Williams v. Hollywood Marine
Williams v. Hollywood Marine
Opinion of the Court
OPINION
This matter came before the Court for nonjury trial. Having considered the evidence, the parties’ memoranda and the applicable law, the Court rules as follows. To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are so adopted.
The Facts
On November 17, 1986, plaintiff Mac T. Williams, a Louisiana resident, was employed by Calíais & Sons, Inc. (Calíais) as a seaman and a tankerman, in which capacity he had been so employed by Calíais for approximately 12 years. Calíais is the owner of the M/Y JOHNNY JAMES, a typical river pushboat, of which Williams was a crew member. Hollywood Marine, Inc. (Hollywood), a Texas corporation, is the owner of two dumb barges which were laden with heavy oils in the tow of the M/V JOHNNY JAMES on the night of the accident pursuant to a towage agreement between Hollywood and Calíais.
In performing steaming operations at the Belcher dock, once the barges are moored, a steam hose located on a motorized reel on the dock is unreeled and connected to the appropriate header on the barge. The equipment which actually creates the steam is located in a tank farm behind the dock facility. The steam hose itself is two inches in diameter, and is equipped with a flanged screw coupling on the end which is attached and disconnected by means of a hammer or wrench.
Plaintiff testified that on November 17, 1986, at about 3:00 a.m., he was awakened by the tug captain, Johnny Calíais, who told him the barges had reached the proper temperature for discharge and were to be moved upriver to another facility for this
Plaintiff further testified that he disconnected the hose in question and laid it on the deck, whereupon the dockman started reeling the hose in; that as he turned to continue his duties, he heard someone call out that the hose was hung up;
The Court takes cognizance of the following additional testimony of plaintiff: he had worked on boats and barges most of his life in the capacity of a captain as well as a deckhand; he had much experience in steaming operations, including the handling of the steam hoses; he had worked at 25-30 docks similar to the Belcher facility, and had even been to the Belcher facility two or three times before; however, he stated he was unfamiliar with the motorized steam hose reel at the Belcher facility, and had never seen such an apparatus before.
Furthermore, plaintiff denies remembering that immediately after the accident he told Captain Calíais he was carrying the hose with the nozzle end pointed towards himself, although the testimony of Calíais and the accident report Calíais prepared on the day of the accident, as well as the nature of the accident itself, all directly support this conclusion.
The Court concludes that the accident occurred in the following fashion. When plaintiff picked up the hose and walked towards the edge of the barge holding it waist high, he created a sag or belly in the hose which allowed any remaining hot water to be trapped within the hose. As Ladnier continued to reel, this trapped water was naturally forced out of the end of the hose as the remainder of the hose was lifted off the deck towards the level of the dock ten to twelve feet above.
It is undisputed that the steam hose involved was not equipped with a cap on the end.
For the purposes of this opinion, plaintiffs injuries may be summarized as follows.
Subsequent to plaintiff’s discharge from the hospital December 1, 1986, Dr. Luter-man continued caring for plaintiff on an outpatient basis.
Dr. Rodney Appel, a urologist, testified that he found no evidence of urologic disability upon examination of the plaintiff; and that plaintiff specifically denied any decrease in sensitivity or decrease in libido.
The Law
This Court has jurisdiction over the subject matter of this case by virtue of the Court’s admiralty and marine jurisdiction.
The Court finds plaintiffs sole remaining claims are those for negligence against Belcher and PSC under general maritime law. The analysis of a maritime tort is guided by general principles of negligence.
Pursuant to these basic principles, the Court finds PSC’s employee Tom Ladnier negligent in the operation of the motorized hose reel at the time of the accident in question. Ladnier was a licensed tanker-man and familiar with the equipment at the Belcher dock facility; he had been trained there.
The Court finds that a reasonable person, and especially an experienced tanker-man such as Ladnier, could expect that as he stood on the dock and reeled the steam hose across the barge from a height of approximately ten to twelve feet above the barge, any steam condensate inside the hose would naturally and continually be spilling from the nozzle end, creating a potential hazard for anyone on the deck of the barge. There is no reason why Ladnier could not have allowed the hose to lie on the deck to cool down somewhat before reeling it in; he could have watched and waited until he saw plaintiff set the hose safely back on deck; or he could have warned plaintiff when he saw the latter holding the hose in a dangerous fashion. The evidence demonstrates that lighting and communication were no problem.
Although the Court finds no evidence that the equipment at the Belcher dock facility was not reasonably fit for its intended purpose,
Additionally, the evidence shows PSC was not an independent contractor as to Belcher at the time of the accident. Although the letter agreement between Belcher and PSC dated October 8, 1986
The duties of a “person in charge” of dock operations are outlined in the Coast Guard regulations. See 46 C.F.R. § 151.454 (1988). Such duties are limited to those relating to cargo transfers, and no mention is made therein of any duties not relating to such duties. In this regard, the uncontroverted testimony of Cordell Hay-mon, president of PSC,
Therefore, the Court finds Belcher negligent in failing to provide adequate training and/or supervision for Ladnier in the use of its dock facilities beyond those tasks for which he was qualified. The evidence shows Ladnier was inexperienced in dock operations, and in particular, this was his first steaming operation at Belcher’s facility. Belcher exercised control over PSC personnel working at its dock, and the Court finds it could have supervised them as well. If Belcher desired PSC personnel to go beyond the job duties for which they were qualified, then Belcher had an obligation to see that they were properly trained and/or supervised to perform such tasks. Thus, Belcher breached its duty of reasonable care to plaintiff by (1) sending an inexperienced, unsupervised employee (2) to perform a task for which he was not fully qualified.
The Court finds as eminently foreseeable to both PSC and Belcher that the supplying of inadequately trained and/or improperly supervised dock operations personnel could result in injury to crews of the barges they serviced.
Further, the Court finds no negligence on the part of Hollywood Marine, and no unseaworthiness of Hollywood’s barge. Not only was Hollywood stipulated as dismissed at the beginning of trial, it is also uncontroverted that no employee of Hollywood was present at the time of plaintiff’s accident; neither the dock nor the steaming equipment belonged to or was under the control of Hollywood; the men involved in the steaming operation were not controlled or supervised by Hollywood; and the Hollywood barge involved was of standard design with proper fittings and appurtenances required for the loading, transport and discharge of petroleum products, as approved by the U.S. Coast Guard.
Finally, the Court finds no evidence of negligence on the part of Calíais & Sons. As set out previously, plaintiff was a qualified and experienced tankerman who had been involved in many such steaming operations during his maritime tenure. Captain Calíais merely instructed plaintiff to go out on deck and disconnect the hoses and generally prepare the barges for departure. The Court finds these types of duties fall within the ordinary course and scope of plaintiff’s employment as a tankerman and deckhand on a tug with a tow. As set forth previously, there is no evidence of unusual weather conditions or any other condition which could make these tasks any other than purely mundane. There was no evidence of communication or lighting problems. Captain Calíais was in the engine room of the M/V JOHNNY JAMES at the time of the accident, and the evidence is uncontroverted that all of plaintiff’s activities regarding the hose after he disconnected it were totally voluntary.
Further, the Court finds plaintiff’s employer Calíais & Sons is entitled to recover the full amount of the maintenance and cure benefits it has paid on plaintiff’s behalf
In sum, the Court finds both PSC and Belcher negligent in causing plaintiff's injuries herein; such negligence amounting to twenty-five percent on the part of each; plaintiff is found to have been contributorily negligent, such negligence amounting to fifty percent; the Court finds no negligence on the part of the remaining parties Hollywood and Cal-íais & Sons. The Court finds the sum of SIXTY THOUSAND DOLLARS to be a just and reasonable compensation for plaintiff's injuries, not taking into account the percentage of plaintiff’s contributory negligence.
Accordingly, for the foregoing reasons, the Clerk of Court is directed to enter final judgment in favor of plaintiff Mac T. Williams, and against defendants Petroleum Services Corporation and Belcher Oil Company jointly and in solido in the amount of THIRTY THOUSAND DOLLARS; and further to enter final judgment in favor of third party claimant Calíais & Sons jointly and in solido against defendants Petroleum Services Corporation and Belcher Oil Company in the amount of ELEVEN THOUSAND THREE HUNDRED AND EIGHTY-ONE DOLLARS; and dismissing all other cross-claims, defendants Belcher and PSC to bear the costs of these proceedings.
. Hollywood Marine was dismissed by stipulation at the beginning of trial.
. In cold weather, the cargo of oil in the barges becomes too viscous to be pumped out. Steaming is a process whereby steam is pumped through the barges to heat up the oil, thereby thinning the viscosity and allowing the cargo to be discharged.
. See Plaintiffs Exhibit 6 in globo; see also Belcher Exhibits 11-15.
. See id.
. The steam had been turned off by this time.
. The flanged nozzle of the hose apparently had become hooked on an appurtenance of the barge.
. Plaintiff testified he had only had experience with handoperated hose reels.
. See Belcher Exhibit 1, accident report dated November 17, 1986. Johnny Calíais, Jr., the captain of the M/V JOHNNY JAMES at the time of the accident, testified that plaintiff told him he (plaintiff) had disconnected the hose, had picked it up and was walking with it when the hot water and steam splashed out. He further stated that plaintiff expressly admitted the hose was pointed towards himself when the accident occurred.
.David Leonard, the relief captain of the M/V JOHNNY JAMES at the time of the accident, testified he was on the deck of the opposite barge when he saw the hose become hung up. Leonard testified he saw plaintiff pick up the hose, but that he could not see the manner in which plaintiff carried it, as plaintiffs back was to the witness. He further testified he did not see the actual accident because plaintiff had moved behind a piece of equipment on the barge deck, which blocked Leonard’s line of sight.
. Ladnier testified by deposition. See Plaintiffs Exhibit 9.
. See Belcher Exhibit 7, agreement dated October 8, 1986.
. The evidence shows the only Belcher employee at the dock facility the night of the accident was Bill Pratt, who was not actually present at the scene of the accident, but was at another area of the facility at that time.
. It appears he was attempting to communicate to plaintiff that freeing the hose was sufficient. See Plaintiffs Exhibit 9, Deposition of Tom Ladnier, at p. 33, Ins. 15-18; p. 63, Ins. 12-15.
. Id. at p. 35, Ins. 4-10.
. See Plaintiffs Exhibit 6 in globo; Belcher Exhibits 11-15.
. The testimony was uncontroverted that plaintiffs decision to pick up the hose was his own, and no one asked or instructed him to do so.
. For a full account of plaintiffs injuries suffered as a result of this incident and treatment thereof, see Plaintiffs Exhibit 10 in globo, Deposition of Dr. Arnold Luterman.
. Id. at p. 12, Ins. 10-22; p. 13, Ins. 3-5; p. 47, In. 11-p. 48, In. 3.
. Id, at p. 13, In. 15-p. 14, In. 19; p. 15, In. 17-p. 16, In. 1.
. Id., at p. 17, In. 1-p. 18, In. 20.
. Id., at p. 22, Ins. 1-3.
. Id., at p. 33, Ins. 18-22.
. Id., at p. 32, In. 14-p. 33, In. 4.
. Id., at p. 37, Ins. 6-10.
. Id., at p. 70, Ins. 9-18.
. See Appel Exhibit 1, report of Dr. Rodney A. Appel dated September 21, 1988, admitted into evidence in lieu of testimony on direct.
. See Church Exhibit 1, report of Dr. John M. Church, Jr., dated November 2, 1988, admitted into evidence in lieu of testimony on direct.
. Id., at p. 2.
. Id., at pp. 2-3; see also Belcher Exhibit 18, pictures of plaintiffs injuries taken in February 1988.
. 28 U.S.C. § 1333; see also Richendollar v. Diamond M Drilling Co., Inc., 819 F.2d 124, 127 (5th Cir. 1987), cert. denied, — U.S. -, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987); Christoff v. Bergeron Industries, Inc., 748 F.2d 297, 298 (5th Cir. 1984); Parker v. South Louisiana Contractors, Inc., 537 F.2d 113, 115 (5th Cir. 1976). Since plaintiff is undisputedly a seaman, and as he has already settled with his employer, Calíais & Sons, Inc., there is no basis for a claim under the Jones Act, 46 U.S.C.App. § 688. See Order & Reasons dated May 23, 1989, Rec. doc. 115. Further, since plaintiff is a seaman, he cannot be a longshoreman, thus the Court finds no basis for a claim under the LHWCA, 33 U.S.C. § 901 et seq. See Thibodeaux v. Torch, Inc., 858 F.2d 1048, 1050 (5th Cir. 1988).
. See Kamani v. Port Houston Authority, 702 F.2d 612, 613 (5th Cir. 1983), (citing Kelly v. Smith, 485 F.2d 520, 526 (5th Cir. 1973)), cert. denied sub nom. Chicot Land Co. v. Kelly, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974).
. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 2299, 90 L.Ed.2d 865 (1986).
. Id. at 106 S.Ct. 2299, (citing United States v. Reliable Transfer Co., 421 U.S. 397, 409, 95 S.Ct. 1708, 1714, 44 L.Ed.2d 251 (1975)).
. Consolidated Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987), cert. denied, — U.S. -, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1987), (citing Casaceli v. Martech Int'l., Inc., 774 F.2d 1322 (5th Cir. 1985)).
. Id., 833 F.2d at 67, (citing Green, Proximate Cause in Texas Negligence Law, 28 Tex.L.Rev. 775 (1950)).
. Id., 833 F.2d at 67, (citing Prosser and Keeton on Torts, Duty § 53 (5th ed. 1984)). Duty has been defined as being measured by the scope of the risk that negligent conduct foreseeably entails. Id., 833 F.2d at 67, (quoting Harper, James & Gray, The Law of Torts, Scope of Duty in Negligence Cases, § 18.2 at 655 (2d ed. 1986)).
. Id., 833 F.2d at 68.
. Plaintiffs Exhibit 9 at p. 12, Ins. 6-7; p. 13, Ins. 11-14.
. Id. at p. 32, Ins. 5-15; p. 33, Ins. 6-9; p. 38, Ins. lns.-p. 39, In. 4; p. 65, Ins. 5-12.
. Id., at p. 36, Ins. 12-15; p. 55, Ins. 1-11.
. Id., at p. 54, In. 16-p. 55, In. 20.
. Id., at p. 44, Ins. 15-20.
. See Plaintiffs Exhibit 9, Id., at p. 30, In. 14-p. 31, In. 9; see also Plaintiffs Exhibit 6 in globo and Belcher Exhibits 11-15. The switch is
. The Court notes that even if a cap or plug was provided, a person installing it would still be required to place himself at some degree of risk, as such installation would necessarily require positioning some part of the body in front of the nozzle.
. Plaintiffs Exhibit 9, at p. 12, Ins. 18-21.
. Id., at p. 13, Ins. 3-4.
. Id., at p. 14, In. 22-p. 15, In. 1.
. Id., at p. 13, In. 23-p. 14, In. 1.
. Id., at p. 47, Ins. 17-19.
. Belcher Exhibit 7.
. Plaintiffs Exhibit 11, Deposition of Thomas Chandler at p. 9, In. 22-p.-p. 10, In. 4; Plaintiffs Exhibit 16, Deposition of Cordell Haymon at p. 5, In. 19-p. 6, In. 2.
. Plaintiffs Exhibit 16, supra, at p. 6, Ins. 3-12.
. Id., at p. 11, In. 1-2.
. Belcher Exhibit 7, supra, at p. 1.
. Plaintiffs Exhibit 16, supra.
. Id., at p. 7, In. 7-p. 9, In. 1; p. 25, Ins. 14-17; p. 30, Ins. 1-17.
. See id., at p. 9, Ins. 11-15; p. 10, Ins. 16-17; see also Plaintiffs Exhibit 11 at p. 42, Ins. 4-9.
. See Plaintiffs Exhibit 16, at p. 10, In. 23-p.-p. 11, In. 4; p. 26, Ins. 10-24; p. 29, Ins. 6—15.
. See Plaintiffs Exhibit 9, at p. 20, Ins. 1-6; p. 64, In. 20-p. 65, In. 1.
. See Findings of Fact and Conclusions of Law on Behalf of Hollywood Marine, Inc., Rec. doc. 116.
. See Calíais Exhibit 1, Joint Stipulation, showing the total amount paid by Calíais & Sons and its insurers in maintenance and cure benefits as $11,381.00.
. Id., 627 F.2d at 723; Thibodeaux v. Texas Eastern Transmission Corp., 548 F.2d 581 (5th Cir. 1977).
Reference
- Full Case Name
- Mac T. WILLIAMS v. HOLLYWOOD MARINE
- Status
- Published