Soucie v. Trautwein Bros.

• Decision Date: 22 July 1969
• Citation: 275 Cal.App.2d 20,79 Cal.Rptr. 671
• Court: California Court of Appeals Court of Appeals
• Parties: Edward P. SOUCIE, Plaintiff and Appellant, v. TRAUTWEIN BROTHERS, a partnership, Paul A. Trautwein, Frank Trautwein, John Trautwein, Fred Trautwein, Benny Trautwein, Ray Trautwein, Paul Shaver, et al., Defendants and Respondents. Civ. 9360.

Page 671

79 Cal.Rptr. 671

275 Cal.App.2d 20

Edward P. SOUCIE, Plaintiff and Appellant, v. TRAUTWEIN BROTHERS, a partnership, Paul A. Trautwein, Frank Trautwein, John Trautwein, Fred Trautwein, Benny Trautwein, Ray Trautwein, Paul Shaver, et al., Defendants and Respondents.

Civ. 9360.

Court of Appeal, Fourth District, Division 1, California.

July 22, 1969.

Hearing Denied Sept. 17, 1969.

[275 Cal.App.2d 22] Butler & Jefferson and James M. Jefferson, Jr., Los Angeles, for plaintiff and appellant.

Lillick, McHose, Wheat, Adams & Charles and Gordon K. Wright, Los Angeles, for defendants and respondents.

OPINION

AULT, Associate Justice pro tem. ^*

Edward P. Soucie appeals from a judgment for defendants after a jury verdict in a personal injury action brought in the Superior Court of Orange County under the Jones Act (46 U.S.C.A. § 688) and the general maritime law.

During the year 1966--1967, respondent partners were engaged in constructing a seawall at Linda Isle in Newport Harbor. They owned and operated a vessel used in building the seawall throughout the construction project. The vessel was a rigging or derrick barge which floated in the water, but had no motive power of its own. It was not equipped with sleeping, eating or toilet facilities.

The hoist or derrick aboard the barge was used to lift and place the concrete pilings or slabs which formed the wall. The pumps and hoses aboard the barge were used to set or sink the pilings. A piling was placed, held in position by the derrick and by a member of the barge crew using a pry bar, and the sand was jetted out from underneath by water pressure until the piling was sunk and set to the desired depth. Every time a piling was set, it was necessary to move the barge so it would be in position to hoist and set the next piling. Often this was done by taking up and letting slack lines which were attached from the front of the barge to the shore and from its after section to an anchor. On some occasions the barge was moved into new position by a tugboat.

A crew of five worked the barge. It included the foreman, who was one of the owners, an engineer who operated the hoist, and three pile butts. Appellant was one of the pile butts. He first went to work for respondents on the job on September 9, 1966. Between that time and December 22, 1966, when he was injured, appellant worked daily on the barge. His duties included: (1) manipulating the stern and bow lines to move the barge along the seawall as required; (2) operating lines between the barge and the tug, when the tug was used to move the barge; (3) dismantling and cleaning the pumps on the vessel when they became clogged with sand; (4) repairing, changing and replacing hoses on the barge used to sink the pilings; (5) repairing, splicing and replacing lines used to move the vessel; and (6) working directly in connection with placing and setting the piles such as use of the pry bar or manning the hoses and pumps.

When in normal operation, the barge was tied so that its fore section was approximately 18 inches from the partially completed portion of the seawall. Between the seawall and the shore, its width and depth depending on the tides, was a depression filled with sea water. Access to the barge was gained by walking over a plank from the shore to the top of the partially completed seawall and by stepping from the wall onto the barge. On occasions, the barge was so positioned it was necessary to use two planks, one running from the shore to the wall and another from the wall to the barge. Because of the frequency with which the barge was moved, the planks were not always kept in place.

When appellant reported to work on the morning of the accident, no plank was in place from the shore to the wall. Appellant found a 2 x 4 on the shore which he used to span the area between the shore and the seawall, a distance of six to eight feet. Appellant and the operating engineer both crossed the 2 x 4 safely and boarded the barge. They uncovered the winch and the pumps and generally prepared the barge for work when the rest of the crew arrived. Appellant was returning to shore before work started when the 2 x 4 broke and he fell some five or six feet into the water. He struck a concrete sheet piling which was lying partially in the water and injured his ankle.

Immediately after the accident appellant was limping, but he refused medical care when offered by the foreman. He testified he hoped to work out the soreness and stiffness in the ankle. Approximately an hour and a half later the second accident occurred. In using a pry bar to guide and hold a piling in place while it was being set, the bar slipped, appellant lost his balance, struck a bitt and fell overboard. On this occasion his body struck a bow line before hitting the water. Appellant was taken to a doctor and did not return to work. As a result of the accidents described he sustained injuries to his ankle, leg and back. At the time of trial he had not worked since the accident except for two minor odd jobs of short duration. While it is unclear from the evidence which fall caused the back injury, appellant related the second fall to his sore and stiff ankle which he stated caused him to lose his balance and fall overboard.

46 U.S.C.A., section 688, commonly called the Jones Act, provides 'any seaman' injured in the course of his employment may, at his election bring an action for damages at law. State and federal courts have concurrent jurisdiction in Jones Act cases (Long v. General Petroleum Corp., 11 Cal.App.2d 708, 709, 54 P.2d 1147; Engle v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813), but where such cases are filed and tried in state courts, the substantive law as developed in the federal cases and decisions is controlling. (Zar v. Alafetich, 126 Cal.App.2d 643, 645, 272 P.2d 922; Smith v. Union Oil Co., 241 Cal.App.2d 338, 342--343, 50 Cal.Rptr. 499.)

From its inception, the Jones Act has been liberally interpreted to extend rather than restrict admiralty's traditional protection of those exposed to the risks of the sea. (See International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157; Zar v. Alafetich, supra, 126 Cal.App.2d 643, 645, 272 P.2d 922.) This has largely been accomplished by expanding the definition of such terms as 'seaman,' 'member of a crew' and 'vessel,' and nowhere has the expansion had greater impetus than in cases dealing with so-called 'special purpose vessels.' ¹

In Hill v. Diamond, 4 Cir., 311 F.2d 789, at page 791, the court stated:

'It is well established that many special purpose craft, such as dredges, (citations), floating derricks (citations), and barges equipped for special purposes or operations (citations) are vessels within the meaning of the Jones Act and that persons regularly employed aboard such a vessel in aid of its purposes are seamen (citations).'

In Offshore Company v. Robison, 266 F.2d 769, the injured plaintiff was an oil worker hired as an oil driller's helper, but assigned to a mobile oil drilling rig operating in the Gulf of Mexico. The scope of the decisions in this area caused the court to remark:

'The reach of the Jones Act is a peril of the sea that could hardly have been dreamt of by the landlubbers in the oil business. The Act has always been construed liberally, but recent decisions have expanded the coverage of the Jones Act to include almost any workman sustaining almost any injury while employed on almost any structure that once floated or is capable of floating on navigable waters.' (p. 771.)

The law as it relates to 'special purpose vessels' has been developed primarily in the area surrounding the Gulf of Mexico where many such vessels have operated for years. The decisions of the United States Court of Appeals, Fifth Circuit, are thus most significant. In a series of landmark cases beginning with Offshore Company v. Robison, Supra, 266 F.2d 769, and ending with Boatel, Inc. v. Delamore, 5 Cir., 379 F.2d 850, the law with respect to the status of a worker under the Jones Act on a 'special purpose vessel' has clearly and progressively evolved. ²

The rule as developed by these cases may be stated as follows: Where a special purpose vessel is being used for its designed purpose, the injured worker is a 'seaman' and 'a member of the crew' within the meaning of the Jones Act, if he has been permanently assigned to the vessel, and his work contributed to the function of the vessel or to the accomplishment of its mission. (Offshore Company v. Robison, Supra, 266 F.2d 769; Producers Drilling Company v. Gray, 5 Cir., 361 F.2d 432, 434; Boatel, Inc. v. Delamore, Supra, 379 F.2d 850, 858.)

The effect of these decisions in the area of special purpose vessels is to encompass within the protection of the Jones Act as 'seamen', workers who are not seamen in the traditional sense, and to substitute new and different criteria to determine the status. The traditional test the worker be 'aboard primarily to aid in navigation' has been so watered down as to be rendered meaningless in this context. (Offshore Company v. Robison, Supra, 266 F.2d 769, 780; Producers Drilling Co. v. Gray, Supra, 361 F.2d 432, 434.)

That the vessel involved is a 'vessel' and the worker involved is a 'seaman' within the meaning of the Jones Act may be either a question of fact or a matter of law depending upon the circumstances of each case. But where the facts are undisputed and reasonable men could not draw conflicting inferences, the question of status with regard to both 'vessel' and 'seaman' should be decided as a matter of law by the court. (Producers Drilling Co. v. Gray, Supra, 361 F.2d 432, 434--436; Boatel, Inc. v. Delamore, Supra, 379 F.2d 850, 858.)

In the instant case appellant's main contentions ralate to his status as a 'seaman' under the Jones Act. Throughout he has maintained the evidence established that status as a matter of law. He attempted first to have his status as...