Thibodeaux v. Texas Eastern Transmission Corp.
| Decision Date | 11 March 1977 |
| Docket Number | No. 75-1960,75-1960 |
| Citation | 548 F.2d 581 |
| Parties | Henry F. THIBODEAUX, Plaintiff, v. TEXAS EASTERN TRANSMISSION CORPORATION et al., Defendants-Appellants, v. J. RAY McDERMOTT & COMPANY et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Boris F. Navratil, Baton Rouge, La., for defendants-appellants.
John G. Torian, II, Lafayette, La., for McDermott.
Appeal from the United States District Court for the Western District of Louisiana.
Before AINSWORTH and CLARK, Circuit Judges, and HUGHES *, District Judge.
This is a contest between two corporate parties for indemnity growing out of the payment in settlement of the claim for personal injuries of an employee of one of the parties.
Texas Eastern Transmission Corporation (Texas Eastern) entered into a contract with J. Ray McDermott & Company, Inc. (McDermott) on September 9, 1970, under which McDermott agreed to construct approximately 11.18 miles of pipeline for Texas Eastern in the Gulf of Mexico. Texas Eastern reserved the right in the agreement to inspect McDermott's work. 1 McDermott expressly agreed "to do the work in a workmanlike manner with men skilled in the work assigned to them in strict accordance with the Contract Documents."
On October 13, 1970, while the work was in progress, Henry Thibodeaux, a welding inspector for Texas Eastern, was seriously injured when he tripped and fell over welding hoses aboard the McDermott Lay Barge No. 23. The hoses were attached to acetylene and oxygen bottles. Torches at the end of the hoses were used to ignite a "dope pot" (a container holding a protective asphalt substance used on pipe). At the time of the accident the hoses were not in use but nevertheless had been allowed to remain in the passageway between the dope station and the x-ray station (used in making pictures of the pipe welds). Both the hoses and dope pot were McDermott's equipment and were used by McDermott's crew.
Thibodeaux sued the barge owner, McDermott, alleging that his injury was due to negligence and unseaworthiness, and also sued his employer, Texas Eastern, alleging negligence under the Jones Act (46 U.S.C. § 688). Texas Eastern and McDermott then filed cross-claims against each other for indemnity. The matter proceeded to trial before a jury. At the end of the second trial day, McDermott settled the claims of Thibodeaux against it for the sum of $100,000. 2 Texas Eastern declined to enter into the settlement but approved the sum as reasonable. The indemnity claims between Texas Eastern and McDermott were then submitted to the trial court for decision.
The trial judge 3 found that Thibodeaux was entitled to seaman's status and to the warranty of seaworthiness; 4 that the inspection services of Texas Eastern were for the ship's benefit; that McDermott was entitled to the performance of these services in a workmanlike manner under Ryan ; 5 that the negligence of Thibodeaux in failing to watch where he was walking and in failing to see the hoses was the proximate cause of his injury; and that the warranty of workmanlike performance (WWLP) was breached by Thibodeaux's own act. The trial judge further found that language in the contract between McDermott and Texas Eastern purporting to exonerate Texas Eastern for its own negligence to its employees was ambiguous and therefore must be construed against Texas Eastern, the party which had prepared the instrument. As a result of these findings, the trial court entered judgment dismissing the cross-claim of Texas Eastern, granting the cross-claim of McDermott for the $100,000 paid by it in settlement to Thibodeaux, and also assessing the costs of defense in the sum of $9,290.50 against Texas Eastern. Texas Eastern appeals from the adverse judgment.
The District Court granted McDermott's claim solely on the theory of indemnity derived from Ryan Stevedoring Company v. Pan-Atlantic Steamship Corporation, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), in which a shipowner liable to an injured longshoreman under the nondelegable duty of providing a seaworthy ship, was permitted to recover from the stevedore employer which had breached its WWLP. In Ryan the Supreme Court emphasized that the obligation of the contractor to perform the work properly and safely was of the essence of the "stevedoring contract." 350 U.S. 124, 133, 76 S.Ct. 232, 237, 100 L.Ed. 133. Although we have extended the doctrine to non-stevedore maritime contractors in limited circumstances, 6 the reach of that doctrine has never encompassed a situation where no warranty, express or implied, has been given by the alleged indemnitor. That is the situation here. It is implicit in the "warranty of workmanlike performance" that the warrantor is performing some type of duty for the benefit of the party to whom the warranty is made. There must, of course, be a warranty in order to have a breach thereof. Texas Eastern was engaged in no type of service for McDermott and made no warranty to its contractor. To the contrary, it was McDermott which, according to the contract and the evidence, was performing a service for Texas Eastern, i. e., construction of a pipeline. It was McDermott, not Texas Eastern, which under the express provisions of the contract warranted that it would "perform the work in a workmanlike manner." There is nothing in the contract or the evidence to show, or from which we might infer, that Texas Eastern owed any duty to McDermott. It had a right under the contract, but no obligation, to inspect. 7 We have consistently refrained from extending the Ryan -type indemnity "beyond those controversies involving the 'special rules governing the obligations and liability of shipowners' 8 which necessitated its formulation and justify its application." See In re Dearborn Marine Service, Inc., 5 Cir., 1974, 499 F.2d 263, 287. See also Delta Engineering Corporation v. Scott, 5 Cir., 1963, 322 F.2d 11; Ocean Drilling & Exp. Co. v. Berry Bros. Oilfield Service, 5 Cir., 1967, 377 F.2d 511. The application of the doctrine to the facts of the present case is clearly improper. Having found that Texas Eastern owed no warranty, it is unnecessary to consider the contention of McDermott that the negligence of Thibodeaux should be imputed to his employer, Texas Eastern, in determining whether the WWLP was breached. 9 The District Court erred, therefore, as a matter of law in concluding that Texas Eastern owed a warranty of workmanlike performance to McDermott.
The active-passive tort theory of indemnity, whereby an actively negligent tort-feasor is required to indemnify a passively negligent tort-feasor, 10 is unavailable to McDermott as there was no evidence or finding of negligence on the part of Texas Eastern. The tanks and hoses responsible for Thibodeaux's fall were owned by McDermott. Neither the contract nor the evidence shows that Texas Eastern's inspectors had anything to do with the equipment. McDermott does not even so contend. Moreover the District Court's finding of no negligence by McDermott was, according to the standards used on appellate review, clearly erroneous. "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774, 776. See also United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed.20 (1954). After thoroughly reviewing the record we are left with such a conviction.
When the jury trial was adjourned because of the settlement, three witnesses, including Thibodeaux, had testified. Their testimony established that it was the McDermott crew which had allowed the hoses to remain across the passageway between the x-ray station and dope station; that there was available an accessible spool in the area on which the hoses could have been placed; that the purpose of the hoses was to ignite the dope pot but which was not being ignited, nor had been, for some time prior to the accident; that the artificial lighting in the passageway was poor and that the injury occurred at approximately daybreak on a cloudy, overcast morning. 11 Under these circumstances we hold that the district judge was clearly erroneous in failing to find McDermott actively negligent in proximately causing the accident. McDermott not only created the foreseeable hazard but had an opportunity to correct it, which it failed to do.
The same facts which support our decision that McDermott was actively negligent are the basis for our further holding that McDermott breached its WWLP to Texas Eastern. The warranty owed by McDermott was not the implied Ryan -type WWLP due by a stevedoring company to a shipowner, but an express agreement contained in Paragraph .051 of the contract which provides that
Contractor shall do the work in a workmanlike manner with men skilled in the work assigned to them in strict accordance with the Contract Documents.
The language of the contract in this respect is clear and unequivocal. It is equally apparent that the manner in which McDermott allowed the dimly lighted passageway between the x-ray and dope stations to remain cluttered with the acetylene and oxygen hoses while not in use constituted a breach of its warranty. The finding that Thibodeaux was solely responsible for the accident by failing to observe is clearly erroneous.
There is no other reasonable basis for liability of Texas Eastern which would justify recovery over by McDermott. Thibodeaux's Jones Act suit against Texas Eastern would impose no liability inasmuch as there was not even the slightest evidence of employer negligence. 12
To continue reading
Request your trial
-
Todd Shipyards Corp. v. Turbine Serv., Inc.
...taken Todd to complete the repairs necessary to restore the LP turbine), and costs and attorney's fees. Thibodeaux v. Texas Eastern Transmission Corp., 548 F.2d 581, 587 (5th Cir. 1977); 5 Corbin on Contracts § 1037 This conclusion is founded upon several general principles of damage law. T......
-
Hillier v. Southern Towing Co.
...from escaping. As that is unlikely, this seems a case for contribution rather than indemnity, cf. Thibodeaux v. Texas Eastern Transmission Corp., 548 F.2d 581, 585-86 (5th Cir.1977); Wedlock v. Gulf Mississippi Marine Corp., supra, 554 F.2d at 243-44; Adams v. Texaco, Inc., supra, 640 F.2d ......
-
Avondale Shipyards, Inc. v. Vessel Thomas E. Cuffe, 74-93.
...322 F.2d 11; Ocean Drilling & Exp. Co. v. Berry Bros. Oilfield Service, 5 Cir., 1967, 377 F.2d 511." Thibodeaux v. Texas Eastern Transmission Corp., 5th Cir., 1977, 548 F.2d 581, 585. See also Loffland Brothers v. Roberts, 5th Cir., 1967, 386 F.2d 540, 549 ("We are ... extremely hesitant to......
-
Hercules, Inc. v. Stevens Shipping Co., Inc.
...& Co., 651 F.2d 1096, 1100 (5th Cir.1981) (dispute between vessel and stevedore over damaged cargo). See Thibodeaux v. Texas Eastern Transmission Corp., 548 F.2d 581, 585 (5th Cir.1977).See Note, Towage Accidents and the Implied Warranty of Workmanlike Service: A new Strict Liability?, 10 G......