Baham v. Nabors Drilling USA.

Decision Date28 June 2010
Docket NumberCivil Action No. 6:06-2372.
Citation721 F.Supp.2d 499
PartiesLejo “Lee” BAHAM v. NABORS DRILLING USA, LP, et al.
CourtU.S. District Court — Western District of Louisiana
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Timothy W. Cerniglia, Law Office of Timothy W. Cerniglia, Metairie, LA, L.J. Hymel, Jr., Michael R. Davis, Hymel Davis & Petersen, Baton Rouge, LA, for Plaintiff.

Thomas J. Smith, Timothy William Hassinger, Andrew Joseph Gibson, Galloway Johnson et al., Mandeville, LA, for Defendants.

REASONS FOR JUDGMENT

C. MICHAEL HILL, United States Magistrate Judge.

The non-jury trial of this case before the undersigned Magistrate Judge commenced on June 23, 2009 and concluded on June 26, 2009. 1 Thereafter, the Court took this case under advisement.

STIPULATIONS

The Pre-Trial Order contains the following joint stipulations:

1. The Dolphin 109 was a vessel operating on the Outer Continental Shelf (OCS) at the time of plaintiff's injuries;

2. At the time, the Dolphin 109 was attached to the seabed, by its legs and risers and casing, through which it was in the process of running coil tubing.

At trial the parties entered the following joint stipulations:

1. That Seabright Insurance Company (“Seabright”), Seatrax Services, Inc.'s longshore and harbor workers' compensation insurance carrier, paid medical expenses in the total amount of $68,599.89, indemnity payments (through the date of trial) in the amount of $11,800.00.

2. That Seatrax Services, Inc. (“Seatrax”) paid wages in the gross amount of $106,810.00 and the net amount of $90,025.06, to, and or on behalf of, Baham.

3. That the indemnity payments made by Seabright to, and or on behalf of, Baham, were reasonable and necessary and incurred as a result of the injuries sustained in the September 14, 2006 accident.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

After due consideration of the facts and evidence which was presented by the parties at the trial of this matter through live witnesses, exhibits and deposition testimony, and having had the opportunity to assess the demeanor of the live witnesses, and review and weigh the evidence, this Court hereby makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, which the Court finds and holds were established by a preponderance of the evidence. 2

FINDINGS OF FACT-Liability

On September 14, 2006, Lejo Baham (“Baham”) was employed by Seatrax Services, Inc. (“Seatrax”) as a crane mechanic. On that date, Baham was sent to the Dolphin 109, a jackup drilling rig owned by Nabors Offshore Corporation (“Nabors”) and located on the OCS, to inspect and possibly repair the port-side crane on the rig. Baham had never been on the Dolphin 109 prior to that date.

The port-side crane sits on a pedestal. The sole means of ingress and egress to the crane is via a ladder which provides access to an open-grated grey steel walkway (which surrounds the crane pedestal) through an opening in the floor of the walkway. To access the crane cab, an individual must climb from the walkway by another ladder into the crane cab.

The walkway is situated below the cab of the crane, and is approximately fourteen feet above the deck. According to plaintiff's safety expert, Jack R. Barnidge, the walkway is approximately five feet wide, and the opening in the middle of the floor of the walkway (for access from the ladder) is approximately thirty inches wide. The opening in the walkway can be guarded or secured by means of a cover which is made of the same grated grey metal as is the walkway.

The cover is opened and closed manually. It has no mechanism to automatically close after being opened. When in the open position, the top of the cover rests on guardrails surrounding the ladder opening, and rests to the back of a person climbing on to the walkway from the ladder. The cover is the same grey color as the deck below. For these reasons, the cover blends in with the surrounding walkway and deck below, making it not readily noticeable to persons, like Baham, who are not familiar with the crane.

The Dolphin 109 was the only rig in the Nabors fleet with this type of ladder and walkway configuration, and, according to Nabors operations manager Joseph Menard (“Menard”) and safety expert Barnidge, this configuration is not a usual configuration in the oil industry. The Court accepts their testimony, and to the extent that Seatrax safety coordinator Robert Watson testified to the contrary, the Court rejects his testimony on this point.

After arriving at the rig, Baham met with Nabors rig medic and safety coordinator, Larry Brown (“Brown”). Brown verified that Baham had his personal protection equipment (PPE) with him. Brown also conducted a basic safety orientation with Baham, advising Baham about emergency and evacuation procedures, fire alarms, the location of life boats and life rafts, and the location of the galley and sleeping quarters. However, no specifics regarding the crane, the ladder leading to the crane or the walkway around the crane pedestal were discussed.

Baham next met with Nabors tool pusher David Prather. Baham's testimony of what transpired thereafter differs greatly from that given by Prather. The Court finds the version of events given by Prather was not credible, and, accordingly, the Court rejects his testimony. According to Baham, who this Court finds credible on this issue, he and Prather left Prather's office to go to the galley to get coffee. They then went to the smoking area where they sat on a swing. While walking to the galley, and while sitting in the smoking area, Prather and Baham discussed the problem with the crane, which necessitated Baham's inspection. Prather related that there had been a loud popping in the crane, and Baham advised that he would need to look at the swing gear, gearbox, the wenches and wire rope and sheaves. Prather and Baham did not discuss any hazards associated with the crane, ladder or walkway surrounding the crane pedestal. The discussion lasted approximately ten to fifteen minutes.

While the two (Baham and Prather) were drinking coffee and smoking, Prather was called to the crane by Nabors rig electrician Harlan Wesley Parker, Jr. (“Parker”), who was already in the crane cab looking at the crane load chart.

Prather testified that he told Baham to wait for him (Prather) to return to the living quarters to perform a JSA prior to beginning work. The Court, however, finds Prather's testimony on this point not credible. Baham testified that he told Prather that he would finish his cigarette and meet Prather on the crane; Prather agreed and voiced no objection. The Court accepts Baham's testimony as credible on this crucial point.

Thus, Baham had authority to ascend the ladder to the crane and to begin his inspection, without first completing a JSA, as soon as he finished his cigarette. Indeed, accepting the facts found by this Court, Menard agreed that Prather authorized Baham to do exactly as he did.

The Seatrax safety coordinator, Watson, whose testimony was, for the most part, unfavorable to Baham's position, agreed that if Prather told Baham to come to the crane after finishing his cigarette, Baham did not do anything wrong, as the toolpusher is the “master of the vessel.” Baham's testimony on this point is supported by the September 27, 2006 email of Richard Grayson, the head of safety for Nabors in Houston, Texas, which states that the toolpusher, Prather, “allowed the mechanic to come up behind him and begin inspecting the underside of the crane....” Following Baham's accident, as further disclosed by Grayson's email, Prather was “counseled” by his supervisor, Menard, for allowing Baham to proceed unescorted to the crane.

Prather ascended the ladder and went into the crane cab. Both Brown and Menard testified that it was the policy of Nabors for employees to immediately replace the steel grating cover over the opening in the walkway after passing through the opening, no matter how short a period of time the employee was to remain in the crane. The Court accepts, as credible, this testimony. However, after passing through the opening in the floor of the walkway, Prather did not close the cover over the opening. Prather was the last person to ascend the crane through the opening in the walkway prior to Baham's ascent.

After finishing his cigarette, as authorized by Prather, Baham went to the crane and ascended the ladder to the grated steel walkway surrounding the crane pedestal. This also was in violation of Nabors' policy which, according to Menard, required Prather to escort Baham to the crane. The cover was in the open position when Baham passed through the opening; Baham did not close the cover over the walkway opening after passing through the opening.

Although several Nabors employees testified that the cover for the walkway opening could be seen while ascending the ladder to the walkway, the Court accepts Baham's testimony that he did not see the cover, and that he was therefore unaware of its existence. Baham's testimony on this point is supported by the Nabors root cause analysis which lists as a contributing cause of the accident, Baham's unawareness that the hatch had been left open.

Baham had never been on the Dolphin 109 previously and, therefore, was not aware of the unusual configuration of the ladder and walkway. As Baham climbed the ladder through the opening, the open hatch cover was to his back. Furthermore, both the hatch cover and the walkway were made of the same grey metal grating. This allowed the cover to blend in with the surrounding grating of the walkway and the grey colored floor of the deck below. Although defense work-safety expert Howard testified that Baham should have seen the cover, the Court does not accept Howard's testimony on this point, as his opinion in this case appears contrary to...

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