Lewis v. Timco, Inc.
| Decision Date | 12 July 1984 |
| Docket Number | No. 81-3022,81-3022 |
| Citation | 1985 A.M.C. 1185,736 F.2d 163 |
| Parties | Alfred LEWIS, Plaintiff-Appellant, Cross-Appellee, v. TIMCO, INC., et al., Defendants-Appellees, v. JOY MANUFACTURING, Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Patrick A. Juneau, Jr., Lafayette, La., for Home Petroleum.
Robert M. Contois, Jr., Edith Brown Clement, New Orleans, La., for Atwood Oceanic, Inc.
James E. Diaz, Lafayette, La., for Rebel Rentals.
John A. Jeansonne, Jr., Lafayette, La., for Joy Manufacturing.
Vinson & Elkins, Charles T. Newton, Jr., Harold K. Watson, Houston, Tex., for Petroleum Equip. Suppliers Assoc., amicus curiae.
Robert K. Guillory, Cornelius Dupre, II, Eunice, La., for Alfred Lewis.
Appeals from the United States District Court for the Western District of Louisiana.
Before GARZA, POLITZ and WILLIAMS, Circuit Judges.
This case was returned to the panel by the en banc court, 716 F.2d 1425 (5th Cir.1983), for our determination whether Alfred Lewis' conduct constituted 50% of the total negligence proximate to his accident. On our initial consideration we did not reach this question, concluding instead that the rule of comparative negligence was not applicable in a strict products liability case by a longshoreman. 697 F.2d 1252 (5th Cir.1983). Sitting en banc this court vacated the panel opinion in part and held "that the trial court was correct in its decision that the maritime principle of comparative fault is applicable in maritime cases that urge strict liability for defects in products." 716 F.2d at 1427.
At the outset, to the extent deemed necessary we reinstate the prior panel opinion except insofar as it may be modified by this opinion or is inconsistent with the teachings of the majority opinion of the en banc court. The pertinent facts are detailed in the panel opinion, 697 F.2d 1253-54. We set forth only a factual summary for purposes of the present opinion, with emphasis on those facts considered critical to the question we address today--to what extent did Lewis' acts or omissions proximately contribute to his accident.
Lewis was part of a crew furnished by his employer, Timco, Inc., to work on the jackup drilling barge VICKSBURG in the coastal waters of Louisiana. Lewis was assigned to operate the hydraulic tongs used in the "make-up" of tubing joints being run into a well with a "fishing tool" to retrieve an obstruction dropped into the drilling hole. Lewis was inexperienced as a tong operator, having regularly worked tongs on only one prior occasion. That earlier assignment totaled approximately 25 hours including travel time to and from the work site. Other than that, his experience was limited to relieving tong operators, for a few minutes at a time, when they ate or went to the restroom. Lewis' education was limited; he left school in the eighth grade because of economic necessity. He previously worked at various jobs which required only manual labor or limited skills.
When Lewis reported to work on the fateful tour of duty a computerized control unit supplied by Rebel Rentals, Inc. to monitor the torque applied to the tubing joints would not work with the original tongs supplied. Rebel Rentals dispatched a set of Hillman-Kelley Model 500 C tubing tongs manufactured by Joy Manufacturing. These tongs were involved in the accident. At the time of the accident the Timco crew, under the supervision of an employee of Edwards Rental and Fishing Tools, Inc., was setting up to begin the "fishing operation" to retrieve the obstruction.
Hydraulic power tongs are large mechanical wrenches with internal cams that rotate jaws around tubings and casings so that they may be assembled or dismantled. Generally, power tongs have "dead man switches," a safety device which immediately stops the operation of the tongs when the throttle is released. The Hillman-Kelley 500 C tongs did not have this safety feature. Instead, these tongs were designed to free the tubing when the throttle was released. This automatic indexing feature required that two switches be set properly. When these controls were not synchronized, the tongs would not stop upon release of the throttle. The tongs would continue to turn unless restrained by a tight "snubbing line." A snubbing line is a cable which anchors the suspended tongs to the rig platform, stabilizing the tongs. If the snubbing line is not sufficiently taut, it may fail to restrain the tongs and the operator may be caught between the snubbing line and the tubing. That was Lewis' fate. He released the throttle but the tongs did not stop. The tongs continued to turn, and Lewis was crushed between the snubbing line and the tubing and sustained serious and permanently disabling injuries.
The district court found that the "tongs had a design defect in that a control setting could be imposed which would cause them to continue operating even when the throttle was released." These defects "rendered the tongs unnecessarily dangerous to normal use." In addition, the district court found that the representative of Rebel Rentals knew that Lewis was experiencing difficulty because the controls were not coordinated but did not instruct Lewis on the proper manner of operating the tongs. Incredibly, instead of setting the tongs' controls properly, or cautioning Lewis about the dangers of improper settings, the representative gave Lewis a hammer and an oil can and told him to strike the controls to force the release of the tubing. In addition, the trial court found that the representative of Edwards Rental who was in direct supervision of the fishing operation, a man with broad experience in oilfield work, observed Lewis's difficulty in operating the tongs, was aware of the danger posed by the slack in the snubbing line, but said or did nothing to assist or warn the inexperienced Lewis.
The district court found Lewis negligent for "attempting to make up the fishing tool joint without adjusting the length of the snubbing line." The record reflects that Lewis made an effort to reset the snubbing line when the fish tool operator directed that the assembly of the fishing tool and joints be done in the "mouse hole," an opening slightly closer to the anchoring post of the snubbing line than the drilling hole. This repositioning caused slack to develop in the snubbing line. When Lewis got a tool and started to adjust the snubbing line he was told by the Timco driller, his immediate superior, that they were behind on the job and did not have time to adjust and re-adjust the snubbing line. He was told to get on with his work. The message was pungent and clear; Lewis obeyed. Shortly thereafter, when Lewis attempted to disengage the tongs the throttle would not release, the tool continued to turn, and Lewis was crushed against the tubing by the snubbing line.
After a bench trial the district court assigned responsibility for the tragic accident 40% to the manufacturer, Joy Manufacturing, 40% to the power tong owner, Rebel Rentals, and 20% to the fishing operator, Edwards Rental. The court then found that Lewis' failure to tighten the snub line contributed 50% to the accident and reduced his quantum by one-half, resulting in a net recovery of $343,027.22.
The sole issue on this remand to the panel is whether the trial court clearly erred in determining that Lewis was 50% at fault in the accident causing his injuries. In a maritime appeal the appellant has the burden, when challenging a factual finding, to show that the district court was clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724 (5th Cir.1980). Questions of negligence in admiralty cases are treated as factual issues, and are thus subject to the clearly erroneous standard. Valley Towing Service, Inc. v. S/S American Wheat, Freighters, Inc., 618 F.2d 341 (5th Cir.1980). After an...
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