LANASSE v. TRAVELERS INSURANCE COMPANY

Rehearing and Rehearing En Banc Denied January 12, 1972.

JOHN R. BROWN, Chief Judge:

This is another one of those seagoing donnybrooks in which all generously claim that someone else must bear the burden of amounts paid to a seaman for injuries sustained during a typical offshore drilling operation in Louisiana shelf waters. Aside from the usual complexities arising from impleaders, crossclaims, direct actions against underwriters and demands for indemnity, it is also a case in which the party that wrote the contract claims it does not mean what it says and means what it does not say.

The now-to-be-forgotten victim (Porphire Lanasse) was a crew member on the utility tender Bo-Truc No. 5,1 then under time charter to Chevron.2 By stipulation Cheramie settled the claim brought by Lanasse as a full-fledged bluewater seaman against Cheramie and on diversity against Chevron. The case as submitted to the District Court, lacking only an ailing plaintiff, was for the determination of who should bear any, all or part of the loss.3

The District Court was unpersuaded by Chevron's arguments on both the indemnity contract and the P & I policy and entered judgment against Chevron for the full amount paid by Cheramie in settlement of the claim for maintenance and cure and damages asserted by Lanasse.

What Happened to Lanasse

As usual, all but forgotten is the event which brings all this about, certainly as to Lanasse's problems. Cf. United Services Automobile Association v. Russom, 5 Cir., 1957, 241 F.2d 296.

On April 25, 1964 M/V Bo-Truc No. 5 was operating in the Gulf of Mexico under a written time charter between Cheramie and Chevron.4 Chevron ordered the vessel to proceed to its fixed off-shore production platform "Zulu" for the purpose of moving a welding machine from the west to the east side of the structure. The weather was clear, Bo-Truc No. 5 was heavily ballasted and riding well on the water, there was only a little wind and a few small swells, and the only cargo on deck consisted of three mud pallets which had been stacked 10 to 12 feet behind the wheelhouse5 in order to make room for the welder.

After transferring a supply of potable water to the platform, the vessel proceeded to the west side of the rig where without incident Chevron's crane operator, Plaisance, lowered the welding machine onto the afterdeck of Bo-Truc No. 5. While the machine was being secured and Bo-Truc No. 5 moved to the other side of the platform, Plaisance crossed to the east side, positioned himself at the controls of the crane located there, and proceeded to lower the line and hook. His view of the waiting vessel was clear and unobstructed.

When the hook had been lowered it was caught by a deckhand and handed to Lanasse, who proceeded to attach it to an eye on top of the welding machine. Although there is conflicting testimony as to what followed, the District Court found—and Chevron does not seriously challenge these findings—that after the hook was secured but before either man had moved clear, the crane operator began lifting but stopped when the machine was 5 or 6 inches above the deck, causing the load to swing against the starboard railing of the vessel and then back into Lanasse. Plaisance then lowered the machine back onto the deck, and in attempting to get out of the way Lanasse was knocked back and pinned against the pallets. Only his great size and physical strength prevented him from being crushed to death.

The District Court also found that (i) the sole proximate cause of the injury was the negligence of Chevron's crane operator, (ii) the vessel was not unseaworthy and (iii) no member of the vessel's crew was guilty of negligence. While Chevron half-heartedly challenges these findings, we think they are amply supported by evidence in the record that rises way above the Plimsoll line of F. R.Civ.P. 52(b). They are not clearly erroneous, and we accept them.

How to Escape from Crane Operator's Negligence

Essentially Chevron's main argument is that even though the mishap was solely the result of its own negligence, any resulting liability fell on Cheramie under the indemnity provision in the time charter (note 4, supra.). In addition, Chevron claims its liability was also covered under the terms of a standard P & I policy6 obtained by Cheramie in accordance with the terms of the charter. The policy incorporated the typical provision insuring liabilities of the assured as shipowner.7 Coverage was expressly extended to Chevron as an additional assured and, even more significantly, the underwriters' right of subrogation against Chevron was expressly waived.8

The Indemnity Covenant Too Loose

The indemnity provision in the time charter insulated Chevron only against liability for claims "directly or indirectly connected with the possession, management, navigation, and operation" of the vessel. Cheramie does not have a legal responsibility for the consequences of the negligent operation of the crane —the proximate cause of the injury— because, on the facts found, the operation of the crane was not even remotely related to the operation, navigation or management of the vessel. As broad as those terms are to comprehend injuries caused by the operation of the vessel in a practical sense, they do not comprehend an occurrence in which the vessel's sole contribution is to be there as the carrier from which the cargo is being removed.

Even, however, if we were to stretch the limits of the English language to find that somehow the crane operator was "indirectly" engaged in the "operation" of Bo-Truc No. 5, or vice versa, we still could not read the charter clause to blanket Chevron with the claimed immunity against liability for the negligence of its own employees. As we stated in Batson-Cook Co. v. Industrial Steel Erectors, 5 Cir. 1958, 257 F.2d 410, 413, "the purpose to impose this extraordinary liability * * * must be spelled out in unmistakable terms. It cannot come from reading into the general words used the fullest meaning which lexicography would permit." Liability of this sort can arise only from the plainly expressed intention of the parties, manifested by language couched in unmistakable terms,9 not from a mere after-the-fact judicial inference based solely upon what Chevron claims it intended to say but did not.10 The lack of concreteness and specificity cannot be cured at this late date by the unilateral contention of one party that it meant to impose unlimited liability on the other side.

P & I Policy Does Not Cover

The Trial Judge was also right in holding that the P & I policy did not cover this claim because Chevron as an additional assured (see note 6, supra) did not become liable "as owner of" the vessel. The fact findings—which no one can, or does, challenge—are specific. The vessel and her crew were, on the one hand, absolved from all wrong or unseaworthiness. Chevron, on the other hand, was found at fault for the manner in which the crane was operated. The vessel offered nothing further than a condition or locale for the accident.

There must be at least some causal operational relation between the vessel and the resulting injury. The line may be a wavy one between coverage and noncoverage, especially with industrial complications in these ambiguous amphibious operations plus those arising from the personification of the vessel as an actor in a suit in rem. But where injury is done through nonvessel operations, the vessel must be more than the inert locale of the injury.11 Nothing more occurred here, for it was Chevron's actions as a platform operator or as a crane operator that caused the harm, and that does not make it a liability of a shipowner.12

Thus far we speak with a single voice and conclude that the Trial Court was correct, with the result that the judgment is affirmed.

P & I Underwriter Pursues Its Assured*

Although the parties have not pressed it here as such, a serious question arises on the face of the policy. We should notice it under the broad reservations of issues to be adjudicated in subparagraph (4)(c) of the stipulation (see Note 3, supra).

Chevron is, without a doubt, an additional assured. True, it cannot claim the affirmative benefit of the coverage, since the liability imposed was not that of a shipowner. But the claim as tried is not primarily for affirmative recovery.13 It is a claim by Cheramie and presumably its underwriters for recoupment of the sums paid to Lanasse, the injured seaman. If, as is likely, the defense of Cheramie was by the P & I underwriters and payment of the settlement was in effect made by them, then clearly the underwriter could not in its own name (or in the more appealing name of its assured) recover against Chevron in the face of the explicit policy provision waiving subrogation. Great American Ins. Co. of New York v. Gulf Marine Drilling No. 1, 5 Cir., 1962, 302 F.2d 332; Insurance Company of North America v. Elgin, Joliet & Eastern Railway Co., 7 Cir., 1956, 229 F.2d 705. Indeed, the usual rule independent of a contractual provision is that an underwriter cannot recover by way of subrogation against its own assured. Builders & Mfrs. Mut. Casualty Co. v. Preferred Automobile Ins. Co., 6 Cir., 1941, 118 F.2d 118; New Amsterdam Casualty Co. v. Homans-Kohler, Inc., D.C.R.I., 1970, 310 F.Supp. 374, 376 and cases cited therein. It is all the more applicable when the contract is as specific as it is here.

However, since the issue was not raised in the trial court, I think that we should remand for a determination of whether this protection was waived by Chevron or otherwise foreclosed by a settlement obviously worked out in a practical way by knowledgeable former proctors.14 If it was, then the whole judgment ought to be affirmed. If not, the holdings on the indemnity clause and affirmative coverage under the P & I policy should stand affirmed, with such disposition thereafter as might be appropriate.

Affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.