Tullis v. Fidelity and Casualty Company of New York

• Decision Date: 01 July 1968
• Docket Number: No. 25455.,25455.
• Citation: 397 F.2d 22
• Parties: James C. TULLIS, Appellant, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

397 F.2d 22 (1968)

James C. TULLIS, Appellant, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK et al., Appellees.

No. 25455.

United States Court of Appeals Fifth Circuit.

July 1, 1968.

Philip E. Henderson, of O'Neal, Waitz & Henderson, Houma, La., for appellant.

Maurice J. Wilson, of Breazeale, Sachse & Wilson, Baton Rouge, La., for appellees.

Before TUTTLE and DYER, Circuit Judges, and MEHRTENS, District Judge.

MEHRTENS, District Judge:

This appeal is from an order granting defendants motion to dismiss for lack of jurisdiction, and judgment thereon.

The sole question is the sufficiency of the complaint.

Plaintiff alleged in his complaint and asserted in the pre-trial stipulation that: On February 23, 1964 he was a fishing tool supervisor employed by Houston Oilfield Material Company and as such made a trip to and from the Wheless Drilling rig No. 8 located in navigable waters on a crew boat "The Danny Boy" which at the time was "working for and as an agent of defendant Wheless Drilling Company." Having performed his job he was brought back by the crew boat to the dock Wheless had directed plaintiff to use. While debarking the accident occurred. The "dock" extended seaward from a single row of pilings, behind which was a washed out area. To debark from the crew boat plaintiff had to step from its stern, which was backed up to the pilings, onto a thin single plank lying with one end on a piling and the other end on shore spanning the washed out area between the pilings and the shore. There were no handrails or grabrails. As a proximate result "of the unsafe condition of the means of egress from the crew boat" plaintiff, while debarking, fell into the washed out area between the piling and the bank and was injured.

The trial court agreed with defendants' argument that the piling and plank constituted an "extension of land" and that the resultant injury was therefore not cognizable in admiralty. Since the diversity action was prescribed by the Louisiana Statute, the complaint was dismissed.

Although plaintiff at the time of the accident may or may not have been a crew member under the rule in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 65 S.Ct. 872, 90 L.Ed. 1099 (1946), he at least had the status of a passenger receiving maritime transportation from Wheless Drilling Company. Spencer Kellogg & Sons, Inc. v. Hicks, 285 U.S. 502, 52 S.Ct. 450, 76 L.Ed. 903 (1932); Fidelity & Casualty Co. of New York v. C/B Mr. Kim, 345 F.2d 45 (C.A. 5, 1965). The principles involving liability to passengers differ little from those in use ashore. The liability basis is negligence with the only apparent exception being the unconditional responsibility of the carrier for the misconduct of the crew toward the passengers. The "negligence", of course, may consist of the failure to provide or maintain a reasonably safe means for a passenger to debark. The failure to provide a reasonably safe means of debarking, with consequent injury to the passenger, is a tort within admiralty jurisdiction. See Kermarec v. Compagnie Generale Trans-Atlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Marshall v. Westfal-Larsen & Co., 259 F.2d 575 (C. A. 9, 1958); Lampka v. Wilson Line of Washington, Inc., 117 U.S.App.D.C. 55, 325 F.2d 628 (1963). In this case the alleged breach of duty...