National Marine Service, Inc. v. Gulf Oil Co.

• Decision Date: 27 May 1977
• Docket Number: Civ. A. No. 76-1309.
• Citation: 433 F. Supp. 913
• Parties: NATIONAL MARINE SERVICE, INC., Plaintiff, v. GULF OIL COMPANY et al., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

433 F. Supp. 913

NATIONAL MARINE SERVICE, INC., Plaintiff, v. GULF OIL COMPANY et al., Defendants.

Civ. A. No. 76-1309.

United States District Court, E. D. Louisiana.

May 27, 1977.

COPYRIGHT MATERIAL OMITTED

Edward S. Bagley, New Orleans, La., for National Marine Service, Inc.

Felicien P. Lozes, H. Edward Weidlich, Jr., New Orleans, La., for Gulf Oil Co.

Edith Brown Clement, John R. Peters, Jr., New Orleans, La., for Hess Pipeline Co.

ALVIN B. RUBIN, District Judge:

National Marine Service, Inc. (National) seeks indemnity or contribution from Gulf Oil Company (Gulf) and Hess Pipeline Company (Hess) for $70,000 paid to Jack Allen Cross (Cross), a Jones Act employee of National Marine, in settlement of Cross' claim for personal injuries. National's claim against Gulf is predicated on a contract between them; paragraph 14 of their agreement states that Gulf will provide "free and safe wharfage and cargoes shall be loaded and discharged by day and by night in any dock or place shipper may direct within the limits of this agreement, where the vessel can always lie safely afloat." National also asserts a tort indemnity claim against Gulf; its claim against Hess is for indemnity or contribution founded on principles of tort. Hess, in turn, seeks indemnity or contribution from National for $15,000 paid to Cross in settlement of Cross' claim.

I.

Cross was a member of the crew of National's vessel, the M/V National Ideal. National had a contract to transport crude oil for Gulf. The master of the vessel was directed by Gulf to take on cargo at Hess' terminal in Mobile, Alabama. Hess operates both a barge dock and a ship dock for the loading of vessels. The M/V National Ideal had a tow of three barges, and the Hess barge dock will not accommodate such a tow intact. National could use the barge dock only by breaking its tow, and, on past trips, National's masters had preferred to use the ship terminal instead of the barge terminal in order to keep their tow intact and avoid the extra time and work involved in separating the barges. Therefore, as the National flotilla approached Mobile, National's operator, Captain Kiell, radioed the Hess operator, who instructed him to dock at the ship dock. This was for National's convenience and satisfied no need or requirement of either Hess or Gulf. Captain Kiell did not object to this, although he knew or should have known that no access facilities for personnel were provided at the ship dock.

The ship dock was so constructed that there were dolphins between the dock and any ship that was moored at it. Therefore a tow would not be flush with the dock, and personnel would not be able to step across between dock and barge. In addition, when the flotilla came in "empty" or "light", the barges rode high out of the water. As they were loaded, their freeboard was gradually reduced. Hence, initially the barges were several feet above the level of the dock. As the barges were loaded, their deck level approached the dock level, then came even with it, then went below the dock level.

The master knew that the ship dock had no gangway, and the National Ideal carried a 10 or 12 foot straight ladder to be used by personnel in moving between dock and vessel. When the vessel arrived, the ladder was used at an acute angle from dock to barge and was ascended or descended in the fashion normal for the use of such ladders. There was the same situation when the vessel took on most of its load, except that, of course then, the ladder rose from barge to dock. But during a part of the time, when the barge deck and the dock were level, or almost so, the ladder was horizontal, or almost so. Since the ladder had only rungs and side pieces, and lacked both hand rails and a single continuous bottom, it could safely be used for personnel passage only if the user grasped the side rails and went across in a squatting or a crawling position.

National's master knew this, and, indeed, had complained to Hess personnel about the fact that there was no gangway at the dock. Nothing was done about the access problem at the ship dock because, when this dock was used by ships, they had their own gangways. The barge dock did not present this problem because barges could moor directly alongside it.

When the barges arrived at Hess' ship dock on February 25th, they were light and approximately ten feet out of the water. Thus, when loading commenced, the ladder from the access dolphin to the deck of the barges formed an angle in excess of 45 degrees. This angle gradually decreased as the barges were loaded.

Late that afternoon, Cross came aboard the National Ideal with his uncle. During the evening hours, he and his uncle consumed a quantity of whiskey with the captain's knowledge and permission. Cross went on watch at midnight, February 25th, and apparently stopped drinking then.

Early in the morning on February 26th, Cross was walking erect on the ladder from a moored barge to the dolphin adjacent to the dock, fell, and was injured. He was neither crouching down nor using his hands to hold onto the railing of the ladder, in part because he was carrying coffee and groceries from the tug with the intention of putting them in his parked car, thereby converting the tug's supplies to his own use. At the time, he was wearing leather soled cowboy boots. The ladder was approximately horizontal. It was not tied on either end, and Cross had not asked a crew member to assist him. The M/V National Ideal had a skiff, which could have been used for access between barge and dock, but it was quicker for its personnel to use the ladder, and they customarily did so, with the master's sanction.

Cross' injuries were serious and permanent. They impaired his earning power substantially. While he was doubtless contributorily negligent, his Jones Act and unseaworthiness claims against the vessel would, in my opinion, have resulted in a judgment against National in a substantial amount.

II.

National never tendered defense or control of the litigation to Gulf or Hess; it did not tender the settlement agreed upon to Gulf or Hess, or consult them in any way with respect to the settlement with Cross.

National's failure to tender or consult does not preclude its indemnity claim if it can show that it was, in fact, liable to Cross, that the settlement was reasonable, and that neither third-party defendant was prejudiced by its failure to inform them of the negotiations or to tender them the defense. Wisconsin Barge Line, Inc. v. Barge Chem 300, 5th Cir. 1977, 546 F.2d 1125 and Whisenant v. Brewster-Bartle Offshore Co., 5th Cir. 1971, 446 F.2d 394. See also Tankrederiet Gefion A/S v. Hyman-Michaels Co., 6th Cir. 1969, 406 F.2d 1039. Based on the evidence introduced in this case, I find that National would have been cast in judgment and that the amount it paid to settle the claim against it was reasonable. However, even if National's failure to tender does not bar its indemnity claim, it must still prove a theory of relief entitling it to indemnity.

Cross had a separate suit against Hess, in which a jury trial had been demanded. Hess also failed to tender the defense or control of its litigation or tender the settlement agreed upon. Hess paid $15,000 in settlement of this claim. The evidence indicates to me that Hess would not have been cast, although, considering the cost of defense, and Hess' potential exposure to a large verdict in a jury trial of a claim by an injured person against an oil company, the amount paid was a reasonable settlement.

National now seeks to recover the full amount it paid, from Gulf and Hess, either through indemnity or contribution, while Hess cross-claims for the $15,000 it paid.

III. Indemnity Claim Against Gulf

A. Contract

In both pre-trial and post-trial briefs, National has served up a stew of argument without analyzing separately the various bases for its claims. This made it difficult for the court to comprehend its arguments. In an effort to find a coherent basis to deal with the issues presented, it is necessary to restructure them.

One asserted basis for recovery against Gulf is its breach of contract. But it is the express contract that must support this claim. National asserts as authorities instead cases concerning the indemnity due a shipowner by a stevedore arising out of the stevedore's implied warranty of workmanlike compensation (WWLP). The warranty was established by the decision in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. The cases cited all involve Ryan situations. See Waterman Steamship Corp. v. David, 5th Cir. 1965, 353 F.2d 660; Parfait v. Jahncke Service, Inc., 5th Cir. 1973, 484 F.2d 296; LeBlanc v. Two-R. Drilling Co., 5th Cir. 1976, 527 F.2d 1316.

But Gulf made no Ryan warranty. Chief Judge John R. Brown's resume in LeBlanc v. Two-R. Drilling Co., 5th Cir. 1976, 527 F.2d 1316, 1319, puts the issue in perspective:

Under the old regime of law, which is applicable in this case, a shipowner had a duty to Sieracki seamen to furnish a seaworthy ship and he was strictly liable for injury resulting from an unseaworthy condition. See Sea Shipping Company v. Sieracki, supra 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Mitchell v. Trawler Racer, 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 41, 1960 AMC 1503. All parties in this case agree that the muddy landing and stairway constituted an unseaworthy condition but the inquiry does not stop here, for in Ryan, supra, the Supreme Court held that a shipowner may be entitled to indemnity from the stevedore company for breach of the WWLP. See also 1A Benedict on Admiralty § 119 at 6-27 et seq. (6th ed. 1974).

This indemnity action, which has its origin in contract, in essence requires the stevedore company to perform its work `properly and safely' and the Court emphasized that `competence and safety are inescapable elements of the stevedore's undertaking'. 350 U.S. 124, 133, 76 S.Ct.

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