Lasseigne v. NIGERIAN GULF OIL COMPANY

• Decision Date: 30 June 1975
• Docket Number: Civ. A. No. 4432.
• Citation: 397 F. Supp. 465
• Parties: Avie LASSEIGNE, Plaintiff, v. NIGERIAN GULF OIL COMPANY, a Delaware Corporation, Defendant and Third-Party Plaintiff, v. McDERMOTT TRADE CORPORATION, a Delaware Corporation and the Travelers Insurance Company, a Connecticut corporation, Third-Party Defendants.
• Court: U.S. District Court — District of Delaware

397 F. Supp. 465

Avie LASSEIGNE, Plaintiff, v. NIGERIAN GULF OIL COMPANY, a Delaware Corporation, Defendant and Third-Party Plaintiff, v. McDERMOTT TRADE CORPORATION, a Delaware Corporation and the Travelers Insurance Company, a Connecticut corporation, Third-Party Defendants.

Civ. A. No. 4432.

United States District Court, D. Delaware.

June 30, 1975.

COPYRIGHT MATERIAL OMITTED

Peter Warren Green, Newark, Del., Bob F. Wright, Domengeauz & Wright, Lafayette, La., for plaintiff.

Samuel R. Russell, Wilson & Russell, Wilmington, Del., for defendant and third-party plaintiff.

OPINION AND ORDER

MURRAY M. SCHWARTZ, District Judge.

Issues presented by defendant Nigerian Gulf Oil Company's motion for summary judgment in this tort action under general maritime law brought on the "law side" of the District Court¹ are: 1) Whether a rigger-employee of an independent contractor who owned a derrick barge operating in navigable waters can maintain a maritime tort action against the party with whom his employer contracted, 2) whether the doctrine of collateral estoppel bars plaintiff in this action because of an adverse jury verdict in the Western District of Louisiana and 3) whether the action is time barred by reason of laches. A brief factual description and a somewhat more extended procedural discussion is essential to an understanding of the issues.

Plaintiff, Avie Lasseigne ("Lasseigne"), a citizen of Louisiana, was employed by McDermott International, Inc. ("McDermott") as a rigger on a derrick barge owned and operated by McDermott in navigable waters off the Gulf of Nigeria, pursuant to a contract between McDermott² and Nigerian Gulf Oil Company ("Nigerian Gulf"), a Delaware corporation and wholly owned subsidiary of Gulf Oil Corporation. On March 25, 1968 plaintiff fell from a boom on the derrick crane of the barge while attempting to comply with orders given to him in the course of his employment.

It is undisputed plaintiff was ordered to help prepare the barge for operation by climbing on to the boom of its derrick crane for the purpose of inspecting the cross members of the boom and greasing the sheaves. Nor is it disputed Lasseigne sustained his injuries while attempting to walk on the angle irons of the boom, from which he lost his balance and slipped when the barge was struck by a large wave. In dispute are the precise circumstances under which Mr. Lasseigne was ordered to do the work which resulted in his fall.

At the time of the accident a Nigerian Gulf representative was present along with Russell Hill, an employee of McDermott and plaintiff's immediate supervisor. Plaintiff alleges that it was the Nigerian Gulf representative who gave the order that the boom be mounted and inspected and that such order was transferred to plaintiff "through Russell Hill."³ Defendant denies any liability relying upon the independent contractor status of McDermott and the contract between McDermott and Nigerian Gulf.

Paragraph 19.1 of the contract between McDermott and Nigerian Gulf reads as follows:

19.1 Contractor McDermott is an independent contractor and nothing in this Contract shall be construed as creating the relationship of principal and agent, or employer and employee, between Nigerian Gulf Oil Company and Contractor or Contractor's agents, sub-contractors, or employees. Except where otherwise provided herein, and without limiting Company's right to inspect, reject and/or accept the work, Contractor shall have full control and management over the details of the work and the manner in which it is accomplished. Docket No. 7.

Plaintiff theorizes that the defendant, Nigerian Gulf, during the period while its personal representative was onboard the barge, owed a duty to plaintiff to properly supervise the operation in question, that defendant failed to do so, that defendant's representative in effect ordered plaintiff to perform work at a time and under conditions that were not safe, and that as a direct result of this negligence plaintiff suffered injury by way of his fall from the boom. Plaintiff's theory has matured into his sole surviving hope of recovery because of an adverse determination in the Western District of Louisiana.

Lasseigne first brought suit on March 11, 1970 in the District Court for the Western District of Louisiana against McDermott, The Travelers Insurance Company, and Gulf Oil Corporation. On October 5, 1971, plaintiff amended his complaint in that action to join Nigerian Gulf as a party defendant. This change arose from plaintiff's belated recognition that Nigerian Gulf, the only company with whom McDermott had contracted for the job, was a separate legal entity from Gulf Oil Corporation and as such should have been a named defendant from the outset.⁴ On February 10, 1972 the court granted Nigerian Gulf's motion to dismiss the complaint as to it, subject to plaintiff's right to file a motion within five days to transfer the suit to Delaware under 28 U.S.C. § 1406.⁵ The records of the Louisiana action as reflected in papers filed by defendant in the Delaware District indicate nothing further occurred until June 28, 1972 at which time a motion for final judgment of Nigerian Gulf was denied.⁶ On July 7, 1972, the Louisiana District Court granted plaintiff thirty days within which to institute proceedings against Nigerian Gulf in Delaware.⁷ Plaintiff filed suit in this Court on July 28, 1972 against Nigerian Gulf.

At the trial in the Louisiana action against the remaining defendants, the following questions were propounded to the jury:

Interrogatory No. 1: Do you find from a preponderance of the evidence that the agents, representatives, or employees of McDermott International, Inc., were guilty of any negligence which played any part, even the slightest, in bringing about or causing the accident on March 25, 1968?

Interrogatory 2: Do you find from a preponderance of the evidence that the Barge DB-4 was unseaworthy which was a proximate cause of the accident in question?

The Louisiana jury answered both questions in the negative, and judgment was entered in favor of the defendant McDermott on February 6, 1973.

I. Failure to State a Claim

The defendant first urges in support of its summary judgment motion that the plaintiff has failed to state a claim upon which relief may be granted. Defendant's position is not meritorious. The complaint alleges defendant owed a duty of supervisory care to the plaintiff, that duty was breached, and the breach of duty proximately caused the injury to plaintiff. If plaintiff is able to prove his allegations, he is entitled to recover damages.

The law recognizes that under certain conditions the party who has contracted with an independent contractor may be liable for injuries sustained by the independent contractor's employee.

"We agree that it is not sufficient to impose a duty on the contractee that it retains or assumes `some control over or supervision of the premises or generally of the operations.' In cases governed by Texas law, this Court has held that in the absence of any actual control of the operation, or of any reserved right of control more than deemed necessary to secure the satisfactory completion of the work, an employee of an independent contractor owes no duty to the contractor's employees to inspect or supervise the installation or operation of machinery furnished by the contractor. . . . At the other extreme, where the employer of the independent contractor assumes control or direction of the method of performing the work, the relation of employer and independent contractor is changed to that of master and servant. . . . Between these two extremes, under the facts of the present case, the only liability of Southern to employees of Index would appear to be for the exercise of its control of the derrick floor at the time of the accident."

Southern Natural Gas Company v. Wilson, 304 F.2d 253, 262-63 (5th Cir. 1962).

Recovery by the plaintiff is not limited to plaintiff's employer when special conditions are met. The duty owed in such cases is separate and independent of any duty owed the employee by his independent contractor employer. Dugas v. Pelican Construction Company, Inc., 481 F.2d 773 (5th Cir.), cert. den. 414 U.S. 1093, 94 S.Ct. 723, 38 L.Ed.2d 550 (1973); accord, Movible Offshore v. Ousley, 346 F.2d 870 (5th Cir. 1965).

Plaintiff in the instant action is walking an extremely narrow line. With unseaworthiness determined adversely to plaintiff by the Louisiana jury and the relationship of employer-employee for Jones Act purposes eliminated by concession, the only liability of Nigerian Gulf to plaintiff, an employee of McDermott, appears to rest on the slender thread of an alleged breach of duty of care owed by Nigerian Gulf to plaintiff. On the present record it cannot be said defendant has demonstrated the complete absence of such a duty.

Defendant further objects to plaintiff's characterization of this negligence action as being under general maritime law. The alleged injury occurred to a seaman while working onboard a vessel in navigable waters. The defendant had contracted with plaintiff's employer for performance of that work. The action having arisen from an alleged wrong located over navigable waters, and that alleged wrong bearing as it did a significant relationship to traditional maritime activity, the suit is properly characterized as being maritime in nature.⁸ As such, plaintiff's cause of action would be cognizable in admiralty and, given satisfaction of the diversity requirements of 28 U.S.C. § 1332, was also properly brought "at law."⁹

It is concluded a claim has been fairly pleaded by the plaintiff so as to preclude a grant of summary judgment predicated upon the failure of plaintiff to assert a claim upon which relief can be granted.¹⁰

II. Collateral Estoppel

Nigerian Gulf asserts that by virtue of the former adjudication in Louisiana, plaintiff is prevented from pursuing this action under the...