Richardson v. ST. CHARLES-ST. JOHN BAPTIST BRIDGE & FERRY AU., Civ. A. No. 67-815

• Citation: 284 F. Supp. 709
• Decision Date: 14 May 1968
• Docket Number: 67-1038.,Civ. A. No. 67-815
• Parties: George RICHARDSON, Plaintiff. v. ST. CHARLES-ST. JOHN the BAPTIST BRIDGE & FERRY AUTHORITY, and St. Paul Fire & Marine Insurance Company, Defendants. George RICHARDSON, Plaintiff, v. POWER RIG DRILLING COMPANY, Morgan W. Stevens, and Argonaut Insurance Company, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

284 F. Supp. 709

George RICHARDSON, Plaintiff. v. ST. CHARLES-ST. JOHN the BAPTIST BRIDGE & FERRY AUTHORITY, and St. Paul Fire & Marine Insurance Company, Defendants.

George RICHARDSON, Plaintiff, v. POWER RIG DRILLING COMPANY, Morgan W. Stevens, and Argonaut Insurance Company, Defendants.

Civ. A. Nos. 67-815, 67-1038.

United States District Court E. D. Louisiana, New Orleans Division.

May 14, 1968.

Orlando G. Bendana, New Orleans, La., for plaintiff.

J. Y. Gilmore, Jr., New Orleans, La., for St. Charles-St. John the Baptist Bridge & Ferry Authority.

Thomas C. Wicker, Jr., New Orleans, La., for St. Paul Fire & Marine Ins. Co. George V. Baus, New Orleans, La., for Power Rig Drilling Co., Morgan W. Stevens and Argonaut Ins. Co.

RUBIN, District Judge:

FINDINGS OF FACT

1. On November 17, 1966, the plaintiff, George Richardson, was employed by the St. Charles-St. John the Baptist Bridge & Ferry Authority ("the Authority") as a deckhand on its ferry, the M/V OLLIE K. WYLDS, on the navigable waters of the Mississippi River near Luling, Louisiana.

2. Richardson has never been a steady worker, but was earning approximately $275.00 per month prior to the accident.¹

The Authority furnished Richardson with neither food nor lodging.

3. On the evening of November 17, 1966, Morgan W. Stevens, an employee of Power Rig Drilling Company ("Power Rig") not then acting within the scope of his employment, was on board the ferry in an automobile owned by Power Rig and insured by the Argonaut Insurance Company ("Argonaut").

4. Stevens fell asleep in his automobile while the ferry was crossing the river from its east to west bank.

5. After the ferry was moored on the west bank of the river, an employee of the ferry awakened Stevens, and Richardson signaled Stevens to drive off. In doing so, Stevens drove into Richardson.

6. At the time of the accident Richardson was situated ahead of and to the left of Stevens' automobile.

7. There was adequate space to the right of Stevens' automobile to drive off the ferry without striking Richardson.

8. The sole proximate cause of the accident was Stevens' negligence in driving into Richardson.

9. The evidence fails to disclose any negligence on the part of the Authority. Richardson was provided with a safe place to work and the M/V OLLIE K. WYLDS was seaworthy and properly equipped and supplied.

10. As a result of the accident Richardson has suffered an eight (8%) per cent disability of the body as a whole. He was hospitalized six (6) days at the St. Charles Hospital in Luling, Louisiana, for treatment of contusions and abrasions of the chest, hips, and lower back and for a compression fracture of the fourth lumbar vertebra. After discharge from the hospital, he continued to be treated by Dr. J. R. Nelson until he reached maximum cure on March 21, 1967. During that period Richardson apparently worked for approximately three (3) days and was paid $27.50.

11. As a proximate result of the accident, Richardson can no longer work as a deckhand. Because of his age (65), his lack of education, and what the testifying psychologist describes as his "borderline effective intellect," it is unlikely that he can be trained to perform any other type of work. As a result, for all practical purposes, Richardson is unemployable.

12. Richardson has sustained total damages of $7,166.31, broken down as follows:

a. Disability and loss of wages: $4,125.00.

(While at the time of the accident Richardson may have had a longer work expectancy than fifteen months, multiplying his salary at the time of the accident ($275) by fifteen is a fair measure of the total loss he has sustained in view of the fact that he has not demonstrated that he has been a steady worker in the past.)

b. Medical expenses: $541.31.

(These were paid by the Authority's insurer, St. Paul Fire & Marine Insurance Company ("St. Paul"), under the provisions of the Louisiana Workmen's Compensation Act.)

c. Pain and suffering: $2,500.00.

13. Wages until the end of the month of injury amount to $115.31 ($275 ÷ 31) × 13=$115.31.

14. Maintenance of $6.00 per day from the date of the accident until the time of maximum cure amounts to $744.00 $6.00 × 124 days=$744.00. Deducting maintenance for the period during which Richardson was hospitalized $6.00 × 6=$36.00 and during which he worked for the Authority $6.00 × 3=$18.00 leaves a total of $690.00.

15. Richardson received compensation payments from St. Paul under the provisions of the Louisiana Workmen's Compensation Act in the amount of $805.00.

16. Richardson filed two (2) suits: one, styled "Petition for Damages, Maritime Tort," was brought against Stevens, Power Rig, and Argonaut; the other was brought against the Authority and St. Paul seeking damages for negligence under the Jones Act, for unseaworthiness under the general maritime law, and for capricious refusal to provide maintenance. St. Paul intervened in the suit against Stevens, Power Rig, and Argonaut for medical and compensation payments made. St. Paul also filed a third-party petition against the same parties in Richardson's suit against the Authority and St. Paul. The two cases were consolidated, and the Authority then filed a cross-claim against Stevens, Power Rig, and Argonaut, claiming reimbursement for expenses expended, or for liability imposed, as a result of the accident. Stevens, Power Rig, and Argonaut also filed a cross-claim against the Authority and St. Paul.

CONCLUSIONS OF LAW

1. The Court has jurisdiction over the parties and the subject matter of this suit.

2. Because the plaintiff was provided with a safe place to work and because the M/V OLLIE K. WYLDS was not unseaworthy, the Authority and its insurer, St. Paul, are entitled to judgment exonerating them from liability on claims of negligence and unseaworthiness.

3. The plaintiff is entitled to a judgment against Stevens and Argonaut for disability and loss of past and future wages ($4,125.00), medical expenses ($541.31), and pain and suffering ($2,500.00) in the amount of $7,166.31, with recognition of the right of St. Paul to repayment of $1,346.31 to cover compensation payments made to and medical expenses paid in behalf of the plaintiff under the provisions of the Louisiana Workmen's Compensation Act. LSA-R.S. §§ 23:1101-23:1103, 23:1162, subd. D.

4. The plaintiff is entitled to maintenance in the amount of $690.00, notwithstanding the fact that the shipowner did not provide the seaman with room and board. Hudspeth v. Atlantic & Gulf Stevedores, Inc., E.D.La., 1967, 266 F.Supp. 937. In view of the payment of compensation benefits and the plaintiff's failure to show that the failure to pay maintenance benefits was "callous," or "arbitrary and unreasonable,"² damages for refusal to pay maintenance are denied.

5. The plaintiff is not entitled to collect both under the maritime law for wages to the end of the month in which he was injured and tort damages for total lost wages. However, the plaintiff is entitled to collect both tort damages and maintenance.

The duty of a shipowner to provide his seaman maintenance and cure is "among the most pervasive incidents of the responsibility anciently imposed upon a shipowner * * *." Aguilar v. Standard Oil Co., 1943, 318 U.S. 724, 730, 63 S.Ct. 930, 933, 87 L.Ed. 1107. The duty is "imposed by the law itself as one annexed to the employment of the seaman by this shipowner. * * * It is contractual in the sense that it has its source in a relation which is contractual in origin, but, given the relation, no agreement is competent to abrogate the incident." Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (Cardozo, J.). Consequently, "The right to maintenance, cure and wages, implied in law as a contractual obligation arising out of the nature of the employment, is independent of the right to indemnity or compensatory damages for an injury caused by negligence; and these two rights are consistent and cumulative." Pacific S.S. Co. v. Peterson, 1928, 278 U.S. 130, 138, 49 S.Ct. 75, 77, 73 L.Ed. 220.

Nevertheless, it is clear that a seaman cannot recover twice for the same elements of damage. Vickers v. Tumey, 5 Cir., 1961, 290 F.2d 426, 435; Smith v. Lykes Brothers-Ripley S.S. Co., 5 Cir., 1939, 105 F.2d 604, 606. Accord, Alexandervich v. Gallagher Bros. Sand & Gravel Corp., 2 Cir., 1961, 298 F.2d 918, 921-922; McCarthy v. American Eastern Corporation, 3 Cir., 1949, 175 F.2d 727, 729. See also Gilmore and Black, The Law of Admiralty 261; Norris, The Law of Seamen § 555.³ Thus, when a seaman has sought to obtain from the shipowner both the amount of the loss he suffered when he ceased to receive food and lodging — "found" — and maintenance in addition, the courts have refused to allow recovery of both. E. g., Alexandervich v. Gallagher Bros. Sand & Gravel Corp., supra; McCarthy v. American Eastern Corporation, supra; see Smith v. Lykes Brothers-Ripley S.S. Co., supra. Similarly, where seamen have sought to recover both found and medical expenses from the tortfeasor causing the injury and maintenance and cure from the shipowner, the courts have said that the tortfeasor is primarily liable, with the result that the shipowner owes maintenance and cure only if the tortfeasor does not satisfy the judgment entered for compensatory damages. E. g., Seely v. City of New York, 2 Cir., 1928, 24 F.2d 412. The maritime law thus apparently has refused to permit the "double recovery" allowed a plaintiff under general tort law when he is granted a tort judgment for full compensatory damages notwithstanding the fact that he has been paid for some of those items under an accident insurance policy. See 2 Harper and James, The Law of Torts § 25.22, p. 1351. Maritime law likewise denies double recovery of wages,⁴ despite the fact that "wages payable by contract during periods of disability are generally treated like the proceeds of accident insurance." 2 Harper and James, The Law of...