Parker v. Southwestern Offshore Corporation

• Court: Court of Appeal of Louisiana
• Writing for the Court: Caraway
• Citation: Parker v. Southwestern Offshore Corporation, 763 So.2d 638 (La. App. 1999)
• Decision Date: 15 December 1999
• Docket Number: No. 32,606-CA.,32,606-CA.
• Parties: John W. PARKER, Plaintiff-appellee, v. SOUTHWESTERN OFFSHORE CORPORATION, et al., Defendants-appellants.

763 So.2d 638

John W. PARKER, Plaintiff-appellee, v. SOUTHWESTERN OFFSHORE CORPORATION, et al., Defendants-appellants.

No. 32,606-CA.

Court of Appeal of Louisiana, Second Circuit.

December 15, 1999.

Writ Denied February 25, 2000.

COPYRIGHT MATERIAL OMITTED

Onebane, Bernard, Torian, Diaz, McNamara & Abell by James E. Diaz, Sr., Lafayette, Counsel for appellant, Southwestern Offshore Corp.

Sharp, Henry, Cerniglia, Colvin & Weaver by Timothy W. Cerniglia, New Orleans, Counsel for appellant, Boat Services of Galveston.

Paul B. Wilkins, Gregory L. Lewellyan, Columbia, Counsel for appellee.

Before NORRIS, BROWN and CARAWAY, JJ.

CARAWAY, J.

In this maritime action, the accident occurred when a drilling rig worker was injured while leaving a crewboat which transported him to the rig. After settling the plaintiffs maritime and Jones Act claims, the Jones Act employer and the crewboat owner tried this action in state court to determine the apportionment of fault between them. Finding that the trial court applied an inappropriate standard of care in measuring the action of the captain of the crewboat, we reverse the trial court's apportionment of fault and find the Jones Act employer totally responsible for the accident.

Facts

Plaintiff, John Parker ("Parker"), filed this suit for damages under 46 U.S.C.App. § 688, commonly referred to as the Jones Act, and general maritime law. Parker was employed by Southwestern Offshore Corporation ("Southwestern") as a driller. Parker was permanently assigned to a self elevating drilling platform. The platform qualifies as a vessel within the meaning and intendment of the Jones Act. Being permanently assigned to a vessel as a member of its crew, Parker was a Jones Act seaman and Southwestern was his Jones Act employer.

Southwestern had contracted with Offshore Turnkey Ventures, Inc. ("OTV") to drill a well approximately 39 miles off the coast of Louisiana on the Outer Continental Shelf. OTV contracted with Boat Services of Galveston, Inc. ("Boat Services") to provide transportation services for the crew to and from the platform by boat. On December 18, 1996, the date of Parker's injury, the M/V Big Thunder ("Big Thunder"), a 100-foot crewboat with a gross tonnage of 99 tons supplied by Boat Services, was scheduled to transport an entire complement of Southwestern employees to the drilling vessel to relieve the crew on duty.

The captain of the Big Thunder, Frank Loeffler, had some concerns with making the trip to the rig because of increasing wind conditions. However, he informed the dispatcher that he would make the decision whether to continue the trip to the platform after observing the open sea conditions. Upon reaching deep water, Captain Loeffler determined that the trip to the rig could be safely made. At the drilling rig, Captain Loeffler estimated the sea conditions to be 6 feet on average with an occasional 4-foot and 8-foot wave. The wave period, the time between the crest of each wave, was 5 to 7 seconds with a wave length of approximately 70 feet. The winds and seas were both out of the north with a fairly mild current and winds of 20 to 25 mph.

Parker was seriously injured as he exited Big Thunder to board the drilling platform. The process was conducted by use of a crane which lowered a collapsible mesh basket to the center of the deck at the stern of the Big Thunder. The crane and the handling of the personnel basket on the deck were under the control of Southwestern employees. The crane operator, Glen Nutter, had previously exited Big Thunder without incident and had relieved the prior operator on the rig at the time of the accident. Parker was injured as the basket first was raised and began to slide outward away from the rig across the 22-foot wide deck slamming the basket into the ship's guard rail.

Captain Loeffler's role in the maneuver was to keep the vessel in position beside the rig and beneath the boom of the crane. His positioning of the Big Thunder with its stern to the waves at the time of the accident was accepted by the trial court in its determination of facts. Southwestern's and Nutter's view that the boat was positioned broadside into the waves and north wind was therefore rejected by the court.

In its reasons for judgment, the trial court ruled:

It is the Court's conclusion that the positioning of the vessel as depicted by the witnesses for the defendant, Southwestern Offshore Corporation, would be extremely difficult to maintain under the prevailing conditions. Considering the testimony of the witnesses on each side, the Court finds that the testimony of the witnesses for the defendant, Boat Services of Galveston, Inc., is more credible regarding the positioning of the vessel and other factors at issue such as sea conditions, etc. The court is impressed that the Captain of a vessel has a strong duty to protect its passengers, and the Captain of the vessel should have been more stringent in allowing the transfer to take place under the prevailing conditions. Accordingly, the Court allocates 65% of the fault in this matter to Southwestern Offshore Corporation and 35% to Boat Services of Galveston, Inc.

Both parties now bring this appeal, contesting the court's allocation of fault.

Discussion

Pursuant to the "saving to suitors" clause of 28 U.S.C. § 1333(1), which permits state courts to have concurrent jurisdiction with the federal district courts, a seaman can elect to file his Jones Act claim in any court that has jurisdiction over the parties, including a state court. Foster v. Destin Trading Corp., 96-0803 (La.5/30/97), 700 So.2d 199; Green v. Industrial Helicopters, Inc., 593 So.2d 634 (La.1992), reh'g denied, cert. denied, 506 U.S. 819, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992).

Any alleged breach of duty to a passenger on a vessel is a maritime tort and the substantive law applicable is the general maritime law of the United States. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318 (11th Cir.1989). Although courts are free to apply their own rules and procedures, they must nevertheless apply maritime substantive law, even when the claim is filed in a state court. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927 (1922); Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 94; Green, supra.

Louisiana courts of appeal apply the manifest error standard of review in general maritime and Jones Act cases. Milstead, supra; Gaston v. G & D Marine Services, Inc., 93-0182 (La.App. 4th Cir. 1/19/94), 631 So.2d 547, 552; Day v. Touchard Inc., 97-1180 (La.App. 5th Cir. 5/27/98), 712 So.2d 1072.

While factual determinations by the trier of fact are given great deference on appeal, if the trial court's decision was based on an erroneous application of law rather than a valid exercise of discretion, the trial court's decision is not entitled to the deference it would otherwise enjoy. Lasha v. Olin Corp., 625 So.2d 1002 (La. 1993); We Sell Used Cars, Inc. v. United Nat'l Ins. Co., 30,671 (La.App.2d Cir.6/24/98), 715 So.2d 656.

The primary factual disputes in this case concern the condition of the seas and Loeffler's positioning of the Big Thunder at the time of the accident. The trial court accepted Boat Services' witnesses who described the seas as averaging 6 feet with long wave lengths or swells. These factual findings by the trial court are corroborated by evidence of the sea conditions recorded by the National Weather Service on buoys further out than the platform and the data as to wind speed and sea height recorded by Southwestern at the rig. We also find that the numerous other personnel transfers accomplished that morning without serious incident or accident bolster the determination that the sea conditions were not unreasonably dangerous. See, Tarlton v. Exxon, 688 F.2d 973, 976-977 (5th Cir.1982) (where the court observed that six feet sea conditions were "not necessarily dangerous for loading or unloading. Such activity is not at all unusual, at the myriad offshore platforms in the gulf.")

Secondly, we find most significant that from the questioning of the crane operator, Nutter, the issue of the sea conditions was downplayed in relation to the more critical issue of the boat's positioning. Nutter agreed that if Loeffler had positioned the boat with the stern to the seas and kept that boat in position as Parker's lift began, Nutter would not have had "any trouble getting the basket off that boat." With the trial court's acceptance of Loeffler's testimony that he did in fact position the boat with the stern to the seas, the only remaining cause for the accident would be Nutter's decision to commence the lift when the tip of the boom and 750-pound headache ball were not directly centered above the personnel basket. Such a lift would create the swinging action of the basket as it initially left the deck. At that moment in the operation, Nutter and the other Southwestern employees on the deck had control. The tip of the boom, which Loeffler could not see inside the crewboat's control room, was required to be maneuvered by Nutter up, down and sideways to keep up with the ongoing movement of the crewboat and to maintain the proper angle for the lift. The Southwestern employees on the deck of the Big Thunder communicated with Nutter through hand signals. As Parker and three other Southwestern employees boarded the basket, the decision to either make the lift or to abort by releasing the basket from the crane line was the product of the choices of Southwestern's crew. We also find it significant that as the basket was lifted and instantly swung toward the railing, Nutter failed to observe that two of the men in the basket jumped or fell from the basket back to the boat deck.

Given this record, we therefore agree...