Nutt v. Loomis Hydraulic Testing Co.

552 F.2d 1126, 1977 A.M.C. 2340

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 27, 1977
• Docket: No. 75-2429
• Status: Published

Opinions

JOHN R. BROWN, Chief Judge:

This case, like most suits for indemnity, combines the best of musical chairs and hot potato — the object of the game is to be sitting pretty when the judicial music stops, by leaving the other party holding the spud. Here, while appellant was stuck with only half of the potato, he objects strenuously to having to bear any of it at all. In more austere terms it is the case of a vessel owner, cast entirely for the death of the operator of the other vessel, seeking and successfully obtaining contribution-indemnity under the 50/50 Divided Damages rule. The loser, owner of the other vessel, challenges any contribution on the ground (i) that negligence of its operator may not be imputed to it and, as an anchor to windward, urges (ii) apportionment should be based on comparative fault, not the old-time rigid 50/50 rule. We reject (i) but sustain (ii). Accordingly, our ditty in this case modifies the judgment of the magistrate below by reducing the amount of damages required to be borne by appellant, but as modified, we affirm.

The Accident

Decedent Uwell J. Derouen was employed by Loomis Hydraulic Testing Company, Inc. (Loomis) as a shop foreman. Bobby R. Nutt (Nutt) was an employee of Union Oil Company of California (Union). On December 12, 1966, the Decedent, together with Earl T. Strickland, a sales representative for Loomis, took the company motorboat¹ to check Loomis employees on Graeey-Hellum Rig # 5, a Union well.² Decedent and Strickland arrived at the rig around 4 p. m., stayed for about a half hour and departed.

When they departed Gracey-Hellums Rig # 5, Decedent was the operator. He proceeded down the canal, which dead-ended where Rig # 5 was located, doing approximately (as the parties described it, in very unnautical terms) 35 miles per hour. The weather was very cold and both men were heavily clothed. Due to the cold and wind they were both sitting behind the windshield which was cracked. As Derouen approached Union’s Main Terminal Area canal, he was navigating the motorboat parallel to and approximately 16 feet to the left of a mud bank five to eight feet high topped with thick vegetation four to six feet high. Derouen slowed the motorboat to about 15 to 18 miles per hour as he entered the intersection of that canal and the canal leading to Union’s Main Terminal.

At this time Nutt had departed Union’s Main Terminal at the end of that canal in Union’s crew boat.³ As the crew boat approached the intersection, it was approximately 30 to 40 feet from the left bank or to the left of the center of that canal. The sliding plexiglass window to the left of Nutt was cracked and fogged. Immediately prior to entering the intersection and in order to execute his turn, Nutt slowed his port engine, and turned his wheel slightly to the left. This action caused the boat to list to the left and begin her turn to port. At this point, the motorboat came into sight. At that moment the crew boat swerved to starboard and the motorboat simultaneously swerved to port resulting in the collision, which caused decedent’s death and totally destroyed Loomis’ boat.

State Trial Court

Suit was filed in Louisiana State Courts on Decedent’s behalf against Nutt, Union, and Union’s insurer, Aetna Casualty & Surety Company (Aetna).⁴ These defendants filed a third party petition against Loomis and its insurer, The Home Insurance Company (Home), seeking contribution-indemnity under the hold harmless provision of the service contract between Loomis and Union.⁵ After being impleaded, Loomis filed a reconventional demand against Union seeking damages for the loss of its vessel in the collision.

On June 8, 1971 the state trial court entered its judgment. It found that “both vessels were negligently operated and that this negligence of both proximately caused the collision”.⁶ After finding both parties negligent, the trial court applied the rules of comparative negligence then applicable to maritime tort claims growing out of a collision. In doing so, the trial court assessed Nutt’s negligence at 60% and Decedent’s contributory negligence at 40%.

Judgment was therefore entered in favor of Decedent’s widow and minor son, in the amount of $112,639.42, which represented the total Judgment award in favor of these plaintiffs⁷ ($145,000.00), less 40% deducted for the Decedent’s contributory negligence, plus court costs and interest. The court also found that Loomis did not intend to indemnify Union’s own negligence under the contract, and accordingly dismissed Union’s third party complaint against Loomis. Finally, Loomis received a judgment in the amount of $1,000.00, in its reconventional demand filed against Union for the damage to its boat.

After the Judgment of the Lower Court was affirmed by the First Circuit Court of Appeals for the State of Louisiana, and the Supreme Court of Louisiana denied writs, Union paid the heirs of Decedent $112,-639.42.

The Federal Indemnity Action

After Union was forced to pay the heirs of Decedent $112,639.42, it instituted litigation in United States District Court seeking contribution,⁸ under the Divided Damages rule,⁹ from Loomis and Home. After answer was filed, a joint stipulation of facts ¹⁰ was agreed upon and filed along with legal memorandum of counsel. On September 17, 1974, the'case was referred to the United States Magistrate for “adjudication on stipulation of facts and memorandum.”

Based upon the stipulated facts, the Magistrate concluded that, since the collision in question was caused by the mutual fault of both vessels and their operators,¹¹ Union was entitled, as a matter of fact and of law under the Divided Damages rule, to contribution from Loomis in the amount of $56,-319.71. Judgment was entered accordingly. It is from this judgment that Loomis and Home appeal, contending that (i) the District Court erred in imputing the negligence of Decedent to Loomis; (ii) United States v. Reliable Transfer Co., 1975, 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251, 1975 A.M.C. 541 should be applied retroactively to this ease; and (iii) under Reliable Transfer, Loomis should not have to pay anything, since Decedent’s award has already been reduced by 40%, the extent of Decedent’s contributory negligence.

Imputed Negligence

Loomis contends that the District Court erred in imputing the negligence of the Decedent to Loomis. Loomis relies primarily on the cases of Drewery v. Daspit Brothers Marine Divers, Inc., 5 Cir., 1963, 317 F.2d 425, 1963 A.M.C. 1787; and Loffland Brothers Co. v. Roberts, 5 Cir., 1968, 386 F.2d 540, 1968 A.M.C. 1463. Union argues in response that those cases are inapplicable. to a collision case where both vessels are at fault and the Divided Damages rule applies. Union relies on Empire Seafoods, Inc. v. Anderson,12 5 Cir., 1968, 398 F.2d 204, 1968 A.M.C. 2664, cert. denied, 393 U.S. 983, 89 S.Ct. 449, 21 L.Ed.2d 444, for the principle that the amount of a personal injury award or settlement must be included as an element of damages to be divided equally between the two offending vessels after first deducting any amount assessed against the personal injury claimant for his own contributory negligence.

The District Court concluded that the “question of whether the restriction on indemnity described in Loffland Brothers should affect the application of the Divided Damages Rule in a mutual fault collision is apparently one of first impression.” After phrasing the issue in this manner, the Court ruled that “the Divided Damages Rule is unaffected by the holding in Loffland Brothers, supra.”¹³

The District Court was correct in noting that this case is one of first impression. In this case, Derouen, Loomis’ employee, was 40% contributorily negligent and therefore partially responsible for causing this accident. Stated most favorably to Loomis, on the assumption that if Loomis is found to be negligent, it can only be through the imputed negligence of his servant, Derouen, it is clear that if Union sought indemnity, or if third parties such as cargo owners, or those sustaining personal injuries or property losses sought recovery, Loomis would be liable. See, e. g., Standard Oil Company v. Anderson, 1909, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480. Where, however, the only damages for which Union seeks apportionment are damages for the wrongful death of Derouen — the contributorily negligent employee of Loomis — Loomis understandably contends that the restriction on indemnity described in Loffland Brothers prevents the application of the Divided Damages rule or the application of the Reliable Transfer¹⁴ comparative negligence rule. The narrow, unique issue presented for our consideration, therefore, is whether the application of the normal rule in mutual fault collision cases — whether it be the Divided Damages rule or the Reliable Transfer comparative negligence rule — is dependent on who or what is injured, rather than on the fact of injury and the fact of mutual fault. For the reasons discussed below, we conclude that this issue must be decided against Loomis and that our decision does not stand on Drewery or Loffland.

Appellant cites both Drewery and Loffland for the sweeping proposition that “the negligence of an injured employee may not be imputed to his employer so as to render the employer liable in indemnity for the injur[y] sustained by the employee.” Drewery need not detain us for long. It, and its sweeping language, has since been limited to its particular facts and to the issues presented when a question of contractual indemnity is raised. See Lusich v. Bloomfield Steamship Company, 5 Cir., 1966, 355 F.2d 770, 777-78, 1966 A.M.C. 191; United States Lines Co. v. Williams, 5 Cir., 1966, 365 F.2d 332, 1966 A.M.C. 2418; see also Arista Cia. DeVapores, S.A. v. Howard Terminal, 9 Cir., 1967, 372 F.2d 152, 153-54, 1967 A.M.C. 312; cf. Shenker v. United States, 2 Cir., 1963, 322 F.2d 622, 629; but see White v. Texas Eastern Transmission Corp., 5 Cir., 1975, 512 F.2d 486, 489, n. 7, 1976 A.M.C. 1153; Loffland, supra, at 549-50; but cf., Carrillo v. Sameit Westbulk, 1 Cir., 1975, 514 F.2d 1214, 1218, 1976 A.M.C. 1369. In this case, the judgment allowing contribution-indemnity was based not upon the service contract between Union and Loomis,¹⁵ but upon the negligence of the vessels and operators involved in this accident.¹⁶

In Loffland an employee of a casing contractor was injured in an accident which occurred. during a casing operation on a fixed offshore drilling platform located on the Outer Continental Shelf off the coast of Louisiana. The platform was owned and operated by Continental Oil Company and the drilling operations were being performed by Loffland Brothers Company pursuant to a contract with Continental. Casing operations were performed under a standing contract between O.D. Casing and Continental.

The jury found that the employee’s injuries were caused mainly because of the negligence of the Loffland Brothers’ drilling employee. The injured employee was found to be ten percent contributorily negligent, however, and his judgment was reduced by that amount. Loffland then filed third party claims for indemnity against O.D. Casing and Continental. After Loffland’s claims were dismissed by the trial court, Loffland argued in the Court of Appeals that it was “ * * * entitled to seek indemnity from O.D. Casing on the theory of an implied warranty of workmanlike service [WWLP]. It argue[d] that O.D. Casing impliedly warranted under its contract with Continental to perform the casing operation in a workmanlike manner, and that Loffland, as a contractor on the offshore platform, was a third-party beneficiary of the contract between O.D. Casing and Continental.” Loffland, supra, at 548.

We rejected this argument on the ground that the doctrine of seaworthiness, which formed the basis for WWLP relied on by Loffland, had no application to this case, since “the offshore platform involved in this case was stipulated not to be a vessel, and [the injured employee] was consequently not a seaman.” ¹⁷ Id., at 549.

The Court also rejected the theory that Loffland could recover against O.D. Casing on a contract theory of indemnity: “We have held that an independent contractor employer at an oil well, such as Loffland, is not a third-party beneficiary to contracts between the well owner or lessee and another independent contractor.” Id., at 549.

The Court then went on to conclude that Loffland could not maintain its action against O.D. Casing on a tort theory of indemnity. However, its exclusive authority for doing so was Drewery, which it had cited for the proposition that “the negligence of an injured employee may not be imputed to his employer so as to render the employer liable in indemnity for the injur[y] sustained by the employee * * Id. at 549. As we have discussed above, Drewery had been limited to its particular facts and to the issues presented when a question of contractual indemnity is raised. Therefore, because Loffland’s discussion of the tort theory of indemnity is based on a case subsequently limited to its holding as to contractual indemnity, that discussion is of limited significance to the case before us now.

Loffland is therefore distinguishable. To the extent it relies on contract theories, it involves issues not now before us. To the extent that it discusses tort theories and indemnity, it is undercut as a binding precedent controlling this case by its total reliance on what has since become an outdated and inapposite authority.

Even more important, Loffland is distinguishable on its facts. It involved an offshore oil platform case, where no ships were involved and the platform was stipulated by the parties not to be a vessel.¹⁸ The case before us, on the other hand, involves injuries arising from the mutual fault collision of two vessels.

Questions of apportionment of damages in mutual fault collision cases occupy a unique and long-standing position in our law. Until the Supreme Court handed down its recent decision in Reliable Transfer, supra, the Divided Damages rule, with roots “shrouded in the mists of history,” (Reliable Transfer, supra, 421 U.S. at 401 n. 3, 95 S.Ct. at 1711) has withstood many attempts to create exceptions to it, though not for lack of attempts to do so.¹⁹ Reliable Transfer has substituted comparative negligence for the Divided Damages rule, but even with the comparative negligence rule, apportionment of damages in mutual fault collision cases still occupies a unique position in our law, with accordingly unique concepts of indemnity, contribution or both.

Under these circumstances we do not consider ourselves bound to apply a rule of contribution-indemnity born and nurtured in a non-collision, non-maritime²⁰ fact situation to that of a collision of two vessels, each of which is guilty of significant fault. In short, we chart a new course and may adopt that rule of contribution-indemnity which best comports with common sense, logic, history, and the current of authority in related fields of law, unaffected by shoals, currents, winds or tides existing in another area.

For several reasons, we conclude the best rule in this case is to impute the negligence of Derouen to Loomis, so as to allow Union to maintain its contribution-indemnity claim against Loomis. First, to rule the other way would be totally irrational. Under the normal rules of apportionment of damages in mutual fault vessel collision cases, the negligence of Derouen would be imputed to Loomis, so as to allow Union to shift part of its damages to Loomis, so long as the collision injured anything or anyone but Derouen. See Standard Oil Co. v. Anderson, supra. But Loomis proposes a rule that would change all this as soon as one factor is changed — that it is Derouen who was killed. The only possible justification we can see for such a rule is to “punish” Derouen’s heirs somehow for Derouen’s contributory negligence. But if such punishment is needed, it has already been provided by the trial court’s reduction of the judgment due Derouen’s heirs by 40%. Apart from the rejected Drewery-Loffland rationale, we can find no other justification for Loomis’ proposed rule and Loomis has suggested none, either in its brief or during oral argument.

Second, once the collision between these two boats took place, who or what was injured or killed was the result of fate — the parties involved might have control over getting into the accident in the first place, but they surely have no control in deciding who was killed or injured and who was spared death or injury. Tort law, unlike the law of strict liability, attempts to allocate losses arising out of human activity according to principles of fault. See Prosser, Torts 6 (4th ed. 1971). Under the circumstances of this case, fault cannot arise without control, imputed or otherwise. The fault in this case arises from negligently causing the accident in the first place, and not from the fortuitous circumstance that it was Derouen, rather than Nutt or Strickland, who was killed. Loomis proposes a rule in which it would incur liability in the second instance, while it would not in the first. Our rule, on the other hand, places the emphasis where it belongs — not on the fortuitous circumstance of who gets hurt, but on the parties’ degree of control over the accident. Loomis had sufficient control over the selection and supervision of its employees to justify imputing the employee’s negligence and allowing contribution-indemnity when the employee’s negligence injured a third party. Standard Oil Co. v. Anderson, supra. Loomis’ control is not diminished one iota by the fortuity that it is the negligent employee who was injured, rather than a third party. Under these circumstances, we refuse to apply Loomis’ proposed rule, and we find it to be irrational and not in accord with general principles of tort law or the general rules applicable to mutual fault vessel collision cases. Our rule, on the other hand, is sound on policy grounds, does not rest on artificial and unsound distinctions, and is in accord with the general principle of allocation of damages in mutual fault vessel collision cases.

Neither is our rule without precedent in other areas of the law. One such area is the Sieracki-Ryan-Yaka-Italia21 triangular suit between maritime worker, shipowner and contractor. Under this judge-made law, now statutorily dry-docked,²² a vessel could recover the damages for which it was liable to an injured seaman or pseudo-seaman where it could show that the stevedore breached an express or implied warranty of workmanlike performance (WWLP). In the Fifth Circuit, the contributory negligence of the injured seaman or longshoreman was a factor to be taken into consideration in determining whether the stevedore had breached his WWLP.²³ Under this judge-made principle, the contributory negligence of the employee was imputed, at least implicitly, to his employer, the stevedore, so as to require the stevedore to indemnify the shipowner for the damages already paid by the shipowner for the employee’s injuries. Other Circuits have refused to be limited by our “factor” approach and have held that the employees’ contributory negligence is directly and explicitly imputed to his employer, the stevedore, thus establishing an automatic breach of the stevedore’s WWLP.²⁴

Although this is not a WWLP situation, what we have done in those cases governed by maritime law is a strong indicator that in this area, the Court never felt bound by Loffland and Drewery. The District Court was correct in imputing the negligence of Derouen to Loomis for the purpose of determining whether Union could seek indemnity from Loomis.

50%/50% Or 40%/60%?

Loomis’ second, and final, argument centers around its interpretation of Reliable Transfer, which it contends should be retroactively applied to this case. Reliable Transfer replaced the Divided Damages rule ²⁵ in mutual fault vessel collision cases with the rule of comparative negligence:

“We hold that when two or more parties have contributed by their fault to cause property damage²⁶ in a maritime collision or stranding, liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault, and that liability for such damages is to be allocated equally only when the parties are equally at fault or when it is not possible fairly to measure the comparative degree of their fault.” Reliable Transfer, supra, 421 U.S. at 411, 95 S.Ct. at 1715.

Because this case was tried and appealed before Reliable Transfer was delivered by the Supreme Court, the Louisiana state courts and the District Court all applied the Divided Damages rule. Loomis argues that, assuming Reliable Transfer is retroactive, Loomis is not liable to indemnify Union for any part of the judgment finally paid out by Union. Loomis’ argument proceeds in this fashion: Derouen’s contributory negligence, amounting to 40%, was deducted from the Judgment, so that Union paid for its own (60%) negligence, while Derouen paid for his own (40%) negligence. Therefore, so the argument runs, Union’s liability did not result in any way from Derouen’s negligence but was actually mitigated by it by a reduction in the judgment by 40%. Loomis argues that if the judgment below is affirmed, this Court will have “fictitiously put back Derouen’s negligence so that this negligence can be imputed to Loomis with the net result of Loomis 'reimbursing Union for one-half of Union’s damages which is the same as reimbursing ■Union for one-half of Union’s negligence.” Loomis contends that this result would be unjust, because “Union, with 60% of the negligence [would pay only] a net total of 30% of the damages [while] Loomis and Derouen, if negligence is imputed, with 40% pf the negligence, will pay or absorb 70% of the damages.”

Although beguiling, this sophistic argument proceeds on a decisively false assumption. The Divided Damages rule is 1 based not on what the damage victim I claimed or on what the claim might have • amounted to had it not been reduced by! contributory negligence or otherwise. It is! based on what each party paid out or incurred. The principle is that that cost is to be borne by each. Here, the entire cost of, decedent’s death was borne by Union, ¡ Loomis not having paid or incurred any loss < therefore. The reduction by decedent’s • contributory negligence was a boon to each, l but is utterly irrelevant to striking the balance under the Divided Damages rule or the comparative negligence rule of Reliable Transfer. Therefore, if Reliable Transfer is retroactive, then Loomis must bear that share of the damages which is proportionate to the comparative degree of its imputed fault, since it has contributed by its imputed fault to cause damage in a maritime collision.²⁷

This Circuit has already held that Reliable Transfer should be applied retroactively. Matter of S/S Helena, 5 Cir., 1976, 529 F.2d 744, 754, 1976 A.M.C. 2022. See also People of State of California v. Italian Motorship Ilice, 9 Cir., 1976, 534 F.2d 836, 840 & n. 1, 1976 A.M.C. 2290; Kinsman Marine Transit v. Great Lakes Towing Co., 6 Cir., 1976, 532 F.2d 1073, 1074, 1976 A.M.C. 493; Crown Zellerbach Corp. v. Willamette-Western Corp., 9 Cir., 1975, 519 F.2d 1327, 1330, - A.M.C. -. Accordingly, under Reliable Transfer, Loomis must bear 40% of the final judgment Union was required to pay Derouen’s heirs, since Loomis was (through the imputed negligence of Derouen) 40% at fault in the accident. Because the trial court erroneously required Loomis to pay 50% of the judgment initially borne by Union, we must reverse and remand to the District Court for a reduction of damages assessed against Loomis from 50% of the total judgment initially paid by Union to 40% of that amount.

AFFIRMED IN PART: REVERSED AND REMANDED IN PART.

1 . The motorboat was 16 feet long and was built of fiberglass.

2 . The work being performed on Rig # 5, located on Louisiana inland waters, was pursuant to a “Service Contract” between Union and Loomis, dated December 4, 1966.

The first paragraph of the pertinent article of the “SERVICE CONTRACT” reads as follows:

“6. INDEMNIFICATION AND INSURANCE CONTRACTOR

[Loomis] assumes and agrees to hold harmless, indemnify and defend UNION against any and all liability for injuries and damages to CONTRACTOR himself and to CONTRACTOR’S employees, agent, sub-contractors and guests, incident to or resulting from any and all operations performed by CONTRACTOR under any of the terms of this contract.

This contract goes on further and in specific detail to require Loomis to assume full liability for all damage to Union’s equipment, but expressly limits this undertaking to losses resulting from Loomis’ negligence and, finally, to carry various types of liability insurance coverage in specified amounts for the protection of it and Union while Loomis is performing its work under the contract.”

3 . This was a 30 foot metal crew boat.

4 . Since the accident occurred at the intersection of two navigable canals, the dispute fell within the admiralty jurisdiction of the United States. However, suit was brought in state court under the Savings to Suiters Clause of the Constitution, which gives state and federal courts concurrent jurisdiction in cases involving maritime personal injury claims based on negligence.

5 . See note 2, supra. Whether by accident or fortuitous prescience the Union defendants were careful not to seek indemnity or contribution under usual maritime tort principles.

6 . The trial court found that Decedent’s negligence consisted of entering a blind intersection without sounding a horn and at an excessive rate of speed under the circumstances, well knowing that this particular intersection where the accident occurred was heavily traveled. Nutt’s negligence consisted of traveling on the wrong side of the canal and operating the crew boat at an excessive rate of speed under the circumstances, failing to sound a horn on entering the intersection and operating the boat in the manner indicated with cracked and fogged windows.

7 . This suit was consolidated with a suit for damages brought against the same defendants by Strickland, the passenger in the Loomis boat for injuries he suffered as a result of the accident.

8 . In the amount of $56,319.71, or one-half of the amount paid by Union to Decedent’s heirs.

9 . See note 15, infra.

10 . Stipulations Numbers 14 and 15 provided:

14.

On the basis of the foregoing, both vessels as a matter of fact and law were negligently operated and the negligence of both proximately caused the collision.

15.

The motorboat being operated by Derouen entered a blind intersection without sounding a horn and at an excessive rate of speed under the circumstances. Derouen had been in this area many times and knew that the intersection was heavily traveled. Knowing this, unable to see because of vegetation and traveling in a motorboat with a cracked windshield, he entered the intersection. The foregoing constituted negligence which was a proximate cause of the collision.

On the other hand, the crew boat was traveling on the wrong side of the bayou, with cracked and fogged windows and at an excessive rate of speed. Nutt likewise failed to sound a signal before entering the intersection. For these reasons the crew boat was also negligently operated and this negligence constituted a proximate cause of the collision.

11 . In ruling on a motion for new trial, the Magistrate concluded that “the obvious conclusion from the facts stipulated is that LOOMIS is vicariously liable under the doctrine of respondeat superior for the torts of its employee.” The District Court adopted all of the Magistrate’s findings of fact and conclusions of law.

12 . The Court below distinguished Empire (correctly, we think) on the ground that the employer/bridge owner in that case was held to be negligent in his own right, apart from any negligence which might be imputed to him from his employees.

13 . Union also relies on Weyerhaeuser Steamship Company v. United States, 1963, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1, 1963 A.M.C. 846; and upon Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 1952, 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed.2d 318, 1952 A.M.C. 1; for the proposition that personal injury awards, either by way of settlement or judgment against one of the two offending vessels, are to be included in the measure of damages to be allocated between both offending vessels in a mutual fault-divided damages situation.

14 . United States v. Reliable Transfer, 1975, 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251, 1975 A.M.C. 541.

15 . See App., at 45 — 48, 68-73.

16 . Drewery is also distinguishable on the ground that it is not a collision case. See text at note 18, infra.

17 . We “have held that the Ryan [WWLP] doctrine [Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133] is closely tied to a vessel and this obligation which the shipowner owes to those employed on the vessel. * * * We are accordingly extremely hesitant to extend the burdensome Ryan doctrine to situations not substantially similar to those which gave birth to the doctrine. The obligations which the owner of an offshore drilling platform owes to those employed on it are not sufficiently similar to those owed by a shipowner to a seaman to permit the extension of the doctrine.” Id. at 549.

18 . Significantly, in the light of Rodrigue v. Aetna Casualty & Surety Co., 1969, 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360, 1969 A.M.C. 1082, which held that. federal maritime law does not apply to offshore platforms in the Outer Continental Shelf, Loffland turns out to be just the equivalent of a Louisiana case applying Louisiana surrogate law. See also Executive Jet Aviation, Inc. v. City of Cleveland, 1972, 409 U.S. 249, 258-59, 93 S.Ct. 493, 34 L.Ed.2d 454, 1973 A.M.C. 1; Chevron Oil Co. v. Huson, 1971, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296, 1972 A.M.C. 20, reversing in part Huson v. Chevron Oil Co., 5 Cir., 1970, 430 F.2d 27. Lofñand should not therefore control a case which by every test is a blue water maritime controversy subject exclusively to federal maritime law.

19 . See, e. g., Weyerhaeuser Steamship Co. v. United States, supra; The Chattahoochee, 1899, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801.

20 . See note 18, supra.

21 . Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, 1946 A.M.C. 698; Ryan Stevedoring Co. v. Pan-Atlantic SS Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, 1956 A.M.C. 9; Reed v. S.S. Yaka, 1963, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448, 1963 A.M.C. 1373; Italia Societa v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732, 1964 A.M.C. 1075.

22 . By the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.A. § 901 et seq.

23 . See, e. g., LeBlanc v. Two-R Drilling Co., 5 Cir., 1976, 527 F.2d 1316, 1976 A.M.C. 303; Julian v. Mitsui O.S.K. Lines, Ltd., 5 Cir., 1973, 479 F.2d 432, 1973 A.M.C. 1477; D/S Oves Skou v. Hebert, 5 Cir., 1966, 365 F.2d 341, 1966 A.M.C. 2223; United States Lines Co. v. Williams, 5 Cir., 1966, 365 F.2d 332, 1966 A.M.C. 2418; Lusich v. Bloomfield Steamship Co., 5 Cir., 1966, 355 F.2d 770, 1966 A.M.C. 191.

24 . See, e. g., United States Lines, Inc. v. Jarka Co., 4 Cir., 1971, 444 F.2d 26, 1971 A.M.C. 1351; McLaughlin v. Trelleborgs Angfartygs A/B, 2 Cir., 1969, 408 F.2d 1334, 1969 A.M.C. 1387, cert. denied sub nom., Gotten Marine Company v. Trelleborgs Angfartygs A/B et al., 395 U.S. 946, 89 S.Ct. 2020, 23 L.Ed.2d 464; Vaccaro v. Alcoa S/S Co., 2 Cir., 1968, 405 F.2d 1133, 1969 A.M.C. 503; Arista Cia. DeVapores, S.A. v. Howard Terminal, 9 Cir., 1967, 372 F.2d 152, 1967 A.M.C. 312; Mortensen v. A/S Glittre, 2 Cir., 1965, 348 F.2d 383, 1965 A.M.C. 2016; Damanti v. A/S Inger, 2 Cir., 1963, 314 F.2d 395, 1963 A.M.C. 852. See also Gilmore & Black, the Law of Admiralty 446 (2d ed. 1975).

25 . “The operation of the rule was described in The Sapphire, 18 Wall 51, 56, 21 L.Ed. 814:

‘It is undoubtedly the rule in admiralty that where both vessels are in fault the sums representing the damage sustained by each must be added together and the aggregate divided between the two. This is in effect deducting the lesser from the greater and dividing the remainder * * *. If one in fault has sustained no injury, it is liable for half the damages sustained by the other, though that other was also in fault.’

Similarly, in The North Star, 106 U.S. 17, 22, 1 S.Ct. 41, 45, 27 L.Ed. 91, the rule was thus stated:

‘[A]ccording to the general maritime law, in cases of collision occurring by the fault of both parties, the entire damage to both ships is added together in one common mass and equally divided between them, and thereupon arises a liability of one party to pay to the other such sum as is necessary to equalize the burden.’ ” Reliable Transfer, supra, at 400 n. 1, 95 S.Ct. at 1710.

26 . Under the old Divided Damages rule, personal injury awards, either by way of settlement or judgment against one of the two offending vessels, were to be included in the measure of damages to be allocated between both offending vessels in a mutual fault-divided damages situation. See note 6, supra. In light of the Supreme Court’s general and vociferous criticism of the Divided Damages rule in Reliable Transfer, we are certain that the Court’s phrasing of its holding in terms of “property damage” does not foreclose application of comparative negligence principles when personal injury awards are at stake. Claims for personal injury and death to crew members or outside third parties have always gone into the total losses incurred for striking the North Star balance. What the Court in Reliable Transfer was doing was freeing courts from the anachronism of the 50/50 deadhand.

27 . Nor is this result at all unjust. If the collision between Loomis’ boat and Union’s boat had injured a third party, the negligence of the operator of Loomis’ boat would be imputed to Loomis, and Loomis would have to bear its proportionate share of the damages caused by the collision. Cf. Standard Oil Co. v. Anderson, supra. To change this result simply because the Loomis operator’s negligence contributed to his own death would be arbitrary and contrary to the basic principles underlying tort law.