Louis Michael Ober, Plaintiff-appellee Cross-appellant, v. Penrod Drilling Company, Defendant-appellant Cross-appellee, 726 F.2d 1035 (5th Cir. 1984)

On the Court's own motion the decision in Ober v. Penrod Drilling Co., 694 F.2d 68 (5th Cir. 1982) is hereby vacated and superseded by the following opinion.

Louis Michael Ober filed suit for damages against his employer, Penrod Drilling Company, to recover for injuries sustained during the course and scope of his employment as a crew member aboard Penrod Rig # 51 on July 31, 1978. Jurisdiction was founded on the Jones Act, 46 U.S.C. § 688, and on the general maritime law. Trial was before the district judge sitting in admiralty who rendered Findings of Fact and Conclusions of Law and a Judgment in accord therewith, finding Penrod responsible for the injury to Ober.

On the day of his accident, plaintiff was working as a floorhand or roughneck for his employer, Penrod Drilling Company, on one of its submersible drilling vessels. The crew was "coming out of the hole," i.e., withdrawing drill pipe from the drill site. Ober was working the "lead tongs"--a large wrench-like device that is applied to disengage or unscrew two pieces of drill pipe. The driller controls how fast and hard the pull is on the handle of the tongs. The torque (force) exerted on the lead tongs is supposed to "break" (release) the tool joint so that other forces can then unscrew the two pieces of drill pipe.

To counteract the torque of the lead tongs and permit them to break the joint, the pipe below the tool joint needs to be held in position so that it will not rotate around with the lead tongs. The function of immobilizing the pipe below the joint still in the hole is accomplished with another wrench-like device, applied below the tool joint to be broken, called back-up tongs. Defendant's general safety rules required that breaking drill pipe be accomplished with both sets of tongs. Both sets of tongs were not being used, however, when the accident occurred.

It was under these circumstances that McNatt, the driller, with the plaintiff in full view, applied the power to the lead tongs in order to break them apart. McNatt gave no warnings prior to applying the power and when he did so, the handle of the lead tongs swung toward plaintiff, striking him with great force and causing his injuries.

After careful study of the district court's findings of fact and conclusions of law in this personal injury case pursuant to the Jones Act and the general maritime laws of the United States, we affirm the judgment of defendant's liability under the Jones Act.¹  In light of Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983) (en banc) (Culver II), however, we remand for reconsideration of the damages award in the amount of $393,588.67.

The clearly erroneous standard governs this Court's review of the district court's fact findings. Fed. R. Civ. P. 52(a); Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 727-28 (5th Cir. 1980). Under the Jones Act, a vessel owner is deemed negligent if he fails to exercise reasonable care to maintain a reasonably safe work environment. See Allen v. Seacoast Products, Inc., 623 F.2d 355, 361 (5th Cir. 1980), modified on other grounds, 606 F.2d 524 (5th Cir. 1979) (en banc), cert. denied, 446 U.S. 956, 100 S. Ct. 2927, 64 L. Ed. 2d 815 (1980); Jones Act U.S.C. § 688 (1975). A review of the record in this case does not leave this Court with the definite and firm conviction that the district court erred in its finding of Jones Act negligence. The fact that defendant permitted the lead tongs to swing recklessly, either by the driller's failure to use back-up tongs in violation of defendant's safety rule or by the driller's application of too much torque, was sufficient to support the district court's finding of a breach of Penrod's duty to furnish plaintiff with a reasonably safe place to work within Jones Act standards.

On the issue of damages, this Court remands to the district court to reconsider its calculation of plaintiff's damages in light of the Culver decision. The record reveals that the parties were given an opportunity to introduce evidence of wage increases the plaintiff would have received as a result of factors other than inflation, e.g., productivity and seniority.²  The district court, however, applied the Alaska Rule³  in awarding damages. Since Culver II specifically adopts the below-market-discount method, this Court must remand for readjustment of plaintiff's damage award. The district court is directed to apply the principles of Culver II in adopting the discount rate. On remand the district court may hear any further evidence it deems necessary pursuant to Culver II in order to recalculate plaintiff's damage award. The court's finding of fact that plaintiff is capable of securing employment at $12,000 per year is upheld as not clearly erroneous.⁴ 

AFFIRMED IN PART, REMANDED IN PART.