Opinion
Civil Action No. 03-2684 Section "T" (4).
January 27, 2005
ORDER AND REASONS
The above-captioned matter came for bench trial on October 27, 2004, before this Court, without a jury. The Court, having considered the record, the evidence, the applicable law, and the memoranda submitted by the parties, now makes the following findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. To the extent that any conclusion of law is deemed to be a finding of fact, it is adopted as such; and likewise, any finding of fact that is deemed to be a conclusion of law is so adopted.
FINDINGS OF FACT
With regard to the Court's factual findings, if no exhibit is specifically referenced, that particular finding is based upon the testimony given by various witnesses at trial.
1. Plaintiff, Eduardo Cole, filed this action against his employer, Dolphin Towing, LLC, ("Dolphin") and the owner of the DOLPHIN I (Dolphin Tugs, LL), alleging negligence under the Jones Act and unseaworthiness under the General Maritime Law for two separate alleged accidents.
3. On April 23, 2003, the plaintiff, along with Captain Adam Cheramie, Mate David Drain, Oiler Jose Nolasco, and two Able Bodied Seamn, Vinnie Hebert and Amilcar Bermudez, were aboard the Dolphin I, traveling to Grand Isle block 25 to tow an RFB Falcon jack up rig to a new location. While attempting to throw a heaving line from the back deck of the DOLPHIN I onto a rig that the vessel was preparing to take into tow, the RVF 152, plaintiff injured his right biceps tendon.
4. Plaintiff espoused two theories of liability for this incident: (1) Dolphin failed to train plaintiff on how to throw a heaving line; and (2) throwing a heaving line was not plaintiff's duty.
5. With respect to the first theory of liability, plaintiff's lack of training, this Court finds that the issue of training is not germane to this litigation because: (1) Plaintiff had almost a full year of on the job training, including throwing heaving lines, without incident; (2) according to every member of the crew of the DOLPHIN I called at trial and Dolphin's liability expert, plaintiff threw the heaving line in a safe and proper manner; and (3) Dolphin had no duty to train/warn plaintiff of an unforeseeable risk of harm.
6. First, in addition to plaintiff having been assisting the deck crew of the DOLPHIN I for approximately one year before his alleged accidents, plaintiff admitted at trial that he chose the task of throwing the heaving line because it was easy for him. "I grabbed the heaving line because that was the easy job for me." Plaintiff further explained that throwing the heaving line was "one of the easiest things to do on the boat."
7. Plaintiff's recorded statement provides an account of the issues in this case given in plaintiff's own words forty days after his first accident. [ Exhibits AA, BB, or CC. Where are these? ]
8. Plaintiff was asked, "Have you thrown this thing [heaving line] before?" He responded, "Sure." He continued, "Usually, you know, I do it or Jose do it. Anybody can do it." Plaintiff further noted that there was nothing different about this line throw from any other lines he has thrown since he worked at Dolphin. Plaintiff stated that the position on the boat was the same, that the water was not bad and that there was no better way of getting the heaving line up to the rig, noting "that's why they call it a heaving line because you have to throw it."
9. At trial, plaintiff testified that he threw the heaving line no more than twice, but in his deposition, he said it would be "hard to tell" how many times he threw it. To explain the inconsistences of his trial statement and deposition testimony, plaintiff responded, "I probably didn't catch the question."
10. Every crew member called to testify at trial testified that plaintiff threw the heaving line on numerous occasions and did so in a safe and proper manner.
11. Captain Cheramie and Mr. Drain, the vessel's Mate, testified that the plaintiff was one of the best crewmembers at throwing the heaving line, better than the AB Deckhand on board the Dolphin I with nineteen (19) years experience, Vincent ("Vinny") Hebert.
12. While at trial the plaintiff testified that the would have liked to have been trained to throw a heaving line like an AB deckhand, he also testified that he threw this line like the other crewmembers and admitted to throwing the heaving line in the same manner as the trained AB Seaman aboard the vessel.
13. The plaintiff testified that if he had to throw the heaving line again, he would throw it the same way today.
14. Dolphin's liability defense is supported by the testimony of Captain Dennis Holt, who is presently a Captain on board a large ocean-going tug similar to the M/V DOLPHIN I. Captain Holt has been a crewmember of tugboats, supply boats and large pipe lay construction vessels and is a qualified, independent marine and industrial operations and safety consultant who has been admitted as an expert in state, civil and federal courts. He was also the coordinator of safety and training at Zapata.
15. According to Captain Holt, all personnel who have worked aboard tugboats are familiar with a heaving line.
16. While plaintiff contends that the use of a heaving line is not required by a Chief Engineer, Captain Holt correctly noted that a vessel such as the M/V DOLPHIN I typically is assigned duties working with derrick, lay and jet barges or any number of other types of barges that would necessitate its need to take bunkers while at sea. In those instances, bunker hoses to transfer fuel, water and other liquids required by the vessel are passed to and from the vessels involved in the bunkering with the use of heaving lines passed from the tug. Those same lines are used to secure the hoses during the transfer to assure that the hoses do not fall between the vessels. Furthermore, heaving lines are used to transfer equipment that is either to heavy or bulky to safely transfer by hand from vessel-to-vessel or from the vessel to a dock.
17. This Court opines that the plaintiff understood after a year of successfully throwing heaving lines, without incident, aboard the DOLPHIN I that this task encompassed his normal and customary tasks.
18. According to Captain Holt, the use of a heaving line is part of the usual and ordinary work done by a seaman, including engineers, and does not require special training. Captain Holt testified that plaintiff's use of the heaving line was not outside the scope of his experience and noted that the plaintiff observed his fellow crew members throwing heaving lines for a year and successfully threw heaving lines on numerous occasions, without incident.
19. Captain Holt testified that the plaintiff's on the job training was far superior to any shore side training, noting that formal training is not necessary to learn to throw a heaving line. Captain Holt testified that most seaman learn to throw a heaving line on their first hitch because it is such a common and rudimentary task.
20. Captain Holt noted that Captain Cheramie observed the plaintiff while on board the DOLPHIN I and was satisfied that plaintiff was capable of throwing the heaving line in a safe and proper manner.
21. Captain Holt concluded that lack of training was not relevant to this accident because plaintiff threw the line properly. He testified that there is no gold standard method for throwing a heaving line published in any reference manual or policy nor is there a standard maritime/industry practice.
22. Captain Holt testified that there are several safe and acceptable methods to throw a heaving line, including overhand, underhand and lasso. While there are some general restrictions, such as not getting tangled in the rope and avoiding obstacles, the choice of method depends on the personal preference of the seaman.
23. Captain Holt testified that he has witnessed thousands of heaving lines thrown and estimated that half of the mariners throw a heaving line in the same manner as plaintiff.
24. Captain Holt stated that there was no dereliction of duty by Captain Cheramine or Dolphin with regard to the heaving line incident.
25. Captain Adam Cheramie is a licensed Tugboat Captain with twelve years experience. In addition to his tenure at Dolphin, he has also worked as a captain for Tidewater and Falcon and has worked aboard utility boats, supply boats and shrimp boats and has worked in all positions, including Engineer.
26. Captain Cheramie worked with the plaintiff for approximately a year before the heaving line incident and characterized the plaintiff as a "good worker, helpful and a team player."
27. In the year that Captain Cheramie worked with plaintiff, he observed the plaintiff assisting the deck crew in making-up town to jack-up barges and observed plaintiff throw a heaving line more than five times.
28. Captain Cheramie characterized plaintiff's ability to throw the heaving lines as "good," in relation to distance and aim. He noted that plaintiff was "above average" and better than some of the deckhands, including Vinny Hebert (who completed the throw after plaintiff injured his right arm).
29. Captain Chermie testified that plaintiff threw the heaving line in a proper fashion and that the method he utilized did not cause him any concern. Further, he testified that he had seen seamen throw side-arm, underhand and overhand, whatever method works best for them.
30. Plaintiff never expressed any concern to Captain Cheramine about throwing the heaving line or working on the back deck. According to the Captain, plaintiff did not need any additional training or experience to throw a heaving line. If Captain Cheramie thought plaintiff needed additional training to throw the heaving line, he would not have let plaintiff throw it.
31. On the date of plaintiff's accident, Captain Cheramie could see the work being done on the back deck of the vessel and testified that if something was unsafe, he would have made an announcement on the PA. However, that was not necessary because plaintiff was handling the heaving line in a safe and appropriate matter.
32. The Captain testified that he would have been surprised to learn that plaintiff had no prior deckhand experience because in the year that he worked with him, plaintiff displayed good skill, which suggested experience, and because plaintiff told the Captain that he had prior experience.
33. Captain Cheramie confirmed that the plaintiff had substantial on-the-job experience aboard the DOLPHIN I and whatever experience plaintiff may have been lacking before he came on his boat, plaintiff attained during the approximate year he spent aboard the DOLPHIN I, prior to throwing the heaving line and holding a tag line in April and May of 2003.
34. During the plaintiff's approximate year aboard the DOLPHIN I, Captain Cheramie did not have any problems with plaintiff's work aboard the vessel and absolutely no concern that in April of 2003, plaintiff needed additional training or experience to throw a heaving line.
35. David Drain, a mate aboard the DOLPHIN I in April, 2003, is a seaman with approximately twenty one (21) years of experience, including an eight year enlistment with the United States Coast Guard, during which time he not only received training from the U.S. Coast Guard, but was a U.S. Coast Guard training officer. He testified that the Coast Guard allowed its trainees to throw a heaving line overhand, underhand or sidearm, "whatever method works best for the person."
36. Mr. Drain testified that he witnessed plaintiff throw the heaving line at least half a dozen times and that plaintiff threw the heaving line in a proper fashion. Further, he testified that the Coast Guard would allow its trainees to throw in the same manner as he had witnessed plaintiff throw a heaving line.
37. With regard to coiling the heaving line, Mr. Drain testified that the Coast Guard allowed its trainees to hold the coils in the opposite hand of the monkey fist, split the coils between two hands or hold all coils in the same hand as the moneky fist. In his twenty one (21) year offshore experience, Mr. Drain had seen many seaman employ the method utilized by plaintiff in throwing the heaving line and never heard an instruction that it was improper or unsafe to throw a heaving line in that manner.
38. Mr. Drain testified that in his view, the plaintiff's method was a proper and acceptable method and that plaintiff was good at throwing a heaving line. He testified that in comparison to the other crewmembers aboard the vessel, plaintiff was one of the best at throwing the heaving line. Plaintiff volunteered to assist the deck crew and was a helpful and competent worker aboard the deck. Mr. Drain testified that he believed he had sufficient experience with plaintiff to say that he was a competent and helpful worker aboard the back deck of the DOLPHIN I.
39. Almilcar Bermudez testified at trial that he had six (6) years experience as a seaman and had thrown a heaving line hundreds of times. He received on-the-job training to throw a heaving line at Edison Chouest by watching someone else throw a heaving line and then trying it himself.
40. Mr. Bermudez saw the plaintiff throw a heaving line many times, including the day the plaintiff injured his biceps. He testified that the method employed by plaintiff was not uncommon and did not cause him any concern. In fact, Mr. Bermudez, who was considered the best heaving line thrower on the vessel, threw the heaving line in the same manner as the plaintiff. Mr. Bermudez has never been instructed that the method he and the plaintiff utilized was improper.
41. Mr. Bermudez also noted that the plaintiff was good at throwing the heaving line and that he liked to do it. As an AB Seaman who has thrown a heaving line on hundreds of occasions, Mr. Bermudez testified that the plaintiff did not need any additional training to throw the heaving line.
42. Vinny Hebert was an AB deckhand, with nineteen (19) years experience, aboard the DOLPHIN I in April and May of 2003. He worked with the plaintiff the entire time the plaintiff was assigned to the DOLPHIN I. Mr. Hebert described the plaintiff as a helpful crewmember, who routinely assisted on the back deck of the vessel.
43. Mr. Hebert testified that he saw the plaintiff throw the heaving line at least five (5) to six (6) times and had no concern regarding the method utilized by the plaintiff. According to Mr. Hebert, the plaintiff never complained about throwing the heaving line. In fact, the plaintiff liked to throw the heaving line, volunteered to throw it and was one of the best crewmembers at throwing the heaving line. And while Mr. Hebert had nineteen (19) years of training and experience as a deckhand, he testified that his ability to throw the heaving line was surpassed by the plaintiff.
44. There was conflicting testimony as to the height of the jack-up rig and the distance required to throw the heaving line up to the jack-up rig. The plaintiff testified that the height of the rig was approximately thirty (30) feet.
45. However, according to Mr. Hebert, who successfully threw the heaving line to the intended target, the jack-up rig was at a distance of approximately fifteen (15) feet. Mr. Hebert testified that he has never thrown a heaving line more than fifteen (15) feet. The Court finds Mr. Hebert's testimony more credible as to the issue of the height of the jack-up rig.
46. Vinny Hebert provided inconsistent testimony, both in his deposition and at trial regarding his alleged conversations with the Captain regarding whether or not it was safe for the plaintiff to throw the heaving line. However, Mr. Hebert's testimony regarding the height of the rig, fifteen (15) feet or less, and his personal observation of the plaintiff's experience in throwing the heaving line (five to six times), as well as the method utilized by the plaintiff, which he characterized as "safe and proper", has been consistent.
47. Captain Cheramie testified that Mr. Hebert never reported to him that the plaintiff's assistance on the back deck was unsafe.
48. Captain John Manders, a retired Merchant Marine who derives 80% of his income from litigation support, testified that the plaintiff was not properly trained to throw a heaving line.
49. Captain Manders' trial testimony relied on information relayed to him in a telephone conference with the plaintiff to support his opinions on the heaving line incident, but wholly disregarded his client's account during the same conversation of the tag line incident. Moreover, his opinions regarding the proper method of throwing a heaving line were not contained in his expert report.
50. The deposition of Captain Manders was conducted on August 27, 2004, at which time Captain Manders stated he was not instructed to give any opinions on plaintiff's first accident and that he did not render any opinions regarding the first accident in his expert report. He further admitted that he did not know what method plaintiff was using in attempting to throw the heaving line and that any testimony regarding the first accident would be speculation.
51. Although Captain Manders unequivocally testified that he did not have any opinions regarding plaintiff's first accident, after consulting with the plaintiff in a telephone conference during a brief lunch break at his deposition, Captain Manders came back on the record and espoused several untimely opinions regarding plaintiff's first accident and opined that Dolphin was negligent in failing to train the plaintiff on the use of a heaving line. However, earlier in his deposition, Captain Manders admitted that he was not aware of the extent of plaintiff's on-the-job training and that he had no opinion regarding Dolphin's safety program.
52. This Court rejects the opinions of Captain Manders regarding Dolphin's safety program, the extent of the plaintiff's on-the-job training and the first accident. Captain Manders is the only witness, fact or expert, that opines that plaintiff was inadequately trained.
53. With respect to the issue of the accident report, there has been conflicting testimony as to whether a report was prepared the day following the accident or three weeks later. This Court finds that when the plaintiff's accident report was filled out is of no relevant to the allocation of fault.
54. With respect to the second incident, the Court finds that the plaintiff has not established that an accident occurred on May 12, 2003. None of the crew members standing next to Mr. Cole witnessed the accident, and the accident was not reported to the Captain until at least a day later.
55. Although Vinny Hebert did testify about an incident in which he assisted the plaintiff in holding a tag line, he was unsure whether this was on May 5, 2003, or May 12, 2003. Mr. Hebert testified that on the day he remembers helping the plaintiff hold a tag line, the plaintiff did not report any pain or discomfort, did not stop working, and there was no indication that the plaintiff injured himself. Further, on the incident Mr. Hebert remembers, the crew was successful in connecting the HERCULES after two tries. Plaintiff's testimony, at his deposition and at trial, was that it took three attempts to secure the tow and he did not mention Mr. Hebert's assistance on the day of his incident.
56. The plaintiff has given four separate inconsistent accounts of this alleged second accident: (1) At his deposition, plaintiff alleged that he injured his right biceps again after the pin was in the shackle; (2) In response to inquiries from his liability expert, the plaintiff alleged that the suspended tail chain never touched the back desk of the vessel; (3) At trial in response to his counsel's questions, plaintiff alleged that he hurt his arm right before the pin was in; and (4) At trial in response to the Court's questions, plaintiff testified that he hurt his arm after the pin was in and after the nut was screwed on.
57. At trial, in response to his counsel's questioning, plaintiff testified that the incident on May 12, 2003, was the first time he had assisted in hooking-up with the HERCULES. However, on cross-examination, the plaintiff admitted to defense counsel that he had assisted in the hook-up with the HERCULES when he connected "the other time" he worked with the HERCULES. Captain Cheramie, Mr. Drain, Mr. Bermudez and Mr. Hebert all testified that the plaintiff had assisted in the hook-up to the derrick lay barge HERCULES prior to May 12, 2003.
58. In addition, there are exhibits admitted into evidence that contradict plaintiff's testimony, including a sign-in sheet, upon which plaintiff's name was signed, from a safety meeting hosted by Captain Cheramie and David Drain on April 22, 2003, in which the "duties and responsibilities of hooking-up to the HERCULES" were discussed. Plaintiff testified that this safety meeting form was left in the galley for the crewmembers to sign and that he actively participated in falsifying documents by signing his name to the safety form when he did not attend the meeting. However, this accusation is contradicted by the testimony of Captain Cheramie and Mr. Hebert who both testified that the Captain conducted these safety meetings.
59. The Court finds that the plaintiff's second theory of liability, that throwing a heaving line was not the plaintiff's duty, is neither supported by plaintiff's testimony nor the testimony of his liability expert.
60. Plaintiff admitted in his statement that "we work as a team" making tow. All fact witnesses called at trial, including Dolphin's liability expert, Captain Dennis Holt, testified that engineers work with the deck crew in making town, including throwing heaving lines.
CONCLUSIONS OF LAW
1. Dolphin is not the insurer of the safety of the plaintiff nor does the mere occurrence of an accident or injury give rise to any inference that Dolphin failed to furnish the plaintiff with a safe place to work or was in any other respect negligent. Mitchell v. Trawler Racer, Inc., 362 U.S. 359, 80 S.Ct. 926 (1960); Vickers v. Tumey, 290 F.2d 429 (5th Cir. 1961).
2. A shipowner has no duty to instruct an experienced seaman on matters within common sense, or to remind him of what he already knew or should have known. Vendetto v. Sonat Offshore Drilling Co., 725 So.2d 474 (La. 1999); Grover v. American President Lines, Inc., 1995 AMC 2105 (N.D. Ca. 1995).
3. Mere failure to instruct or supervise does not equate to negligence when the seaman is fully knowledgeable of the available safe method. Id.
4. The Court finds that Dolphin was not negligent within the meaning of the Jones Act or that its vessel was unseaworthy in regard to either of the accidents alleged by the plaintiff.
5. In consideration of the above, the plaintiff, Eduardo Cole, has failed to meet his burden of proof.
6. Accordingly, judgment is entered in favor of the defendant, Dolphin Towing, L.L.C., and against the plaintiff, Eduardo Cole, dismissing the plaintiff's claims with prejudice.