Self v. Great Lakes Dredge & Dock Co.

• Decision Date: 01 December 1987
• Docket Number: No. 85-3673,85-3673
• Citation: 832 F.2d 1540
• Parties: , 56 USLW 2344, 24 Fed. R. Evid. Serv. 949 Vivian Marie SELF, as administratrix of the estate of Danny Joe Self, deceased, etc., Plaintiff-Appellee, Cross-Appellant, v. GREAT LAKES DREDGE & DOCK COMPANY, a corporation, Defendant, Third Party Plaintiff-Appellant, Cross-Appellee, and Chevron Shipping Company, Third Party Defendant, Cross-Appellant. GREAT LAKES DREDGE & DOCK COMPANY, a corporation, Plaintiff-Appellant, Cross- Appellee, v. CHEVRON SHIPPING COMPANY, Defendant-Appellee, Cross-Appellant, and Italia Societer Per Az Di Nav, Defendant. Complaint of CHEVRON TRANSPORT CORPORATION, as owner of the S/S ROBERT WATT MILLER, in an action for exoneration from or limitation of liability, Plaintiff-Appellee, Cross-Appellant, Great Lakes Dredge & Dock Company, a corporation, Claimant-Appellant, Cross- Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1540

832 F.2d 1540

1988 A.M.C. 2278, 56 USLW 2344, 24

Fed. R. Evid. Serv. 949

Vivian Marie SELF, as administratrix of the estate of Danny

Joe Self, deceased, etc., Plaintiff-Appellee, Cross-Appellant, v. GREAT LAKES DREDGE & DOCK COMPANY, a corporation, Defendant, Third Party Plaintiff-Appellant, Cross-Appellee, and Chevron Shipping Company, Third Party Defendant, Cross-Appellant.

GREAT LAKES DREDGE & DOCK COMPANY, a corporation, Plaintiff-Appellant, Cross- Appellee, v. CHEVRON SHIPPING COMPANY, Defendant-Appellee, Cross-Appellant, and Italia Societer Per Az Di Nav, Defendant.

Complaint of CHEVRON TRANSPORT CORPORATION, as owner of the

S/S ROBERT WATT MILLER, in an action for

exoneration from or limitation of

liability, Plaintiff-Appellee,

Cross-Appellant,

Great Lakes Dredge & Dock Company, a corporation,

Claimant-Appellant, Cross- Appellee.

No. 85-3673.

United States Court of Appeals Eleventh Circuit.

Dec. 1, 1987.

Rehearing and Rehearing En Banc Denied Jan. 6, 1988.

Dewey R. Villareal, Jr., Carl R. Nelson, Tampa, Fla., Courtney W. Stanton, Jacksonville, Fla., John M. Kops, Warren M. Faris, New Orleans, La., for Great Lakes Dredge & Dock Co.

G. Morton Good, Miami, Fla., Richard G. Rumrell, Jacksonville, Fla., for Chevron Shipping Co. & Chevron Transport Corp.

Leonard C. Jaques, Detroit, Mich., for Self.

Appeals from the United States District Court for the Middle District of Florida.

Before CLARK, EDMONDSON and KEITH ^*, Circuit Judges.

CLARK, Circuit Judge:

On February 5, 1975, the ship Robert Watt Miller struck the dredge Alaska and a barge in the St. Johns River near Jacksonville, Florida. A number of seamen were killed or injured in the accident, and this litigation ensued. After over twelve years of proceedings, this case is now before this court for a second time. In the earlier appeal, Ebanks v. Great Lakes Dredge & Dock Co., 688 F.2d 716 (11th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1774, 76 L.Ed.2d 346 (1983), this court reversed the judgment of the district court because of errors that led to findings of negligence but no award of damages. On remand, the district court conducted a nonjury trial, found negligence, awarded damages, but limited damages because of a settlement by the plaintiff with one of the parties. See In re Chevron Transport Corp., 613 F.Supp. 1428 (M.D.Fla.1985). All parties appealed to this court raising at least twelve issues altogether. For the reasons discussed below, we affirm in part and reverse in part the judgment of the district court.

I. FACTS

The background and facts of this case are extensively detailed by the district court, see 613 F.Supp. at 1431-33, and in this court's earlier opinion, see 688 F.2d at 717, and will only be summarized here.

A. The Parties

Great Lakes Dredge and Dock Company ("Great Lakes") was the owner and operator of the dredge Alaska and the barge involved in the accident. The Chevron Transport Corporation owned the ship Robert Watt Miller, which collided with the barge and dredge. The vessel was operated by Chevron Shipping Company (collectively "Chevron" unless otherwise noted).

Vivian Marie Self is the widow of Danny Joe Self, a seaman and member of the crew of the barge (collectively "Self" unless otherwise noted). While engaged in the performance of his duties for his employer, Great Lakes, Danny Self lost his life in the accident. Vivian Self was one of the original plaintiffs in this action, which included claims of injured seamen and the representative of the one other seaman who lost his life in the accident. All plaintiffs other than Self have settled their claims. The case is an action at law under Sec. 20 of the Jones Act, 46 U.S.C. Sec. 688 and under general maritime law. See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).

B. The Accident

To briefly summarize, at a little before noon on February 5, 1975, the Robert Watt Miller was proceeding at full speed up the St. Johns River approaching the Port of Jacksonville. The pilot of the vessel, knowing the Alaska was in the area, radioed to inform the dredge that the ship would soon be passing. The Robert Watt Miller came around a turn in the channel and saw for the first time the placement of the dredge and barge. Based only on visual estimates, the pilot guided the Robert Watt Miller to the north side of the channel. The leverman of the dredge Alaska, when he saw the Robert Watt Miller, stopped dredging and swung the bow of the dredge toward the south bank of the channel.

As the Robert Watt Miller continued up the channel, the pilot and master of the ship noticed a significant sheer of the vessel to port, toward the south side of the channel. According to the district court,

an order of 10 degrees right rudder was given. The sheer continued and an order of 20 degrees right rudder was given. The master then initiated an order of hard starboard rudder and full ahead on the engines. That order was given at 12:09 but the sheer continued so a full astern was ordered at 12:11.

Immediately before impact the pilot of the Robert Watt Miller radioed a warning to the Alaska informing the leverman to clear the dredge and barge of all personnel. He also blew the warning whistle. At about the same time the operator of the dredge's tender tug Tarheel State, lying on the port side of the Alaska, saw the danger, sounded the tug's whistle and moved out of the path of the Robert Watt Miller.

Between 12:10 and 12:12, the time having not been exactly established, the bow of the Robert Watt Miller struck the Alaska. The bow first contacted the dredge's port anchor boom, then struck the hull about 100 feet aft of the bow. The impact broke the coupling between the Alaska and the [barge]. The Robert Watt Miller slipped down the side of the Alaska, came into contact with the Barge thus causing her to be loosened from the connections to the dredge. The momentum of the Robert Watt Miller continued forward along the [barge] and rolled the barge over on her starboard side. The Robert Watt Miller's engines were stopped at 12:13.

When the Barge rolled over several crewmen were injured; two, including the plaintiff's decedent, lost their lives. The plaintiff's decedent, Danny Self, was a deckhand aboard the Alaska. Around noon on February 5, 1975, he and other crew members gathered in the mess hall for lunch. One minute prior to collision one of Self's fellow crewmen went to the door of the mess hall, saw the Robert Watt Miller and yelled out to the others. At this time the men ran from the mess hall aft to the port side to a ladder near the stern. They continued down the ladder to the main deck and across the gangway to the barge. The men had just reached the barge when the impact of the Robert Watt Miller rolled it over. Eleven crew members were cast into the water.

Immediately, rescue attempts were made by the dredge's tender tugs, the survey boat Canaveral and a small fishing boat. In addition, crew members of the Alaska and the Robert Watt Miller threw life rings and flotation equipment attempting to save the men in the water.

Burke, a crew member of the Alaska, had grabbed his life jacket from the handrail when leaving the mess hall. He attempted to save Self by holding on to him, but the suction and current prove stronger than the grips of Self and Burke. Self was pulled away and lost his life.

In re Chevron Transport Corp., 613 F.Supp. at 1433.

C. The Litigation

Each of the death and personal injury claimants instituted separate actions against their employer, Great Lakes Dredge & Dock Co. Great Lakes in turn filed third-party complaints in each action against Chevron Shipping Co., as operator of the Robert Watt Miller. Great Lakes also filed suit against Chevron Shipping Co. and Italia Societe Per Az Di Nav. As owner of the Robert Watt Miller, Chevron Transport Corporation filed a complaint seeking exoneration from or limitation of liability.

613 F.Supp. at 1431. Both Chevron companies settled with all of the personal injury and death claimants, including Self. Chevron paid Self the sum of $315,000. The original trial judge severed the third-party complaints and conducted a jury trial between the personal injury plaintiffs and Great Lakes. The jury found that Great Lakes was negligent but found that Great Lakes was not liable to the plaintiffs. For reasons explained in Ebanks, this court reversed. On remand, a different district judge consolidated the pending actions for a nonjury trial. All of the personal injury claimants except for Self settled with Great Lakes. At trial, Self's claims against Great Lakes were tried as well as liability issues between Great Lakes and Chevron. The issues of Chevron's and Great Lakes' damages were reserved for later trial.

At trial, all three major parties (Self, Great Lakes, and Chevron) made allegations about causes of the accident and the injuries to seamen. Self alleged that Great Lakes failed to comply with various safety regulations requiring lookouts, life preservers, safety skiffs, and emergency drills. Self and Chevron alleged that Great Lakes improperly positioned the barge and dredge in the channel. Great Lakes alleged that Chevron negligently allowed its vessel to travel through the channel with insufficient information about the location of the dredge. Evidence on these and other claims were presented at trial.

The trial judge ruled that Chevron was negligent and liable because of the sheer of the vessel and that Great Lakes was liable because of the placement of the dredge and barge in the channel. The court found that Self's total damages amounted to $661,354.00 and that Chevron bore 70% of the fault for the accident while Great Lakes bore 30%. Because Self had already settled with Chevron, and because the trial court was of the view that this court's opinion in Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir.1979), ¹ required an apportionment of damages, the...