In re Dearborn Marine Service, Inc.

• Decision Date: 22 August 1974
• Docket Number: No. 72-2704.,72-2704.
• Citation: 499 F.2d 263
• Parties: In the Matter of the Complaint of DEARBORN MARINE SERVICE, INC., et al., for Exoneration from or Limitation of Liability of the OIL SCREW CARRYBACK. Webster Barnwell ARMSTRONG, III, Individually, Etc., et al., Plaintiffs-Appellees, v. CHAMBERS & KENNEDY et al., Defendants-Appellees-Appellants, Esther M. LOVE, Intervenor-Appellant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

499 F.2d 263 (1974)

In the Matter of the Complaint of DEARBORN MARINE SERVICE, INC., et al., for Exoneration from or Limitation of Liability of the OIL SCREW CARRYBACK Webster Barnwell ARMSTRONG, III, Individually, Etc., et al., Plaintiffs-Appellees, v.CHAMBERS & KENNEDY et al., Defendants-Appellees-AppellantsEsther M. LOVE, Intervenor-Appellant-Appellee.

No. 72-2704.

United States Court of Appeals, Fifth Circuit.

August 22, 1974.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert H. Roch, Houston, Tex., for Esther Marie Love.

T. G. Schirmeyer, L. Glen Kratochvil, Houston, Tex., for Dearborn, Thoroughbred, et al.

Edward W. Watson, Houston, Tex., for Chapman Contracting.

Alice Giessel, Henry Giessel, Houston, Tex., for Drilling Eng.

W. Eugene Davis, New Iberia, La., Donald L. King, New Orleans, La., for Chambers & Kennedy, et al.

John N. Barnhart, Houston, Tex., for Lucille Monk et al.

Warner F. Brock, Houston, Tex., for Armstrong.

Carl Waldman, Ned Johnson, Beaumont, Tex., for Gaspard, Breaux et al.

William D. Hunter, Morgan City, La., for Cassel.

George B. Matthews, New Orleans, La., for Hartford.

H. Lee Leonard, Lafayette, La., for Employers Reins. Corp.

Wm. P. Rutledge, Lafayette, La., O. H. Deshotels, Jr., Kaplan, La., for Melancon et al.

Emile A. Carmouche, Crowley, La., Blake Tartt, Houston Tex., Edward W. Watson, Galveston, Tex., for Chapman and Home Indem. Co.

Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges.

GODBOLD, Circuit Judge:

This consolidated litigation arises out of an offshore oil platform explosion that occurred May 28, 1970, over the outer Continental Shelf and caused extensive property damage and loss of human life on the platform and on a nearby vessel.The normal complexities engendered by such a holocaust are multiplied by the part-platform, part-admiralty factual context which necessitates meshing together the law of admiralty and the state law made the surrogate law of the platform by Rodrigue v. Aetna Cas. & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360(1969).

The site of the explosion was an unmanned oil collection and storage platform located in the Gulf of Mexico twelve miles off the cost of Galveston, Texas and permanently affixed to the subsoil of the outer Continental Shelf.It was owned by Chambers and Kennedy (C & K), was maintained and operated by Drilling Engineering, Inc.(DEI) on behalf of C & K under a well-servicing contract, and it consisted primarily of five oil storage tanks with a capacity of 1,000 barrels each and one smaller tank.In March 1970, an agent of the Geological Survey¹ wrote to C & K requesting that it bring its platform into compliance with various safety and pollution regulations.²At this time the platform was in a generally deteriorated condition, some of the lateral braces were severely rusted, many of the boards were rotten or oil soaked, it was in need of painting, and in places the floor of the platform was warped.On April 10 C & K shut down production from the satellite wells whose production had been pumped into the tanks for storage, and the next day a barge transported to shore all oil then in the tanks.

Pursuant to its well-servicing contract with C & K, DEI began making the required alterations and repairs.DEI furnished a supervisor for the job and contracted with a labor supply firm to furnish pipefitters, welders, painters, and roustabouts.The work consisted of painting, sandblasting, and some "hot work," such as cutting with acetylene torches and welding.The hot work was generally done at an elevated heliport or at the perimeter of the platform away from the tanks.Since the platform was unmanned it was necessary that there be daily transportation from shore to platform and back to shore for those engaged in and supervising the work.Also, of course, various materials, supplies and equipment had to be transported to and from shore.Commencing May 3 or 4 and pursuant to an oral arrangement between DEI and Dearborn, the nature and consequences of which we will discuss later, the vessel serving these purposes was the CARRYBACK, an all steel, eighty-five foot vessel of 136 gross tons, powered by 670 h. p. twin diesels, having fifteen seats for passengers, and owned by Dearborn.³Each day for the period after it arrived from shore and until it returned to shore the CARRYBACK remained in the vicinity of the platform, acting as a service and standby vessel.She carried a galley, cook and food and served meals to platform workmen as desired.She had toilets aboard — there were none on the platform — and workers could come aboard her to use them.The DEI supervisor, Monk, came aboard her to do office work where he could be away from the wind and noise of the platform and in air-conditioned surroundings.He was permitted to use her ship to shore radio with the permission of the captain. By May 25, labor for the alteration and repair work was being supplied by Chapman Contracting Service (Chapman).

Between April 10, when C & K had shut down production from the satellite wells, and May 25, and for reasons not disclosed in the record, the tanks collected about 1,100 barrels of oil.DEI's job-site supervisors, Rick Chapman of Chapman Contracting, and other executives of C & K and DEI knew that the tanks contained oil.

On May 27 representatives of the Geological Survey advised Monk, DEI's supervisor at the platform, that to comply with antipollution guidelines he would have to remove a valve from one of the equalizing lines between tanks.This was the first job to require breaking a connection leading directly to the oil storage tanks.Monk discussed the procedure with Overly, Chapman's supervisor at the platform, and on the morning of May 28he discussed it with Rick Chapman, who had flown to the platform by helicopter to survey the work.The District Court⁴ reconstructed the attempts of May 28 to remove the valve:

. . . Mr. Overly instructed Mr. Scanlan, a pusher for Chapman, to remove the valve from the equalizer line.Mr. Scanlan, along with the two other Chapman employees, began working on the equalizer line and broke the union and cut the pipe with a pipe cutter.They took out the valve leaving a part of the equalizer line protruding in place.They then proceeded to take the valve and the other part of the equalizer line to the south end of the platform beneath the heliport and there fabricated, or threaded, a new piece of pipe called a nipple to put back in the equalizer line and reconnect it.Mr. Scanlan then went back to the equalizer line and screwed the new nipple in place.This procedure left two pieces of pipe to be connected together.Mr. Scanlan talked to Mr. Monk and told Mr. Monk that he was going to connect these two pieces by welding them.The facts do not reflect where this conversation took place — whether on the platform or on the Carryback.The facts do not indicate whether of not Mr. Monk told Mr. Scanlan to weld the line in place or on the edge of the platform away from the tanks, or whether Mr. Scanlan told Mr. Monk he was going to weld the line in place.But the facts do reflect that at some time before the explosion Mr. Scanlan told Mr. Monk he was going to weld the line.

. . . . . .

Mr. Scanlan told Mr. Gaspard, a Chapman welder, and Mr. Breaux, a welder\'s helper, to weld together the two pieces of pipe that now constituted the equalizer line. . . .Mr. Gaspard began the welding and at the time that he struck an arc, there was an explosion.Burning oil then rapidly spread fire across the platform, resulting in death and injuries and damage there.

340 F.Supp. at 1231-1232(emphasis in original).

The CARRYBACK was just downwind of the explosion, tied to the platform on a seventy-five foot line with her stern toward the platform.With the explosion a flaming ball of oil rose above the platform and was carried by a wind of about eight knots to a point directly over the CARRYBACK, where it descended "as if it were an exploding bomb" and "instantaneously wrapped her in consuming fire".In only minutes all aboard perished — Captain Armstrong, the master; crew members Love and Cassel; and Monk, DEI's supervisor.The vessel was reduced to scrap metal.Of approximately twenty workers on the platform five were killed.

Dearborn filed a petition for limitation of or exoneration from liability in the United States District Court for the Southern District of Texas, Galveston Division, and answers and claims in this proceeding were filed by DEI, C & K, the heirs of Monk, Cassel, Love, and Armstrong, and by several platform workers and heirs of platform workers.In Texas state court Monk's estate sued C & K and Freeport Operators (Dearborn's subsidiary) who removed the cause to the federal District Court in Galveston.Suits in the same District Court, Houston Division, were filed by C & K against DEI and Chapman for damages to its platform, and by the heirs of Armstrong against C & K, DEI, Chapman, and Freeport Operators.The limitation proceedings in the Galveston Division were subsequently consolidated with the Houston suits for trial in the Houston Division, and it is from judgment entered in these consolidated proceedings after a trial without a jury that this appeal is taken.The posture of the parties under the judgment (excluding awards of indemnity) can be summarized this way, insofar as pertinent to this appeal.

"Platform Defendants"

C & K: Owner of the platform.Violated safety regulations.

DEI: Operator of the platform.Violated safety regulations.

Chapman: Labor supplier.Negligent.

Other Defendant

Dearborn: Owner of the CARRYBACK.Negligence and unseaworthiness.

Claims⁵

Love and Cassel: Crew members killed aboard the CARRYBACK.

Captain Armstrong: Master, killed aboard the CARRYBACK.

Monk: DEI supervisor, killed aboard the CARRYBACK.

Property damage: Loss of CARRYBACK.

Liability

C & K, Chapman, DEI and Dearborn:

Liable for deaths of Love and

...