United States District Court, S.D. Alabama, Southern Division
KRISTI K. DuBOSE, District Judge.
This matter came before the Court for a non-jury trial on June 30, 2015. Upon consideration of the parties' arguments and documentary and testimonial evidencepresented at trial, the Court makes the following findings of fact and conclusions of law.
I. Findings of Fact
This litigation stems from a May 23, 2014 declaratory judgment action filed by Atlantic Sounding Co., Inc. (ASI) and Weeks Marine, Inc. (Weeks) against Brandon Wright (Wright) for a maintenance and cure determination. (Docs. 1, 4). In response, Wright asserted counterclaims against ASI/Weeks for maintenance and cure, negligence, and unseaworthiness. (Doc. 7).
On May 9, 2014, Wright was electrocuted while employed by ASI as a deckhand on the vessel M/V VIRGINIA, a tugboat owned by Weeks and situated off the North Carolina coast. The cause of the electrocution is not in dispute: the electrocution occurred when Wright, working on the tugboat, handled a frayed and unsafe extension cord while the crew tried to jump start a crane on an adjacent dredge barge. Likewise, that Wright has received past maintenance and cure for his injury from ASI/Weeks (through October 27, 2014) is not in dispute. What is in dispute is who is at fault, whether Wright is entitled to future maintenance and cure or has obtained maximum medical improvement (MMI), and the extent of his damages.
Wright was 22 years old when he was hired as a deckhand with ASI in 2014. Previously, he had worked at a fast food restaurant, grocery store, as a barber, as a longshoreman (loading/unloading cargo), and as a deckhand hydroblasting oil of barges and tanks. In February 2014, he completed one (1) day of training at ASI/Weeks headquarters. This training included safety training, but the specifics are not known to the undersigned. Thereafter he was assigned and completed two (2) tours of duty, a.k.a. as "hitches" on other vessels.
On May 8, 2014, Wright was flown to North Carolina to join the M/V VIRGINIA crew for a "hitch" (28 days). Wright arrived around 3:00 p.m., was shown around by deck engineer Robert Dunaja (Dunaja), took a short nap, ate dinner, and the commenced work at 6:00 p.m.
Around 4:00 a.m. on May 9, 2014, Captain Renald Ayote (Capatain Ayote) directed Wright to retrieve the battery charger box and an extension cord to assist an adjacent dredge barge jump a crane battery. Wright complied with the directive, retrieved the charger box from the engine room, and passed it over to the barge. Wright then went to the fiddley to retrieve an extension cord. There were two (2) extension cords: one extension cord was draped across a power washer and another extension cord was hanging on the wall. Wright, hurrying to comply with Captain Ayote's instructions, quickly grabbed the first extension cord he saw - the cord draped over the power washer. At this point Captain Ayote entered the fiddley to check on Wright and saw that he had retrieved an extension cord. Captain Ayote took the cord from Wright, plugged in the cord, passed it through the porthole to Wright, and returned to the wheelhouse. While Wright was outside the porthole holding the extension cord, he was electrocuted. Wright, who was wearing a hardhat, fell to the ground, hit his head, and continued to hold the cord until it was snatched from his grasp approximately 10-30 seconds later. Wright was immediately discovered, and while observed to be conscious, was clearly in pain. Wright was administered first aid and transported to the nearest hospital, Carteret General Hospital in Morehead City, North Carolina. Wright remained hospitalized until May 13, 2014.
On May 23, 2014, while Wright was still undergoing medical treatment, ASI/Weeks initiated this lawsuit against him, claiming he was failing to cooperate and provide medical information, thwarting their ability to assess maintenance and cure. Wright testified that neither Weeks nor ASI contacted him between May 13-May 23, 2014. From May 2014 through at least November 7, 2014, Wright underwent medical treatment for injuries and pain related to the electrocution. Additionally, at the June 2015 trial, Wright testified that he was scheduled to see an orthopedist in July 2015.
II. Conclusions of Law
A. Unseaworthiness & Negligence
Although causation is not at issue, liability is disputed. In response to Weeks and ASI's action to obtain declaratory judgment, Wright asserts, in part, counterclaims for unseaworthiness against Weeks and Jones Act negligence against ASI. The standard of liability for an unseaworthiness claim is distinct from than that of a Jones Act negligence claim. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499 (1971). In fact, there is a "complete divorcement of unseaworthiness liability from concepts of negligence." Id.
Wright asserts an unseaworthiness counterclaim against vessel owner Weeks. To succeed, Wright must prove each of the following by a preponderance of the evidence: 1) that the vessel or appliances appurtenant to the vessel were unseaworthy; and 2) that the unseaworthy condition was the proximate cause of injury to the plaintiff. Stewart v. Dutra Constr. Co., 543 U.S. 481, 487 (2005) (citing The Osceola, 189 U.S. 158 (1903); Crow v. Cooper Marine & Timberlands Corp., 657 F.Supp.2d 1248, 1251 (S.D. Ala. 2009) (detailing the elements of unseaworthiness claims).
The warranty of seaworthiness provides that a vessel owner has an absolute, nondelegable duty to provide a seaworthy vessel. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960); Deakle v. John E. Graham & Sons, Corp., 756 F.2d 821, 825 (11th Cir. 1985). This duty also encompasses the owner's obligation to ensure that appliances appurtenant to the vessel are seaworthy. Mitchell, 362 U.S. at 550. For example, a vessel's unseaworthy condition might arise from circumstances such as defective gear or appurtenances in disrepair. Usner, 400 U.S. at 517; Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 906 (6th Cir. 2006) (illustrating examples of unseaworthiness, such as missing necessary gear, supplying crew with damaged equipment, or instructing a crew member to use unsafe work methods). The test is not whether the vessel is in perfect condition and free from all risks of injury, but whether the vessel is reasonably fit for its intended purpose or use. Mitchell, 362 U.S. at 550.
Moreover, "[t]he shipowner [becomes] liable for failure to supply a safe ship irrespective of fault and irrespective of the intervening negligence of crew members. Mahnich v. Southern S.S. Co., 321 U.S. 96, 100, 64 S.Ct. 455, 458, 88 L.Ed. 561 (1944) ([T]he exercise of due diligence does not relieve the owner of his obligation to the seaman to furnish adequate appliances.... If the owner is liable for furnishing an unseaworthy appliance, even when he is not negligent, a fortiori his obligation is unaffected by the fact that the negligence of the officers of the vessel contributed to the unseaworthiness'). The Court reaffirmed the rule two years later in Se as Shipping Co. v. Sieracki, 328 U.S. 85, 94-95, 66 S.Ct. 872, 877-878, 90 L.Ed. 1099 (1946) ("[Unseaworthiness] is essentially a species of liability without fault")." Miles v. Apex Marine Corp., 498 U.S. 19, 25-26, 111 S.Ct. 317, 322 (1990).
Upon inspection of the cord, all of the crew of agreed that the extension cord used was visibly unsafe and should not have been on the vessel for use. Moreover, Edward Brill (Brill), a forensic project electrical engineer and an expert in marine electrical accidents, testified that the extension cord was unseaworthy due to multiple locations of insulation damage visible on the cord and a missing ground prong on the male plug end. Brill also noted that the outlet used to plug the extension cord was not properly grounded and had no ground fault protection at the time of the accident. Brill concluded that if the cord and the outlet been properly grounded, the shock would have been less in terms of both intensity and duration. Based on this evidence the Court finds that the tugboat was unseaworthy because the equipment on board, i.e. the cord and outlet, were not suited for the use for which they were intended.
With respect to causation, proximate cause is the applicable standard on an unseaworthiness claim. Stewart, 543 U.S. at 487. The Plaintiff is required to show that the vessel's "unseaworthiness 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." Smith v. Trans-World Drilling Co., 772 F.2d 157, 162 (5th Cir. 1985) (emphasis added). In that regard, the Eleventh Circuit explains as follows: "In Spinks we adopted a substantial factor' standard of causation for unseaworthiness' claims brought under general maritime law." McClow v. Warrior & Gulf Navigation Co., 842 F.2d 1250, 1251 (11th Cir. 1988) (emphasis added). As previously stated there is no dispute that the accident was caused by the unsafe extension cord. Therefore, the vessel owner, Weeks, is liable for the injuries sustained by Wright as a result of the unseaworthy condition of M/V VIRGINIA.
2. Jones Act Negligence
Wright asserts a Jones Act negligence counterclaim against ASI. The Jones Act allows a seaman to sue his employer "for injury... resulting in whole or in part from the negligence" of the employer. 46 U.S.C. § 30104, et seq. (incorporating the remedies under FELA); 45 U.S.C. § 51 (FELA); Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 415 (2009).
To recover under the Jones Act for negligence, Wright must prove as a threshold matter that the injury occurred during the course of employment as a seaman upon a vessel. Chandris, Inc. v. Latsis, 515 U.S. 347, 348 (1995). In this case, there is no dispute that Wright was injured while employed as a seaman on a vessel. The record reveals ASI employed Wright as a deckhand upon the M/V VIRGINIA. Wright was electrocuted and injured while holding an extension cord on the M/V VIRGINIA. Wright's injuries occurred while performing duties at the direction of the tugboat's captain. Based upon this evidence, the Court finds that the M/V VIRGINIA is a vessel and that Wright is a seaman who sustained injuries during the course of his employment.
Additionally, Wright must prove each of the following by a preponderance of the evidence: 1) that ASI was "negligent" as claimed; and 2) that such negligence was "a cause" of the plaintiff's injury. 46 U.S.C. § 30104; Stewart, 543 U.S. at 487; Cain v. Transocean Offshore USA, Inc., 518 F.3d 295, 298 (5th Cir. 2008) (detailing the elements of Jones Act negligence claims). An employer's duty of care to a seaman is a heightened duty. Dempsey v. Mac Towing Inc., 876 F.2d 1538, 1542 (11th Cir. 1989). This duty is breached when an employer fails to "provide a safe workplace by neglecting to cure or eliminate obvious dangers of which the employer or its agents knew or should have known and that such failure caused the plaintiff's injuries and damages." Taylor v. TECO Barge Line, Inc., 517 F.3d 372, 383 (6th Cir. 2008); see also Dempsey, 876 F.2d at 1542-1543; Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 437 (4th Cir. 1999) (providing that the breach of the duty to protect against foreseeable harm is grounds for recovery under the Jones Act).
The Court finds that ASI failed to provide a safe workplace by neglecting to remove the extension cord. The visibly unsafe extension cord was located in an open and obvious place in the fiddley. Crew members pass through the fiddley to get to the galley and the engine room. The fiddley is a commonly used room by the crew. Moreover, considering that the vessel and its equipment are allegedly inspected for safety by each crewmember, the extension cord should never have been available on the vessel for use. Thus, in regards to negligence, the Court finds that this defect ...