Wedlock v. Gulf Mississippi Marine Corp., 76-3943

• Citation: 554 F.2d 240
• Decision Date: 20 June 1977
• Docket Number: No. 76-3943,76-3943
• Parties: Hubert J. WEDLOCK, Plaintiff, v. GULF MISSISSIPPI MARINE CORP., Defendant. J. RAY McDERMOTT & CO., INC., Defendant-Appellee, v. DeFELICE MARINE CONTRACTORS, INC., et al., Defendants-Appellants. Summary Calendar. *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 240

554 F.2d 240

Hubert J. WEDLOCK, Plaintiff, v. GULF MISSISSIPPI MARINE CORP., Defendant.

J. RAY McDERMOTT & CO., INC., Defendant-Appellee, v. DeFELICE MARINE CONTRACTORS, INC., et al., Defendants-Appellants.

No. 76-3943

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

June 20, 1977.

Edgar F. Barnett, Lake Charles, La., for DeFelice Marine Contractors.

Joy S. Miller, New Orleans, La., for Lloyds.

John G. Torian, II, Lafayette, La., for J. Ray McDermott & Co.

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

Before GOLDBERG, CLARK and FAY, Circuit Judges.

GOLDBERG, Circuit Judge:

The original plaintiff in this seagoing affair, Hubert Wedlock, has long since gone down the hatch that appellee failed to cover. This case presents the question whether the appellee must now cover a portion of the settlement and defense costs borne out of Wedlock's suit for damages.

The appellant, DeFelice Marine Contractors, Inc., employed Wedlock as a deckhand on its tug, the M/V Miriam M. DeFelice. The appellee, J. Ray McDermott & Co., chartered the tug and crew to tow its barge, the Oceana 91. One evening the captain of the tug ordered Wedlock onto the barge to free a tow line. Wedlock was injured when a spotlight beam from the tug blinded him and he fell into an open hatch on the deck of the barge.

Wedlock sued DeFelice and McDermott as joint tortfeasors but settled prior to trial. DeFelice and McDermott contributed equal amounts to the settlement fund and defense costs, then submitted to the court by stipulation McDermott's cross-claim against DeFelice and its insurers for indemnity.

The district court found, and neither party now disputes, that the proximate causes of Wedlock's accident were (1) McDermott's negligently delivering a barge with an open hatch cover, and (2) DeFelice's crew's negligently shining a spotlight in Wedlock's eyes. ¹ The court also held, and neither party disputes, that McDermott could not recover against DeFelice under either an implied indemnity theory or under the express indemnity provision in a charter agreement between the parties. ² The court nevertheless held that McDermott was entitled to indemnity from DeFelice's insurers by virtue of its designation as an "additional assured" in DeFelice's insurance policy covering the tug. We reverse.

The precise question is whether DeFelice's standard Protection and Indemnity (P&I) policy on the tug covered a liability of the charterer that arose from its negligent acts with respect to the charterer's own vessel. That McDermott was an "additional assured" under DeFelice's policy covering the tug is undisputed. ³ There is no question that McDermott was protected from liability arising from the operation of the tug to the same extent as DeFelice. The question here is, rather, to what extent DeFelice's policy covered McDermott's liability with respect to the barge.

The limits of McDermott's coverage as additional assured are prescribed in DeFelice's insurance policy in the same clause guaranteeing that protection:

It is understood and agreed that as respects all vessels covered hereunder, J. Ray McDermott & Co., Inc. is named as an additional assured.

In short, DeFelice's policy covers McDermott's liability only "as respects" the "covered" vessel here, the Miriam M. DeFelice. The Oceana 91 was not listed as a "covered vessel" under that policy. That is, the insurance policy does not purport to cover McDermott's liability for acts of negligence committed qua barge-owner, rather than qua charterer.

The district court's contrary decision appears to be predicated on the notion that because the tug's crew was more directly and actively responsible for the accident, DeFelice and its insurers should bear the entire cost of settlement and McDermott should be wholly indemnified. The lower court reasoned that the parties did not intend for the barge to be manned during its towing. Appellee adds that McDermott's leaving open the hatch cover was mere "passive" negligence.

The notion that McDermott was passively negligent and DeFelice's insurers should therefore fully cover the liability arising from McDermott's negligence is mistaken, we think, in two respects. First, insofar as the passive-active negligence distinction may affect indemnification between joint tortfeasors, that doctrine is foreclosed here. The district court held, and neither party disputes, that McDermott could not recover against DeFelice on either an implied or an express indemnity theory. In short, McDermott's sole hope for reimbursement of its contribution was based on the notion that DeFelice's insurance policy covered its liability. This distinguishes the case at bar from one in which a passively negligent joint tortfeasor may recover against the actively negligent tortfeasor. See Kelloch v. S & H Subwater Salvage, Inc., 473 F.2d 767 (5th Cir. 1973); Constance v. Johnston Drilling Co., 422 F.2d 369 (5th Cir. 1970); Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Co., 410 F.2d 178 (5th Cir. 1969). Were the passively negligent barge-owner indemnified against its liability by the actively negligent tug-owner, one might say that all liability for the accident had arisen with respect to the tug and, hence, the tug-owner's insurance company would be obligated to pay. Here, however, the unchallenged conclusion of the district court is that the ostensibly passively negligent barge-owner cannot recover against the tug-owner in the first instance because the indemnity provision does not cover the barge owner's negligence. See note 2, supra.

Second, however, it makes little sense to say that McDermott was merely passively negligent. The district court does not expressly so find, although its decision appears based on some such notion. Leaving open a hatch on the barge does not constitute mere technical, vicarious, or passive negligence as those terms have been used. Indeed, the classic case of passive negligence occurs only when one joint tortfeasor creates a danger that the other (passive) tortfeasor merely fails to discover or to remedy. See W. Prosser, Handbook of the Law of Torts § 51 (4th ed. 1971). For example, in Kelloch v. S & H Subwater Salvage, Inc., supra, 473 F.2d at 769, S & H's salvage crew spilled oil on the deck of a vessel chartered from Sharecroppers, causing plaintiff to fall. Sharecroppers sought indemnity from S & H. The court found that although S & H had spilled the oil, the mere presence of oil on the deck of Sharecroppers' vessel meant that Sharecroppers was technically liable for breaching its non-delegable duty to provide a seaworthy vessel. As in the classic case of passive negligence, the indemnitor created the danger that the indemnitee merely failed to discover or remedy. Because Sharecroppers' liability was thus founded on passive negligence, the court held that Sharecroppers was entitled to full indemnity from S & H.

By contrast, McDonald's leaving open the hatch independently created a potential danger. ⁴ This was a negligent omission that was a proximate cause of the accident; hence McDermott was not simply passive or vicariously negligent. The passive negligence doctrine has been held inapplicable where the would-be indemnitee is guilty of acts or omissions that could have proximately caused the injury complained of. See Transcontinental Gas Pipe Line Corp. v. Mobile Drilling Barge, supra, 424 F.2d at 693; Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1111 (5th Cir. 1970).

Both McDermott and DeFelice were negligent in causing Wedlock's accident McDermott in respect of the barge, DeFelice in respect of the tug's crew. We find nothing in the insurance policy or the record to indicate that by insuring the tug DeFelice's insurers intended to insure against McDermott's negligence as a...