Filed: Apr. 25, 1996
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 94-40810 _ MARK J. DESLATTE, Plaintiff-Appellee, versus TIDEX, INC., Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Louisiana (93-CV-546) _ March 18, 1996 ON PETITION FOR REHEARING Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges. E. GRADY JOLLY, Circuit Judge:* On petition for rehearing, Tidex takes the panel to task for deciding the case on a basis different from the rationale
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 94-40810 _ MARK J. DESLATTE, Plaintiff-Appellee, versus TIDEX, INC., Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Louisiana (93-CV-546) _ March 18, 1996 ON PETITION FOR REHEARING Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges. E. GRADY JOLLY, Circuit Judge:* On petition for rehearing, Tidex takes the panel to task for deciding the case on a basis different from the rationale ..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-40810
_____________________
MARK J. DESLATTE,
Plaintiff-Appellee,
versus
TIDEX, INC.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Louisiana
(93-CV-546)
_________________________________________________________________
March 18, 1996
ON PETITION FOR REHEARING
Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
On petition for rehearing, Tidex takes the panel to task for
deciding the case on a basis different from the rationale and the
specific findings of the district court. Notwithstanding the
petitioner's protestations, however, and to the extent that his
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
point has support, appellate courts may comprehensively canvas the
record and are free to affirm a district court on any basis that
the record supports. Ferguson v. Hill, 846 F.2d 20, 21 (5th Cir.
1988); Brock v. Mr. W Fireworks, Inc.,
814 F.2d 1042, 1044 (5th
Cir), cert. denied,
484 U.S. 924,
108 S. Ct. 286 (1987). In
comparing the district court's formal findings with other
information in the record, we can also make assumptions regarding
what the district court properly could have concluded in reaching
its decision.
Ferguson, 846 F.2d at 21; Thomas v. Express Boat
Co., Inc.,
759 F.2d 444, 448 (5th Cir. 1985).
Tidex further argues in its petition for rehearing that we
engaged in factfinding, which, of course, an appellate court is not
permitted to do. Although we did not engage in factfinding, the
petitioner has pointed out that in certain instances we failed to
state with accuracy the precise record facts. We regret each
error. Nevertheless, each error ultimately is inconsequential to
our finding that, on this record, the district court's findings of
liability and damages are supportable and must be affirmed. In
order to correct any mistakes in our reading of the record as
reflected in our earlier opinion, the panel withdraws the opinion
that was filed in this appeal on June 23, 1995, and substitutes the
following. In all other respects, the petition for rehearing is
denied.
-2-
I
Tidex, Inc. ("Tidex") appeals the district court's entry of
judgment against it on Mark Deslatte's ("Deslatte") claims of
negligence under the Jones Act, 46 U.S.C. § 688, and
unseaworthiness under general maritime law, the district court's
apportionment of damages, and the district court's denial of its
motion for a new trial. We carefully have reviewed the record and
the briefs in this case and conclude that the judgment of the
district court must be affirmed in all respects, save its award for
"found" damages.
II
Because an explanation of the facts will facilitate a better
understanding of this case, we present them in detail.
Deslatte was injured during a mooring operation on
December 15, 1990, while he was working for Tidex on its supply
vessel, the M/V O'NEIL TIDE. Deslatte, age twenty-six at the time,
was serving as the chief engineer on the vessel and had been
working for Tidex almost four years when the accident occurred.
The accident occurred when the O'NEIL TIDE was delivering
supplies to a drilling rig in the Gulf of Mexico. The supply
vessel’s captain, Ernest LeBouef, had never been to this drilling
rig. Because the currents were strong that day, Captain LeBouef
decided to tie the O'NEIL TIDE's bow to a mooring buoy, which was
-3-
approximately one-fourth mile from the drilling platform, and back
the stern of the supply vessel to the rig. Once on location, the
drilling rig was to lower mooring lines to be secured to the
vessel's stern bitts.
Before commencing the operation, the captain met with Deslatte
and part of the crew to discuss the method of securing the vessel
to the buoy. Captain LeBouef ordered Deslatte to man the bow line
and three other crew members to handle the stern lines, while the
captain would attempt to execute the backdown maneuver using the
stern controls of the vessel. Positioned at the stern controls,
the captain would have no means of seeing Deslatte or of
communicating with him during the procedure. The one remaining
crew member was permitted to sleep through the procedure.
Captain LeBouef decided to use a bridle setup to secure the
O'NEIL TIDE to the anchor buoy because it provided more stability
than the alternative single line setup. Under the bridle setup,
one end of the line is tied to the portside bitt on the bow. The
other end is then placed through a shackle attached to the anchor
buoy line and then tied to the starboard side bitt on the bow.
With only 300 feet of bow line available, the use of this method
effectively reduced the available bow line by one-half. Captain
LeBouef chose this procedure even though he was uncertain of the
length of the buoy line.
-4-
Deslatte's job was to monitor the bow line at the starboard
side bitt as the vessel backed toward the rig. When more line was
needed, Deslatte was to take a wrap off the bitt. If the line
began to surge, Deslatte was to put the wrap back on the bitt. If
the line began to surge uncontrollably, the captain instructed
Deslatte to drop the rope and try to get away.
As the operation proceeded, Deslatte paid out the bow line on
two different occasions, without incident. The operation proceeded
uneventfully until the vessel moved into position to receive the
mooring lines from the rig. When the vessel reached the rig,
Deslatte decided to let out the line a third time, without looking
to see whether enough rope remained on deck. As he was doing this,
the line surged suddenly and uncontrollably through his hands.
Deslatte dropped the line and attempted to step back, but as the
line surged, the end of it whipped around the bitt and struck his
right leg just below the knee. Deslatte sustained a fractured leg
and severe damage to his right knee. Deslatte admitted that had he
checked, he would have seen that the end of the line was at his
feet, and he would not have let out more line. Despite three
surgical procedures, including reconstructive surgery, the injury
to his right knee remains disabling.
III
-5-
Deslatte brought a seaman's action for damages against his
employer, Tidex, under the Jones Act, 46 U.S.C. § 688, and general
maritime law. Following a two-day bench trial, during which the
parties presented neither expert witnesses nor evidence of industry
standards, the court found the defendant negligent and its vessel
unseaworthy. The judge predicated a finding of negligence on the
captain's failure to insure proper communication and visual contact
with crew members, and found that the accident might have been
avoided had the defendant awakened a sleeping crew member to serve
as lookout for Deslatte. The court further found inadequate
communication between the stern controls and the bow, thus,
constituting an unseaworthy condition that caused Deslatte's
injuries. From the facts presented, the judge found that Deslatte
was 15% contributorily negligent. The court awarded Deslatte
$100,000 in general damages and $270,083.42 for economic losses,
subject to a reduction for his contributory negligence.
Tidex filed a motion for a new trial, which the district court
denied without a hearing. Tidex timely filed its appeal. The
defendant asks this court to reverse the district court's judgment,
or, in the alternative, to remand for further articulation of the
legal and factual basis for apportionment of fault. The defendant
also requests a modification of the found award.
IV
-6-
Tidex presents several arguments on appeal. The company first
argues that the trial judge erred by imposing liability on it for
the claims of negligence and unseaworthiness because there was
insufficient evidence on which to base this determination. In the
alternative, Tidex argues that the trial court's findings on
Deslatte's contributory negligence are insufficient to permit
meaningful review, thus, requiring the case to be remanded for
further findings. Finally, Tidex argues that the trial court
erroneously calculated the damage award by giving Deslatte double
recovery in the form of damages for both maintenance and found.1
We now direct our attention to these issues, and hold that the
district court's judgment should be affirmed, with the exception of
the award for found.
Very important to the conclusion we reach today is the
standard of review under which this case is judged. We review a
trial judge's findings of fact under the clearly erroneous
standard, whereas we review his conclusions of law de novo.
Brister v. A.W.I., Inc., 946 F.2d 350, 354 (5th Cir. 1991). Under
the Jones Act, the defendant "'must bear the responsibility for any
negligence, however slight, that played a part in producing'"
Deslatte's injury. Zapata Haynie Corp. v. Arthur,
980 F.2d 287,
1
Found refers to damages awarded as recovery for offshore
living expenses, including lost offshore meals.
-7-
289 (5th Cir. 1992), cert. denied, 113 S. Ct. 2999 (1993)(quoting In
re Cooper/T. Smith,
929 F.2d 1073, 1076-77 (5th Cir.), cert.
denied,
112 S. Ct. 190 (1991)). Indeed, under the Jones Act, the
burden of proving causation between the negligent conduct and the
injury is "featherweight."
Id.
We must keep in mind, furthermore, that in admiralty cases
questions of negligence are considered as factual issues and,
therefore, are examined under the clearly erroneous standard.
Zapata
Haynie, 980 F.2d at 289. As we have stated,
[a] factual finding is clearly erroneous when although
there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed. If the
district court's account of the evidence is plausible in
light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had
it been sitting as the trier of fact, it would have
weighed the evidence differently. Where there are two
permissible views of the evidence, the factfinder's
choice between them cannot be clearly erroneous.
Id. (citations omitted)(quotations omitted) (emphasis added). The
clearly erroneous standard also applies to the district court's
apportionment of the blame, which this court will not overturn if
it appears at least roughly correct.
Thomas, 759 F.2d at 447;
Flowers Transp., Inc. v. M/V PEANUT HOLLINGER,
664 F.2d 112, 114
(5th Cir. 1981). With these standards in mind, we turn to the
-8-
evidence to determine whether the record, viewed in its entirety,
supports Deslatte's Jones Act claim.2
After a thorough review of the record in its entirety, we
cannot say that the district court was clearly erroneous in its
determination that Tidex was liable for Deslatte's injuries under
the Jones Act. The record that supports the district court's
finding of liability under the Jones Act includes the following
circumstances and evidence. This was Captain LeBouef's first time
to unload at this drilling rig, and he did not know the length of
the buoy line. The captain testified at trial that, nonetheless,
he had knowledge that this particular buoy line was shorter than
normal. Yet, the captain used a bow line, 300 feet in length, with
a bridle configuration that effectively halved the length of the
line. Admitting his ignorance of the length of the buoy line, the
captain testified that he did not really know whether there was
enough line to use the bridle setup and whether it would suffice to
reach the rig. The captain further testified that he knew that
there was a chance that they might run out of line before reaching
the rig and that the line, under pressure, might shoot out rapidly
from the side of the vessel. He admitted never discussing this
danger with Deslatte.
2
Because of our disposition of Deslatte's Jones Act claim,
there is no need for us to reach his unseaworthiness arguments
under general maritime law.
-9-
In comparing the district court's finding of liability with
the record as a whole, the record clearly supports a conclusion
that the danger facing Deslatte under these circumstances was
foreseeable to the captain. As chief engineer, Deslatte's primary
responsibility aboard the vessel was to maintain the efficient
working condition of the machinery and engineering plant, although
he assisted sometimes with mooring duties. The captain testified
at trial that he knew that most of Deslatte's experience had been
as an oiler or an engineer and that he did not know whether
Deslatte had ever paid out a line under pressure. Regarding his
difficulty with paying out the line, Deslatte testified that,
because of the tension in the rope and its unpredictability, it
would have been dangerous to take his eyes off it to look at the
remaining rope. Captain LeBouef's trial testimony indicates an
awareness of this potential dilemma because the captain confirmed
that, in mooring operations, a crew member is supposed to keep his
eye on the rope as it is going around the bitt. From this
evidence, coupled with the captain's failure to discuss potential
dangers with Deslatte and his failure to ascertain the engineer's
inexperience in paying out line, the factfinder could infer that
Deslatte's inattention to the remaining rope and the resulting
injury were reasonably foreseeable to the captain.
-10-
Notwithstanding these risks, the captain directed Deslatte to
man the bow line and three other crew members to handle the stern
lines, while he attempted to execute the backdown maneuver using
the vessel's stern controls. The defendant permitted one crew
member to sleep through this procedure. While at the stern
controls, the captain had no means of seeing Deslatte or of
communicating with him. Once the situation got out of hand,
Deslatte's calls for help went unanswered simply because the
captain could not see or hear him. The captain, in performing this
task under procedures that he had established, had allowed himself
to be so out-of-communication with a crucial operation on his
vessel, that he was not aware of Deslatte's injuries until Deslatte
managed to climb up to the wheelhouse and alert the captain. In
short, the defendant was fully apprised of conditions that should
have heightened its concerns for safety in this situation, yet the
defendant took inadequate steps to establish a readily available
means of communication for which there was an evident need. In
other words, the record supports a finding of some negligence in
executing the task of backing down to the drilling rig and this
negligence has a causal connection to the accident that resulted in
Deslatte's injuries.3 For these reasons, we hold that the district
3
Tidex suggests that the effect of our affirming the district
court is to require two persons to perform the task at hand--one to
perform the primary task and the second to serve as a lookout--when
-11-
court was not clearly erroneous in its ruling in favor of Deslatte,
and its judgment of liability is affirmed.
With respect to the allocation of contributory negligence,
Tidex challenges the sufficiency of the evidence to support the
district court's finding of 15% negligence on the part of Deslatte.
As explained above, we will not overturn the district court's
apportionment of the blame so long as it appears at least roughly
correct. Thomas, 759 F.2d at 447. Our review of the whole record
leads us to conclude that sufficient evidence supports the district
court's allocation of fault. We are guided in our conclusion by
the clear law in this circuit that, although the seaman has a duty
to use reasonable care, the duty to provide for a safe course of
conduct lies primarily with the vessel owner. E.g., Ceja v. Mike
Hooks, Inc.,
690 F.2d 1191, 1193-94 (5th Cir. 1982). We note that
the district court expressly considered Deslatte's degree of
responsibility for his injuries and attempted to quantify
Deslatte's fault based on the evidence presented at trial. In
accord with our controlling standard of review, we find the
allocation of fault by the district court adequately supported by
the record evidence and thus not clearly erroneous.
there is neither testimony regarding industry standards nor expert
testimony indicating that this job required more than one person.
Our ruling today has no such effect because we are deciding this
case and this case only. We are affirming on the totality of the
conduct under the circumstances and not on any single failing of
the defendant.
-12-
Consequently, the district court's judgment is AFFIRMED in all
respects, save one. Tidex argues that the damages for found, or
lost offshore meals, must be recalculated so that Deslatte is not
awarded a double recovery. The record is unclear whether the
district court's award for found was double recovery. Thus, we
REMAND this issue to the district court to ensure that Deslatte has
not been awarded both maintenance and found for the same time
period.4
V
For the foregoing reasons, we hold that in the light of the
totality of the circumstances, the district court's judgment
finding Tidex 85% negligent and Deslatte 15% contributorily
negligent is not clearly erroneous. We remand on the issue of the
found award, however, so that the district court can ensure that
Deslatte does not receive double recovery for lost offshore meals.
The district court's judgment is therefore
AFFIRMED and REMANDED.5
4
A recovery of "found" should preclude recovery of maintenance
for the same period of time in a subsequent maintenance and cure
action, and vice versa. See Alexandervich v. Gallagher Bros. Sand
& Gravel Corp., 298 F.2d 918, 920 (2d Cir. 1961); see also
Richardson v. St. Charles-St. John the Baptist Bridge and Ferry
Auth.,
284 F. Supp. 709, 713 (E.D. La. 1968).
5
No member of this panel nor judge in regular active service
on the court having requested that the court be polled on rehearing
en banc, (FRAP and Local Rule 35) the suggestion for rehearing en
banc is also DENIED.
-13-
