Southern Natural Gas Co. v. Gulf Oil Corp.

• Decision Date: 02 October 1975
• Docket Number: No. 5119,5119
• Parties: SOUTHERN NATURAL GAS COMPANY, Plaintiff-Appellee, v. GULF OIL CORPORATION et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 917

320 So.2d 917

1976 A.M.C. 616

SOUTHERN NATURAL GAS COMPANY, Plaintiff-Appellee, v. GULF OIL CORPORATION et al., Defendants-Appellants.

No. 5119.

Court of Appeal of Louisiana, Third Circuit.

Oct. 2, 1975.

Rehearing Denied Nov. 13, 1975.

Caffery, Duhe & Davis, by Patrick T. Caffery, New Iberia, for defendants-appellants.

Landry, Watkins, Cousin & Bonin by Willaim O. Bonin, New Iberia, for plaintiff-appellee.

Before HOOD, CULPEPPER and MILLER, JJ.

MILLER, Judge.

Defendants Gulf Oil Corporation and Berry Brothers General Contractors appeal a judgment awarding $15,802.74 to plaintiff Southern Natural Gas Company for property damages sustained when Berry's dredge picked up and ruptured Southern's natural gas pipeline. We affirm in part, and in part reverse.

Berry contracted with Gulf to 'sweep' or re-dredge an existing canal leading from Big Bayou Pigeon to old locations and dredge a new canal and drill site as an extension of the canal. Southern's meter platform was located on the edge of the existing canal. From this point Southern's unmarked six-inch pipeline (which had not been used for five years) extends 395 along the canal at its approximate center at some points. The pipeline then turns ninety degrees and enters a pipeline ditch to ultimately form part of a 'gas gathering system.' Southern's pipeline construction and Berry's dredging operation were both pursuant to appropriate permits.

Representatives of Gulf and Berry made an on-side inspection of the area prior to commencing dredging operations. On August 29, 1972 Berry's dredge was towed to the canal and began its sweep at Big Bayou Pigeon. While staking the channel to be dredged the captain discovered Southern's meter platform and probed to determine whether the line from the platform crossed the canal. He found nothing because he didn't consider the possibility the line might meander along the center of the canal. The next morning the dragline bucket picked up the pipeline and ruptured it.

Defendants to not contest the trial court's holding them negligent. They specify as error the trial court's failure to find plaintiff negligent, the canal to be navigable, and to apply the doctrine of comparative negligence provided by the substantive law of admiralty.

The trial court properly set forth the test for navigable waterways as that prescribed in The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871): waterways are '. . . highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water.' The scene of this accident accords with this definition in that navigability is the purpose for which the original canal was constructed and the present activity is intended to maintain. Cf., U.S. v. Sexton Cove Estates, Inc., 389 F.Supp. 602 (S.D.Fla.1975).

The trial court was troubled by the possibility that private ownership of the canal might create an exception to exclude applicability of admiralty and maritime law. However, State and Federal jurisprudence uniformly reject this contention. In National Audubon Society v. White, 302 So.2d 660 (La.App. 3 Cir. 1974) we held the McIlhenny canal retained its private character despite its navigability. In Down Chemical Co. v. Dixie Carriers, Inc., 463 F.2d 120 (5th Cir. 1972), cert. denied 409 U.S. 1040, 93 S.Ct. 525, 34 L.Ed.2d 490 (1973), a private canal constructed by Dow for the sole purpose of transporting By barge materials between two of its plants in Houston, Texas was navigable and admiralty law was applied.

Although the damage sustained was beneath the surface of the water it was 'damage caused by a vessel in navigation' on navigable waters and was within the intent of the Admiralty Extension Act, 46 U.S.C.A. § 740. A dredge barge is a 'vessel in navigation.' 2 Am.Jur.2d, § 33, note 12; 2 C.J.S. Admiralty § 28. Application of the substantive law of Admiralty is therefore required.

In determining the parties' negligence, the trial court found Gulf and Berry negligent in failing to check the public records for notice of the existence of a pipeline. Checking the records would have been a vain and useless act, because the only document of record relating to this pipeline was a map attached to Southern's application for a permit to build the main gas gathering line. The map did not show the location of the damaged line. It did not even show the canal. Tr. 212, 255. According to the evidence, there was nothing of record to show where Southern located its pipeline.

Since 1) Gulf and Berry did not examine the records and 2) their representatives knew of Southern's platform in the canal and that a pipeline ditch entered the canal at a point 395 feet from the platform, Southern's failure to place a description of record is only a nominal or minor fault. Admiralty law does not require a mechanical application of comparative negligence. Were this Southern's only fault it would have been properly excused from all fault.

Gulf and Berry contend Southern was negligent in laying the pipeline at or above feet mean sea level in the canal and also in failing to post warning signs that the pipeline was below the water.

The trial court erred in holding Southern's compliance with the Corps of Engineers permit requirements in laying its line pretermits all questions concerning Southern's negligence in laying and marking its line. Tr. 397. Negligence does not solely Depend on violation of a statute or rule. Jackson v. Jones, 224 La. 403, 69 So.2d 729 (1954); Traders & General Insurance Co. v. Robison, 289 So.2d 178 (La.App. 1 Cir. 1973). It follows that unreasonable conduct is not excused when one merely complies with minimum regulatory requirements. Admiralty has an applicable statutory expression of the same proposition in navigation rules. Observance of the rules will not excuse 'neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.' International Rules, Rule 29, 33 U.S.C.A. § 147a; Harbors, Rivers and Inland Waters, Art. 29, 33 U.S.C.A. § 221.

If the purpose of the regulation had been to prevent dredging accidents, compliance might constitute a Prima facie showing of due care. But no such purpose was shown.

More important, if compliance with the permit excuses plaintiff's unreasonable acts, defendants are also excused since this dredging was also conducted pursuant to a Corps of Engineers permit. Tr. 35.

We here consider the reasonableness or unreasonableness of Southern's failure to mark the location of this unusually located pipeline. Southern knew the pipeline extended into and under the waterway. Tr. 206. They should have expected the waterway to be maintained by dredging from time to time. Southern expected development of the area as acknowledged by Southern's supervisor's testimony they had not abandoned the pipeline during its five year period of non-use. Tr. 180, 192. And it was established the usual depth of such canals is -8.0 feet.

Southern's representative testified that warning signs should be installed along the pipeline route (Tr. 210) but none were placed on this line. Reference is made to a 'DANGER' sign on Southern's meter platform. Although the sign indicated the nature of the platform facility as a gas installation, it provided no warning of the nature or extent of underwater connections.

Finally, this pipeline had been damaged in a prior dredging accident. Tr. 242, 257. Under these circumstances, Southern's failure to remove the line or place adequate warning signs along the pipeline constitutes negligence on Southern's part.

Counsel for Southern correctly points out that minimum regulations (49 CFR 192) under the Gas Pipeline Safety Act (49 U.S.C.A. § 1671 et seq.) have not been extended beyond the populated areas which urgently require their protection. However, absence of regulation does not excuse unreasonable behavior any more than compliance with existing regulations might excuse such behavior. We therefore find Southern to have been substantially at fault.

Finally we consider the contention that Southern's negligence can be excused under the last clear chance doctrine, or the similar 'major-minor fault' doctrine found in admiralty.

In the context of collision cases, last clear chance applies where the injured party was so clearly visible he Must have been seen but for inattentiveness or failure to keep a proper lookout. This is not the case here. The pipeline was concealed beneath the water. There is evidence from which the existence of the line May be inferred and perhaps even its course under the water may have been determined. But where such inference is necessary to perceive the danger, it is not apparent in the sense required by the last clear chance doctrine. The cases cited by Southern are analyzed and distinguished on this same basis in Tiger Shipping Co. v. Tug Carville, 381 F.Supp. 1340 (E.D.Va.1974).

Furthermore, application of the doctrine would effectively penalize Gulf and Berry because their negligence was not Greater. Cf., Jackson v. Continental Casualty Co., 308 So.2d 438 (La.App. 3 Cir. 1975).

Finding the parties equally at fault, the trial court judgment is amended so that Southern will sustain half the loss. As amended the trial court judgment is affirmed. Costs at trial are assessed half to plaintiff and half to defendants. Costs of this appeal are taxed to plaintiff.

Affirmed in part; in part, reversed and rendered.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge (dissenting).

I do not agree that the canal involved in this case is a navigable waterway of the United States in the sense that it justifies the application of admiralty or maritime law.

The original grant of admiralty and maritime jurisdiction to the federal courts of the United States was made in Article 3, Section 2, of the United States Constitution, which provides:

'The judicial Power shall extend . . . to all Cases of admiralty and...