Nichols v. Weeks Marine, Inc.
| Decision Date | 07 June 2007 |
| Docket Number | Civil Action No. 05-2603. |
| Parties | Cederic NICHOLS v. WEEKS MARINE, INC., et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Randy Jay Ungar, George Warren Byrne, Jr., Gregory T. Discon, Ungar & Byrne,. New Orleans, LA, for Cederic Nichols.
James A. Cobb, Jr., Matthew F. Popp, Emmett, Cobb, Waits & Kessenich, New Orleans, LA, for Weeks Marine, Inc. and Atlantic Sounding Co., Inc.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case arises out of injuries allegedly sustained by Plaintiff Cederic Nichols (the "Plaintiff") on or about November 7, 2004 while he was employed as a member of the crew of the M/V ALEXANDRIA, located at the time near Charleston, South Carolina. Specifically, the Plaintiff alleges that a cable become tangled or "birdnested" on the vessel's starboard side drum several weeks prior to the accident date due to another crewman's negligence. The Plaintiff further claims that the vessel's captain ordered crewmen in the days leading up to his accident to untangle the cable from the drum by cutting through sections of the cable with a blowtorch and then pulling the sections free from the tangle by hand or by rope. The Plaintiff states that the accident occurred while he was following orders and attempting to manually pull a cable section from the drum. He alleges that as he was pulling, another cable section sprang up unexpectedly and struck him, causing him to fall approximately four feet to the vessel's steel deck and twist and tear his knee.
On June 24, 2005, the Plaintiff filed a complaint against Defendants Weeks Marine, Inc. ("Weeks Marine"), the owner of the MV/ALEXANDRIA, and Atlantic Sounding Co., Weeks Marine's wholly owned subsidiary and the Plaintiff's employer at the time of the accident. He seeks damages under the Jones Act, 46 U.S.C. § 688, and general maritime law for the Defendants' alleged negligence and vessel unseaworthiness. The Plaintiff also seeks maintenance and cure and penalties for failure to timely pay maintenance and cure.
This matter came on for trial without a jury on October 25, 2006. At the conclusion of the trial, the Court suggested that the parties try to settle the matter rather than seek the Court's judgment. However, in late January of 2007, the Court received a letter from Plaintiff's counsel stating that the parties were unable to settle the case. Accordingly, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, after careful consideration of witness testimony and exhibits in the record. To the extent that a Finding of Fact constitutes a Conclusion of Law, the Court adopts it as such. And to the extent that a Conclusion of Law constitutes a Finding of Fact, the Court also adopts that assumption.
(1)
Plaintiff Cedric Nichols is an individual of the age of majority and a resident of Alabama.
(2)
Defendant Weeks Marine is the owner of the WV ALEXANDRIA, a tug boat which was performing dredging services for the United States Army Corps of Engineers near Charleston, South Carolina at the time of the Plaintiff's accident.
(3)
At all relevant times, the Plaintiff was employed by Defendant Atlantic Sounding Co., Weeks Marine's wholly owned subsidiary, as a seaman or member of the crew of the WV ALEXANDRA, in the capacity of AB deckhand. The Plaintiffs job duties required a significant amount of bending, lifting and climbing.
(4)
The M/V ALEXANDRIA is equipped with a winch and two drums located on the vessel's back deck. Some day prior to October 20, 2004, the starboard side drum's steel cable, approximately two inches in diameter and 2,200 meters in length, became tangled or "birdnested" upon the drum due to the actions of a crew member during vessel operations. The vessel's crew used both drums when towing a barge offshore and alternated between the two drums when performing dredging operations inside, or in a bay, which was the type of work the vessel was performing at the time of the Plaintiffs accident. After the starboard side drum's cable became tangled and the drum became unfit for its intended purpose, the vessel crew used only the port side drum to conduct towing operations.
(5)
Before an attempt was made to remove the birdnested cable, Master Captain Peter Bearb spoke with the crew regarding the method for untangling the cable, and he decided that the best procedure would be to use a Gallion crane located on an adjacent dredge. However, this attempt proved unsuccessful and the dredge was needed for other operations. Captain Peter Bearb also spoke with his nephew First Captain Donald Bearb and the chief engineer, Oscar Rodriguez, regarding repair of the birdnested cable before Captain Peter Bearb went off duty on November 3, 2004. However, no new procedure was implemented before Captain Peter Bearb left the vessel.
(6)
Captain Donald Bearb thereafter took over as Master Captain following Captain Peter Bearb's departure on November 3rd, and Captain Donald Bearb devised a manual procedure to correct the problem. Under this procedure, the vessel's chief engineer, Oscar Rodriguez, positioned himself underneath the tangled cable and used a welding torch to cut through sections of the cable approximately four to five feet in length. Crewmen pulled out cable pieces from the tangle by hand or by hooking a rope around the section and then pulling them free. The crewmen then placed the freed sections upon the vessel's back deck. Captain Donald Bearb, the Plaintiff, and another deckhand all proceeded to remove the tangle in this manner in the days leading up to the accident. No job hazard analysis was performed, as required by the Defendants' safety policy, before the crew's commencement of the manual procedure, the method that the Plaintiff was using at the time of his accident. Nor was such analysis performed after the accident occurred.
(7)
On November 7, 2004, the Plaintiff again followed this procedure and attempted to untangle the birdnested cable under the supervision of Captain Donald Bearb, who stood approximately five feet away from the Plaintiff. Oscar Rodriguez cut three to four foot sections inside the brace of the H bit. He placed one foot upon the I-beam, a four foot high ledge approximately thirteen inches wide that surrounds the port and starboard side drums, and he placed the other foot on the level winder. As the Plaintiff pulled a piece of cable out of the tangle at the top of the starboard side drum and turned away from the tangled cable in order to drop the freed section onto the deck, another piece of cable popped out of the tangle without warning and struck the Plaintiff on the left hip. This caused him to fall from the I-beam to the vessels' deck four feet below, with much of his weight borne by his right knee. As a result of the fall, the Plaintiff injured his right knee and was taken off the vessel to seek medical attention that day.
(8)
After the plaintiff's accident, the vessel crew continued to untangle the cable, using a modified method. Engineer Oscar Rodriguez, on his own initiative, began to cut pieces of cable into sections only a few inches in length. These smaller sections fell to the check and were thereupon retrieved by crew members.
(9)
After the Plaintiff was taken to the emergency room at a hospital in Charleston, South Carolina and a Mobilizer brace was placed on his knee, the Plaintiff returned to the vessel and continued to perform light duty services for approximately one week. The Plaintiff thereafter renewed his regular duties, but continued to complain of pain. After the Plaintiff's hitch ended on November 17, 2004, he performed two more twenty-eight day hitches for the Defendants. The last hitch was in April of 2005, when the Defendants temporarily reassigned the Plaintiff to a smaller tug boat, the M/V ROBERT. The Plaintiff suffered increased knee pain due to more significant up and down movements of the tug boat and an increased amount of climbing necessary to perform duties. The Plaintiff voluntarily left his employment on April 5, 2005 after telling Amber Barns, the Defendants' crew coordinator for the towing division, that the was not able to perform services on the M/V ROBERT due to knee pain and that he needed to see a doctor. Captain Peter Bearb was present during this conversation.
(10)
Records from the Medical University of South Carolina Medical Center, where the Plaintiff was first examined in the emergency room on November 7, 2004, indicate that the Plaintiff sustained fractures of the tibial plateau involving the anterior and posterior tibial spines, an avulsion fracture of the proximal fibular head, and a depression fracture deformity of the lateral tibial plateau. The Plaintiff received treatment from Dr. Jeffrey Conrad, of the Orthopaedic Group, P.C., located in Mobile Alabama from January to March of 2005. An MRI ordered by Dr. Conrad revealed that the Plaintiff suffered an avulsion of the anterior cruciate ligament ("ACL") insertion onto the tibia, a tear of the anterior horn of the lateral meniscus, a grade II sprain of the medial collateral ligament, large joint effusion or swelling, and marked bone bruising involving the lateral tibia plateau and the lateral femoral condyle, injuries consistent with the Plaintiff's accident on November 7, 2004. During a follow up visit, Dr. Conrad was able to examine the Plaintiffs ACL by performing the Lachman's test and a pivot test. Test results indicated that the Plaintiffs ACL was intact and functioning appropriately. After the Plaintiff continued to suffer pain over the medial collateral ligament and lack full extension despite wearing a hinge knee brace, Dr. Conrad recommended arthroscopic surgery. Dr. Conrad also informed the Plaintiff that treating the tibial eminence by the...
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