Weston Guidry v. Texaco, Inc., Cross-Appellees v. Gulf Copper & Manufacturing Company, Third-Party Cross-Appellant
430 F.2d 781
3rd Cir.
1970
Check Treatment

*1 of lawlessness of a lifetime His slate ju- wipe of the one cannot be cleaned

dicial eraser. relating to district court’s order

The correspondence modi- with the ACLU is modified,

fied, as affirmed. relating to the le- order court’s security de- gality maximum of Burns’ reversed.

tention is Plaintiff-Appellant, GUIDRY,

Weston

v. INC., al.,

TEXACO, Defendants- et Cross-Appellees, Appellants, MANUFACTURING COPPER &

GULF COMPANY, Third-Party Defendant- Cross-Appellant.

Appellee,

No. 28156. Appeals,

United States Court Circuit.

Fifth

Aug. 26, 1970. Rehearing

Rehearing En Banc Denied and Denied 1970. Oct.

working aboard Texaco’s tanker TEXACO NEW sued Texa- YORK. He co on theories of unseaworthiness and liability and Texaco denied seeking impleaded Copper, indem- Gulf nity warranty for breach performance workmanlike under the au- thority Ryan. Copper Gulf denied by way that Texaco was liable and alleged Guidry further defense and Cop- employee Balsano —another of Gulf per working Guidry who was with — Texaco; were borrowed servants of Copper pleaded Gulf also a defense un- Weyerhaeuser corollary. der the After court, a trial to the the court found: (1) negligent, (2) Texaco was TEX- unseaworthy, (3) ACO NEW YORK was and unseaworthiness proximately Guidry’s both contributed to injuries, (4) Guidry neither nor Bal- Texaco, sano were borrowed servants (5) Copper warranty Gulf breached its performance, (6) of workmanlike and Copper indemnify Texaco but was not liable to for Texaco attorneys’ Cop- fees. and Texaco Beaumont, Duncan, George E. Tex. per appeal severally both from the find- Copper. for Gulf ings adverse to takes no them. Parker, Strong, Pipkin, Nelson & position indemnity, on the borrowed Tex.; Beaumont, Nelson, Beau- Louis V. attorneys’ questions, servant but Tex., Inc., mont, appellant. for Texaco vigorously finding defends the of liabili- Tex., Barnhart, Houston, John N. ty in his We favor. reverse to Gulf as Houston, Wright, Guidry. Mandell & Copper’s liability for Texaco’s Tex., of counsel. fees and affirm as to all else. injured when he and WISDOM, Bal- Before and AINSWORTH pipefitters removing sano —both Judges. CLARK, Circuit —were length cooling system from the of the TEXACO YORK NEW to facili- CLARK, Judge: Circuit cleaning tate a condenser. The vessel expanding This is another in the line Arthur, was then docked at Port Texas admiralty of round-robin descend repairs cases routine and maintenance. Sieracki,1 Ryan2 Weyerhaeuser.3 ed from frequently Texaco contracted with Gulf simply, facts Copper Sta most parts ted for such of this work as Guidry, employee of these: an specialized came within their line (and also moment a Usually at the work. the relations between seaman), injured Sieracki while Texaco were informal Shipping Co., Sieracki, Weyerhaeuser 1. Seas Op Inc. v. 3. S.S. Co. v. Nacirema 85, 872, 438, erating Co., 563, U.S. 66 S.Ct. 90 L.Ed. 1099 355 U.S. 78 S.Ct. (1946). (1958). 2 L.Ed.2d 491 Ryan Stevedoring Co., 2. Ine. v. Pan-At Corp., lantic S.S. 350 U.S. 76 S.Ct. (1956). 100 L.Ed. 133 and Balsano followed the written contracts or detailed

—i.e. no up: upon, plans specifications method settled were drawn had merely order reach his end of the Bal- told Gulf what Texaco done, had sano to stand the catwalk’s did it and wanted railing. hand When course of he removed the last therefor. billed Texaco weight scope pipe, dealings, bolt from his end of their matters outside *3 pipe Copper of the was that he was thrown of the work which Gulf was such Consequently, occasionally dropped off originally he arise balance. hired would causing Guidry pipe repre- his of end the to be and on occasions Texaco’s such jackknife position request thrown into a which would sentative the scene provoked injury. Copper his to do this work. additional always Copper performed extra the judge district found the The ves appropriate addi- and submitted an work unseaworthy negligent. sel and Texaco billing. tional findings pertinent The of fact are as follows: case, the removal of the the instant I find “20. the Defendants [sic] injury pipe in which caused the was the negligent (a) permit- Texaco were in category of work. On the additional work, ting improper the method of day Copper was aboard second that Gulf (b) failing place supply to in a safe YORK, Texaco’s the TEXACO NEW (c) work, supplying which to in inade- Maxfield, representative an Short asked quate equipment and the tools to do men for two to officer of Gulf job, (d) supplying indequate per- in pipe. Maxfield selected remove the sonnel do to the work. Guidry all Short showed and Balsano. pipe which to removed three the I “21. find the the SS TEXACO Guidry and Balsano started remove. unseaworthy NEW YORK to the was went about other business Maxfield pipe task of the removal the in that of vicinity stayed the of the while Short place reasonably not the work was by Guidry and Balsano. work done discharge the task suitable to the and Balsano determined safety, dis- and the method for the they by method which themselves the hazardous; charge of the task was equip- pipe the would remove the and person- and further that tools and the job. they do the ment would need to reasonably adequate to not nel were high plates pipe floor The above the discharge safety.” the task in the ship’s and was accessible of the fireroom urged a only both Texaco and that ran beneath. from catwalk negligence long, operational and pipe defense of about seven feet The complain weighed court pounds, now that the district 115 100 and between findings higher approxi- no defense. The on this made its end was situated and findings not mately to make such cat- failure and a half feet above the six judge pred- length error for did con- the district The course of walk. its finding laterally his of unseaworthiness icate both and tained bends several solely negligence flanged upon and vertically. Both ends were contrary, in addition permit Balsano: To the with other interconnection finding improper he held the method piping and means of bolts nuts. place, personnel not rea- and tools and Balsano determined job sonably at hand. suitable to the all the bolts each would remove findings flanges based of unseaworthiness opposite These at ends of from one op- entirely outside the pipe; planned deficiencies then simulta- party injured of the neously man- erational last remove the bolts effectively exclude co-worker his down to catwalk. handle the of An- of the rule the ambit They requested case from no ad- and no assistance Inc., Stevedores, job. toine Lake Charles equipment to do the ditional 784 (5th Cir.1967), sion of F.2d 443 cert. denied at the

376 time of accident, (2) Texaco’s conduct 389 U.S. S.Ct. L.Ed.2d own 146; contributing injuries Guidry. Kerr see also Robinchaux v. McGee Indus., Inc., (5th F.2d 447 Cir. Oil The borrowed servant con- issue was 1967); Grigsby Marine Serv v. Coastal sidered the district court find- ice, Cir.1969). 412 F.2d 1011 ings en- adverse to tered there. aAs court of we review complains ap Texaco also findings are to look to the peal court did not make trier of fact —the district court— findings relating of con its defense findings sup- ascertain if up tributory negligence which is based ported by 52(a), the evidence. Rule on the facts as defense same Fed.R.Civ.P. Here the district court Appendix operational found: any Texaco made does disclose that *4 * * * many “18. On occasions by filled the effort to have this omission vessels, while aboard the Texaco addi- judge by for additional district a motion pipefitting up, tional work would come findings. event, however, any we do inspector repre- repair and the aboard requires think re that such omission senting Cop- Texaco would advise Gulf judge did find mand. The district that per Manufacturing Corporation’s & only place pro men in the worked the job foreman of the additional work; possible them to vided —or —for point it him. out to scaffolding rigging pro no or that “19. no vided; That at time was it under- height of and that the the by plaintiff, stood either Weston catwalk above his end the made it Guidry, coworker, Tony or his Bal- necessary for stand Balsano to sano, they subject findings that were to to handrails. are the These suffi the direction and control of Melvin negation for a cient us to infer of con [sic], Short of Texaso Inc. in remov- tributory strong While a ing pipe. the That neither holding of them certainly for ease was made that change any understood that there Guidry’s solely injury from the resulted relationship Texaco, in their Balsano, with Inc. joint and with Gulf & Manufactur- are not with the definite and left we ing Corporation always from what it findings firm conviction the of the that they had been when judge aboard Tex- question of liabili the removing ships. aco the mistaken; That work of ty are suf therefore question being the in done support ficient his conclusions and the by Copper Manufacturing & Cor- judgment. Furthermore, the failure of poration’s employees under the judge same specifically the district make all always that findings circumstances had possible require does not re pipefitting done work on board Texa- findings mand where the omitted would co vessels.” change the cause. outcome (5th McKee, Weber v. 215 F.2d See 447 The district then court concluded: Cir.1954); Jacobs, 308 United v. States plaintiff, “3. That Weston Guid- (5th Cir.1962); S.tamicarbon, F.2d 906 ry, co-worker, Balsano, Tony and his Corp., M.V. v. Escambia Chemical 430 Texaco, were not loaned servants of Cir.1970) 21596, 920 F.2d [No. plaintiff’s injury.” Inc. at the time Finding no 1970]. error reversable findings the court’s decision which holds Texaco recited above were Guidry, ques given disputed liable we next reach the made on evidence live right presence tion Texaco’s to be indemnified witnesses in the of the district Copper. Copper argues judge. reviewing evidence, After we indemnity precluded findings by (1) say that is are not able to that these fact that clearly and Balsano were bor were erroneous. We therefore supervi- rowed servants not under affirm on borrowed servant issue.

785 obligation per- brings tractor had the not to us to the contention This way precludes re form its work in a which would conduct own that Texaco’s unseaworthy, i.e., position the vessel un- covery. Copper’s is based make * ** rea- Weyerhaeuser for men. It was not Co. fit S.S. on the dictum supra, sonably presence Co., Inc., of men be- Operating fit v. Nacirema may shipowner the contractor had failed re cause a to the effect steps against indemnity continued to take those a stevedore fail cover warranty which to make it rea- company of the breach test, sonably i.e., performance con ventilate “absent workmanlike safe — safety appli- part equip shipowner’s] suffi workers with on its duct [the * *).” (* recovery.” preclude ances also needed cient See David, Corp. F.2d Waterman S.S. extent, “To was the action of this (5th Cir.), denied 384 cert. U.S. un- the contractor which created the (1966). 16 L.Ed.2d 683 S.Ct. seaworthy 412 F.2d at condition.” question is no here There 1031-1032. in a asked to work and Balsano were in- We therefore on the issue of affirm danger dangerous position to do demnity. job. does not con ous But Only the issue part conduct of Texaco stitute Although expenses remains. preclude recovery of sufficient in indemnity awarded Texaco district court against demnity Copper. Admit *5 it from for all amounts per tedly place, method, tools and pay Guidry, declined to it sonnel furnished to remove attorneys’ expenses. fees award reasonably job, fit for the but If Texaco was This we think was error. right every Texaco had to look to Gulf Cop entitled to indemnified be proper know was, per, it it was and we have held that steps and if not to take to see that equally reimbursement entitled to reasonably were made fit. The district ex such reasonable only place court found that work defending penses as incurred in catwalk, being was the case in the trial and claim asserted steps should have taken appeal. Bloomfield S. on Lusich v. this reasonably place make catwalk a fit Cir.1966). Co., S. 355 F.2d 770 to work. Since Gulf did do so, responsibility the ultimate must rest part, part, re- reversed in Affirmed in supra. Ryan, its shoulders under of attor- determination manded for a holding To the is our same effect neys’ expenses. fees and Grigsby su v. Coastal Marine Service pra, wherein we said: FOR REHEARING ON PETITION AND FOR RE- PETITION entry

“The done tank with the EN BANC HEARING knowledge representa- full of Coastal’s Indeed, tives. it was done to effec- PER CURIAM: discharge tuate work —the Coastal’s by portable pump Rehearing of the water accu- Denied The Petition for is wing Judge Obviously panel mulated in the tank. nor and no member regular the tank was not safe for men at that Court active service time, actually applica- having polled either under requested Court be * (* *). safety regulations (Rule rehearing banc, ble 35 Federal en though Procedure; Appellate Even the tank was not meant Local Rules of persons, 12) safe for once it became Fifth Petition Circuit Rule necessary it, Rehearing service con- enter En Banc is denied.