Juan Lopez v. Marine Drilling Company

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

02-1223

JUAN LOPEZ

VERSUS

MARINE DRILLING COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT
PARISH OF VERMILION, NUMBER 70182
HONORABLE MARCUS A. BROUSSARD, JR.
**********

GLENN B. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Billie Colombaro Woodard, Oswald
A. Decuir, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges.

Thibodeaux, J., dissents and assigns written reasons

Decuir, J., dissents for reasons assigned by Judge Thibodeaux.

AFFIRMED.

George Arthur Flournoy
Flournoy, Doggett & Losavio
P. O. Box 1270
Alexandria, LA 71309-1270
(318) 487-9858
COUNSEL FOR PLAINTIFF/APPELLANT
Juan Lopez

Paul G. Moresi Jr.
Moreis & Moresi
P. O. Box 1140
Abbeville, LA 70511-1140
(337) 898-0111
COUNSEL FOR PLAINTIFF/APPELLANT
Juan Lopez

Douglas C. Longman Jr.
PERRET, DOISE, APLC
P. O. Drawer 3408
Lafayette, LA 70502-3408
(337) 262-9000
COUNSEL FOR DEFENDANT/APPELLEE
Baroid Drilling Fluids,
Baroid Division of Dresser Industries, Inc.

Dean Anderson Cole
LaBorde & Neuner
P. O. Box 52828
Lafayette, LA 70505-2828
(337) 237-7000
COUNSEL FOR DEFENDANT/APPELLEE
Tidewater Marine, Inc.

Charles A. Mouton
Preis, Kraft & Roy
P. O. Drawer 94-C
Lafayette, LA 70509
(337) 237-6062
COUNSEL FOR DEFENDANT/APPELLEE
Marine Drilling Company
Mar-Drill, Inc.

Gremillion, Judge.

The plaintiff, Juan Lopez, appeals the judgment of the trial court

representing a jury verdict finding no liability on the part of the defendants, Tidewater

Marine, Inc., Marine Drilling Company, and Baroid Drilling Fluids, Baroid Division

of Dresser Industries, Inc., and dismissing his claims against them with prejudice. We

affirm.

FACTS

Lopez was employed as a mechanic trainee by Marine Drilling on the

Drilling vessel MARINE 300, in state navigable waters off the coast of Vermilion

Parish, Louisiana. In the early morning hours of November 28, 1996, he suffered an

injury to his left knee, while disembarking from the M/V SHEFFIE TIDE at a dock

run by Baroid in Freshwater City, Louisiana. The M/V SHEFFIE TIDE was owned

and operated by Tidewater and was chartered by W & T Offshore, Inc. to provide

services in connection with its offshore drilling contract with Marine Drilling.

Lopez filed suit against Marine Drilling and Baroid seeking damages for

his injury. In response, Marine Drilling answered and filed a third-party demand

against Tidewater. Thereafter, Lopez filed a supplemental petition adding Tidewater

as a defendant. Following a jury trial, the jury rendered a verdict finding no liability

on the part of Marine Drilling, Baroid, or Tidewater in causing Lopez’s accident.

Judgment was rendered by the trial court in their favor dismissing his claims against

them with prejudice. The trial court further dismissed the third-party demand of

Marine Drilling against Tidewater with prejudice. This appeal by Lopez against

Marine Drilling and Tidewater followed.

1

ISSUES

On appeal, Lopez argues that the jury erred as a matter of law in finding

that neither Marine Drilling nor Tidewater breached their duties owed to him, and, in

the alternative, that its conclusion was manifestly erroneous.1

LAW

The law pertaining to a Jones Act claim was laid out by the supreme

court in Foster v. Destin Trading Corp., 96-0803, pp. 3-4 (La. 5/30/97), 700 So.2d

199, 208 (on rehearing):

The Jones Act allows an injured seaman to bring a negligence suit
against his employer. 46 U.S.C.App. § 688 (1994). The employer’s
potential liability extends to all personal injuries arising during the
course of the seaman’s employment but proof of negligence is essential
to recovery. See id. Such negligence may arise in many ways including
the failure to use reasonable care to provide a seaman with a safe place
to work, the existence of a dangerous condition on or about the vessel,
or any other breach of the duty of care. See Davis v. Hill Engineering,
Inc., 549 F.2d. 314, 329 (5th Cir.1977); 1 Thomas J. Schoenbaum,
Admiralty and Maritime Law § 6-21, at 312 (2d ed.1994). The duty of
care owed by an employer under the Jones Act is that of ordinary
prudence, namely the duty to take reasonable care under the
circumstances. Gautreaux v. Schurlock Marine, Inc., 107 F.3d 331, 335-
36 (5th Cir.1997). The seaman bears the evidentiary burden of proving
that a breach of the duty owed by the employer was a cause of his
injuries. However, a seaman need only present “slight evidence” that his
employer’s negligence caused his injuries in order to reach the jury or to
be sustained upon appellate review. Id. at 334-35. The employer can
introduce evidence of the seaman’s own negligence to reduce damages
through application of pure comparative fault principles. Like his
employer, the seaman must meet the standard of ordinary prudence by
acting as a reasonable seaman would act under the same circumstances.
Id. at 339.

1
Although Lopez’s Motion and Order for Devolutive Appeal does not designate which
parties he is appealing against, he notes in his appellate brief that he is not appealing the judgment
rendered in favor of Baroid. As a result, Baroid has filed a Motion for Partial Dismissal of Appeal
seeking to have his appeal against it dismissed. The motion was referred to the merits of this appeal.
In light of Lopez’s failure to appeal the judgment against Baroid, its motion to dismiss his appeal
against it is hereby granted.

2

General maritime law is settled that a shipowner owes the duty of

exercising reasonable care towards persons lawfully aboard its vessel, who are not

members of the crew. Kermarec v. Compagnie Generale Transatlantique, 358 U.S.

625, 79 S.Ct. 406 (1959); Dean v. Ramos Corp., 00-1621 (La.App. 5 Cir. 2/28/01),

781 So.2d 796. Included in this duty is the provision of a safe manner of ingress and

egress. Guillory v. Cameron Offshore Servs., Inc., 422 So.2d 592 (La.App. 3 Cir.

1982).

In order to succeed in his claim, Lopez must prove that either Marine

Drilling or Tidewater owed him a duty, that there was a breach of their duties, that he

suffered an injury, that there was a causal connection between Marine Drilling and

Tidewater’s conduct and his injury, and that this harm was reasonably foreseeable.

The applicable standard of review in Jones Act and general maritime cases is manifest

error. Ates v. Mallard Bay Drilling Inc., 01-836 (La.App. 3 Cir. 12/12/01), 801 So.2d

653, writ denied, 02-0100 (La. 3/15/02), 811 So.2d 915.

In both instances, Lopez argues that Marine Drilling and Tidewater both

violated their own safety policies by failing to provide him with a gangway as a means

of egress from the M/V SHEFFIE TIDE. However, after reviewing the record in its

entirety, we find that the jury was presented with differing views of the evidence

concerning whether Lopez was provided with a safe means of egress and as to the

cause of his accident. Thus, pursuant to Stobart v. State, Through DOTD, 617 So.2d

880 (1993), we cannot say that it was unreasonable for the jury to conclude that

neither Marine Drilling nor Tidewater was liable to Lopez and that the sole cause of

his accident was his own negligence.

3

SAFE MEANS OF EGRESS

Lopez presented evidence establishing that it was unsafe for him to

disembark from the M/V SHEFFIE TIDE by climbing over the gunwale of the vessel

and then climbing down the tires chained to its stern in order to reach the dock, which

was located approximately two to three feet below the vessel. Two experts testified

for him on the issue of whether Marine Drilling and Tidewater breached their duties

of providing him with a safe means of disembarking from the M/V SHEFFIE TIDE.

Frank Buck, a retired captain and former employee of Tidewater, was accepted as an

expert in the field of safe motor vessel operations. Robert Borison, the president of

Total Safety Services, Inc., was accepted as an expert in safe work practices.

Buck testified that Lopez’s accident would not have occurred had he been

provided a gangway to disembark from the M/V SHEFFIE TIDE. He opined that

crews typically do not climb over a vessel’s stern and then down the tires in order to

access the dock. He stated that gangways are vital for the safety of passengers and

that all of the Tidewater vessels he worked on, as far back as 1964, and other

companies’s vessels, were provided gangways. Buck explained that it is the

responsibility of the captain to ensure the safe ingress and egress of passengers from

his vessel. However, he did not feel that the use of gangways should be left to the

captain’s discretion, rather, he stated that a company’s rules should mandate their use.

Buck testified that captains typically do not carry gangways on crew

boats, but explained that they are easy to disassemble and could be left at the location

where the crew boats loaded and offloaded passengers. However, he admitted that a

member of the vessel would have to exit the vessel over the stern and climb down the

4

tires in order to set up the gangway. This, he stated, did not make the practice safe.

He further stated that he had captained vessels out of Freshwater City, and said that

the tides there could fluctuate as much as two feet. He did not dispute a witness’s

statement that there was five to six feet between the deck of the M/V SHEFFIE TIDE

and the dock.

Buck inspected the M/V SHEFFIE TIDE, which is now the M/V PEGGY

LEE, and stated that the setup of tires on her stern was typical. He further admitted

that the M/V SHEFFIE TIDE was a Coast Guard inspected vessel, but stated that he

was unaware of any Coast Guard regulation requiring this type of vessel to carry a

gangway. He opined that the type of gangway shown to the jury would be adequate,

although he was unsure if its twelve foot length would be suitable for a five to six foot

drop in elevation. He measured the free board of the M/V SHEFFIE TIDE, the

distance between her deck and the water’s surface, which was approximately seven

feet, and determined that the gunwale was twelve and one-half inches from the deck.

He also measured the tires, which were approximately four feet from top to bottom.

However, Buck testified that he did not calculate the steepness of the angle if a

gangway was used from the stern of the M/V SHEFFIE TIDE, and the vessel rode

four feet above the dock’s surface. He admitted that it might be too dangerous to use

a gangway if the angle from the vessel to the dock was too steep.

Borison opined that an employer’s most important responsibility is to

provide its employee with a means of safe ingress and egress on the job. He further

opined that all employers have the responsibility of providing gangways for their

workers on rigs, and that fault in this incident belonged to Marine Drilling and

5

Tidewater for not providing Lopez with one. He testified that using the tires to climb

down the M/V SHEFFIE TIDE was a violation of Marine Drilling’s own accident

prevention and investigation policy. This policy states, “Marine Drilling’s Safety

Program is based on recognizing and eliminating the two main accident causes; unsafe

acts and unsafe conditions.” Attached to Marine Drilling’s manual is the International

Association of Drilling Contractor’s (IADC) Accident Prevention Reference Guide,

which states in part, “K. Personnel should not use boxes, chairs, sawhorses, tables,

etc., to improvise a ladder.” Borison stated that James Guidroz, the Marine Drilling

supervisor on board the M/V SHEFFIE TIDE, was responsible for ensuring that all

Marine Drilling employees exited the vessel safely. However, he admitted that he did

not refer to the IADC’s Accident Prevention Reference Guide’s crew boat safety

procedures before reaching his opinion. Nor did he have any opinion about the

guide’s failure to require drilling contractors to provide gangways. Borison

testified that Lopez’s accident was caused by an unsafe condition, the lack of a

gangway, and not from any action on his part. He stated that the unsafe condition

could have been eliminated easily and inexpensively during the five month period that

Marine Drilling used the Freshwater City dock. He further differentiated between a

step and a jump, describing a step as when both the trailing and leading foot are in

contact with the area being left/reached. He stated that a jump occurs when the

leading foot is in contact with the area trying to be reached, but the trailing foot is no

longer in contact with the area left. He described the difference between a step and

a jump as typically being twelve to fifteen inches. He opined that the two to three foot

drop from the tires on the M/V SHEFFIE TIDE’S stern to the dock would be a jump

6

rather than a step.

Borison testified that he did not feel that it was safe for workers to exit

a vessel, which was three to five feet above the dock and one to three feet from the

dock, by climbing down the tires. He stated that he would rather they use a gangway.

He further opined that climbing over the stern was not how workers commonly

disembarked from small crew boats during the 1990’s. Borison testified that he

visited every dock in Intracoastal City in 1992, and determined that, of the ten to

fifteen docks he visited, only two did not provide gangways. Had he been on board

the M/V SHEFFIE TIDE, Borison stated that he would have disembarked in the same

manner as Lopez. He further stated that he could not recall a crew boat ever having

a gangway as part of its appurtenances and he admitted that swing ropes and personnel

baskets were used all the time in the oil field, and that both were very hazardous.

Lopez testified that workers routinely disembarked from the crew boat

by climbing down tires located at the stern of the vessel and then crawling or jumping

down onto the dock. He stated that some of his co-workers sat on the tires before

getting down. He testified that the tires were welded onto the vessel with chains and

were securely fastened. He likened climbing down the tires to climbing down a ladder

and agreed that it could be performed without accident, if done carefully.

Lopez stated that the M/V SHEFFIE TIDE was not tied up flush against

the dock and that there was approximately one and one-half to two feet between the

vessel and the bulkhead of the dock. He further stated that he was hanging by his

knee above the water after he fell. However, in his December 4, 1996 statement, he

stated that the M/V SHEFFIE TIDE was right up against the dock when he fell, but

7

that it rode four feet above the dock. He also stated that he landed on his back on the

ground comprising the dock. However, during his testimony, he denied landing on

his back, stating that he would have cut his back up had he done so.

Scott Causey, a derrick hand for Marine Drilling in 1996, testified that

no gangway was provided for them to exit the M/V SHEFFIE TIDE, and that the only

way to exit the vessel was by climbing over the gunwale located at the stern, stepping

onto the tops of the tires, and then climbing down to the dock. He stated that the M/V

SHEFFIE TIDE was pushed up against the dock and the tires were against the dock,

although not perfectly flush against it. Causey testified that he sometimes jumped

down from the tires onto the dock, but that he remembers the vessel riding high in the

water on the date of Lopez’s accident, approximately two to three feet above the dock.

Keveran Ned, a Marine Drilling employee in 1996, testified that

employees were never provided a gangway during the time Marine Drilling used the

Baroid dock at Freshwater City. He stated that the only way to get off the vessel was

to climb over the stern and down the tires. He stated that there was approximately a

two to three foot drop from the tires to the dock, and that this was normal depending

upon the tides. Ned testified that he normally jumped down from the tires to the dock

prior to Lopez’s accident, but that he stopped doing so afterwards. He stated that

women getting off the vessel would sit down on the top of the tires before climbing

down. Although he testified that he had never hurt himself while disembarking from

crew boats in this manner, he stated that the practice was dangerous. If he had been

provided a gangway, he said that he would have used it.

8

John Dixon, an offshore cook, testified that no gangways were ever

provided for Marine Drilling’s workers at the Baroid dock. After learning of Lopez’s

accident, he stated that he called the Coast Guard in Port Arthur, Texas, and asked if

they had jurisdiction to require crew boats to provide gangways. If a gangway was

provided, he testified that a captain would require his passengers to use it. Dixon

further stated that he had never been hurt disembarking from a vessel in this manner,

and he felt that a worker, who was careful, could disembark in this fashion without

suffering an accident. However, he did not feel that the practice was safe.

Additionally, he testified that he was not present when the accident occurred, and that

he did not know where the M/V SHEFFIE TIDE docked the morning of the accident.

A host of witnesses testified that the manner provided for Lopez to

disembark from the M/V SHEFFIE TIDE was safe. Baroid employees, Gary Humble,

manager of the Freshwater City dock, and Pivon Dupius, facility coordinator and

operations supervisor of the dock, both testified that crew boat companies operating

out of the dock customarily loaded and offloaded passengers in this manner.

James Guidroz, a driller for Marine Drilling, was on the M/V SHEFFIE

TIDE the morning of Lopez’s accident. He testified that the crew boat was tied up

flush to the dock, but was riding approximately two and one-half to three feet above

the dock, which he stated was normal. He was assisting Randy Malenca, an injured

worker, down from the tires located at the crew boat’s stern at the time of Lopez’s

accident. He stated that there was no gap between the M/V SHEFFIE TIDE and the

dock, otherwise Malenca would have fallen into the water.

Guidroz testified that he disembarked from the crew boat by stepping

9

over the gunwale and down onto the top of the tires located there. He stated that the

then put his foot into the middle of a tire, before stepping down onto the dock. He

testified that he has been getting off crew boats in this manner for the entire twenty-

five years that he has worked offshore, including crew boats operated by companies

other than Tidewater. However, he stated that he will use a gangway if provided and

if safe to do so.

Ronnie Lambert, a maintenance supervisor for Marine Drilling, testified

that he has boarded and exited crew boats by climbing down tires located at their

sterns for the sixteen years he has worked offshore. He stated that rig workers are

commonly not provided with gangways to access vessels, and he could think of only

one dock where an oil company had a permanent gangway. He further stated that he

could safely board or exit a crew boat in this manner if he was careful.

Sam Galle, an engineer and deck hand aboard the M/V SHEFFIE TIDE

at the time of Lopez’s accident, testified that he has worked on crew boats since 1978,

and that crews generally boarded and exited the vessels by climbing over the stern via

the tires located there. He stated that gangways are rarely used by crew boats of this

size and that he has seen situations where the use of a gangway would be unsafe. He

further testified that the M/V SHEFFIE TIDE is a Coast Guard inspected vessel, and

that inspectors from the Coast Guard boarded the vessel in this same fashion.

Galle testified that the M/V SHEFFIE TIDE was backed up flush with

the Baroid dock on the date of Lopez’s accident, and that there was no space between

the tires and the bulkhead. He described the slip where the boat was tied up as a dead-

end slip, and stated that there was no wave action in the slip. Galle stated that he got

10

off the vessel by climbing over the gunwale and then down the tires to the dock. He

estimated that the M/V SHEFFIE TIDE rode five feet above the dock. He further

could recall no problems with the lighting at the dock.

Malenca, a Marine Drilling roustabout, testified that he had injured his

knee the week prior while working on the rig. He stated that he disembarked from the

M/V SHEFFIE TIDE by sitting down on the gunwale and then pushing himself onto

the tires. He stated that two guys on the dock helped him off the tires so that he would

not have to jump down. He testified that the tires were approximately three feet above

the dock, which he stated was normal. Malenca stated that he exited crew boats in this

manner at other locations for Marine Drilling and that he has never complained of this

practice being unsafe, nor has he heard anyone else doing so.

Robert Arceneaux, the Director of Health, Safety, and Environmental

management for Tidewater and a former crew boat captain, testified that safety is

paramount to Tidewater. However, he stated that Tidewater’s safety standards do not

require its small crew boats, such as the M/V SHEFFIE TIDE to carry gangways. He

testified that Tidewater has approximately 250 vessels working in the Gulf of Mexico,

of which approximately ten are of the 100 foot crew boat class, like the M/V

SHEFFIE TIDE. Arceneaux testified that smaller crew boats do not carry gangways

because they have limited deck space and because they ride higher in the water, such

that the angle created by a gangway might be so steep that it would not be prudent to

use.

Arceneaux testified that Tidewater’s policy relating to gangways was

11

outlined in its 1995 Safe Operations System Manual. In the section dealing with

access to vessels, it states, “Gangways with handrails or steps with handrails should

be provided where practical. If not practical, extreme caution should be used.” The

1972 Manual of Safe Work Practices provided, “Gangways will be provided where

practical.” Arceneaux stated that the responsibility for the safety and well being of

the vessel, crew, and passengers rests with the vessel’s master. This includes the

determination of whether it would be practical to use a gangway, if provided. He

further testified that it is the vessel owner’s responsibility to know, maintain, and

support company safety policies. However, he stated that Tidewater and other

operators believe that climbing down tires located off the stern of a vessel is a safe,

practical, and effective practice. He testified that Coast Guard inspectors board the

smaller crew boats in this fashion, as do officials from the American Bureau of

Shipping, and other government officials.

Arceneaux further stated that Tidewater’s policy has never required its

crew boats to use gangways. In its Safeop Lesson Plans, pertaining to persons in

addition to the crew, it states that mates should, “Advise to use care when leaving

boat; always use gangway.” Arceneaux testified that the lesson plans have never

constituted Tidewater policy, rather, they are training guidelines and safety meeting

topics. He further stated that Tidewater has larger vessels which do carry gangways,

and that the lesson plans were written to try and address all of the needs of all of its

vessels, large and small. Finally, Arceneaux testified that he had no problem with his

crew climbing down a two to three feet drop to the dock when he was a captain, and

that he still has no problem with this practice now that he is a safety officer.

12

After reviewing the evidence presented, we find that the jury was clearly

presented with differing views pertaining to whether Marine Drilling and Tidewater

provided Lopez with a safe means of egress from the M/V SHEFFIE TIDE. Lopez’s

witnesses testified that requiring him to climb over the stern of the crew boat and then

down the tires located there before having to jump down to the dock, a distance of

approximately two to three feet, did not meet this requirement. However, Tidewater

and Marine Drilling’s witnesses testified that disembarking from a vessel in this

fashion has been a normal practice in the oilfield for at least twenty-five years, and

that even the Coast Guard inspectors used this means in order to access the vessel

during its annual inspection.

Finally, what constitutes a means of safe egress is a fact driven

determination based on the size of the vessel, its distance from the dock, its height

above the water, and the size of the provided gangway. The testimony regarding the

height at which the tires were located above the dock on the night in question varied

from two to five feet. Depending on the actual height that the M/V SHEFFIE TIDE

was riding above the dock, there was testimony that the use of a gangway may have

been more dangerous than climbing over the vessel’s stern. Finally, considering the

fact that all of the other passengers on board that night were able to safely disembark

over the stern, we cannot say that the jury was manifestly erroneous in finding that

Tidewater and Marine Drilling did not breach their duty of providing Lopez with a

safe means of egress from the M/V SHEFFIE TIDE.

COMPARATIVE NEGLIGENCE

13

Lopez further argues that the jury’s verdict finding that he was the sole

cause of his accident is manifestly erroneous. As stated previously, “the seaman must

meet the standard of ordinary prudence by acting as a reasonable seaman would act

under the same circumstances.” Foster, 700 So.2d at 208.

Lopez testified that he and other members of the day shift were allowed

to leave the MARINE 300 early because of Thanksgiving. He stated that the M/V

SHEFFIE TIDE reached the Baroid dock at Freshwater City at around midnight on

November 28, 1996. On the morning in question, he stated that he was carrying a

duffle bag filled with his belongings, including some breakable items. To protect

these, Lopez stated that he set his bag down on the gunwale before climbing over it

and stepping onto the rim of a tire, which was hanging approximately one foot below

the vessel’s deck. In describing what happened next, he stated, “Then I reached over

like that, grabbed my bag, and I squatted down to lower myself to let my bag go like

that. And when I let go of my bag, my foot went; and then all I remember I was

hanging there.”

Lopez testified that the duffle bag weighed approximately forty to fifty

pounds. Although he admitted that he could have dropped the bag down onto the

dock, handed it down to someone, or asked someone to hand it down to him, he stated

that he did not do so because no one else asked for help. Lopez further testified that

he thought he grabbed the duffle bag with one hand, because if he had grabbed it with

both hands and tried to pull it over, he would have slipped. However, in his December

4, 1996 statement, he stated that he reached over the railing and grabbed his duffle bag

with both hands. He also disagreed with the testimony of Ned, who testified that

14

Lopez stepped off the tire and that the vessel was flush against the dock. When

questioned if the accident would have happened if he had either dropped his bag onto

the dock before climbing over or asked someone for help, Lopez stated, “Probably

not.”

Causey testified that he was helping Malenca off the M/V SHEFFIE

TIDE when he looked down and saw that Lopez had fallen and was hanging upside

down from a tire. When he got off the crew boat, he stated that he climbed over the

gunwale and was facing the vessel’s bow as he climbed down the tires. With regard

to duffle bags, Causey stated that they normally placed all of the bags at the back of

the vessel and then handed them down once everyone had disembarked. He stated

that it was safer to hand the bags down. Although he could not recall how Lopez’s

bag got off the M/V SHEFFIE TIDE, he stated that he would have handed it down to

him had he asked for help.

Ned was listed as a witness to the accident in Marine Drilling’s first

report of injury. On the morning in question, he stated that he was standing behind

Lopez, waiting to get off of the M/V SHEFFIE TIDE. He stated that Lopez stepped

over the gunwale and onto the tires and was facing away from him, so that he was

looking at the back of Lopez’s head and shoulders. He stated that Lopez was carrying

his duffle bag in one hand and his overalls in his other hand. He understood that

Lopez intended to step onto the tire and then step forward onto the dock, but he stated

that Lopez just disappeared. Ned yelled and jumped down from the vessel to help

Lopez, who was hung up by his foot in the tire.

Dixon testified that he would sometimes hand his bag down to someone

15

else when he was getting off a crew boat, or that he would have someone hand it down

to him after he disembarked. He stated that he never tried to get down while holding

his bag in his hand because he considered this unsafe.

Guidroz did not see Lopez’s accident because he was helping Malenca

down from the vessel. However, he stated that he does not hold onto his luggage

while exiting a crew boat. He testified that he either throws it down onto the dock or

he hands it down to someone already on the dock. Lambert testified that he took a

statement from Lopez on December 17, 1996, which states: “Rec. statement by phone

12-17-96 - Departing crew boat with baggage Employee put foot on edge of tire - foot

slipped into tire. Employee fell.” Lambert stated that he read this statement back to

Lopez, who agreed that it was correct. He further stated that his impression was that

Lopez was facing the dock when his foot slipped.

Galle testified that he tied up the M/V SHEFFIE TIDE on the morning

in question and then assisted the Marine Drilling workers off the vessel. He did not

see Lopez’s accident; however, he stated that someone told him about the accident and

then he immediately reported it to his captain. He stated that he filled out an accident

report at the request of Marine Drilling at a later time. The statement provides, “On

11-28-96 one man stepped of (sic) the Sheffie Tide. Stepped in a hole on the dock

while getting off the Sheffie Tide. I Sam Galle asked the man if he was O.K., and he

stated to me that he was O.K. This incident happened during crew change.” Galle

stated that the person who was involved in the accident did not mention anything

about the incident involving the M/V SHEFFIE TIDE or a tire. However, Galle could

not say if the person described in the accident report was Lopez.

16

Malenca testified that he did not see Lopez’s accident because he was

being helped down from the M/V SHEFFIE TIDE at the same time that Lopez was

disembarking. He stated that Lopez was already on the ground by the time that he got

down onto the dock. However, had he not been injured, Malenca stated that he would

have put his bag down, placed one foot on the tire, and then climbed down to the

dock.

Buck testified that he understood that Lopez faced the cabin of the M/V

SHEFFIE TIDE, turned around, and then backed up. He stated that he then stepped

onto the tire and put his foot down in the bottom rim of the tire. At this point, when

he started to lean over, his foot slipped and went into the tire, causing him to become

hung up in the tire. Buck stated that a worker disembarking in this manner should

always hold onto something while doing so, and that it would be unsafe for a worker

to get off of a crew boat without holding on. He further testified that it would be very

foolish for a worker to jump down from the tires at night, especially with something

in each hand.

Borison testified that he did not think Lopez had his duffle bag in his

hand while he was trying to disembark. However, he stated that it would not matter

if he did, since Lopez’s accident could have occurred in the same manner with or

without the duffle bag. He further testified that it would be unsafe for Lopez to try

and climb down from the crew boat while carrying his duffle bag in his hand.

The jury was presented with three possible scenarios as to the cause of

Lopez’s accident. In his statement, Lopez said that he reached over and grabbed his

17

duffle bag with both hands, however, at trial, he stated that he only reached over with

one hand. He stated that he did not think he would have used both hands because had

he tried to do so he would have slipped, which is exactly what happened. The second

scenario was provided by Ned, the closest thing to an eyewitness in this matter, who

stated that Lopez stepped over the gunwale of the M/V SHEFFIE TIDE while carrying

his coveralls in one hand and his duffle bag in the other hand, and that he then

proceeded to step off the tires onto the dock. This testimony is substantiated by the

statement taken by Lambert on December 17, 1996. The final version is supplied by

Lopez, wherein he placed his duffle bag on the deck of the vessel, stepped over the

gunwale and onto the tire, reached over the gunwale with one hand and picked up his

bag, and then squatted down in order to drop the bag onto the dock, at which time he

slipped and became hung up in the tire.

Considering the conflicting testimony presented as to the exact cause of

Lopez’s accident, we cannot say that the jury was unreasonable in finding that neither

Marine Drilling nor Tidewater were at fault in this instance. Accordingly, the

judgment of the trial court finding no fault on the part of Marine Drilling and

Tidewater is affirmed. Lopez’s assignment of error is dismissed as being without

merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

The costs of this appeal are assessed to the plaintiff-appellant, Juan Lopez.

AFFIRMED.

18

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

02-1223

JUAN LOPEZ

VERSUS

MARINE DRILLING COMPANY, ET AL.

THIBODEAUX, J., dissenting.

Generally, an appellate court gives great deference to the trier of fact’s

findings as long as its conclusions are reasonable ones. However, as a reviewing court,

we are also guided by the law set out in Stobart v. State, Through DOTD, 617 So.2d

880, 882 (La.1993) and Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989), which adds

“where documents or objective evidence so contradict the witness’s [testimony], . . .

[a] court of appeal may well find manifest error or clear wrongness even in a finding

purportedly based upon a credibility determination.” After examining the objective

evidence, I conclude that Tidewater and Marine Drilling were required to provide safe

egress from the M/V SHEFFIE TIDE. Further, I find no support for defendants’

arguments that their duty to provide safe egress from the vessel via a gangway

depended upon whether the vessel was a small or large crew boat.

Throughout the Tidewater Safe Operations System Manual, Tidewater

promotes safety and precautionary measures to prevent injuries to crew members as

well as other authorized personnel as they move to and from and about the boat.

According to the manual, “the number one cause of injuries on [their] boats has always

been falling down.” Additionally, “[a] high percentage of accidents occur while

vessels are in port at dockside,” as in the case of Mr. Lopez. Mr. Lopez testified as

well as many others that the only means of disembarking the M/V SHEFFIE TIDE was

the tires located on the stern of the boat. In examining this safety manual, it is clear

that this means of disembarking from the boat contradicts the safety measures imposed

by Tidewater.

As a precautionary measure to “Prevent slips, trips, and falls,” the manual

specifically states “Rig gangway,” when disembarking a vessel. Under the “Dockside

Safety” section of the manual, the policy reads: “Gangways should be deployed

whenever practical and secured properly, and should have handrails sturdy enough to

prevent a person from falling off the gangway. Extreme caution must be exercised

when a gangway cannot be deployed.” Additionally, “[a]pproaches to gangways on

the dock and on the vessel should be unobstructed; properly lighted and steps and

platforms to provide access to gangways should not create hazardous conditions.”

When Mr. Lopez was injured, no gangway was provided for safe ingress

and egress from the boat. Mr. Arceneaux asserts a gangway is not required on smaller

crew boats. I find no evidence in the manual that gangways are not required for

smaller crew boats and that the policy provisions differ depending on whether the boat

is smaller or larger. Even if Mr. Arceneaux is correct, there were clearly no handrails

or other apparatus that would assist Mr. Lopez in disembarking from the boat safely.

The failure to attach a gangway was hazardous and Tidewater should have recognized

that injuries may occur without the use of a gangway.

Further, Mr. Arceneaux asserts that limited deck space prevents a

gangway from being placed aboard smaller crew boats. However, a gangway could

have been left dockside without interfering with the deck space. The manual indicates

that crew members should be instructed “to use care when leaving [a] boat; always use

2

gangway.” (Emphasis added). Again, I find no evidence that this rule applies to

specific vessels.

Mr. Arceneaux states that the lesson plans contained within the manual

have never constituted Tidewater policy per se; however, I find it difficult to believe

that Tidewater would trouble itself with producing such an extensive manual on safety

without implementing and following its own policies and guidelines. This argument

has no merit.

The manual also contains policies stating that gangways should be used

whenever practical. Mr. Arceneaux’s testimony indicated that the use of a gangway

is at the discretion of the captain or master of the vessel. Under “Responsibilities of

the Master,” the Master is responsible for the safety and well-being of the vessel’s crew

and any other persons on board, and the safety of the equipment/cargo carried on board

. . . . The master is responsible for knowing and adhering to the provisions of the SOS

[Safe Operations System] manual.” As I read this provision, the master is required to

follow the policies of the manual, including using a gangway, and ensuring safety is

not at his discretion. Even if Mr. Arceneaux is correct in his assertion, Tidewater has

not shown that the use of a gangway, under the circumstances, was impractical.

Further, Mr. Arceneaux provided in his testimony that “Tidewater’s Safe

Operations Manual is a document that was written to give our crews guidance for

operation of their vessels; and it covers everything from our basic policy, where we’re

saying safety is our highest priority, to operation of the vessel.” (Emphasis added).

Additionally, he stated that “we wrote a manual that we hoped would provide

guidelines and address issues for all of our boats.” (Emphasis added). Therefore, it

is clear that Tidewater’s policies apply to all of its vessels, rather than distinguishing

one class of boats from another class, as Tidewater has done as an afterthought and in

preparation for trial of this case.

3

Similarly, Marine Drilling has attached to its manual an Accident

Prevention Reference Guide produced by the International Association of Drilling

Contractors which states that “Personnel should not use boxes, chairs, sawhorses,

tables, etc. to improvise a ladder.” The tires located on the stern of the boat were used

to improvise a gangway and created an unsafe condition despite Marine Drilling’s

policies on safety which guard against “unsafe acts and unsafe conditions.” Using

tires, rather than a gangway, to disembark from a boat is comparable to using one of

the above apparatus to improvise a ladder. Surely, the use of tires, particularly wet

tires, does not equate to the use of a gangway.

Both Tidewater and Marine Drilling are liable for Mr. Lopez’s injuries.

“[G]eneral maritime law imposes on a vessel owner a duty to provide a reasonably safe

means of access for those boarding or leaving the vessel.” Walton v. Cooper/T. Smith

Stevedoring, 97-0100, p. 9 (La.App. 4 Cir. 3/4/98), 709 So.2d 941, 946. Tidewater

failed to provide a gangway, as stated in its safety manual, for safe ingress and egress

from the M/V SHEFFIE TIDE. As a result, Mr. Lopez had no other means of

disembarking from the vessel other than to use the tires located on the boat’s stern.

Tidewater failed to follow its own safety policies. I conclude that Tidewater is sixty-

five percent liable for the injuries of Mr. Lopez.

Marine Drilling is also liable for Mr. Lopez’s injuries. “The Jones Act

employer owes his employee-seaman the duty to provide a safe working area and

proper equipment.” Walton, 709 So.2d at 945. Just as Tidewater had a duty to provide

a gangway for disembarking the boat, Marine Drilling had a duty as employer to ensure

that its personnel worked under safe conditions. Tidewater’s obvious duty to provide

a gangway, however, does not negate Marine Drilling’s duty. According to its safety

regulations, Marine Drilling had a duty to guard against unsafe acts and conditions.

Any hazardous situation present on the vessel and dock was a substantial reason for

4

Marine Drilling to ensure that a gangway was provided. Marine Drilling’s duty to its

employees did not end once its personnel had gone aboard the vessel. For this reason,

I would impose thirty-five percent fault on Marine Drilling.

The majority’s focus on the plaintiff’s comparative negligence is puzzling.

It concludes that “we cannot say that it was unreasonable for the jury to conclude that

neither Marine Drilling nor Tidewater was liable to Lopez and that the sole cause of

his accident was his own negligence.” The trial court’s judgment incorporated the first

three interrogatories on the jury’s Special Verdict form dealing with the negligence of

Marine Drilling, Tidewater, and Baroid Drilling. The judgment then read,

“[c]onsidering the above findings having been made by the jury, the Court enters the

following judgment.” The jury never reached Interrogatory 6 on the Special Verdict

form which asked, “Do you find by nine or more jurors that Juan Lopez was negligent

which was a cause of the accident in question?”

However, even if it is proper to address the issue of Mr. Lopez’s

negligence, a reading of the entire record leads to the inescapable conclusion that he

was not at fault. The plaintiff’s theory, we must remember, was that the absence of a

gangway was the cause of his injuries. Mr. Lopez testified that “[t]he slip came after

I let go of the bag.” (Vol. III, p. 579). (Emphasis added). In response to the question,

“So you had already let go of the bag; and then you slipped?,” Mr. Lopez answered,

“yes, sir. I let go of the bag, and I was probably going to turn to lower myself down.

And that’s probably when it happened.”

Furthermore, Frank Buck, one of the experts retained by the plaintiff,

testified that “[i]f you would have had a gangplank, this accident would not have

happened.” The safety consultant, Robert Borison, explained that, in his professional

opinion, Mr. Lopez did not do anything unsafe under the circumstances that caused his

injury. He further explained that Mr. Lopez would have been injured in the same

5

manner even if he did not have a duffle bag. The reason for this is simple. According

to Mr. Borison, “[t]he unsafe condition [was] the failure to provide a gangway. . . and

the hazards associated with the various types of ingress and egress from this vessel

could have been prevented and would have been prevented if a gangway was

provided.”

The majority’s emphasis on Mr. Lopez’s comparative negligence is even

more puzzling because Mr. Lopez had nothing to do with the failure to provide a

gangway—the main point of contention in this case. We do not know if the jury even

considered the duffle bag argument. As I previously indicated, the jury was not

required to address Interrogatory 6 on the Special Verdict form. It determined only

that a gangway was not a necessary means of egress and ingress. The objective

evidence and even the defendants’ own objective rules and regulations belie this

conclusion.

For the foregoing reasons, I dissent.

6