Movible Offshore Company v. Ousley

• Citation: 346 F.2d 870
• Decision Date: 08 June 1965
• Docket Number: No. 21829.,21829.
• Parties: MOVIBLE OFFSHORE COMPANY, Appellant, v. Arthur Lee OUSLEY, Appellee. Arthur Lee OUSLEY, Appellant, v. MOVIBLE OFFSHORE COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

346 F.2d 870 (1965)

MOVIBLE OFFSHORE COMPANY, Appellant, v. Arthur Lee OUSLEY, Appellee.

Arthur Lee OUSLEY, Appellant, v. MOVIBLE OFFSHORE COMPANY, Appellee.

No. 21829.

United States Court of Appeals Fifth Circuit.

June 8, 1965.

J. J. Davidson, Jr., Davidson, Meaux, Onebane & Donohoe, Lafayette, La., for Movible Offshore Co.

Bob F. Wright, Domengeaux & Wright, Lafayette, La., for Arthur Lee Ousley.

Before WOODBURY,^* JONES and GEWIN, Circuit Judges.

WOODBURY, Circuit Judge:

Mobil Oil Corporation owned a fixed oil well drilling platform located 40 odd miles out in the Gulf of Mexico off the Louisiana coast known as Platform A in Block 131 in the Vermillion Area. It entered into a contract with Movible Offshore Company to conduct drilling operations on its platform pursuant to which Mobil Offshore agreed to move its derrick or drilling rig from another similar platform in the same area to Platform A. Movible Offshore entered into a contract with Dale Hart, Inc., a rig building contractor, to dismantle and re-erect its rig. After Dale Hart had dismantled the rig on the other platform Movible Offshore moved it and the substructure on which it rested by barge to Platform A. In the course of being unloaded by derrick from the barge, half of the substructure fell striking a corner of Platform A and falling into the sea. It was recovered and found badly damaged. Movible Offshore took the damaged half of the substructure to its yard on shore, rebuilt it, and returned it to Platform A where it was placed beside the undamaged half on the parallel skid beams built into the platform for the purpose and the two halves were then united by a number of large steel pins driven through prefabricated holes in some five steel beams. Dale Hart's crew of riggers, one of whom was the plaintiff, then undertook to erect the derrick on the substructure as set in place by Movible Offshore.

There is evidence that as the work progressed increasing and unusual difficulty was encountered in bolting the various parts of the derrick together because the bolt holes did not fall readily into alignment. The plaintiff's injury occurred while he was attempting to align the bolt holes in two top member pieces of the derrick so that he could fasten them together. To do this he was using a tool customarily used for the purpose by riggers known as a "spud wrench" which has open jaws at one end and a tapering handle eighteen to twenty-four inches long. He inserted the handle of his wrench in two holes he was trying to align and was applying heavy pressure on the other end of the wrench with his foot when the wrench slipped out of the holes and his leg kicked out straight causing, according to the medical testimony, injury to his knee to the extent of about 40% loss of the effective use of the joint.

Trial by jury in the court below resulted in a verdict for the defendant Mobil Oil Corporation but for the plaintiff against Movible Offshore. In response to interrogatories the jury found that Movible Offshore Company had been causally negligent but that Mobil Oil Corporation had not and that the plaintiff's own negligence had contributed 30% to his injury. On the basis of these findings the jury awarded the plaintiff $159,600 in damages against Movible Offshore. The court denied Movible Offshore's motion for judgment notwithstanding the verdict but granted its alternative motion for a new trial only insofar as damages were concerned unless the plaintiff would remit $44,600 of the amount awarded. The plaintiff formally accepted the court's remittitur and Movible Offshore appealed.¹

We reject the appellant's rather labored argument that there was no substantial evidence of its causal negligence. It will suffice to say that an examination of the entire record leaves us in agreement with the court below that there was amply sufficient evidence to warrant the jury in concluding that the cause of the unusual difficulty in erecting the derrick was that the substructure on which it rested, the placing of which was Movible Offshore's sole responsibility, was "off square," meaning obviously that its four corners to which the bases of the four legs of the derrick were attached were not at the four corners of a square, so that the derrick "ran catawompus" meaning askew in rigger's vernacular. Without further discussion we turn to other contentions of the appellant.

The appellant contends that the plaintiff by continuing to work on the derrick with knowledge that it was "running in diamond" or "running hard" assumed the risk incident to lining up the holes in the members to be bolted together and therefore is absolutely barred from recovery. We do not agree.

This court in its carefully considered opinion in Pure Oil Company v. Snipes, 293 F.2d 60 (1961), held that federal maritime law applies in cases like this. The question, therefore, is whether the doctrine of assumption of the risk has a place in that body of law when a seaman is not involved. We think it has not.

It is now firmly established that assumption of risk is not a defense to an action brought by a seaman under the Jones Act, The Arizona v. Anelich, 298 U.S. 110, 56 S.Ct. 707, 80 L.Ed. 1075 (1936); Beadle v. Spencer, 298 U.S. 124, 56 S.Ct. 712, 80 L.Ed. 1082 (1936), even when the seaman knowingly uses a defective appliance instead of performing his duty in a way he knows to be safe. Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424, 59 S.Ct. 262, 83 L.Ed. 265 (1939). But in spite of the expanding definition of the term "seaman"² we do not see how, indeed it is not even suggested, that the plaintiff herein could possibly be regarded as a "seaman" and as such be entitled to that workman's preferred status in the law. Nevertheless we think the cases cited above lead to the conclusion that the doctrine of assumption of the risk has no place in general federal maritime law.

In The Arizona v. Anelich the Court was concerned with a case in which the seaman's injury occurred at sea and at pages 122 and 123, 56 S.Ct. at page 711, the Court pointed out that the peril of that calling, the discipline to which seamen are subject at sea, the practical difficulties normally encountered on shipboard of avoiding exposure to risks of unseaworthiness and defective appliances made the defense of assumption of the risk "peculiarly inapplicable to suits by seamen to recover for the negligent failure to provide a seaworthy ship and safe appliances." But in Beadle v. Spencer, decided the same day, the Court was concerned with a seaman on a coasting vessel who was injured while unloading lumber from on deck and who could have quit his employment had he wished. However, at page 129, 56 S.Ct. at page 714, the Court said that this made no difference, for "The rules, peculiar to admiralty, of liability for injuries to seamen or others, are as applicable when the injury occurs upon a vessel in port as when at sea * * *." The Court said it need not decide whether employees on a vessel who were not seamen but who had a seaman's status to sue under the Jones Act were also entitled to a seaman's immunity from the defense of assumption of the risk.

Socony-Vacuum Oil Co. v. Smith sheds a little more light on the question before us. In that case to be sure the Court was again concerned with a seaman who was injured at sea. And the Court expatiated again on the...