IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-60626
Summary Calendar
_____________________
SARAH ANN LOWRY, ET VIR KENNETH O. LOWRY,
Plaintiff-Appellee,
and
KENNETH O. LOWRY,
Plaintiff,
versus
OVERSEAS BULK TANK CORPORATION
AND MARITIME OVERSEAS CORPORATION,
Defendants,
and
OVERSEAS BULK TANK CORPORATION,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
(93-CV-336)
_________________________________________________________________
(July 21, 1995)
Before JOHNSON, BARKSDALE, and PARKER, Circuit Judges.*
JOHNSON, Circuit Judge:
Ship agent claiming she was injured when boarding a vessel
brought suit against the owner of the vessel contending that her
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
injuries were caused by the failure to provide a reasonably safe
means of ingress to the vessel. After a bench trial, the district
court found the vessel owner fifty percent liable and the agent
fifty percent liable for the injuries and awarded judgment to the
agent. Vessel owner now appeals and we AFFIRM.
I. FACTS AND PROCEDURAL HISTORY
Sarah Ann Lowry was employed by Evans RUR as a ship agent and
was assigned to "enter and clear" the M/V OVERSEAS ARCTIC through
customs and immigration and to make arrangements to have payroll
brought aboard the vessel. Lowry arrived at the dock at about 9:00
A.M. on February 29th, 1992 and, along with two customs officers,
an immigration officer and some security guards, awaited the
arrival of the vessel. When the vessel arrived and was made fast
to the dock, shoreside personnel placed the gangway on the ship's
rail.
At this point Lowry, the customs and immigration officers, and
the security guards proceeded up the gangway. Upon reaching the
top of the gangway, this party discovered that the bulwark ladder,
a movable device which provides steps from the gangway to the
vessel's deck, had not yet been placed by the crew. The customs
and immigration officials jumped from the gangway to the vessel's
deck, a distance of approximately forty inches. Lowry sat down on
the gangway's edge and, with the help of an immigration officer and
a security guard who supported her arms, hopped down to the deck.1
1
Shortly after this party boarded the vessel, the crew
secured the bulwark ladder to the gangway.
2
Lowry completed her duties that day without reporting any injuries.
The next day, however, Lowry went to the Brazos Memorial
Hospital Emergency Room to be treated for back pain. She returned
two days later with similar complaints. Her treatment thereafter
continued for several months and she required surgery in October of
1992.
Lowry filed a complaint in redress of her injuries seeking
damages against Overseas Bulk Tank Corporation (Bulk Tank), the
owner of the vessel.2 After a trial to the bench, the district
court found equal negligence between Bulk Tank, who failed to
provide a safe means of ingress, and Lowry, who should have waited
for the bulwark ladder to be secured. Further, the district court
found that Bulk Tank's negligence caused Lowry's injuries.3
Accordingly, the district court awarded Lowry fifty percent of her
medical expenses, lost future earning capacity, past earning loss,
and pain and suffering. Bulk Tank timely appealed.
II. DISCUSSION
A. Duty and Breach
In an admiralty action tried to the bench, factual findings of
the district court are binding unless clearly erroneous. Avondale
Industries, Inc. v. international Marine Carriers, Inc., 15 F.3d
2
Lowry also pursued claims against Maritime Overseas Cor-
poration, the operator of the vessel, but those claims were
dismissed with prejudice during trial and are not before us.
3
Additionally, the district court determined that Lowry
was not a maritime worker as defined by the Longshore and Harbor
Workers Compensation Act, 33 U.S.C. § 901 et seq. and, therefore,
general maritime law governs this case. The parties do not
dispute this finding.
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489, 492 (5th Cir. 1994). Further, questions concerning the
existence of negligence and causation are treated as factual issues
subject to the clearly erroneous standard. Id. A factual finding
is not clearly erroneous if it is plausible in light of the record
taken as a whole. Anderson v. City of Bessemer City, 470 U.S. 564,
573-74, 105 S.Ct. 1504, 1511 (1985). Questions of law are reviewed
de novo. Dow Chemical Company v. M/V ROBERTA TABOR, 815 F.2d 1037,
1042 (5th Cir. 1987).
General principles of negligence guide the analysis of a
maritime tort case. Daigle v. Point Landing, Inc., 616 F.2d 825,
827 (5th Cir. 1980). To prove negligence under general maritime
law, a plaintiff "must demonstrate that there was a duty owed by
the defendant to the plaintiff, breach of that duty, injury
sustained by the plaintiff and a causal connection between
defendant's conduct and plaintiff's injury." In re Cooper/T.
Smith, 929 F.2d 1073, 1077 (5th Cir.), cert. denied, 112 S.Ct. 190
(1991).
Under general maritime law, a defendant owes a plaintiff a
duty of ordinary care, which includes a duty to warn only of harm
that is reasonably foreseeable. Casaceli v. Martech Int'l, Inc.,
774 F.2d 1322, 1328-29 (5th Cir. 1985). The circumstances of the
danger and the defendant's knowledge of the risk determine the
required degree of care. Id. at 1329. A harm is a "foreseeable
consequence of an act or omission if harm of a general sort to
persons of a general class might have been anticipated by a
reasonably thoughtful person, as a probable result of the act or
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omission, considering the interplay of natural forces and likely
human intervention." Consolidated Aluminum Corp. v. C.F. Bean
Corp., 833 F.2d 65, 68 (5th Cir. 1987), cert. denied 108 S.Ct. 2821
(1988).
The duty implicated in this case is a shipowner's duty to
exercise reasonable care under the circumstances toward those
lawfully aboard the vessel who are not crewmembers. Kermarec v.
Companie Generale Transalantique, 358 U.S. 625, 630, 79 S.Ct. 406,
409 (1959). Included within this duty is the duty to provide a
safe means of ingress to the vessel. See Massey v. Williams-
McWilliams, Inc., 414 F.2d 675, 679 (5th Cir. 1969) (shipowner has
duty to provide safe egress for crewmembers), cert. denied, 90
S.Ct. 282 (1970).
The district court herein found that Bulk Tank breached this
duty to provide a safe means of ingress to its vessel because the
gangway without a bulwark ladder constituted a dangerous condition
and Bulk Tank failed to prevent access to the vessel until the
ladder was in place. The bulwark ladder was secured to the gangway
within minutes after Lowry boarded, though. Thus, the district
court also found that, especially in light of her physical
limitations, Lowry could have easily postponed boarding the vessel
despite her perceived need to board simultaneously with the customs
and immigration officials. Accordingly, the district court
determined that the parties were equally negligent.
We conclude that the findings as to Bulk Tank's breach of duty
are plausible in light of the record as a whole. First, there was
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testimony showing that the shore gangway is commonly placed aboard
a vessel without permission or notification, that persons commonly
board vessels before completion of the docking procedures, and that
it is not safe for persons to board a vessel before such
completion. Thus, the record shows that gangway accidents were
foreseeable. Moreover, the record shows that, despite the
foreseeability of this type of harm, the captain did not take steps
to ensure safe ingress to the vessel such as assigning a crewmember
to the gangway to prevent access before placement of the bulwark
ladder. Hence, it was plausible for the district court to conclude
that the resultant harm to Lowry was a foreseeable consequence of
the failure to secure the bulwark ladder before allowing access to
the vessel.
Moreover, we cannot agree with Bulk Tank's chief argument
that, as opposed to merely being fifty percent negligent, Lowry was
100 percent negligent because, despite the obvious danger posed by
the lack of the bulwark ladder, she impatiently jumped to the deck.
The essence of this argument is that Bulk Tank simply could not
foresee that Lowry would jump. However, as noted above, there was
testimony that persons commonly board the vessel before docking
procedures are completed. Moreover, everyone else in the boarding
party--two customs agents, an immigration official and two security
guards--jumped. While Bulk Tank claims it was unable to divine
that persons boarding the vessel would, instead of waiting for the
bulwark ladder to be secured, attempt to negotiate the forty inches
between the gangway and the deck, we are unsurprised. We agree
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with the district court that it was negligent for Lowry to do so,
but we cannot agree that this was the sole cause of the accident.
Lastly, we cannot agree with Bulk Tank that the district court
applied the strict liability doctrine of unseaworthiness to its
analysis. Although the district court did cite several Jones Act
cases to establish a shipowner's duty to provide safe ingress and
egress to and from its vessel, the court's analysis focused on its
determination of Bulk Tank's duty to exercise reasonable care and
its breach of that duty.
Accordingly, we conclude that the district court did not
clearly err in determining that Bulk Tank breached its duty to
provide a safe means of ingress to its vessel.
B. Causation and Damages
In this issue, Bulk Tank initially argues that Lowry's
injuries were not caused by the incident on the vessel. Under
general maritime law, a party's negligence is actionable only if it
is a "legal cause" of the plaintiff's injuries. Donaghey v. Ocean
Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).
Legal cause is "something more than `but for' causation, and the
negligence must be a `substantial factor' in the injury." Id.
(citation and internal quotation omitted). Substantial factor
means more than but for the negligence, the harm would not have
resulted. Id. A district court's finding relating to legal cause
is a fact finding reviewed only for clear error. Avondale
Industries, 15 F.3d at 492.
This argument by Bulk Tank is basically a recitation of the
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evidence at trial from which the district court could have
determined that the incident on the vessels was not the cause of
Lowry's injuries. Hence, Bulk Tank stresses that Lowry had pre-
existing back problems and that the jump from the gangway to the
deck was very short. Further, Bulk Tank points to conflicting
medical testimony and a later injury involving a fall down some
stairs. Undoubtedly, this evidence could have supported a finding
by the district court that the jump from the gangway was not the
legal cause of the accident.
However, there was also evidence in the record supporting the
determination that the district court did make--that Bulk Tank's
negligence was the legal cause of the accident. Although Lowry did
have pre-existing back problems, the district court noted that she
had not needed treatment for those problems for more than two years
before the incident on the vessel. However, the day after the
incident on the vessel, Lowry obviously began having problems with
her back. Further, both Dr. Southern, the physician who performed
the surgery on Lowry, and Dr. Kilian, the physician who treated
Lowry immediately after the accident, attributed the injuries to
the jump from the gangway. In light of this evidence, we cannot
say that the district court's conclusion was implausible in light
of the record as a whole. See Anderson, 105 S.Ct. at 1511. Thus,
the district court did not clearly err in finding that Bulk Tank's
negligence was the legal cause of Lowry's injuries.
Finally, Bulk tank contests the district court's calculation
of damages arguing that Lowry's damages for lost wages should be
8
limited to her period of temporary disability. This is because,
according to Bulk Tank, the medical evidence showed that after she
reached maximum medical improvement, she could have returned to
work at substantially the same wages.
Trial courts are given great latitude in determining the
amount of damages to be awarded, and that determination should not
be set aside unless clearly erroneous. See Nichols v. Petroleum
Helicopters, Inc., 17 F.3d 119, 121 (5th Cir. 1994). Reversal is
not appropriate unless, after reviewing the entire record, this
Court is left with the unequivocal impression that a mistake has
been made. Id.
In this case, Drs. Kilian and Southern both treated Lowry
after the surgery. Both doctors testified that Lowry would be
unable to work in a job that required prolonged sitting or
standing, stooping, bending, or heavy lifting. Dr. Kilian
testified that Lowry suffered from constant pain that prevented her
from working at the time of his testimony. Further, Viola Lopez, a
vocational rehabilitation expert, testified that Lowry's previous
job was not within the physical restrictions imposed by the
doctors. Lopez also testified that Lowry's ability to secure
employment in the future would be adversely affected by her medical
condition. Considering this evidence, we cannot say that the
district court's finding as to Lowry's ability to return to work is
implausible in light of the record as a whole. See Anderson, 105
S.Ct. at 1511.
Accordingly, we find no clear error in the district court's
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findings as to causation and damages.
III. CONCLUSION
For the reasons stated above, the judgment of the district
court is AFFIRMED.
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