Law v. Sea Drilling Corp., 510 F.2d 242 (5th Cir. 1975)

BROWN, Chief Judge:

Wesley Law and Thomas LeBeouf, employees of a service contractor, stood on the ramp running from a seagoing tender vessel to the fixed platform on the Outer Continental Shelf. The ramp —ominously, gruesomely but accurately for this case described as a “widow maker” — broke, precipitating both into the sea with severe injuries to Law which brought about his death within the hour. Precipitated as well were many intricate questions of law, not the least of which was what law controls? Surrogate law1 of Louisiana, the adjacent state? Federal statutory law in the form of Death on the, High Seas Act2 (DOHSA)? Or general maritime law under enlightened principles which freed the Supreme Court of the death hand — indeed more accurately the no death hand — of the Nineteenth Century?3 Time, tide and the incessant grist from the judicial mill and, most important, from the highest mill4 have washed out most of these

problems since the distinction between the competing bodies of law pertain finally only to items of damages on which all sources now coalesce.5

Continental Oil Corporation (Conoco) and Sea Drilling Corporation (Seadrill) appeal from the judgment of the District Court holding them jointly liable for the death of Wesley Law and the injury to Thomas LeBeouf that arose from that accident. The trial judge determined there was sufficient evidence to demonstrate that each was “actively” negligent and assessed damages, some jointly, and some allocable separately under the respective applicable laws — Conoco under the Louisiana surrogate Rodrique law and Seadrill under DOHSA. Each attacks the decision that they were each actively negligent and then, with a magnanimity characteristic of the typical Tinker-to-Evers to-Chance donneybrook each seeks to lay the whole off onto the other on all of the theories — contractual, land-based, maritime or ambiguous amphibious — of indemnity and contribution. We affirm the disallowance of reciprocal cross-claims for indemnity and with modification as to the allocation between the tortfeasors of the award to the plaintiffs except we reverse one issue — the appropriateness of permitting the recovery for future cost of living increases.

Wesley Law was killed and Thomas LeBeouf was injured when the ramp on which they were working collapsed, crushing Law and hurling them both into the Gulf swells below.

On the date of the accident this particular fixed platform, designated CATC— EC — 63 — B (63 — B), was one of many owned and maintained by Conoco on the Outer Continental Shelf area of the Gulf of Mexico. Pursuant to its contract, Seadrill agreed for a year to drill wells from several of these platforms and to provide for this purpose its own drilling rig and an LST-type tender vessel, SEADRILL XI, with its equipment, including a steel ramp. This ramp had to be adapted to the existing ramp support structure of Conoeo’s platform. This structure had been designed in 1956 by Brown & Root in cooperation with Conoco to specifically accommodate the ramp systems of tender vessels owned by Conoco itself. These earlier Conoco ramps were far lighter in weight and were so designed that the vessel-end of the ramp was suspended from the platform by cables, thus eliminating any contact with the vessel and potential single, double or triple dimension stresses from vessel movement.

By contrast, the Seadrill ramp assembly system did contact the vessel directly. In addition, it was designed to rest the entire weight of the platform-end of the ramp on the platform ramp support by the use of a linkage known as a fifth wheel. This fifth wheel, approximately 6 feet by 6 feet and 4 feet high, functions somewhat like a trailer hitch. The combined linkage at the ramp platform-end and the fifth wheel permits only lateral motion but not other motions from the roll and pitch of the vessel.

To accommodate the fifth wheel, the 63 — B platform support beams had to be extended beyond the vertical column support system. According to the testimony of Seadrill employees, the need for this extension was called to the attention of the Conoco employee in charge of supervising the loading operation. Together employees of both companies agreed that a 17 inch extension should be welded to the ramp support. Then, without the benefits of engineering advice or any apparent consideration of the effects of this extension on an already overloaded ramp support,6 Seadrill employees weld

ed the extension and, lastly, the fifth wheel in place. The following day a tool pusher for Seadrill noticed lateral play in the ramp support and ordered that additional lateral supports be installed.

On" the next day, Law and LeBeouf, employees of Superior Casing Crews, the company that had contracted to drive the surface casing in the well being drilled, were working on the platform. A 6 ton diesel hammer required to drive the surface casing had been offloaded onto SEADRILL XI from an equipment barge earlier that day. The procedure was to lift the hammer from the deck of SEADRILL XI, lower it onto the ramp, remove the shackles from the vessel crane, connect the shackles from the platform crane, lift it and then swing it over and onto the platform. While Law — the supervisor of the crew, LeBeouf, and a third Superior worker-were on the ramp in the process of removing the shackles from SEADRILL XI’s crane and detaching the lead from the platform crane to the diesel hammer, thé ramp support on which the fifth wheel rested collapsed.

Law received crushing blows to his pelvic area and died 30 minutes to an hour later on board the SEADRILL XI after a prolonged and difficult rescue. Thomas LeBeouf, in shock and in pain from his left shoulder throughout his arm, suffered a respiratory infection from the salt water but was able to return to work about two weeks later.

Joan Law, as personal representative of the estate of Wesley Law, brought this action on her own behalf and that of her three minor children alleging negligence and unseaworthiness against Sea-drill, negligence against Conoco invoking the wrongful death provisions of the Louisiana code,7 DOHSA and general maritime principles. On an extensive evidentiary record, the District Judge found that each was negligent, the SEADRILL XI was unseaworthy and held them both liable jointly and in solido. The Court awarded $191,388.55 against both with separate additional recoveries of $70,000.00 against Conoco and $24,000.00 against Seadrill. (See note 19, infra).

The defendants cross swords on appeal first and foremost over the issue of whether their actions were individually negligent. Failing vis-a-vis the victims, each would then seek to shift the taint of negligence and its monetary burden to the other under any one or more or all of three theories: (i) TriState 8 active-passive-major-minor tort indemnity principles, (ii) breach of the Ryan9 WWLP warranty,10 and (iii) contractual indemnity in the drilling contract. However, after a full review of the transcript, we are convinced that the finding of active negligence by both defendants is adequately supported by the evidence.

A brief description of the drilling procedure followed by both pursuant to their contract demonstrates their individual culpability and hence joint liability for this tragedy. The fault of Conoco lay in its failure to fulfill its supervisory

responsibilities over the equipment transfer procedure of which the ramp installation was a major part. On two prior occasions Conoco had employed the same tender vessel and equipment to drill wells from its platforms. Both times its engineering department ascertained the requirements of the rig and modified the platform to fit Seadrill’s equipment. Although both platforms lacked any ramp support and therefore required obvious alterations, unlike platform 63 — B here, the Judge could find that Conoco was aware of the design and weight limitations of platform 63 — B and the peculiar needs of the fifth wheel design of the SEADRILL XI ramp but failed to coordinate this knowledge among its various departments.

While there was no specific inspection procedure called for under the contract requiring Conoco’s engineering department to check the ramp system, Conoco bore full responsibility for supervising the rigging operations and it provided a man at the job site for this purpose.11 There was testimony that the trial judge could credit fully showing that this

Conoco supervisor agreed to the ramp extension which further weakened the already overstrained support structure.12

In short, there was ample basis for the Judge’s finding that Conoco was negligent in each of the respects listed.13

While the fault of Seadrill differs from that of Conoco, it is clear that its employees on the job site also made crucial decisions that contributed directly to the accident. Seadrill employees were the first to recognize that modifications would be necessary to enable the platform support to accommodate their ramp. Despite their own lack of engineering knowledge, they did not consult Conoco’s engineering department but took it upon themselves to weld the ramp support extensions that they thought necessary. While it was the original platform member itself, rather than these welds or the extension, that snapped, this affords no escape because it was the overweight of ramp and diesel hammer that caused the ramp to fail. There is more than enough to warrant the finding of fault.14

A further finding to inculpate Seadrill is not necessary in view of the positive holding of negligence so we do not have to resolve the issue.15 However, there was ample evidence to warrant the Court’s findings that SEA-DRILL XI was unseaworthy on the ground (among others equally valid) that the' ramp-gangway system for ingress and egress and transfer of equipment and supplies was not reasonably fit for the use for which it was intended. Proof of this is the simple, but classically significant, fact that it failed under expected conditions.16

The fact that the ramp-gangway may have failed because of the break in the ramp support structure on the platform is of no consequence. The ramp was a part of the vessel’s equipment.17 As a means of ingress-egress and, more important, transfer of heavy articles, the sufficiency of the rig depended on the adequacy of the platform-end of the structure to bear the weight of the ramp and cargo to be landed on it. The vessel could not palm this off onto the platform owner, at best a sort of vicarious wharf owner.

Thus far we have had to make none of the intricate choice-of-law decisions of the kind with which we dealt at length in Dearborn.18 For here on any basis— surrogate Louisiana law, DOHSA, or general maritime law (with or without unseaworthiness) — Conoco and Seadrill each are justifiably cast either jointly or separately for those distinctive elements of damages allowable under the body of law applicable to each.

But on damages the matter is not so easy, or more accurately, at least, it was not at the time the judgment was entered. The District Judge obviously recognized the problem. It is evident that for these flagrant faults he intended to make an award for every conceivable element of damages sustained by adequate proof and recoverable against one or the other or both, depending on the source of law chosen and applicable.

This is illustrated by conscious pain and suffering (Item 7, Col. (B)). Without regard to the dollar amount (discussed later) it is perfectly clear that such damage was suffered in fact. But at the time of judgment DOHSA then supplied the principal maritime remedy and no recovery for this under DOHSA

was allowable.20 Consequently, the Court assessed it against the only party having a certain liability therefor — Conoco under surrogate Louisiana law.

The same was true of loss of love and affection (Item 6(a)(b)(c)(d), Col. The converse was applied to loss of nurture, guidance and control (Item 8(a)(b)(c), Col. (Q) for which Seadrill was cast as DOHSA jurisprudence permitted.22 Whether this is recoverable under Louisiana law was not determined and it may be that having saddled Cono(B)).21

co with $70,000 (Col. (B)) not then thought to be recoverable against Sea-drill, the Judge moved from the wool-sack to the quarter deck23 to apply some nautical equity.

But all of that has changed— not in the twinkling of an eye, to be sure, but changed by the steady flow of maritime standards. First came Moragne,24 which overruling The Harrisburg,25 recognized as a part of the general maritime law a right to recover for maritime wrongful death independent of a statute. We join the First Circuit in its recent Barbe26 decision to now hold what we said in Dennis27 that Moragne applies not only to navigable waters of the States, but to the High Seas as well, including the area defined in DOHSA.28

Next came Gaudet29 in which, as a natural development from Moragne, the Court held that the wrongful death remedy available under maritime law included an assessment for loss of society. Specifically the Court declared:

Sea-Land Services v. Gaudet, 414 U.S. at 585, 94 S.Ct. at 815, 39 L.Ed.2d at 21.

This means that allowance of loss of love and affection (Item 6(a)(b)(c)) need not be confined to Conoco (Col. (B)) but is assessable against Seadrill as well.

This then leaves loss of nurture, guidance and control (Item 8(a)(b)(c)(d), Col. (B)) assessed against Seadrill.

Seadrill challenges this on the ground of duplication arguing that there is no essential difference between this award and the award given the entire Law family for the loss of love and affection against Conoco (Item 6(a)(b)(c), Col. (B)). We disagree for the distinction between the loss of love and affection and the loss of services such as nurturance, training, education and guidance of minor children has been accepted by both the

Supreme Court and this Court as well,30 Indeed, the Supreme Court in Gaudet distinguished in successive paragraphs one from the other to thereby hold that both are recoverable under Moragne maritime law.31

Consequently, this was properly allowed against Seadrill (Item 8(a)(b)(c), Col. (C)) and so far as presently appears there is no basis for concluding that the Judge under Louisiana principles thought that he either should or could assess this against Conoco were Seadrill not liable under maritime principles.32

The Court in fixing the award for future loss of earnings made a 15% deduction (Item 4) for that portion of Wesley Law’s earnings which he would have expended on his own behalf had he lived. Conoco certainly, and Seadrill perhaps, contend that this deduction was too small. However, we think the findings of the Court were amply justified on the record. Law was the father of three minor children at the time of his death. As supervisor of the Superior Casing Crew employees on the job site, he was furnished a company car for his own use, eliminating what is a major expense for most people. In addition, Conoco introduced no evidence that would indicate to us that the expenses of Law were any greater than the 10% attributed to him in his wife’s estimates or the 15% used by the Court below.

In fixing the award for loss of future earnings the Court made an additional allowance for cost of living increase in the sum of $41,665.00 (Item 3).33 We

have had to hold up this opinion since this issue was pending before the Court en banc in Penrod,34 just decided,35 by holding such inflationary damages are not recoverable.

Both Conoco and Seadrill urge this Court to grant indemnity on several theories. The first is on the provisions of the contract. Seadrill points to the term requiring Conoco to provide an adequate platform on which to rest the ramp of the tender vessel. Conoco maintains that indemnity is justified because Seadrill had a duty (i) to examine and report all defects in equipment, (ii) to assume all responsibility for any loss caused by visible defects not called to the attention of the company, and (iii) to perform with due diligence and in a workmanlike manner.

But reading the contract in the light of this record and the findings of the District Court on fault we think that under both Louisiana36 law and general principles37 the contract lacks the requisite specificity to allow either of these two parties found guilty of active negligence to recover indemnity as negligent indemnitees.

The dying gasp at a WWLP under Ryan meets with a similar lack of success since we have repeatedly resisted all efforts to project this implied indemnity concept outside the special circumstances of the shipowner relationships that evoked the doctrine in the first place absent any contractual provisions in the underlying contracts.38

Lastly, we conclude that it was entirely proper for the District Court to award interest to run from the date of judicial demand against both defendants. National Airlines, Inc. v. Stiles, 5 Cir., 1959, 268 F.2d 400. Similarly, we believe that the award of $5,000 damages for the injury to LeBeouf was proper. Consequently we reverse as to Item (3) and delete this entirely from damages allowed.

Modified and as modified affirmed in part; reversed in part.