Johnson v. Cenac Towing, Inc.

Citation599 F.Supp.2d 721
Decision Date02 March 2009
Docket NumberCivil Action No. 06-914.
PartiesLeroy JOHNSON v. CENAC TOWING, INC., et al.
CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)

James Edmon Cazalot, Jr., H. Edward Sherman, H. Edward Sherman, APLC, New Orleans, LA, Travis Jasper Causey, Jr., Colvin Law Firm, Gretna, LA, for Leroy Johnson.

Randolph J. Waits, Matthew F. Popp, Waits, Emmett & Popp, New Orleans, LA, Jason R. Kenney, Staines & Eppling, Metairie, LA, for Cenac Towing, Inc.


SARAH S. VANCE, District Judge.

This matter is before the Court on remand from the Fifth Circuit. In a November 2, 2008, mandate, a three-judge panel of the Fifth Circuit vacated this Court's judgment in favor of plaintiff Leroy Johnson and remanded with instructions for the Court to reevaluate its findings as to Johnson's contributory negligence. Having reviewed the mandate and the record, the Court now rules as follows.


The facts of this maritime personal injury case are set forth in detail in this Court's Order and Reasons of December 27, 2006. See Johnson v. Cenac Towing Inc., 468 F.Supp.2d 815, 819-25 (E.D.La. 2006) [hereinafter Johnson I]. For the purposes of this order, the Court will recount only those facts that bear directly on the Fifth Circuit's mandate. The Court also readopts its previous findings of fact and conclusions of law, except as noted herein.

Plaintiff Leroy Johnson began working as a tankerman for defendant Cenac Towing in May 2003. In May 2004, Cenac terminated Johnson's employment, but it rehired him one year later, in May 2005. This Court previously found that Johnson had suffered a number of injuries before he was hired by Cenac and that he willfully concealed his injuries from Cenac and its medical personnel when he reapplied for a position in 2005. See Johnson I, 468 F.Supp.2d at 822-23. Nevertheless, when Cenac's medical examiner performed pre-employment physicals in 2003 and 2005, which included full range of motion tests and lumbar spine x-rays, he "determined that Johnson could be considered for `employment without restriction.'" Id. at 822. And despite the pre-existing injuries, the Court found that "Johnson had performed work that involved heavy lifting from 2002 until his December 14, 2005 accident without any difficulty." Id. at 823.

Johnson was assigned to the Cenac tug M/V URSULA CENAC on the date of the accident. While the vessel was standing by for dock space in Mobile, Alabama, Johnson and fellow tankerman Louis Celestine began to connect a crossover hose between two barges that were in tow behind the URSULA CENAC. The crossover hose, which was used to load and discharge product from the barges, was approximately twenty-five feet long and six inches in diameter. It weighed approximately 175 pounds, with much of the weight distributed toward its iron-flanged end.

Johnson and Celestine lifted the hose and began to move it from its storage location, Johnson carrying the flanged end and Celestine carrying the belly. As they moved the hose, Celestine tripped on a hatch cover located aboard one of the barges and dropped his portion of the hose. Johnson, who was left to bear an increased amount of weight, exclaimed that he had injured his back. Celestine recalled looking over at Johnson and seeing Johnson bent over "like when you lose your breath."1 Johnson testified that right after the accident happened his back started to burn, and he told Celestine and another Cenac employee that he had to return to the boat to seek medical help.2 At some point shortly after Johnson returned to the boat, he said that he noticed a wet spot in his underwear, but he did not mention it to anyone aboard the vessel.3

Johnson filed a seaman's complaint in this Court on February 22, 2006, asserting claims against Cenac for Jones Act negligence, unseaworthiness, and maintenance and cure. Cenac presented a number of defenses, two of which are relevant at this stage. First, Cenac argued that Johnson was not entitled to maintenance and cure because he willfully concealed his preexisting medical conditions at the time he was hired. Second, Cenac argued that Johnson's willful concealment amounted to contributory negligence, and prayed that any negligence award be reduced to account for Johnson's negligence.

The Court heard the parties' arguments and evidence during a two-day bench trial in December, 2006. After weighing the evidence in light of the relevant legal standards, the Court found for Johnson on the Jones Act claim as to his back injury and for Cenac on the unseaworthiness and maintenance and cure claims.

With respect to the maintenance and cure claim, the Court found that Johnson's willful concealment of his previous injuries barred recovery under the doctrine of McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547 (5th Cir.1968). In McCorpen and subsequent cases, the Fifth Circuit has held that a seaman who willfully conceals a pre-existing injury from his employer may not recover damages for maintenance and cure if that injury is reactivated or aggravated during a later voyage. See Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005); 1B BENEDICT ON ADMIRALTY § 46 (2008). A maritime employer who seeks to invoke the McCorpen defense must prove that:

(1) the claimant intentionally misrepresented or concealed medical facts;

(2) the non-disclosed facts were material to the employer's decision to hire the claimant; and

(3) a connection exists between the withheld information and the injury complained of in the lawsuit.

Brown, 410 F.3d at 171. Applying this test to the facts of Johnson's employment with Cenac, the Court concluded that Johnson was not entitled to maintenance and cure. See Johnson I, 468 F.Supp.2d at 833-34.

Turning to Johnson's Jones Act claim, the Court found that Johnson's co-worker, Louis Celestine, caused the hose accident through his negligence and that Cenac was therefore liable for Johnson's injuries. See id. at 825. The Court then considered and rejected Cenac's argument that Johnson's pre-employment misrepresentations made him contributorily negligent for his own injuries:

[T]he Court rejects the argument that if not for Johnson's misrepresentations, this accident would not have happened. The condition of Johnson's back and neck did not contribute to causing the accident. That Johnson sustained injuries at least three years before the December 14, 2005 accident does not make him contributorily negligent.

Johnson I, 468 F.Supp.2d at 826.

The Court entered judgment on Johnson's Jones Act claim on December 28, 2006, and Cenac timely appealed. In a mandate issued November 3, 2008, a three-judge panel of the Fifth Circuit vacated the judgment and remanded for this Court to "reevaluate its findings" on the contributory negligence issue. Johnson v. Cenac Towing, Inc., 544 F.3d 296, 304 (5th Cir. 2008) [hereinafter Johnson II]. The court of appeals surveyed several Jones Act cases touching upon contributory negligence and noted that

it appears that contributory negligence may be found where a seaman has concealed material information about a preexisting injury or physical condition from his employer; exposes his body to a risk of reinjury or aggravation of the condition; and then suffers reinjury or aggravation [of the] injury.

Id. at 303-04. The panel then remarked that it was "unsure about whether the [district] court fully analyzed the potential for contributory negligence," citing what it perceived as "tension" between this Court's finding on the third prong of the McCorpen test—i.e., that there was a "causal link between Johnson's misrepresentation and his injuries," Johnson I, 468 F.Supp.2d at 833—and its finding that Johnson did not negligently cause or contribute to his injuries through his misrepresentations. Johnson II, 544 F.3d at 304. In light of the uncertainty, the panel felt that it "must remand for the [district] court to reevaluate its findings on this issue." Id. It specifically declined, however, to "instruct how the court should ultimately rule on whether Cenac has proved Johnson's contributory negligence in deliberately exposing himself to heavy labor with a weakened back." Id.

A. Maintenance and Cure

Some background on the seaman's action for maintenance and cure will bring this Court's earlier findings into focus. The maritime employer's duty of maintenance and cure, which dates at least to the medieval sea codes, see The Osceola, 189 U.S. 158, 169-71, 23 S.Ct. 483, 47 L.Ed. 760 (1903); Harden v. Gordon, 11 F.Cas. 480, 482-83 (C.C.D.Me.1823) (No. 6047), obligates him to pay for the lost wages, medical care, food, lodging, and other incidental expenses of a mariner who falls ill or is injured while in the service of the vessel. See Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107 (1943); The Osceola, 189 U.S. at 175, 23 S.Ct. 483. The duty is practically absolute. Unlike an employer's duties under the Jones Act, for example, liability for maintenance and cure is "in no sense ... predicated on the fault or negligence of the shipowner." Aguilar, 318 U.S. at 730, 63 S.Ct. 930. Because the duty is so broad, maintenance and cure has at times been compared to mandatory employer-provided health and accident insurance. See Lindquist v. Dilkes, 127 F.2d 21, 23-24 (3d Cir.1942); GILMORE & BLACK, THE LAW OF ADMIRALTY 281-82 (2d ed. 1975).

In keeping with the absolute nature of the right, a plaintiffs burden of proof on a maintenance and cure claim is slight: he need only establish that he was injured or became ill while "subject to the call of duty as a seaman." Aguilar, 318 U.S. at 732, 63 S.Ct. 930; see also 1 SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 6-28; FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS: CIVIL § 4.11 (2006 ed.). It is not necessary for the claimant to show that his injury or ailment originated during the term of his employment. The employer is...

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