Moser v. Texas Trailer Corp.
| Decision Date | 11 August 1980 |
| Docket Number | No. 78-2263,78-2263 |
| Parties | Arthur P. MOSER and Darthea Moser, Plaintiffs-Appellees, and The Travelers Insurance Company, Intervenor-Appellee, and Crest Engineering, Inc., Third Party Defendant-Appellee, v. TEXAS TRAILER CORPORATION, Defendant-Appellant-Appellee, v. CRESCENT PETROLEUM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth Tekell, Houston, Tex., for Texas Trailer.
Robert C. Floyd, Houston, Tex., for Crescent Petroleum.
John N. Barnhart, Houston, Tex., for Arthur Moser.
John Palmer Hutcheson, Houston, Tex., for Travelers & Crest Engineering, Inc.
Appeals from the United States District Court for the Southern District of Texas.
Before TUTTLE, AINSWORTH and SAM D. JOHNSON, Circuit Judges.
Arthur Moser, an employee of Crest Engineering Company, was injured on February 27, 1974 when he fell from the second floor of a housing module to the deck of a barge on which the module was stored. He filed an action in admiralty against ten defendants. This case is an appeal from the trial court's finding that two of the defendants, the manufacturer of the unit and the owner of the unit, were negligent. We affirm in part, reverse in part, and remand.
Defendant Crescent Petroleum Company, the owner of the housing module, was involved in developing an oil project in the Persian Gulf. Crest Engineering Company, Moser's employer, was retained by Crescent to provide engineering services in the planning of the offshore production facilities. Crest's services included the conversion of a fire damaged tanker into an oil storage unit. A housing module was to be manufactured and shipped to the Gulf and placed on the tanker to serve as a barracks for Crescent employees. Defendant Texas Trailer Corporation was awarded the contract to build the housing module. The module was designed by Texas Trailer and built on the premises of Texas Trailer.
The module is a two-story, 44 foot by 50 foot unit. Outside stairs lead from the base of the unit to a second floor, exterior walkway, and a second set of stairs from the walkway to a heliport on top of the module. The second floor walkway consists of metal grates, three feet by six feet, bolted together. The module was designed to be lifted by crane, and the module sale included spreader bars and lifting hardware for this purpose. In order to lift the module by crane, it was necessary to remove two of the metal floor gratings in the second floor walkway, creating openings through which the lifting cables could be lowered to the lifting points at the module's base. Texas Trailer did not design the grates to swing up to create the openings; rather, it planned to remove the two grates completely, place them on top of the adjacent grates, and wire them down.
The contract between Texas Trailer and Crescent provided that Texas Trailer was to deliver the module, tied down, onto a barge furnished by Crescent. Crescent hired defendant Shipco, Inc., to be responsible for arranging for the forwarding of the module. Shipco contracted with defendant TMT Shipping & Chartering Company, which chartered the barge MM240 onto which the module was to be lifted. Texas Trailer arranged with defendant Greens Bayou Terminal to load and tie down the module onto the barge.
Texas Trailer delivered the module on February 19, 1974. Texas Trailer employees created the openings in the second floor walkway prior to the time Greens Bayou Terminal began its work of lifting the module onto the barge. The grates were removed and wired onto adjacent grates, creating two three foot by six foot openings. The removed gratings caused a three-quarter inch rise in the walkway where they were wired to the adjoining grates. Texas Trailer did not replace the openings after the lift was completed, did not request that Greens Bayou Terminal replace them, and did not place any guardrails or warnings about the openings. The openings remained in this condition until February 27, the day on which the module was to be moved from the barge onto the ship the SS Stockenfels for transportation to the Persian Gulf.
On the morning of February 27, Moser was present at the loading site in his capacity as an employee of Crest Engineering Company, to observe the loading of the module and report any damage that occurred. Before the lifting apparatus was actually connected to the module, Moser boarded the barge to check the air-conditioning units on the second floor of the housing module. According to the testimony of a stevedore on the barge, Moser climbed the stairs to the walkway, went down the walkway, passed the first opening, stepped across the second opening, and climbed the stairs to the heliport. A few minutes later, he descended the stairs to the walkway and proceeded toward the stairs leading down to the barge. At this point, he either stepped into the first opening or tripped over the removed grating and fell through the opening to the dock. Moser was rendered unconscious and suffered numerous injuries in the fall.
Moser filed suit in the district court for the Southern District of Texas against Texas Trailer, Crescent, and others to recover damages for the injuries sustained in the fall. The complaint alleged that jurisdiction was based upon diversity, 28 U.S.C. § 1332, and requested a jury trial. Five of the six named defendants were served and answered, also requesting a jury trial. On February 24, 1976, Moser filed an amended petition which alleged that the suit was within the admiralty jurisdiction of the court and pursued under section 9(h) of the Federal Rules of Civil Procedure without a jury. A certificate was attached, signed by defense counsel, stating that the filing of the amendment was unopposed. Moser subsequently filed a motion to strike the jury demand, which the court granted.
Following trial before the court without a jury, the court found that both Texas Trailer and Crescent had been negligent, but dismissed all other defendants. The court held that Texas Trailer owed a duty to construct and deliver the module in a safe condition, and that Texas Trailer should have known the openings on the walkway would be a hazard to anyone using it. Knowing this, Texas Trailer negligently failed to cover the openings, and allowed them to remain in this condition. The court found that Crescent, as the owner of the module, had a duty to maintain the module in a safe condition and negligently failed to discover and remedy the hazard. The court also found that Moser was contributorily negligent and that his lack of care contributed to 50 percent of his injuries. Of the remaining 50 percent, 60 percent of the damage was attributed to Texas Trailer, and 40 percent to Crescent. The court reviewed the evidence of damages and found that Moser sustained total damages of $884,786.55, and was therefore entitled to recover $442,393.28.
Texas Trailer and Crescent appeal from the trial court's judgment. Both appellants assert that the court erred in determining that it had maritime jurisdiction over the plaintiff's cause of action, and that the court erred in denying their request for a jury trial. Texas Trailer maintains that the court's finding of negligence is clearly erroneous, and Crescent argues that the trial court erred in finding Crescent liable to the employees of an independent contractor. Crescent also contends that the award of damages was excessive, and that the court erred in denying its request for indemnity against Texas Trailer and Crest.
Until the Supreme Court's decision in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), maritime tort jurisdiction was determined almost exclusively on the basis of the locality of the tort. Perfunctory application of the locality standard led to anomalous results in some cases, 1 and was criticized by courts and commentators. See Watz v. Zapata Off-Shore Co., 431 F.2d 100, 110 (5th Cir. 1970). In Executive Jet, the plaintiff's aircraft struck a flock of birds and crashed in the waters of Lake Erie. Refusing to find admiralty jurisdiction, the Supreme Court emphasized the problems inherent in a mechanical application of the locality test and held that the mere fact that a tort occurs in navigable waters is not sufficient, in airplane negligence cases, to confer maritime jurisdiction. "It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity." 409 U.S. at 268, 93 S.Ct. at 504.
Following the Supreme Court's pronouncement, this Court, in Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), cert. denied sub nom. Chicot Land Co. v. Kelly, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974) adopted the Executive Jet standard for determining jurisdiction in all maritime tort cases. The court delineated the following factors to be considered in determining whether the wrong bears a significant relationship to maritime activity: the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law. 485 F.2d at 525.
Application of these factors to the instant case leads us to conclude that admiralty jurisdiction is present. The injured party was, at the time of the injury, performing services in connection with the loading of cargo, a traditional maritime activity. The vehicle involved was a barge, "whose function was transportation across navigable waters, a traditional role of watercraft." See id. at 526. The instrumentality involved, the housing module, was cargo in the process of being lifted from the barge to a ship, and the injury was caused by a condition created solely to facilitate loading of the cargo. Furthermore, there is an important national interest, which militates in favor of admiralty jurisdiction,...
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