Case Information
*2 Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges
BENAVIDES, Circuit Judge:
Before the Court are a number of issues stemming from the horrific ordeal of Seth A. Becker, a young man catastrophically injured while at sea on a gravel-packing assignment at an offshore oil rig. In a lawsuit involving multiple defendants and causes of action, the jury sitting in the district court found for plaintiff, awarding him damages in excess of $43 million. A number of issues, the most significant of which being whether plaintiff is a seaman under the Jones Act, 46 U.S.C. app. § 688 (2000), are before this Court on appeal. Because we determine that plaintiff is not a Jones Act *3 seaman, it is unnecessary to address all but one of the remaining issues. Accordingly, the matter must be, and is, remanded to the district court for proceedings not inconsistent with this opinion.
I.
This case concerns injuries sustained while at sea by plaintiff-appellee Seth A. Becker, a 22 year-old who had just finished the fourth year of a five-year program at Montana Tech University, where he was studying mechanical and petroleum engineering. For the summer of 1999, plaintiff accepted a full-time position working for defendant Baker Hughes, Inc. (Baker), as he had done the previous two summers. [1]
Plaintiff’s internship began as the previous two had—plaintiff was assigned to land-based work. Specifically, Baker had planned that plaintiff engage and gain knowledge in a variety of areas over the course of the summer, including oil pumping, screen manufacturing for sand control, repairing fishing tools, and, apparently, foremost, learning directly from Baker’s team of regional engineers. Of these activities, only the oil pumping assignments implicated vessels and boating. Still, despite Baker’s largely land-based plan for plaintiff, a superior at Baker expressed hopefully that Baker would “try to get [plaintiff] out on a boat” at some point during the summer. Plaintiff spent the first two weeks of the internship working on land in Baker’s shop, performing relatively basic tasks such as cleaning and checking equipment that had returned from the field. At a later point, plaintiff was offered the opportunity to observe a gravel-packing operation on a Vastar offshore fixed platform. Before this trip, plaintiff received some brief offshore safety and training information, which included videos, personal instructions, a written safety test, and water survival training. On the trip *4 to the platform, plaintiff was a passenger, although he engaged in work for Baker upon arriving at the platform. As plaintiff returned from this trip, Baker determined that its technology vessel, the M/V Republic Tide (“Republic Tide”) needed two workers to replace two members of the requisite six-person crew who had served at sea for an extended period of time and were in need of time off. Baker assigned plaintiff to the Republic Tide, instructing him to “learn as much as you can.” Despite plaintiff’s intern st atus, the record reflects that he filled one of the required six positions on the Republic Tide, engaged in real work while onboard, and was treated no differently than the other workers on the vessel.
The Republic Tide was owned by defendant Tidewater, Inc., but had been time-chartered by Baker to service oil wells during gravel pack operations. Baker had used Tidewater’s vessel as its offshore technology pumping vessel since November or December 1998 and had specially modified it, installing tanks, generators, pumps, and a high pressure winch system, which included a hydraulic power unit, reel, hydraulic piping, 300 feet of 6-1/2-inch steel coflex hose, and various other kinds of sophisticated equipment. This equipment, which was owned, operated, and maintained by Baker, permitted Baker to use the Republic Tide for high pressure pumping operations competitive with those of other vessels in the Gulf of Mexico.
For this particular mission on the Republic Tide, Baker scheduled a twelve-hour trip to the R&B Falcon/Cliffs Rig 153 (“Cliffs Rig 153”), located in the Gulf of Mexico and owned by defendant Cliffs Drilling Co. and operated by defendant R&B Falcon Drilling USA, Inc. (collectively “Falcon”). En route to Cliffs Rig 153, the master of the Republic Tide and Tidewater employee, Captain Daniel Givens, provided plaintiff a minimal orientation, which took no more than fifteen minutes and consisted only of the general safety instructions—for instance, the location of life preservers and *5 where to abandon ship.
Things began to go terribly wrong on the first day of the mission. When the Republic Tide arrived at Cliffs Rig 153, the vessel was unable to drop anchor successfully and therefore its location had to be maintained using bow-thrusters, a fact of which plaintiff and the other crew members were not notified. To begin preparing for the gravel pack operation aboard the rig, the Baker employees, including plaintiff, unwrapped the Republic Tide’s coflex hose and ran it from the Republic Tide to Cliffs Rig 153. Although the winch system to which the hose was connected had a component manufacturer-installed emergency disconnect function, the manner in which the hose had been unwrapped would prevent this mechanism from triggering. There was no other way to disconnect the hose quickly and the record reflects that senior employees of Baker, Tidewater, and Falcon all recognized this potential danger.
To perform work on the rig, the Baker crew was lifted in a basket up to the rig floor. Shortly thereafter, the Republic Tide lost its bow-thrust and it became uncertain how long the vessel could hold its position. As a result, the coflex hose needed to be disconnected from the rig, and plaintiff and two other Baker employees were ordered to leave the rig floor and go to the main deck to perform this task. As plaintiff attempted to knock the coflex hose’s connections loose, the Republic Tide began to move.
Second-in-command on the Republic Tide, Captain Steven Lachney, was at the helm as the vessel drifted. With the stern moored to the rig by two six-inch ropes, Captain Lachney saw the six- inch rope tied to the port stern snap. Without warning anyone, Captain Lachney powered the port engine in reverse and the starboard engine in forward, causing the six-inch rope tied to the starboard stern also to snap. This, in turn, caused the Republic Tide to surge away from the rig, jerking the *6 coflex hose tight and pinning plaintiff against the catwalk backstop. The Republic Tide continued to swing in the strong current and the thick coflex hose, which had pinned plaintiff, began sawing through his legs to the point that they were almost entirely severed from his body. After sustaining this injury and losing nine pints of blood, plaintiff, who had remained conscious throughout the ordeal, was evacuated.
Plaintiff spent six weeks in the hospital, where he almost died. The parties stipulated that plaintiff’s total medical bills—including those incurred during his hospital stay—amounted to $487,920.48. During the time at the hospital, plaintiff’s legs were amputated below the knee, leaving a great deal of scar tissue. Furthermore, plaintiff endured bone infections and will require additional surgeries on his legs, potentially culminating with above-the-knee amputations, which will exacerbate plaintiff’s condition considerably. As a result of this accident, plaintiff suffers from post-traumatic stress disorder, chronic pain disorder, depression, low self-esteem, phantom pain, stump pain, neuropsychological, psychological, and emotional problems, short-term memory loss, concentration problems, sleep disturbances, and permanent brain damage due to his heavy loss of blood after the accident. Most, if not all, of these debilitations will persist and require ongoing treatment, counseling, and medication for the remainder of plaintiff’s life, which doctors have projected will last into his seventies.
Plaintiff subsequently sued Baker pursuant to the Jones Act, 46 U.S.C. app. § 688 and, in the alternative, the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901- 950 (2001). Plaintiff also filed suit against Tidewater, alleging a negligence claim under general maritime law and, in the alternative, under the LHWCA. Plaintiff also claimed that the Republic Tide was an unseaworthy vessel. Plaintiff further asserted negligence claims under general maritime law *7 against Falcon. Tidewater and two of its affiliates then asserted a third-party demand against Baker for contractual indemnity and defense under a pre-existing blanket charter agreement. Baker opposed Tidewater’s motion on the ground that the agreement did not contemplate indemnity for Tidewater’s gross negligence. Prior to the completion of discovery, the district court granted Tidewater’s motion for summary judgment on its indemnity claim against Baker.
Plaintiff later amended his complaint to add as defendants Tidewater’s underwriters, Pental Insurance Co. Ltd. and certain underwriters at Lloyd’s (“Underwriters”). The Underwriters cross- claimed and filed a motion for summary judgment against Baker, asserting the same indemnity rights as Tidewater under the blanket time charter, which motion was granted. [2] Baker also filed a motion for summary judgment on the issue of plaintiff’s seaman status, which motion was denied. Notwithstanding the district court’s rulings to the contrary, Baker persisted in its refusal to defend and indemnify Tidewater and the Underwriters, and continued to fight application of the agreement’s indemnity clause. Thus, Tidewater defended itself at trial, during which Baker attempted to prove Tidewater’s gross negligence so as to avoid indemnification.
Faced with indemnifying Tidewater’s liability, Baker filed third-party demands for products liability against Hydra Rig and Hydradyne Hydraulics for defects in the manufacture of the coflex hose and reel assembly installed on the Republic Tide. Plaintiff then amended his complaint to assert similar product liability claims against these companies, and against Coflexip Stena Offshore, Inc., the manufacturer of the coflex hose (collectively, “component manufacturers”).
In the parties’ joint submission of requested jury charges, Baker requested an instruction on *8 the issue of gross negligence, which was rejected. Baker also filed a motion asking the district court to reconsider the summary judgments granted to Tidewater and the Underwriters and urged its request for a jury charge on gross negligence. Again, this motion was denied. Baker also interposed a written objection to the line of the proposed verdict form allowing the jury to allot a separate amount of damages for “disfigurement and scarring,” which objection was ultimately denied.
Over the course of trial, a number of other disputes arose, including that concerning the testimony of Jamie Parr, Baker’s operations coordinator, as a witness for plaintiff’s case-in-chief. The district court excluded testimony given by Parr as to what plaintiff’s duties would be after the trip to the Cliffs Rig 153, because Parr admitted that he had no firsthand knowledge about Baker’s future plans for plaintiff and also because Parr could not testify with certainty about the scope of plaintiff’s future duties. Also controversial was the testimony of Captain Ronald Campana, an expert in vessel operations and boat-handling. The district court refused to allow a portion of Campana’s report that Tidewater’s senior employee, Ronald Frederick, had been “grossly negligent in the performance of his duties,” because he determined that such a statement invaded the jury’s ability to decide an ultimate issue.
All parties stipulated that plaintiff was an innocent victim and free from all fault. At the close of plaintiff’s case, Baker moved for judgment as a matter of law o n the issue of plaintiff’s seaman status, which motion was denied. At the close of all evidence, the court bifurcated the issues. The jury was asked first to decide whether plaintiff was a seaman under the Jones Act. It determined that plaintiff indeed was a seaman. Once this threshold determination was made, the remaining jury instructions regarding liability and damages reflected that plaintiff was a seaman and did not contemplate the alternate theories of recovery that plaintiff pled, such as those under the LHWCA. *9 The jury then found that Baker was negligent under the Jones Act, the Republic Tide was unseaworthy and a substantial cause of plaintiff’s injuries and that Tidewater and Falcon were negligent under general maritime law. The jury assigned 65 percent of the fault to Baker, 30 percent to Tidewater, and 5 percent of Falcon, although the parties were held to be jointly and severally liable. The jury found further that Coflexip, Hydradyne, and Hydrarig did not manufacturer a defective product and thus bore plaintiff no liability. The court also concluded that these companies were not liable to Baker.
The jury then awarded plaintiff $29 million in general damages, including $7 million for disfigurement and scarring. [3] The jury also awarded plaintiff $11 million in future medical and life care expenses, $3 million in future lost wages, and $56,000 in past lost wages. Judgment was entered in favor of plaintiff on the jury verdict and in favor of Tidewater and the Underwriters on the contractual indemnity claim. Baker timely moved for a new trial, or remittitur, arguing that the district court *10 erred in ordering Baker to indemnify Tidewater and the Underwriters, and that the award of damages was excessive and constituted an abuse of discretion. These motions were denied. The judgment was later amended to include judicial interest.
Presented for appeal are the following five issues:
(a) whether the district court erred in assigning plaintiff seaman status under the Jones Act;
(b) whether the district court erred in determining that there was sufficient evidence for finding Falcon 5 percent liable;
(c) whether the district court erred by not remitting the jury’s damages award; (d) whether the district court erred by finding no fault in the component manufacturers’ conduct; and
(e) whether the district court erred by determining that Baker must indemnify Tidewater. II.
A.
The threshold issue brought forth on this appeal is whether plaintiff is a seaman under the
terms of the Jones Act, codified at 46 U.S.C. app. § 688. Specifically, at issue is whether the district
court erred by allowing the jury to decide whether plaintiff is a seaman, and thus entitled to protection
under the Jones Act, or whether he is a longshoreman and therefore under the auspices of the
Longshore and Harbor Workers’ Compensation Act (LHWCA), codified at 33 U.S.C. §§ 901-950.
It is well-settled that the Jones Act and the LHWCA are “mutually exclusive compensation regimes.”
Harbor Tug and Barge Co. v. Papai
,
Although determination of whether an injured worker is a seaman under the Jones Act is a
*11
mixed question of law and fact and it is usually inappropriate to take the question from the jury,
judgment as a matter of law is mandated where the facts and the law will reasonably support only one
conclusion.
See Papai
,
A brief summary of the two statutes’ provisions and remedial schemes explains the litigation
posture of the parties, particularly the cross-claims of the defendants, in this case. The Jones Act
provides a cause of action permitting unlimited damages against the negligence of a plaintiff’s
employer.
Ferguson v. Moore-McCormack Lines
,
In contrast, the LHWCA provides a cause of action for injuries sustained by a broad range
of land-based maritime workers, excluding seamen covered by the Jones Act.
See Chandris
, 515
U.S. at 356. First, the LHWCA provides a no-fault workers’ compensation scheme against a
worker’s employer for the death or disability of anyone engaged in maritime employment to receive
medical costs, 33 U.S.C. § 907(a), prejudgment interest,
id.
§ 905, and two-thirds of the worker’s
salary for as long as the disability persists.
Id.
§ 908(a). Second, the LHWCA permits a restrictive
theory of negligence against a vessel as a third party to recover damages for injuries caused by vessel
negligence. 33 U.S.C. § 905(b).
See also Scindia Steam Nav. Co., Ltd. v. De Los Santos
, 451 U.S.
156 (1981); Joseph D. Cheavens,
Terminal Workers’ Injury and Death Claims
, 64 Tulane L. Rev.
361, 364 (1989).
[5]
An LHWCA plaintiff may also sue nonvessel third parties under general maritime
law tort principles.
Melerine v. Avondale Shipyards
,
To determine if an individual worker is a seaman, and therefore entitled to the protections of the Jones Act, the Supreme Court has established a two-prong test. First, “an employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission.” Chandris , 515 U.S. at 368. Second, “a seaman must have a connection to a vessel in navigation (or to an ident ifiable group of such vessels) that is substantial in terms of both duration and nature.” Id.
The Supreme Court in
Chandris
admitted that satisfying the first prong of the test is relatively
easy: the claimant need only show that he “do[es] the ship’s work.”
Id. See also In re Endeavor
Marine, Inc.
, 234 F.3d 287, 290 (5th Cir. 2000). This threshold requirement is “very broad,”
encompassing “all who work at sea in the service of a ship.”
Chandris
,
Turning to the second prong—whether plaintiff has a connection to a vessel in navigation that is substantial both in duration and nature—it is undisputed that the Republic Tide is a vessel in navigation. The only remaining question, then, is whether plaintiff’s connection to the Republic Tide is substantial in duration and nature, therefore warranting coverage under the Jones Act. See id. Put differently, whether the jury erred in determining that plaintiff was a seaman turns on whether it had sufficient evidence before it to conclude that plaintiff was substantially connected to the Republic Tide. The requirement of a substantial connection to a vessel is intended “to separate the sea-based *14 maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation.” Id. As the Supreme Court has noted,
the total circumstances of an individual’s employment must be weighed to determine whether he had a sufficient relation to the navigation of the vessels and the perils attendant thereon. The duration of the worker’s connection to a vessel and the nature of the worker’s activities taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.
Id.
at 370 (internal citations and quotation marks omitted). Importantly, this second prong
constitutes a “status-based” standard—
i.e.
, “it is not the employee’s particular job that is
determinative [of seaman status], but the employee’s connection to a vessel.”
Id.
at 364. As a result,
the Court speculated that under this standard even a ship repairman, who may know nothing about
boating or sailing, could qualify as a seaman.
Id.
at 363-64. The Court expounded on this status-
centric language in
Papai
,
While seaman status is not simply a temporal concept, the amount of time a worker spends
aboard a vessel in navigation is helpful in determining if that worker has attained seaman status.
See
id.
at 371. This circuit has quantified the duration of time necessary to allow submission of the issue
*15
of seaman status to a jury by using a 30 percent rule of thumb. “[A]s a general rule, [a worker] must
show [substantial duration] by demonstrating that 30 percent or more of his time is spent in service
of that vessel.”
Roberts v. Cardinal Servs. Inc.
,
Generally, the Fifth Circuit seems to have ident ified an appropriate rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases.... And where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, the court may take the question from the jury by granting summary judgment or a directed verdict.
Chandris
,
This exception, however, creates a potential problem: any worker who works intermittently
on vessels in navigation and who sustains an injury in the course of doing so will claim seaman status
if he is injured while at sea. For instance, a worker whose duties sometimes take him to sea could
claim that the start of each voyage establishes a reassignment to a sea-based position and that his
return to shore again shifts his status back to a land-based worker. It appears that the Supreme Court
attempted to preempt such arguments by specifically rejecting a “voyage test” of seaman status under
which a worker could “walk into and out of coverage in the course of his regular duties.”
Id.
at 363
(citing
Barrett v. Chevron, U.S.A., Inc.
,
Plaintiff attempts to fit himself into the first Chandris exception to the Fifth Circuit’s general *17 30 percent temporal requirement. As plaintiff bears the burden of proof for est ablishing seaman status, he accordingly must show that he fits within the framework of Chandris . [8] He argues that although in the past he did not work on sea vessels at all (let alone for 30 percent of his time), he was assigned to the Republic Tide and, at that point, underwent a change in status and became a seaman. If we are to be persuaded by this theory, we would need to conclude that (i) when plaint iff was assigned to the Republic Tide, he was removed from his former position of land-based intern and assigned to a new, sea-based position, (ii) this reassignment permanently changed his status, and (iii) by serving in this new position, plaintiff would spend at least 30% of his time aboard a vessel.
On this record, the evidence is insufficient for a finder of fact to conclude that plaintiff has proven his status at Baker fundamentally changed when he was assigned to the Republic Tide. As such, no reasonable jury could conclude that, under Supreme Court and Fifth Circuit precedent, plaintiff is a Jones Act seaman. Indeed, the record indicates that the superiors at Baker had planned that plaintiff would gain exposure to a number of areas over the course of the summer, including oil pumping, screen manufacturing for sand control, fishing tools, and, apparently foremost, learning directly from regional engineers. The latter three of these duties, by plaintiff’s own admission, have nothing to do with being on a vessel in navigation. Furthermore, the t estimony indicates that plaintiff’s assignment to the Republic Tide was not a fundamental change in status, but rather an opportunity presented to him during the course of the internship. Indeed, plaintiff testified that his superiors at Baker “would try to get me out on a boat.” And, when the Republic Tide needed two *18 men to replace two other workers who had been working for too many hours, plaintiff was assigned to fill in, being told to “learn as much as you can.” Thus, the record paints a picture that plaintiff’s placement onboard the Republic Tide was one of many activities to take place during the course of the summer. And, while it is impossible to know with complete certainty how events would have unfolded had plaintiff not suffered this terrible accident, there is absolutely no evidence that plaintiff’s assignment served to alter Baker’s overall plan for him, which comprised land-based work almost exclusively. Thus, plaintiff cannot carry his burden that he was reassigned from his job as a summer engineering intern to a regular and continuous sea-based employment position aboard the Republic Tide.
This conclusion withstands plaintiff’s arguments to the contrary. In support of plaintiff’s
assertion that he is a seaman, plaintiff notes (1) his participation in an offshore training and safety
course, (2) a one-day visit to a Vastar platform, (3) testimony that on his trip to the Falcon rig for
the gravel-pack job he was as much a member of the crew of the Republic Tide as anyone else, and
(4) his work aboard the vessel during the job. None of these arguments furthers plaintiff’s assertion
that his status had changed and that he became a Jones Act seaman. First, evidence that plaintiff was
given training in offshore work and safety is not sufficient to establish seaman status. Even temporary
workers have to be trained if they are expected to assist in the function or mission of the vessel. The
idea that receiving training would create seaman status is inconsistent with the demands of
Chandris
,
which holds that merely serving aboard a boat is not sufficient, in itself, to warrant seaman status.
See Chandris
,
Second, plaintiff’s work on the Vast ar platform does not establish seaman status. Fixed
platforms are not vessels, and workers injured on them are covered under the LHWCA, not the Jones
Act.
See, e.g., Demette v. Falcon Drilling Co.
,
Finally, the mere fact that plaintiff was ordered to work a crew position aboard the Republic
Tide is not sufficient as a matter of law to establish a substantial connection to that vessel, absent
evidence that his essential duties as an intern had changed.
See Chandris
,
Although it could be argued that plaintiff’s merely being assigned to the Republic Tide is
*20
evidence enough from which a reasonable jury could conclude that his status had changed, this
argument fails for two reasons. First, it is clear from the record that Baker’s plan for plaintiff may
have included his being placed on a boat. Thus, plaintiff’s assignment to the Republic Tide would
not necessitate that the structure of plaintiff’s largely land-based internship had been fundamentally
altered. Second, if plaintiff’s assignment to the Republic Tide constitutes sufficient evidence to
conclude that plaintiff’s status had changed, then the burden of proof would effectively be placed on
defendants to prove that plaintiff would be transferred away from the vessel and that the assignment
was only temporary, rat her t han requiring plaintiff to show that his status had changed. Such an
outcome would be inconsistent with
Barrett
, which assigns the burden of proof to the plaintiff.
See
Barrett
,
Finally, this case is clearly distinguishable from our holding in
Manuel v. P.A.W. Drilling &
Well Service, Inc.
,
Thus, circuit precedent and the Supreme Court’s holdings in
Chandris
and
Papai
require the
determination that plaintiff is not a seaman as a matter of law under the Jones Act. A reasoned
review of the evidence compels only the conclusion that plaintiff was a land-based worker who had
been assigned to a mission on a vessel at sea. And, merely serving on such a voyage does not warrant
Jones Act protection. Reaching this conclusion does not mean that plaintiff was not a valued
*22
employee who engaged in difficult and, unfortunately, dangerous work. While it is all too apparent
that plaintiff was exposed to the risks of working at sea, our precedent nevertheless instructs that
“[s]eaman status is not coextensive with seaman’s risks.”
Chandris
,
B.
The next question, then, is how to pro ceed after having determined that the district judge improperly permitted the jury to determine the issue of seaman status. As this matter should have proceeded as an LHWCA claim, rather than as a Jones Act claim, the district court must reevaluate plaintiff’s claims in light of the rights and remedies available to LHWCA plaintiffs with respect to both liability and damages, keeping in mind the appropriate theories of recovery and the applicable standards of negligence. [10] It is, therefore, necessary to vacate the findings of liability against Baker, Tidewater, and Falcon, as t he jury’s instructions on liability and damages did not contemplate plaintiff’s status as an LHWCA worker rather than a Jones Act seaman. Accordingly, this matter must be remanded for proceedings not inconsistent with this opinion.
C.
As the issue of liability and damages with respect to Baker, Tidewater, and Falcon should be
vacated and remanded to the district court, only one of the remaining four issues on appeal need be
addressed,
[11]
namely, whether the component manufacturers are liable to Baker. As an initial matter,
it appears that Baker has waived any such claim against these parties. In its brief, Baker attempts to
argue that the district court committed reversible error by refusing to allow expert testimony
regarding design defects. Baker’s brief, however, devotes only one paragraph to the issue and
presents little, if any, in the way of argument. Baker asserts only that the district court’s refusal to
allow its expert to testify regarding alleged design defects in the reel and hose assembly was
“reversible error,” depriving Baker of “substantial rights as a litigant.” Baker does not cite a single
case in support of its position nor does it set forth the applicable standard of review. Baker’s brief
further provides no discussion explaining why the district court’s determination constitutes reversible
error. Furthermore, Baker does not clarify its claim that it was “deprived of substantial rights as a
litigant,” leaving the component manufacturers—and this Court—to speculate about the nature of
the issues to be addressed. It appears clear that this argument has not been adequately raised and,
*24
as such, is deemed waived.
See Hidden Oaks Ltd. v. City of Austin
,
III.
Thus, we reverse the district court’s decision allowing the jury to determine whether plaintiff is a Jones Act seaman and hold that plaintiff is not a seaman as a mat ter of law. Accordingly, we vacate the findings of liability and damages with respect to Baker, Tidewater, and Falcon and remand this case to the district court so that the matter may pro ceed as an LHWCA case in a manner not inconsistent with this opinion. [12] We affirm the determination that the component manufacturers are not liable to Baker. These holdings render moot all other remaining issues on appeal.
Notes
[1] Baker’s business encompasses providing a broad range of oilfield services and products to members of the petroleum industry.
[2] At the time the Underwriters filed their motion, evidence had emerged in discovery that allegedly implicated Tidewater’s gross negligence. Baker opposed the Underwriters’ motion on the ground that Tidewater’s gross negligence was still a disputed issue of material fact.
[3] The breakdown for general damages was as follows: —past physical pain and suffering, including physical disability and impairment, past loss of enjoyment of life and inconvenience on the normal pursuits and pleasures of life $5,000,000 —future physical pain and suffering, including physical disability and impairment, future loss of enjoyment of life and the effects of the injuries and inconvenience on the normal pursuits and pleasures of life $6,000,000 —past mental anguish and suffering, as well as feelings of economic insecurity caused by disability $5,000,000 —future mental anguish and suffering, as well as feelings of economic insecurity caused by disability $6,000,000 —disfigurement and scarring $7,000,000.
[4] Plaintiff contends that Baker has waived the argument that he is not a seaman as a matter
of law by admitting, in response to plaintiff’s post-trial motion for judgment, that seaman status
was an issue of fact for the jury to determine. Any such statements, however, were uttered after
the district court informed counsel that either it would hold that plaintiff is a seaman as a matter of
law or the issue would go to the jury. After this choice was presented, Baker naturally argued,
for the sake of that argument, that the issue of seaman status was a jury issue. Given this, and the
fact that, with respect to this issue, Baker (i) filed a motion for summary judgment, (ii) moved for
judgment as a matter of law at the close of plaintiff’s case and at the close of all the evidence, and
(iii) moved for judgment notwithstanding the verdict, Baker has preserved this argument. In any
event, this Court is not required to treat any purported concession as binding, and we would
choose not to do so here.
See Pool Co. v. Cooper
,
[5] The LHWCA also provides for recovery against a worker’s employer for vessel
negligence if that employer is also deemed to be such.
See
33 U.S.C. § 905(b);
Jones & Laughlin
Steel Corp. v. Pfeifer
,
[6] Recovery pursuant to general maritime law is available only from defendants outside the scope of the LHWCA’s statutory scheme. See 33 U.S.C. § 905(b); see also 1 Thomas J. Schoenbaum, Admiralty and Maritime Law 156 & n.13 (2d ed. 1994) (noting that those covered by the LHWCA can only use general maritime law for claims against those outside the realm of the statute).
[7] After
Chandris
, this circuit reaffirmed the 30-percent rule. In
Nunez v. B&B Dredging,
Inc.
,
[8]
See Barrett v. Chevron, U.S.A., Inc.
,
[9] Also at issue in this appeal is whether the district court properly excluded as speculative some of the testimony of Jamie Parr, Baker’s operations coordinator, specifically Parr’s claim that plaintiff’s appointment to the Republic Tide was temporary. In the testimony that was excluded, Parr explained that workers were assigned to the crew position filled by plaintiff on a rotation system, and the practice was for them to leave the boat when the job was finished and return to the district office. It was possible that plaintiff might have been re-assigned to another vessel later, but only if his name happened to be placed at the top of the rotation schedule. Because Parr could not say with certainty that plaintiff would not have returned to the vessel in the future and because Parr could not testify with certainty about the scope of plaintiff’s future duties, the district court excluded this testimony as speculation. Plaintiff and Tidewater agree with the district court that this testimony was speculative because Parr could not testify with absolute certainty whether plaintiff would be sent back on a vessel or not. On the other hand, Baker notes that testimony about future events is not inadmissable unless it rises to the level of “dubious projections into the future or questionable surmises about what might have happened had the facts been different.” 1 McCormick on Evidence § 185. As the operations coordinator, responsible for assigning workers on the Republic Tide, Parr would appear to have the requisite knowledge and foundation to testify about Baker’s scheduling practices. His testimony was relevant and probative evidence under Rule 406, Fed. R. Evid., bearing on the total circumstances surrounding plaintiff’s employment-connection to a vessel. Parr’s excluded testimony supports the reasonable inference that plaintiff’s assignment to the Republic Tide, and to Baker’s fleet generally, was only temporary, and not substantial in duration, regular, or continuous. Accordingly, it would appear that the district court should not have excluded such testimony. We need not find error here, however, because Parr’s excluded testimony tends to prove that plaintiff is not a seaman. And, as we have concluded that plaintiff is indeed not a seaman, such excluded testimony becomes superfluous.
[10] For instance, the LHWCA provides recovery pursuant to a no-fault compensation
scheme against a plaintiff’s employer.
See
33 U.S.C. § 901
et seq.
Furthermore, as Section
905(b) of the LHWCA permits recovery for vessel negligence, the district court will have to
determine which defendant—or defendants—may be liable under this theory of negligence, rather
than under other negligence doctrines such as that of general maritime law. Note that the
standard of vessel negligence pursuant to Section 905(b) is different from that of negligence under
the general maritime law.
See Pimental v. LTD Canadian Pacific Bulk
,
[11] The other three issues on appeal need not be addressed for the following reasons. First,
the issue whether the jury had sufficient evidence to conclude that Falcon was negligent under
general maritime law and therefore 5 percent accountable for plaintiff’s injuries is now moot
because the determination that plaintiff is a seaman was erroneous. Accordingly, Falcon, the
owner of Cliffs Rig 153, may have to be pursued under the terms of Section 905(b) of the
LHWCA for vessel negligence, not under general maritime law. Second, now that it is established
that the LHWCA governs, the question whether Baker must indemnify Tidewater must be
considered anew, as the LHWCA states,
inter alia
, that an employer, such as Baker, “shall not be
liable to [a] vessel for such damages directly or indirectly and any agreements or warranties to the
contrary shall be void.” 33 U.S.C. § 905(b).
See also In re ADM/Growmark River System, Inc.
,
[12] Accordingly, the motion filed by Falcon seeking permission to file a supplemental brief that pertains to damages issues is dismissed as moot.