Portier v. Texaco, Inc., 82-CA-0144

• Decision Date: 16 November 1982
• Docket Number: No. 82-CA-0144,82-CA-0144
• Citation: 426 So.2d 623
• Parties: Nolan PORTIER v. TEXACO, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 623

426 So.2d 623

Nolan PORTIER v. TEXACO, INC.

No. 82-CA-0144.

Court of Appeal of Louisiana First Circuit.

Nov. 16, 1982.

Rehearing Denied Feb. 25, 1983.

Grady C. Weeks, Houma, for plaintiff and appellee.

Miles P. Clements, New Orleans, for defendant and appellant.

Before EDWARDS, WATKINS and SHORTESS, JJ.

EDWARDS, Judge.

Plaintiff, Nolan Portier, brought this action under the Jones Act, 46 U.S.C. sec. 688, and general maritime law. Portier's suit alleged that he had suffered serious disabling injuries while working for defendant, Texaco, Inc., as a rotary helper aboard the Drilling Barge TERREBONNE BAY, owned and operated by the defendant.

A reading of the record reveals the following facts surrounding plaintiff's accident and subsequent disability. Plaintiff suffered his injury while working with a crew which was lifting a forty-foot long section of five-inch drill pipe into the elevator located above the drilling rig's rotary table. Another Texaco employee, James Fontenot, was operating the air hoist which was being used to lift the drill pipe. Plaintiff and another helper, Cliff Ludeman, stood on either side of the pipe in order to guide it into the elevator. Another co-worker, Malcolm Westley, stood behind the elevator, ready to latch the elevator around the front end of the pipe. The first attempt to latch the pipe was unsuccessful, as the front end of the pipe would not fit properly into the elevator. Fontenot then attempted to jerk the pipe in order to get it into the elevator latch properly. Fontenot intended to allow the pipe to descend slowly, then shift the hoist into an upward position, causing the pipe to jerk into the elevator. As Fontenot undertook this procedure, Portier, who had his back to Fontenot, kept his hands on the pipe in an attempt to guide it into the elevator. Portier and Fontenot testified that the pipe fell a distance of about one and one-half feet. This sudden drop caused plaintiff to wrench his back.

The trial court rendered judgment in favor of plaintiff in the amount of $932,960.80, representing $150,000.00 for past and future pain and suffering, $28,250.00 for loss of wages from the date of accident until the date of trial, $686,907.00 for loss of future wages and $67,830.80 for loss of future fringe benefits. The trial court's judgment for plaintiff was based on a finding of Jones Act negligence as well as unseaworthiness under general maritime law.

Defendant appeals the judgment of the district court, raising a variety of specifications of error. Texaco contends that the trial court erred in holding it liable for plaintiff's original accident and in concluding that plaintiff was free from any contributory negligence. Furthermore, defendant maintains that plaintiff's condition was worsened by chiropractic treatment which plaintiff sought and that the trial court erred in holding it liable for the consequences of that treatment. Additionally, Texaco contends that the trial court erred in considering a "productivity factor" in calculating plaintiff's loss of future wages and in basing plaintiff's award upon his gross income rather than his after-tax income. Finally, defendant contends that the trial court erred in allowing plaintiff pre-judgment interest on the sum awarded. Each specification of error will be considered separately.

At the outset, however, we deem it appropriate to discuss the law applicable to plaintiff's action and the standard of review to be applied. Plaintiff's action was filed in the Louisiana courts pursuant to 28 U.S.C. sec. 1333, the "saving to suitors" clause. Federal substantive admiralty or maritime law applies to that action. Lavergne v. Western Co. of North America, Inc., 371 So.2d 807 (La.1979). Appellate review of a case brought under the Jones Act and general maritime law is governed by Rule 52(a) of the Federal Rules of Civil Procedure. ¹ Kratzer v. Capital Marine Supply Inc., 645 F.2d 477 (5th Cir.1981). Under federal law and jurisprudence the findings of the trial judge on the merits may not be disturbed unless they are clearly erroneous. Kratzer v. Capital Marine Supply, Inc., supra; Melancon v. I.M.C. Drilling Mud, 282 So.2d 532 (La.App. 1st Cir.), cert. denied, 283 So.2d 769, 771 (La.1973).

In McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954), the United States Supreme Court gave the following explanation of the clear error rule:

"A finding is clearly erroneous when 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " 348 U.S. at 20, 75 S.Ct. at 7.

DEFENDANT'S LIABILITY FOR PLAINTIFF'S ACCIDENT

The trial court predicated defendant's liability to plaintiff upon two theories of recovery, Jones Act negligence and the general maritime law principle of unseaworthiness. Because these two bases of liability involve distinct concepts, they will be discussed separately.

The trial court found that the accident occurred either because the brake on the air hoist failed or because Fontenot, the air hoist operator, inadvertently placed the hoist control in the down position. It further concluded that Fontenot was negligent for failing to warn Portier that he was about to lower the pipe. Portier testified at trial that he was given no warning that the pipe was about to be lowered. Additionally, Fontenot admitted that he gave plaintiff no warning prior to lowering the pipe and that he heard no one else warn him. Both sides called petroleum engineers as expert witnesses. Each testified that the air hoist operator should not lower a load when there is someone underneath it and that he should at least warn anyone underneath before lowering the load. Defendant makes much of plaintiff's admission at trial that in an earlier deposition he testified that Cliff Ludeman warned him that Fontenot was going to attempt to bounce the pipe into the elevator. However, plaintiff remained adamant in his testimony at trial that he never received any warning. Furthermore, Cliff Ludeman was not called to testify at trial.

A trial court's findings regarding negligence are treated as findings of fact reviewable under the "clearly erroneous" standard. Tucker v. Calmar Steamship Corporation, 457 F.2d 440 (4th Cir.1972). On the basis of the evidence in the record, we are unable to say that the trial court was clearly erroneous in concluding that Fontenot negligently failed to warn plaintiff that he was lowering the pipe. The Jones Act incorporates the standards of the Federal Employers' Liability Act (FELA), which renders an employer liable for the injuries negligently inflicted on its employees by its "officers, agents, or employees." 45 U.S.C. sec. 51; Hopson v. Texaco, Inc., 383 U.S. 262, 86 S.Ct. 765, 15 L.Ed.2d 740 (1966), per curiam. Under the Jones Act, evidence of slightest negligence is sufficient to sustain a finding of liability. Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir.1977); Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958 (5th Cir.1969). There is no error in the trial court's finding of Jones Act liability on the part of the defendant.

The trial court also concluded that Texaco had breached its duty under general maritime law to provide a seaworthy vessel. The court found that the D/B TERREBONNE BAY was unseaworthy because of defective equipment and lack of a competent crew. The law is well-settled that a shipowner has an absolute duty to provide a seaworthy vessel. In Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960), the U.S. Supreme Court described this duty as follows:

"[T]he owner is [not] obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service." 362 U.S. at 550, 80 S.Ct. at 933.

The courts have repeatedly emphasized that liability based upon unseaworthiness is wholly distinct from liability based upon negligence. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971); Mitchell v. Trawler Racer, Inc., supra. The doctrine of unseaworthiness is not limited to the physical condition of the ship itself; an unfit crew may render a vessel unseaworthy. Boudoin v. Lykes Brothers Steamship Company, 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955). However, mere individual acts of negligence do not necessarily create the conditions of unseaworthiness. As the United States Supreme Court noted in Usner v. Luckenbach Overseas Corp., supra:

"What caused the petitioner's injuries in the present case, however, was not the condition of the ship, her appurtenances, her cargo, or her crew, but the isolated, personal negligent act of the petitioner's fellow longshoreman. To hold that this individual act of negligence rendered the ship unseaworthy would be to subvert the fundamental distinction between unseaworthiness and negligence that we have so painstakingly and repeatedly emphasized in our decisions."

There was no evidence that Fontenot was inadequately trained or incompetent. Fontenot's single act of negligence cannot properly form the basis for a finding that the D/B TERREBONNE BAY was unseaworthy. However, there was an alternate basis for the trial court's finding of unseaworthiness--defective equipment.

A number of witnesses testified that the brake bands on the air hoist were completely worn out. There was testimony to the effect that workers on the rig occasionally used roofing paper or cord as a substitute for the brake bands. The evidence conclusively established that the air hoist was not functioning at the time of the accident. This defective brake constituted an unseaworthy condition.

Defendant...