Rogers v. Eagle Offshore Drilling Services, Inc.

• Decision Date: 27 June 1985
• Docket Number: No. 84-3161,84-3161
• Citation: 764 F.2d 300
• Parties: John Joel ROGERS and Carolyn Cox Rogers, Plaintiffs-Appellants, v. EAGLE OFFSHORE DRILLING SERVICES, INC. and Midland Insurance Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 300

764 F.2d 300

John Joel ROGERS and Carolyn Cox Rogers, Plaintiffs-Appellants, v. EAGLE OFFSHORE DRILLING SERVICES, INC. and Midland Insurance

Company, Defendants-Appellees.

No. 84-3161.

United States Court of Appeals, Fifth Circuit.

June 27, 1985.

Talbot, Sotile, Carmouche, Marchand & Marcello, Victor L. Marcello, Donaldsonville, La., for plaintiffs-appellants.

Sessions, Fishman, Rosenson, Boisfontaine & Nathan, Camilo K. Salas, III, New Orleans, La., for Hall, Callender, intervenors.

Terriberry, Carroll, Yancey & Farrell, David B. Lawton, New Orleans, La., for Midland.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOHNSON, JOLLY and HILL, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

John Joel Rogers and his wife, Carolyn Cox Rogers, brought a claim pursuant to the Jones Act, 46 U.S.C. Sec. 688, seeking to recover damages for personal injuries he allegedly sustained as a "motorman" aboard the EAGLE M 101. He also brought a claim for unseaworthiness and for maintenance and cure under general maritime law. Mrs. Rogers brought her claim for loss of consortium. The jury rejected all of the claims presented to it. John and Carolyn Rogers ("Rogers") then filed a motion for a new trial, which was denied by the district court. After consideration of the various arguments Rogers raises on appeal, we affirm.

I

Rogers was employed by Eagle Offshore Drilling Services, Inc. (Eagle) as a "motorman" aboard the EAGLE M 101, an inland drilling barge. His job responsibilities included the maintenance of various engines and pumps aboard the rig, washing the clothes of the rig personnel, and substituting for "floorhands" during meal breaks. One of the tasks a floorhand is required to perform is the cutting and slipping of the drill line.

The drill line, a cable used for lifting or lowering equipment within the rig, is occasionally replaced; the replacement procedure is known as "cutting and slipping." The operation is accomplished by removing new drill line from a spool-type drum located on the drill floor; the drill line is then passed through the "deadman," then the sheaves and next the travel block, before wrapping the line around a large hoisting drum known as the drawworks drum. The manual cutting and slipping procedure employed by the EAGLE M 101 requires the floorhand to measure the length of the drill line needed by counting the number of wraps to be taken off the drawworks drum; the floorhand then cuts and removes the line from the drum, and lowers it from the drill floor to the deck below. While he was manually lowering the drill line, Rogers' gloves stuck to the tar coating on the cable and he was "jerked," allegedly sustaining an injury to his back.

Rogers brought his personal injury claim pursuant to the Jones Act, alleging, inter alia, that Eagle was negligent in failing to use mechanical means for unrolling the drill line from the drum. Rogers also alleged that, under general maritime law, the vessel was unseaworthy because of the practice aboard the vessel of failing to use an available air hoist in unrolling the drawworks drum, and, second, the vessel was unseaworthy because a manual method, rather than a mechanical method, was customarily used in cutting and slipping the drill line.

Rogers also asserted a maintenance and cure claim. Eagle had discontinued Rogers' maintenance and cure payments on August 24, 1982, because it concluded that Rogers had reached maximum cure. The maintenance and cure payments to Rogers were resumed on July 20, 1983, after he returned to his doctor's care. Rogers' claim was that he was entitled to maintenance and cure for the period between August 24, 1982, and July 20, 1983, and to future maintenance and cure.

As we have noted, the jury rejected all of the Rogers' claims and the district court denied their motion for a new trial. ¹

II

On appeal, Rogers contends that the district court's instructions to the jury were erroneous on several bases. He alleges that the instructions were either incomplete, since they did not fully explain the issues presented, or were incorrect, since they did not accurately explain the governing law. Rogers' first basis for attacking the jury instructions is that they failed to include a charge that would have informed the jury that a vessel is unseaworthy if it employs an unsafe method of operation or work. Rogers argues that the failure to give this requested instruction forced the jury to focus on whether the vessel had proper and adequate equipment, and not on whether the vessel properly utilized this equipment.

The district court instructed the jury that "[a] claim of unseaworthiness is a claim that the owner of a vessel has not fulfilled his legal duty to members of the crew to provide a vessel reasonably fit for its intended purpose." The district court also instructed the jury that Rogers claimed the vessel was unseaworthy because he was not provided with an electric motor and spool to remove the drill line from the drum, and that the vessel owner's duty is not limited to the vessel itself, but extends to all of its parts, equipment and gear. Evidence introduced at trial indicated that the three methods used in cutting and slipping drill line were the manual method, which was employed by Eagle, the use of an air hoist, which was aboard the EAGLE M 101 but not used, and the use of an electric motor and spool. There was no electric motor or spool on the vessel. The district court did not give the requested additional instruction that using a manual, rather than mechanical, method could render a vessel unseaworthy, since it felt that the proper analysis on this point was whether the vessel was negligent (under the Jones Act) in permitting the floorhands to manually unroll the drum when a mechanical device (the air hoist) was available. Further, it concluded that its charge to the jury--that a vessel is unseaworthy if the vessel fails to provide a seaman with proper tools and equipment--adequately presented Rogers' unseaworthiness claim to the jury.

The concept of "operational negligence" that renders a vessel unseaworthy was discussed by the Supreme Court in Usner v. Luckenback Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). In Usner, the plaintiff was a stevedore engaged in unloading the vessel's cargo. He was injured when a sling used for unloading cargo struck him because the winch operator negligently lowered the sling too quickly. Neither before nor after this accident was there any problem with the winch. Id. at 496, 91 S.Ct. at 515. The Court stated:

A vessel's condition of unseaworthiness might arise from any number of circumstances. Her gear might be defective, her appurtenances in disrepair, her crew unfit. The number of men assigned to perform a shipboard task might be insufficient. The method of loading her cargo or the manner of its stowage might be improper.

400 U.S. at 499, 91 S.Ct. at 517.

The Court held, however, that an isolated personal negligent act occurring on the vessel did not render the vessel unseaworthy. It further stated that to hold otherwise would eliminate the distinction between seaworthiness and negligence. 400 U.S. at 500, 91 S.Ct. at 518.

In a case factually similar to Rogers', Luneau v. Penrod Drilling Co., 720 F.2d 675 (5th Cir.1983), we were faced with the question of whether an unsafe method of work could render a vessel unseaworthy. There, Luneau, an employee of Penrod Drilling Company, allegedly sustained permanent injury to his back while pulling on a set of manual slips during drill-string tripping operations aboard a Penrod vessel. Luneau was required to use the manual slips rather than the air slips that were also on board. On appeal, he objected to the district court's instructions to the jury because they stated only that an unseaworthy condition may result from the improper use of otherwise seaworthy equipment, and did not further instruct the jury that utilizing an unsafe method of work may also constitute unseaworthiness.

We concluded in Luneau that an unsafe method of work may render a vessel unseaworthy, and such a charge is correct if it is justified by the evidence, citing Adams v. United States, 393 F.2d 903, 905 (9th Cir.1968), and Splosna-Plovba v. Garcia, 300 F.2d 41 (9th Cir.1968). We further concluded, however, that such an instruction was not justified by the evidence in the case. As we explained: "The mere existence of an alternative method of work or of alternative equipment, whichever way the alternative use of the air slips is characterized, is insufficient of itself to render a vessel unseaworthy." We also felt that "Luneau's characterization of the choice of the use of manual slips instead of the air slips as an unsafe method is merely a choice of other words in an effort to present a novel issue." (Emphasis in original.)

The questions that we must decide, therefore, are whether the evidence justified the requested charge, and whether, considering the instructions as a whole, the jury was misled or could have misunderstood the issues presented to it. See Ware v. Reed, 709 F.2d 345, 349 (5th Cir.1983); Coughlin v. Capital Cement Co., 571 F.2d 290 (5th Cir.1978). The instructions need not be perfect in every respect provided that the change in general correctly instructs the jury, and any injury resulting from the erroneous instruction is harmless. Kyzar v. Vale Do Ri Doce Navegacai, S.A., 464 F.2d 285 (5th Cir.1972).

We hold that the evidence presented in this case does not justify the requested charge. There was no evidence to indicate that manually unrolling the drawworks drum was an unsafe method of performing the cutting and slipping operation. The evidence indicated that, with the exception of Rogers, no one had previously been injured by manually unrolling the drawworks drum. The evidence also indicated that the total weight of the cable that was carried by two roughnecks was...