Luigi Malta, Individually and on Behalf of His Minor Child, Giovanni Malta v. Herbert S. Hiller Corporation, Hiller Offshore Services, Inc., the Hiller Companies, Inc., Helis Energy, L.L.C. and Helis Enterprises, Inc.

LUIGI MALTA, * NO. 2020-CA-0250
INDIVIDUALLY AND ON
BEHALF OF HIS MINOR * COURT OF APPEAL
CHILD, GIOVANNI MALTA
* FOURTH CIRCUIT
VERSUS
* STATE OF LOUISIANA
HERBERT S. HILLER
CORPORATION, HILLER *
OFFSHORE SERVICES, INC.,
THE HILLER COMPANIES, *
INC., HELIS ENERGY, L.L.C. *******
AND HELIS ENTERPRISES,
INC.

DLD
DYSART, J., CONCURS IN PART AND DISSENTS IN PART.

I agree with the majority as to the award of damages and the denial of the

Motion to Dismiss the Appeal. I also agree that the language in the amended

judgment is ambiguous with respect to the award for past medical expenses and

should be amended for clarification. I respectfully dissent, however, as to the

assessment of 100% fault for the accident against Hiller, although I agree with the

majority that Helis is without liability in this action. While our jurisprudence

indicates that a trial court’s judgment should not be reversed in the absence of

manifest error, it also reflects that:

“[A] reviewing court may not merely decide if it would
have found the facts of the case differently.” [Hall v.
Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874
So.2d 90, 98]. “Therefore, the appellate review of facts is
not completed by reading so much of the record as will
reveal a reasonable factual basis for the finding in the
trial court; there must be a further determination that the
record establishes that the finding is not clearly wrong
(manifestly erroneous).” Arceneaux v. Domingue, 365
So.2d 1330, 1333 (La. 1978). “Accordingly, if an
appellate court concludes that the trial court’s factual
findings are clearly wrong, the mere fact that some
record evidence appears which would furnish a
reasonable factual basis for the contested findings does
not require affirmance.” Mart v. Hill, 505 So.2d 1120,
1127 (La. 1987).

1

Johnson v. Orleans Par. Sch. Bd., 14-0277, pp. 7-8 (La. App. 4 Cir. 4/26/17), 219

So.3d 452, 461, writ denied, 17-0907 (La. 9/29/17), 227 So.3d 290. (Emphasis

added). I agree that the record contains some “evidence. . . which would furnish a

reasonable factual basis” for the trial court’s assessment of fault; however, in my

view, the testimony and exhibits, and the totality of the circumstances of this case,

support a finding that Wood Group and Mr. Malta both bear fault. Thus, in my

opinion, the trial court manifestly erred in determining that Hiller was solely at

fault.

Hiller was retained to perform annual inspections of Helis’ Black Bay

facility. Its job was, simply, “[t]o do the inspection;” as James Guidry, Hiller’s

operational manager who arranged inspections, testified, “[Hiller] inspect[s] it, and

it’s up to the customer to maintain it. It’s their . . . equipment; it’s not [Hiller’s]

equipment.” This was also confirmed by Dray Hebert, the Hiller technician who

conducted the inspection. He testified:

. . . we don’t maintain because we go out there once a
year. There’s no way for us to maintain it once a year.
We inspect it. As far as maintaining it, that’s the
platform, that’s whoever’s out there that’s in control of
that.

Mr. Hebert clarified that, while Hiller conducted annual inspections, if a

technician “write[s] up some equipment,” as needing attention, and the customer

“calls [Hiller] and say[s], hey, we want y’all to come fix this, then it’s not a

problem. We go out there and fix it.” Here, according to Mr. Guidry, the work

order for Hiller’s work at the Black Bay facility in April, 2012, was limited to an

“annual firefighting safety inspection.” While Hiller is capable of performing

maintenance work on equipment, there was no request for it to do so at that time.

A request would have resulted in a separate work order for work outside the scope

of the annual inspection.

2

It is clear that Wood Group intended that Hiller’s sole job was to perform an

annual inspection, as Mr. Harvey testified as follows:

Q. And what does an annual inspection entail?

A. They come out and check all of our fire and safety equipment to
make sure we’re in compliance.

Q. And other than check that equipment, do they do
anything else? Are they supposed to do anything else, from
your perspective?

A. Not at that time.

Austin R. Pitre, Wood Group’s account manager, too, confirmed that

Hiller’s sole responsibility was to inspect all of the safety equipment. Hiller would

“go around and tag equipment that needed to be serviced.” He agreed that that was

what “what they’re supposed to do.”

It is clear that Hiller was only retained to perform an inspection of the safety

equipment. It is equally clear that Wood Group, which undertook the

responsibility of servicing or removing equipment needing service, was (or should

have been) familiar with the equipment at the facility over which it had sole

operating authority. The testimony at trial did, in fact, indicate that Wood Group

was familiar with the cylinder at issue, as Lilton Harvey, Wood Group’s

production foreman, testified that it had been removed in the past by Wood Group

employees.

While Wood Group clearly took responsibility for the cylinder and had

handled it in the past, the record clearly reflects that Wood Group did not train its

employees, and particularly, those tasked with handling the cylinder in the instant

case. In my opinion, and as is discussed more fully below, this failure was the

most significant factor in the events which led to the incident.

The cylinder at issue is a Siemens Sinorex clean-agent system which

discharges its fire-suppressant agent to fully extinguish a fire, leaving no residue.

3

As David Stahl, Mr. Malta’s expert explained, the cylinder has a high-flow nozzle,

designed to completely discharge its contents within thirty seconds. Thus, as Mr.

Harvey testified, cylinders can accidentally malfunction and discharge their

content; however, there would be no evidence that it had discharged as it dissipates

entirely. Here, although Dray Hebert noted that the cylinder “has 0 PSI,” there was

sufficient other evidence, obvious to all parties, that the cylinder had not

accidentally discharged.

Mr. Hebert noted in his report that the cylinder was full, with a weight of

245 pounds. The cylinder, when it is empty, weighs 110 pounds. It is considered

full when it is filled with 134 pounds of fire-suppressant agent.1 In his report, Mr.

Hebert indicated the cylinder’s weight to be “stamped full” with a weight of 245

pounds, a significant difference from an empty 110 pound cylinder. This, alone,

would indicate to anyone with any knowledge of these cylinders that it had not

accidentally discharged and was not empty. While Mr. Harvey “read [Mr.

Hebert’s] report” and “understood” (i.e. assumed) that it had discharged

erroneously because of the 0 PSI reading, a proper reading of the report would

have alerted him to the fact that the cylinder was, in fact, full of the fire-

suppressant agent. Having signed off on all of Mr. Hebert’s reports, Mr. Harvey is

legally presumed to have read and understood its contents. See, e.g., Brown v.

Simoneaux, 593 So.2d 939, 941 (La. App. 4 Cir. 1992)(“[a]n individual who signs

a written instrument is charged with the responsibility of having read it and is

presumed to know and understand its contents”); Guimmo v. Albarado, 99-286, p.

7 (La. App. 5 Cir. 7/27/99), 739 So.2d 973, 976 (“when a party signs papers they

are presumed to know the contents of those papers.”).

1
Here, there was 135 pounds of the fire-suppressant agent in the cylinder. Thus, the cylinder had
1 pound more of the agent than required to be full.
4

It is important to note, at this juncture, that there is a distinction between the

amount of liquid in a cylinder and the amount of pressure it contains. The

witnesses who were questioned about this issue all indicated that the amount of

liquid does not determine the amount of pressure in a cylinder. Mr. Pitre explained

that the level of liquid in a cylinder is not a factor in whether the cylinder will

discharge; it is the pressure within the cylinder that causes it to discharge.

However, as David Stahl, further explained, “you can’t have liquid and not have

pressure. Where there’s liquid or product, there’s pressure.”

There is no question that Mr. Hebert’s sole responsibility was to conduct an

inspection and to report his findings, including the deficiencies. Mr. Hebert

prepared two reports at the conclusion of his inspection. The first, a Clean Agent

Cylinder Report, accurately noted that the cylinder was full of liquid, but noted that

it “ha[d] 0 PSI.” The Deficiencies report noted that “cylinder has 0 PSI and needs

to be sent in for recharge.” The error in these reports, as Mr. Stahl explained (and

as Mr. Guidry likewise agreed), was in stating that the cylinder “had” 0 PSI, as

opposed to “gauge reads 0 PSI.”

This failure warrants a finding of fault on Mr. Hebert’s (Hiller’s) part.

However, I do not believe that, given the totality of the circumstances and Wood

Group’s fault, Hiller bears a significant share of the comparative fault. I would

assign 25% fault to Hiller. Wood Group’s decision to handle the transportation of

the cylinder itself and its complete failure to train its employees in the proper

handling of the cylinder was, in my opinion, a far greater factor in the accident and

I would assess it with 50% of the fault. Mr. Malta, as discussed more fully below,

ignored warning signs, and proceeded without questioning those signs, and thus,

bears some fault as well. I would assess Mr. Malta with 25% fault.

In my view, the factors culminating in the accident started well before the

accident, with Wood Group’s failure to properly train its employees. This failure

5

to train was compounded by the events of the accident date, April 4, 2012, the day

after Mr. Hebert had left the facilities. That morning, Wood Group had a regular

safety meeting, at which time the removal of the cylinder for servicing was

discussed. Despite the fact that many of the Wood Group’s employees had never

before dealt with this cylinder, Wood Group gave no instructions or basic

guidelines that morning on how it should be handled or any protective equipment

with which to perform their work. Mr. Malta was one of those employees who had

never handled this type of cylinder. He testified that he had absolutely no training

on fire-suppression systems. Nor did he have any training on the type of cylinder

involved in this accident.

Wood Group’s failure to properly train its employees is clearly a violation of

industry standards. According to Mr. Stahl, Mr. Malta’s expert in fire protection

maintenance practices, the National Fire Protection Association (which provides

the industry standards governing the maintenance, installation, design of these

systems), requires that those who operate or maintain fire extinguishing systems be

thoroughly trained. Those standards include the following:

Personnel involved with fire suppression system
cylinders must be thoroughly trained in the safe handling
of the containers, as well as in the proper procedures for
installation, removal, handling, shipping, and filling; and
connection and removal of other critical devices, such as
discharge hoses, control heads, discharge heads,
initiators, and anti-recoil devices.

Mr. Harvey, who was “essentially in charge of the entire platform,” was well

aware that when a cylinder discharges, “it becomes like a missile” and his training

is to take extra precautions when dealing with something that is pressurized.

However, even he had no “training or dealing or familiarity with [this] type of

cylinder before [the] incident.” In fact, Mr. Harvey had no knowledge that the

cylinder involved in this case was a “specialized cylinder” as this is the only

cylinder of its kind at the Black Bay facility. After there was a “root cause

6

analysis,” he admitted that “this one actually has to have a plug or something

installed in it.” Thus, not only did he have “no specific training on how to deal

with these specialized cylinders . . . none of [his] employees would have either.”

Mr. Harvey acknowledged that Wood Group could have obtained training for its

employees on handling this type of cylinder:

Q. Do you recall any indication of any type of
training so that these people would know exactly how to
remove those particular cylinders?

A. Not that -- No, sir.

Q. And if at any point in time you wanted training
from Hiller, you could have just asked Hiller, and Hiller
would have provided that training; is that right?

A. We could have -- Hiller could have -- I had to
get it approved. Hiller doesn’t provide anything for
free.

That Wood Group gave no training to its employees was also confirmed by

Mr. Lowery, a Wood Group electrician, who was tasked with the removal of the

cylinder. He testified that he had no instructions whatsoever as to how to transport

pressurized gas cylinders. Nor had he ever even seen the transport of a cylinder

like the one involved in this case.

At the safety meeting on the morning of the accident, Mr. Harvey asked

John Lowery to remove the cylinder. Mr. Lowery, in turn, asked Donald Crain, a

control room operator, to move it to the outside of the generator building so that it

could then be transported for servicing. Mr. Crain testified that he had no training

whatsoever on the removal of this type of cylinder, and never had any safety

training on fire-suppressant systems in general. The training he did receive from

Wood Group included the instruction to pick up a cylinder “either [by] the double-

choke hold with a sling or a cylinder bottle rack.”

7

Neither a sling nor a cylinder bottle rack was used in this case. After Mr.

Crain moved the cylinder to the platform for off-loading, it was lowered into a

liftboat, where it was tied to a handrail.

Robert Fleming, a crane operator who had been notified by radio that there

was a cylinder coming that needed to be unloaded with a crane, arrived and hooked

a cargo basket to the crane, lowering it into the liftboat. Mr. Lowery and Mr.

Crain, who were in the liftboat, then placed the cylinder in the cargo basket. At the

second platform, where the cylinder was to be off-loaded, Mr. Fleming raised the

basket to the warehouse platform. As he was swinging the cargo basket around to

place it on the platform, Mr. Malta was acting as a “spotter” to assist in bringing

the cargo basket down. Mr. Malta grabbed the rope, and guided the basket to the

deck.

Mr. Malta then “bear hugged the cylinder” to remove it from the basket. Mr.

Malta testified that, as he put the cylinder down on the grating and “attempted to

pull it back and draw it on its access so [he could] roll the bottle to a staging area,”

the bottle began to hiss. He tried to push the cylinder out of the way, but it “went

ballistic” and started spinning, striking him.

The testimony at trial is that there are different ways to unload a cylinder;

Mr. Fleming testified that one could “use a strap or cargo basket, . . . [or] put [it] in

a rack.” Mr. Crain, though, had no instructions on the use of a rack as a

requirement for moving this cylinder. Nor did he receive instructions from Wood

Group as to manually moving a cylinder (i.e., “how to actually grab it or move it

by hand.”).

Mr. Harvey also confirmed that cylinders are supposed to be handled with a

protective rack. He testified that “[a]ll bottles get moved with a rack.”

Importantly, he indicated that it was a mistake for the crew to have moved the

cylinder without a rack:

8

A. They’re supposed to get moved with a rack.

Q. So it was a mistake for that crew to move that bottle without a
rack?

A. Yes, sir.

Q. And that crew should have known that?

A. Yes, sir.

Q. There’s no question about that?

A. There’s no question about it.

Mr. Harvey also indicated that Wood Group had racks for cylinders. He

further testified that this cylinder “could have fitted in one of those rack[s]” or that

Wood Group “could have gotten a rack for it” or “rented one.”

Mr. Pitre also testified that racks protect cylinders from being damaged or

causing them to depressurize. However, according to Mr. Pitre, there was no rack

on location “for this particular operation.” And, while he indicated that not every

rack fits every cylinder and sometimes, a rack has to be built, “this cylinder should

not have been shipped or transported without a rack.” Mr. Pitre further indicated

that “it would be against safety guidelines to do so.”

Mr. Malta had previously moved many other types of cylinders, which “[f]or

the most part [are] in bottle racks.” However, because he had never handled this

type of cylinder before, Mr. Malta did not know that it is normally moved in racks,

nor that it should have been moved in a rack. Clearly, Wood Group’s failure to

train Mr. Malta that this type of cylinder should only be moved in a rack was a

contributing factor to Mr. Malta’s mishandling of the cylinder and the accident.

While moving the cylinder without any protective devices was clearly a

mistake, it is equally clear that all of Wood Group’s employees were aware of the

fact that, under all circumstances, cylinders are to be treated as though they are

pressurized. The unrefuted testimony of the Wood Group witnesses was they are

9

to handle cylinders as though they are pressurized. Mr. Harvey testified that “one

of his pet sayings is ‘Never trust a gauge’” because “a gauge can give a zero

pressure when there can still be pressure in it.” Accordingly, his training is to

always assume that a cylinder is pressurized. When asked whether his workers are

trained to read the transportation instructions on cylinders, he responded: “[n]ot to

the extent of every cylinder. We treat every cylinder the same, as if it was under

pressure.”

That Mr. Harvey was aware that the cylinder still could have had pressure

was confirmed by the following exchange:

Q. So you knowingly sent these guys to remove this
particular cylinder, knowing that it could still be
pressurized; right?

A. Yes, sir.

Q. And even though the gauge read zero, it could still
be pressurized?

A. Yes, sir.

The other Wood Group witnesses who testified on this issue agreed as to this

practice. Mr. Crain was trained by Wood Group to “always assume that a cylinder,

. . . or bottle of this type, is under pressure” and to “always treat a cylinder like this

as if it’s under pressure.” Mr. Fleming, too, testified that cylinders should always

be treated as pressurized and that, “unless the top is completely off, there could

always be some pressure in it.”

Similarly, Mr. Guidry indicated that, according to “common practice, you

never approach a pressurized cylinder and think that it has 0 psi. There’s always

residual pressure.” Mr. Lowery testified that, even if a gauge “read empty,” there

could still be pressure in a cylinder. He stated: “Any bottle could be empty and

still have pressure in it.”2 Mr. Lowery agreed that, “no matter what the Hiller

2
The witnesses called cylinders “bottles” and “cylinders” interchangeably.”
10

representative or the gauges said, [he] knew from [his] own experience that there

could still be pressure in that cylinder when [he was] removing it.”

The most telling testimony came from Mr. Malta, who had moved cylinders

many times, including off-loading them from vessels, and estimated that he had

done so approximately a thousand times. However, he had never before handled

the type of cylinder involved in this case. He testified that he “would always take

and treat every bottle as if it was full, whether it was empty or not.” He also stated

that he was trained to always assume that a cylinder of compressed gas always has

pressure in it. The following colloquy then took place:

Q. So you should assume and treat it as if it was
pressurized; is that right?

A. And I did.

Q. Would you have treated this cylinder differently
when you off-loaded it from the cargo basket if it had
been full, as opposed to empty?

A. No; treated it the same.

Q. So whether it was full or if it was empty, you
would have treated it the same?

A. That’s correct, in the safest manner possible.

While Mr. Malta testified that he understood the cylinder to be empty with 0

PSI in it, he answered in the affirmative when asked whether he “treated it as if it

still might be pressurized because . . . even though [he] saw the 0 psi on the gauge,

[he] too [was] concerned that it still might have some pressure in it.”

Another major factor in the accident attributable to Wood Group was its

failure to train its employees to ensure that the cylinder was either disabled so that

it could not discharge, or that a protective device was placed on it to ensure that it

would not accidentally discharge. This demonstrates that the lack of training and

an understanding of the risks were predominant factors in the accident.

11

As Mr. Stahl explained, the top of the cylinder has a discharge port through

which the fire-suppressant agent is discharged. The discharge can be actuated in

one of two ways. First, there is an electrical solenoid valve, which is the electrical

portion of the discharge head, which is electrically actuated. Second, the cylinder

can be actuated manually by activating the manual lever. The manual lever is

protected from discharging by a “safety pin.”

According to Mr. Harvey, Wood Group employees “are supposed to make

sure that the pin is in place to prevent an accidental discharge.” Additionally, there

is a plastic tie that holds the pin in place, and the employees are “supposed to make

sure that that’s in place before they move the cylinder.” When the tie and the pin

have been removed, “you know that that cylinder had [gone] off or this fire

extinguisher had [gone] off.”

Here, the testimony reflects that, before the cylinder was transported, and

before he moved the cylinder to the area of the crane, Mr. Lowery removed the

solenoid valve, but the pin remained in the cylinder. At that point, with the

solenoid valve removed, and as Mr. Pitre confirmed, the only way for the cylinder

to accidentally discharge is if the safety pin protecting the manual actuator was

removed or became dislodged.3

While many of the witnesses testified that they knew the importance of

having a pin in the cylinder when it is moved, the evidence clearly shows that there

was a pin in place at the time that Mr. Malta began to handle it. A pin with no

other protection was clearly insufficient to prevent an accident. Thus, according to

Michael Brast, Hiller’s expert, “the only way it really could discharge is if [Mr.

Malta] hit [the pin] . . . [b]ecause the minute you hit it, it’s gone. It’s

instantaneous. It doesn’t have a delay in it.” Thus, while Mr. Lowery removed the

3
The cylinder could also have discharged if it had been dropped, as several witnesses testified,
although there was no evidence that it had actually been dropped.
12

solenoid, his failure to remove the manual actuator rendered the cylinder volatile

and unsafe. In fact, Mr. Stahl testified that, had the manual actuator been

removed, the cylinder could not have discharged. But Mr. Lowery, as an

electrician who had only dealt with electrical solenoids, had never handled a

manual actuator and had never been told that that it was unsafe to transport the

cylinder with the manual actuator still in place.

Mr. Guidry and Mr. Hebert both also confirmed that the removal of the

manual actuator would have disabled the cylinder and rendered it safe for

movement.

Mr. Brast testified that there was another method by which the cylinder

could have been made safe for removal, by capping the discharge port. This would

also have prevented the cylinder from discharging. In his opinion, the person who

removed the cylinder was not trained and did not know that the actuator should

have been removed or capped before transporting it.

With respect to capping the cylinder, Mr. Lowery testified that most

cylinders have caps on them. Mr. Fleming confirmed this fact and testified that

cylinders without protective caps are prone to being damaged, causing the

propellant to discharge.

Importantly, Mr. Malta, too, recognized that he was moving a cylinder

without a rack. Nor was there a cap on the cylinder, something he noticed when he

first saw the cylinder. Despite knowing that there should have been a protective

cap, Mr. Malta proceeded to handle it. Mr. Malta testified that, although he had

seen cylinders moved around without racks, he had never seen a cylinder moved

without a protective cap. He stated that “[t]he only bottle without a protective cap

was this bottle here, the one in question that hit me.” He testified as follows:

Q. . . . didn’t you say previously that you saw acetylene bottles and
oxygen bottles moved about the platform without caps?

13

A. No, never said that.

Q. So it's your testimony you never saw a bottle moved
without a cap on it?

A. Only this bottle here.

Although Mr. Malta explained that he felt it was safe to handle the cylinder

because he had been told that it was empty with no pressure, this directly conflicts

with his clear testimony that he was trained to always treat a cylinder as though it

had pressure in it. Mr. Malta agreed that he could have asked for help, but he did

not see the need to do so. He agreed that he “took no action to alert any one of

[his] supervisors that [he] was being asked to off-load a cylinder with no cap and

no bottle rack.” Nor did he advise the crane operator “that there was a problem

since there was no bottle rack or protective cap.” To the contrary, he “[d]id what

[he] was told to do, by orders of Mr. Lilton Harvey.” Both Mr. Harvey and Mr.

Pitre testified that Wood Group has a policy where an employee can stop work if

he perceived a safety issue.

There was also testimony that an anti-recoil device could have been used,

and according to the instructions of the cylinder’s manufacturer, was to have been

used to prevent an accidental discharge. As Mr. Stahl explained, the type of

cylinder involved in this case does not have threads to screw a protective cap on;

this is where an anti-recoil cap comes into play. He indicated that it is a plug that,

in the event that a cylinder is activated, prevents the cylinder from jettisoning; “it

just lets out a small amount [of pressure] until the bottle finally exhausts itself.” It

prevents the cylinder from moving.

At the time of the incident, Mr. Harvey did not know what an anti-recoil was

and indicated that none of Wood Group’s employees had been trained on the use of

such a device. Nor had he ever read the label of the cylinder until after the

incident. He confirmed that the label gave instructions for transportation that

14

indicated that an anti-recoil device was required. In fact, Mr. Pitre testified that the

cylinder label has big, red letters, stating “DANGER” which warns that an anti-

recoil device should be put in place if the cylinder is disconnected. Neither Mr.

Malta nor Mr. Lowery knew what an anti-recoil device was either. According to

Mr. Pitre, at that time, Wood Group had no policy against transporting cylinders

without any type of anti-recoil device or some type of transportation cap on them.

In addition to these failures, Mr. Harvey identified other failures when he

testified as follows: (1) “none of them [the Wood Group employees] handled the

cylinder the way they should have handled it;” (2) Mr. Malta should not have bear-

hugged the cylinder because “Wood Group training is not to bear-hug a cylinder

and grab it. That's not our training;” and (3) Mr. Malta “shouldn’t have grabbed

[the cylinder] out of the basket. It shouldn’t have even been placed in the basket.”

Mr. Stahl confirmed Mr. Harvey’s testimony that the cylinder was

mishandled by Wood Group’s employees who were not properly trained in the

maintenance and handling of fire-suppressant systems. He also testified that it is

“taboo” to transport a cylinder in a cargo net, stating “[t]here's not a shipyard or a

facility in the world, that will let me transport them in a cargo net. They have to be

upright and strapped in. . . .”4

Thus, while I agree with the majority that Hiller bears some fault for the

accident given Mr. Hebert’s failure to clarify that the gauge “read” that the

cylinder had 0 PSI, as opposed to stating that it had 0 PSI, in my opinion, this one

factor played a smaller role in the accident. Wood Group’s decision to handle the

transportation of the cylinder itself and its complete failure to train its employees in

4
The testimony was that the cylinder had been placed in a cargo net during its transport.
According to Mr. Lowery, they had no materials to strap the cylinder on to a pallet. Nor was the
cylinder placed into a cargo net to be lowered into the boat. It had simply been placed on the
deck before being placed in the boat. Thereafter, the cylinder was placed in a cargo net when
they arrived at the other platform other platform, where the three men participated in putting the
bottle into the cargo net. Mr. Lowery’s only instructions were to “move the [cylinder].” It was
when Mr. Malta was removing the cylinder from the cargo net that it discharged.
15

the proper handling of the cylinder was a far greater factor in the accident. Wood

Group’s further failure to follow the specific manufacturer’s instructions, readily

observable on the cylinder itself, warning of danger and instructing that an anti-

recoil device is to be used when the cylinder is disconnected, likewise contributed

to the accident. Mr. Malta also ignored warning signs – he knew there was no rack

for transport and noted that there was no protective cap on the cylinder. Despite

this, he chose not to stop the work or question a supervisor about these warning

signs and proceeded without caution. This is particularly problematic given that

Mr. Malta, like all of Wood Group’s employees, knew to treat the cylinder as

though it was pressurized. Had he done so, by ensuring that it was safe to handle,

the accident would not have occurred.

Based on the foregoing, in my opinion, the parties all bear some comparative

fault for the accident. I would find that the negligence of Hiller and Mr. Malta

were the foremost factors in the accident. As previously stated, I would assign

25% fault to Mr. Malta, as his own actions in handling a cylinder without a rack

and which he knew had not been capped, with the knowledge that it could still be

pressurized, contributed to the accident. Because neither he nor any of the Wood

Group employees were fully or properly trained by Wood Group in the handling of

pressurized cylinders, I would assign Wood Group with 50% fault. The remaining

25% fault, I would assign to Hiller/Mr. Hebert.

16