Grab v. Traylor Bros., Inc.

Citations: 796 F. Supp. 2d 788; 2012 A.M.C. 498; 2011 U.S. Dist. LEXIS 65546; 2011 WL 2471298Docket: Civil Action 09-3439, 09-4128, 09-7387, 10-838

Court: District Court, E.D. Louisiana; June 21, 2011; Federal District Court

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Plaintiffs Jacob Kinchen and Lary Scott Abshire filed a lawsuit against Boh Bros. Construction Co. L.L.C. and a Joint Venture comprising Traylor Bros. Inc., Kiewet Southern Co., and Massman Construction Co., related to a July 3, 2008, boating accident that resulted in their injuries. The defendants were contractors involved in constructing the I-10 Twin Span bridge over Lake Pontchartrain for the Louisiana Department of Transportation and Development (DOTD). The Joint Venture erected four survey towers in the lake, which were marked with navigational lights and stood above the water line. On the date of the accident, Kinchen, operating a crew boat employed by Boh Bros., collided with one of the survey towers, TKM-14. Kinchen, who was not a licensed captain, had obstructed visibility due to tires placed on the bow of the boat. The trial, conducted in three segments, focused on determining Abshire's seaman status, as well as Jones Act claims against Boh Bros. and unseaworthiness claims against the Joint Venture. The Jones Act allows injured "seamen" to file claims, and the plaintiffs are responsible for proving their seaman status as clarified in the Supreme Court case Chandris, Inc. v. Latsis, which emphasizes that a land-based maritime worker's status is determined by their relationship to the vessel and not solely by their location at the time of injury.

The Chandris test for seaman status under the Jones Act requires two criteria: (1) the employee's duties must contribute to the vessel's function or mission, and (2) there must be a substantial connection to a vessel in navigation, assessed by both duration and nature. On March 15, 2011, the court ruled Kinchen as a Jones Act seaman, while denying Abshire's motion due to unresolved factual questions about his duration of connection. Boh Bros. seeks to have the court reconsider Kinchen's status, arguing he lacked a substantial connection because he did not "go to sea" and was not exposed to maritime perils, as he did not sleep, eat, or sail aboard the BIG MAC barge. However, citing Harbor Tug & Barge Co. v. Papai, the Supreme Court emphasized that the key inquiry focuses on whether an employee's duties take them to sea and expose them to maritime risks. The Fifth Circuit clarified that Papai did not establish a new test for seaman status but reiterated the principles from Chandris, emphasizing that the Jones Act is meant for sea-based employees facing unique maritime hazards. Consequently, Kinchen's lack of traditional seafaring activities does not negate his seaman status, as he spent over 30% of his time on the vessel and faced regular exposure to maritime perils.

In determining seaman status under the Jones Act, the court adopted a guideline suggesting that a worker must spend at least 30% of their time on a vessel in navigation. This rule is not rigid and can be adjusted based on specific circumstances. The inquiry into seaman status is fact-specific, dependent on the nature of the vessel and the worker's relationship with it. The "no snapshot" doctrine requires courts to consider a maritime employee's intended relationship with a vessel at the time of injury, rather than solely at the moment of injury. 

In Abshire's case, he was injured on his first day working for Boh Bros. as an ironworker aboard the BIG MAC for a bridge construction project. Testimony from the project superintendent indicated that Abshire would have worked on the project for approximately seven months had he not been injured. His role involved significant responsibilities on both the BIG MAC and the bridge structure, including erecting work platforms and assisting with navigation. Testimony from his supervisor and other crew members suggested that Abshire would likely spend about 60% of his time on the BIG MAC and 40% on the bridge. However, conflicting testimony indicated that other crew members, including apprentices, spent varying amounts of time on the BIG MAC and bridge. This discrepancy highlights the complexity of establishing the proportion of time spent on the vessel versus other duties.

Martin did not provide details on the time Abshire spent on the bridge structure during the setting of caps or platforms. However, he indicated that Kinchen, a journeyman ironworker, spent 30% to 40% of his time on the barge throughout the project. Kinchen's testimony regarding Abshire's time allocation between the BIG MAC and the bridge structure pertains to the overall project, while Martin's testimony focused on girder setting work done twice a week. Kinchen, Grab, and Harvey's testimonies collectively suggest that Abshire spent at least 30% of his time on the BIG MAC, thus fulfilling the duration requirement of the Chandris test, categorizing him as a Jones Act seaman.

The plaintiffs, Kinchen and Abshire, have separate claims against Boh Bros. for Jones Act negligence and unseaworthiness. The claims are based on allegations that Kinchen's vision was obstructed by tires on the crew boat's push knees, the crew boat lacked navigational aids, and Kinchen was inadequately trained to operate the boat. Under the Jones Act, an employer is liable for damages if their negligence, including that of their employees, caused a seaman's injury. The employer is held to a standard of ordinary prudence, and a seaman can recover damages if the employer's negligence is a contributing factor to the injury, with a very low threshold for causation described as "slightest" or "featherweight."

The Jones Act employs a comparative negligence standard, whereby a seaman's recovery is reduced in proportion to their fault if they contributed to their injury through a lack of ordinary prudence. The reasonable person standard in such negligence cases is that of a reasonable seaman under similar circumstances. To establish a seaman's comparative negligence, the employer must demonstrate that the seaman's negligence played even the slightest role in causing the injury.

Liability for unseaworthiness is distinct from negligence. The shipowner has an absolute duty to provide a seaworthy vessel, independent of the duty to exercise reasonable care under the Jones Act, meaning no negligence need be shown. A vessel does not have to be accident-free to be considered seaworthy; rather, the injured seaman must prove that the owner failed to provide a vessel, including its equipment and crew, that is reasonably fit and safe for its intended use.

An isolated negligent act by a fellow seaman does not constitute unseaworthiness of a vessel; however, a series of negligent acts over time may lead to such a determination. In the case of Jackson v. OMI Corp., evidence showed that Martin, an employee, affixed tires to the crew boat's push knees, obstructing the pilot’s vision significantly. Testimonies indicated that the tires blocked 60% to 75% of the crew boat operators’ visibility. Despite knowing the obstruction was dangerous, Boh Bros., the employer, failed to address the issue. This negligence contributed to the crew boat's unseaworthiness. The operator, Kinchen, collided with another vessel (TKM-14) due to this obstruction, leading the court to find Boh Bros. liable for both Jones Act negligence and unseaworthiness. However, Kinchen's recovery was reduced by 50% due to his own comparative negligence, as he was aware of the TKM-14's presence and distracted while piloting the vessel. Additionally, plaintiffs' claims against the Joint Venture were analyzed under general maritime tort law principles, which hold a tortfeasor accountable only to those to whom a duty is owed.

Duty is determined by the foreseeability of the risk associated with negligent conduct. For a plaintiff to establish liability, they must prove the existence of a duty, a breach of that duty, an injury, and a causal link between the defendant’s actions and the injury. Plaintiffs claim that the Joint Venture failed to ensure the TKM-14 was visible. Witnesses testified that on July 3, 2008, a clear day, the survey towers were visible from about a mile away. The Joint Venture was not required to mark the TKM-14 or designate the work area as restricted under relevant regulations. Kinchen, who collided with the TKM-14, attributed the accident to his inability to see the tower due to tires on the crew boat. This indicates no causal connection between the Joint Venture's actions and the plaintiffs' injuries. The injuries sustained by Abshire resulted from the combined negligence of Kinchen and the vessel's unseaworthiness due to actions by another employee. Consequently, Abshire can recover 100% of his damages from Boh Bros., which is liable for the accident. However, Kinchen's recovery is reduced by 50% for his own comparative negligence. All claims against the Joint Venture are dismissed.