In Rivera v. Kirby Offshore Marine, LLC, 983 F.3d 811 (5th Cir. 2020), the federal Fifth Circuit Court of Appeals affirmed the Southern District of Texas findings of fact and conclusions of law that, after a 7-day bench trial, found defendant Kirby Offshore Marine liable to the plaintiff, Captain Jay Rivera, for $11,695,136 in damages.
Plaintiff Rivera, a ship's pilot and independent contractor, was assigned to pilot a vessel from the Port of Aransas to a nearby dock in Corpus Christi, Texas. After boarding the vessel, while making his way along the deck and still wearing his sunglasses, Rivera tripped and fell in an interior deck area of the vessel that was not well illuminated. Despite the fall, Rivera piloted the vessel to its destination and only received medical care after his voyage had ended. Ultimately, the physicians diagnosed him with a fractured fifth metatarsal on his left foot and several other complications.
The injury caused Rivera to lose his pilot's license, apparently due to the effects of medications he was taking. Rivera sued Kirby for negligence and unseaworthiness. After a bench trial, the court awarded $11,695,136.00 in damages, mostly for past and future pilot wages.
On appeal, Kirby asserted that the district court erred in the following.
- in holding that Rivera was a Sieracki seaman 1 and entitled to a claim for unseaworthiness;
- was not to any degree contributorily negligent for failing to take off his sunglasses after he entered the vessel;
- by allowing Rivera's lawyers to introduce evidence of Kirby's subsequent remedial measures; and
- in calculating damages in that it overestimated Rivera's future earnings.
The Fifth Circuit found for Rivera on each of Kirby's arguments.
The first issue was easily dispensed with by the court. The court in defining the contours of a Sieracki seaman concluded that Rivera was not covered by the Longshore and Harbor Workers' Compensation Act (LHWCA) because there was no evidence that he was an actual employee of any of the parties involved. To be subject to the LHWCA, Rivera must be the employee of someone. Instead, the circuit court agreed with the district court that Rivera was himself an independent contractor, routinely employed by his association to independently pilot vessels. Further, because he was not a Jones Act seaman, Rivera was entitled to proceed with his negligence and unseaworthiness claims as a Sieracki seaman. The Fifth Circuit affirmed the holding that the vessel was unseaworthy because Rivera's injuries were caused by his fall over the unmarked hatch door and the door was a tripping hazard. Tripping hazards may render a vessel unseaworthy.
Additionally, the district court specifically found that, despite failing to take off the sunglasses after he entered the vessel, Rivera was not contributorily negligent because the condition that caused Rivera's injuries was not open and obvious. According to the Fifth Circuit Court, "Even if he had not been wearing the sunglasses, it is not clear that he could have seen the hatch doorstep and avoided his injury."
The district court's determination of no contributory negligence was not clearly erroneous. It had made fact findings "that the edges of the hatch cover were not marked, that the hatch was unusually placed, and that the hatch cover was oddly positioned and difficult to see." The Fifth Circuit thus sustained the finding of no contributory negligence.
Further, the Circuit Court found that the introduction of a photograph on subsequent remedial measures did not harm Kirby. "The district court's findings that the hazard was not visible and that the hatch was in an unusual place support a ruling for Captain Rivera, and this evidence exists independent of the photograph that Kirby takes issue with." Accordingly, the district court did not abuse its discretion by admitting evidence of Kirby's subsequent remedial measures.
Last, the court held that the damages as awarded by the trial court were properly supported and calculated in light of the evidence presented. The court found that the trial court correctly used K-1 tax forms from Rivera's business entity to form the basis of Rivera's past and future earnings rather than his personal tax returns, which aggregated the income from a number of sources. The K-1 included Rivera's work as a pilot as a separate item, and Rivera was not seeking loss of the other types of income he earned (expert witness and chartering income). The use of the other tax forms was not clearly erroneous.
The importance of this Fifth Circuit case is more from reading between the lines than it is the actual holdings. Here, defense counsel and Kirby obviously thought they could do much better than what the plaintiff's expert's report had concluded as the damages. There were significant evidence and arguments that might have led a fact finder to different conclusions than an ultimate award of nearly $11.7 million. What appear as great defense facts, evidence, arguments, and positions are not a guarantee of a result—finders of fact can and often do see things through an unanticipated lens.
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