Robichaux v. Kerr McGee Oil Industries, Inc.

• Decision Date: 02 October 1970
• Docket Number: Civ. A. No. 10187.
• Citation: 317 F. Supp. 587
• Parties: Hugh A. ROBICHAUX v. KERR McGEE OIL INDUSTRIES, INC.
• Court: U.S. District Court — Western District of Louisiana

317 F. Supp. 587

Hugh A. ROBICHAUX v. KERR McGEE OIL INDUSTRIES, INC.

Civ. A. No. 10187.

United States District Court, W. D. Louisiana, Lafayette Division.

October 2, 1970.

Chester A. Eggleston, New Orleans, La., for plaintiff.

Hammett, Leake & Hammett, Robert E. Leake, Jr., New Orleans, La., for defendant.

MEMORANDUM OPINION

PUTNAM, District Judge.

This case was remanded to us for additional findings on the issue of seaworthiness of the submersible drilling barge upon which plaintiff, a member of a casing crew employed by Sladco, Inc., was working at the time he was injured. See: Robichaux v. Kerr McGee Oil Industries, Inc., 5 Cir. 1967, 376 F.2d 447. The action, brought against Kerr McGee Oil Industries, Inc., owner of the barge, is grounded in maritime law under general principles of tort and for breach of the warranty of seaworthiness by defendant.

Submersible drilling barges are vessels, and those employed aboard them are classed as seamen if they are more or less permanently attached to the ship and their work contributes to the maintenance and safety of the vessel or its welfare while in navigable waters, or to the accomplishment of its mission. Offshore Co. v. Robison, 5 Cir. 1959, 266 F.2d 769; Producer's Drilling Co. v. Gray, 5 Cir. 1966, 361 F.2d 432; Marine Drilling Co. v. Autin, 5 Cir. 1966, 363 F.2d 579. The shipowner owes the duty of furnishing a seaworthy vessel to crew members, which extends to those who are not members of the ship's company but who perform duties aboard the vessel such as are traditionally performed by seamen, under the doctrine of Seas Shipping Company v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) reh. den. 328 U.S. 878, 66 S.Ct. 1116, 90 L.Ed. 1646; as extended by Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953).

Following the trial, this court rendered judgment against plaintiff on the issue of negligence. Since there did not seem to us to be any serious question of fact on the issue of seaworthiness, we made no specific reference thereto when giving oral reasons for judgment from the bench at the conclusion of the evidence. However, in formal findings thereafter submitted by counsel for defendant, this issue was, we thought, adequately covered. In view of the speculation existing as to the effect of the decision of the Supreme Court in Mascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed.2d 743 (1967), on the "operational negligence" v. "instantaneous unseaworthiness" debate reflected in Antoine v. Lake Charles Stevedores, Inc., 5 Cir. 1967, 376 F.2d 443, cert. den. 389 U.S. 869, 88 S.Ct. 145, 19 L.Ed.2d 146, the court felt that this issue was not sufficiently resolved by our remarks from the bench and formal findings which followed.

Antoine and Robichaux, supra, seemed to settle the question in this circuit. But in Satchell v. Svenska Ostasiatiska Kompaniet, 4 Cir. 1967, 385 F.2d 76, and Venable v. A/S Det Forenede Dampskibsselskab, 4 Cir. 1968, 399 F.2d 347, the court declined to follow the Fifth Circuit's course and held that Mascuilli had rejected the "operational negligence" defense of the shipowner in such cases.

Although our own views were expressed in Hebert v. California Co., W. D.La.1967, 280 F.Supp. 754, and Hanks v. The California Company, W.D.La. 1967, 280 F.Supp. 730, at 738, 739, because the post Mascuilli question had not yet been decided by this circuit and was then pending before the Court, we withheld action on the remand. Since then, in Grigsby v. Coastal Marine Service of Texas, Inc., 5 Cir. 1969, 412 F.2d 1011, the court has held that where injury results from "operational negligence" on the part of the longshoreman or other Sieracki type intermediary employee, and/or his fellow workmen, and is simultaneous therewith, the shipowner cannot be said to have breached his duty to furnish a seaworthy vessel. The exhaustive discussion of the problem by Chief Judge Brown in Grigsby and the conclusion therein expressed was followed without further comment in the Usner case. Although writs have been granted in Usner, 397 U.S. 933, 90 S.Ct. 940, 25 L.Ed.2d 114, the law that controls us here is now well established in this circuit. Duncan v. Transeastern Shipping Corp., 5 Cir. 1969, 413 F.2d 1023; Reed v. M/V Foylebank, et al., 5 Cir. 1969, 415 F.2d 838. In accord: Tim v. American President Lines, Ltd., 9 Cir. 1969, 409 F.2d 385.

The "instant unseaworthiness" question is squarely presented in Usner v. Luckenback Overseas Corporation, 397 U.S. 933, 90 S.Ct. 940, 25 L.Ed.2d 114 and should be laid to rest when that case is decided. However, after carefully reviewing the evidence in the case at bar and our notes taken during the trial, we have concluded that further delay of this decision is unwarranted. Further, there does not seem to be any necessity for the taking of additional evidence. All witnesses available were called at the trial and were fully examined by counsel on all aspects of the case. Only McFarland, the "pusher", or foreman of the casing crew, plaintiff himself, and a fellow employee of Sladco, Inc., James Allen, had any positive recollection of the occurrence.

Pulling casing in an oil well drilling operation is a specialized service not ordinarily performed by the regular drilling crew who drill the well. Joints of casing vary in length, and in diameter. On this particular job, 7 5/8 " casing in forty-five foot lengths was employed. All of the equipment in use by the casing crew on this occasion constituted equipment, gear and appurtenances of the submersible barge in question, the KERR-MAC 46, owned by defendant, including the draw works, elevators, block, rotary table and spider. The draw works was operated by defendant's driller, Mr. Barbay. The rotary table is activated by the draw works, and bushings are installed in it to accommodate drill pipe of varying diameters used during the drilling operation. These bushings were removed and a "spider", described as "a big iron object with a hole in the middle of it", similar to a clutch, to accommodate the 7 5/8 " casing was installed to hold the casing pipe suspended in the hole below in place while the top joint was removed after being raised above the rotary table by the drilling rig. (Tr. 19)

Plaintiff's theory of the case was that there was too much slack in the snub line on the breakout tongs when the driller activated the draw works and applied power to the tongs, so that the bottom of the pipe was jerked forcefully, causing it to whip at the top and strike him on the head. He testified that from his position on the stabbing board forty-five feet above the derrick floor at the top of the joint of casing being removed, he observed the slack in the line and the next thing he knew he was struck and knocked backward, injuring his knee in the fall. He remained on the stabbing board for the remainder of the operation.

When a joint of pipe is removed, the entire string of casing in the well is lifted in the hold by the rig's travelling block with the use of elevators, which clamp around the casing just below the collar of the joint then being removed. The elevators are attached to the casing by members of the casing crew. The casing is then raised until the next joint is above the rotary table, the spider is set to hold the string in place and prevent it from falling back into the hole, and the man on the stabbing board signals the driller to slack off on the elevators. He unlatches the elevators, throws a rope around the casing while the man on the floor below uses the breakout tongs to apply such torque as is necessary to unscrew the top joint from the remainder of the string, in order for it to be stacked in the derrick out of the way, in preparation for the removal of the next joint.

McFarland, plaintiff's immediate superior and fellow Sladco employee, was handling the backup tongs. He remembered the accident, but contradicted plaintiff's testimony relative to the slack in the tong line. He stated that the tongs bit when he applied them to the casing, and when force was applied by the driller at the draw works, the spider slipped in the rotary and this caused the casing to whip at the top. He further testified that there was nothing wrong with the spider itself, and that it was properly installed. (Tr. 88.) Both McFarland and the driller testified that it is not an unusual thing for the spider to slip or jerk when the casing below the rotary table, remaining in the hold, is short and there is not enough weight to hold the spider in place. An event that is not unusual is, we take it, one that is to be expected.

All of the witnesses testified that in handling 7 5/8 " casing in 45-foot joints, because of the flexibility of the pipe, some whipping effect at the top is likely when power is applied to the tongs. The difference in their testimony is only as to the extent of the "whip", which necessarily must vary depending upon the amount of breakout torque applied.

Robichaux was an experienced casing hand. He had done this type of work for some 12 years preceding the accident, which occurred on January 18, 1964. It was his practice to unlatch the elevators before the joint was broken loose. He knew that the job in question called for removal of approximately 2500 feet of casing from this hole. He knew that as part of the operation as the string became lighter there was a likelihood of the...