Litherland v. Petrolane Offshore Const. Services, Inc., 75-2722
| Decision Date | 28 January 1977 |
| Docket Number | No. 75-2722,75-2722 |
| Citation | 546 F.2d 129 |
| Parties | Russell LITHERLAND, Plaintiff-Appellant, v. PETROLANE OFFSHORE CONSTRUCTION SERVICES, INC., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William D. Hunter, Morgan City, La., for plaintiff-appellant.
Christopher Tompkins, New Orleans, La., for Petrolane Offshore and others.
W. K. Christovich, New Orleans, La., for Petrolane only.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before COLEMAN, AINSWORTH and INGRAHAM, Circuit Judges.
This suit for Jones Act negligence, unseaworthiness and maintenance and cure was brought for the injuries suffered by an offshore diver. Russell Litherland sued Petrolane Offshore Construction Services, Inc. (Petrolane) and Insurance Company of North America in personam, and libelled Petrolane's barge ALLIGATOR in rem. The jury found negligence and unseaworthiness but failed to find causation under either theory. It then awarded $75,000 maintenance and cure. Appellant Litherland levels a double-barreled attack upon the verdict and judgment: alleged plain error in the causation instructions, and abuse of discretion in denying a motion for new trial based upon the absence of evidence to support the verdict. We AFFIRM.
The facts surrounding this incident demonstrate why seamen are the wards of the courts. The sailor's life is usually neither exhilarating nor salutary; frequently it is grim and dangerous. 1 Therefore, we have examined the conduct of this trial and the findings of the jury and render our opinion in detail.
Russell Litherland, a thirty-four year old diver with nine years' experience in offshore diving, was sent to work on the floor of the Gulf of Mexico at three o'clock in the morning on November 19, 1973. His task was to descend 240 feet to unhook a device called a "Gator" from a pipeline which defendant-appellee Petrolane had installed for Standard Oil Company of New Jersey. The pipeline had an overbend which Petrolane had to remove. Having decided to abandon the pipeline-burying business, Petrolane had sold its equipment which was scheduled for delivery December 1, 1973. This was its last job, and appellant's assignment was the last dive.
The Gator is a patented 2 contraption of tubular metal which straddles a pipeline and uses jets of water to blast a ditch out of the ocean floor. The pipeline settles into the newly created trench. Other jets of water propel the Gator along the pipeline. The spoil banks eventually settle back into the trench, securing the pipeline from anchors and fishing nets. The Gator is aptly named because it resembles a schematic diagram of the reptile with apertures from which the water surges. Attached to this Gator was a water hose to the surface. It was supported at fifty foot intervals by five 55 gallon oil drums filled with air. The lowest drum was only twenty-five feet above the Gator. The Gator itself was equipped with three 55 gallon drums for air barrels. Each drum was cut out at one end and could be filled by bubbles exhaled by the diver. The purpose of the barrels was to supply sufficient buoyancy to enable divers to maneuver the Gator when necessary. Earlier models had two closed pontoons which were filled from hoses. Most, if not all, other companies used closed tanks of some sort.
Until the day before the accident only two barrels were attached to the Gator; each was suspended by a chain at the end of an outrigger. Because the Gator was digging a trench deeper than usual, the outriggers were dragging in the spoil banks thrown up by the Gator. Diver Jerry Ard was sent to modify the Gator by attaching a barrel in the middle of the machine and removing the outriggers with their two barrels. He attached the center barrel but could not cut off the outriggers. A Petrolane supervisor at the surface told him to "forget it" and the Gator was left with three barrels instead of one or two. The Gator weighed about seven hundred pounds and each barrel when full of air could lift about four hundred pounds at that depth. It was not inconceivable that three barrels with a substantial amount of air inside could cause the Gator to rise precipitously.
Working entirely by feel around a device he had never handled before, appellant unhooked the "V roller" connecting the Gator to the pipeline. The Gator was raised out of the ditch by a crane at the surface and appellant reported to the surface operator that he felt a bit nauseous (a not infrequent occurrence for that depth). He was told to change his helium-oxygen mixture from "demand" (which requires the diver to suck in air when desired) to "free flow." Suddenly appellant ascended from 240 feet to about 40 feet, saying "It's got me" or "It got me" three times. Rapid decompression caused the "bends." The quick action of the surface crew in placing appellant in a recompression chamber saved his life but failed to avert grievous personal injuries. His I.Q., which was about average and reflected his attendance at college for over a year, has dropped to about 81, or a dull normal. His mental impairment is accompanied by loss of potency and bowel control, as well as phlebitis.
Appellant concedes that the instructions were technically correct, but argues that the trial judge confused the jury by juxtaposition of the different types of causation appropriate to the negligence and unseaworthiness counts. 3 Relevant excerpts of the instructions refute this contention. The trial judge charged the jury:
To recover for negligence under the Jones Act, the plaintiff must prove that his employer was negligent and that that negligence played some part, no matter how slight, in actually bringing about or causing the injuries sustained.
Now, the plaintiff also contends that the vessel was unseaworthy.
To be in a "seaworthy" condition means to be in a condition reasonably suitable and fit to be used for the purpose or use for which provided or intended.
Liability for an unseaworthy condition does not in any way depend upon negligence or fault or blame. That is to say, the shipowner or vessel owner is liable for all injuries and consequent damage proximately caused by an unseaworthy condition existing at any time, even though the owner may have exercised due care under the circumstances, and may have had no notice or knowledge of the unseaworthy condition which proximately caused the injury or damage.
Now, defective equipment or unsafe conditions aboard the vessel may render the vessel unseaworthy.
In order for a vessel to be found unseaworthy, the defective condition need not be of the type as to render the entire vessel unfit for the purposes for which she was intended. If defective equipment or unsafe condition of the ship or vessel proximately causes the individual's particular injury, then the ship or vessel is unseaworthy as to that individual.
Now, to recover for unseaworthiness, the plaintiff must prove not only that he was injured on an unseaworthy vessel, but that his injury was a proximate result of the unseaworthiness.
Proximate cause largely depends upon the circumstances of each case.
An injury is proximately caused by an act, or failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury; and that the injury was either a direct result or a reasonably probable consequence of the act or omission.
This does not mean that the law recognizes only one proximate cause of an injury, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things, or the conduct of two or more persons, may operate at the same time, either independently or together, to cause injury; and in such a case, each may be a proximate cause.
Now just to summarize this briefly, with respect to the negligence charge, that's the charge brought under the Jones Act. The plaintiff has the burden of establishing by a preponderance of the evidence, negligence on the part of his employer or one for whom the employer is responsible. He must establish that the negligence played some part, no matter how slight, in actually bringing about or causing the injury that he sustained.
Now, with respect to the unseaworthiness claim, in order for the plaintiff to recover on that basis, it is incumbent upon him to establish by a preponderance of the evidence that the vessel was unseaworthy and that unseaworthiness was a proximate cause of his injury.
These instructions are neither objectionable nor confusing. See Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975). The term "proximate cause" was never mentioned in connection with the Jones Act claim. The jury should not have been confused by this instruction. As a further safeguard the trial judge submitted the case on special interrogatories under F.R.Civ.P. 49(a):
3. Was defendant, Petrolane, negligent?
Answer that yes or no. If your answer is yes, answer 4. If your answer is no, answer 5.
4. Did this negligence play any part, no matter how slight, in producing plaintiff's injuries?
Answer that yes or no. And then answer 5.
5. Was the barge ALLIGATOR unseaworthy?
Answer that yes or no. If your answer to 5 is yes, answer 6. If your answer to 5 is no, but your answer to 4 was yes answer Number 7. Just read them carefully, and you can't go wrong.
6. If so, was this unseaworthiness the proximate cause of plaintiff's injuries?
This submission rigorously insulated the causes of action from each other. We find no plain error present. 4
Appellant's argument here is plausible but, on careful review of the record, unpersuasive. The wrangle over the cause of the ascent focused upon two major scenarios. Appellant argued that the open-ended barrels filled up with bubbles exhaled as he...
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