Verdin v. C & B Boat Co., Inc.

• Citation: 860 F.2d 150
• Decision Date: 31 October 1988
• Docket Number: No. 87-3038,87-3038
• Parties: Arceline M. VERDIN, individually as wife of/and as administratrix of the Succession of Albert Gail Verdin, Jr., Plaintiff-Appellee, v. C & B BOAT CO., INC., Defendant-Appellee. FEDERAL BARGE LINES, INC., Defendant-Third Party Plaintiff-Appellant, v. MISSION INS. CO., Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 150

860 F.2d 150

Arceline M. VERDIN, individually as wife of/and as

administratrix of the Succession of Albert Gail

Verdin, Jr., Plaintiff-Appellee, v. C & B BOAT CO., INC., Defendant-Appellee.

FEDERAL BARGE LINES, INC., Defendant-Third Party Plaintiff-Appellant, v. MISSION INS. CO., Third Party Defendant-Appellee.

No. 87-3038.

United States Court of Appeals Fifth Circuit.

Oct. 31, 1988.

As Amended Nov. 15, 1988.

Rehearing and Rehearing En Banc Denied Nov. 30, 1988.

James F. Shuey, LeMele, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, La., for defendant-third party plaintiff-appellant.

Joseph J. Weigand, Jr., Weigand, Weigand & Meyer, Houma, La., for Arceline M. Verdin.

Andre J. Mouledoux, Alan G. Brackett, New Orleans, La., for C & B Boat Co., and Mission Ins Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, KING and SMITH, Circuit Judges.

KING, Circuit Judge:

This appeal is from a verdict in the district court after a bench trial with an advisory jury awarding the plaintiff/appellee Arceline M. Verdin $346,950.00 from defendant/appellant Federal Barge Lines. The appellant argues 1) that the district court's fact-findings are clearly erroneous, 2) that in finding its vessel unseaworthy, the district court applied the wrong standard of care, 3) that it should be indemnified for any liability by defendant/appellee C & B Boat Co., Inc., 4) that it is entitled to limit its liability to the value of its ship, and 5) that the damages awarded the plaintiff are excessive.

I. Factual Background

Albert Verdin, Jr. ("Verdin") died on April 1, 1984 as a result of the injuries he sustained when he fell into the cargo hopper of the Barge T-13022-B ("the barge") owned by Federal Barge Lines, Inc. ("FBL"). C & B Boat Company ("C & B") owns the M/V Mr. Earl, a towing vessel on which Verdin worked for C & B as captain. At the time of the injuries, Verdin was working in his capacity as captain of the Mr. Earl.

In the very early hours of March 27, 1984, Curtis Billiot, the mate aboard the Mr. Earl, received directions from a radio dispatcher to close the hatch covers on the barge to protect its cargo from the rain. Billiot went below and woke Verdin and Walter Folse, the ship's other crew member, to perform that operation. Verdin went aboard the barge with Folse, leaving Billiot at the wheel of the Mr. Earl. Billiot did not have a Coast Guard license to operate the vessel, nor had he any experience at the wheel in the maneuver involved in closing the barge's hatch covers.

The hatch covers on the barge weigh in excess of two tons and are set on tracks along which they roll open and closed. The barge has eight separate covers, four "high" and four "low". When the covers are open, the low covers are slid underneath the high covers. Adjacent high and low covers can never be completely separated from one another; a lip of metal on each end of the cover causes them to pull one another in telescope fashion. The covers are, of course, opened for loading and unloading the barge, and they must be closed to protect the cargo and/or the interior of the barge itself from rain.

To close the covers, the crew of the Mr. Earl had to pull its vessel alongside the barge, run a cable from the Mr. Earl, attach it to the cover, and then use the power of the boat to drag the cover along the rail. On this particular night, the crew successfully closed the covers on one end of the barge, but during efforts to close the covers on the other end, Verdin lost his balance and fell twelve to fifteen feet into the hopper of the barge. Verdin had been standing on top of one of the low hatch covers trying to lock it into place so that it would remain stationary when the adjacent cover was moved. The pulling cable from the Mr. Earl was attached to the adjacent high cover at the time, and Billiot, still at the wheel of the Mr. Earl and mistakenly thinking all was clear, opened the throttle. The force caused not only the high cover to which the cable was attached, but also the adjacent low cover on which Verdin was standing, to move. The motion caused Verdin to fall.

The factual dispute in this case centers around whether the barge had adequate safety devices to lock an individual hatch cover into place so that it would not move inadvertently when the other covers around it were being moved. At the core is whether the barge's lack of securing devices was a legal cause of Verdin's accident.

II. Procedural History

Arceline Verdin ("plaintiff") filed suit on behalf of herself, her minor daughter and the succession of Albert Verdin, Jr. for the death of her husband, Albert Verdin, Jr. She named as defendants C & B and FBL. The claims against C & B were under both the Jones Act, 46 U.S.C.App. Sec. 688, and under general maritime law. The claims against FBL were brought under general maritime law for negligence and the unseaworthiness of the barge. Both C & B and FBL cross-claimed against the other seeking indemnity, the former alleging a breach of the duty to provide a seaworthy vessel, the latter alleging a breach of the warranty of workmanlike performance.

After the first day of a jury trial, the plaintiff settled her claims against C & B, in a "Mary Carter" agreement. ¹ Because the Jones Act claim against C & B was the only claim in the suit permitting a jury determination, the court had the option of either retaining the jury in an advisory capacity or dismissing it. ² The parties agreed to retain the impaneled jury in an advisory capacity under Federal Rule of Civil Procedure 39(c) and continued with the trial. After four days of testimony from the two eyewitnesses to the accident and numerous expert witnesses, the advisory jury deliberated and returned its verdict finding Verdin, C & B and FBL negligent, finding both the Mr. Earl and the barge to be unseaworthy, but finding FBL's negligence and the unseaworthiness of its barge not to be legal causes of Verdin's injury. ³ The court in its findings adopted the findings of the advisory jury, except it found FBL's negligence and the unseaworthiness of the barge to be legal causes of Verdin's death.

The advisory jury also found that the total amount the plaintiff should recover was $1,156,500.00. The district court agreed with this amount and also agreed with the jury's apportionment of fault: C & B 60 percent, FBL 30 percent, and Verdin 10 percent. The court held FBL liable to the plaintiff for 30 percent of the total award, or $346,950.00, plus prejudgment interest. FBL appeals this result arguing five main points: 1) the factual findings of the district court were clearly erroneous; 2) FBL did not owe a duty of seaworthiness to Verdin because at the time of his injury he was engaged in stevedoring work; 3) FBL is entitled to Ryan indemnity from C & B; 4) FBL's liability is limited to the value of the Barge T-13022-B at the time of the accident; and (5) the amount awarded to the plaintiff is excessive, and prejudgment interest is not available for an award of future damages.

III. Was the District Court Clearly Erroneous?

FBL argues that the findings that it was negligent, that its vessel was unseaworthy, and that this negligence and unseaworthiness were legal causes of the Verdin's death are clearly erroneous. It argues most strenuously the causation issue, and it points out that even the advisory jury failed to find that either FBL's negligence or the unseaworthiness of its vessel were legal causes of Verdin's death.

First, we note that the clearly erroneous standard is the appropriate standard of review for these fact findings. Inland Oil and Transport Co. v. Ark-White Towing, 696 F.2d 321, 325 (5th Cir.1983) (finding of negligence and apportionment of fault in maritime personal injury case reviewed on a clearly erroneous standard); Todd Shipyards v. Turbine Service, Inc., 674 F.2d 401, 405 (5th Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 448, 74 L.Ed.2d 602, 603 (1982) (findings of the existence of negligence and proximate causation in an admiralty case are subject to the clearly erroneous standard). Further, an advisory jury's findings are in no way binding on the court, and the fact that the district court's ultimate findings are not entirely consistent with those of the advisory jury gives no added weight to FBL's contention of clear error. Frostie v. Dr. Pepper Co., 361 F.2d 124, 126 (5th Cir.1966).

In much-quoted language, the Supreme Court gave content to the clearly erroneous standard of Federal Rule of Civil Procedure 52(a) in Anderson v. Bessemer City: "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that it had been sitting as the trier of fact, it would have weighed the evidence differently." 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). FBL disputes the district court's factual findings by pointing to testimony contrary to each of the adverse findings. We must, however, follow the dictate of Anderson and look to the record as a whole. While all of the evidence presented at trial does not support the conclusions reached by the court below, none of its conclusions is unsupported by the evidence. We refuse to hold, after a thorough review of the record, that the district court's account of the evidence is implausible.

The district court reached its factual conclusions and discharged the difficult task of assigning fault in this case after four days of testimony which often conflicted. It found as uncontested that the barge was not equipped with cover-securing devices--called safety chains--in working order, that the Mr. Earl's pulling cable was not attached to the hatch cover on which Verdin was standing at the time of his fall, and that there had been no reason to expect the cover on which Verdin stood to move. It found further that the lack of a securing...