United States District Court, E.D. Louisiana
FINDINGS OF FACT AND CONCLUSIONS OF LAW
TRICHE MILAZZO UNITED STATES DISTRICT JUDGE
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.
all material times, Marquette was the owner of the vessel the
M/V ROSS SALVAGGIO.
all material times, Plaintiff Marcus Lomax, a 46-year-old
male, worked for Marquette as a tankerman aboard the M/V ROSS
all material times, the M/V ROSS SALVAGGIO was a vessel
engaged in traditional maritime commerce upon the navigable
waters of the United States.
all material times, Plaintiff was a seaman and member of the
crew of the M/V ROSS SALVAGGIO.
Plaintiff had worked as a tankerman for Defendant for several
years prior to the accident at issue.
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.
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.
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
Plaintiff's accident was unwitnessed.
grinder that Plaintiff was using at the time of the accident
was lost overboard.
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.
Plaintiff was provided the same grinder and face mask to
perform the task.
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.
face mask provided to Plaintiff extended about 2 to 3 inches
below the chin.
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.
Drilling overhead with the 7-inch Dewalt grinder was an
unsafe method of work.
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
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.
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.
Defendant was negligent in failing to provide Plaintiff with
a more appropriate tool to complete the task.
Even if a smaller grinder was used, a face mask should still
face mask provided to Plaintiff to complete the task was
found after the incident and had no markings or blood on it.
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.
Based on the injuries Plaintiff sustained, he could not have
been wearing his face mask at the time of the accident.
Plaintiff was negligent in failing to wear a face mask.
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.
Plaintiff's failure to wear a face mask was not a cause
of the back and neck injuries he sustained in the accident.
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.
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 ...