United States District Court, E.D. Louisiana
JUDGMENT AND REASONS
NANNETTE JOLIVETTE BROWN UNITED STATES DISTRICT JUDGE.
matter came before the Court for trial without a jury from
October 24, 2016, to October 25, 2016. The Court has
subject matter jurisdiction over this action pursuant to 28
U.S.C. § 1333(1), which confers on the federal district
courts original jurisdiction over admiralty and maritime
claims, and pursuant to 33 U.S.C. § 905(b) of the
Longshore and Harbor Workers' Compensation Act
(“LHWCA”). Venue is proper in this Court pursuant to
28 U.S.C. § 1391(b), as Defendant River Ventures, LLC
(“River Ventures”) resides in the Eastern
District of Louisiana.The substantive law applicable to this case
is the LHWCA, 33 U.S.C. § 901, et seq., and the
general maritime law.
Court has carefully considered the testimony of all of the
witnesses and the exhibits entered into evidence during the
trial, as well as the record. After reviewing all of the
evidence and pursuant to Federal Rule of Civil Procedure Rule
52(a), the Court issues the following findings of fact and
conclusions of law. To the extent that any finding of fact
may be construed as a conclusion of law, the Court hereby
adopts it as such, and to the extent that any conclusion of
law constitutes a finding of fact, the Court hereby adopts it
litigation, Gonzales, an employee of Intervenor United Bulk
Terminals Davant, LLC (“UBT”), seeks damages for
injuries sustained on June 17, 2014, while being transported
on a vessel by Defendant River Ventures. As a result of
this accident, Gonzales asserted a claim against Intervenor
American Longshore Mutual Association, Ltd.
(“ALMA”) and UBT (collectively,
“Intervenors”) pursuant to the
LHWCA. Intervenors contend that ALMA, on behalf
of UBT, made payments to Gonzales in connection to these
injuries pursuant to the LHWCA.
16, 2015, Gonzales filed a complaint in this matter against
River Ventures.ALMA and UBT intervened on December 1,
2015, and March 10, 2016, respectively. No dispositive
motions were filed. On October 13, 2016, ALMA filed a motion
in limine to preclude Jerry Hannah, president of River
Ventures, from testifying about matters it believed
constituted parol evidence regarding the contract between
River Ventures and UBT. The Court took the motion under
advisement prior to trial. River Ventures chose not to
call Jerry Hannah as a witness during the trial, which
rendered the motion moot. On October 19, 2016, River
Ventures filed a motion to exclude the “surprise”
expert testimony of Dr. Charles Haddad. River
Ventures also filed a motion to continue the trial based on
Dr. Haddad's allegedly new testimony on October 20,
2016. The Court denied both
motions. A trial without a jury was held from
October 24, 2016, to October 25, 2016.
November 7, 2016, the Court ordered the parties to submit
supplemental post-trial briefing, if necessary. On November
20, 2016, ALMA filed a post-trial memorandum. On November
21, 2016, Gonzales filed a post-trial
memorandum. On December 8, 2016, River Ventures
filed a post-trial memorandum,  and on December 9, 2016,
ALMA and UBT filed a reply. On December 12, 2016, Gonzales
filed a reply.
FINDINGS OF FACT
Plaintiff Angelo Gonzales is a resident of the Parish of St.
Defendant River Ventures, LLC is a Louisiana limited
liability company with its principal place of business in St.
Intervenor United Bulk Terminals Davant, LLC is a Louisiana
limited liability company with its principal place of
business in Davant, Louisiana.
Intervenor American Longshore Mutual Association, Limited is
a mutual association, organized and existing under the laws
The Relationships Between the Parties
Gonzales has been employed by UBT as an electrician since
Gonzales has worked as an electrician for 40 years, including
14 years as a marine electrician and supervisor at Avondale
Shipyards prior to being employed by UBT in
transfers coal to and from river barges and oceangoing
vessels and maintains stockpiles of coal at several
land-based storage areas.
owns and operates several docks in Davant, Louisiana, on the
Mississippi River on which vessels may be moored and
equipment may be stored.
While working for UBT, Gonzales was responsible for
performing general electrical maintenance on all UBT
equipment, including the equipment located on UBT's
River Ventures, a crew boat/transport vessel company,
contracted with UBT to provide transportation for UBT
employees on the Mississippi River.
General Agreement contract between River Ventures and UBT was
in effect and controlling at the time of the incident that is
the subject of this litigation.
ALMA insured UBT for claims arising under the Longshore and
Harbor Workers' Compensation Act.
River Ventures' Vessel: The M/V TROOPER
River Ventures owned and operated the vessel “the M/V
River Ventures used the M/V TROOPER to transport UBT
employees between work sites.
M/V TROOPER includes a large open deck on the stern of the
ship with handrails on both the port and starboard corners of
the stern of the deck.
captain's wheelhouse, which is a covered structure with
several windows installed where the captain operates the
vessek, is located at the bow of the ship.
captain sits inside the wheelhouse cabin on the port side of
M/V TROOPER is also equipped with an off-loading platform
constructed on the top of the captain's
off-loading platform on the M/V TROOPER is used to offload
personnel onto docks that are raised above the regular deck
of the vessel.
platform was equipped with a metal grated floor and handrails
on both sides, with openings in the handrails on both the
port and starboard sides of the platform to allow passengers
to disembark from the platform either way and an opening for
the ladder entrance.
reach the top of the platform to disembark, a passenger must
first climb a ladder on the starboard side of the vessel onto
an intermediate stage on the back half of the wheelhouse,
walk across the intermediate stage of the wheelhouse to the
port side of the vessel, and then climb a second ladder to
the top of the platform.
The Events of June 17, 2014: Gonzales boards the
June 17, 2014, Gonzales was working for UBT as a Class A
June 17, 2014, Noble Ruffin (“Captain Ruffin”)
was an employee of River Ventures and the captain of the M/V
Captain Ruffin had been a captain at River Ventures for
approximately six months prior to the incident on June 17,
June 17, 2014, Gonzales requested that Captain Ruffin
transport him and some equipment to the “F boom”
dock operated by UBS.
Gonzales instructed Captain Ruffin on where he should be
Captain Ruffin piloted the M/V TROOPER to the barge where
Gonzales was waiting to depart.
Captain Ruffin backed the stern of the M/V TROOPER up to the
barge and tied up the M/V TROOPER to the barge.
M/V TROOPER was level with the barge where Gonzales was
awaiting transport, such that he could walk directly from the
barge onto the deck.
Gonzales and Steve Rivera (“Rivera”), another UBT
employee, loaded equipment and material from the barge onto
the M/V TROOPER.
Gonzales proceeded to walk onto the stern of the M/V TROOPER
to be transported.
Rivera did not board the M/V TROOPER and instead walked to
meet Gonzales at his destination at UBT's “F
Todd Ferniz (“Ferniz”), another UBT employee,
boarded the M/V TROOPER with Gonzales.
The Events of June 17, 2014: Gonzales attempts to disembark
from the vessel
Captain Ruffin piloted the M/V TROOPER from the barge to the
“F boom” dock with Gonzales and Ferniz on
Captain Ruffin backed the stern end of the M/V TROOPER to the
“F boom” dock.
Rivera was already on the “F boom” dock to assist
Gonzales and Ferniz with unloading equipment from the M/V
Gonzales and Ferniz proceeded to hand the equipment on the
back deck of the M/V TROOPER to Rivera on the “F
After the equipment was off-loaded, Gonzales needed to use
the offloading platform above the vessel's wheelhouse to
disembark from the M/V TROOPER to the “F boom”
dock, as the back deck of the M/V TROOPER was several feet
below the dock.
Gonzales and Ferniz remained on the M/V TROOPER while Captain
Ruffin began maneuvering the M/V TROOPER.
While the M/V TROOPER was positioned with its stern against
the dock, Captain Ruffin attempted to pivot the vessel
starboard such that the starboard side of the offloading
platform and vessel would be flush with the
This maneuver is referred to as “walking” the
vessel in order to re-position the vessel to let passengers
off from the top of the offloading platform.
June 17, 2014, at the time of the instant incident, the
Mississippi River was “rough” and “running
high, ” such that the water level was higher than
normal and the river was moving faster.
Captain Ruffin attempted to “walk” the M/V
TROOPER over several times in the rough waters so that the
starboard side of the vessel would be flush with the
While Captain Ruffin was performing this maneuver and the
vessel was still moving, Gonzales proceeded to climb up the
two ladders on the M/V TROOPER to the top of the offloading
Passengers are not supposed to climb up onto the offloading
platform until the captain signals for them to do
Gonzales did not inform Captain Ruffin that he was climbing
up to the offloading platform.
Captain Ruffin, who was inside the vessel's wheelhouse,
was not aware that Gonzales had climbed up onto the
offloading platform above the wheelhouse.
Ferniz remained on the deck of the M/V TROOPER and held on to
the handrails because he “didn't want to get thrown
into the river.”
While Captain Ruffin was attempting to turn the M/V TROOPER
to be flush with the dock, the M/V TROOPER bumped hard
against the dock several times.
Captain Ruffin did not warn his passengers to watch for the
Bumping against the dock while “walking” a vessel
over is common when performing this maneuver.
While “walking” the vessel, Captain Ruffin did
not accelerate the M/V TROOPER or otherwise increase its
speed beyond what was necessary to turn the vessel's
starboard side to be parallel with the dock.
While Captain Ruffin was attempting to dock the M/V TROOPER,
Gonzales remained on top of the offloading platform and tried
to communicate to Ferniz that Captain Ruffin should proceed
to an alternative location to offload Gonzales.
Because the vessel had two diesel engines operating and
creating noise, Captain Ruffin did not hear Gonzales climb on
top of the offloading platform or hear Gonzales'
suggestions to Ferniz that Captain Ruffin proceed to a new
drop off location.
Gonzales had the “stop-work authority” to
immediately end the work being done because an employee feels
like he is in an unsafe situation, but Gonzales failed to
utilize it when he was on the offloading platform while the
vessel was moving.
was Gonzales' obligation as a UBS employee to use his
“stop-work authority” to immediately end a
situation that Gonzales felt was unsafe.
While on top of the offloading platform, Gonzales was holding
a bag in one hand.
While Captain Ruffin continued to try to “walk”
the M/V TROOPER to be flush against the “F boom”
dock, Ferniz saw that Gonzales was preparing to jump down
from the offloading platform to the dock before Captain
Ruffin had completed the maneuver or had signaled to Gonzales
that it was safe to climb onto the platform or
Ferniz yelled to Gonzales to not jump.
Because the offloading platform is approximately ten to
twelve feet in length, Gonzales had room to safely step
several feet back away from the starboard side opening on the
the fourth attempt to walk the vessel to the “F
boom” dock, when the M/V TROOPER bumped against the
dock, Gonzales jumped down to the dock.
Passengers are prohibited from jumping from the vessel to the
dock or putting themselves or others at risk by their
Gonzales landed on his shoulder when he impacted with the
Captain Ruffin did not know that Gonzales was injured and
proceeded to transport Ferniz to his location.
Gonzales did not fill out an accident report following his
Following the incident, Ferniz wrote a statement in which he
stated: “It was about 1:45 p.m. The crew boat was
approaching dock. The electrician pursued to jump. I told him
not to, to wait until it is stable. On about the fourth time,
the fourth bounce, he jumped onto a pile of rope. He landed
on his shoulder. (1) Rope on dock; (2) He fell on rope; (3)
Rope might have saved him.”
Accordingly, as discussed in greater detail infra,
the Court finds that Gonzales was injured because he climbed
up onto the offloading platform without informing Captain
Ruffin and before the vessel stopped moving and because he
attempted to jump down to the dock before the vessel had
stopped moving and before the captain had signaled that he
could safely disembark.
The Events of June 17, 2014: Gonzales' Injuries and
After landing on the dock, the first responders were
Gonzales' shoulder injury caused him significant pain,
and he was unable to move his left arm immediately after the
Gonzales walked away from the dock to the vehicle of Johnny
Lacrosse, a production supervisor, who brought Gonzales to a
first aid room.
Gonzales was taken by Perry Triche, the President of UBT, to
Dr. Swift, the “company doctor, ” who examined