UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________
No. 02-40307 _________________
ANTOINETTE HARRISON,
Plaintiff-Appellee,
versus
SEARIVER MARITIME, INC.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas (G-01-CV-247) _________________________________________________________________ January 28, 2003
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
An employer/vessel owner and operator contests Jones Act
liability for an injury allegedly suffered while its
employee/seaman performed a routine task. Primarily at issue is
whether the employer violated a Jones Act duty. REVERSED and
RENDERED.
I.
Antoinette Harrison was born in 1960. After completing high
school, she worked a number of jobs, including, but not limited to,
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. custodial, landscaping, and construction; the latter included work
as a welder and bricklayer’s helper. Harrison’s work regularly
involved moderate to extensive labor and physical activities.
Harrison is 5'2" and muscular; at the time of the alleged injury,
she weighed approximately 180 pounds.
Harrison began as a seaman with Sabine Transportation Company
in 1994, serving four years as a cook and steward aboard tankers.
Frequently, she was required to use stairs while carrying loads.
On a Sabine vessel in 1995, Harrison injured her right knee while
carrying a crate up stairs: she felt a pop and twitch in the knee;
she did not suffer a misstep, blow to, or twist of the knee. As
discussed below, that injury and circumstances surrounding it are
similar to the one at issue involving her other (left) knee.
Dr. Hayes, an orthopedist, treated this right knee injury. He
found Harrison had malalignment (lateral tilting) and subluxation
(slight dislocation) of both patellae (kneecaps). He opined:
Harrison’s kneecaps do not glide properly in the groove in which
they move during knee motion; and, because of these congenital
abnormalities, Harrison is predisposed to kneecap problems and
injuries. Dr. Hayes also diagnosed chrondromalacia of the right
knee, which he described as “sick” cartilage of the patellae, which
becomes inflamed and causes pain when the misaligned kneecap does
not glide smoothly in its groove during knee movement.
2 Following arthroscopic surgery to her right knee, Harrison
returned to work at Sabine. In 1998, Harrison applied to defendant
Seariver Maritime, Inc., for employment. She successfully passed
a pre-employment physical, at which time she informed the Seariver
medical director of her right knee surgery.
Harrison accepted entry-level employment with Seariver as a
maintenance seaman in the deck department. After completing a two-
week training course, Harrison was assigned to the NORTH SLOPE, an
oil tanker owned and operated by Seariver.
Harrison boarded the vessel in May 1998; it was en route to a
shipyard for a steel survey and inspection. For her daily work
assignments, Harrison reported to Chief Mate Rauhut, who had sailed
with Seariver and its predecessor since 1991. While en route, the
crew prepared the vessel for the shipyard work, including covering
the interior house decks with plastic protection and cleaning the
cargo tanks for tank entry and inspection.
Harrison participated in the deck-covering on 10 through 14,
and 17, June, performing this work on her hands and knees.
Although she wore knee pads, both knees began hurting.
On 18 June, Rauhut assigned Harrison and Picou, a more
experienced maintenance seaman than Harrison, the task of clearing
discharge hoses and blowers from the main deck (18 June meeting).
Harrison and Picou were advised to use a cart to move the blowers.
Harrison did not request more specific instructions.
3 The blowers were to be moved to the forecastle (forward part
of the vessel); the discharge hoses, one deck below (lower
forecastle). The hoses were a lightweight rubber (polypropylene);
Rauhut had ordered what he termed “ultra lightweight” hoses that he
described as similar in texture to a garden hose. According to
Seariver, the hoses were roughly three and one-half inches in
diameter and varied in length from 50 to 75 feet, with a 50-foot
hose weighing 20 to 30 pounds; Harrison thought they were longer
(75 to 100 feet) and wider (as much as six to eight inches in
diameter).
Following their 18 June meeting with Rauhut, Harrison and
Picou began the assigned task. After moving the blowers to the
forecastle, they began moving the hoses to the lower forecastle —
each hose was brought to a stairwell for transportation down a deck
and then forward. Harrison would take the front of each hose and
proceed down the steps, holding the rail with one hand and carrying
the hose over her shoulder. Harrison estimated the weight she
carried to be 15 to 20 pounds and testified that it increased as
she descended. Picou remained above and moved the hose forward,
carrying the trailing end. They moved eight to ten hoses to the
lower forecastle without incident.
Harrison testified she felt a “pop” in her left knee while
descending to the lower forecastle with the forward end of a hose.
Consistent with her injury in 1995, she did not twist her knee; nor
4 was there any slip, trip, or other trauma. Harrison did not report
the incident and continued working that day for an additional five
or six hours. Picou knew of no injury to Harrison and did not
observe her limping or being otherwise injured. (In fact, Picou
did not even recall that it was he and Harrison who carried the
hoses.) As work progressed with the hoses, Picou offered to switch
places with Harrison; they did so.
After 18 June, Harrison continued to believe she had not been
injured and did not report any accident or injury. She continued
to work her regular assigned watches. After the vessel arrived at
the shipyard, Harrison was transferred to the GALVESTON, another
Seariver vessel, and worked her regular assignments there.
On 12 July, almost a month after the hose-storage, Harrison
reported to the GALVESTON’s master with complaints of pain in both
knees, but particularly her right knee (the knee injured
approximately three years earlier, while employed by Sabine, not
Seariver). The GALVESTON injury report notes swelling and burning
in the right knee and states: for location of injury, “unknown”;
for activity employee engaged in when incident took place,
“unknown”; for activity at time of incident, “noticed gradual
swelling in knees over last several days”; for nature of injury,
“swelling in right knee”. (Emphasis added.)
The GALVESTON’s medical logs confirm that Harrison was treated
for her knees thereafter. (Those logs appear to have been altered
5 (an “s” added) to describe swelling in, and treatment for, knees,
rather than a knee; however, this is not at issue.)
In July 1998, the GALVESTON remained in port; Harrison
received treatment ashore for both knees. On 28 July, an MRI was
performed on Harrison’s left knee.
That August, Harrison again saw Dr. Hayes (as discussed
earlier, he had treated her right knee in 1995), who prescribed
medication and physical therapy. Harrison reported to Dr. Hayes
that her symptoms “started about a month ago after she pulled some
heavy hoses on a large ship at work”. Hayes determined:
Harrison’s left kneecap was malaligned (tilting laterally) and
partially subluxated (dislocated); and she had chrondromalacia in
that knee (as he had diagnosed for her right knee in 1995).
For her left knee, Harrison had arthroscopic surgery, physical
therapy, and work hardening. The knee continued to be unstable,
and Dr. Hayes referred Harrison to an orthopaedic specialist, who
performed a second surgery. Since then, she has undergone physical
therapy and received additional medical treatment. (Seariver paid,
and Harrison does not seek recovery for, these past medical
expenses.) Harrison has remained off duty; her condition probably
will prevent her from working as a seaman.
Harrison filed this action in 2001, alleging she injured her
left knee while moving hoses for Seariver on or about 18 June 1998.
Harrison claimed negligence under the Jones Act (46 U.S.C. § 688),
6 unseaworthiness under general maritime law, and entitlement to
maintenance and cure.
A one-day trial was held in late 2001. Pursuant to findings
of fact and conclusions of law entered in early 2002, the district
court held for Harrison on the Jones Act claim but dismissed her
other claims. Among other rulings, it found Seariver breached a
duty to Harrison because the hose-clearing procedure was not safe.
Ninety percent negligence was assessed Seariver; ten percent,
Harrison. She was awarded, inter alia, approximately $550,000.
II.
Regarding Jones Act liability, Seariver contends: it did not
violate a duty; and Harrison did not prove Seariver’s negligence,
if any, was the legal cause of her injury. (In addition, Seariver
challenges several evidentiary rulings and also claims the district
court reversibly erred in the damages awarded, including
undiscounted future losses, a double award of economic loss during
the interval between the date of the alleged injury (18 June 1998)
and trial (14 November 2001), prejudgment interest on future
damages, and an award of fringe benefits without the requisite
evidence. Because, as discussed infra, Seariver did not violate a
Jones Act duty, we do not reach the other issues.)
Conclusions of law are reviewed de novo; findings of fact,
only for clear error. E.g., Dow Chemical Co. v. M/V Roberta
Taylor, 815 F.2d 1037, 1042 (5th Cir. 1987). “A finding is clearly
7 erroneous when after studying the record, [we are] left with the
definite and firm conviction that a mistake has been committed.”
Jackson v. OMI Corp., 245 F.3d 525, 528 (5th Cir. 2001) (internal
citations omitted).
Rulings on breach of duty and causation are considered
findings of fact, reviewed for clear error. E.g., Chisholm v.
Sabine Towing & Transportation Co., Inc., 679 F.2d 60, 62 (5th Cir.
1982); FED. R. CIV. P. 52(a). Rahout and Picou, two of the three
most important witnesses in this case, testified by deposition.
Nonetheless, the clear error standard applies to all findings of
fact, including those based on documentary evidence. FED. R. CIV.
P. 52(a) (as amended in 1985). As discussed infra, the breach of
duty finding was clearly erroneous.
The Jones Act provides: “Any seaman who shall suffer personal
injury in the course of his employment may, at his election,
maintain an action for damages at law....” 46 U.S.C. § 688. Under
the Act, the employer is liable if its negligent breach of duty
caused, in whole or in part, the seaman’s injury. E.g., Hopson v.
Texaco, Inc., 383 U.S. 262 (1966). Seariver maintains it did not
breach a duty to Harrison. Again, the breach of duty finding is
reviewed for clear error.
The Jones Act standard of care, applicable to both employers
and seamen, is ordinary prudence under the circumstances. E.g.,
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338 (5th Cir.
8 1997) (en banc). This standard is designed to be very light;
because seamen are considered wards of admiralty and the court, the
Jones Act is interpreted broadly for their protection. See, e.g.,
Socony-Vacuum Oil Co. v. Smith, 305 U.S. 263, 266 (1939). On the
other hand, a Jones Act employer is not an insurer of a seaman’s
safety; the mere occurrence of injury does not establish liability.
E.g., Marvin v. Central Gulf Lines, Inc., 554 F.2d 1295, 1299 (5th
Cir.) (“the burden of proving negligence ... in a Jones Act case is
a light one, but even at sea injury does not presuppose
negligence”), cert. denied, 434 U.S. 1035 (1978). See also
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 544 (1994);
Chisholm, 679 F.2d at 62.
Harrison claimed (and the district court found) Seariver was
negligent. In essence, the district court based its negligence
findings on the hose-clearing method not being safe. Included in
the findings was that the hose should have been lowered, not
carried, down the stairs. In this regard, Harrison maintains
Seariver failed to exercise ordinary care in three ways: (1) it
allowed two seamen, one of whom it knew was inexperienced, to carry
lengthy hoses down steep stairs, when they should have been lowered
down (i.e., “fed down”); (2) because Seariver did not conduct a job
hazard assessment as required by its safety manual, it failed to
evaluate safer alternatives for moving the hoses down the stairs;
9 and (3) it required repetitive stair-use by Harrison while carrying
a load, which its own safety manual proscribes.
As noted, notwithstanding the deferential standard of review
and our mandate to broadly interpret the Jones Act, and based upon
our review of the record, the negligence finding was clearly
erroneous. In sum, Seariver did not violate its duty to exercise
reasonable care with respect to workplace safety.
Because a Jones Act employer is not an insurer of its
employee’s safety at sea, the employer is not liable when an injury
arises solely from the ordinary and normal activities or risk of
seamen’s work in absence of proof that the injury complained of was
caused by the employer’s negligence. E.g., Chisholm, 679 F.2d at
62; Massey v. Williams-McWilliams, Inc., 414 F.2d 675, 678 (5th
Cir. 1969), cert. denied, 396 U.S. 1037 (1970). “[T]here are
inevitable hazards – some of a very severe nature – in the calling
of those who go down to sea in ships, hazards which when not
occasioned by negligence ... have to be borne by those who follow
the calling”. Massey, 414 F.2d at 678. An employer simply is not
required to protect (indeed, cannot protect) its employees from all
types of injuries. See Gavagan v. United States, 955 F.2d 1016,
1019-21 (5th Cir. 1992). Harrison’s knee problems cannot be
attributed to any negligence by Seariver.
10 A.
11 No duty was breached by Seariver’s allowing two seamen,
including one relatively inexperienced seaman, to carry, instead of
lower, hoses down stairs.
First, this task was routine and certainly not hazardous;
moving shipboard equipment is a common and expected physical task.
Ordinary prudence is exercised when a safe procedure is used for a
routine task, even when a safer procedure might exist. See, e.g.,
Ruberry v. United States, 93 F. Supp. 683, 685 (D. Mass. 1950)
(that “a better tool and a better method” might have been employed
did not aid seaman where no showing that “tool or method actually
used ... was unsafe or unsuitable”). Cf. Marshall v. Ove Skou
Rederi A/S, 378 F.2d 193, 201 (5th Cir.) (no duty to provide best,
most modern gear, so long as gear provided was reasonably
suitable), cert. denied, 389 U.S. 828 (1967).
Critically, although Harrison points to testimony (including
Rauhut and Picou's depositions) that lowering the hoses would have
been safer than carrying them, there is no evidence in the record
that the latter method was unsafe. This was corroborated by the
expert testimony.
Seariver’s liability expert, Captain Marsh, had significant,
relevant experience, having spent 25 years in the Merchant Marine,
the last 12 being spent on tankers as a chief mate or master. He
had personally supervised tank-cleaning activities and the stowing
12 of tank-cleaning equipment. Moreover, he inspected the NORTH SLOPE
and the hoses at issue.
Marsh testified that there were two proper ways to move a
tank-cleaning hose down a stairwell into a storage area: using two
seamen to carry the hose down the stairs; and lowering it. He
opined: either way is acceptable; and carrying the hose is a
routine method for accomplishing the task.
Harrison’s liability expert, Kuykendall, had never sailed on
tankers as a master or chief mate, had never been involved in tank-
cleaning operations aboard tankers of any kind, had no hands-on
experience with discharge hoses used in tank-cleaning activities,
had never been aboard the NORTH SLOPE, and had never inspected the
hoses Harrison was carrying. In any event, Kuykendall’s testimony
(e.g., “I don’t think [carrying the hose is] the smart way to do it
... ”; “I personally would have fed [the hoses] down to the main
deck ... without anyone being underneath the load”) again only
indicates that lowering the hoses was a better method, not that
carrying them was unsafe.
The record is devoid of evidence that would support negligence
under the circumstances. For example, nothing indicates the
manpower assigned to this task was inadequate. See Bommarito v.
Penrod Drilling Corp., 929 F.2d 186 (5th Cir. 1991) (duty to assign
sufficient manpower to safely complete task). Rauhut and Marsh
13 testified that, at most, two seamen were required for the job to be
performed safely.
Second, nothing in the record supports the job's being too
difficult or complicated for someone of Harrison’s experience
level. See Johnson v. Offshore Exp. Inc., 845 F.2d 1347 (5th Cir.)
(may be negligent to assign task inappropriate for experience
level), cert. denied, 488 U.S. 968 (1988). By her own admission,
Harrison had experience in carrying loads on stairs from the four
years she spent as a cook and steward aboard Sabine’s tankers; and
she had years of experience in positions demanding physical labor.
Picou, the co-worker assigned to assist Harrison, had more
experience working as a sea maintenance worker than Harrison, and
could direct her, if needed. Additionally, regarding physical
strength, Harrison was not ill-equipped for the task; she
testified: the weight on her shoulder was approximately 15 to 20
pounds; and she was a muscular, 180-pound seaman.
Finally, there was no failure to warn Harrison of any unsafe
condition, nor did one exist. See Price v. S.S. Yaracuy, 378 F.2d
156 (5th Cir. 1967). The NORTH SLOPE, a modern vessel, was in calm
waters at the time of the alleged injury. As Harrison testified:
the vessel was well-maintained; the stairs were properly built and
maintained; lighting was adequate; hand rails and non-skid surfaces
were available for her protection; and the stairs were stable. (In
14 this regard, the district court “conclude[d] that the vessel was in
all respects seaworthy”.)
B.
With respect to the alleged failure to conduct a job hazard
analysis (JHA) as required by Seariver’s safety manual, that manual
was adopted by Seariver to ensure the safety of its vessel and
crew. It does not (as Harrison seems to suggest) establish
Seariver’s legal duties. To so hold would discourage vessel owners
from adopting the most stringent safety procedures (i.e.,
procedures that go beyond “ordinary care”), to the detriment of
seamen and their safety. On the other hand, Seariver's failure to
abide by its safety regulations (e.g., failure to perform a JHA
where one was required), would be relevant in determining whether
the vessel owner or its employees failed to exercise ordinary care.
Contrary to the district court’s finding (“both the Chief
Officer and Picou concede that no Job Hazard Assessment was done
whatsoever”), the record does not establish that Rauhut failed to
conduct a JHA. On the one hand, Harrison testified that no JHA was
performed. On the other, it is undisputed that Rauhut met with
Harrison and Picou the morning of 18 June to discuss the blower and
hose removal assignment. Rauhut testified that a JHA was then
performed, and that he would have told them to use: (1) “a couple
of people” to take the hoses; and (2) handtrucks to move the
blowers (which weighed 40-50 pounds). Picou also testified that a
15 JHA was performed, and this testimony is corroborated by the daily
work log for 18 June: “0800 M/S Toni & Don [Harrison & Picou] put
away blowers & hoses on deck. Blowers to forward end for rinsing.
Two person lift use cart. JHA held.” (Emphasis added.)
Although she disputes the timing and content of the JHA,
Harrison now concedes one was performed. She insists there was no
written JHA and urges that the JHA did not address hose-removal.
The safety manual states, however, that, at least for routine tasks
(such as the one at issue), a JHA can be either oral or written.
Moreover, a JHA’s purpose is to identify hazards and minimize
risks; it need not (and cannot) cover every aspect or contingency.
See generally Gavagan, 955 F.2d at 1021 (no legal duty to protect
against all types of harm, especially where harm neither
foreseeable nor unreasonable).
Even accepting Harrison’s contention that a specific JHA was
not performed with respect to the hose-removal, the failure to
conduct a JHA nonetheless does not support finding negligence,
because Seariver’s safety manual does not require a JHA for this
particular task. Harrison insists that such a JHA was required,
contending Seariver’s safety manual mandates a JHA where the task:
involves movement of bulky items, especially where seamen are
unfamiliar with the work procedures to be used; or requires
sequential steps.
16 The manual does not require a JHA for routine, non-complicated
jobs (again, such as the one at issue). Moreover, whether a JHA is
required is left to the supervisor’s discretion, with the manual
suggesting JHAs for jobs that: have the potential for serious
consequences; are accomplished through a number of sequential
steps; are repetitive, with employees repeatedly exposed to
hazards; are new, or have been modified; or have resulted in
incidents. In short, a JHA was not required by the safety manual
for the routine, simple task of clearing the deck of hoses and
storing them. (According to the safety manual, the employee also
has a responsibility to “identify tasks [she is] unfamiliar with or
do[es] not fully understand, discuss them with [her] supervisor,
and conduct a JHA”. Harrison concedes she did not seek any further
instruction from either Rauhut or Picou with respect to carrying
the hoses, although she could have done so, nor did she suggest
doing a more specific JHA.)
More to the point, there is no requirement at law that a JHA
be conducted, especially for routine tasks. (Along this line, the
phrase “job hazard analysis” originates in Seariver’s safety
manual, not the Jones Act.) In other words, failure to conduct a
JHA for this routine, non-hazardous task did not violate Seariver’s
duty to exercise ordinary care. Nothing indicates that Rauhut’s
supervision or instructions were inadequate. Any implicit finding
to the contrary constituted clear error.
17 C.
Regarding Harrison’s claim that Seariver was negligent in
requiring her to perform repetitive stair-use while carrying a load
(in contravention of its safety manual), we reiterate that the
safety manual, while relevant, does not state Seariver’s legal
duty. Moreover, although the manual notes that excessive stair
climbing has been associated with leg and knee fatigue, it does not
define “excessive”. It states: “unnecessary” stair climbing
should be avoided; and repetitive climbing “over prolonged periods
of time” should be accompanied by rest breaks, if needed.
The record does not demonstrate that Harrison's stair-use was
unnecessary, excessive, or over a prolonged period of time. Nor
does it suggest Harrison was unable to take breaks as needed.
III.
For the foregoing reasons, finding Seariver negligent
constituted clear error. Accordingly, the judgment is REVERSED and
judgment is RENDERED for Seariver.
REVERSED and RENDERED