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Warren v. Sabine Towing and Transportation Company10/30/2002
ed. The record clearly reveals that Sabine Towing either knew or should have known about the hazards of benzene early on such that it was a sophisticated entity to whom the defendants did not owe a duty to warn.
The owner of a vessel has an absolute and non-delegable duty to furnish a seaworthy vessel. Spell v. Am. Oilfield Divers, Inc., 98-498 (La.App. 3 Cir. 12/9/98), 722 So.2d 399, writs denied, 99-0065, 99-0074 (La. 2/26/99), 738 So.2d 587, 589. However, the fact that Sabine Towing had a duty to warn its employees does not in all instances relieve a defendant of its duty. Rather, we must go on to consider whether the defendants owed Mr. Warren, an employee of Sabine Towing, a duty to warn where Sabine Towing was a sophisticated entity. In Damond v. Avondale Industries, Inc., 98-1275 (La.App. 4 Cir. 8/19/98), 718 So.2d 551, writ denied, 98-2854 (La. 1/8/99), 735 So.2d 637, the plaintiff allegedly contracted silicosis while employed as a sandblaster using sand sold by the defendant to the plaintiff's employer. He sued the defendant/manufacturer of the sand supplied to his employer for failure to warn of the danger encountered while sandblasting with the sand. The defendant had not altered the sand and had provided a warning to the plaintiff's employer on the invoices. The fourth circuit noted that OSHA regulations provided detailed instructions on the equipment to be used in sandblasting and that the plaintiff's employer was presumed to know of the dangers in the use of sand in sandblasting because of its familiarity with the product and because of the OSHA regulations. The fourth circuit found that, under these circumstances, the warning on the invoices was more than adequate. Nevertheless, the issue was whether the defendant had a duty to give a direct warning to the plaintiff as an employee. In that regard, the fourth circuit concluded:
hile [the defendant] might have known that its sand would be used in sandblasting, it had no control over how [the employer] would conduct its operations in that regard. Finally, under the circumstances of this case, we cannot conclude that a supplier like [the defendant] could, as a practical matter, give warnings to those employed as sandblasters like the plaintiff. The warning it gave to [the employer] was adequate, and it was [the employer's] duty to comply with the safety requirements for its employees engaged in sandblasting. Id. at 553. See also Cowart v. Avondale Indus., Inc., 01-0894 (La.App. 4 Cir. 7/3/01), 792 So.2d 73, writ denied, 01-2719 (La. 1/4/02), 805 So.2d 211.
However, in the instant case, much of Mr. Warren's exposure to benzene and benzene-containing products occurred at the defendants' facilities during the loading and unloading processes. Mr. Warren testified that he had contact with various employees of the oil/chemical companies while loading or discharging the products. In fact, he testified: "When you get in there, they would have a man down there representing the company to tell you how you was going to load and everything." Further, Chevron even chartered Sabine Towing vessels on occasion to accommodate its shipping needs. Thus, unlike in Damond, the defendants had some control over how Mr. Warren conducted the operations. Additionally, unlike in Damond, the defendants could have given warnings to Mr. Warren as a practical matter. Because of the direct contact between Mr. Warren and the defendants and because the defendants maintained some control over aspects of the operations, we find that they had a duty to directly warn Mr. Warren. Therefore, we reject the defendants' assignment of error in this regard.
We also reject the defendants' argument that, because gasoline is not itself characterized as a
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