Warner v. Fish Meal Co., 75-2650

• Citation: 548 F.2d 1193
• Decision Date: 18 March 1977
• Docket Number: No. 75-2650,75-2650
• Parties: John WARNER, Jr., Plaintiff-Appellee, v. FISH MEAL COMPANY, and/or Alewise, Inc., as owner of the M/V LaSALLE and the M/V LaSALLE, Defendants Third-Party Plaintiffs-Appellants, Southern Protein Co. et al., Third-Party Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1193

548 F.2d 1193

John WARNER, Jr., Plaintiff-Appellee, v. FISH MEAL COMPANY, and/or Alewise, Inc., as owner of the M/V

LaSALLE and the M/V LaSALLE, Defendants

Third-Party Plaintiffs-Appellants,

Southern Protein Co. et al., Third-Party Defendants-Appellants.

No. 75-2650.

United States Court of Appeals, Fifth Circuit.

March 18, 1977.

Wood Brown, III, New Orleans, La., for Southern Protein and others.

Wilson M. Montero, Jr., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before MORGAN and FAY, Circuit Judges, and HUNTER, District Judge. ^*

PER CURIAM:

John Warner was injured on February 21, 1972 while at work on a vessel afloat in navigable waters. He instituted this suit, contending that his injuries were caused by the unseaworthy condition of the vessel. The district court found for Warner and this appeal was taken. We affirm. ¹

The critical inquiry is whether the MV LaSALLE was "in navigation." If she was not, then her owner owed no warranty of seaworthiness to Warner. West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161; Roper v. United States, 368 U.S. 20, 82 S.Ct. 5, 7 L.Ed.2d 1. The test which we have restated and reiterated was initiated in West :

The focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done, rather than the specific type of work that each of the numerous shore-based workmen is doing on shipboard at the moment of injury. 361 U.S. at 122, 80 S.Ct. at 192.

This court, elaborating on West and subsequent case law in Waganer v. Sea-Land Service, Inc. (5th Cir. 1973), 486 F.2d 955, further refined the test:

(i) the ship in question must have been in navigational status, and not "dead", which in turn depends upon whether the contracted work is minor or major, and who has custody and control of the ship while the work is being done; and (ii) the pattern of repair must reflect work traditionally and ordinarily done by seamen, excluding persons performing such tasks as making major repairs requiring drydocking or special skills. Martinez v. Dixie Carriers, Inc. (5th Cir. 1976), 529 F.2d 457, at 469.

The MV LaSALLE was a Menhaden fishing boat. The fishing season is set by statute and runs from the third Monday in April to the second Tuesday in October of any given year. The vessel was afloat at the Southern Protein dock. The district judge concluded that the LaSALLE was idled, not because of the need of major repairs, but to undergo an annual maintenance and care schedule. The custody and control of the vessel was to all intents and purposes retained by the owner. ²

The engines and generators were aboard. It would have taken an "intensive" week to place the vessel back in a completely operative condition.

The amount of work being performed on the vessel was approximately $30,000. The value of the vessel was in excess of $1,000,000. The type of work being...