St. James Transp. Co., Inc. v. Porter

• Decision Date: 17 September 1992
• Docket Number: No. 01-90-01142-CV,No. 7,7,01-90-01142-CV
• Citation: 840 S.W.2d 658
• Parties: ST. JAMES TRANSPORTATION CO., INC. and Waterways Co.Ltd. Corp., Appellants, v. James PORTER, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 658

840 S.W.2d 658

ST. JAMES TRANSPORTATION CO., INC. and Waterways Co. No. 7 Ltd. Corp., Appellants, v. James PORTER, Appellee.

No. 01-90-01142-CV.

Court of Appeals of Texas Houston (1st Dist.).

Sept. 17, 1992.

Rehearing Denied Oct. 22, 1992.

Roger Townsend, William J. Boyce, Ronald J. Palmer, Houston, for appellants.

John Roberson, Robert E. Lapin, H. Graham, Hill, Parker, Franklin, Cardwell & Jones, Houston, for appellee.

Before JONES, SAM BASS and PRICE, ^* JJ.

OPINION

JONES, Justice.

This case presents the question of whether the trial court erred in directing a verdict against St. James Transportation Co. and Waterways Co. No. 7 Ltd. Corp., defendants in the trial court and appellants before this Court.

Nature of the Case

James Porter, appellee, sued appellants for negligence under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b) (1988) (LHWCA or the Act), general maritime law, and Texas common law. The suit stemmed from a May 8, 1986, accident in which Porter injured his left foot while loading crushed stone onto barges for his employer, Dravo Basic Materials Co., Inc. (Dravo). Dravo obtained the barges from St. James under a 1982 Barging Agreement; St. James chartered the barges from the owner, Waterways. Porter settled his claim against Dravo under the Act and received a lump sum payment. Dravo was dismissed as a primary defendant prior to the settlement. Following a jury trial, the court rendered judgment for Porter against St. James and Waterways, jointly and severally, for $1,047,887.75. The trial court granted a directed verdict against St. James and Waterways (collectively referred to as St. James) on their cross-claim for contribution against Dravo.

Points on Appeal

St. James contends that the trial court erred in granting a directed verdict to Dravo, because St. James introduced sufficient evidence to raise a question of fact regarding Dravo's status as owner pro hac vice of the barges at the time of Porter's injury and regarding Dravo's alleged breach of its contract with St. James. St. James also asserts that the trial court erred in overruling its motion for new trial or for judgment notwithstanding the verdict, because no evidence or factually insufficient evidence supports the jury's finding that St. James' negligence proximately caused Porter's accident. Appellants also argue that the trial court erred in refusing their tendered instructions regarding the scope of a stevedore's duty to its employee longshoreman, the scope of a vessel owner's duty to a longshoreman, a principal's lack of liability for the acts or omissions of an independent contractor, and the exemption of personal injury damage awards under the LHWCA from state or federal taxation.

Summary of Facts

Evidence adduced at trial showed that James Porter worked as a general laborer for Dravo performing stevedoring tasks at Dravo's Galena Park, Texas facility. Porter assisted in loading crushed stone onto barges in the Houston Ship Channel from a dockside conveyor belt. His tasks on the occasion in question included monitoring the level of the two barges as they were being loaded with material. This was a means of determining the amount of cargo on board. The activity required Porter to cross between the barges, which sometimes had a gap as wide as one foot between them.

At one point, while attempting to step from one barge to the other, Porter lost his footing on loose gravel that was on the deck of the barge onto which he was stepping and fell partly in between the two barges. The barges collided before Porter could pull himself out of the gap. His left leg was caught and crushed and eventually was amputated.

Longshoremen's and Harbor Workers' Compensation Act

Porter's injury occurred on a vessel in navigable waters. Porter's statutory cause of action against St. James arose out of the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b) (1988). Under the Savings to Suitors ¹ clause, federal maritime law governs whenever a maritime claim within the admiralty jurisdiction of the federal courts is filed in state court. See, e.g., Chelentis v. Luckenback S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918). Accordingly, state courts must apply maritime substantive law in maritime cases. See, e.g., Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408-09, 3 L.Ed.2d 550 (1959), overruled on other grounds in Moragne v. State Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).

The parties do not dispute that Porter was a longshoreman entitled to sue under the Act. His cause of action arose under section 905(b), which grants longshoremen the right to sue a "vessel" for its negligence. The term "vessel" is defined in section 902(21) as:

any vessel upon which or in connection with which any person entitled to benefits under this Act suffers injury or death arising out of or in the course of his employment, and said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member.

33 U.S.C. § 902(21) (1988) (emphasis added).

Section 905(b) provides immunity for employers who pay compensation benefits to their workers, as follows: "[T]he employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void." St. James attempted to circumvent this prohibition by asserting that Dravo, in addition to being Porter's employer, was also sufficiently in control of the barge to become the owner pro hac vice of the vessel. In this capacity, St. James contends that Dravo could be held liable for contribution, notwithstanding the employer immunity provisions in the Act. The trial court rejected St. James' claim, ruling that the standard for pro hac vice status is exclusive control. The trial court found St. James failed to present any evidence that Dravo exercised exclusive control over the barge. Pursuant to this ruling, the trial court granted Dravo's motion for directed verdict and declined to submit an issue about Dravo's alleged negligence to the jury.

The Directed Verdict

We apply the procedural law of Texas to review the trial court's grant of a directed verdict. See Mitchell v. Missouri-Kansas-Texas R.R. Co., 786 S.W.2d 659, 661-62 (Tex.1990), cert. denied, 498 U.S. 896, 111 S.Ct. 247, 112 L.Ed.2d 205 (1990). In reviewing the grant of a directed verdict by the trial court on an evidentiary basis, the reviewing court will determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). The court considers all of the evidence in a light most favorable to the party against whom the verdict was instructed and discarding all contrary evidence and inferences arising therefrom. Collora, 574 S.W.2d at 68; Graziadei v. D.D.R. Machine Co., 740 S.W.2d 52, 55-56 (Tex.App.--Dallas 1987, writ denied). Every reasonable meaning deducible from the evidence is to be indulged in the nonmovant's favor. Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex.1983). If there is any conflicting evidence of probative value on any theory of recovery, an instructed verdict is improper, and the issue most go to the jury. White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983); Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex.1982).

St. James maintains that Porter had a cause of action against Dravo as owner pro hac vice of the barge and that St. James, in turn, had a claim for contribution against Dravo. We first discuss St. James' assertion regarding pro hac vice ownership and examine, in the light most favorable to St. James, whether there was any probative evidence of the same offered at trial.

Pro Hac Vice Status

St. James contends that, for purposes of the LHWCA, an owner pro hac vice "is one who assumes by charter or otherwise 'exclusive possession, control, command and navigation' of the vessel for [a] specific period of time, has complete, though perhaps only temporary dominion over the vessel entrusted to him and commands her navigation and is entitled to avail himself fully of her services." Helaire v. Mobil Oil Co., 709 F.2d 1031, 1041 n. 15 (5th Cir.1983) (quoting Bernier v. Johns-Manville Sales Corp., 547 F.Supp. 389, 394 (D.Me.1982)). Dravo asserts that ownership pro hac vice is a narrow doctrine that has never been extended to mere bailees and has never rested on a theory of mere possession and cannot be extended to a stevedore, such as Dravo. Dravo notes that the record before this Court will yield no evidence that Dravo kept tugboats at its Galena Park facility or that Dravo was required to provide tugboats under its contract with St. James and Waterways. Dravo further contends that there is no evidence that it had either the right or the means to exercise navigational control over the St. James barges at the time of Porter's injury.

Evidence of who had exclusive control or had a right to exclusive control of the barge at the time of Porter's injury is central to our analysis. Testimony was offered to show that St. James provided the barges to Dravo pursuant to a barging agreement, in which St. James agreed to make barges available to Dravo on a per need basis. Dravo controlled loading operations on the two barges. When St. James employees were present, they took no part in supervising or assisting the loading. Dravo cared for the barges while they sat idle between loading operations. Dravo supplied the mooring lines and gangway, inspected the barges, and put warning lights on them.

When Dravo wanted to shift the position of the barges, Dravo called a towing company or used its own tug to do so. About one month before Porter's accident, a towing company hired by Dravo positioned barge WTT 8159 next to WTT 8157, the barges involved in the accident. St. James did not...