ship and held that the shipowner had no duty to supervise the stevedore's work nor warn the longshoreman of open and obvious dangers. The district court therefore granted summary judgment for the vessel. The Court of Appeals for the Ninth Circuit reversed, holding that the ship had a duty of "reasonable care under the circumstances to protect the longshoremen against the danger," Scindia, 101 S.Ct. at 1620. The Court of Appeals then remanded for resolution of fact questions under this standard. The Supreme Court affirmed the Court of Appeals, but did so under a different rationale.

In Scindia, the Court articulated three general principles to govern the duties of a vessel towards the employees of a stevedore. First, before the stevedore begins his work, a shipowner must exercise care to make safe the portions of the ship that it turns over to the stevedore. In discharging this duty the ship may rely on the stevedore's performing its task with reasonable care. The shipowner must also warn the stevedore of hidden unsafe conditions on the ship of which the ship is, or should be, aware. 101 S.Ct. at 1621.

Second, once the stevedore begins its operations, the shipowner has no general duty to supervise work or to inspect the area...