Kratzer v. Capital Marine Supply, Inc.
| Decision Date | 20 May 1981 |
| Docket Number | No. 80-3615,80-3615 |
| Citation | 645 F.2d 477 |
| Parties | Michael W. KRATZER, Plaintiff-Appellee, v. CAPITAL MARINE SUPPLY, INC., Defendant-Appellant. Summary Calendar. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
James H. Daigle, James H. Brown, Jr., New Orleans, La., for defendant-appellant.
Brumfield & Brumfield, H. Alva Brumfield, III, Baton Rouge, La., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Louisiana.
Before BROWN, POLITZ and TATE, Circuit Judges.
The plaintiff, Michael W. Kratzer, brought suit for negligence under the Jones Act, 46 U.S.C. § 688, for unseaworthiness under general maritime law, and for maintenance and cure to recover for the back injury he sustained aboard a barge while in the employ of the defendant, Capital Marine Supply, Inc. After a trial on the merits, the trial court found the plaintiff Kratzer to be 25% negligent and the defendant 75%, and apportioned the award accordingly. On appeal, the defendant contends principally that the district court erred (a) in failing to find Kratzer solely responsible for his own injury or, in the alternative, in finding him only 25% contributorily negligent; (b) in finding the free medical care tendered by the United States Public Health Service to be inadequate; and (c) in failing to rule on the issue of Kratzer's non-mitigation of his damage. We find no reversible error and therefore affirm the judgment of the district court, 490 F.Supp. 222.
The plaintiff Kratzer was employed by Capital Marine Supply as a member of the crew of the M/V BAYOU LAFITTE, a pushboat, and the barge CHOTIN 1200, a fuel flat used in conjunction with the M/V BAYOU LAFITTE to provide midstream refueling services to customer vessels. Both vessels were owned and operated by the defendant.
Kratzer, a tankerman, was working the night shift on the date of his injury, January 5, 1977. The other members of the crew assisting him in the refueling operation were Harry Boudreaux, the pilot of the M/V BAYOU LAFITTE, and Larry Paul Collins, a deckhand. 1
During this particular work shift, the crew of the M/V BAYOU LAFITTE had to move the barge CHOTIN 1200 upstream to load diesel fuel and 55-gallon drums of oil onto it. This having been completed, pilot Boudreaux allowed the CHOTIN 1200 to drift downstream back toward the Baton Rouge location where both vessels would tie up.
During this navigational maneuver, Kratzer and Collins, who both remained aboard the CHOTIN 1200, primed a "Blackmar" pump located at the stern of the barge. 2 As part of this procedure, Kratzer placed the overflow line 3 of the "Blackmar" pump into a bucket on the deck of the barge to catch any overflow which may drip out once the pump was primed. 4
Kratzer instructed the inexperienced Collins to watch for any overflow from the pump (thus signalling it was primed) into the bucket and to turn off the pump when this occurred. Following this, he went about performing some other functions. When he returned, Kratzer found that Collins had allowed diesel fuel to run over the brim of the bucket and onto the deck of the barge. Neither Kratzer nor Collins attempted to clean up the spill at that moment.
Later during the shift, Kratzer, in an attempt to get protection from the mist and cold of that early winter morning, apparently stood in that same area where the fuel was spilled (Trial p. 376), with the result that his shoes became somewhat slick.
Shortly afterwards Kratzer slipped and injured his back while walking on the deck of the barge. Although no one at that time examined the spot where Kratzer fell, it was established at trial that the non-skid paint with which the barge was painted had been worn off in large areas due to the normal, everyday working operations of the barge. 5 Additionally, the steel plates which formed the deck of the CHOTIN 1200 were uneven in places due to periodic maintenance repairs. (It should also be noted that the deck was covered with an early morning mist.)
Kratzer brought suit for negligence under the Jones Act, for unseaworthiness under general maritime law, and for maintenance and cure against his employer, Capital Marine Supply. Based upon the preceding facts, the trial court concluded that: (a) Capital Marine Supply failed to use reasonable care to provide Kratzer with a safe place to work; 6 (b) Collins was negligent in failing to cut off the diesel fuel, and that this negligence was imputable to the defendant, and (c) Capital Marine Supply failed to furnish a seaworthy crew, for the crew was both incompetent and inadequate. 7 The trial court found the latter reason to be a proximate cause of Kratzer's injury.
Despite these findings, the trial court also found that Kratzer's own negligence contributed to his injuries. After the diesel fuel had been spilled, Kratzer failed either to clean it up himself or to instruct Collins to do it. Additionally, later during the shift, Kratzer, in avoiding the elements, stood in the area of the spill, which caused his shoes to become slippery.
Based on these findings, the trial court held that Capital Marine Supply was 75% negligent and Kratzer was 25% negligent.
The defendant Capital Marine Supply appeals on the following grounds: (1) The trial court erred in not finding Kratzer solely negligent or, in the alternative, in not finding Kratzer more than 25% negligent; (2) The trial court erred in finding the medical care provided by the U. S. Public Health Service to be inadequate, thus allowing Kratzer to recover for past and future care received from a private physician; and (3) The trial court erred in not making an express finding of fact with respect to Capital Marine Supply's defense of non-mitigation of damages by Kratzer.
The defendant contends on appeal that the district court was clearly erroneous in determining that Kratzer's own negligence was not the sole proximate cause of the accident. Alternatively, the defendant asserts that the district court erred in finding that Kratzer was only 25% contributorily negligent, rather than some larger percentage.
The district court's findings of fact in an admiralty case are binding unless clearly erroneous. Fed.R.Civ.Proc., Rule 52(a). In a judge trial of an admiralty claim, questions of contributory negligence and proximate cause are treated as fact questions, the finding of which should not be overturned on review unless clearly erroneous. Fisher v. Agios Nicolaos V, 628 F.2d 308 (5th Cir.), rehearing and rehearing en banc denied, 636 F.2d 1107 (5th Cir. 1980); Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724 (5th Cir. 1980). A finding of fact is " 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." U. S. v. U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).
After a thorough examination of the record before us, we are unable to say that the trial court erred with respect to its findings of negligence: Kratzer 25% and Capital Marine Supply 75%.
Kratzer was clearly contributorily negligent in that he failed to have cleaned up the diesel spill and then proceeded to step in it, thus making his shoes slippery. However, these two factors alone did not bring about Kratzer's accident. The trial court found that portions of the deck were extremely slippery due to (1) absence of non-skid paint; (2) the uneven metal sheets on the deck; and (3) the mist on the deck.
Finally, the trial court ruled, and we agree, that the proximate cause of Kratzer's injuries was the inadequacy and incompetency of the crew of the CHOTIN 1200. The crew was not only one deckhand short, but the deckhand present (Collins) was also extremely incompetent. It was Collins whose incompetence caused the diesel fuel to spill on the deck; and, while Kratzer was performing the duties of tankerman and two deckhands, he fell on the slippery (and improperly maintained) deck of the barge. It is not inconceivable that, had two competent deckhands been aboard the CHOTIN 1200, the diesel fuel spill would not have occurred.
We find that the district court did not err in its apportionment of the negligence which brought about Kratzer's unfortunate injury.
Kratzer was allowed by the district court to recover for his past and future medical expenses rendered by a private physician. The defendant contends on appeal that this was clearly erroneous, for a seaman is not entitled to reject free services available from government maintained hospitals without a showing that the treatment available is inadequate. Kossick v. United Fruit Co., 365 U.S. 731, 736, 81 S.Ct. 886, 891, 6 L.Ed.2d 56 (1961). The district court found that care that Kratzer received at the United States Public Health Service Hospital was inadequate, and we agree.
At this point, it may perhaps be helpful to sketch the medical treatment that Kratzer received.
Shortly after he was injured, Kratzer was hospitalized at Doctors Memorial Hospital in Baton Rouge from January 5 to January 18, 1977. There he underwent various diagnostic evaluations. Dr. John Thomas, an orthopedic surgeon, concluded that Mr. Kratzer had suffered a cervical sprain syndrome with some cervical nerve root component as well as a lumbosacral sprain syndrome with possible nerve root visitation. (Plaintiff's Exhibit 8).
Kratzer was subsequently admitted on January 30, 1977, to Our Lady of the Lake Hospital in Baton Rouge for further diagnostic evaluations. Dr. William Fisher, a neurosurgeon, examined Kratzer and scheduled him to undergo a myelogram. 8 This myelogram was interpreted by Dr. Charles Greeson, who concluded that the plaintiff possibly had a herniated disk. (Fisher Dep. p. 13). Dr. Fisher ultimately concluded that Kratzer should be treated on an out-patient basis in...
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