Solet v. M/V Capt. H. v. Dufrene

303 F. Supp. 980 (1969)

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Nature of the Case

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Facts

The DUFRENE and her crew were shrimping in the Gulf of Mexico. P, a deckhand aboard the trawler, was using a winch to lift a net containing a haul of shrimp. The weld that held the pad eye broke, and the cables, block, and shackle fell, striking P. P sued the owner of the trawler, Elvin J. Dufrene, in personam for damages, claiming negligence under the Jones Act. 46 U.S.C.A. § 688. He claims damages both in personam against Dufrene and in rem against the vessel, for negligence under the general maritime law and for breach of the warranty that the vessel was seaworthy, as well as maintenance and cure and damages for failure to pay maintenance and cure. Dufrene had modified the vessel's rigging so that two nets could be trolled simultaneously. An iron pipe was welded at right angles to the existing lifting boom to form a 'T', or cross-arm. Holes were drilled in the cross-arm; the pad eyes were inserted there and welded in place to support a shackle and block. Dufrene hired a welder, believed by him to be competent, to do part of the work, including the welding that broke. Dufrene let the vessel on shares to Captain Kirwin Parfait. Dufrene would furnish the vessel, fully rigged, pay for fuel, maintenance, and all repairs, plus one-half of the ice, in return for one-half of the proceeds of the shrimp catch. Captain Parfait would find a crew. Parfait and the crew would pay for all the food and one-half of the ice, and keep both one-half of the shrimp and all of the fish hauled in. Parfait would sell the shrimp to buyers selected by him and would be in full charge of the crew. The two-man crew, consisting of P and Joseph Billiot, in turn, agreed to work on shares; 40% of the crew's one-half would go to Parfait and 30% to each member of the crew. The crew did not have a fixed wage agreement. Dufrene paid the crew and remitted social security taxes for them but did not deduct income tax. Each voyage lasted from six to seven days. The court concluded that Dufrene was not P's employer for Jones Act purposes. It also concluded that P had failed to prove negligence on Dufrene's part; but had proved that D was unseaworthy because the weld attaching the pad eye to the cross-arm was defective.