Smith v. Tidewater Inc.

• Decision Date: 02 March 2005
• Docket Number: No. 2004-CA-0195.,2004-CA-0195.
• Citation: 918 So.2d 1
• Parties: Stephen C. SMITH v. TIDEWATER INC.
• Court: Court of Appeal of Louisiana — District of US

Page 1

918 So.2d 1

Stephen C. SMITH v. TIDEWATER INC.

No. 2004-CA-0195.

Court of Appeal of Louisiana, Fourth Circuit.

March 2, 2005.

Opinion Granting Rehearing August 17, 2005.

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David W. Bernberg, David W. Bernberg, APLC, and Stephen R. Barry, Barry & Piccione, APLC, New Orleans, LA, for Plaintiff/Appellee (Stephen C. Smith).

Miles P. Clements, Ann Marie Leblanc, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Defendants/Appellants (Tidewater, Inc., Tidewater Marine, L.L.C. and TT Boat Corporation).

(Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).

MICHAEL E. KIRBY, Judge.

On April 6, 2000, defendant/appellant Tidewater Marine, L.L.C. employed plaintiff/appellee Stephen Smith as a seaman aboard its tug the Gulf Brent. Early that morning, plaintiff allegedly slipped or tripped on the stern deck of the tug and fell overboard into the ocean approximately three (3) miles off the coast of San Juan, Puerto Rico, where the vessel was headed to deliver its cargo and pick up another cargo on the same barge for a return voyage to Jacksonville, Florida.

Upon seeing the tug disappear into the distance and remaining in the water for hours without rescue, plaintiff eventually began to swim to shore. After nearly twenty (20) hours in the water, plaintiff, who was wearing a life vest, was found ashore by Puerto Rican authorities and taken to a hospital for treatment of minor physical injuries. As a result of this accident, plaintiff claimed he suffered significant injury, including post-traumatic stress disorder (PTSD).

According to the master log of the Gulf Brent, when it left Jacksonville its estimated time of arrival (ETA) in San Juan was 06:00. At approximately 04:15 plaintiff was seen on the tug. At 04:45, other members of the crew shortened the tow without plaintiff's presence, even though this was part of his duty. At about 05:00, two searches of the tug were ordered to find the missing crewman. At 05:15, defendant notified the Coast Guard of the missing seaman.

When the U.S. Coast Guard arrived in the area at 10:00, and after searching for its missing crewman for nearly five hours, defendant suspended its search to take the barge into port. Noteworthy in this regard is that bringing the barge into port at this particular juncture allowed stevedores in Puerto Rico to unload and reload the barge in time for it to set sail on schedule the following day.

Upon disengaging the barge in port, defendant's headquarters ordered the tug to await the arrival of lab technicians for drug testing of its remaining crew. Defendant's decision to drug test the remaining crewmembers detained the Gulf Brent in port approximately three (3) hours, from 11:30 to 14:30.

Defendant, through its employees, argued that it needed to comply with a Coast Guard regulation requiring drug testing and that the lab personnel¹ might not want to go to a pier at night. In Section II of the Report of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident, there are eight categories covering a range of incidents from death to major loss of property, including loss of a vessel, to discharge of hazardous materials or large amounts of oil. None of these categories was checked as applicable to this incident.

At 14:30 the Gulf Brent was finally released to return to the search for plaintiff. It searched for only a few more hours, until about 18:20 hours before returning to port for defense attorneys to take statements of the crew about the occurrence. From this point onward the crew rested to comply with manning regulations so that they would be able to take the reloaded barge back to Florida on schedule. The Gulf Brent would not thereafter search for its missing crewman.

The Gulf Brent was on its return voyage to Florida when it was notified that plaintiff was located ashore by Puerto Rican authorities. Tidewater's attorney in Puerto Rico, Mr. Jose' Sarraga, took Mr. Smith to eat and then interviewed him about the accident so as to prepare an affidavit. Subsequently, plaintiff was flown back to Florida from Puerto Rico and brought in for questioning by the management of Tidewater. Later Tidewater's towing division manager, Mr. Tom Kazusky, fired the plaintiff for alleged "improper work practices."

After these events surrounding the boating incident, on September 26, 2000, Mr. Smith was in an automobile accident. Another vehicle rear-ended the plaintiff's vehicle.

Action of the Trial Court

At trial, plaintiff pursued several theories of liability against his former employer, including failure to rescue, negligence for the alleged slippery condition of the vessel and unseaworthiness. Plaintiff also maintained that defendant refused to provide him with the required maintenance and cure benefits and that he was wrongfully terminated.

The trial court found that plaintiff failed to carry his burden of proof on the issues regarding Jones Act, 46 Appendix U.S.C.A. § 688,² and General Maritime unseaworthiness claims. It also concluded that the doctrine of res ipsa loquitur was not warranted absent a showing of at least a malfunction, failure or misuse of the vessel, or some defect therein. Rabb v. Canal Barge Co., 428 F.2d 201, 203 (5th Cir.1970).

The trial court did find that the defendants violated the duty to rescue and that plaintiff was wrongfully terminated. It awarded general damages of Two Hundred Fifty Thousand ($250,000.00) Dollars to plaintiff and an additional One Hundred Thousand ($100,000.00) Dollars on the wrongful termination claim. Judicial interest on these amounts was awarded from the date of judicial demand.

STANDARD OF REVIEW

Normally, appellate courts review trial court factual findings under the manifest error standard. Nevertheless, when the trial court commits legal error, de novo review is triggered. Tarifa v. Riess, 2002-1179, p. 6 (La.App. 4 Cir. 5/7/03), 856 So.2d 21, 24; Hoskins v. Hoskins, 36,031 (La.App. 2 Cir. 4/5/02), 814 So.2d 773; Guillory v. Wal-Mart Stores, 2001-127 (La.App. 3 Cir. 10/3/01), 796 So.2d 772; Roger v. Dufrene, 1997-1946 (La.App. 4 Cir. 9/9/98), 718 So.2d 592. In reviewing the disposition of claims tried under the Jones Act or general maritime law, we apply this same standard. Milstead v. Diamond M Offshore, Inc. 95-2446 (La.7/2/96), 676 So.2d 89. The fact finder has wide discretion in determining damages, and appellate courts should rarely disturb such an award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993).

The defendants assign error on the part of the trial court for: (1) holding defendants liable for failure to rescue considering that the Gulf Brent searched for plaintiff from the moment he was deemed overboard and that it did not cease searching until the Coast Guard arrived; (2) striking defendants' liability expert and excluding Coast Guard records; (3) finding plaintiff proved he suffered a Post Traumatic Stress Disorder ("PTSD") as a result of not being rescued, as opposed to going overboard; (4) holding defendants liable for retaliatory discharge and awarding damages thereon; (5) ruling on evidentiary matters contrary to the law as well as awarding prejudgment interest on future damages.

The plaintiff assigns error on the part of the trial court for: (1) failing to award special damages for lost wages and loss of earning capacity; (2) failing to award special damages for future medical expenses; (3) failing to award general damages for disability.

DISCUSSION:

Duty of Search and Rescue

The central issue is whether the defendant, as master of the vessel, violated either a statutory or jurisprudential duty owed to this seaman who was lost for a period of time. A corollary issue is to what degree, if any, does the commencement of a Coast Guard search lessen the duty a ship owes to its seaman. The answer to this latter question, as elucidated below, is that it does not.

Prior to the time of the Roman Empire the duty to search and rescue a seaman gone overboard was recognized as a natural obligation of the master of the ship. This is due to the fact that there are few other peaceful pursuits in which the dominion of the superior is so absolute and the dependence of the subordinate so complete, as in that of a sailor upon a vessel at sea. A seaman owes obedience while on shipboard to his superior officers and is bound to execute their lawful commands even at the risk of danger to his person or life. If thrown into the sea while aboard he is completely dependent on the members of the crew for immediate aid. 1B Benedict on Admiralty Section 30.

The general maritime law in the United States, which is jurisprudential, recognized a legal duty for a maritime employer to search and rescue his seamen, who are considered "wards" of the admiralty courts. Harris v. Pennsylvania R.R., Co., 50 F.2d 866, 868-869 (4th Cir.1931); Reyes v. Vantage SS Company, Inc., 609 F.2d 140, 143 (5th Cir.1980).

Since the inception of this jurisprudence, however, legislation has been passed regarding the action required when a seaman has gone overboard. We note that when Congress passed the Jones Act, 46 U.S.C.App. § 688, et seq., its motivation was twofold: first, to provide an action to compensate seaman for their injuries; and second, to offer incentives to their employers to reduce dangers and to operate safely. Gaston v. Flowers Transp., 866 F.2d 816, 1989 A.M.C. 1761 (5th Cir.1989).

In 1983, a substantial legislative revision of the United States Code Title 46, entitled "Shipping," recognized the Coast Guard's greater regulatory authority.³ A central purpose of the United States Coast Guard is to save life. 14 U.S.C.A. § 2. A specific duty to rescue life and property is found in 14 U.S.C.A. § 88.

Nevertheless, the Coast Guard and its regulations do not limit the master of a vessel's duty to search and rescue. Reyes, supr...