JUDGMENT AND REASONS

NANNETTE JOLIVETTE BROWN, District Judge.

This matter came before the Court for trial without a jury from October 24, 2016, to October 25, 2016.1 The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1333(1), which confers on the federal district courts original jurisdiction over admiralty and maritime claims, and pursuant to 33 U.S.C. § 905(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA").2 Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), as Defendant River Ventures, LLC ("River Ventures") resides in the Eastern District of Louisiana.3 The substantive law applicable to this case is the LHWCA, 33 U.S.C. § 901, et seq., and the general maritime law.4

The Court has carefully considered the testimony of all of the witnesses and the exhibits entered into evidence during the trial, as well as the record. After reviewing all of the evidence and pursuant to Federal Rule of Civil Procedure Rule 52(a), the Court issues the following findings of fact and conclusions of law. To the extent that any finding of fact may be construed as a conclusion of law, the Court hereby adopts it as such, and to the extent that any conclusion of law constitutes a finding of fact, the Court hereby adopts it as such.

I. BACKGROUND

In this litigation, Gonzales, an employee of Intervenor United Bulk Terminals Davant, LLC ("UBT"), seeks damages for injuries sustained on June 17, 2014, while being transported on a vessel by Defendant River Ventures.5 As a result of this accident, Gonzales asserted a claim against Intervenor American Longshore Mutual Association, Ltd. ("ALMA") and UBT (collectively, "Intervenors") pursuant to the LHWCA.6 Intervenors contend that ALMA, on behalf of UBT, made payments to Gonzales in connection to these injuries pursuant to the LHWCA.7

On June 16, 2015, Gonzales filed a complaint in this matter against River Ventures.8 ALMA and UBT intervened on December 1, 2015, and March 10, 2016, respectively.9 No dispositive motions were filed. On October 13, 2016, ALMA filed a motion in limine to preclude Jerry Hannah, president of River Ventures, from testifying about matters it believed constituted parol evidence regarding the contract between River Ventures and UBT.10 The Court took the motion under advisement prior to trial.11 River Ventures chose not to call Jerry Hannah as a witness during the trial, which rendered the motion moot.12 On October 19, 2016, River Ventures filed a motion to exclude the "surprise" expert testimony of Dr. Charles Haddad.13 River Ventures also filed a motion to continue the trial based on Dr. Haddad's allegedly new testimony on October 20, 2016.14 The Court denied both motions.15 A trial without a jury was held from October 24, 2016, to October 25, 2016.16

On November 7, 2016, the Court ordered the parties to submit supplemental post-trial briefing, if necessary.17 On November 20, 2016, ALMA filed a post-trial memorandum.18 On November 21, 2016, Gonzales filed a post-trial memorandum.19 On December 8, 2016, River Ventures filed a post-trial memorandum,20 and on December 9, 2016, ALMA and UBT filed a reply.21 On December 12, 2016, Gonzales filed a reply.22

II. FINDINGS OF FACT

A. The Parties

B. The Relationships Between the Parties

C. River Ventures' Vessel: The M/V TROOPER

D. The Events of June 17, 2014: Gonzales boards the vessel

E. The Events of June 17, 2014: Gonzales attempts to disembark from the vessel

F. The Events of June 17, 2014: Gonzales' Injuries and Medical Treatment

III. CONCLUSIONS OF LAW

Gonzales brings this action against River Ventures pursuant to Section 905(b) of the LHWCA, which permits certain workers engaged in maritime employment and injured on a vessel to bring an action against the vessel owner, and General Maritime Law.100 All parties agree that Gonzales was a "longshoreman" pursuant to the LHWCA, 33 U.S.C. § 901, et seq.101 Under Section 905(b), a vessel owner is liable for those damages "caused by the negligence of a vessel," i.e. the vessel's failure to exercise reasonable care.102 Section 905(b) does not define negligence or specify particular acts or omission of a vessel that would constitute negligence.103 The Fifth Circuit has determined that Section 905(b) was not intended to "create a new or broader cause of action in admiralty," but rather "preserves an injured worker's pre-existing right, under general maritime law, to recover for third-party negligence."104 Maritime tort cases under this provision are analyzed using general principles of negligence law.105 Thus, to succeed on his claim against River Ventures, Gonzales must show: (1) River Ventures owed a duty to Gonzales; (2) there was a breach of that duty; (3) causation; and (4) damages.106

A. Duty

Gonzales argues that, in maritime cases such as this one, a vessel operator owes passengers aboard its vessel a duty of reasonable care under the circumstances to "not negligently injure them, and to warn them of any dangers of which the operator knows or should know."107 In particular, Gonzales avers that River Ventures owed Gonzales a duty to provide safe egress from its vessel.108

In Kermarec v. Compagnie Generale Transatlantique, the Supreme Court held that it is a "settled principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew."109 The Supreme Court determined that "the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case."110 The Fifth Circuit has further held that "shipowners, relatively speaking, are held to a high degree of care for the safety of their passengers."111 Thus, here it is clear that River Ventures owed its passenger, Gonzales, a duty of reasonable care under the circumstances, including a duty to provide a safe egress from its vessel and a duty to warn Gonzales of any dangers of which River Ventures knew or should have known.112 Accordingly, Gonzales has satisfied the first element of his negligence claim.

B. Breach

Next, Gonzales must establish that River Ventures breached its duty to exercise reasonable care. According to the Fifth Circuit, the relevant factors to consider when determining whether a vessel exercised reasonable care under the circumstances include: (1) the experience of the crew; (2) the type of vessel involved; (3) the risks and dangers to the passengers peculiar to that type of vessel; (4) the vessel's degree of control over the passengers; and (5) the vessel's ability to take precautions against such dangers.113 Here, the M/V TROOPER is a small vessel used to, inter alia, transport UBT employees and equipment between work sites.114 Captain Ruffin, the sole crewmember of the M/V TROOPER, had approximately six months of experience as a captain at the time of the incident, which Ferniz, a UBT employee, characterized as "pretty green" and "fresh."115 Captain Ruffin exercised significant control over the M/V TROOPER as the captain of the vessel, and passengers were prohibited from climbing aboard the offloading platform until the captain signals that it is safe to do so.116 However, the UBT employees, including Gonzales, determined both the pick-up and drop-off locations when requesting a transport from River Ventures.117 River Ventures had also adopted some measures to protect against injuries when passengers disembark from the offloading platform, which, when followed, would allow for an "ordinary," "customary," and "typical safe transfer."118 As several witnesses testified, these precautionary measures include: prohibiting passengers from climbing up to the offloading platform until the captain signals that it is safe to do so;119 requiring three points of contact with the vessel when on a ladder or platform;120 prohibiting jumping from the offloading platform to the dock;121 and attending safety meetings.122

Here, Gonzales argues that River Ventures breached its duty to exercise reasonable care under the circumstances by failing to provide for a safe transfer for Gonzales.123 In particular, Gonzales asserts that River Ventures, through Captain Ruffin and the M/V TROOPER, breached its duties by: (1) failing to use an alternative, safer location to drop off Gonzales; (2) failing to warn the passengers to "watch the bump;" (3) bumping the M/V TROOPER hard against the dock;124 and (4) failing to know where his passengers were positioned on the boat.125 Gonzales further contends that striking a pier "with sufficient force to throw down" a passenger "is indicative of negligence and poor seamanship," and that there is a presumption of fault against the defendant when a moving vessel strikes a stationary object such as a dock.126

In response, River Ventures argues that it did not breach any duty to Gonzales.127 River Ventures asserts that there is no presumption of a breach in this case from the mere fact that the vessel bumped against the dock, as the "Oregon Rule" is only applicable to unintended vessel allisions where the fixed object's owner has brought a claim for damages.128 Moreover, River Ventures avers that merely because an incident occurred while a passenger was disembarking does not create a presumption that the egress was not safe, particular when the passenger's own actions allegedly cause the injury.129 According to River Ventures, this case solely arises from Gonzales' "poor and dangerous choice in climbing to the platform of the River Ventures' M/V TROOPER while the vessel was underway and jumping onto the UBT dock before the vessel had safely landed."130

Based on the testimony and evidence presented at trial and for the reasons that follow, the Court finds that Gonzales has not demonstrated by a preponderance of the evidence that River Ventures breached its duties to Gonzales while he was a passenger onboard the M/V TROOPER. Here, Gonzales does not argue, nor does any evidence suggest, that Captain Ruffin breached any duties when he picked Gonzales up, first piloted the M/V TROOPER over to the "F boom" dock, or backed the stern of the vessel up against the dock. Rather, Gonzales asserts that River Ventures' duty to exercise reasonable care was breached when Captain Ruffin "walked" the M/V TROOPER over to the dock, i.e. turned the vessel from having its stern against the dock to having its starboard side parallel with the dock.131

However, while the Court credits Gonzales' and Ferniz's testimony that Captain Ruffin attempted to "walk" the M/V TROOPER over to the dock multiple times,132 the Court finds that Gonzales has failed to establish that such actions constitute a breach of River Ventures' duty to Gonzales. First, the testimony shows that Gonzales, as a UBT employee, determined where he would be picked up and dropped off by River Ventures, and that it was Gonzales who instructed Captain Ruffin to transport him to the "F boom" dock.133 Moreover, Gonzales failed to show that Captain Ruffin's decision to take Gonzales to the "F boom" dock was itself negligent in light of either his experience or the water conditions that day, or that it was negligent for Captain Ruffin to continue attempting to "walk" the vessel over instead of piloting the vessel to an alternative location. No witness testified that this maneuver was uncommon or should not have been performed.134 Likewise, there was no testimony that Captain Ruffin should have left the "F boom" dock and piloted the M/V TROOPER to another location if he did not successfully dock the vessel on the first try. Rather, the Court credits the testimony that, once Captain Ruffin succeeded in turning the vessel, Gonzales could have safely stepped off from the vessel to the dock, and that this maneuver was typical, ordinary, and customary.135

Second, while the Court also credits Gonzales' and Ferniz's testimony that the vessel bumped against the dock more than once,136 the Court finds that Gonzales did not establish that bumping against the dock constitutes a failure to exercise reasonable care under the circumstances or that Gonzales had a duty to warn Gonzales of the bumps. Instead, several witnesses, including Gonzales, testified that bumping against the dock is a typical and common occurrence while docking or "walking" the vessel.137 As the Fifth Circuit has repeatedly held, "[a] vessel owner does not need to warn passengers or make special arrangements for open-and-obvious risks."138 For example, in Superior Oil Company, the Fifth Circuit held that a seaman acted negligently when he attempted to jump between two vessels, as he was "an experienced seaman [who] should have been fully cognizant of the danger involved" and should have avoided the obvious risk of jumping.139

Here, the testimony established that bumping against a dock while "walking" the vessel and docking is a common and expected occurrence, and thus constitutes an "open-and-obvious vessel was "walked" over). risk." This is particularly true for passengers with significant maritime experience and familiarity with the M/V TROOPER such as Gonzales.140 For instance, Ferniz testified that he was holding on to the handrail on the back deck of the vessel when Captain Ruffin first began "walking" the vessel because Ferniz "knew there was going to be a shock and bounce."141 Accordingly, this case is analogous to Superior Oil Company in that Gonzales, an experienced maritime electrician who was familiar with the M/V TROOPER, should have been cognizant of the risk of bumping against the dock while the captain was "walking" the vessel over to the dock. Thus, the Court finds that, considering the evidence and testimony presented, Captain Ruffin did not have a duty to affirmatively warn Gonzales that the vessel would bump against the dock in these circumstances.

Likewise, to the extent that Gonzales argues that Captain Ruffin should have warned Gonzales not to climb onto the offloading platform while the vessel was moving, the Court finds that such conduct also constitutes an "open and obvious" risk. The Court credits Captain Ruffin's unchallenged testimony that passengers should not climb up onto the offloading platform until the captain signals for them to do so.142 Thus, in light of this direct prohibition and the obvious risks of standing while the vessel is moving on a raised, open-ended platform meant to only assist in disembarking from the vessel, as well as Gonzales' extensive experience on vessels, the Court finds that Captain Ruffin did not have a duty to affirmatively warn Gonzales to not board the offloading platform while the vessel was moving.

While Gonzales cites to several cases in which courts found that a presumption of negligence exists when a vessel allides with a fixed object, each of the cases is distinguishable, as they involved situations where the only explanation for hitting the fixed object was poor seamanship and negligence.143 In Bunge Corporation v. M/V Furness Bridge, the Fifth Circuit explained that the "common sense behind the rule makes the burden a heavy one," as "[s]uch accidents do not occur in the ordinary course of things unless the vessel has been mismanaged in some way."144 Here, the testimony established that bumping against the dock does in fact "occur in the ordinary course of things" when "walking" the vessel over to a dock.145 Thus, the Court concludes that, in the facts and circumstances of this case, Gonzales has not established that he is entitled to a presumption of negligence merely because the vessel bumped into the dock. To the extent that he is entitled to such a presumption, the Court further determines that River Ventures has rebutted the presumption.

Next, the Court further notes that, even crediting Gonzales' testimony that the bumps were "real hard,"146 the Court finds that Gonzales failed to establish that the bumps were so hard as to constitute a breach of duty, i.e. that Captain Ruffin did not exercise reasonable care under the circumstances of this case. As the Fifth Circuit determined in Daigle v. Point Landing, Inc., a moving vessel does not breach its duty to its passengers when the master or captain did not "[know] or [have] reason to suspect the vessel's maneuvering in the river endangered the plaintiff's safety."147 There, the Fifth Circuit held that the vessel's movement only jeopardized the plaintiff's safety because the plaintiff was operating a defective winch without a protective cover, without informing the master or crew that he was doing so, and without instructing the master or crew to cease maneuvering the vessel.148

Here, Captain Ruffin testified that he did not know that Gonzales had climbed to the top of the offloading platform,149 and no witness testified that Gonzales told Captain Ruffin that he was going to climb onto the offloading platform while the vessel was moving or that Captain Ruffin ever signaled Gonzales that it was safe to do so. Moreover, there was no testimony as to how long Gonzales was on top of the offloading platform or that Captain Ruffin should have been checking to make sure Gonzales had not prematurely climbed up to the platform while he was simultaneously "walking" the vessel. In fact, Captain Ruffin testified that he would have been unable to both "walk" the vessel and keep an eye on every passenger simultaneously, and the Court finds such testimony persuasive.150 Rather, the only testimony that establishes that Captain Ruffin knew that Gonzales was on top of the platform before Gonzales jumped comes from Captain Ruffin himself, who testified that Ferniz told him that Gonzales was about to jump right before it occurred and without any opportunity to stop the vessel.151 Accordingly, the Court finds that Gonzales has failed to establish that Captain Ruffin "knew or had reason to suspect the vessel's maneuvering in the river endangered [Gonzales'] safety," as the Court is persuaded that Captain Ruffin was not aware that Gonzales was not on the stern of the deck with Ferniz.152

To the extent that Gonzales argues that the "hard" bumps would have constituted a failure to exercise reasonable care in the instant circumstances even if he had not been on top of the offloading platform, the Court determines that there was insufficient evidence presented to support such a finding. There was no testimony that Captain Ruffin was "walking" the vessel too fast or was otherwise improperly maneuvering the vessel in light of the fact that the river was "rough" and "running high" that day. Nor was there any expert or credible lay testimony that the bumps were so forceful as to evidence a failure to exercise reasonable care regardless of where Gonzales was standing. Likewise, there was little to no corroborating evidence that Captain Ruffin bumped the M/V TROOPER against the dock too hard for those circumstances, such as evidence of damage to the vessel or the dock or testimony from Ferniz that he was also thrown by the force of the bumps while he was on the back deck. In fact, the Court notes that, despite having already felt three "hard" bumps, Gonzales testified that he did not use his "stop-work authority" or step away from the edge of the platform, both of which undermines Gonzales' contention that the bumps were too hard in those circumstances.

In other words, in light of the river's conditions that day and the established routine nature of bumping against the dock while "walking" a vessel to the dock, Gonzales has not established by a preponderance of the evidence that these bumps were so hard that they constitute a failure to exercise reasonable care under the circumstances by River Ventures. It was Gonzales' burden to show that the bumps against the dock were of such force that they crossed the line from an ordinary occurrence while docking into an act of negligence; Gonzales failed to do so.

Rather, as discussed infra, in light of the testimony and evidence presented and the relative credibility of each witness, the Court finds that Gonzales' injuries arose not from any breach of duty by River Ventures, but because Gonzales: (1) improperly climbed onto the offloading platform while the vessel was still moving and without Captain Ruffin's permission; (2) failed to inform Captain Ruffin that he was climbing onto the platform; and (3) attempted to jump down to the dock before Captain Ruffin finished "walking" the vessel into position so that Gonzales could safely disembark. Accordingly, the Court finds that Gonzales failed to establish by a preponderance of the evidence that River Ventures breached its duties to Gonzales during the events of June 17, 2014.

C. Causation

The Court further finds that, even if River Ventures' conduct constitutes a breach of its duties to Gonzales, Gonzales has failed to establish by a preponderance of the evidence a causal connection between the alleged breach and Gonzales' injury. "Under the general maritime law, a party's negligence is actionable only if it is the `legal cause' of the plaintiff's injuries, which is something more than `but for' causation —the negligence must be a substantial factor in causing the injuries."153

Here, Gonzales testified that he was thrown from the vessel onto the dock when Captain Ruffin bumped against the dock on his fourth attempt at "walking" the vessel, and thus River Ventures' alleged negligence was causally connected to Gonzales' injury.154 However, as stated supra, the Court finds the testimony of Todd Ferniz, the only other eye witness to Gonzales' actions who testified, to be the most credible. Ferniz, like Gonzales, is an employee of UBT.155 Despite his connections to both the plaintiff and the intervening parties, Ferniz testified that: (1) while Captain Ruffin was attempting to "walk" the vessel over to the "F boom" dock, Gonzales climbed onto the offloading platform;156 (2) while Captain Ruffin was still trying to properly position the vessel, it appeared that Gonzales was going to jump down to the dock while the vessel was moving;157 (3) he yelled to Gonzales to not jump;158 and (4) Gonzales jumped down to the dock, landed on his shoulder, and injured himself.159 Immediately after the incident, while the incident was fresh in his mind, Ferniz also told Captain Ruffin that Gonzales had jumped from the offloading platform down to the dock.160 Moreover, that same day, Ferniz prepared a written statement in which he reiterated that: (1) Gonzales "pursued to jump;" (2) Ferniz "told him not to" and "to wait until it is stable;" and (3) on the fourth attempt by Captain Ruffin to dock the vessel, Gonzales "jumped onto a pile of rope" and "landed on his shoulder."161 At trial, Ferniz testified that "pursued to jump" meant that he saw Gonzales in a jumping stance and getting ready to jump.162

Furthermore, Ferniz's recollection and testimony remained unchanged at trial over two years later: that Gonzales was up on the offloading platform while the vessel was moving and that he decided on his own to jump down to the dock while Captain Ruffin was still docking the vessel.163 The only contradicting eye witness testimony that Gonzales was thrown from the vessel comes from Gonzales himself. However, the Court finds Gonzales' testimony unpersuasive and less credible in light of Ferniz's consistent and repeated testimony and the absence of corroborating evidence that Gonzales was thrown from the boat or that the boat was moving fast enough or hit the dock hard enough to do so. Furthermore, the Court found Gonzales' testimony and recollection to be less credible because he was unable to remember certain details of the alleged fall, such as landing on a pile of rope.164

The Court notes that Gonzales' orthopedic surgeon, Dr. Charles Haddad, testified that Gonzales' story is consistent with his injuries and that Dr. Haddad's "assumption" is that someone who jumps from a vessel is "more likely" to have "some lower extremity injuries."165 However, the Court finds such testimony has little persuasive value, as Dr. Haddad only testified as Gonzales' treating physician for his shoulder injuries and was not offered as an expert witness on such causation issues. There was also no evidence presented that Dr. Haddad prepared any report or analysis to support his opinions. Moreover, on cross examination, Dr. Haddad conceded that his notes on how the incident occurred were based solely on his interview with Gonzales and that it was "possible" that the injury occurred in a different manner.166

Accordingly, the Court finds that Gonzales has failed to establish that any alleged breach of duty by River Ventures was sufficiently causally connected to Gonzales' injuries. That is, even assuming it was a breach of duty for, inter alia, Captain Ruffin to bump hard against the dock, to fail to warn the passengers to watch for the bump or to not prematurely board the offloading platform, or to fail to proceed to an alternative drop off location, Gonzales has not established that his injuries were sufficiently caused by anything other than his own decisions, mainly: (1) to climb up to the offloading platform without informing Captain Ruffin or getting Captain Ruffin's permission and in contradiction to established safety procedures; and (2) to jump down to the dock before the vessel had stopped moving and before the captain had signaled that he could disembark. This is particularly true in light of Gonzales' extensive maritime experience and the fact that Gonzales had already felt up to three bumps against the dock and did not step farther back on the offloading platform or use his "work-stop authority" to end the maneuver; instead, he jumped on Captain Ruffin's fourth attempt to dock the vessel.167

Additionally, the Court notes that, even if the Court were to find that Gonzales did not jump, he has failed to carry his burden of establishing that his injuries were caused by anything other than his decision to climb onto the platform when he was not supposed to and while the vessel was docking. In sum, Gonzales has failed to establish by a preponderance of the evidence that River Ventures' alleged negligence caused his injuries. Therefore, considering the evidence presented, the Court finds that Gonzales has not carried his burden of proof in this case, and thus River Ventures is not liable for Gonzales' injuries pursuant to Section 905(b) of the LHWCA or under General Maritime Law.

IV. CONCLUSION

For the reasons above, the Court finds that Gonzales has failed to establish by a preponderance of the evidence that River Ventures breached a duty to Gonzales or that any alleged negligence of the vessel caused Gonzales' injuries. Thus, the Court concludes that River Ventures is not liable for Gonzales' injuries pursuant to Section 905(b) of the LHWCA or under the General Maritime Law. Accordingly,

IT IS HEREBY ORDERED that there be judgment in favor of Defendant River Ventures and against Plaintiff Angelo Gonzales on all of Gonzales' claims against River Ventures.