Rotolo v. Halliburton Company
| Decision Date | 08 May 1963 |
| Docket Number | No. 20176.,20176. |
| Citation | 317 F.2d 9 |
| Parties | Mrs. Sam ROTOLO, Appellant, v. The HALLIBURTON COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edward C. Alker, New Orleans, La., Milton W. Janssen, Alker & Janssen, New Orleans, La., for plaintiff-appellant.
P. A. Gaudet, New Orleans, La., Deutsch, Kerrigan & Stiles, New Orleans, La., of counsel, for appellee.
Before PHILLIPS,* CAMERON and WISDOM, Circuit Judges.
Mrs. Sam Rotolo brought this action against the Halliburton Company to recover damages for the alleged wrongful death of her husband, Sam Rotolo,1 resulting from injuries sustained by him while in the employ of Halliburton and engaged in the course of his work in welding cracks in the hull of one of its vessels. The action was brought under the Jones Act (46 U.S.C. § 688) and the General Maritime Law and relief was also sought in the alternative under the Louisiana Workmen's Compensation Act.
The case came on for trial before a court and jury. At the close of the plaintiff's evidence in chief, Halliburton moved for a directed verdict on the ground, among others, that there was no evidence that Rotolo, at the time of the accident, was a seaman on any of its vessels. The trial court sustained the motion and directed a verdict in favor of Halliburton, under the Jones Act and General Maritime Law.
Halliburton then moved for summary judgment dismissing the alternative demand under the Louisiana Workmen's Compensation Act, on the ground that the evidence clearly showed that Rotolo's injuries occurred on navigable waters of the United States and therefore the exclusive remedy of Rotolo's beneficiaries is under the Federal Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.A. § 901 et seq.). The court sustained such motion.
The evidence adduced by the plaintiff below, viewed in the light most favorable to her, showed these facts:
On March 11, 1961, the date when the accident occurred, and for a number of years prior thereto, Halliburton was engaged in the business of servicing oil wells. It had a base at Harvey, Louisiana, where it maintained a district office, repair shops and repairing equipment, and also kept trucks, station wagons, and portable repairing equipment. From such base and over a substantial area, Halliburton rendered its oil well services, both to oil wells on land and oil wells drilled or being drilled in the Gulf of Mexico, known as offshore wells. It employed trucks and other automotive equipment for land transportation and boats for water transportation. It maintained a fleet of 15 vessels and seven barges. Some of its vessels were used to transport material and equipment from the Harvey base to offshore drilling sites for the purpose of rendering oil well servicing. Other of its boats were used to transport its workmen from the shore to such sites and to return them to the shore. Among such boats was Crew Boat No. 503, so called because it was used to transport crews of workmen engaged in rendering such oil well services. Boat No. 503 was a steel boat. It was 38 feet long and its beam was approximately 12 feet. It had no crew quarters, that is, sleeping quarters, and no place where food could be prepared or served. Some canned goods were stored in a locker on the boat.
Halliburton maintained a force of approximately 14 men in its maintenance and repair department at its Harvey base. At least five of such workmen, including Rotolo, who performed substantially the same work, were welders. They did general welding repairs and were known as shop welders. Included in their work was the welding of cracks in steel hulls of Halliburton's boats, welding patches on such hulls, cutting out weakened or damaged areas, and welding, over the holes so made, new metal plates or patches.
When a boat needed repairs and it could be repaired by tying it to a wharf and hoisting that portion of the boat requiring repairs up out of the water, repairs were made at a wharf. When it could not be so repaired, it was moved to the Harvey base for repairs. By far the larger portion of boat repairs was made at the Harvey base. Employees who performed substantially the same services as Rotolo testified that they did from 80 to 90 per cent of their work at the Harvey base and approximately 10 to 20 per cent of their work away from such base. Neither Rotolo nor other repairmen were assigned to a particular boat. On the contrary, when a boat needed repairs the foreman selected a repairman and directed him to make the particular repairs on that boat. In other words, he was assigned and directed to perform a particular job and on its completion to report for assignment to other work, or if done away from the base, to return to the base.
When Rotolo or any other repairman was directed to repair a boat, he decided, after examining the part to be repaired, whether the repairs could be made away from the base, or whether they would have to be made in the repair yard at the base. The captain, or boat operator, had no authority over the repairman. The latter was solely in charge of the repairs.
On the morning of the accident, Boat No. 503 was tied up to Halliburton's Barge 101 at its dock in Leeville, Louisiana. There were two cracks below the water line in the hull of the boat, forward of the beam or center, which caused the boat to leak. Boat No. 503 was in the charge of Weston J. Smith, as the operator thereof. He had been such operator for two and one-half years. Boat No. 503 had only one crew man, the operator. Smith had reported the cracks and requested that the boat be repaired. He had made temporary repairs by cementing the cracks and the boat was not leaking when it was tied up at Leeville, or during the time it was repaired by Rotolo. Smith had also pumped the water out of the hull, so that only about a gallon of water remained therein.
On March 11, 1961, Rotolo, in accordance with directions from his superior, had proceeded to Leeville by truck with a portable electric welding machine, there to repair Boat No. 503, if repairs could be made without bringing it to the Harvey base.
When Rotolo arrived, Smith advised him with respect to the leaks and their location. Rotolo decided the repairs could be made away from the base, but that the bow of the boat would have to be raised out of the water with a winch boom. Such a boom was available at the Gulf Oil Company's nearby wharf. Boat No. 503 was moved from the Halliburton dock to the Gulf Oil Company's wharf and there tied up. Rotolo moved his truck and welding machine from the dock to the wharf and also went to another Halliburton boat, No. 204, for coffee. By means of the winch boom, Rotolo, Smith, and one Guidry raised the boat out of the water, so about three-fifths of the hull was above the water, including the portion where the cracks were located. Smith removed the cement and cleaned the area to be welded. There were no blowers on Boat No. 503 to dry out the hull and there was dampness in the hull. The principal part of the welding machine remained in the truck. The machine was equipped with two cables, known as whips or leads, of sufficient length to reach from the machine in the truck to the place where the welding was to be done. A holder was attached at the end of the cables and the welding rod was inserted in such holder. The working space was limited and cardboard was laid down for...
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