Kratzer v. Capital Marine Supply, Inc.

• Citation: 490 F. Supp. 222
• Decision Date: 13 May 1980
• Docket Number: Civ. A. No. 78-329-B.
• Parties: Michael W. KRATZER v. CAPITAL MARINE SUPPLY, INC.
• Court: U.S. District Court — Middle District of Louisiana

490 F. Supp. 222

Michael W. KRATZER v. CAPITAL MARINE SUPPLY, INC.

Civ. A. No. 78-329-B.

United States District Court, M. D. Louisiana.

May 13, 1980.

COPYRIGHT MATERIAL OMITTED

H. Alva Brumfield, III, Brumfield & Brumfield, Baton Rouge, La., for plaintiff.

James H. Daigle, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, La., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN V. PARKER, Chief Judge.

Plaintiff, Michael W. Kratzer, brings this action for negligence under the Jones Act, 46 U.S.C. § 688, for unseaworthiness under general maritime law and for maintenance and cure. Trial was held before the Court without a jury. After considering the evidence adduced at trial and the briefs filed by counsel, the Court hereby enters the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. On the date of the accident, plaintiff Kratzer was employed by defendant, Capital Marine Supply, Inc. ("Capital Marine"), as a tankerman and a member of the crew of the M/V BAYOU LAFITTE, a pushboat, and its midstream refueling barge, the CHOTIN 1200. Both vessels were owned and operated by Capital Marine and were based at its offices and boat store located on the east bank of the Mississippi River at the foot of North Street in Baton Rouge, Louisiana.

2. On January 5, 1977, Kratzer was working the night shift as tankerman in charge of the fueling operations of the barge CHOTIN 1200, a fuel flat used to provide midstream refueling services to customer vessels navigating the Mississippi River. Harry Boudreaux, the pilot of the M/V BAYOU LAFITTE, and Larry Paul Collins, a deckhand, were assigned to work with Kratzer that night. The normal crew of the BAYOU LAFITTE and the barge CHOTIN 1200 consisted of a pilot or captain, a tankerman and two deckhands. Thus, the normal complement was short since there was only one deckhand on duty. Collins was a "green hand," i. e., he had worked on the River for only a few days and had received virtually no training from his employer, Capital Marine. He was relatively unfamiliar with his duties as a deckhand and did not know how to perform them. At the trial he could not tell "port" from "starboard." On the boat the night of the accident, Kratzer had to assist Collins with many of his assigned duties.

3. Kratzer held a valid tankerman's license issued to him on October 28, 1976. He had worked on the River for about twenty-four months prior to the accident and he had been employed by Capital Marine since November 5, 1976. On December 24, 1976, Kratzer suffered a prior job-related accident in which he injured his back. At the time of the accident, he had just returned to work and was on "light duty."

4. The crew of the BAYOU LAFITTE and the barge, as instructed, had moved the barge upstream to a storage barge and had loaded diesel fuel and 55-gallon drums of oil onto the CHOTIN 1200 from the storage barge. Kratzer had to perform some of the duties of Collins during this operation.

5. After completing the loading operations, the pilot of the BAYOU LAFITTE let the CHOTIN 1200 drift downstream toward the Capital Marine boat store where the push boat and barge were to tie up. Kratzer and Collins, who remained aboard the CHOTIN 1200, used this time to prime a Blackmar pump located on the stern of the fuel barge. The pump was used to pump diesel fuel from the CHOTIN 1200 to customer vessels during midstream fueling. By priming the pump, less time would be needed when midstream refueling operations began later on. Kratzer, as he customarily had done in the past, on that barge, placed the overflow line of the pump into a bucket on the deck to catch any amount which dripped out, although he could have placed the bucket within a "drip pan" underneath the Blackmar pump.

6. Because it was fully loaded, the barge was low in the water and went aground prior to coming alongside the boat store. Kratzer explained to Collins how to watch the overflow hose and how to cut off the pump. He then went along the starboard side of the barge to the bow and managed to get a bow line loosely over to the boat store. Nevertheless, there remained a considerable distance between the stern of the barge and the boat store. Kratzer then returned to Collins and the pump and found that Collins had let diesel fuel run over the rim of the bucket and onto the deck. By the time he turned the pump off, a small area of the starboard deck was covered with diesel fuel.

7. Thereafter, Kratzer and Collins cut loose the face wires or "wing wires" attaching the BAYOU LAFITTE to the stern of the CHOTIN 1200 so that the vessel could move from the stern to the port side of the fuel flat. The BAYOU LAFITTE then began pushing the barge in an attempt to get it closer to the shore. When the captain of the BAYOU LAFITTE declared that he had pushed the barge as close to the boat store as possible, Kratzer made the stern line fast and tied it off. At that time there was still a gap of four to five feet between the barge and the boat store and Kratzer went toward the bow along the starboard side in order to take the slack out of the bow line. Near the cavil on the starboard bow, in an area which was not precisely located by Kratzer or any other witness, Kratzer fell to the deck. Collins was not exactly an "eye witness" to the event, as there were deck tanks and other obstructions on the deck that obscured his view. Collins did, however, see Kratzer and heard him fall and went immediately to him.

8. Kratzer told Collins that he had fallen and complained of pain. Kratzer does not know what caused him to fall, and he could not describe the condition of the deck where he fell. Collins looked but did not observe any condition on the deck that might have caused the fall.

9. The accident occurred during the early morning hours of January 5, 1977, and the weather was misty and cold. During the time that the push boat was attempting to get the barge closer to the shore, Kratzer, in an attempt to get out of the elements, stood near the stern of the barge in the area of the Blackmar pump, and he apparently walked or stood in the previously spilled diesel fuel. Kratzer, of course, knew that Collins had let the pump run over and that there was diesel fuel on the deck.

10. The CHOTIN 1200 had walkways but no handrails. The walkways were neither raised nor specially grooved for traction, and the deck had been painted with non-skid paint. However, the paint had worn off in large areas due to the working operations on the barge, including the rolling of 55-gallon drums of oil up and down the deck. Several of the witnesses testified that the unpainted spots were slippery. The steel plates forming the deck of the CHOTIN 1200 were uneven in places due to repairs which had been made over the years, and there was mist or dew on the deck at the time of the accident.

11. There were lights upon the barge and Kratzer had a flashlight which he was using shortly before the accident.

12. A former deckhand, Willie Joe Anderson, testified that he had sustained two slip-and-fall accidents on the CHOTIN 1200 prior to Kratzer's accident. One of those accidents involved slipping on the wet deck of the barge in an area where the non-skid paint had worn off.

13. Kratzer could remember little, if anything, about what happened after he fell. His wife testified that her husband came home from work looking tired and dazed. Kratzer went directly to bed and slept until that evening when his wife took him to Doctor's Memorial Hospital in Baton Rouge.

14. The most probable cause of Kratzer's fall was some combination of diesel fuel on his shoes, the unevenness of the deck of the barge and his stepping onto a bare spot on the deck.

15. Kratzer was hospitalized at Doctor's Memorial Hospital from January 5, 1977, to January 18, 1977. During this time, he was examined and treated by Dr. Perry Chesney, Dr. Neal Smith, a neurosurgeon, and Dr. John Thomas, an orthopedic surgeon. Numerous tests were run and x-rays taken. Dr. Chesney's diagnosis was probable minor cerebral concussion and possible muscular strain about the right shoulder and thoracolumbar spinal areas. His prognosis was "good" with "no disability expected." (Kratzer No. 11) On January 10, 1977, Dr. Thomas reported the following impression: "I feel that Mr. Kratzer has suffered a cervical nerve root component as well as a lumbosacral sprain syndrome with possible nerve root irritation." (Kratzer No. 12) In a medical report dated September 20, 1977, Dr. Thomas' impression was: "I feel that Mr. Kratzer is probably suffering from mild chronic lumbar disc disease." (Kratzer No. 12) In a medical report dated January 13, 1977, Dr. Smith's impression was: "No central nervous system disease. This man has had what sounds to be a trivial head injury . . .." (Kratzer No. 12)

16. On January 30, 1977, Kratzer was admitted to Our Lady of the Lake Hospital for inpatient treatment and further tests. During the course of his stay, Kratzer was treated by Dr. William Fisher, a neurosurgeon. Dr. Fisher's primary and final diagnosis was "possible herniated lumbar disc." Dr. Fisher reexamined Kratzer on November 14, 1977. Kratzer told Dr. Fisher that he still had pains in his lower right side. Dr. Fisher considered his examination to be "totally within normal limits for a neuromuscular standpoint." Dr. Fisher testified, by way of deposition: "I did not consider him a surgical candidate at that time and I suggested that he continue to attempt to lose weight . . .." (See Fisher's deposition at pp. 14-15.)

17. A Master's Certificate was issued to Kratzer on February 25, 1977, which entitled Kratzer to free medical treatment at the United States Public Health Service Hospital in New Orleans.

18. Dr. Douglas Davidson, a general practitioner and contract physician of the United States Public Health Service, treated Kratzer from February 1, 1977, until November 29, 1979. During that time, Kratzer continued to use a...