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Lomax v. Marquette Transportation

United States District Court, E.D. Louisiana

January 3, 2019

MARCUS LOMAX
v.
MARQUETTE TRANSPORTATION

         SECTION “H”

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

         Plaintiff Marcus Lomax alleges he was injured while working aboard the M/V ROSS SALVAGGIO when he was struck in the face by a grinder while buffing the underside of an overhead deck. He brings claims against his employer Marquette Transportation (“Marquette”) for Jones Act negligence, unseaworthiness, and maintenance and cure. This case proceeded to a bench trial on June 18 and 19, 2018. Having considered the evidence admitted at trial and the arguments of counsel, this Court makes the following findings of fact and conclusions of law. To the extent a finding of fact constitutes a conclusion of law, and vice versa, the Court adopts it as such.

         FINDINGS OF FACT

         1. At all material times, Marquette was the owner of the vessel the M/V ROSS SALVAGGIO.

         2. At all material times, Plaintiff Marcus Lomax, a 46-year-old male, worked for Marquette as a tankerman aboard the M/V ROSS SALVAGGIO.

         3. At all material times, the M/V ROSS SALVAGGIO was a vessel engaged in traditional maritime commerce upon the navigable waters of the United States.

         4. At all material times, Plaintiff was a seaman and member of the crew of the M/V ROSS SALVAGGIO.

         5. Plaintiff had worked as a tankerman for Defendant for several years prior to the accident at issue.

         6. In May 2015 prior to the accident, Plaintiff had obtained an apprentice mate license to become a pilot, which allowed him to train under a captain for approximately 18 months in the steersmen program to eventually become a boat pilot. The steersmen program is a selective process and not every tankerman is selected. Participants in Defendant's steersmen program are selected by a board from a list of employees who have obtained an apprentice license based on a variety of considerations. Only about 10 of 100 interested employees are selected at any given time.

         7. On May 29, 2015 while working aboard the M/V ROSS SALVAGGIO, Plaintiff was asked to clean rust off of the underside of the fleet deck in order to prepare the area for painting.

         8. Plaintiff was injured while using a grinder on the underside of the fleet deck with his arms extended above his head. The grinder hit a rust pocket, he lost control of the grinder, and it fell back and hit his face, knocking him to the ground.

         9. Plaintiff's accident was unwitnessed.

         10. The grinder that Plaintiff was using at the time of the accident was lost overboard.

         11. Fellow tankerman, Henry Scott, was using a 7-inch Dewalt grinder with a T-handle and a face mask to perform the same task prior to Plaintiff's shift.

         12. Plaintiff was provided the same grinder and face mask to perform the task.

         13. The deck grinder that Plaintiff was using to perform the task was a 7-inch Dewalt D28474 weighing roughly 13 pounds. The grinder was equipped with a T-handle at the time it was provided to Plaintiff.

         14. The face mask provided to Plaintiff extended about 2 to 3 inches below the chin.

         15. The Court finds the testimony of Robert Borison, an expert in safety and offshore operations, credible. Borison testified that the 7-inch grinder used by Plaintiff was not appropriate for overhead grinding. He opined that it was too heavy and awkward to lift and push the grinder overhead for a period of time. He opined that a smaller weight grinder would have been a more appropriate tool for the task of grinding overhead.

         16. Drilling overhead with the 7-inch Dewalt grinder was an unsafe method of work.

         17. There were no smaller grinders, such as a Dewalt Model D28402 small angle grinder, available on the vessel for Plaintiff to use. In fact, the crew was not allowed to use smaller grinders.

         18. Defendant had previously discontinued use of the smaller angle grinders on its vessels because they turned more RPMs than the wheels were rated for, causing needles and wires to come out of the grinder. Defendant instructed its crews to use only the larger 7-inch grinders.

         19. As testified to by Borison, Defendant was negligent in replacing the smaller grinder with a larger grinder instead of fitting the smaller grinder with a cup at the appropriate rated capacity. Such cups were readily available for purchase.

         20. Defendant was negligent in failing to provide Plaintiff with a more appropriate tool to complete the task.

         21. Even if a smaller grinder was used, a face mask should still be worn.

         22. The face mask provided to Plaintiff to complete the task was found after the incident and had no markings or blood on it.

         23. As Defendant's marine ergonomic expert Trevor Bardarson testified, if Plaintiff had been wearing a face mask at the time of the accident, the grinder would have hit the mask and it would not have been knocked off. Plaintiff would not have sustained the mouth injuries at issue.

         24. Based on the injuries Plaintiff sustained, he could not have been wearing his face mask at the time of the accident.

         25. Plaintiff was negligent in failing to wear a face mask.

         26. Even if Plaintiff had been wearing a face mask, however, it would not have prevented the accident or prevented him from being knocked to the ground.

         27. Plaintiff's failure to wear a face mask was not a cause of the back and neck injuries he sustained in the accident.

         28. A needle gun or chipping hammer and brush were available for Plaintiff's use on the vessel. Borison testified that either would have been a more appropriate tool to complete the task assigned to Plaintiff.

         29. Plaintiff did not use stop work authority or report having unsafe equipment to perform the task. He also did not seek out a needle gun or chipping ...


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