Mock Class Section 3 James Speta

Transcription

1 Mock Class Section 3 James Speta MITCHELL, District Judge. RICE v. TIDEWATER INC. Civ. A. Nos , United States District Court, E.D. Louisiana. June 29, This matter was tried as a non-jury case before this Court. Findings of Fact 1. On July 31, 1987, the United States Department of the Navy (Navy) and McDermott, Inc. (McDermott), entered into a contract in which McDermott agreed to build torpedo test craft for the Navy. 2. On August 10, 1990, defendant Tidex, Inc., (Tidex) and McDermott Shipyard, a division of McDermott, entered into a manning agreement under which certain Tidex employees were to begin working aboard the YTT09, one of the completed torpedo test craft. The vessel was to be delivered to Keyport, Washington, pursuant to McDermott s contract with the Navy. 3. On August 26, 1990, John Rice, a 59 year old seaman, was employed by Tidex as the master of the YTT09. That same day, other Tidex employees were hired to man the YTT09, including Roland Estay, Sr. (Estay) and Gary C. Jones, both of whom were licensed vessel operators. Both were hired to serve as mates aboard the vessel. 5. Plaintiff John Rice had previously worked for Tidex or a related company from 1963 to He had worked as a rig mover all over the world, and had served as lead tug master on rig moves. He had returned to Tidex in 1984, and had been employed as a master by Tidex since then. Rice testified that he had previously worked twelve hour days on anchor-handling and rig-moving jobs. He also testified that he worked 10 to 12 hours a day during the days before the departure of this voyage, getting the vessel ready. 6. Roland Estay, aged 63 at the time of this voyage, had worked for Tidex for over 40 years. Tidex, in fact, had named an offshore supply vessel the M/V ESTAY TIDE in appreciation of Estay s many years of service to the company. Estay s experience as master of vessels with Tidex was limited to navigating vessels in the coastal waters of the Gulf of Mexico where virtually all navigation was done by the use of block charts, which is a chart that consists largely of platforms with blocks on it, each platform having its own number. Estay did not know how to plot a course 1

2 by using a sextant or satellite or Loran. He did hold a U.S. Coast Guard license entitling him to serve as a master of vessels. But he did not have an unlimited endorsement on his license, meaning he did not have a Radar Certificate to attach. That meant that on Coast Guard inspected, or regulated, vessels, he was limited to operating vessels under 300 tons. However, as stated earlier, Coast Guard regulations did not apply to the YTT09, even though it was well in excess of 300 tons, because it was a U.S. Navy vessel. Therefore Tidex was not acting in violation of any Coast Guard regulation when it assigned Estay to the YTT Plaintiff John Rice had a U.S. Coast Guard license with a radar endorsement of 1600 tons. As master of the vessel, Rice had the responsibility of ordering all charts, materials, equipment and supplies needed. After the YTT09 departed Amelia, Louisiana, on August 10, 1990, it was also Rice s responsibility to set the wheel house watch schedule. Rice originally scheduled himself, Estay and Jones to work four hours on, eight hours off, in the wheel house steering the vessel. 9. While in route to Washington, the YTT09 stopped in Panama for a couple of days while repairs were being effected. At that time, the original oiler who had been hired by Tidex was replaced with another oiler from Tidex. This was done at the request of the vessel s chief engineer, who had found the original oiler sleeping on his watch. Rice, as master of the vessel, approved the replacement and made the arrangements to secure the new engineer. Rice made no attempt to replace Estay at that time, although as vessel master, this was clearly within his authority to do, and although he had by that time become aware of what he considered to be Estay s deficiencies when it came to navigating the vessel in the Caribbean, beyond the area where navigation could be carried out merely by referring to block charts. 11. After passing through the Panama Canal, Rice changed the watch to six hours on, six off for himself and Jones. Rice made the change because he believed that the conditions in that particular area were rather tricky and the traffic was heavy. He determined it was necessary that someone capable of plotting the course be on duty at all times. Therefore, when Estay was in the wheel house steering, either Rice or Jones was with him. Both Rice and Jones did the actual plotting of the course, preparing a run-line on the charts. Estay was capable of following the course, or the run-line, according to Jones. But, although Estay knew how to use the radar system aboard the vessel to determine if there were objects in his path, he did not know how to use it to plot a course or as a collision avoidance system. Because Rice felt uncomfortable leaving Estay in the wheel house by himself once they left the Panama Canal, he made the above-mentioned schedule change. But there was significant testimony from Jones and others that a six hours on, six hours off, schedule for the wheel house was fairly common. There was no evidence that there was anything particularly unusual or burdensome about this new schedule. 12. We do not find that Rice was forced to work an excessive amount of time on this voyage. In addition, if he did from time to time work longer than usual hours, this was brought on by his own volition. As master, he could have delegated some 2

3 of the work he took it upon himself to do, or replaced any crew members who would not, or could not, adequately perform their jobs. 13. On August 26, 1990, approximately seven days after the vessel left the Panama Canal, Rice suffered a stroke. Jones took control of the YTT09 and handled the evacuation of Rice from the vessel. After the medical evacuation, Jones, along with the replacement captain sent by Tidex, and Estay, took the vessel on to Washington and delivered it in accordance with the terms of the original contract between McDermott and the Navy. After the evacuation of Rice, the wheel house crew returned to working a four hours on, eight hours off schedule in the wheel house. The replacement captain left Estay on his four hour watch by himself, and apparently at that point in the voyage saw no need for either himself or Jones to be in the wheel house while Estay was steering. 16. In the course of Rice s examination and treatment, various tests were performed on him, including an arteriogram. There is no dispute among the consulting or treating physicians that Rice had an arteriovenous malformation (AVM), a congenital defect, in his brain stem, which had begun hemorrhaging and caused the stroke. An AVM is an abnormal collection of blood vessels. A simplified description of the condition is that instead of having the usual blood distribution system, which includes arteries functioning as the high pressure system, and capillaries functioning as the low pressure system, an AVM means there is no wellfunctioning capillary system. 17. From the medical testimony presented at trial, we find that the factors which increase the risk that any given AVM will bleed are: 1) the size of the AVM the smaller to moderate sized ones, like Rice s, are more likely to bleed, for some reason, than the larger ones; 2) the sex of the patient males tend to bleed slightly more than females; 3) the length of time you have it there is an instance of bleeding from one percent to three percent per year bleeding is more common in the second and third decade of life, and decreases in the fifth, sixth and seventh decades; 4) smoking increases risk; and 5) sustained hypertension may be a risk factor, although we find the more persuasive medical testimony to be that medical studies have not correlated hypertension with increased risk of an AVM bleeding. There are some studies on aneurysms, which are similar in pathology to AVMs, which have found a slight correlation between long-standing, sustained arterial hypertension and the risk of a rupture of an aneurysm. 18. It is Rice s position that he experienced an increase in his blood pressure due to the stress he was under on the vessel, and that is what caused his AVM to bleed. He claims the stress was due to Estay not being competent to handle a vessel out on the open sea, along with the additional stress of having the father-son relationship of Estay and Estay, Jr. to deal with, and allegedly having to work longer hours to do a lot of maintenance work himself because Estay, Jr. also was not doing an adequate job. 3

4 Conclusions of Law 1. The United States, through its agent Tidex, chose the members of the crew of the YTT09, including the three licensed operators to navigate the vessel. On this particular voyage, the vessel had to be taken out of the coastal waters of the Gulf of Mexico, through the Panama Canal, then up to the state of Washington. Roland Estay, Sr. was chosen as one of the three vessel operators, to serve as mate on this particular voyage. One of the duties of a mate is to be in charge of a watch. We believe that the duties of a mate, on an ocean-going voyage such as this one, include more than merely following a run-line established by the captain and/or other mate. We believe that navigating a vessel under these circumstances means more than simply steering it. No doubt Estay did a perfectly acceptable job for Tidex while mastering vessels in the coastal waters of the gulf, where apparently all navigation could be done by referral to block charts. But once he reached waters beyond which there were block charts available, although he may have been competent to steer the vessel, he was not competent to navigate the vessel, because he was not able to use any of the more sophisticated navigational techniques to either chart the course himself, or to check it for accuracy from time to time. Although he was able to use the radar to detect objects in his path, he was not able to use it as a collision avoidance system. Furthermore, he seemed very unfamiliar with some of the navigation charts of the vessel, and seemed unable to correctly interpret much of the information on the charts. Tidex either knew or should have known of Estay s limitations as a navigator. In short, we do think it was negligent of Tidex to assign Estay to an ocean-going voyage of this type. 2. During his trial testimony, Rice at least implied that he was aware of Estay s limitations regarding the use of certain more sophisticated navigational aids before the trip even began. Although he did request three other men, his stated reason to Mire, the personnel manager, for doing so was simply that he knew the other three men from working with them before, but did not know Rice. We find he made no complaint to Mire about Estay s inability to perform certain tasks as a navigator. In addition, despite some problems from the beginning of the voyage with Estay s over-steering of the vessel, Rice made no request to have him replaced in Panama. When Tidex was asked to replace one of the other crew members, it did so immediately, apparently with no questions asked and without any problem. Regardless of the discomfort Rice might have felt in asking to have Estay replaced, it was his job, as master of the vessel, to do just that if he really believed Estay was not doing an adequate or competent job. 3. We are, of course, aware that under the law, a Jones Act employer is liable for even the slightest possible negligence. River Transp. Associates v. Wall, 5 F.3d 97, 100, Fn. 4 (5th Cir.1993). We are also aware that in a Jones Act case, a plaintiff s burden of proving causation is featherweight. Id. But even though Tidex was negligent in assigning Estay as a mate on the voyage, we have already found that Rice was unable to prove causation. Even if Rice was under more stress because of Estay s limitations, as we have already discussed, Rice did not prove that stress was 4

5 a cause of his stroke, featherweight though his burden of proof might be. This finding, therefore renders the question of negligence irrelevant. If it were relevant, we would have to find that 75% of the fault should be attributed to Rice, for reasons discussed above, with only 25% of the fault being attributable to Tidex. 4. We also find that the duty of Tidex to provide a competent navigator encompassed certain risks, e.g., the risk of having a collision, of running into rocks or running aground in shallow water, or the risk of sinking the vessel. But the risk that the master of the vessel would suffer a stroke is simply too attenuated, in this Court s view, and is not encompassed within the scope of the duty owed by Tidex. See Gavagan v. United States, 955 F.2d 1016, (5th Cir.1992) and Consolidated Aluminum Corporation v. C.F. Bean Corporation, 833 F.2d 65, 67 (5th Cir.1987). 6. In a case such as this one, we must be mindful ourselves of the instructions we give our juries in a jury trial. The mere fact that an accident happened, or in this case, that a terrible incident or event occurred, does not necessarily mean that someone s negligence or fault caused it to happen. [W]e must render a judgment in favor of the defendants. 5