Walker v. Braus, Civ. A. No. 88-0917.

• Decision Date: 02 August 1994
• Docket Number: Civ. A. No. 88-0917.
• Citation: 861 F. Supp. 527
• Parties: Sharon Joyce WALKER, widow of Wade J. Trahan, on her own behalf and behalf of her minor children, Jason Dwayne Trahan and Josh Michael Trahan v. Armogene BRAUS and Terra Resources, Inc.
• Court: U.S. District Court — Eastern District of Louisiana

861 F. Supp. 527

Sharon Joyce WALKER, widow of Wade J. Trahan, on her own behalf and behalf of her minor children, Jason Dwayne Trahan and Josh Michael Trahan v. Armogene BRAUS and Terra Resources, Inc.

Civ. A. No. 88-0917.

United States District Court, E.D. Louisiana.

August 2, 1994.

David B. Allen and Herbert W. Barnes, Samanie, Barnes & Allen, Houma, LA, for Josh Michael Trahan and Jason Dwayne Trahan.

Maurice P. Mathieu and Jay James Luke, Mathieu & Dagate, Houma, LA, for Sharon Joyce Walker, widow of Wade J. Trahan, on her own behalf & on behalf of her minor children, Jason Wayne Trahan & Josh Michael Trahan.

Harold Menton Wheelahan, III, Harold M. Wheelahan, III, PLC and Louis John Cosenza, New Orleans, LA, for Ungar & Wheelahan intervenor-plaintiff.

Guy E. Wall and Scott A. O'Connor, Gordon, Arata, McCollam & Duplantis, New Orleans, LA, for Terra Resources, Inc. and Terra Industries, Inc.

Charles E. Bourg, II, Morgan City, LA, for Armogene Braus.

Maurice P. Mathieu and Jay James Luke, Mathieu & Dagate, Houma, LA, for State Farm Fire & Cas. Co.

ORDER

HEEBE, District Judge.

This cause came on for a hearing on a previous day on the motion of plaintiff, Sharon Joyce Walker, individually and on behalf of her minor children, Jason Dwayne Trahan and Josh Michael Trahan, to modify and/or amend the judgment entered on May 7, 1992, by assessing 20 percent of the fault of the accident which killed Wade J. Trahan, the plaintiff's husband, against defendant, Armogene Braus. Plaintiff has also been asked to show cause as to why the Court should not strike the damages awarded for past and future loss of society in light of the decision of the Fifth Circuit Court of Appeals in Walker v. Braus, 995 F.2d 77 (5th Cir.1993). Both parties have agreed to waive oral argument.

The Court has considered the legal memoranda submitted by the parties and is now fully advised in the premises and ready to rule. The Court finds that (1) Braus is 20 percent at fault for the death of Wade Trahan and (2) dependents of an operator of a fishing boat may not recover loss-of-society damages in a wrongful death action brought under general maritime law.

I. FACTS

On January 5, 1988, a fishing vessel owned and operated by Wade Trahan was travelling at an excessive rate of speed on the wrong side of Turtle Bayou. Trahan's boat collided head-on with a vessel owned and operated by defendant, Armogene Braus;¹ Trahan was killed instantly. The collision occurred in Terrebonne Parish, Louisiana, approximately 160 feet north of the intersection between Turtle Bayou and the United Gas Pipeline Canal. The accident occurred on a sharp bend in the waterway, where the Bayou is narrow. The bend creates a blind spot which makes it difficult to see approaching traffic on the other side of the bend. At the time of the accident, Trahan was neither a seaman nor a longshoreman.

Trahan's vessel was a bass fishing boat approximately sixteen feet long and was propelled by a seventy horsepower outboard motor. Trahan was the driver and sole occupant of the boat. The Braus vessel was a twenty-five foot aluminum crew boat. Armogene Braus captained the boat on the day of the accident. Aboard Braus' boat were four workers for Action Oilfield Services, Inc., a company with whom defendant, Terra Resources, Inc. ("Terra"), contracted to provide labor in Terra's oil fields. Terra did not own any vessels. Accordingly, in June 1987, Terra began to charter vessels from Braus. Harold DeLeon, an employee of Terra, orally chartered the Braus vessel from Braus Marine Rentals, a boat rental company owned by Braus. Braus operated his own boat when transporting workers and equipment.

At the time of the accident, the four workers were embarked on a job for Terra, and as a result, were the employees of Terra. Walker, 995 F.2d at 79. The four workers and Braus were riding in a rectangular cabin situated in the center of the boat, thereby reducing their capacity to see and hear oncoming vessels.

II. PROCEDURAL HISTORY

On March 4, 1988, plaintiff brought a general maritime action pursuant to Fed. R.Civ.P. 9(h) against defendants, Armogene Braus and Terra Resources, Inc., to recover damages for the wrongful death of Wade Trahan.²

This Court bifurcated the trial on the issues of liability and damages. As to liability, the Court concluded the following: (1) Trahan was 70 percent contributorily negligent for piloting his craft at an excessive speed on an unsafe course: (2) Trahan was 10 percent contributorily negligent for failing to maintain an adequate lookout; (3) the Braus vessel was 10 percent at fault for failure to maintain an adequate lookout; and (4) the Braus vessel was 10 percent at fault for failing to sound its horn when approaching the blind corner.

On April 8, 1991, the Court entered findings of fact and conclusions of law assessing 80 percent of the fault against Trahan and 20 percent against Terra. The Court assessed the vessel's 20 percent fault against Terra on the ground that the dealings between Terra and Braus were consistent with a demise charter. Under a demise or bareboat charter, the owner relinquishes total control and full possession to the charterer. Walker, 995 F.2d at 81. A demise charter requires complete transfer of possession, command, and navigation of the vessel from the owner to the charterer. Agrico Chemical Co. v. M/V Ben W. Martin, 664 F.2d 85, 91 (5th Cir.1981), citing Gaspard v. Diamond D. Drilling Co., 593 F.2d 605, 606 (5th Cir. 1979). The vessel is transferred to the charterer without crew, fuel, or supplies. Because the charterer's personnel operate and man the vessel while the charter is in existence, the charterer is responsible for the negligence of the vessel or its crew. Walker, 995 F.2d at 81. The conclusion of this Court that the arrangement between Terra and Braus amounted to a demise charter compelled the conclusion that Terra, as demise charterer, be charged with the fault of the Braus vessel.

On the issue of damages, this Court awarded $160,000 for loss of society, $87,831.19 for loss of support from the date of the accident until trial, $271,612.56 for future loss of support, and $5,270 for funeral expenses, all of which were reduced by 80 percent, the percentage of fault attributed to Wade Trahan. On May 7, 1992, this Court entered judgment for the plaintiffs in the amount of $104,942.75.

Plaintiff and Terra appealed the judgment to the Fifth Circuit Court of Appeals. Braus did not appeal. On July 14, 1993, the Fifth Circuit reversed this Court's finding that Terra was a demise charterer of the Braus vessel. The Fifth Circuit stated that the factors relied upon by this Court were legally insufficient to create a bareboat charter. Walker, 995 F.2d at 82. The appellate court stated that "the law is well settled in this Circuit that the type of arrangement Terra had with Braus was for a ferry or taxi service, or a time charter; and, therefore, not a bareboat charter." Id. at 81. The circuit court reversed the judgment of this Court imposing liability on Terra and remanded for "further proceedings as may be appropriate." Id. at 82.

The Fifth Circuit also asked this Court to take a second look at the award for loss of society. The Court stated:

Since the issue of consortium damages may well come up again in the further proceedings, we suggest to the trial court that recent case law developments indicate that the trend is to eliminate consortium damages across the board in maritime cases.

* * * * * *

The Supreme Court has clearly indicated its desire to achieve uniformity of damage recoveries in the exercise of admiralty jurisdiction. Allowing Trahan to recover loss of consortium damages would directly contradict the policy of uniformity emphasized and relied on by the Court in Miles; and without expressly so deciding at this time, we acknowledge the strength of the argument that damages for loss of society may no longer be permitted in a general maritime wrongful death action involving the operator of a fishing boat.

Walker, 995 F.2d at 80, 82 (emphasis added).

On December 10, 1993, plaintiff moved to modify and/or amend this Court's judgment to reflect that Braus was 20 percent at fault for the collision. Because this Court originally held that the arrangement between Braus and Terra was a demise charter, this Court concluded that Terra was 20 percent at fault for the death of Trahan. As a result, the Court did not have to address the extent of Braus' liability for Trahan's death. The Fifth Circuit's subsequent reversal of this finding and the dismissal of Terra from the case prompted the filing of plaintiff's motion to include Braus in the judgment and to assess against him the 20 percent fault originally assessed against Terra. On January 31, 1994, Braus filed an opposition to the motion to modify and/or amend the judgment and suggested that the Court reconsider its findings that the Braus vessel was 10 percent negligent for failing to maintain a proper lookout and 10 percent negligent for failing to sound a signal as it approached a blind bend.

In addition, pursuant to the instructions of the Fifth Circuit, this Court asked the plaintiff to show cause as to why the award for loss of society should survive after Walker. The plaintiff subsequently submitted a supplemental memorandum and argued that dependents of persons killed in state territorial waters may recover loss-of-society damages in a maritime wrongful death action.

Both the motion to amend and/or modify the judgment and the plaintiff's response to the rule to show cause are presently before this Court.

III. THE MOTION TO MODIFY AND/OR AMEND THE JUDGMENT

This Court found that the Braus vessel was a total of 20 percent negligent for violating two sections of the Inland Navigational Rules, section 2009(f) and section 2005. 33 U.S.C. §§ 2005, 2009(f). The Braus vessel was found 10 percent negligent for failing to maintain a proper lookout in violation...