Martinez v. Dixie Carriers, Inc.

• Decision Date: 29 March 1976
• Docket Number: No. 74--3311,74--3311
• Citation: 529 F.2d 457
• Parties: Juanita C. MARTINEZ et al., Plaintiffs, v. DIXIE CARRIERS, INC., et al., Defendants-Appellees, v. E. I. DuPONT de NEMOURS & COMPANY, INC., Defendant-Appellant-Cross Appellee, v. WILSCO, INC., Defendant-Appellee-Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 457

529 F.2d 457

Juanita C. MARTINEZ et al., Plaintiffs, v. DIXIE CARRIERS, INC., et al., Defendants-Appellees, v. E. I. DuPONT de NEMOURS & COMPANY, INC., Defendant-Appellant-Cross Appellee, v. WILSCO, INC., Defendant-Appellee-Cross Appellant.

No. 74--3311.

United States Court of Appeals Fifth Circuit.

March 29, 1976.

Alfred L. Deaton, III, Michael Wood, Frank E. Caton, Houston, Tax., for E. I. DuPont de Nemours & Co.

Howell E. Stone, Alice Giessel, Dudley Oldham, Houston, Tex., for Wilsco, Inc.

Jon Montague, Houston, Tex., for Dixie Carriers.

V. W. McLeod, Galveston, Tex., for E. W. Saybolt & Co.

Benton Musslewhite, Houston, Tex., for J. C. Martinez.

Appeals from the United States District Court for the Southern District of Texas.

Before GOLDBERG and AINSWORTH, Circuit Judges, and NICHOLS, ^* Associate Judge.

AINSWORTH, Circuit Judge:

This multiparty suit in admiralty grows out of the death of a shore-based worker performing services in Texas City, Texas, on a barge used to transport benzene and similar cargoes. On March 1, 1972, ¹ Joseph Martinez was overcome by noxious fumes while he was engaged in stripping a barge (the B--29) liquid free. The B--29 had been used to transport Hytrol-D, a petrochemical mixture containing a substantial concentration of benzene. Juanita C. Martinez, as the surviving widow and as the personal representative of the surviving children and her husband's estate, filed this suit to recover damages for the alleged wrongful death of her husband. Named as defendants were Dixie Carriers, Inc., the owner and operator of the barge at the time in question; Wilsco, Inc., the barge stripping company and employer of Martinez; E. I. DuPont de Nemours & Company, Inc., the manufacturer of Hytrol-D; and other parties that have since been dropped from the suit. The suit against Wilsco was abandoned later in view of the employer's immunity from tort liability under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905. Plaintiffs' action against Dixie Carriers was based on negligence and the alleged unseaworthiness of the barge; that against DuPont was predicated on negligence and strict products liability. DuPont cross-claimed for indemnity and contribution against Wilsco, claiming that the cleaning methods used by Wilsco were grossly negligent, and against Dixie Carriers for negligence in its selection of the stripping contractor. Wilsco counterclaimed against DuPont seeking contribution and/or indemnity, and Dixie cross-claimed against the other two defendants, asserting that any unseaworthiness of the barge was caused by DuPont's dangerous or defective chemical product and the manufacturer's negligence in failing to warn of the product's inherent dangers, or by Wilsco's negligence in conducting the stripping operation.

Without admitting liability, Wilsco, Dixie and DuPont stipulated that plaintiffs were entitled to recover $335,000 pending the court's resolution of liability, indemnity and contribution issues. Defendants paid this amount to the plaintiffs in final settlement of their claims in accordance with the percentages of liability determined by the District Court, subject to the condition that appropriate adjustments would be made if the apportionment of damages was changed on appeal. Plaintiffs took no part in the trial, and Wilsco assumed Dixie's defense, pursuant to a hold-harmless agreement with Dixie Carriers entered into shortly before trial.

Before the B--29 arrived at the point where it was to be stripped, the Wilsco employees were advised that it contained a residue of dripolene, the generic name in the industry for a common industrial substance that DuPont marketed under the trade name 'Hytrol-D.' No efforts were made after the barge arrived to check for documents carrying detailed product warnings. Tests performed shortly thereafter indicated deficient oxygen content and 100 per cent explosibility in the atmospheres of the barge's various tanks. A second oxygen test taken prior to entry into any of the tanks indicated that the oxygen level had increased substantially. However, contrary to industry practice and applicable safety regulations, no tests for the toxicity of the tanks' atmospheres were performed. ² The stripping operation proceeded by inserting the hose from a vacuum truck into one of the barge's tanks and sucking the liquid residue out of the barge. When most of the liquid had been withdrawn in this way, Wilsco crewmen were sent down into the tank to squeegee remaining puddles into a corner from which they could be removed by the vacuum truck. As the work progressed, the atmospheres of successive tanks were not retested immediately prior to entry, again contrary to applicable safety regulations.

Shortly after entering the fifth tank to be stripped, Martinez returned topside to put on the only respiratory equipment available. When his foreman, who had followed him into the tank, noticed the appearance of noxious fumes, he ordered evacuation of the tank, but Martinez collapsed before he could make his escape. Due to the absence of adequate respiratory apparatus and other protective gear, repeated efforts to enter the tank and rescue Martinez were of no avail. The Medical Examiner who performed the autopsy on Martinez found that his death resulted from acute benzene intoxication and noted that traces of similar toxic compounds which might also have contributed to his death were present.

The District Court found that the negligence of Wilsco was the proximate cause of Martinez' death, that Dixie was not negligent, that the warranty of seaworthiness did not extend to Martinez, that DuPont was liable for failing to warn of the true nature of its product, and that such failure to warn also constituted a proximate cause of Martinez' death. In its final judgment, the Court concluded that Wilsco should bear 75 per cent of the damages and that DuPont should bear the remaining 25 per cent. Our review of the facts and controlling legal principles of this case convinces us that the District Court erred in concluding that Martinez was not entitled to the warranty of seaworthiness, and in holding that DuPont had breached its duty to warn Wilsco and Wilsco's employees of the nature of its product. It follows that DuPont must be compensated by Wilsco for the portion of damages it originally paid.

I. The Duty to Warn

DuPont's liability in the proceedings below was predicated on two conclusions of law by the District Court: (1) DuPont was negligent in failing to warn of the identity, nature and dangerous propensities of Hytrol-D, and of the proper precautions necessary for the safe handling thereof; and (2) as a manufacturer, DuPont was strictly liable for injuries proximately caused by its failure to furnish adequate warnings concerning the dangerous propensities of its chemical product. In order to evaluate these conclusions properly, it is necessary to elaborate the factual setting surrounding DuPont's alleged breach of its duty to warn in these two closely related areas.

DuPont's primary customer for Hytrol-D is Industrial Solvents Corporation a petrochemical broker. While DuPont uses the trade name Hytrol-D or aromatic distillate to identify its product to its customers, Industrial Solvents and Dixie Carriers tend to refer to it as dripolene. On the occasion in question, Industrial notified Dixie that a cargo was to be loaded on February 26, 1972, at DuPont's Sabine River facility, and then barged to the Mobile Oil Corporation refinery at Beaumont, Texas, where it was to be off-loaded. Title to the product passed to Industrial when the product left the DuPont pipeline and entered the B--29.

The trial judge found that the B--29 was equipped with large permanent signs on the main deck with the words, 'Warning, Dangerous Cargo, No Visitors, No Smoking, No Open Lights.' He also found that at the time of loading, DuPont placed a Benzene Warning and Cargo Information Card promulgated by the Manufacturing Chemists Association on the barge. This warning card displayed two red skull and crossbones insignias, indicated that only properly protected and authorized personnel should be used to effect cargo transfer, detailed a variety of hazards including the harmfulness of the chemical's vapors, and provided instructions for handling various possible accident or emergency situations. The benzene warning card was selected because specific Coast Guard instructions required that Hytrol-D be classified and regulated as benzene while in marine transit. DuPont maintains that in addition to these two warnings, one of its employees placed a product identification card in the barge's 'tube'--a special compartment on the barge which was the normal repository of such documents and was designed to keep them out of the weather. This card identified the cargo of the B--29 as 'aromatic distillate,' and carried the following warning:

MODERATELY TOXIC ON SHORT EXPOSURE TO HIGH CONCENTRATIONS. SEVERELY TOXIC ON REPEATED EXPOSURE. AFFECTS BLOOD PROPERTIES. CAN BE ABSORBED BY SKIN AND CAUSES IRRITATION TO SKIN. WASH IT OFF WITH COPIOUS QUANTITIES OF WATER & SOAP & GET MEDICAL HELP. HANDLE AS A FLAMMABLE TOXIC MATERIAL.

The card also indicated that when it became necessary to make or break lines containing the substance, or while sampling, 'acid gloves and coverall goggles are the minimum protective equipment necessary.' DuPont's normal procedure in handling Hytrol-D shipments was to prepare a bill of lading upon completion of loading and to attach a product identification card to the copies of the bill of lading accompanying the shipment. One set of these papers was placed in the barge's tube and another given to the captain of the towing vessel. The DuPont employee responsible for putting these documents on the B--29 testified that he had prepared the bill of lading covering the shipment, but he lacked independent recollection of attaching the product...