Barrios v. Louisiana Construction Materials Co.

465 F.2d 1157, 1972 A.M.C. 2659
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 1, 1972
DocketNo. 71-2029
StatusPublished
Cited by46 cases

This text of 465 F.2d 1157 (Barrios v. Louisiana Construction Materials Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157, 1972 A.M.C. 2659 (5th Cir. 1972).

Opinions

LEWIS R. MORGAN, Circuit Judge:

This case involves a claim for personal injuries under the Jones Act1 and the general maritime law. In the court below, Nolan J. Barrios obtained a judgment against Williams-McWilliams Industries, Inc. (hereinafter Williams-Me-Williams) and A. O. Rappelet d/b/a Louisiana Construction Materials (hereinafter Rappelet) as joint tort-feasors. Rap-pelet successfully cross-claimed against Williams-McWilliams for indemnification. On appeal, all of the parties have assigned various points of error. After reviewing these contentions, we affirm the judgment of the district court in all respects.

I.

In 1965 Williams-McWilliams contrac-ed with the Greater Lafourche Port Commission for construction of port facilities adjacent to Bayou Lafourche, Louisiana. The contract called, inter alia, for the construction of a flood protection levee near Bayou Fourchon. To build the levee, Williams-McWilliams rented from Louisiana Construction Materials Company a 90-ton dragline.

Louisiana Construction Materials Company was a sole proprietorship owned by A. O. Rappelet who was also president of the Greater Lafourche Port Commission. Rappelet’s position on the Port Commission barred his company from contracting directly with the Port Commission, but did not prohibit the leasing of equipment to the various contractors doing work for the Port Commission.

Williams-McWilliams hired appellee Barrios to serve as an oiler on the drag-line. Barrios had been employed by Rap-pelet as an oiler on the dragline prior to its rental to Williams-McWilliams for the levee work, and was hired by Williams-McWilliams because he was fami-lar with the equipment and available for work. Also hired was another former Rappelet employee, Junius Dufrene, to serve as the operator of the dragline.

Work commenced on the levee in August, 1965, when the dragline was loaded on a spud barge and transported to Bayou Fourchon where it was unloaded. The dragline began operations 500 feet from the water’s edge and moved inland. The barge remained at the worksite and was used to store oil, fuel, and equipment for the dragline.

[1160]*1160Shortly thereafter operations were suspended because of Hurricane Betsy. While the work was suspended, the drag-line was loaded on the barge and returned to Leeville and subsequently rented to Gulf Oil Corporation for dredging operations in Timbalier Bay. During the operation in Timbalier Bay, the dragline, remained onboard the barge and operated from it. Dufrene and Barrios remained with the dragline and were shifted back to Rappelet’s payroll. By late November, 1965, the work for Gulf was completed and the dragline was moved back to Bayou Fourchon where work on the levee resumed. Dufrene and Barrios returned to the Williams-McWilliams payroll.

In January, 1966, the dragline became bogged down in mud. The spud barge with Dufrene and Barrios aboard was towed to the Port Commission facility in order to obtain a second dragline to help free the first 90-ton dragline and get it back into operation. The second dragline was loaded on the barge on January 21, 1966.

Shortly after the second dragline was loaded on the barge, it was discovered that the lifting cable of one of the barge’s spuds was fouled. Spuds are vertical steel columns at each end of the barge. When the barge is afloat, the spuds are lowered to the water bottom and serve to hold the barge in place. Each spud is equipped with a power winch and cable by which it is raised or lowered. Thus, it was necessary to remove and replace the fouled cable before the barge could be moved.

The second dragline, which was then on the barge, was used to raise the spud. On this particular spud, the dogs had been removed so that the spud could not be locked in the raised position. Thus, it was necessary to use the dragline to hold up the spud. With the weight of the spud off the cable, the cable was pulled from the sheaves in the spud by hand. While physically pulling on the cable, Barrios sustained, an injury to his back. Barrios reported his injury within a few days. Thereafter, he began receiving Louisiana State Workmen’s Compensation from Williams-MeWilliams at the rate of $35.00 per week.

Payments were terminated when Barrios brought the instant suit naming Rappelet and Williams-MeWilliams as defendants. Also named as defendants were Employers Group Insurance Company and ABC Insurance Group, the liability insurers for the two companies. Barrios’ complaint alleged Jones Act negligence as well as unseaworthiness as the bases for recovery. Simultaneously, Barrios brought a second action against Rap-pelet and Williams-MeWilliams for maintenance and cure and for damages for failure to pay maintenance and cure. The two actions were consolidated for trial.

Williams-MeWilliams cross-claimed against Rappelet for indemnification and for recovery of $4,628.21 in workmen’s compensation benefits paid to Barrios. Likewise, Rappelet cross-claimed against Williams-MeWilliams for indemnification. The cases were tried to a jury, except that the cross-claims for indemnification were tried to the court. On the basis of answers to written interrogatories to the jury,2 judgment was enter[1161]*1161ed for the plaintiff Barrios against all defendants on all claims except for damages for willful failure to pay maintenance and cure. On that issue, the jury failed to reach a verdict, and by agreement, the matter was submitted to the court. The court dismissed the claim. The court ruled in favor of Rappelet and against Williams-McWilliams on the cross-claims for indemnification.

II.

A. The remedial ambit of the Jones Act extends only to injured individuals who are “seamen” and “members of a crew” of a vessel.3 See Swanson v. Mar-ra Bros., Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946). Williams-Mc-Williams’ initial contention is that the evidence is insufficient to support the jury’s finding that Barrios was a seaman. We disagree.

Traditionally, it has been said that there are three requirements which must be present in order for the injured individual to qualify as a seaman: (1) there must be a vessel in navigation; (2) the individual must have a more or less permanent connection with the ship; (3) the capacity in which the individual is employed or the duties which he performs must contribute to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. See Offshore Company v. Robison, 5 Cir. 1959, 266 F.2d 769; McKie v. Diamond Marine Company, 5 Cir. 1953, 204 F.2d [1162]*1162132; Brannan v. Great Lakes Dredge & Dock Co., 253 Minn. 28, 91 N.W.2d 166 (1958).

However, at least since the Supreme Court’s two decisions in Senko v. La Crosse Dredging Corporation, (1957) 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404, reh. den. 353 U.S. 931, 77 S.Ct. 716, 1 L.Ed.2d 724 and Grimes v. Raymond Concrete Pile Co. (1958), 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737, it has been clear that it is a rare case indeed in which a court may conclude as a matter of law that an injured individual is not a seaman within the meaning of the Jones Act. In Senko the court held that:

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Bluebook (online)
465 F.2d 1157, 1972 A.M.C. 2659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrios-v-louisiana-construction-materials-co-ca5-1972.