UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 95-21021
Gabriel Israel Bonefont,
Plaintiff-Appellee,
VERSUS
Valdez Tankships Corporation and Maritime Overseas Corporation,
Defendants-Appellants.
Appeal from the United States District Court For the Southern District of Texas (CA-H-94-1232) January 9, 1998
Before JOLLY, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
The plaintiff-appellee, Garbriel Israel Bonefont, formerly a
member of the crew of the S/T OVERSEAS VALDEZ (VALDEZ), brought the
instant action against the owner of the VALDEZ, Valdez Tankships
Corporation, and the operator of the vessel, Maritime Overseas
Corporation, both defendants-appellants herein, alleging that he
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 sustained injuries aboard the VALDEZ as a result of the defendants’
negligence under the Jones Act (46 U.S.C. App. §688) and/or the
unseaworthiness of the VALDEZ. All parties consented to proceed
before a United States Magistrate Judge pursuant to 28 U.S.C.
§636(c). After a four day trial, without a jury, the court found
that the negligence of the defendants and the unseaworthiness of
the VALDEZ caused the plaintiff’s injury. In addition, the trial
court found that the plaintiff was not contributorily negligent
under either the Jones Act or the general maritime law of
unseaworthiness. The trial court entered judgment awarding the
plaintiff damages. The defendants appealed, contending that the
Magistrate Judge committed clear error in finding negligence,
unseaworthiness and in finding no contributory negligence on the
part of Mr. Bonefont. The defendants also assert that the damages
awarded were excessive. Additionally, the defendants appeal the
Magistrate Judge’s denial of their motion for new trial on the
basis of fraud and her denial of their motion for discovery pending
appeal. Finding no error, we affirm.
Background
At the time of the accident which gave rise to this
litigation, December 14, 1993, the plaintiff, Gabriel Bonefont, was
forty-eight years old and had been a seaman for thirty-one of those
years. Mr. Bonefont held a Z-card license from the United States
Coast Guard which rated him as an unlimited able-bodied seaman,
commonly called an AB, and qualified him to serve on any vessel.
2 An AB is the lowest licensed rating a seaman can hold. Except for
one voyage, Bonefont worked as an AB during his thirty-one years.
In December 1993, Mr. Bonefont was engaged as an able-bodied
seaman aboard the S/T OVERSEAS VALDEZ (VALDEZ), a 700 foot 26,000
ton tanker owned by Valdez Tankships Corporation and operated by
Maritime Overseas Corporation. The plaintiff obtained his
employment aboard the VALDEZ via his union’s hiring hall. At this
time, Mr. Bonefont was a member of the Seafarers’ International
Union which operates a hiring hall by posting employment
opportunities aboard ships and allowing qualified seaman to sign-on
to the ship of their choice with priority going to the seaman with
the most seniority in the union.
On December 14, 1993, the VALDEZ was docked at Corpus Christi,
Texas taking on stores and preparing to undertake a coast-wise
voyage with a cargo of oil. After working his regular midnight to
4:00 a.m. shift, the plaintiff agreed to work overtime loading
stores into the ship’s hold. The plaintiff was directed to assist
in the off-loading of large 20 foot steel pipes weighing
approximately 900 pounds each. The pipes were to be used in making
repairs to the ship while en route.
The loading of 20 foot long steel pipes weighing approximately
900 pounds was not a routine undertaking. It involved off-loading
the pipes from a barge moored along side of the ship onto the
VALDEZ’s deck at midship using a manually-operated boom and a
mechanical winch to which a sling was attached. In this case, the
pipes were to be taken off the barge and placed on the deck two at
3 a time stacked one on top of the other. The pipes, however, were
not bound together.
A total of six crewman were assigned to this task. The
loading procedure’s complement consisted of one crewman operating
the mechanical winch which was located fifty feet from the loading
area at midship. In addition, two crewman held the boom guides and
two crewman, Bonefont and another AB, Michael Duggan, guided and
stabilized the actual load onto the deck. Duggan and Bonefont were
instructed to manually hold the ends of the pipes as they were
lowered into place. The final crewman assigned was the boatswain
who was in charge of the loading operation but was not a permanent
employee of the VALDEZ and had been assigned to the ship in a
relief capacity two months before the accident.
In order to oversee and direct the entire operation, the
boatswain positioned himself in such a way as to give orders to
both the winch operator and Bonefont and Duggan. In this case, the
boatswain’s positioning was especially important because the winch-
man was operating blind in that he could not see the area into
which he was placing the pipes. However, because of the distance
between the winch operator and the off-loading site and the noise
generated by the winch itself, the boatswain could not communicate
orally with the winch operator and relied exclusively on hand
signals. Of importance in this matter, “[t]he hand signal to the
winch operator for ‘go slow’ involves raising one’s hand with
fingers and thumb down and opening and closing the hand with
fingers and thumb touching in a pincher-like motion. To indicate
4 by hand the command to speed up the winch, the motion involves
raising one’s hand, pointing the index finger down and rotating
that finger.”2 While these hand signals are regularly used in
broad daylight, the loading operation in question began at the pre-
dawn hour of 5:24 a.m., while it was still dark. “[A]t night,” the
same orders usually given by hand “are normally accomplished with
flashlight signals in a different manner.” The reason being that
“[i]n the pre-dawn darkness of early morning, both hand signals
look similar to each other.” “Given the winch operator’s
obstructed line of sight with respect to the load and the poorly-
lighted area in which he worked, the boatswain could have and
should have used the alternative flashlight signals to accurately
convey his directions.”
The loading process began with the boatswain signaling to the
winch-man to lift the pipes off the barge and over the deck’s
railings. The two boom guide crewman then positioned the pipes
over the deck at midship. The pipes were positioned so that they
could be lowered onto the deck in the middle of a ten foot area
between the deck rails and the manifold pan. The manifold pan is
a three feet high, twelve feet long and five feet wide steel drip-
pan located on the deck and used to catch oil and other “slushes”
from the manifold. Once the two pipes were placed into position,
the boatswain directed the winch-man to lower the pipes to
approximately three to four feet off the deck and then ordered
2 All quotations found in the opinion, unless otherwise noted, are taken from the trial court’s Findings of Fact and Conclusions of Law with citations to the record omitted.
5 Bonefont and Duggan to stabilize the load.
After the pipes were stabilized above the deck, the boatswain
motioned for the plaintiff to position himself in the middle of the
pipes, by the sling, and orally instructed him to be ready to
unhook the load. In compliance with his orders, Bonefont moved
into position between the pipes and the manifold pan. The
boatswain then signaled to the winch-man who dropped the 1800
pounds of pipes rapidly to the deck. Both Duggan and Bonefont were
surprised at the swift speed with which the massive pipes fell and
they simultaneously attempted to stand clear of the load. Duggan,
whose movement was unimpeded, was able to move clear of the pipes.
Bonefont, however, had been placed by the boatswain between the
pipes and the manifold pan such that the pan was only three to four
feet behind him. “Before Mr. Bonefont could move clear of the
rapidly shifting load, the top pipe of the two vertically stacked
pipes rolled over toward him and landed on his right foot, crushing
it. The manifold [pan] blocked his escape.” The plaintiff was
immediately taken to the hospital in Corpus Christi for emergency
care.
Subsequent to the accident, Mr. Bonefont began receiving
regular treatment for his injured foot. Eventually, the plaintiff
entered the care of Dr. William Donovan who had at the time over
twenty years of experience in handling industrial injuries. Dr.
Donovan diagnosed Bonefont as suffering from two nerve conditions:
1) Tarsal Tunnel Syndrome, an impingement of the posterior tibial
nerve and 2) Morton’s neuroma, a tumor on the nerve. These
6 conditions resulted in pressure being placed on the nerve in two
different areas of the foot causing pain and numbness. Dr. Donovan
testified that both conditions were a consequence of Mr. Bonefont’s
foot being crushed on December 14, 1993. The injury resulted in
Mr. Bonefont’s partial disability, despite his submission to foot
surgery and physical therapy. Dr. Donovan opined that although Mr.
Bonefont, could do some types of work, he was unfit to return to
duty at sea. In fact, Mr. Bonefont did attempt to return to sea
following his surgery but was unable to complete his voyage due to
the pain in his foot.
Following the accident, Mr. Bonefont filed the instant
complaint alleging that he was entitled to recover from the
defendants for the injury to his foot under two theories of
liability, viz. Jones Act negligence and/or the general maritime
law of unseaworthiness. In response, the defendants-appellants
contended that the incident did not result from any negligence on
their part or because of unseaworthiness of the VALDEZ and that,
alternatively, any injury suffered by the plaintiff-appellee was
solely the result of his own negligence.
At a four-day non-jury trial, the Magistrate Judge in this
matter heard testimony and took evidence concerning the pertinent
facts surrounding the accident of December 14, 1993 aboard the
VALDEZ and the damages sustained by the plaintiff. The trial judge
found, inter alia, that the plaintiff had never loaded heavy pipes
such as the ones involved in this matter before December 14, 1993
and that he “had no indepth knowledge or experience in the proper
7 way to load piping.” Furthermore, the Magistrate Judge also found
that “neither the boatswain nor other proper ship personnel”
offered or provided the plaintiff with any training or instruction
as to how to handle these pipes during this particular loading
operation. In addition, the trial court found that the boatswain
was in charge of the loading of the pipes such that all of the
plaintiff’s actions, including his positioning between the manifold
pan and the pipes, were taken pursuant to direct orders from the
boatswain. As to damages, Dr. Donovan recounted the treatment
received by the plaintiff and tendered his “unchallenged opinion”
that the cause of the plaintiff’s nerve injuries was the trauma he
suffered aboard the VALDEZ. The defendants-appellants proffered
evidence in an attempt to paint a different version of the facts
surrounding the accident but did not offer any testimony to counter
Dr. Donovan’s opinion as to causation or damages.
After deliberating over all of the evidence submitted by both
parties and making all credibility determinations necessary, the
Magistrate Judge issued an extensive opinion in this matter finding
that the defendants had been negligent under the Jones Act and that
the VALDEZ has been unseaworthy and that both had been a cause of
injury to the plaintiff. Additionally, the Magistrate Judge found
that under both a Jones Act and unseaworthiness analysis the
plaintiff had not contributed to his injuries in any way. A
judgment was entered in favor of Gabriel Bonefont and this appeal
followed.
8 Analysis
A. Standard of Review
When a case is tried to the court sitting without a jury, the
trial court’s findings of fact are not to be set aside unless found
to be clearly erroneous, and its conclusions of law are reviewed de
novo. See Fed. R. Civ. P. 52(a); Bertram v. Freeport McMoran,
Inc., 35 F.3d 1008, 1012 (5th Cir. 1994). A clearly erroneous
standard is appropriate for factual determinations because a
reviewing court must give “due regard...to the opportunity of the
trial court to judge the credibility of the witnesses.” Fed. R.
Civ. P. 52(a). In the maritime context, a trial court’s findings
of negligence, unseaworthiness and proximate cause are considered
findings of fact and thus subject to the clearly erroneous
standard. Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d
60, 62 (5th Cir. 1982); Webb v. Dresser Industries, 536 F.2d 603,
606 (5th Cir. 1976), cert. denied, 429 U.S. 1121 (1977).
In this appeal, Valdez Tankships Corporation, the owner of the
vessel, and Maritime Overseas Corporation, the vessel’s operator,
assert that the trial court misconstrued the evidence in finding
that the VALDEZ was unseaworthy, that such unseaworthiness was a
proximate cause of injury to the plaintiff and that the plaintiff
had not negligently contributed to his own injury.
B. Unseaworthiness and Contributory Negligence
One of the two alternative theories of liability alleged by
Mr. Bonefont in this matter was that the VALDEZ was unseaworthy and
9 that this unseaworthiness was a proximate cause of his injury. The
general maritime law places upon a vessel owner an absolute non-
delegable duty to provide a seaman with a vessel reasonably fit for
its intended use, i.e. a seaworthy vessel. See Comeaux v. T.L.
James & Co., Inc., 666 F.2d 294, 298-99 (5th Cir. Unit A 1982);
Webb, 536 F.2d at 606; see also 1 Thomas J. Schoenbaum, ADMIRALTY AND
MARITIME LAW §6-25 (2d ed. 1994)(hereinafter Schoenbaum). This duty
furnishes seamen, and only seamen, with a separate and independent
cause of action against a shipowner for unseaworthiness, distinct
from any liability the shipowner may owe based on fault. See The
Osceola, 189 U.S. 158, 175 (1903); Aguirre v. Citizens Casualty Co.
of New York, 441 F.2d 141, 143-44 (5th Cir.), cert. denied, 404
U.S. 829 (1971); Schoenbaum at §6-27, p.345(The warranty of
seaworthiness may only be claimed by those recognized as seamen
under the law.).
The doctrine of unseaworthiness obligates a vessel owner to
provide the seaman not only with a seaworthy vessel but with the
necessary gear, equipment and crew needed to make the vessel
reasonably fit for its intended use. Webb, 536 F.2d at 606;
Aguirre, 441 F.2d at 144(For seaworthiness purposes there is no
reason to distinguish between the fitness of the ship’s gear, the
ship’s personnel, and the vessel itself.); see Schoenbaum at §6-25,
p.333-4. “A vessel’s condition of unseaworthiness might arise from
any number of circumstances. Her gear might be defective, her
appurtenances in disrepair, her crew unfit. The number of men
assigned to perform a shipboard task might be insufficient. The
10 method of loading her cargo, or the manner of its stowage, might be
improper.” Usner v. Luckenbach Overseas Corp. 400 U.S. 494, 517-18
(1971)(internal footnotes omitted); see Rogers v. Eagle Offshore
Drilling Serv., 764 F.2d 300, 303 (5th Cir. 1985)(“[A]n unsafe
method of work may render a vessel unseaworthy....”); Orient Mid-
East Lines, Inc. v. Shipment of Rice on Board S.S. Orient
Transporter, 496 F.2d 1032, 1040 (5th Cir. 1974), cert. denied, 420
U.S. 1005 (1975)(An inadequate or incompetent crew may render a
vessel unseaworthy.); see also 1B BENEDICT ON ADMIRALTY §24 (7th ed.
1996)(enumerating specific cases of unseaworthiness).
At trial, the plaintiff and AB Duggan gave testimony
explaining the facts and circumstances surrounding the entire
operation. They stated that the boatswain was in charge of the
off-loading procedure and that they followed his orders throughout.
Both seaman confirmed that they received no instruction or training
concerning the loading of pipes of this nature prior to the
commencement of the operation. In addition, the chief mate of the
vessel, Mr. Kelly Forrest, testified that the boatswain in question
was new to the VALDEZ at the time of the accident and was
unfamiliar with the “idiosyncracies” of the ship. Moreover, a
witness with a multitude of years experience in the maritime
industry, Mr. Charles Walker, stated that the loading of large
heavy pipes such as those in question was not a routine exercise to
which a seaman would normally be familiar with in the course of his
employment aboard various ships. Reviewing this testimony and the
evidence as a whole, the trial court found the VALDEZ unseaworthy
11 for three reasons: “1) the boatswain was inadequately trained, 2)
the boatswain and/or others inadequately instructed or trained crew
members on appropriate loading operations, specifically failing to
outline an appropriate ‘game plan’ for the loading of the pipes,
and 3) the vessel did not have adequate lighting and/or equipment
and/or tools to safely and reasonably facilitate communications
between the boatswain and the winch operator.”
A finding that the boatswain and/or the crew was inadequate
or ill-trained for the task they were assigned represents a classic
example of unseaworthiness. Comeaux, 666 F.2d at 299(quoting June
T., Inc., 290 F.2d at 407.). The trial court found that the
boatswain in question was unfamiliar with the VALDEZ and that it
was the boatswain’s “professional shortcomings [that] led to the
accident.” Specifically, the court found that the boatswain chose
to begin the unloading operation in the dark; to load the unbound
pipes two at a time; and to communicate with the winch-man, who was
working in a darkened area some distance away, using hand signals
alone. Moreover, it was the boatswain who placed the plaintiff in
an unsafe position as the pipes quickly dropped to the deck. As
stated by the Magistrate Judge, “[t]he boatswain’s failure to
conduct the exercise in the proper manner due to his inexperience,
and his lack of familiarity with the ship and her crew, are
ultimately to blame for the haphazard method of loading the piping
which caused Mr. Bonefont’s subsequent injury.” It was not clearly
erroneous for the Magistrate Judge to find that the boatswain was
inadequately trained to handle the loading operation he was
12 assigned and that this ill-training rendered the VALDEZ
unseaworthy. See Waldron v. Moore-McCormack Lines, Inc., 386 U.S.
724, 727 n.4 (1967)(A seaman inadequate for his calling may render
a vessel unseaworthy.); Brown v. Cliff’s Drilling Co., 638 F.Supp.
1009, 1014 (E.D. Tex. 1986); Cf. Rogers, 764 F.2d at 303(Utilizing
an unsafe method of work may constitute an unseaworthy condition.).
The defendants-appellants argue that even if the Magistrate
Judge’s findings as to unseaworthiness are found to be correct, the
trial court’s finding that unseaworthiness was a proximate cause of
injury was clearly erroneous. This argument is without merit. To
recover under an unseaworthy claim, the “‘plaintiff must prove that
the unseaworthy condition played a substantial part in bringing
about or actually causing the injury and that the injury was either
a direct result or a reasonably probable consequence of the
unseaworthiness.’” Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th
Cir. 1991)(quoting Johnson v. Offshore Express, Inc., 845 F.2d
1347, 1354 (5th Cir.), cert. denied, 488 U.S. 968 (1988)). The
evidence is uncontroverted that Mr. Bonefont suffered an injury to
his foot when the pipes being loaded on to the VALDEZ rapidly fell
to the deck causing the top pipe to roll off the bottom pipe so
fast as to prevent the plaintiff, in his position between the
manifold pan and the pipes, from moving to safety. Furthermore,
the evidence shows that the accident occurred in the manner it did
because of the unseaworthiness of the vessel described above. It
was not clearly erroneous for the Magistrate Judge to find that the
unseaworthiness of the vessel was a proximate cause of injury to
13 the plaintiff.
In addition to the arguments made above, the defendants-
appellants contend that the Magistrate Judge committed clear error
when she found that the plaintiff was not contributorily negligent
in her unseaworthiness analysis. The appellants assert that the
trial court failed to hold Mr. Bonefont to the standard of care
enunciated by this court in Gautreaux v. Scurlock Marine, Inc., 107
F.3d 331, 339 (5th Cir. 1997)(en banc), viz. ordinary prudence
under the circumstances. The record reflects otherwise.
The Magistrate Judge clearly considered a number of factors in
finding that it was “reasonable” for Mr. Bonefont to have reacted
as he did and that he had not been contributorily negligence. The
trial court specifically referenced the plaintiff’s age and
experience at sea and found that while he had been a seaman for
thirty-one years, Mr. Bonefont had no knowledge or experience in
loading pipes of this nature and in fact had never participated in
such an activity. The testimony also reflected that the loading
operation was not a routine exercise that a seaman would normally
encounter at sea. In assessing the plaintiff’s education, the
trial court noted not only the lack of prior knowledge through
experience but also the total absence of training or instruction
Mr. Bonefont was given in regard to loading the pipes.
Furthermore, the Magistrate Judge properly considered the
shipowner’s duty to provide a safe work environment by recounting
the boatswain’s failure to conduct a safe operation or adequately
instruct the plaintiff.
14 The trial court found that “[w]ith no instruction in safety
procedures provided to the seaman aboard the VALDEZ and no specific
training of any kind regarding the handling of pipe stores provided
to the seamen aboard the VALDEZ, it was reasonable for Bonefont to
have acted as he did.” The record indicates that even though
Gautreaux had not yet been decided the Magistrate Judge
nevertheless properly held the plaintiff to a reasonableness
standard and employed the factors later enunciated by Gautreaux.
Gautreaux, 107 F.3d at 339.
We conclude that the Magistrate Judge’s finding that the
vessel was unseaworthy, the unseaworthiness was a proximate cause
of injury to the plaintiff, and the plaintiff was not
contributorily negligent, standing alone, support the judgment
entered by the trial court in this matter. Therefore, this court
need not address the defendants-appellants’ contentions of clear
error with regard to the Magistrate Judge’s conclusions as to Jones
Act negligence and contributory negligence under the Jones Act.
See Johnson, 845 F.2d at 1354(“We stress again that Jones Act
negligence and unseaworthiness under general maritime law are two
distinct causes of action, each involving separate standards of
proof, causation, and review.”).
C. The Defendants’ Motion for New Trial
Subsequent to the entry of judgment, the defendants-appellants
moved for a new trial on the basis of fraud and/or false testimony.
See Fed. R. Civ. P. 59 & 60(b)(3). The defendants’ asserted that
15 the damages awarded by the trial court were based on the false
testimony of Dr. Donovan and/or Mr. Bonefont because after the
trial had concluded the plaintiff had attempted to return to work
as a seaman and somehow procured a “fit for duty” card from his
doctor’s office. After reviewing the trial transcripts and the
defendants’ motion for new trial, the Magistrate Judge found no
clear and convincing evidence of fraud, and, thus, denied the
defendants’ motion for a new trial.
We review a denial of a motion for new trial made pursuant to
Fed. R. Civ. P. 60(b) for an abuse of discretion. Smith v. Alumax
Extrusions, Inc., 868 F.2d 1469, 1471 (5th Cir. 1989). When a
party seeks a new trial on the basis of fraud, the moving party
must prove fraud by clear and convincing evidence and show that the
fraud prevented the party from fully and fairly presenting its
case. Diaz v. Methodist Hosp., 46 F.3d 492, 496 (5th Cir. 1995);
11 Charles A. Wright, et al., FEDERAL PRACTICE AND PROCEDURE, §2860 at
312-13 (2d 1995). In this case, the trial court found that the
defendants had done neither.
The defendants’ motion asserted that the trial court’s award
for future loss wages, which was predicated on the plaintiff being
unable to return to work as a seaman, was allegedly based on false
testimony because of the plaintiff’s post-trial work as a seaman.
The Magistrate Judge found that the defendants’ motion for a new
trial was an attempt to obtain evidence, ex post facto, in order to
correct what they perceived as an error of fact in regard to the
damages for future loss awarded by the trial court. In addition,
16 after reviewing the evidence presented at trial, the trial court
held that Mr. Bonefont’s post-trial activity did not render
fraudulent Dr. Donovan’s uncontroverted opinion or the plaintiff’s
testimony regarding his prior unsuccessful attempts to return to
work as a seaman both of which had been relied on by the trial
court in making its findings as to damages.
A Rule 60(b)(3) motion is not the proper vehicle for
correcting alleged factual errors but is meant to prevent a party
from prevailing unjustly. Diaz, 46 F.3d at 497; Johnson, 845 F.2d
at 1358. In this case, the Magistrate Judge did not abuse her
discretion in denying the defendants’ motion for new trial on the
basis of fraud or in denying their motion for discovery pending
appeal.
Conclusion
For the reasons assigned, the judgment of the trial court is
AFFIRMED.