Trahan v. Gulf Crews, Inc.

• Citation: 246 So.2d 280
• Decision Date: 10 March 1971
• Docket Number: No. 3295,3295
• Parties: Mrs. Myrtle TRAHAN et al., Plaintiffs and Appellees, v. GULF CREWS, INC., et al., Defendants and Appellants.
• Court: Court of Appeal of Louisiana (US)

Page 280

246 So.2d 280

Mrs. Myrtle TRAHAN et al., Plaintiffs and Appellees, v. GULF CREWS, INC., et al., Defendants and Appellants.

No. 3295.

Court of Appeal of Louisiana, Third Circuit.

March 10, 1971.

Rehearings Denied April 22, 1971.

Hinds & Meyers, by John K. Meyers, Houston, Tex., Faris, Ellis, Cutrone, Gilmore, Lautenschlaeger, by Joy S. Miller, New Orleans, La., Hall, Raggio, Farrar & Barnett, by Edgar F. Barnett, Lake Charles, La., for defendants-appellants.

Jones & Jones, by J. B. Jones, Jr., Cameron, La., for plaintiffs-appellees.

Before FRUGE , CULPEPPER and MILLER, JJ.

CULPEPPER, Judge.

This is a suit under the Jones Act, 46 U.S.C.A. Section 688, for the wrongful death of a seaman. Plaintiffs are the surviving wife and children of Howard J. Trahan, Sr., who drowned during the course and scope of his employment by defendant, Gulf Crews, Inc. A jury, in a general verdict, awarded plaintiffs a total of $168,125. Defendants appealed.

The principal issues relate to the negligence of the defendant employer and the quantum of the awards.

The deceased, Mr. Trahan, was the master of the M/V Don, an 85-foot boat used to service offshore oil rigs. Other crew members were Cyril Darbonne, the engineer, and Wesley LeBouef, a deckhand. The boat was being used to fulfill a contract to service wells of Shell Oil Company about 60 miles offshore from Morgan City, Louisiana. The crew's duty was seven days and nights at sea, and seven days and nights on shore, off duty. During the day, they went from platform to platform to service the Shell Oil Company operations. At night they returned to Platform B to stand by. Platform B stood some 60 feet above the water with a boat landing deck about 10 feet above the water.

At approximately 6:00 p.m. on March 24, 1969, Captain Trahan and his crew secured the M/V Don to Platform B by two mooring lines and went to the living quarters on the platform where they ate dinner and watched television. During the time they were aboard Platform B, the weather gradually worsened. The wind reached gale force, with seas running 12 to 14 feet, and the M/V Don broke its mooring line and began to drift away. Captain Trahan was making his way down toward the boat landing, as he had done several times earlier that evening to check on the boat, when he saw that the mooring line had broken. He rushed to the platform landing. He took off his hat, coat and shoes and told LeBouef, his deckhand, to 'get a life ring'. Then Trahan jumped, either in an attempt to board the boat or to dive in the water and swim to the drifting boat. LeBouef, in the meantime, fumbled with the life ring, which was attached to the railing by means of a bracket at the level 10 feet above the water. Darbonne also went over to help LeBouef get it loose. Finally, LeBouef secured the life ring and, with it in his hand, ran to the railing edge. At that moment Trahan was in the water near or back of a piling approximately 25 feet away. Neither LeBouef nor Darbonne ever threw out the life line. Captain Trahan disappeared into the sea. He was last seen swimming toward the M/V Don. His body was never recovered.

At the outset, we recognize that LSA-La.Const. Art. VII, Sec. 29, which gives appellate courts of Louisiana the right to review both facts and law, is not applicable to cases tried under federal statutes such as the Jones Act. The scope of our appellate review in this case is the same as that of the Federal Courts, Ferdinandtsen v . Delta Marine Drilling Co., La.App., 235 So.2d 641 (4th Cir. 1970); Presley v. Upper Mississippi Towing Corp., 141 So.2d 411 (La.App.1st Cir. 1961). In Rogers v. Missouri Pacific Railway Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, the United States Supreme Court stated this scope of review as follows:

'It is no answer to say the jury's verdict involved speculation or conjecture * * * Only where there is a complete absence of probative facts to support the conclusion reached does a reversible error appear * * * the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.' (emphasis added). Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916.

Negligence under the Jones Act includes the owner's failure to provide reasonably safe equipment and a competent crew. It is plaintiff's position that Gulf Crews failed in one or both of these duties which resulted in the death of Captain Trahan. As to unsafe equipment, evidence was adduced by plaintiff to show that the lines in use on the M/V Don were of inadequate size and were in defective condition. Cyril Darbonne testified that one of the lines in use of the ship was a 1 1/2 line which had been spliced with a 2 line. He further testified that when the M/V Don was tied up on the evening in question that the lines were badly chafed in some places and that the other crew which manned the DON while Captain Trahan and his crew were on their days off had a habit of retying the mooring lines when they broke instead of splicing them.

Despite the fact that the M/V Don was recovered along with part of the broken mooring lines, the lines were never produced at trial. However, the president of Gulf Crews testified that Captain Trahan got everything he wanted from the company and if inadequate lines were being used, it was the fault of Captain Trahan and not of Gulf Crews, Inc.

Plaintiff's contention that the crew was incompetent is based on their failure to satisfy the duty or rescue. After Captain Trahan jumped, LeBouef, with assistance from Darbonne, removed the life ring from a bracket on the platform and moved to a position on the platform which was about 25 feet from where Captain Trahan was in the water. LeBouef testified that he did not throw the life ring at the time because he was left-handed and a large piling was between him and Captain Trahan and he could not throw the ring to Trahan. Whatever the excuse or reason for the failure to throw the life ring, one fact remains. No life ring was ever thrown.

Numerous cases have considered the duty of the crew to rescue a fellow seaman who, accidentally or through his own carelessness, finds himself overboard and in danger of drowning. In Macomber v. De Bardeleben Coal Co., 200 La. 633, 8 So.2d 624 (1942) a deck hand failed to throw a life preserver to a seaman who fell overboard. The court, in affirming a jury award under the Jones Act, said:

"The duty to rescue a seaman overboard is a duty of the ship and of the owner under the general maritime law of the sea.' The G. W. Glenn, supra, (4 F.Supp. 727, 729). See, also, United States v. Knowles, D.C., Fed.Cas.No. 15,540, 4 Sawy. 517. 'There is little doubt that rescue is a duty when a sailor falls into the sea.' Cortes v. Baltimore Insular Line, Inc., supra (Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368). 'Equally clear is the obligation upon the part of the ship to save the life of a sailor who falls overboard through a misadventure, not uncommon in his dangerous calling. * * * it is implied in the contract that the ship shall use every reasonable means to save the life of a human being who has no other source of help. The universal custom of the sea demands as much wherever human life is in danger. The seaman's contract of employment requires it as a matter of right .' Harris v. Pennsylvania Railroad Co., supra, (50 F.2d 866, 868). See, also, Salla v. Hellman, D.C., 7 F.2d 953.

'(2, 3) In the Harris case the United States Circuit Court of Appeal for the Fourth Circuit said: '* * * we have no doubt that a legal obligation rests upon a ship to use due diligence to save one of the crew, who, by his own neglect, falls into the sea; and that the owners are liable if, by failure to perform this duty, his life is lost.''

In Harris v. Pennsylvania, supra, a man on deck threw a six inch rope towards a fellow crew member who had fallen overboard. He failed to use a heaving line nearby and made no attempt to throw in a life ring although he was in close proximity thereto. The court concluded that this constituted evidence of neglect on the part of the crew and it would be for the jury to decide whether the man could have been saved if due diligence had been used.

The Third Circuit considered the rescue doctrine in Kirincich v. Standard Dredging Co., 112 F.2d 163 (1940) and held that where it appeared that a crewman fell overboard from a barge and deck hands threw heaving lines one inch in diameter in his direction, and one line came within two feet of the spot where he was struggling in the water, but life preservers were not thrown, the owner of the barge was liable for the death of the deck hand. In Kirincich, the court went so far as to quote from the seascout manual the following language to indicate how basic to seamanship is the proper rescue procedure when a man has fallen overboard. 'It is the duty of the man nearest the life bouy to instantly toss it overboard * * *' Kirincich, supra, p. 166.

In Tompkins v. Pilots Association, D.C., 32 F.Supp. 439 (1940) two life rings were thrown from the bridge to a man who had fallen into the water. It was night, and the search light was turned on the man in the water, and he was in full sight of those on board. Luminous life rings, intended for use at night, were also easily available on the ship. They were not used. The sailor drowned without ever making any attempt to reach the two ordinary life preservers which had been thrown. Failure to use the liminous life rings was held to constitute negligence on the part of the crew, and a failure in their duty to rescue the fellow crewman, and the employer was held liable for its failure to provide a competent crew.

Coast Guard recommendations on rescue state:

'Throw a ring buoy overboard as close to the person as possible.' (Tr. 108).

We conclude that LeBouef was...