Nelton v. Crewboats, Inc.

706 So. 2d 183, 97 La.App. 4 Cir. 1024, 1997 La. App. LEXIS 2953, 1998 WL 4662
CourtLouisiana Court of Appeal
DecidedDecember 30, 1997
DocketNo. 97-CA-1024
StatusPublished
Cited by1 cases

This text of 706 So. 2d 183 (Nelton v. Crewboats, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelton v. Crewboats, Inc., 706 So. 2d 183, 97 La.App. 4 Cir. 1024, 1997 La. App. LEXIS 2953, 1998 WL 4662 (La. Ct. App. 1997).

Opinion

JiLANDRIEU, Judge.

Russell Nelton Sr. appeals the trial court’s dismissal of his lawsuit against his employer, Crewboats, Inc., in which he asserted claims for negligence under the Jones Act, as well as unseaworthiness of the vessel he piloted. We affirm.

In April 1994, Nelton, a six-year employee of Crewboats, was working on a three-week “hitch” as a ship’s captain. At that time, he was master of a Crewboats oilfield service vessel, the MTV SWIFT RUNNER, in the Ship Shoal area of the Gulf of Mexico. The vessel, a 47-foot long crewboat, was manned by a captain and a deckhand.

On the morning of April 4, while returning to a platform after making a fifteen minute run to another platform to pick up an item, Nelton claims to have encountered a four-foot wave which caused the vessel to “bottom out.” When this happened, Nelton alleges, he felt a “popping” sensation in his back. Nelton claims to have experienced pain after this incident, but he continued with his normal duties until April 15, 1994, at which time he reported a back injury to his employer. Nelton remained at work on the vessel, taking non-prescription pain medication and cold medication to sleep more easily. He experienced another ^incident on April 18, 1994, when he awoke for a fire drill and felt a numbness in his legs. He was relieved of duty on April 18, transported back to shore, and picked up by his wife.

[185]*185Nelton went to the emergency room on April 18. He was referred to Dr. Chris Cenec, who, later that week, found that Nel-ton had a mechanical disfunction in his mid-back and muscle spasms in the mid and lower lumbar segment. Dr. Cenec recommended physical therapy. Nelton soon discontinued physical therapy because he felt it was not working. In May 1994, Nelton was examined in the office of Dr. Stuart Phillips. After performing tests, Dr. Phillips believed that Nelton suffered from herniated disks, and on August 15, 1995, he performed an anterior lumbar fusion on Nelton.

Crewboats paid maintenance and cure to Nelton, a Jones Act seaman. Nelton filed this suit, claiming that Crewboats was negligent by forcing him to work in a vessel which was not large enough to withstand the rough waters which he encountered. Further, Nel-ton claimed that the vessel was unseaworthy because of the existence of a footrest attached to the captain’s seat which prevented the captain from being able to stand directly in front of the wheel to pilot the vessel instead of sitting in the captain’s chair.

At trial, Nelton’s only expert witness was Captain “Red” Key, accepted by the court as an expert in the field of seamanship and vessel operation. The trial judge held the record open to review future depositions of Nelton’s other expert, John Deck, as well as Crewboats’s experts, David Cole and Nash Roberts III. On May 6, 1996, the trial judge rendered a judgment which dismissed Nel-ton’s claims against Crewboats, finding no negligence on the part of Crewboats and no unseaworthiness of the vessel. Included in his Reasons for Judgment, the trial judge noted:

|3The plaintiff drove this same vessel for over three months prior to this accident without complaint, in seas equally as rough as those alleged. The plaintiff could stand to one side of the console and easily operate the vessel, or use the seatbelt provided in the ease of rough seas.

In his testimony about the incident which Nelton claims caused his injury, Nelton said that on his way to pick up the requested item, nothing prevented him from operating the vessel at full speed. Returning, Nelton said he was able to operate the vessel at full speed for five to six minutes, and then he slowed down for about a minute and a half because of increasing seas. Nelton said that the seas were two to three feet with an occasional four foot wave. After crossing the wave which he claims caused his back injury, he continued on for eight to ten minutes at the same speed until he reached the platform. He was not using the seatbelt attached to the captain’s chair, and he claims not to have come out of the seat at all during the incident.

An employer’s potential liability in a negligence action brought by an employee extends to all personal injuries arising during the course of the seaman’s employment, but proof of negligence is essential to recovery. Foster v. Destin Trading Corporation, 96-0808 (La. 5/30/97), 700 So.2d 199, 208 (on rehearing 10/21/97). Such negligence may arise in many ways, including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. Id. The duty of care owed by an employer under the Jones Act is that of ordinary prudence— the duty to take reasonable care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335-36 (5th Cir. 1997). The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries. Id: The finding of Jones Act negligence is a factual question which is reviewed under the manifest error standard. Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1352 (5th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988).

The record does not substantiate Nel-ton’s claim of negligence against his employer. The testimony in the record not only makes it clear that Nelton was a very experienced seaman, but it also establishes that he had final authority over whether to use the vessel at any given time. Admitted into evidence was a safety agreement signed by Nelton in which he accepted the responsibility of operating Crewboats’s vessels in a safe manner so as to minimize the risk of injury [186]*186to those aboard the vessel. He also signed a document acknowledging sole responsibility for the operation of any vessel he piloted, and allowing him to decline service for clients depending on equipment, weather or sea conditions.

There was no evidence that the vessel was not designed or equipped to confront the conditions in the area where Nelton was at the time of this incident. Nelton’s testimony concerning a prior complaint made about the size of the vessel was non-specific and uncorroborated. Neither of Nelton’s experts gave convincing testimony on the existence of “rough seas.” On the other hand, Crew-boats’s experts, meteorologist Nash Roberts III and David Cole,1 clearly explained that, according to all available data, the seas were calm at the time and place that Nelton claims to have encountered rough seas.

Adding to our skepticism about the existence of rough seas is Nelton’s own statement that his body never came off of the seat during the incident and that he chose not to use an available seatbelt. This is not to say that we find that Nelton did not encounter at least one four-foot wave; rather, we find that the trial court, keeping in mind that “rough seas” is not easily definable, had the responsibility |5of sifting through the contradictory evidence on the existence of rough seas to assess witness credibility and/or expertise in making its findings of fact.

Overall, the evidence presented failed to establish any negligence by Crewboats.

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706 So. 2d 183, 97 La.App. 4 Cir. 1024, 1997 La. App. LEXIS 2953, 1998 WL 4662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelton-v-crewboats-inc-lactapp-1997.