Opinion
Civil Action No. 99-951, c/w 99-984 1346, Section "N"
September 28, 2001
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On March 25, 1999, the C/B MISS BERNICE collided with the O.S.V. CANE RIVER in the fog in the Mississippi River below Venice, Louisiana. The collision led to the three consolidated federal court actions now before the Court. Civil Action No. 99-951 is a suit brought in admiralty by Trico Marine Assets, Inc. and Trico Marine Operators, Inc. (collectively "Trico") against Diamond B Marine Services, Inc. ("Diamond B"). Civil Action No. 99-984 is an exoneration/limitation action instituted by Trico. Civil Action No. 99-1346 is an exoneration/limitation action instituted by Diamond B.
During the week of January 8, 2001, the Court conducted a non-jury trial of the claims of all parties in the three consolidated cases. On January 12, 2001, the final briefs were submitted which addressed claimant Lonnie Fontenot's post-trial kidney removal and prognosis. Having considered the testimony of the witnesses, the exhibits introduced into evidence, and the stipulations of the parties, the Court now renders the following findings of fact and conclusions of law.
I. FINDINGS OF FACT .
A. PARTIES .
1. Diamond B is the defendant in Civil Action No. 99-951; the claimant against Trico in Civil Action No. 99-984; and the petitioner-in-limitation in Civil Action No. 99-1346. At all relevant times, Diamond B owned and operated the MISS BERNICE. On March 25, 1999, the MISS BERNICE was under charter to Texaco Exploration and Production, Inc. ("Texaco").
2. James Bennett was employed by Diamond B as the Captain and sole crewmember of the MISS BERNICE. Bennett is a claimant against Trico in Civil Action No. 99-984 and against Diamond B in Civil Action No. 99-1346. Trico has filed a counterclaim against Bennett in Civil Action No. 99-984 and a cross-claim against him in Civil Action No. 99-1346.
3. Wayne Thibodaux, Lonnie Fontenot and Alan LeBlanc (collectively the "Texaco plaintiffs") are Texaco employees who were aboard the MISS BERNICE at the time of the collision. The Texaco employees are all claimants against Trico in Civil Action No. 99-984 and against Diamond B in Civil Action No. 99-1346. Texaco and its Workers' Compensation carrier, Ace USA, have filed an intervention to recoup compensation benefits paid to and on behalf of the Texaco plaintiffs.
4. At all times relevant, Trico was the owner/operator/owner pro hac vice of the O.S.V. CANE RIVER. On March 25, 1999, the CANE RIVER was under charter to Vastar Resources, Inc. ("Vastar"). Trico is plaintiff against Diamond B in Civil Action No. 99-951;; petitioner-in-limitation and counterclaimant against Bennett in Civil Action No. 99-984; and claimant against Diamond B and cross-claimant against Bennett in Civil Action No. 99-1346. Vastar is not a party to these proceedings.
5. Michael A. Cheramie was employed by Trico as the Captain of the CANE RIVER. Cheramie is a claimant seeking indemnity/contribution against Diamond B in Civil Action No. 99-1346.
6. Kenneth B. Heller was employed by Trico as the Mate of the CANE RIVER. Heller is a claimant seeking indemnity/contribution against Diamond B in Civil Action No. 99-1346.
B. VESSELS.
7. The MISS BERNICE is a United States Coast Guard inspected and documented passenger. vessel, 44.8' in length, 14.0' in breadth, and 6.2' in depth.
8. The CANE RIVER is a United States Coast Guard inspected and documented offshore supply vessel, 173.6' in length, 38.0' in breadth, and 13.0' in depth.
C. VESSEL PERSONNEL .
1. DIAMOND B .
9. James Bennett was the captain and only crewmember of the MISS BERNICE at the time of the collision. Bennett has worked as a crewboat captain since 1969 and began working for Diamond B in 1988.
10. Bennett did not have a Coast Guard license until 1993 when Diamond B required him to obtain one. At that time, Bennett obtained the minimum license available, which allowed him to serve as Master of Steam or Motor Vessels of Not More Than 50 Gross Tons Upon Inland Waters Excepting Waters Subject to Regulations for Preventing Collisions At Sea. He has not upgraded that license, he has not attended any formal training, and he has not worked under the tutorship of another captain. Particularly important to the instant case, Diamond B did not offer Bennett any training or evaluate his performance as a captain. Bennett testified that he learned to operate a vessel on his own and by watching other crewboat captains.
11. Since Bennett was the only crewmember of the MISS BERNICE, there was obviously no lookout. Accordingly, when operating the vessel in the fog, Bennett had to divide his attention among the various tasks involved in steering and navigating the vessel and keeping a visual and aural lookout.
12. Lisa Bonin, the daughter of Diamond B's sole shareholder, has been vice-president of the company since 1989. Before 1989 she worked in a bank for two years and at Redd Foxx Industries for five or six years. She has no marine experience.
13. As vice-president of Diamond B, she shared responsibility with Diamond B's port captain James M. DeFelice for crew changes, repairs, hiring, billing, insurance, and contracts. In addition, as head of the vessel department, she directly supervised Diamond B's captains, including Bennett.
14. James M. DeFelice started as a salesman with Diamond B in 1990. Within four or five months he became the company's port captain and was working in both capacities at the time of the collision. DeFelice assisted his supervisor, Lisa Bonin, with crew changes, vessel maintenance and repair, and occasionally hiring.
15. Other than his employment at Diamond B, DeFelice has no marine work experience.
2. TEXACO .
16. Lonnie Fontenot was aboard the MISS BERNICE at the time of the collision. He was a compressor mechanic for Texaco and worked in the Garden Island Bay area.
17. Alan LeBlanc was aboard the MISS BERNICE at the time of the collision. He was a mechanic/welder for Texaco and worked at the Garden Island Bay facility.
18. Wayne Thibodaux was aboard the MISS BERNICE at the time of the collision. As Texaco s head roustabout in the Garden Island Bay area, he was Fontenot's and LeBlanc's supervisor.
3. TRICO .
19. At the time of the collision, Michael Cheramie was the captain of the CANE RIVER.
20. Cheramie began his maritime career as a deckhand in 1980 and worked his way up to Captain. In 1997, he obtained (1) an FCC radio license, (2) an unlimited Radar Observer Certification from Houston Marine Training Services, and (3) a U.S. Coast Guard license to serve as Master of Steam or Motor Vessels of Not More Than 500 Gross Tons Upon Near Coastal Waters, with an Unlimited Radar Observer endorsement. Trico hired Cheramie as a Mate in September 1997, but he was quickly promoted to Captain based on the excellent recommendations of his supervisors.
21. Due to his experience on the bridge during many trips through the lower Mississippi River, Cheramie is very familiar with that area. He has received excellent performance reviews from his supervisors at Trico and, by all accounts, is a competent and qualified vessel operator. Since the collision, he has been assigned as Captain of the MIAMI RIVER, one of the most valuable and technologically advanced vessels in the Trico fleet.
22. At the time of the collision, Mate Kenneth B. Heller was at the wheel of the CANE RIVER.
23. Heller enlisted in the U.S. Navy in 1980 and was promoted to the rank of Petty Officer, Boatswains Mate, Third Class by the time of his release in 1984. He served two years in the Naval Reserve, and eventually joined the Seafarer's International Union. He has been classified by the Union as an "able-bodied seaman unlimited" and has worked as an A/B and helmsman on numerous oceangoing vessels. He has received letters of recommendation from several supervisors and an Expeditionary Award from the United States Merchant Marine Maritime Administration for his sea service in support of operations Desert Shield and Desert Storm.
24. In 1995, Heller completed the "Basic Radar and Simulator Course in Radar Theory, Observation, Operation and Use, Interpretation and Plotting, Advanced Radar Plotting, Collision Avoidance, and Navigational Exercises" at the Seafarer's Harry Lundeberg School of Seamanship at Piney Point, Maryland.
25. In March 1996, Trico hired Heller as an A/B-Deckhand. In May of 1996 he obtained a U.S. Coast Guard License to serve as Master of Near Coastal Steam or Motor Vessels of Not More Than 100 Gross Tons, and as Mate of Near Coastal Steam or Motor Vessels of Not More Than 1,600 Gross Tons, with an Unlimited Radar Observer Endorsement That license qualified him to operate the CANE RIVER.
26. After Heller received his upgraded license, Trico promoted him to Mate.
27. Due to his experience on the bridge during many trips through the lower Mississippi River, Heller is very familiar with that area. He has received excellent performance reviews from his supervisors at Trico and, by all accounts, is a competent and qualified vessel operator. Since the collision, he has been promoted to Captain.
28. At the time of the collision, A/B deckhand Lornell Castle was the CANE RIVER's lookout.
29. Castle had three years experience when Trico hired him as a deckhand in July 1997. In November 1997 he upgraded his U.S. Merchant Mariner's document to a rating of A/B-Wiper. In 1998, he again upgraded to an A/B-Oiler. Castle also completed Trico's A/B training program, which includes specific training on standing watch and on the Rules.
30. At the time of the collision, Captain Cheramie, Mate Heller, A/B-lookout Castle, engineer Joel Carr and deckhand Timothy Ennis manned the CANE RIVER. The vessel was carrying seven passengers, none of whom are parties to the instant case.
31. William Oscar "Ed" Eidson has been Trico's Operations Manager for 19 years. Eidson has had substantial experience as a vessel operator; and at the time of the incident, he was responsible for managing all of Trico's approximately 450-500 vessel crewmembers.
D. THE VOYAGE .
1. MISS BERNICE .
32. On the morning of March 25, 1999, both the MISS BERNICE and the CANE RIVER were docked in Venice. The MISS BERNICE was chartered to Texaco, and Texaco ordered Bennett to pick up its employees at Garden Island Bay and return them to Venice.
33. Although he knew visibility that morning was extremely restricted, Bennett departed for Venice without a lookout and without turning on his running lights. Furthermore, Bennett had never been trained to use the vessel's Si-Tex radar unit. (The radar had been installed eleven months before the collision, but Bennett was absent that day and Diamond B left him to read the radar's manual and figure it out for himself) Bennett also decided to run the vessel at full speed even though the engine noise would make it difficult to hear the radio or the fog signals of other vessels. Finally, he failed to check any of the MISS BERNICE's navigation equipment and ran at full speed without fog signals.
34. Although visibility remained very poor when Bennett arrived at Garden Island Bay, he decided to return to Venice immediately, still running at full speed and still without a lookout, running lights, or fog signals. The MISS BERNICE's engine noise was so loud that Bennett hooked up an external speaker to hear the radio. Bennett had complained about the engine noise problem in the past, but Diamond B had not done anything to remedy it.
35. As he approached the West Point Light, Bennett overtook a northbound supply boat, the O.S.V. ENSCO SCHOONER Robert Rusho, the captain of that vessel, testified that he did not see the MISS BERNICE on radar and that Bennett failed to radio him to make an overtaking agreement Rusho was not aware-that the MISS BERNICE was in the area until he heard her engines, which briefly slowed down as she cut around the starboard side of the ENSCO SCHOONER and then gunned back to full speed
36. Continuing northbound at full speed, Bennett saw the CANE RIVER as a target on the MISS BERNICE's radar. Unfortunately, due to his lack of training and to the CANE RIVER's very slow speed, Bennett thought that the CANE RIVER was also northbound and that he was overtaking her. In reality, the CANE RIVER was southbound, and the two vessels were meeting. Bennett thinks he announced on the radio that he was overtaking a northbound vessel, but he said that he received no response. Even if Bennett actually made that announcement, it is not surprising he received no response, since there were no northbound vessels in the area.
37. Despite the lack of either radio contact or an agreement to overtake the vessel, Bennett headed the MISS BERNICE on a direct collision course with the radar target for more than three full minutes without sounding any signals. When the CANE RIVER came in sight, he was surprised to see her bow instead of the stem he was expecting.
2. CANE RIVER
38. As the MISS BERNICE was picking up the Texaco employees, the CANE RIVER waited for the fog to rise in Venice. At about 7:30 a.m., Heller was informed by another Trico vessel that the fog was lifting. Since visibility at the dock was clear, the CANE RIVER left the dock for an offshore platform at approximately 8:00 a.m.
39. As the CANE RIVER approached the Venice Jump, Heller made several radio announcements of his intention to turn southbound into the Mississippi River. Two small northbound crewboats responded, and the boats agreed to pass starboard to starboard. The MISS BERNICE did not respond to the announcements.
40. As the CANE RIVER proceeded downriver, Heller periodically announced the vessel's position over the radio and monitored its two radars, which were set on ranges of three-quarters of a mile and one-and-a-half miles. At the same time, Castle was in the wheelhouse looking and listening for other vessels.
41. Between the Upper Jump Shoal Buoy and the Lower Jump Shoal Buoy, the CANE RIVER encountered patchy fog and visibility began to diminish. Heller reduced the CANE RIVER to bare steerage ( i.e., the lowest speed at which he could still control the vessel) and began sounding fog signals every two minutes, as required by the Rules.
42. After taking these precautions, Heller had Castle summon Captain Cheramie to the wheelhouse to assess the situation. Castle quickly did so and immediately resumed his post. Satisfied that there was no danger and that Heller had the situation under control, Cheramie went below deck to get his sunglasses and a cup of coffee. Before he could return, the collision occurred.
43. No one aboard the CANE RIVER was aware of the MISS BERNICE's presence until seconds before the collision when Heller and Castle heard her engines and saw her emerge from the fog directly in front of the CANE RIVER.
E. THE COLLISION .
44. If Bennett had held his course when he first saw the CANE RIVER, the boats might have narrowly missed one another. However, at the last second Bennett turned the MISS BERNICE hard to starboard, causing a bow-to-bow collision. At trial, Bennett admitted Heller could not have prevented the collision. He further testified that he does not know how he let this situation develop and that he took away all of his and the CANE RIVER's options.
45. Even though he had already been injured in a previous accident for failing to wear his seatbelt, Bennett was not wearing a seatbelt at the time of this collision. As a result, he was thrown into the windshield and momentarily lost consciousness.
46. Still at full speed and. with no one at the wheel, the MISS BERNICE again struck the CANE RIVER in the port stern. After the first impact, Captain Cheramie took control of the CANE RIVER and maneuvered her in front of the MISS BERNICE to prevent her from hitting the "Fed 14," a tug and barge composite also heading south. The MISS BERNICE struck the CANE RIVER a third time and was finally brought under control when passenger Fontenot took her engines out of gear. The second and third impacts caused additional damage and injuries.
47. Captain Cheramie and his crew tied the MISS BERNICE to the CANE RIVER to keep the MISS BERNICE from sinking. Bennett and the Texaco employees were taken to shore by other vessels for medical attention. Captain Cheramie took both the CANE RIVER and the MISS BERNICE back to the dock in Venice.
1. RADIO CALLS.
48. The MISS BERNICE and the CANE RIVER did not establish radio contact with each other, but there was conflicting testimony about the extent to which each of the vessels used its radio.
49. Heller testified that he made the required security call announcing his intention to turn into the Mississippi, that the MISS BERNICE did not answer his security calls, and that he never heard the MISS BERNICE on the radio at all. Heller's testimony was confirmed by Castle and the Captain of the ENSCO SCHOONER, neither of whom heard Bennett over the radio.
50. Bennett testified that he made a security call upon entering the river at Head of Passes, and also said that he spoke with another vessel about a log in the river. While he admits he never called the CANE RIVER by name, he said he announced that he was overtaking "the northbound vessel" but did not have an overtaking agreement.
51. Diamond B tried to prove that the CANE RIVER was not responding to the radio. Hugh McGeever and Richard Grabowaki, crewman of the FAST SKIPPER, testified that the MISS BERNICE and the pilot on the "Fed 14" were calling the CANE RIVER by name, with no response. However, McGeever and Grabowski gave significantly different accounts of the events surrounding the incident. As noted above, Bennett denies calling the CANE RIVER by name and says that he did not know her identity, and neither Heller, Cheramie nor Castle recall hearing the MISS BERNICE call the CANE RIVER by name. Accordingly, the Court accepts the testimony of the individuals involved in the collision over that of crewmen on another vessel who merely overheard radio calls.
52. The Court concludes that the CANE RIVER properly monitored the radio and made the required security calls as she proceeded downriver. The Court also concludes that the MISS BERNICE did not try to call the CANE RIVER by name and that the MISS BERNICE and the CANE RIVER were never in radio communication prior to the collision.
2. RADAR .
53. The issue of whether the MISS BERNICE appeared as a target on the CANE RIVER's radar was hotly contested at trial. Diamond B, Bennett and the Texaco employees alleged that either the CANE RIVER's radar was defective or that Heller and Cheramie failed to monitor it. They did not prove either of these propositions, nor did they prove that the radar problem caused the collision.
54. First, the evidence established that there was nothing wrong with the CANE RIVER's two radar units. They were functional on January 5 and March 2, 1999, when they were checked as part of the Streamlined Inspection Program ("SIP"). They were working when Cheramie navigated to Venice the night before the collision and when Heller took the vessel on the morning of the collision.. Cheramie also used the radars in navigating back to the dock with the MISS BERNICE tied to the CANE RIVER's hip. Finally, after the collision the radars were checked by a technician and were found to be functional. There was no evidence to suggest that the radars were malfunctioning.
55. The Court rejects Diamond B's claim that Heller and Cheramie failed to monitor the radar. With Castle serving as a lookout, Heller could focus his attention on the radar. Heller explained in detail how he scanned from one unit to the other, and Cheramie testified that he also monitored both radars just before the accident. Both men are certain that the MISS BERNICE never appeared as a target. Neither Diamond B, Bennett nor the Texaco employees presented evidence that there was anything improper or negligent about Heller and Cheramie's monitoring. In addition, Trico presented substantial evidence that small vessels like the MISS BERNICE sometimes do not appear on radar. Heller, Ed Eidson and Captain Bourgeois, Trico s marine expert, all testified that they experienced such situations on numerous occasions. In addition, the Captain of the ENSCO SCHOONER did not see the MISS BERNICE on radar when it passed him the morning of the collision.
56. Finally, as to causation, the Court does not find that the appearance of the MISS BERNICE on the CANE RIVER's radar would have prevented the collision. To find causation, the Court would have to assume that if the CANE RIVER had seen and radioed the MISS BERNICE, Bennett would have heard the call over the engine noise, answered the call, and then slowed or altered course. However, Bennett had seen the CANE RIVER on his radar, thought it was a northbound vessel, and ran on a direct collision course with her anyway. Accordingly, the CANE RIVER's ability to see the MISS BERNICE on radar would not have changed anything.
II. CONCLUSIONS OF LAW .
A. JURISDICTION AND VENUE .
1. The Court has personal jurisdiction over all parties and has subject matter jurisdiction under Federal Rule of Civil Procedure 9(h) and 28 U.S.C. § 1333. The Court also has subject matter jurisdiction over Bennett's claim against Diamond B under the Jones Act, 46 U.S.C. § 688.
2. Venue is proper in the Eastern District of Louisiana because the collision occurred in this district and because all parties are subject to personal jurisdiction in this district. See FED. R. Civ. P. 9(h) and 82; Supplemental Rule for Certain Admiralty and Maritime Claims F(9); In Re McDonnell-Douglas Corp., 647 F.2d 515 (5th Cir. 1981).
B. LIABILITY AND CAUSATION .
3. An exoneration/limitation action requires two-steps. First, each claimant must prove liability as to each vessel owner by proving that it was negligent and that the negligence was a legal cause of that claimant's injuries. Failure to prove negligence or causation as to either vessel exonerates that vessel and its owner. If the claimants prove both negligence and causation, the vessel owner seeking limitation must then prove that it lacked privity or knowledge of the unseaworthiness or negligence that caused the injury. Complaint of Port Arthur Towing Co., 42 F.3d 312, 317 (5th Cir. 1995), reh'g denied, 51 F.3d 1047 (5th Cir. 1995), cert. denied, 516 U.S. 823, 133 L.Ed.2d 44, 116 S.Ct. 87 (1995); Cupit v. McClanahan Contractors, Inc., 1 F.3d 346, 348 (5th Cir. 1993), cert. denied, 510 U.S. 1113, 114 S.Ct. 1058, 127 L.Ed.2d 378 (1994); Brister v. AWI, 946 F.2d 350, 355 (5th Cir. 1991), reh'g denied, 949 F.2d 1160 (5th Cir. 1991).
4. When considering a collision, the Court must observe presumptions arising from the violation of numerous navigational rules. According to the PENNSYLVANIA. 86 U.S. (19 Wall.), 125, 136, 22 L.Ed. 148 (1874), the violation of a statute intended to prevent collisions leads to a rebuttable presumption that the violation was a cause of the collision. The offending vessel must then show that the violation "could not have been . . . one of the causes" of the collision. 86 U.S. at 136. See also Complaint of Cameron Boat Rentals. Inc., 683 F. Supp. 577 (W.D. La. 1988). However, the PENNSYLVANIA rule only applies to statutes that set forth a clear duty and not to regulations that require judgment and assessment of a particular circumstance. The Tokio Marine and Fire Ins. Co., Ltd. v. FLORA MV, 235 F.3d 963 (5th Cir. 2001).
1. NEGLIGENCE — DIAMOND B AND BENNETT .
5. The Court finds that Bennett was negligent for numerous-reasons.
6. First, Bennett was negligent for proceeding in the fog without a lookout. With his attention divided among the tasks of navigating the vessel and keeping watch, Bennett failed to adequately perform either. If a lookout were aboard the MISS BERNICE, Bennett may have noticed the CANE RIVER's radio calls and properly read the radar. Accordingly, the absence of a lookout proximately caused the collision.
7. Bennett was also negligent for running in the fog when he could not hear over the engine noise. But for this noise, Bennett would have heard the CANE RIVER's fog signals and may have heard its radio calls.
8. By proceeding in fog without a lookout and with impaired hearing, the MISS BERNICE violated Rule 5 of the Inland Navigation Rules, 33 U.S.C.A. § 2005 (West 1986), which provides:
§ 2005. Look-out (Rule 5)
Every vessel shall at all times maintain a proper look-out by sight and hearing as well as all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.
9. The violation of Rule 5 invokes the PENNSYLVANIA rule, and Bennett and Diamond B did not prove that the violation could not have been a cause of the collision. To the contrary, failing to use a lookout was a cause of the collision, and the violation of Rule 5 imposes liability on Bennett and Diamond B.
10. Bennett was negligent in failing to hear and/or respond to the CANE RIVER's radio calls. Whether the failure occurred because of the engine noise, because he could not monitor the radio while also standing lookout, or because he intended to overtake the CANE RIVER without making radio contact (as he did with the ENSCO SCHOONER), Bennett was negligent, and his negligence was a proximate cause of the collision.
11. Bennett was also negligent in misinterpreting the direction of the CANE RIVER and steering into its bow.
12. By failing to hear and/or respond to the CANE RIVER's radio calls, proceeding in the fog without being able to hear, misinterpreting the radar, and steering directly into the vessel he saw on radar, Bennett violated Rule 7, 33 U.S.C.A.. § 2007 (West 1986), which provides:
§ 2007. Risk of collision (Rule 7)
(a) Determination if risk exists
Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.
(b) Radar
Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects.
(c) Scanty information
Assumptions shall not be made on the basis of scanty information, especially scanty radar information.
(d) Considerations taken into account in determining if risk exists In determining if risk of collision exists the following considerations shall be among those taken into account:
(i) such risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change; and
(ii) such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.
13. Violating Rule 7 invokes the PENNSYLVANIA rule, and Bennett and Diamond B have not proven that this violation could not have been a cause of the collision. These numerous violations were a cause of the collision, and they impose liability on Bennett and Diamond B.
14. Bennett was negligent in proceeding at full speed in the fog, especially in light of his vessel's equipment problems and lack of crew. Traveling more slowly would have given Bennett more time to interpret his radar, hear the CANE RIVER on the radio, and avoid the collision after the CANE RIVER came into view.
15. By going full speed in restricted visibility when other vessels were known to be in the area, the MISS BERNICE violated Rule 6, 33 U.S.C.A. § 2006 (West 1986), which provides:
§ 2006. Safe speed (Rule 6)
Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.
In determining a safe speed the following factors shall be among those taken into account:
(a) By all vessels:
(i) the state of visibility;
(ii) the traffic density including concentration of fishing vessels or any other vessels;
(iii) the maneuverability of the vessel with special reference to stopping distance and turning ability in the prevailing conditions;
(iv) at night the presence of background light such as from shores lights or from back scatter of her own lights;
(v) the state of wind, sea, and current, and the proximity of navigational hazards;
(vi) the draft in relation to the available depth of water.
(b) Additionally, by vessels with operational radar:
(i) the characteristics, efficiency and limitations of the radar equipment;
(ii) any constraints imposed by the radar range scale in use;
(iii) the effect on radar detection of the sea state, weather, and other sources of interference;
(iv) the possibility that small vessels, ice and other floating objects may not be detected by radar at an adequate range;
(v) the number, location, and movement of vessels detected by radar; and
(vi) the more exact assessment of the visibility that may be possible when radar is used to determine the range of vessels or other objects in the vicinity.
16. Violating Rule 6 invokes the PENNSYLVANIA rule, and Bennett and Diamond B have not proven that this violation could not have been a cause of the collision. Accordingly, the violation of Rule 6 imposes liability on Bennett and Diamond B.
17. Steering the MISS BERNICE on a collision course with a vessel that Bennett admittedly saw on his radar was negligent. As he approached the CANE RIVER, Bennett failed to slow down or change course, even though he did not have an overtaking agreement with what he believed was a northbound vessel.
18. Continuing to run at flail speed after he saw the CANE RIVER was also negligent. Slowing down would have given Bennett more time to assess the situation and possibly steer out of the collision and would have reduced the ultimate impact. Furthermore, the second and third collisions and their concomitant damages and injuries would not have occurred.
19. Turning the MISS BERNICE hard to starboard into the bow of the CANE RIVER was negligent. The evidence establishes that the MISS BERNICE might have narrowly missed the CANE RIVER had Bennett held course, turned to port, slowed down, or reversed engines. Turning starboard was the worst possible option because it put the MISS BERNICE in a bow to bow orientation with the CANE RIVER. Bennett's negligence in this regard was a proximate cause of the collision.
20. By running at full speed directly at the CANE RIVER, the MISS BERNICE violated the mandatory portions of Rules 8 and 2, 33 U.S.C.A. § 2008 (West 1986) and 33 U.S.C.A. § 2002 (West 2000). These rules provide:
§ 2008. Action to avoid collision (Rule 8)
(a) General characteristics of action taken to avoid collision
Any action taken to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.
(b) Readily apparent alterations in course or speed Any alteration of course or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course or speed should be avoided.
(c) Alteration of course to avoid close-quarters situation If there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation.
(d) Action to result in passing at safe distance
Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear.
(e) Slackening of vessel speed; stopping or reversing means of propulsion If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion.
(f) Early action to allow room for safe passage
(i) A vessel which, by any of these Rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea room for the safe passage of the other vessel.
(ii) A vessel required not to impede the passage or safe passage of another vessel is not relieved of this obligation if approaching the other vessel so as to involve risk of collision and shall, when taking action, have full regard to the action which may be required by the Rules of this part.
(iii) A vessel the passage of which is not to be impeded remains fully obliged to comply with the Rules of this part when the two vessels are approaching one another so as to involve risk of collision.
§ 2002. Responsibility (Rule 2)
(a) Exoneration
Nothing in these Rules shall exonerate any vessel, or the owner, master, or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
(b) Departure from rules when necessary to avoid immediate danger
In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.
21. Violating Rules 8 and 2 invokes the PENNSYLVANIA rule, and Bennett and Diamond B have not proven that these violations could not have been a cause of the collision. Accordingly, the violations of Rules 8 and 2 impose liability on Bennett and Diamond B.
22. Even if the CANE RIVER had been northbound, Bennett's actions would have been negligent because he failed to stay clear. Instead of keeping out of the way of the vessel being overtaken, Bennett steered straight for it. These actions were a proximate cause of the incident because they placed the vessels on a collision course.
23. The MISS BERNICE also violated Rule 19, 33 U.S.C.A. § 2019 (West 1986), which provides:
§ 2019. Conduct of vessels in restricted visibility (Rule 19)
(a) Vessels to which rule applies
This Rule applies to vessels not in sight of one another when navigating in or near an area of restricted visibility.
(b) Safe speed; engines ready for immediate maneuver
Every vessel shall proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility. A power-driven vessel shall have her engines ready for immediate maneuver.
(c) Due regard to prevailing circumstances and conditions
Every vessel shall have due regard to the prevailing circumstances and conditions of restricted visibility when complying with Rules 4 through 10.
(d) Detection of vessel by radar alone
A vessel which detects by radar alone the presence of another vessel shall determine if a close-quarters situation is developing or risk of collision exists. If so, she shall take avoiding action in ample time, provided that when such action consists of an alteration of course, so far as possible the following shall be avoided:
(i) an alteration of course to port for a vessel forward of the beam, other than for a vessel being overtaken; and
(ii) an alteration of course toward a vessel abeam or abaft the beam.
(e) Reduction of speed to minimum
Except where it has been determined that a risk of collision does not exist, every vessel which hears apparently forward of her beam the fog signal of another vessel, or which cannot avoid a close-quarters situation with another vessel forward of her beam, shall reduce her speed to the minimum at which she can be kept on course. She shall if necessary take all her way off and, in any event, navigate with extreme caution until danger of collision is over.
24. The MISS BERNICE violated Rule 19 by running full speed in the fog, steering directly at the CANE RIVER after seeing her on radar, failing to slow down, failing to take timely evasive action, and taking action that made the situation worse. Violating rule 19 invokes the PENNSYLVANIA rule, and Bennett and Diamond B have not proven that this violation could not have been a cause of the collision. Accordingly, the violation of Rule 19 imposes liability on Bennett and Diamond B.
25. Bennett's failure to wear a seatbelt was also negligent, particularly in light of his previous injury from failing to wear a belt. Had Bennett been wearing his seatbelt, he would not have been thrown into the windshield and would have been able to immediately take the MISS BERNICE out of gear, which would have completely avoided the second and third collisions. In addition, since the medical evidence clearly established that all Bennett's injuries resulted from striking the windshield, his failure to wear a seatbelt was the sole proximate cause of his injures.
26. For all the reasons set forth above, the Court finds that the claimants against Bennett and Diamond B have proven that Bennett was negligent and that his negligence was a proximate cause of the collision. Bennett is therefore liable for the collision and all associated damages, and Diamond B is liable under the principles of respondeat superior.
2. DIAMOND B'S MANAGEMENT .
27. In addition to its vicarious liability for Bennett's negligence, Diamond B's management was independently negligent by requiring Bennett to operate in foggy conditions yet (I) failing to require Bennett to have a radar endorsement and (2) failing to teach Bennett how to operate and interpret the Si-Tex radar unit on the MISS BERNICE.
28. Bennett regularly reported his vessel logs to Diamond B, and these logs, which were introduced at trial, indicated that Bennett always made the run from Venice to Garden Island Bay and back in the same amount of time, regardless of the weather conditions. Had it properly examined these logs, Diamond B would have realized Bennett was running at full speed in foggy conditions and could have taken appropriate measures to correct this dangerous situation. This negligent failure to examine the logs was a proximate cause of the collision.
29. Although it knew the MISS BERNICE would be operated in the fog, Diamond B failed to provide a lookout or correct the engine's noise problems. These failures were negligent, especially since Diamond B required the MISS BERNICE to operate m fog. In addition, because the excessive engine noise and the absence of a lookout were proximate causes of the collision, Diamond B's failure to rectify these conditions was also a proximate cause.
30. According to DeFelice, Diamond B's only safety policy was an oral recommendation that all vessel operations are in the captain's discretion. The lack of any written safety policies or safety training was negligent and was a proximate cause of the collision.
31. For these reasons, the Court finds that the claimants against Diamond B have proven that its management was independently negligent and that this negligence was a proximate cause of the collision. Accordingly, Diamond B is independently liable.
3. UNSEAWORTRTNESS — MISS BERNICE .
32. The evidence clearly established that Bennett could not hear the radio or the fog signals of other vessels over the noise of the MISS BERNICE's engines. The engine noise violated Rule 5, which requires a vessel to maintain a lookout "by hearing." Due to this noise, the MISS BERNICE was not reasonably fit to carry passengers in conditions of restricted visibility.
33. The evidence also established that Bennett's overall lack of competence led to the collision; he ran at full speed in heavy fog without a lookout and unable to use the radar. Due to Bennett's incompetence and the MISS BERNICE's failure to carry a lookout, the vessel was inadequately manned to carry passengers in conditions of restricted visibility.
34. Since the claimants against Diamond B proved the MISS BERNICE was unseaworthy and its unseaworthiness proximately caused the collision, Diamond B is liable for the collision.
4. LIMITATION OF LIABILITY — DIAMOND B .
35. If the vessel's negligence or unseaworthiness is a proximate cause of the claimant's loss, the plaintiff-in-limitation must prove it had no privity or knowledge of the unseaworthy conditions or negligent acts. See Cupit 1 F.3d at 348. The Court has already explained that Diamond B's owners and management participated in the negligence that caused the collision. They failed to provide a lookout, failed to train Bennett to use a radar, failed to evaluate the MISS BERNICE's seaworthiness or Bennett's competence, failed to inspect the vessel logs, failed to employ a safety manager, and failed to provide safety training or safety manuals. These negligent acts establish knowledge of the MISS BERNICE's unseaworthiness and defeat Diamond B's limitation action. See Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1473 (5th Cir. 1991).
36. In addition, Diamond B's failure to properly train or educate its crew defeats the right to limit. See Gautreaux v. Scurlock Marine, Inc., 84 F.3d 776, 784 (5th Cir. 1996), aff'd in part, vacated in part on other grounds, 107 F.3d 331 (5th Cir. 1997).
37. Although Bennett's navigational errors contributed heavily to the collision, Diamond B knew the MISS BERNICE had operated in the in the fog and would continue to do so, yet employed a captain without the proper qualifications and without adequate policies or procedures to guide him. "[K]nowledge of this history of operation in conditions of reduced visibility is precisely the sort of knowledge of shore-based managing officials that vitiates the right to limit." Pennzoil Producing Co., 943 F.2d at 1474.
38. In addition, in situations resulting in loss of life or bodily injury, the master of a seagoing vessel's knowledge at the commencement of a voyage is imputed to the vessel's owner. See 46 App. U.S.C.A. § 183(e) (West 1986). Because she could be operated at sea, the MISS BERNICE is a "seagoing vessel." Id. Therefore, Bennett's pre-voyage knowledge of various acts of negligence and unseaworthiness are imputed to Diamond B.
39. In summary, since Diamond B was independently negligent and had privity and knowledge of the negligence and unseaworthiness that caused the collision, it cannot limit its liability.
5. LIABILITY AND CAUSATION — TRICO .
40. For the following reasons, the Court concludes that the CANE RIVER was seaworthy and that it was not negligent. Since the CANE RIVER did nothing to contribute to the collision, Trico and the CANE RIVER are entitled to exoneration.
a. SEAWORTHINESS — CANE RIVER
41. Because they were not crewmembers of the CANE RIVER, the claimants have no right to pursue unseaworthiness claims against Trico as a matter of law. See Petition of Kristie Leigh Enters., Inc., 72 F.3d 479, 481, n. 2 (5th Cir. 1996), reh'g denied, 81 F.3d 159 (5th Cir. 1996).
42. Even if the claimants could have stated an unseaworthiness claim against Trico, the Court would have rejected it because the CANE RIVER was fully equipped and adequately manned.
b. NEGLIGENCE — CANE RIVER/TRICO
43. Diamond B, Bennett and the Texaco employees argue that the CANE RIVER was negligent because it failed to maintain a proper lookout, both visually and electronically. The Court disagrees.
44. First, the CANE RIVER stationed deckhand Castle as a lookout in the wheelhouse. Mate Heller opened the wheelhouse door to allow himself and Castle to listen for fog signals and/or other sounds from other vessels. They both heard the engines of the MISS BERNICE at about the same time and then saw her come out of the fog.
45. The Texaco employees argued that Castle should have been posted outside the wheelhouse where he could have better heard approaching vessels. The Court rejects this argument because (1) stationing Castle on the deck raises obvious safety concerns and (2) the CANE RIVER's crewmembers testified that staying in the wheelhouse reduced the noise from the CANE RIVER's own engines.
46. The Court also concludes that the CANE RIVER maintained an adequate radio lookout. She made the required security announcements, and the MISS BERNICE was the only vessel that did not hear them, due to her excessive engine noise. In addition, since Bennett did not call the CANE RIVER by name and merely announced it was overtaking a northbound vessel, there was no reason for the CANE RIVER to answer his call.
47. Likewise, the Court concludes that the CANE RIVER maintained a proper radar lookout Because the MISS BERNICE is a small vessel and because the ENSCO SCHOONER also failed to pick her up on radar, the Court does not find that the CANE RIVER's failure to pick up the MISS BERNICE establishes that the crew of the CANE RIVER was negligent or that her radar was inoperable.
48. The Texaco employees argued that Heller and Cheramie were distracted from the radio and radar because they got into an argument shortly before the collision. This theory was unsupported by any evidence at trial, and Castle confirmed that there was no argument.
49. In sum, the Court is satisfied that the CANE RIVER maintained a proper and vigilant lookout — electronically, and by sight and hearing.
50. Diamond B, Bennett and the Texaco employees suggested that the CANE RIVER was negligent in failing to propose the manner of passage with the MISS BERNICE. However, Bennett failed to announce his presence, and a vessel cannot be reasonably expected to propose the manner of passage with a vessel that it does not know exists.
51. The Texaco employees argued that the CANE RIVER may have violated Rule 14, 33 U.S.C.A. § 2014 (West 1986), which applies to vessels that are in sight of one another. Due to the restricted visibility on the morning of the collision, the CANE RIVER and the MISS BERNICE were not in sight of each other until seconds before the collision and could not take any substantial action in that time. Accordingly, the Court finds that Rule 14 is inapplicable, and the applicable rules are Rule 19, 33 U.S.C.A. § 2019 (West 1986), which applies to the conduct of vessels in restricted visibility, and Rules 2 and 8 as noted above.
52. Diamond B, Bennett and the Texaco employees criticize the CANE RIVER's speed However, the evidence at trial established that the CANE RIVER was proceeding downriver at bare steerage — the slowest speed possible without losing control of the vessel. In light of the restricted visibility, the Court finds bare steerage to be a safe speed. Diamond B further contends that bare steerage was not fast enough. However, the Court finds that the MISS BERNICE was moving so fast that, even at an increased speed, the CANE RIVER could not have gotten out of her way in. the several seconds before the collision.
53. Safe speed is a question of fact that must be evaluated in light of all prevailing conditions and circumstances. Diamond B, Bennett and the Texaco employees urge the Court to apply the "Rule of Sight," which suggests that a vessel is going too fast if it cannot stop within the distance of visibility. However, since the MISS BERNICE was far exceeding the moderate speed required by law, the "Rule of Sight" is inapplicable. See St. Philip Offshore Towing Co., 466 F. Supp. at 409. Instead, applying the "Bare Steerage Rule," the Court concludes that the CANE RIVER was proceeding at a safe and moderate speed.
54. Since the MISS BERNICE was traveling upriver at full speed in heavy fog, the Court does not find that the CANE RIVER could have avoided her at any speed. Therefore, the CANE RIVER's speed did not contribute to the collision.
55. Diamond B also suggested that Heller had become disoriented in the fog and failed to maintain the CANE RIVER's course. However, no evidence at trial supported this theory.
56. Diamond B, Bennett and the Texaco employees argued that the CANE RIVER was negligent in failing to sound proper fog signals. The question of whether or not the CANE RIVER sounded fog signals is irrelevant because Bennett could not have heard them over the noise of the MISS BERNICE's engines. Moreover, Bennett saw the CANE RIVER on radar, and fog signals would not have given him any more knowledge than he already had.
57. Diamond B, Bennett and the Texaco employees argued that Trico was negligent because Mate Heller was at the wheel instead of Captain Cheramie. Although this may have been a violation of Trico's company policy, it was not a violation of law. At the time of the collision, Heller held a license that qualified him to operate the CANE RIVER. Furthermore, the Court finds that Heller competently navigated the vessel, and there is no evidence that Captain Cheramie could or would have done anything different.
58. When the MISS BERNICE emerged from the fog, the CANE RIVER was placed in extremis through no fault of its own. In fact, Bennett frankly admitted that he took away both his and the CANE RIVER's options. In an in extremis situation, any errors in judgment are to be leniently judged. Afran Transp. Co. v. S/S Transcolorado, 458 F.2d 164, 166-167 (5th Cir. 1962) (citations omitted). In light of the situation, the Court finds that Heller's decision to put the engines in neutral and try to locate the MISS BERNICE was prudent and reasonable.
c. CAUSATION .
59. As was explained above, the CANE RIVER was not negligent and did not violate any Rules. However, even if she were negligent, her actions were not a legal cause of the collision, which was solely caused by the MISS BERNICE, her captain, and owner.
60. For fault to produce liability, it must be contributory and a proximate cause of the collision, and not be just fault in the abstract. See St. Philip Offshore Towing Co., Inc., 466 F. Supp. at 410. Although he knew exactly where the CANE RIVER was, Bennett ran right into her at full speed. These actions prevented the CANE RIVER from doing anything to avoid the collision.
61. Moreover, the Court finds that the. CANE RIVER did not cause the second and third collisions, which resulted from Bennett's loss of control after he was incapacitated.
d. LIMITATION OF LIABILITY — TRICO .
62. Since the Court has found that Trico is entitled to exoneration, it is not necessary to consider whether Trico is entitled to limitation. However, had the Court reached that issue, it would have granted Trico limitation of liability because Trico had no knowledge or privity of the alleged unseaworthiness or acts of negligence.
C. ALLOCATION OF FAULT .
63. For the reasons stated above, the Court finds that Trico, the CANE RIVER and her officers and crew were without fault and should be exonerated.
64. The Court further finds that the collision was caused by the unseaworthiness of the MISS BERNICE and the negligence of Captain Bennett and Diamond B's management. As required by United States v. Reliable Transfer Co., Inc., 421. U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), the Court hereby apportions fault as follows: Bennett 75%, Diamond B 25%.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW — DAMAGES .
A. TRICO .
1. As a result of the collision, the CANE RIVER sustained physical damage, and Trico incurred surveyor's fees. The parties stipulated that Trico incurred $43,167.09 in total damages, consisting of $38,111.34 in surveyor's fees and repair costs and $5,055.75 in extra wages and overtime charges. In addition, since Trico was not at fault, it is entitled to full indenmity from Diamond B and Bennett for any damages that may be assessed against Trico in any other proceeding.
B. CHERAMIE AND HELLER
2. Since Trico is free from fault, Cheramie and Heller are also entitled to full indemnity from Diamond B for any damages that may be assessed against them in the state court litigation.
C. DIAMOND B .
3. The parties stipulated that Diamond B incurred $18,766.00 in surveyor's fees and repair costs to the MISS BERNICE.
D. WAYNE THIBODAUX .
4. At the time of trial, Wayne Thibodaux was 48 years old He has a high school education.
5. During the collision, he was seated in the cabin of the MISS BERNICE and was briefly knocked unconscious when he was thrown forward into a table.
6. Thibodaux was diagnosed with a head contusion and fractured ribs, and complained of neck pain, vision problems, and ringing in his ears. He did not sustain any significant or permanent head injury.
7. The evidence established that Thibodaux's hearing and vision problems are unrelated to the collision. His doctors reported that his vision problems were the result of natural aging changes and his hearing problems pre-existed the collision.
8. Thibodaux complained of neck pain after the collision, but on cross examination, he admitted having previous neck problems. His treating physician, Dr. Katz, said the collision may have simply aggravated a preexisting condition. His other treating physician, Dr. Donner, was presented with Thibodeaux's prior medical records and asked if they indicated he was symptomatic before the collision. Dr. Donner responded, "It would be pretty suspicious, wouldn't it?"
9. After the collision, Thibodaux was diagnosed with degenerative disc disease at C5-6 and osteophite formation. These conditions preexisted the collision.
10. In determining Thibodeaux's general damages, the Court considers his past neck problems and his attempt to conceal-them. In light of the circumstances of this case and the general damage awards made in other cases, see, e.g., Andrus v. State Farm Mut. Auto Ins. Co., 670 So.2d 1206 (La. 1996); Mathews v. Dousay, 689 So.2d 503 (La.App. 3d Cir. 1997); James v. Webb, 643 So.2d 424 (La.App. 3d Cir. 1994), writ denied, 648 So.2d 396 (La. 1994); Rivet v. LeBlanc, 600 So.2d 1358 (La.App. 1st Cir. 1991), writ denied, 605 So.2d 1115 (La. 1992); Rodrigue v. Firestone Tire Rubber Co., 540 So.2d 477 (La.App. 1st Cir. 1989), writ denied, 546 So.2d 180 (La. 1989); Soudeher v. Miller, 537 So.2d 296 (La.App. 1st Cir. 1988); Aucoin v. McBR Mgmt. Co., 525 So.2d 265 (La.App. 1st Cir. 1988), the Court concludes that an award of $50,000.00 in general damages is appropriate for Thibodaux's injuries.
11. The parties stipulated that Texaco paid a total of $50,936.74 in past medical expenses. However, $2,383.00 of that amount is unrelated to the collision and therefore not recoverable. The remaining $48,553.74 is properly recoverable as damages.
12. Thibodaux has returned to work. His cervical condition is stable, and doctors have not recommended further treatment. Accordingly, he is not entitled to future medical expenses
13. The Court accepts Dr. Kenneth Boudreaux's calculation of Thibodaux's past wage losses at $26,483.67, which takes into account that, under Texaco's wage continuation plan, Thibodaux was paid fill wages from the day of the accident until September 1999. These wages are not excludable as a collateral source because (I) the Texaco employees introduced them at trial and therefore waived any objection and (2) receiving wages from Texaco and as damages would allow double recovery. Finally, since the Texaco employees failed to elaborate on the wage continuation plan, the Court cannot apply the five factor test of Phillips v. Western Company of North America, 953 F.2d 923, 932 (5th Cir. 1992) and Davis v. Odeco, 18 F.3d 1237, 1244 (5th Cir. 1994). Accordingly, the Texaco plaintiffs are not entitled to recover lost wages until those payments stopped.
14. Thibodaux's counsel stipulated that he has no future wage loss, as he has returned to work and is earning his regular wages.
15. The Court concludes that an award of $125,037.41 will compensate Thibodaux for his injuries. That award is comprised of the following:
General Damages $50,000.00 Past Medical Expenses 48,553.74 Future Medical Expenses 0.00 Past Wage Loss 26,483.67 Future Wage Loss 0.00 Total Recoverable Damages $125,037.41E. LONNIE FONTENOT .
16. At the time of trial, Lonnie Fontenot was 49 years old. He has an eleventh grade education.
17. At the time of the collision, he was seated in the passenger area of the MISS BERNICE. He attempted to stand up at the first impact, and fell and hit his head at the second impact.
18. After the collision, Fontenot spent two weeks in the hospital, suffering from fractured ribs, a partially collapsed lung, a right kidney laceration, and neck pain. The Court finds that Fontenot sustained the internal injuries in the first impact and neck injuries in the second.
19. Fontenot had a preexisting neck problem that was aggravated by the second impact. Evidence at trial established that he had degenerative disc disease in his neck and his low back prior to March 25, 1999. He had a discectomy and anterior cervical fusion in February 2000, but his surgeon, Dr. Smith, could not conclude that the collision caused the cervical problem. The Court agrees with Dr. Smith's recommendation that Fontenot can perform sedentary to light work, and possibly heavier labor after physical therapy.
20. In November 1999, Dr. Rivera, who initially treated Fontenot's kidney condition, recommended that he have his right kidney removed to control his preexisting hypertension.
21. The Court finds that Fontenot has not mitigated his damages. He delayed his kidney removal surgery until February 2001. He has failed to follow Dr. Rivera's instruction to lose fifty pounds to control his hypertension. Finally, he did not seek gainful employment after Dr. Smith released him to light or sedentary work in June 2000 and has made no effort to obtain his GED.
22. Dr. Phillip Boudreaux removed Fontenot's kidney on February 13, 2001. The results have been positive.
23. Considering all the circumstances of Fontenot's case and the amounts awarded in other cases, the Court concludes that $175,000 is an appropriate general damage award. Of that amount, the Court allocates $100,000 to Fontenot's internal injuries, see Bell v. USAA Cas. Ins. Co., 707 So.2d 102 (La.App. 2d Cir.), writ denied, 718 So.2d 434 (La. 1998); Walker v. Am. Honda Motor Co., Inc., 640 So.2d 794 (La.App. 3d Cir.), writ denied, 644 So.2d 644 (La. 1994); Hackman v. S. Farm Bureau Ins. Co., 629 So.2d 531 (La.App. 5th Cir. 1993), writ denied, 635 So.2d 1109 (La. 1994); Ellision v. Valley Ford Ins. Co., 571 So.2d 726 (La.App. 2d Cir. 1990), writ denied, 577 So.2d 14 (La. 1991), and $75,000 for the cervical fusion. See cases cited above in discussing Thibodaux's general damage award.
24. The parties stipulated that Texaco has paid a total of $87,080.31 in reasonable medical expenses. Of that amount, $59,545.11 was for the internal injuries; $26,184.20 was for the preexisting neck condition aggravated by the second impact; and $1,351.00 was unrelated to the accident and therefore not recoverable.
25. Fontenot's kidney removal surgery cost $46,500.00. He is expected to recover fully, and his blood pressure is expected to stabilize. He should have reached maximum improvement for his neck by February 2001 and should not need any further treatment. Therefore, Fontenot should have no future medical expenses.
26. Fontenot claims to suffer from continuing back pain. Dr. Farris testified that he had a soft tissue injury to the low back that should have resolved within a year to sixteen months after the accident. Dr. Carlos Gorbitz, reported on October 12, 1999 that Fontenot's low back complaints "are minimal, and they are entirely related to degenerative disc disease, and preexisted the accident."
27. The Court adopts Dr. Boudreaux's calculations that by not working at all, Fontenot has lost $49,821.37 in past wages through the time of trial. However, this amount must be reduced because Fontenot did not work after he was released to do so. The Court finds that $35,000 will adequately compensate Fontenot for his past wage loss.
28. As noted above, Fontenot should have reached maximum medical improvement from his neck surgery by February 2001 and should have no permanent restriction from the kidney surgery. Since he and Thibodeaux are approximately the same age and had identical neck surgeries, the Court concludes that Fontenot, like Thibodaux, should also be able to return to work soon, especially in-light of Texaco's strong return to work program and compliance with the Americans With Disabilities Act.
29. Fontenot suggested at trial that he planned to retire at age 65. However, on a questionnaire to psychologist Brian Jordan, he indicated his goal was to retire at age 55. He also told vocational rehabilitation expert Jennifer Palmer that he could retire at age 55 but might work to age 60-62. Since these statements were made after the litigation was filed to experts that Fontenot knew were retained to evaluate his psychological condition and vocational prospects, the Court finds them to more accurately indicate his true intentions and finds that Fontenot likely would have worked until age 60. The Court rejects Adrienne Kern Locascio's opinion that Fontenot is unemployable and has no transferable skills, and adopts Jennifer Palmer's conclusion that even if he could not return to work for Texaco, Fontenot's experience, education, test scores and transferable skills will allow him to earn an excellent living. The Court concludes that Fontenot should be able to return to work for Texaco and that an award of $45,000.00 will compensate for his future wage loss. The Court also notes that Fontenot's wage losses are entirely attributable to his cervical injuries and surgery.
30. The Court finds that Fontenot's total recoverable damages are $387,229.31. of that amount $206,045.11 is attributable to the internal injuries sustained in the first impact and $181,184.20 is attributable to the cervical injuries sustained in the second impact. Those damages are comprised of the following:
First Impact
General Damages $100,000.00 Past Medical Expenses (Internal Injuries) 106,045.11 Past Wage Loss (attributable to Internal Injuries) 0.00 Future Wage Loss (attributable to Internal Injuries) 0.00 Total Recoverable Damages (First Impact) $206,045.11Second Impact
General Damages (Cervical Injury) $ 75,000.00 Past Medical Expenses (Cervical Injury) 26,184.20 Future Medical Expenses (Cervical Injury) 0.00 Past Wage Loss (attributable to Cervical Injury) 35,000.00 Future Wage Loss (attributable to Cervical Injury) 45,000.00 Total Recoverable Damages (Second Impact) $181,184.20F. ALAN LEBLANC .
31. At the time of trial, Alan LeBlanc was 54 years old. He has a GED and two years at Delgado.
32. LeBlanc was seated behind Fontenot during the collision. He was initially thrown forward into a table, but then moved to the stern deck and held onto the cabin door. Since LeBlanc advised Dr. Katz that he hurt his low back while holding onto the door, the Court finds that the back injury occurred during the second impact..
33. LeBlanc spent two nights in the hospital. He has had arthroscopic surgery to his left knee and left shoulder for injuries sustained in the initial impact. He has fully recovered from both surgeries.
34. LeBlanc had preexisting spondylolisthesis at L4-5 and had a laminectomy in April 2000. The Court finds this surgery was primarily to correct preexisting degenerative conditions and, if related at all to the collision, is causally related only to the second impact. At trial LeBlanc initially denied missing work due to his preexisting back problems, but he recanted on cross examination when confronted with work records that indicated he was out for several weeks with a lumbar strain. LeBlanc's counsel argued that the fusion was unsuccessful and further surgery may be needed. However, LeBlanc's surgeon, Dr. Katz, did not agree, explaining that, "A lot of people will have setbacks where they continue to have some pain, and then they get better again as the fusion matures." Deposition of Dr. Katz, p. 51, lines 12-15.
35. Several months after the collision, LeBlanc began complaining of neck pain. He had cervical fusion in December 2000. However, LeBlanc's medical records established that his cervical problem was preexisting and- unrelated to the collision.
36. LeBlanc also suggested at trial that he developed a glaucoma problem as a result of the incident. However, he admitted to the Court that his symptoms preexisted the collision.
37. In light of all the circumstances of LeBlanc's case and the amounts awarded in other cases, the Court finds that an award of $160,000 is appropriate for LeBlanc's general damages. of that amount, $35,000 is attributable to the arthroscopic surgeries that were related to the.. initial impact. See Wyatt v. Red Stick Servs., Inc., 711 So.2d 745 (La.App. 3d Cir. 1998); Parker v. Depriest, 666 So.2d 433 (La.App. 1st Cir. 1995), writ denied, 671 So.2d 335 (La. 1996); Use v. Use, 654 So.2d 1355 (La.App. 1st Cir. 1995); James v. Webb supra. $125,000 is attributable to LeBlanc's lumbar surgery, which is related only to the second collision. See Fireman's Fund Ins. v. Browning-Ferris Indus., 714 So.2d 168 (La.App. 2d Cir. 1998); Hunter v. Kroger Co., 600 So.2d 837 (La.App. 3d Cir. 1992); Robichaux v. Randolph, 555 So.2d 581 (La.App. 1st Cir. 1989), aff'd., 563 So.2d 226 (La. 1990); James Webb supra.
38. The parties stipulated that Texaco paid $104,488.81 in reasonable medical expenses. Of that amount, $32,721.24 was for the arthroscopic surgeries related to the initial impact; $19,254.11 was for the lumbar surgery related to the second impact; and $52,513.46 was either for the cervical fusion, which is not related to the collision, or was otherwise unrelated and is therefore not recoverable.
39. LeBlanc has fully recovered from his knee and shoulder surgeries. There is no evidence that it is more likely than not that he will need additional low back surgery, but the possibility has not been conclusively ruled out. Accordingly, the Court concludes that LeBlanc is entitled to $5,000.00 for future medical expenses.
40. LeBlanc has been out of work from the day of the collision through trial. The Court accepts Dr. Boudreaux's calculation that LeBlanc's wage loss through trial is $46,826.21.
41. The Court rejects Adrienne Kern Locascio's opinion that LeBlanc has no transferable skills and is not employable. Rather, the Court adopts Jennifer Palmer's opinion that LeBlanc has strong skills and can return to work in one of the occupations identified by Ms. Palmer.
42. During his vocational evaluation with Jennifer Palmer, LeBlanc stated that he would assess his wish to retire from Texaco from year to year after reaching age 55 in December 2001. Although some evidence suggested that LeBlanc wished to retire at age 55, the Court finds it more reasonable to assume he would have worked to the end of his regular work life. See Masinter v. Tenneco Oil Co., 867 F.2d 892 (5th Cir. 1989), modified on other grounds, 934 F.2d 67 (5th Cir. 1991) (stating that, in awarding damages for future loss of earnings, the Court's task is to compensate for those damages or losses that are reasonably likely to have occurred). The Court adopts Dr. Boudreaux's calculation of future earnings losses at $12.00/hour, which totals $99,736.31. These earnings losses relate to LeBlanc's back injury, which was solely caused by the second impact.
43. LeBlanc's recoverable damages total $363,537.87. of that amount, $67,721.24 is attributable for the shoulder and knee injuries suffered in the first impact, and $295,816.63 is for the back injury suffered in the second impact. The recoverable damages are comprised of the following amounts:
First Impact
General Damages $35,000.00 Past Medical Expenses (Knee/Shoulder Injuries) 32,721.24 Future Medical Expenses (Knee/Shoulder Injuries) 0.00 Past Wage Loss (attributable to Knee/Shoulder Injuries) 0.00 Future Wage Loss (attributable to Knee/Shoulder Injuries) 0.00 Total Recoverable Damages (First Impact) $67,721.24Second Impact
General Damages (Back Injury) $125,000.00 Past Medical Expenses (Back Injury) 19,254.11 Future Medical Expenses (Back Injury) 5,000.00 Past Wage Loss (attributable to Back Injury 46,826.21 Future Wage Loss (attributable to Back Injury) 99,736.31 Total Recoverable Damages (Second Impact) $295,816.63G. JAMES BENNETT .
44. Bennett is 52 years old and has a seventh grade education.
45. At the time of the collision, Bennett was operating the MISS BERNICE and was seated in the captain's chair. He was not wearing his seatbelt even though he had previously been injured when he was thrown from the captain's chair into the console of the MISS BERNICE after grounding the vessel at full speed. In the instant collision, Bennett was thrown forward and smashed his head into the windshield, shattering it. He was apparently knocked unconscious for a short period of time. Consequently, he was unable to control the vessel, and this lack of control caused the second and third impacts.
46. The medical evidence clearly established that all of Bennett's injuries were caused by his head striking the vessel's windshield. The Court has previously found that the sole proximate cause of Bennett's injuries was his negligence in failing to wear his seatbelt. Because Bennett's injuries were solely caused by his own negligence, he is not entitled to recover on any of his claims.
IV. CONCLUSION .
In light of the foregoing findings of fact and conclusions of law, judgment is entered as follows:
Trico and the O.S.V. CANE RIVER are exonerated. All claims of all parties against Trico and the CANE RIVER are dismissed with prejudice. Trico is awarded a total of $43,167.09 against Diamond B and Bennett Judgment is also rendered in favor of Trico and against Diamond B and Bennett for full indemnity for any damages that may be assessed against Trico in any other proceeding.
Judgment is rendered in favor of Cheramie and Heller and against Diamond B for full indemnity for any damages that may be assessed against either of them in any other proceeding.
Diamond B did not plead claims against any party other than Trico. Since Trico has been exonerated, Diamond B's damage claim is dismissed with prejudice.
Diamond B's petition for exoneration or limitation of liability is denied and dismissed with prejudice.
Wayne Thibodaux is awarded total damages of $125,037.41. Judgment is rendered in favor of Thibodaux and against Diamond B in the amount of $125,037.41.
Lonnie Fontenot is awarded total damages of $387,229.31, of which $206,045.11 is attributable to the first impact and $181,184.20 is attributable to the second impact. Judgment is rendered in favor of Fontenot and against Diamond B in the amount of $387,229.31.
Alan LeBlanc is awarded total damages of $363,537.87, of which $67,721.24 is attributable to the first impact and $295,816.63 is attributable to the second impact. Judgment is rendered in favor of LeBlanc and against Diamond B in the amount of $363,537.87.
Bennett's injuries and damages were caused solely by his own fault, so he is not entitled to recover from any other party. His claims are dismissed with prejudice.
Prejudgment interest is awarded at the federal rate with respect to the elements of each award that have been specifically designated as compensation for past losses.