source: Caselaw Access Project

author: TRASK, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. BISSETT-BERMAN CORPORATION, Pike Corporation of America, Western Offshore Drilling and Exploration Company and M/V NESCO I, Defendants-Appellees.
    No. 71-1658.
    United States Court of Appeals, Ninth Circuit.
    June 7, 1973.

      John F. Meadows (argued), Admiralty and Shipping Section, Dept, of Justice, San Francisco, Cal., Robert L. Meyer, U. S. Atty., Clarke A. Knicely, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellant.
    Gerald N. Gordon (argued), of Paul & Gordon, Lawrence D. Bradley, Jr. (argued), B. H. Dorman, Jr., of Lillick, McHose, Whc Adams & Charles, Los Angeles, Cal, for defendants-appellees.
    Before DUNIWAY and TRASK, Circuit Judges, and TALBOT SMITH, District Judge.

       The Honorable Talbot Smith, United States District Judge, for the Eastern District of Michigan, sitting by designation.

   TRASK, Circuit Judge:

Summary judgments were entered against the United States and in favor of the defendant, Bissett-Berman Corporation, and others in actions filed by the United States as plaintiff, under 28 U. S.C. § 1345, to recover damages for breach of contract to make certain marine installations. The United States appeals from those summary judgments for the defendants. We affirm.

On June 11, Í964, the Navy Electronics Laboratory (NEL) invited a proposal for the design, fabrication, installation at sea, and operational testing in situ of what was described as a “Deep-Moored Vertical Hydrophone Array with Radio Telemetry Line.” The invitation contemplated a proposal to award two contracts to the same contractor. First, a research and development contract covering the design, fabrication and interim testing of the array; and second, a time and material contract covering the installation and checkout at installation sites.

Bissett-Berman Corporation (BBC) was awarded both contracts. The manufacturing contract was completed and after dockside checkout was approved, BBC proceeded with the installation of the system at sea at a point approximately 18 miles off Point Arena, California. For this purpose BBC chartered a ship, the M/V Nesco I from Western Offshore Drilling & Exploration Company (WODECO), a division of Pike Corporation of America. The system was installed on or about April 27, 1967. In place it consisted of surface marker buoys to which was attached a polypropylene line leading to a subsurface buoy some 1,000 feet below the surface. From that point an armored cable descended 5,000 feet more to the bottom. Although anchored at the bottom, the cable thereafter extended 7,000 feet along the bottom to a point at which it was again anchored. It then was brought to the surface where it attached to the transmission buoy. The hydrophone array was attached to the descending cable. Thus, on the surface the marker buoys and the transmission buoy were 7,000 feet apart although connected by a continuous line and cable beneath the surface.

Approximately 30 days after initial installation the transmission buoy broke loose and the cable to which it was attached dropped to the floor of the ocean. This buoy was recovered, repaired, and BBC was instructed by the United States to reinstall the system. The plan was to recover the system by locating the two marker buoys, which established the other end of the system, and by pulling these on the ship and thereafter the cable to which they were attached. This procedure would result in the recovery of the hydrophone array and the rest of the cable to which the transmission buoy had been attached at the opposite end of the installation. The transmission buoy would then be reattached to its end of the system and the apparatus replaced in the sea.

The marker buoys on the surface were located and pulled aboard. Because it was difficult to haul in the line, Mr. Wyborny, the BBC employee in charge of the operation, instructed the captain by hand signal to back the ship so as to create slack in the line. Too much slack was created quickly however permitting the polypropylene line to become entangled in the propellers. During an attempt to splice the line around the tangle, it parted and all was lost beneath the surface.

As a result of the loss of the hydrophone array, the United States filed this action asserting several claims against BBC. The first was for breach of the contracts claiming damages; second, for breach of warranty that the system was free from defects and conformed to specifications; third, for the amount of insurance coverage procured by BBC to protect and indemnify BBC against liability for loss or damage to government property in BBC’s possession or control; fourth, for gross negligence tantamount to willful misconduct or bad faith on the part of BBC’s representatives in their handling of government property. The total amount sought was $742,561.50.

In addition, and in the same action below, the United States asserted several claims in separate causes of action against Pike, owner of Nesco I, and WODECO, operator of Nesco I, in personam and against Nesco I in rem. The first cause of action was for damage caused by the negligent navigation of the vessel resulting in the fouling of the polypropylene line and the loss of the array; the second was for damage caused by negligence of the crew.

Finally, the United States added a fifth and sixth cause of action against BBC sounding in contract, asserting that to the extent that BBC had failed to provide in its subcontracts with the divers, (fifth cause of action), and with the vessel and its owners, (sixth cause of action), for liability of the subcontractors to the government and had by subcontract relieved the subcontractors of liability for loss and destruction of the array, BBC was liable to the United States. In support of this theory, the United States relied upon a paragraph of the Pike and WODECO subcontract which provided that BBC personnel aboard the ship would be in complete charge of the installation thus making the Pike and WODECO personnel on the ship “borrowed servants” of BBC and exonerating them from direct liability according to the government’s theory.

Under Rule 56(c) Fed.R.Civ.P. a summary judgment shall be rendered forthwith,

“if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The affidavits shall be made on personal knowledge,

“shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 56(e).

Thus, the district court does not try issues of fact. Its function is to determine whether an issue of fact exists which might be material to the determination of an issue in the case. On review it is our function to determine “whether there is any genuine issue of material fact underlying the adjudication, and, if not, whether the substantive law was correctly applied.” 6 Moore’s Federal Practice (2d ed.) ¶ 56.27 [1] at 2973; Vickery v. Fisher Governor Co., 417 F.2d 466 (9th Cir. 1969).

The issue upon which the district court decided the case in favor of BBC was that all of the claims asserted by the United States against BBC in the first four causes of the First Amended Complaint were barred by a Stipulation of Settlement executed between the parties on December 22, 1969.

After the loss of the array and before the action was filed in the district court, the contracting officer of the government directed BBC to pay certain sums to it as damages for the loss of the array and announced that the government was not obligated to pay the balances due under the contract. BBC appealed both decisions to the Armed Services Board of Contract Appeals (ASBCA). The pleadings in those cases raised the same legal issues as are set out in the first four causes of action of the government’s complaint in this litigation. During the course of preparation for the trial of those appeals and following the pretrial hearing, attorneys for the government instituted negotiations looking toward a settlement of the two cases which had been consolidated. After a number of conversations and meetings concerning the settlement an agreement was reached and a stipulation prepared, but a representative of the government refused to approve it and took it to Washington for further review and consideration. Almost two months later negotiations were resumed, a Stipulation of Settlement was prepared by the government and signed by the parties. It carried the caption of the ASBCA action, identified the two cases on appeal and was filed in the case.

On December 29, 1969, an Order of Dismissal with Prejudice was entered in the cases based upon the Stipulation of Settlement which had been filed. The order carried the caption of the two cases and showed the appearance of Murray H. Marker, Esq., Counsel, Navy Purchasing Office and Martin L. Glass, Esq., Assistant Counsel, appearing for the government, and Gerald N. Gordon, Esq., appearing for the appellant. It was signed by Joseph B. Kennedy, Jr., for the Board and bore the signed concurrences of four other members.

The government contends that the stipulation is a nullity because there was no meeting of the minds and because the attorney who signed had no authority to do so. As to the meeting of the minds, the language of the stipulation appeared perfectly clear to the trial court and appears entirely so to us. The later discovery by the government of its unilateral mistake that a payment had been made so that the government should have reduced its settlement figure accordingly does not prevent a contract under the facts of this case. Heifetz Metal Crafts, Inc. v. Peter Kiewit Sons’ Co., 264 F.2d 435 (8th Cir. 1959); Bowser, Inc. v. Hamilton Glass Co., 207 F.2d 341 (7th Cir. 1953); United States v. Jones, 176 F.2d 278, 285 (9th Cir. 1949). There was no showing of mutual mistake or of fraud on the part of BBC.

As to the authority of Mr. Marker to sign the stipulation instead of the contracting officer, Mrs. Barger, it would appear that there is more involved here than the execution of a contract. The parties were in fact settling a law suit. The stipulation was prepared under the caption of the case for filing therein, and the Order of Dismissal showed that Mr. Marker and Mr. Glass both appeared for the government for the purpose of the entry of the order. The court and the opposite parties were entitled to assume that the government attorneys had the authority to obtain the Order of Dismissal. It was not conditional. Mr. Marker stated in his affidavit filed in the trial court that:

“Prior to this meeting [on December 22, 1969] I was given to understand that the Contracting Officer would be willing to accept a settlement amounting to a total of $100,000. . ." C.T. at 419.

Appellant next contends that the stipulation was a nullity because the “money to effectuate the settlement could only have been obtained by contract modification” (Appellant’s Opening Brief at 39), and Mr. Marker, the attorney who signed the stipulation was not a contract officer and had no authority to sign a contract modification. The trial court did not regard the stipulation as simply a contract modification, nor do we. It may have had an effect on a dispute arising out of a contract, but it was in fact and in law the settlement of claims in litigation before an administrative body constituted by law to make an adjudication. As a result of the stipulation and relying upon the representation of authority of the two attorneys for the Navy to act on behalf of their clients the Board dismissed the appeal with prejudice. Although the appellant contends the attorneys who represented the government in the negotiation of the contract modification had no authority to bind their clients to a contract modification, the government has not suggested that Marker and Glass were not its attorneys before the ASBCA and authorized to appear and act for it. The trial court was correct in its ruling in favor of BBC on the first four causes of action of the Amended Complaint.

The Stipulation of Settlement reserved to the government the right to assert the fifth and sixth causes of action against BBC. These were based purely on breach of contract, alleging that BBC had failed to enforce the liability of the divers (fifth cause of action) and that BBC had omitted from the subcontracts provisions which would have protected the government against loss of or damage to its property in the possession of BBC’s subcontractors (sixth cause of action). The court granted summary judgment in favor of BBC on both causes of action.

Looking to the fifth cause of action, the contention is that a provision should have been inserted in the contract between BBC and the divers that the latter were absolutely liable for the loss of any government property in their possession. The district court, however, expressly found that BBC “never gave possession or control of the hydrophone array system to either Western Offshore Drilling and Exploration Co. Division of Pike Corporation of America or the Rogers Diving Service.” At the time of the loss of the system it had already been implanted in the ocean by BBC and the effort was to recover it so that the transmitting buoy could be reattached to the other end. Until recovered it was in no one’s possession. The affidavits in support of the motions for summary judgment also support the court’s finding that the divers never had possession and control of the array. There was no genuine issue of fact upon this point.

The sixth cause of action is based upon the same theory. The government relies upon Clause 5(f)(1) of the installation contract which provides:

“This clause shall not be construed as relieving a subcontractor from liability for loss or destruction of or damage to Government Property in his possession or control, except to the extent that the subcontract with the prior approval of the Contracting Officer, may provide for the relief of the subcontractor from such liability. In the absence of such approval, the subcontract shall contain appropriate provisions requiring the return of all Government Property in as good condition as when received, except for reasonable wear and tear or for the utilization of the property in accordance with the provisions of the prime contract.” C.T. at 70.

The same finding of the trial court which forecloses the fifth cause of action stands as a bar to the government in the sixth. In addition, the Pike & WODECO contract' contained the following provision:

“It is understood and agreed that BBC personnel will be in complete charge of the above installation with the exception that at any time, the ship’s master will have sole discretion to act to protect the lives and safety of the crew and passengers, regardless of any instruction contrary to such action, if, in his opinion, any undue danger exists.” C.T. at 254.

It appears to be appellant’s argument that this provision in the contract between BBC and WODECO will release WODECO from liability to the government. Actually, a literal reading of the clause discloses that it does not purport to release WODECO from liability to the United States if one does exist. Clause 5(f)(1) does not require the prime contractor to make its subcontractors “absolutely liable” to the government. It requires a provision that the subcontractors return government property if they have any. Here they had none. If the subcontractors became liable in negligence to the government, the cause of action thus created could not be contracted away without the government’s consent. Unless released by the government, it would still remain. The W. C. Block, 71 F.2d 682 (2nd Cir.), cert. denied sub nom. Cornell Steamboat Co. v. Scholl, 293 U.S. 579, 55 S.Ct. 91, 79 L.Ed. 676 (1934); George Bohannon Transportation, Inc. v. Davis, 323 F.2d 755 (10th Cir. 1963).

The prime contractor, BBC, could have provided its own ship and crew and thereby would have become responsible for the negligence of its own servants and employees, if in fact such liability were established. It did not do this. It contracted with Pike, WODECO and the divers, but retained all supervision and control over their activities. We find nothing in the government contract which proscribes this, either as to Pike, WODECO or the divers.

Finally, the government asserts a direct cause of action against defendants Pike, WODECO and Nesco I in rem for maritime tort in the operation and navigation of the vessel, and a second cause of action against the same defendants based upon the negligence of the crew (the divers) in handling the line of the array whereby it was lost.

As to the claim based upon a maritime tort in the operation and navigation of the vessel, the subcontract with BBC provides that BBC personnel will be in complete charge of the operation. Notwithstanding the findings which support the fact of supervision and control in BBC and not in Pike, WODECO or the vessel’s crew, the government contends that this is a maritime tort. It likens the asserted maritime liability to the liability of the ship and owner for collision with another vessel even though the maneuvering of the vessel is under the control of a “compulsory pilot.”

The difficulty with the “compulsory pilot” analogy is that the facts as shown by the affidavits, the contracts and the findings of the trial court, establish that the “compulsory pilot” was BBC. It was in complete control of the salvage operation and exercised that control by signals to the master to direct the backing of the ship when the line became fouled in the propeller. Yet BBC as the operator was not liable in personam because its contract with the government made it liable only for damage or loss as a result of willful misconduct. No such showing was made. In addition, the settlement agreement released BBC from claims for willful negligence which was the only negligence alleged (fourth cause of action). Here then the “compulsory pilot” has been released and the question is whether an in rem maritime claim on the vessel may be imposed nonetheless. We are of the opinion that it cannot and sustain the trial court’s holding. Only two cases were cited by the government on the point. One of them, Homer Ramsdell Transportation Co. v. La Compagnie Générale Transatlantique, 182 U.S. 406, 21 S.Ct 831, 45 L.Ed. 1155 (1901), is not in point because it is an action at law and not in admiralty. The authority of The China, 74 U.S. (7 Wall.) 53, 19 L.Ed. 67 (1868), for the proposition that an in rem libel against the ship may be maintained when an action against its owner or operator can not has been weakened if not destroyed by subsequent cases. In Guzman v. Pichirilo, 369 U.S. 698, 82 S.Ct. 1095, 8 L. Ed.2d 205 (1962), where the question was liability based upon unseaworthiness, the Court declined to clearly decide the issue. See Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963) (where the Court also declined to decide the question). In the courts of appeals it appears clear that most, if not all, have held that in personam liability is a sine qua non for in rem liability against the ship. Ramos v. Beauregard, Inc., 423 F.2d 916 (1st Cir.), cert. denied, 400 U.S. 865, 91 S.Ct. 101, 27 L. Ed.2d 104 (1970); Alcoa Steamship Co. v. Rodriguez, 376 F.2d 35 (1st Cir.), cert. denied, 389 U.S. 905, 88 S.Ct. 215, 19 L.Ed.2d 219 (1967) ; Noel v. Isbrandtsen Co., 287 F.2d 783 (4th Cir.), cert. denied, 366 U.S. 975, 81 S.Ct. 1944, 6 L.Ed.2d 1284 (1961).

Judge Learned Hand has been cited as being on both sides of the controversy. See Noel v. Isbrandtsen Co., supra at 786 n. 6. In Burns Co. v. The Central R. R., 202 F.2d 910, 912 (2nd Cir. 1953), he refers to the idea of the ship as a tortfeasor as difficult to explain “on any other theory than a vestigial devolution out of the notion that anything that moves and kills a man shall be deodand to the king.”

Even in The China, supra, which seems to be the only clear decision that the vessel itself can be libeled absent in personam liability, there must be a showing that the vessel is a “wrongdoer.”

In the present case the undisputed facts fail to indicate that the navigation was negligent or careless. We can find no rational basis to assume that because the vessel was moving it was at fault under the circumstances disclosed and decline to adopt the in rem liability theory where in personam liability does not exist.

Here, the officer in charge was under the direct and exclusive command of BBC and acting at the time under BBC’s supervision and control. A release given to BBC would therefore include the in rem liability of the ship. The Queen of the Pacific, 180 U.S. 49, 21 S.Ct. 278, 45 L.Ed. 419 (1901); The Elizabeth M. Miller, 3 F.Supp. 171, 172-173 (W.D.N.Y.1932). The other theory of liability urged by the government to support the liability of the owner of the Nesco I is that fault is presumed against a moving vessel which collides with a properly moored ship'— the doctrine of res ipsa loquitur. Granting that the doctrine is well recognized in admiralty, it poses no new concept of tort law. It is an inference of negligence which is raised because it is the type of accident that does not ordinarily occur absent someone’s negligence, and the evidence to prove it is circumstantial. Here, however, we have more than the inference or presumption to look upon. We have the affidavits of those at the scene which stated in detail how the accident came about. It was a difficult and delicate maneuver under adverse circumstances to attempt to secure a line and put it aboard and onto a reel where it could be hauled up from 6,000 feet. There is no room in face of the affidavits and reports, including the Allen reports submitted by the government, to rely on presumptions. Explanation abounds as to just what happened and there is no material difference among those who observed. On the basis of the undisputed facts we believe that the trial court’s order was entirely proper.

Under the circumstances disclosed by the affidavits and expressly found by the trial court, the crew of Nesco I was “loaned to” or were the “borrowed servants” of BBC. Thus BBC and not Pike and WODECO is responsible for the action of Nesco I and its crew during the salvage operations. The borrowed servant doctrine is recognized and followed by this court. Denton v. Yazoo & Mississippi Valley R. R., 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310 (1932); United States v. N. A. Degerstrom, Inc., 408 F.2d 1130, 1133 (9th Cir. 1969); McCollum v. Smith, 339 F.2d 348 (9th Cir. 1964).

We have examined the pleadings and the affidavits on file and agree with the trial court that there is no genuine issue of material fact and that the trial court has correctly applied the substantive law involved. Accordingly, the judgment is affirmed.

      . Clause 5(f)(1) of the contract provided in pertinent part that:
      “The contractor shall not be liable for any loss of or damage to the Government Property, or for expenses incidental to such loss or damage, except that
      “(i) which results from willful misconduct or lack of good faith on the part of anyone of the Contractor’s directors or officers, or on the part of any of his managers, superintendents, or other equivalent representatives . . . . ” C.T. at 70.

      . This becomes evident by a comparison of the allegations of the amended complaint with the provisions of the government’s counterclaim to BBC’s before ASBCA. O.T. at 200.

      . Albert C. Kornblum, Esq., Assistant to the General Counsel for the Navy.

      . The Stipulation, eliminating the caption, is as follows:
      “STIPULATION OF SETTLEMENT
      “WHEREAS the items delivered by the contractor under contract number 50181A on or before April 21, 1967, were accepted by the Government and;
      “WHEREAS title to said items passed to the Government at that time and;
      “WHEREAS certain services were performed by the contractor under contract number 51848A for the purpose of site survey and installation of said items of Government property and;
      “WHEREAS the contractor has asserted claims against the Government for payment of amounts totaling $106,-504.32 asserted to be for payments due under said contracts and;
      “WHEREAS the Government has asserted a number of counterclaims against the contractor, including defenses of non-acceptance of said items, existence of latent defects, breacli of warranty, and for loss of or damage to Government property resulting from willful misconduct or lack of good faith on the part of contractor’s directors or officers or other managerial or supervisory personnel;
      “NOW, THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS;
      “1. The Government will pay to the contractor the sum of $100,000.00 in full and complete settlement of any and all claims arising under said contracts, and the contractor shall release the Government from any and all such claims; and further it is agreed that the above described counterclaims of the Government are hereby withdrawn and shall be considered dismissed with prejudice;
      “2. Nothing contained herein, however, shall be considered to be or constitute a waiver or release by the Government of any claims against the contractor, its agents, employees or subcontractors for negligence or breach of contract or any other claims the Government may have against the contractor, its agents, employees or subcontractors not hereinabove withdrawn by the Government; provided, however, that this reservation shall in no manner constitute a recognition or admission by the contractor of any negligence or breach of contract;
      “3. The Board is requested to strike from the calendar and dismiss the subject appeals herein.
      “DATED: 22 December 1969” C.T. at 176.

      . The order, eliminating caption and appearances, and Board signatures, is as follows:
      “ORDER OF DISMISSAL
      “The parties having heretofore filed a Stipulation of Settlement of these matters wherein they agreed to mutually release one another from the various claims and counterclaims for which a remedy is provided under the contract; and the parties having further agreed to dismissal of said claims with prejudice,
      “Now, therefore, it is Ordered that these appeals be, and hereby are, dismissed with prejudice.
      “Dated 29 December 1969.” C.T. at 180.

      . At oral argument below the attorney for the United States acknowledged that the figure of $100,000 was agreed upon by mistake upon the part of the government’s representatives who thought that nothing had theretofore been paid by the government. In fact $16,000 had already been paid and the intention of the representative of the government was that any such sum already paid should have been deducted.

      . C.T. at 180.

      . Evidence of authority may also be found in the fact that (1) the contracting officer, Barger, was present during a portion of the settlement discussions on December 22, 1969, when the stipulation was signed, to explain payment procedures [C.T. at 481]; (2) the government attorneys prepared the document; (3) after the settlement was executed the government paid BBC $66,677.23 that it had been holding under both contracts for well over two years [C.T. at 509]; and (4) subsequent to the execution of the stipulation, the contracting officer prepared a contract modification [C.T. at 419] that provided:
      “The purpose of this modification is to adopt in full and to give contractual effect to the ‘Stipulation of Settlement’ executed on 22 December 1969 by Murray H. Marker, Counsel for the Government, and Gerald N. Gordan [sic] Counsel for Appellant. Such ‘Stipulation of Settlement’ is hereby attached and incorporated herein by reference.” C.T. at 428.

        See also United States v. Jones, 176 F.2d 278 (9th Cir. 1949); Max Drill, Inc. v. United States, 427 F.2d 1233, 1243, 192 Ct.Cl. 608 (1970); George H. Whike Construction Co. v. United States, 140 F.Supp. 560, 135 Ct.Cl. 126 (1956).

      . Armed Services Boards of Contract Appeals derive their authority from the Standard Disputes Clause found in government procurement contracts. This clause provides for an appeal to the Secretary from any decision of the Contracting Officer on matters of fact. The Secretary has in turn delegated his decisionmaking authority to the Board. 32 C.F.E. 30.1 Appendix A (1972) ; C.C.H. Gov’t Contracts Eep. ¶ 23,055 at 11,242-43; McBride & Wachtel, 1 Government Contracts § 6.10. The present Board was reorganized May 1, 1962 into eleven divisions presided over by a Chairman and two Vice Chairmen. The contracts between BBC and U. S. Navy Purchasing Office contain the Standard Disputes Clause, which do provide for an appeal to the Secretary. C.T. at 76, 125.
      Limited judicial review of Board decisions is available under the Wunderlich Act, 41 U.S.C. § 321. See Northwestern Industrial Piping, Inc. v. United States, 467 F.2d 1308 (Ct.Cl.1972).

      . The government does not assert that the divers were negligent. At page 7, line 15, of the Reporter’s Transcript, the government attorney told the trial court: “I don’t contend that the diver was actually negligent.” The clivers were not made parties defendant.

      . C.T. at 530.

      . Findings of Fact X, XI, XII. O.T. at 535.

      . “According to the admiralty law, the collision impresses upon the wrongdoing vessel a maritime lien.” The China, supra, 7 U.S. at 68 (emphasis added).

      . American Law Institute, Restatement of Torts, Second, § 328D.

      . C.T. at 535.


author: AINSWORTH, Circuit Judge:

text:
    Lloyd DUGAS, Plaintiff-Appellee, v. PELICAN CONSTRUCTION COMPANY, INC., et al., Defendants-Appellees, Rowan Drilling Company and Union Oil Company of California, Defendants-Appellants, Tri-State Insurance Company et al., Third-Party Defendants.
    No. 72-2546.
    United States Court of Appeals, Fifth Circuit.
    June 11, 1973.
    Rehearings Denied July 5, 1973.

      W. K. Christovich, New Orleans, La., for Rowan Drilling Co.
    George V. Baus, Harold A. Thomas, New Orleans, La., for Union Oil Co.
    H. Alva Brumfield, III, Baton Rouge, La., for Dugas.
    Nicholls Pugh, Jr., Lafayette, La., for Pelican Constr. Co., Inc., and others.
    Clarence A. Frost, New Orleans, La., for Pelican.
    Donald M. Pierce, New Orleans, La., for Market.

      Before JOHN R. BROWN, Chief Judge, and WISDOM and AINSWORTH, Circuit Judges.
   AINSWORTH, Circuit Judge:

Lloyd Dugas, a roustabout employed by Pelican Construction Company, Inc., brought this suit for damages growing out of personal injury sustained aboard a submersible drilling barge, ROWAN NO. 1, owned by Rowan Drilling Company and located on navigable waters at Northeast Patterson Prospect Field, south of Morgan City, St. Martin Parish, Louisiana.

Union Oil Company of California had contracted with Rowan for the drilling of an oil and gas well at that location. The contract provided that Rowan furnish a drilling rig and barge and the necessary personnel to operate them. Union was required under the contract to furnish a tugboat and service barge to be used in connection with the operation. Contract depth was specified to be 13,500 feet, for which Rowan was to be paid a fixed rate per linear foot. Rowan was to provide the drilling pipe up to the contract depth. Beyond 13,500 feet the operations were to be conducted on a day-work basis agreement under which Union would furnish the drilling pipe to Rowan.

In addition to the contract with Rowan, Union had a service contract with Pelican for the furnishing of labor crews as requested by Union.

On September 8, 1964, Rowan was in the process of drilling the well for Union and was operating on day rate, having exceeded the contract depth. Kenneth Ditch, the foreman for Union and its only representative on the drilling barge, called Pelican’s office and requested that a crew of roustabouts be sent out to work aboard the drilling barge. Accordingly, a Pelican crew of two pushers, Edward George and Oris Cormier, and four roustabouts, including plaintiff Dugas, left Morgan City, Louisiana, by crewboat and proceeded to the drilling barge, where they arrived at approximately 10 a. m. George was informed by Ditch that the Pelican crew was to unload drilling pipe from a pipe barge onto the drilling barge. The pipe barge, owned by Union and loaded with 4j4-ineh drill pipe provided by Union, was lying alongside the drilling barge, unmanned. The drilling barge was equipped with a crane and air hoist for use in moving pipe from the pipe barge to the pipe rack aboard the ROWAN NO. 1, and thence to the V-door at the drilling floor when needed by Rowan to run the pipe into the well hole.

Upon arrival at the drilling site, the Pelican crew were assigned various jobs preparatory to unloading the pipe. Sometime in the afternoon the unloading operation began, with George, an experienced air hoist operator, operating the hoist and crane. At 7 p. m. Rowan be-gain putting the pipe into the hole.

The accident which precipitated this suit occurred at about 4:30 a. m., the following day. Dugas was then working at the far end of the pipe rack on the drilling barge. He and a Pelican co-worker had just attached a sling to a load of six joints of pipe. George then lifted the pipe but the load instead of moving to the V-door, swung back and hit Dugas, who had turned and was walking in the opposite direction, knocking him to the floor of the rig. When observing Dugas fall, George placed the hoist in neutral, left the controls and ran to a point on the upper deck where he could see Dugas, at which time the air hoist “bled off” allowing the load of pipe to settle on Dugas’ legs.

Dugas claimed damages from Pelican, his employer, Union and Rowan, asserting liability under the Jones Act, the general maritime law and maritime tort. His theory for Jones Act liability against Union and Rowan was based on the theory that he was the borrowed servant of these defendants.

Thereafter a progression of cross-claims between defendants followed, with the parties asserting every known theory of maritime indemnity — tort, contractual (express and implied) and third-party beneficiaries to rights of others under contracts. Virtually everyone claimed over against virtually everyone else. As a result of these numerous claims and long, protracted pretrial procedures, including the taking of depositions, interrogatories and the utilization of other discovery devices, the case did not proceed to trial until almost five years after the initial complaint was filed and approximately six years following the accident, a period much longer than the memory span of most of the testifying witnesses. Consequently, the evidence was in many instances sketchy or conflicting. Nevertheless, the district judge, sitting without a jury found that the sole proximate cause of the injury was the negligence of Union in allowing the Pelican crew to become fatigued and overworked on an undermanned vessel which thus became unseaworthy. In this regard the district judge made the following pertinent findings:

“All of the Pelican crew testified that they were very tired. Cormier requested relief at ten o’clock p. m. and again at about two o’clock a. m. Mr. Ditch, the Union superintendent, and the man in charge, had retired for the night. None of the Rowan men had authority to order a relief crew to come out. Mr. Bevills, Rowan’s tool-pusher, stated that no one requested relief of him that he can remember; but if they had, he would have taken the matter up with Mr. Ditch. Under these circumstances, Union’s failure to exercise reasonable care for the safety of the men furnished to it by Pelican was negligence, and its failure to provide a sufficient number of men to do the work that had to be done resulted in an unseaworthy, undermanned ship, which rendered the vessel itself not reasonably fit for her intended use and dangerous to the well being of those aboard her. . . .We find that the inattention of George in allowing the load to swing toward Du-gas, as well as the fact that Dugas has turned his back to the load and failed to watch it, as he should have, were the result of their fatigue, a condition that could and should have been foreseen by Union. No effort was made to allow these men to even have a few minutes rest after they began running pipe, or to provide them with food although there was food available. They came aboard, went about their appointed tasks as directed by Mr. Ditch and were thereafter completely neglected. We hold that this failure on the part of Union and the resulting unseaworthiness of the ship was the sole proximate cause of the accident.”

The district court further found that the dereliction of George and Dugas, if any, was caused by fatigue due to the unrelieved long hours and sustained heavy labor, and did not under the circumstances constitute negligence on their part which was a contributing cause of the accident. The district court concluded that Dugas was a Jones Act seaman of Union under the borrowed servant theory. Damages were assessed in the sum of $45,000 against Union and Rowan as joint tort-feasors — Union, because of its negligence, and Rowan, because of the unseaworthiness of the ROWAN no. 1 caused by Union’s negligence. Judgment was also rendered in favor of Union on its cross-claim against Rowan for contribution in the sum of $22,500. Judgment was then rendered in favor of Union on its cross-claim against Pelican for one half the amount of the award, under the terms of the contract between the parties, which the district court construed as requiring indemnification for injuries to Pelican’s employees regardless of causal negligence by Union. All of the other cross-claims and a counterclaim by Pelican against Market Insurance Company, its public liability insurance carrier, were denied. In short', Rowan and Pelican were each liable for one half the amount of judgment, or $22,500 each, under the district court’s decree.

Rowan and Union have appealed; Pelican has not appealed inasmuch as it has filed a motion for new trial which inexplicably is still pending in the lower court. Consequently, the issues of contractual indemnity between Union and Pelican and the dismissal of Market Insurance Company are not before us.

ISSUES ON APPEAL COMMON TO ROWAN AND UNION

Both Rowan and Union contend that the district court erred in finding that Dugas was a Jones Act seaman and a borrowed employee of Union; that fatigue contributed to the accident; and in that there was no causal relationship between the accident and the joint and concurrent negligence of plaintiff in turning his back on the pipe, and George in negligently operating the air hoist.

ADDITIONAL ISSUES URGED BY ROWAN

Rowan further contends that the district court erred in basing a finding of unseaworthiness on the undermanning of Pelican’s crew, and in failing to award Rowan full indemnity against Pelican because of the latter’s alleged breach of the implied warranty of workmanlike service owed to Rowan under the “Ryan” theory of indemnity, as extended by Whisenant v. Brewster-Bartle Offshore Company, 5 Cir., 1971, 446 F.2d 394.

ADDITIONAL ISSUES URGED BY UNION

Union further contends that the district court erred in failing to grant it full contractual and tort indemnity from both Rowan and Pelican under its contracts with the respective parties and under the active-passive theory of tort indemnity enunciated in Tri-State Oil Tool Indus., Inc. v. Delta Marine Drill Co., 5 Cir., 1969, 410 F.2d 178.

The evidence does not support the district court’s findings that Dugas was a Jones Act seaman or a borrowed employee of Union. To qualify for Jones Act benefits, an injured worker must be on more or less permanent assignment to a vessel or performing a substantial part of his work aboard a vessel. Offshore Company v. Robison, 5 Cir., 1959, 266 F.2d 769, 799; Thibodeaux v. J. Ray McDermott & Co., 5 Cir., 1960, 276 F.2d 42; Rotolo v. Halliburton Company, 5 Cir., 1963, 317 F.2d 9. Dugas had been employed by Pelican approximately one week . prior to his going aboard the ROWAN NO. 1 for the first and only time. Pelican was not the vessel owner and the duties which it assigned to Dugas during that week — cutting grass, repairing a bridge, and land-based office work — were not duties performed aboard a vessel. He and the other Pelican roustabouts were sent out to the ROWAN NO. 1 to do one job— unload a certain number of pipe joints. When the assignment was completed their tour of duty aboard the barge terminated. The job was expected to last, and did last, only a day. Plaintiff’s brief tenure aboard the vessel fell far short of establishing seaman status. However, Dugas was entitled, by virtue of the maritime character of the work he performed, to the warranty of a seaworthy vessel. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Rowan and Union concede as much, denying, however, that that warranty was breached.

Nor do we think Dugas was a borrowed employee of Union. In Ruiz v. Shell Oil Company, 5 Cir., 1969, 413 F. 2d 310, we listed various factors to be considered in determining whether or not a borrowed employee relationship exists. Id. at 313. Although the trial judge employed the correct legal standards, citing Ruiz as authority for his holding, he erroneously concluded that Dugas was a borrowed employee of Union. In Ruiz we held that the borrowed employee status did not exist because the factor of control, inter alia, had not been relinquished by the general employer nor accepted by the temporary employer. The facts in the present case lead us to the same conclusion. We recognized in Ruiz a distinction between authoritative direction and control over the servant, and mere suggestion as to details or cooperation by the servant with the temporary employer where the work being furnished was part of a larger undertaking. In this case there is not even minimal suggestion, criticism, recommendation or advice in any form by Ditch to Dugas regarding any details of the operation. Dugas had no contact whatsoever with Ditch. He took orders from his pushers only. While numerous factors must be considered to determine whether an individual is a borrowed servant or employee of another, essential to that relationship is some type of agreement, written or verbal, formal or informal, between the general employer and the temporary employer evidencing an intention to create that relationship. There is nothing in the record to indicate that Pelican or Union either intended or desired to establish a borrowed employee relationship between Union and the men Pelican supplied. The written contract itself negates such an intention. The pertinent clause provides that

“In the performance of the work herein contemplated, CONTRACTOR [Pelican] is an independent Contractor, with the authority to control and direct the performance of the details of the work, UNION being interested only in the results obtained, but the work contemplated herein shall meet the approval of UNION. CONTRACTOR specifically agrees that all persons employed by CONTRACTOR in performing the work covered by this Contract, or by CONTRACTOR’S sub-contractors, are not the employees of UNION for any purpose whatsoever . . . .” [Emphasis supplied.]

Other traditional factors generally indicative of the borrowed employee relationship, and absent here, are “acquiescence by [the employee] that he be employed by [the temporary employer]”; a “temporary termination by the general employer of its relationship with the servant”; “the furnishing by the temporary employer of the necessary instruments and the place for performance of the work in question”; “employment of the servant over a considerable length of time”; and “the customary right to discharge the servant and the obligation for payment of his wages.” While no one factor or specific combination of factors is determinative of the borrowed employee relationship, the evidence here preponderates toward the conclusion that such a relationship was not present.

The trial judge held — and we agree — that the negligence of Union, with resultant unseaworthiness of the vessel, was the sole proximate cause of the accident. The trial judge found that the Pelican men were fatigued and ascribed this to the failure of Union to provide them with necessary rest periods, thus causing an undermanned and therefore unseaworthy vessel. Both Union and Rowan strongly contest these findings and urge that the negligence of George, in his operation of the crane and air hoist, and the contributory negligence of Dugas, in turning his back to the load of pipe, and not fatigue, were the proximate causes of the accident. Various reasons were advanced in regard to what caused the pipe to fall on Dugas. The testimony of the only two eyewitnesses, George and a Pelican roustabout, Russell Palombo, was not too helpful except to verify the fact of the accident. We are unable to say from the tenuous and conflicting evidence adduced at the trial that the district judge’s finding was clearly erroneous in declining to attribute causal negligence to Pelican or to Dugas.

The evidence fully supported the finding that the men were fatigued and overworked. The Pelican crew had been working at the drilling site for approximately 18% hours without relief. By way of contrast, Rowan’s men worked 12-hour shifts. Dugas and Palombo, the only other Pelican roustabout to testify, both requested relief. Dugas said that he had worked continuously. He was tired, worn out, could hardly go anymore. Palombo said he was tired as they had worked all day and all night-. Cormier said they were operating under fatigue conditions, having worked continuously from the time they arrived at the drilling site at about 10 a. m. until Dugas was hurt at about 4 a. m. the following day.

The conflicting evidence in regard to whose orders were being followed in denying relief to the Pelican crew was hardly susceptible of a definite finding, but the trial judge concluded, however, under all the circumstances that Union had the responsibility to take necessary steps to furnish relief. We agree that the evidence compels such a conclusion. Rowan had no such authority. The contract for furnishing the roustabout labor was between Union and Pelican. Rowan had no contract with Pelican. Union’s superintendent, Ditch, who was the top authority in this drilling operation, was the only one in a position to relieve the crew. Ditch’s testimony corroborated this fact. He said that he was authorized to call for a crew if he needed one. He had hired the Pelican men, but he had not specified the length of time they were to remain on the job. He had authority to stop operations aboard the rig if the occasion arose necessitating it. He would have been in a position to stop unloading if he had seen a situation that he felt was dangerous. The Pelican pusher had reported to him and he put him to work. According to Ditch, ordinarily it would take between 13 to 14 hours to unload the pipe in question, which was in excess of 13,500 feet. Dugas and his co-workers had been working for at least 8% hours (from 10 or 10:30 a. m. to 7 p. m.) before beginning to unload the pipe. Since Ditch estimated that the unloading would take at least 13 hours, he should have reasonably calculated that the job would not be completed until approximately 8 a. m. the next day, at which time the Pelican men would have worked a total of approximately 22 hours without relief. Ditch’s failure to exercise reasonable prudence in making prior arrangements to provide for rest periods or for a substitute crew constituted serious negligence.

The concept that seaworthiness contemplates the crew as well as a vessel and its gear has been firmly established in maritime law. In Boudoin v. Lykes Brothers Steamship Co., 348 U.S. 336, 339, 75 S.Ct. 382, 385, 99 S.Ct. 354, the Supreme Court found no reason “to draw a line between the ship and the gear on the one hand and the ship’s personnel on the other” in determining whether the warranty of seaworthiness had been breached. In Crumady v. Joachim Hendrik Fisser, 358 U.S. 423, 427, 79 S.Ct. 445, 447, 3 L.Ed.2d 413 (1959), the principle was reiterated that “ [u] nseaworthiness extends not only to the vessel but to the crew.” Citing Boudoin and Crumady the Supreme Court in Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 727, 728, 87 S.Ct. 1410, 1412, 18 L.Ed.2d 482 (1967), said:

“ [I]t makes no difference that respondent’s vessel was fully manned or that there was a sufficient complement of seamen engaged in the overall docking operation, for there were too few men assigned ‘when and where’ the job of uncoiling the rope was to be done.”

Summarizing, we agree with the district court that Union’s failure to exercise reasonable care for the safety of the Pelican men was negligence and that Union’s failure to provide a sufficient number of men resulted in an unseaworthy, undermanned ship. The district court also correctly cast Rowan in judgment to plaintiff as jointly and solidarily liable with Union on the main demand, in view of the finding of unseaworthiness of Rowan’s vessel.

THE CROSS-CLAIMS FOR INDEMNITY

Union v. Rowan. Having found that Union was solely at fault, the district court correctly dismissed the claim of Union seeking indemnity from Rowan under the contract by the terms of which Rowan agreed to indemnify Union except for loss “caused by the sole negligence of Union.” Nevertheless, the trial court considered Union’s claim broad enough to support a claim for contribution under Horton & Horton, Inc. v. T/S J. E. Dyer, 5 Cir., 1970, 428 F.2d 1131, and rendered judgment in favor of Union and against Rowan for one half of the amount of the award. This was an erroneous conclusion. In Horton we allowed contribution between two joint tort-feasor vessel owners, Horton & Horton, Inc. and Vaughan Marine, Inc., both of which had been found at fault in causing the drowning of a seaman when the barge on which he was working capsized. Horton’s fault was based, inter alia, on negligence and breach of the warranty of seaworthiness because of a leaking and otherwise defective hull. Vaughan Marine’s fault was based, inter alia, on its negligence in failing to accept the use of pumps. Unlike the present case in which the unseaworthy condition of Rowan’s vessel emanated from the negligent act of Union and without which negligence there would have been no unseaworthiness, in Horton each of the tort-feasors was guilty of negligence. The district court, therefore, erred in rendering judgment in favor of Union against Rowan for one half of the award.

Union v. Pelican and Tri-State. Union’s claim against Pelican under the terms of the service contract between the parties was allowed, based on the trial court’s interpretation of the indemnity provision of the contract as imposing the duty upon Pelican to hold Union harmless for injury to its employees even if the injury resulted from Union’s negligence. Accordingly, judgment was entered against Pelican in favor of Union for one half of the award. Pelican has not appealed from this ruling, apparently because it is not final, Pelican having filed a motion for a new trial. Union contends, however, that the court erred in failing to allow it full indemnity against Pelican based on an active-passive tort theory of indemnity enunciated in Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Company, 5 Cir., 1969, 410 F.2d 178. Implicit in this contention is that there was active negligence in Pelican through the actions of its employees George and Du-gas. Since we find no clear error in the trial court’s finding which absolved Pelican of negligence, the legal theory advanced by Union must fall, and indemnity against Pelican denied.

Rowan v. Pelican. Having found that Pelican was not at fault, the trial court correctly dismissed Rowan’s claim against Pelican based on tort theory of indemnity. It further declined to apply the Ryan doctrine concept of liability to Rowan’s claim of a breach of the warranty of workmanlike performance (WWLP). There was no written contract between Rowan and Pelican. Rowan contends it should prevail, however, under the implied warranty doctrine of Ryan, as extended by Whisenant v. Brewster-Bartle Offshore Company, 5 Cir., 1971, 446 F.2d 394, to encompass not only stevedore employers but the specialized independent contractor employer of an injured seaman. Rowan’s argument, of course, is predicated on a breach by Pelican of the WWLP. By attributing the accident solely to the negligence of Union, the trial court negated the possibility of any causal breach by Pelican. Even where such a breach occurs, it is immaterial unless it is a proximate cause of the accident or injuries. Garner v. Cities Service Tankers Corporation, 5 Cir., 1972, 456 F.2d 476, 481.

Payment to Dugas to compensate him for his injuries is long overdue. Union and Rowan, having been cast as joint tort-feasors on the main demand, must now satisfy their liability. Any further delay, contingent on the ultimate determination of liability as a result of Pelican’s pending motion for a new trial on its cross-claim, would be improper.

Affirmed in part; reversed in part.

      . Pelican’s insurance carrier, Tri-S.tate Insurance Company, was also named as a defendant.

      . Rowan filed no cross-claim against Union. We understand from counsel at oral argument, however, that Rowan has instituted separate proceedings against Union seeking indemnity.

      . Ryan Stevedor. Co. v. Pan-Atlantic Steam. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).

      . Union seeks full indemnity against Pelican as a protective measure in the event that Rowan should fail to satisfy Union’s judgment for contribution.

      . According to Robison, there is an evidentiary basis for a Jones Act case “(1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of bis work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed 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.” 266 F.2d at 779.

      . See Standard Oil Co. v. Anderson, 212 U.S. 215, 222, 29 S.Ct. 252, 254, 53 L. Ed. 480 (1909); Ruiz v. Shell Oil Company, 5 Cir., 1969, 413 F.2d 310 at 313.

      . Ruiz v. Shell Oil Company, 5 Cir., 1969, 413 F.2d 310 at 313.

      . See also Morales v. City of Galveston, Texas, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412 (1962); Price v. SS Yaracuy, 5 Cir., 1967, 378 F.2d 156, 160 n. 9.

      . Union’s argument is predicated on our treating as error the finding by the trial court of Union’s causal negligence. It alleges active negligence by Rowan in failing to inform Union of the fatigued condition of the Pelican crew, and therefore that it is entitled to recover over from Rowan under an active-passive tort theory. See Tri-State Oil Tool Indus., Inc. v. Delta Marine Drill. Co., 5 Cir. 1969, 410 F.2d 178. Since we are unable to say that the finding of negligence was clearly erroneous, the doctrine of Tri-State inures to the benefit of Rowan, the non-negligent party, and not of Union.

      . Ryan Stevedor. Co. v. Pan-Atlantic Steam. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).