Solet v. M/V CAPT. HV DUFRENE, Civ. A. No. 67-1713.

• Citation: 303 F. Supp. 980
• Decision Date: 19 August 1969
• Docket Number: Civ. A. No. 67-1713.
• Parties: August SOLET, Plaintiff, v. M/V CAPT. H. V. DUFRENE, its engines, boilers, furniture, gear, tackle and apparel, etc., in rem, and Elvin J. Dufrene, in personam, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

303 F. Supp. 980

August SOLET, Plaintiff, v. M/V CAPT. H. V. DUFRENE, its engines, boilers, furniture, gear, tackle and apparel, etc., in rem, and Elvin J. Dufrene, in personam, Defendants.

Civ. A. No. 67-1713.

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

August 19, 1969.

Harvey J. Lewis, New Orleans, La., for plaintiff.

William A. Porteous III, New Orleans, La., for defendants.

RUBIN, District Judge:

On the morning of April 13, 1966 the M/V CAPT. H.V. DUFRENE and her crew were shrimping in the Gulf of Mexico approximately two miles off the Louisiana coast. August Solet, a deckhand aboard the trawler, was using a winch to lift a net containing a haul of shrimp. The winch cable ran through a block suspended from a shackle. The shackle was fastened to a pad eye, or "U" bolt, that was welded to a steel cross-arm on the lifting boom. The weld that held the pad eye broke, and the cables, block and shackle fell, striking Solet. Solet sued the owner of the trawler, Elvin J. Dufrene, in personam for damages, claiming negligence under the Jones Act. 46 U.S.C.A. § 688. He claims damages both in personam against Dufrene and in rem against the vessel, for negligence under the general maritime law and for breach of the warranty that the vessel was seaworthy, as well as maintenance and cure and damages for failure to pay maintenance and cure. The case was tried without a jury.

The M/V CAPT. H.V. DUFRENE is a shrimp trawler 55 feet long and 17½ feet wide. Dufrene had modified the vessel's rigging so that two nets could be trolled simultaneously. An iron pipe was welded at right angles to the existing lifting boom to form a "T", or cross-arm. Holes were drilled in the cross-arm; the pad eyes were inserted there and welded in place to support a shackle and block. Dufrene hired a welder believed by him to be competent to do part of the work, including the welding that broke.

Dufrene let the vessel on shares to Captain Kirwin Parfait. Their oral agreement was that Dufrene would furnish the vessel, fully rigged, pay for fuel, maintenance and all repairs, plus one-half of the ice, in return for one-half of the proceeds of the shrimp catch. Captain Parfait would find a crew. Parfait and the crew would pay for all the food and one-half of the ice, and keep both one-half of the shrimp and all of the fish hauled in. Parfait would sell the shrimp to buyers selected by him and would be in full charge of the crew. The two-man crew, consisting of Solet and Joseph Billiot, in turn agreed to work on shares; 40% of the crew's one-half would go to Parfait and 30% to each member of the crew. The crew did not have a fixed wage agreement. Dufrene paid the crew and remitted social security taxes for them but did not deduct for income tax. Each voyage lasted from six to seven days.

At the conclusion of the trial the court concluded that, although Solet was clearly a member of the crew of the trawler, Dufrene was not his employer for Jones Act purposes.¹ It also concluded that the plaintiff had failed to prove negligence on Dufrene's part; but had proved that the M/V CAPT. H.V. DUFRENE was unseaworthy because the weld attaching the pad eye to the cross-arm was defective. The court reserved ruling on the plaintiff's claim that the lifting apparatus was negligently designed.²

UNSEAWORTHINESS

The defendant finds proof that the weld was seaworthy in the fact that it had never failed before. Loads heavier than the one being raised when Solet was injured had been raised that day, Dufrene argues, and the weld had taken the strain. But if prior failure were the test of unseaworthiness, the only items that would not pass muster would be those that failed on initial use. This proposition therefore will not stand inspection. The test is reasonable fitness for the intended purpose — and this at the time the gear is put to use, not years before when it was bought or installed. Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed. 2d 941; Gibbs v. Kiesel, 5 Cir. 1967, 382 F.2d 917 (also a shrimp boat case); The S.S. Samovar, N.D.Cal.1947, 72 F.Supp. 574 (also involving a defective weld). Cf. Rawson v. Calmar Steamship Corporation, 9 Cir. 1962, 304 F.2d 202 (improper use of otherwise seaworthy equipment). In this case, the weld was defective. It failed when the gear it was holding was used for its intended purpose, to haul in a net.

CHARTERER'S LIABILITY

Dufrene insists that his charter was bareboat and that he therefore does not warrant seaworthiness to one of the charter party. This is surely wrong on its face. If there is anyone to whom a warranty of seaworthiness is due, it is the person to whom the vessel is chartered.³ This contractual warranty was recognized even before the warranty was extended to seamen generally⁴ and, of course, long before the warranty was extended to those who are not themselves sailors but do seamen's work.⁵

The vessel owner's warranty is nondelegable, nor is it terminated when he relinquishes control of the vessel. Crumady v. Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S.Ct. 455, 3 L.Ed. 2d 413; Rogers v. United States Lines, 1954, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, reversing 3 Cir. 1953, 205 F.2d 57; Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. It exists even as to equipment that was not furnished by the owner. Alaska Steamship Company v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, affirming 9 Cir. 1953, 205 F.2d 478. See also, Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133.

The warranty is not due only to those employed by the owner: it extends to all those aboard the vessel "engaged in work traditionally performed by crew members." Hebert v. California Oil Co., W.D.La.1967, 280 F.Supp. 754, 761 and cases cited therein. See also, McCown v. Humble Oil & Refining Company, 5 Cir. 1969, 405 F.2d 596, 597 and the cases cited and distinguished in footnote 2, 405 F.2d at 597; Schwartz v. Compagnie General Transatlantique, 2 Cir. 1968, 405 F.2d 270; Filipek v. Moore-McCormack Lines, 2 Cir. 1958, 258 F.2d 734, 736 and cases cited therein. Cf. Grigsby v. Coastal Marine Service of Texas, Inc., 5 Cir. 1969, 412 F.2d 1011 (May 1, 1969). This liability does not depend on any employment or consensual relationship with the injured party. Sieracki, supra; Cannella v. Lykes Bros. S.S. Co., 2 Cir. 1950, 174 F.2d 794, cert. denied, 338 U.S. 859, 70 S.Ct. 102, 94 L.Ed. 526; Hebert v. California Oil Co., supra; Grigsby v. Coastal Marine, supra. And it of course extends to fishermen, who must have been the first true blue-water sailors. See, e. g., Gibbs v. Kiesel, 5 Cir. 1967, 382 F.2d 917.

Even when the vessel is under a demise or "bareboat" charter, the vessel owner warrants seaworthiness. He is liable to a person injured while doing seaman's work if the injury was caused by an unseaworthy condition present when the charter was made. Cannella v. United States, 2 Cir. 1950, 179 F.2d 491, 1950 A.M.C. 858; Grillea v. United States, 2 Cir. 1956, 229 F.2d 687, rehearing, 2 Cir. 1956, 232 F.2d 919. See also, Gilmore & Black, Admiralty, 217 et seq. (1957) and I Edelman, Maritime Injury and Death, 164-165 (1960). We need not here explore the question whether the owner may be liable personally when the unseaworthy condition arises after delivery to the charterer. See, Guzman v. Pichirilo, 1962, 369 U.S. 698, 82 S.Ct. 1095, 8 L.Ed.2d 205 and Reed v. S. S. Yaka, 1963, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448, rehearing denied, 375 U.S. 872, 84 S.Ct. 27, 11 L.Ed.2d 101.

The principal obligation of the vessel owner under a bareboat charter is to deliver the vessel in a seaworthy state at the commencement of the term of the charter. Gilmore & Black, Admiralty, supra at 217. Under a time charter the owner's warranty is absolute unless limited by the express terms of the charter. Work v. Leathers, 1878, 97 U.S. 379, 24 L.Ed. 1012; The Edwin I. Morrison, 1894, 153 U.S. 199, 14 S.Ct. 823, 38 L.Ed. 688; The Maurice R. Shaw, D.Me.1942, 46 F.Supp. 767, 1942 A.M.C. 1630; Wyche v. Oldendorff, E.D.Va.1967, 284 F.Supp. 575. Since the unseaworthy condition in the present case existed prior to delivery of the vessel it is irrelevant whether the charter constituted a demise charter or was instead a time charter.⁶

PERSONAL LIABILITY

The vessel is liable in rem for damages caused by its unseaworthiness. Grillea v. United States, supra. Additionally, in circumstances similar to the present case (where the unseaworthiness antedated the charter), the shipowner has been held personally liable. Rodriguez v. Coastal Ship Corp., S.D.N.Y. 1962, 210 F.Supp. 38. In Guzman v. Pichirilo, supra, the district court concluded that the charter was a time charter and not, as contended by the owner, a demise charter, and gave judgment against the owner in personam and in rem against the vessel for unseaworthiness arising subsequent to the charter. The United States Supreme Court reversed the appellate court's reversal of the district court, concluding that the district court's factual determinations were not "clearly erroneous."

QUANTUM

Mr. Solet, who is now 28 years old, was seriously injured. He was knocked unconscious by the blow, and, after being revived, was rushed to shore. He received first aid treatment in Houma and was transferred to the United States Public Health Service Hospital in New Orleans. Solet suffered a fractured left clavicle; fractures of the left second, third and fourth ribs; contusion of the left lung, fracture of the left acromion, and a fractured left scapula. He was hospitalized from April 13th until May 4, 1966 and was not marked "fit for duty" by the Marine Hospital until October 7, 1966. He was seen by Dr. Phillips, a New Orleans orthopedist, on September 26, 1967. At that time, the doctor observed prominent displacement of the sternoclavicular joint accompanied by marked...