McGuire v. Ensco Incorporated ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40552
CHADWICK STERLING MCGUIRE,
Plaintiff-Appellee,
versus
ENSCO INCORPORATED; ET AL.,
Defendants,
ENSCO MARINE COMPANY,
Defendant-Appellant.
Appeal from the United States District Court for
the Southern District of Texas
(USDC No. G-99-CV-380)
_______________________________________________________
June 20, 2002
Before REAVLEY, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
The judgment of the district court is reversed for the following reasons.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
1. While evidence points to harm suffered by McGuire to his back, and
that it originated on November 1, 1998, aboard the M/V Ensco Atlas, McGuire
failed to prove an injury caused by negligence of others or unseaworthiness of the
ship.
2. The harm is unexplained. There is no substantial evidence of a
particular injury. McGuire testified that he strained his back while pulling a shock
line with a J-hook. The district court rejected the claim that a shock line was pulled
but found that McGuire did pull a heavy line. There was no evidence that McGuire
or anyone manually pulled a heavy line across the deck. The emergency tow cable
was pulled to the winch from the jaws at the stern by the winch itself. Without
evidence to support the court’s finding, we must conclude that a mistake was made.
3. The district court attributed McGuire’s injury to negligence that caused
the loss of the tow cable (lack of chafing gear and release of the winch by the
engineer). Those remote but-for causes of the work to reconnect the tow were not
producing causes of injury to McGuire. As in Chisholm v. Sabine Towing &
Transp. Co., 679 F.2d 60 (5th Cir. 1982), where it was held that the loose metal –
though proof of negligence and unseaworthiness – was not a substantial factor of
plaintiff’s injury in throwing the metal overboard, so here the loose tow was no
more than a remote but-for factor and not a producing cause of any subsequent
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injury aboard ship.
4. The district court also found the failure to make and log a job safety
analysis to be negligence producing McGuire’s injury, but no evidence relates a
failed plan to reconnect the tow to an injury to McGuire.
5. The district court also found that the lack of non-skid paint on the
wooden deck and the worn metal surface constituted unseaworthiness producing
McGuire’s injury, but no evidence supports that finding. We are told by McGuire
that other ships paint wooden decks with non-skid paint. Nothing more. Not what
difference that made here. Not the condition of the deck where he said his foot
slipped – except that it was wet. The difference in painting the deck is not itself
proof of unseaworthiness, and it is not connected by proof to any harm to McGuire.
6. Therefore, for lack of proof of negligence or unseaworthiness attributed
to defendant producing an injury to McGuire, we must reverse the judgment and
render judgment for defendant.
REVERSED AND RENDERED.
3
DENNIS, Circuit Judge, dissenting.
Based upon a review of the record for clear error, I respectfully dissent for the
following reasons.
First, the majority opinion states that “McGuire failed to prove an injury caused
by negligence of others or unseaworthiness of the ship.” I disagree. We have held that,
“For a vessel to be found unseaworthy, the injured seaman must prove that the owner
failed to provide a vessel, including her equipment and crew, which is reasonably fit
and safe for the purposes for which it is to be used.”1 The seaman must establish a
causal connection between the injury and a breach of duty that rendered the vessel
unseaworthy.2
The district court found that a series of negligent acts led to the plaintiff’s injury:
(1) There was no chafing gear; (2) Without chafing gear, the engineer had to
periodically adjust the tow line manually; (3) The engineer accidentally released the
tow line causing the entire tow line to fall into the sea; (4) The crew then had to attach
an emergency tow line; and finally (5) McGuire was injured during the emergency tow
line connection procedure. In my opinion, the record evidence supports the district
1
Jackson v. OMI Corp., 245 F.3d 525 (5th Cir. 2001) (emphasis added).
2
Id.-4-
court’s finding that McGuire established a causal connection between his injury and a
breach of duty that rendered the vessel unseaworthy.
Second, I do not believe that the record supports the statements: “There is no
substantial evidence of a particular injury;” and “There was no evidence that McGuire
or anyone manually pulled a heavy line across the deck. The emergency tow cable was
pulled to the winch from the jaws at the stern by the winch itself.”
The district court judge heard several different versions of how the emergency
tow line was connected to the winch. However, the essential parts of the operation
were undisputed. After the tow cable was lost, the crew met in the wheelhouse to
discuss recovery of the tow. Captain Saunders decided that he would operate the
winch controls, Steve Yaun would pilot the boat, and McGuire was in charge on the
back deck giving signals and would be manually involved in connecting the emergency
tow line. Because they could not recover the original tow line, one of the crew
members, Don Menefield, jumped over to the barge. He then released one end of the
emergency tow line attached along the side of the barge. This allowed the loose end
of the emergency tow line to go into the water. A buoy line was attached to the floating
emergency tow line. Menefield jumped back onto the boat and joined other members
of the crew on the back deck of the boat as they hooked the buoy line and pulled it onto
the deck. The buoy line was pulled up with the air tugger and then secured into the
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port shark’s jaws. They then pulled on the buoy line to bring the emergency tow line
up out of the water and onto the deck. Once the tow line was on the deck, it was
secured into the starboard shark’s jaws. The shark’s jaws are located about two feet
from the stern. The video and sketches of the back deck of the boat indicate that the
winch was at least 15 feet forward of the shark’s jaws. When the tow line was secure
in the shark’s jaws, the crew connected a “50-ton” shackle to it.3 The winch cable was
either directly connected to the emergency tow line, or connected to the shock line
which was in turn connected to the emergency tow line. The shark’s jaws were
released and the barge was towed to port by the cable and connecting line or lines.
Everyone agreed that, between the loss of the towing cable and the connection of the
emergency tow line, rain squalls dampened the back deck.
The witnesses disagreed about whether or not a shock line was used in
connecting the emergency tow line. Captain Saunders, Don Menefield, and Steve Yaun
testified that the winch cable was connected directly to the emergency tow line with a
shackle. McGuire and Kenny Jones testified that a shock line was used between the
winch cable and the emergency tow line, which would have required two shackles.
Captain Saunders testified that he saw McGuire using a J-hook to move a shackle into
3
A 50-ton shackle is one capable of holding 50 tons. Its actual weight is somewhere between 75 and 90
pounds.
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position during the tow line connection. Jones, one of the seamen on board, testified
that he saw McGuire grab his back as McGuire was using a J-hook to move a shock
line during the rigging up of the emergency tow gear. McGuire told the judge that he
didn’t remember moving the shackle. He said that he and Don Menefield “dragg[ed]
the eye of shock line to the cable that comes off the winch” and then hooked the
shackle at both ends. Menefield, on cross-examination, acknowledged that in his
deposition he had said that they used a J-hook to pull the emergency tow line onto the
boat. He testified that a shackle was used to connect the emergency tow line to the
boat’s winch cable.
The district court’s finding that McGuire and Menefield “proceeded to move a
heavy line into position by using a J-hook to pull this line across the back deck of the
vessel” is not clearly erroneous. No one denies that a J-hook was used during the
emergency tow line connection. Captain Saunders said that he saw McGuire using a
J-hook to move a shackle that day. The video shows two crew members using a J-hook
to move a shock line before McGuire’s accident occurred and Captain Saunders
admitted that it was unsafe to do so. Both versions of the emergency tow connection
procedure (with or without shock line) required McGuire and Menefield to manually
pull a “heavy line” across the deck: the heavy emergency tow line had to be placed into
the shark’s jaws before the connection to the shackle could be made. Once that
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connection was made, the heavy winch cable was moved down the deck and attached
to a shackle. The winch cable, the shock line, and the emergency tow line were heavy
lines because they were capable of handling the weight of the tow. The majority’s
statement that the emergency tow line was “pulled to the winch from the jaws at the
stern by the winch itself” cannot be literally correct. Logic and the evidence show that
a cable or a cable and a shock line were used to make the connection between the
winch and the barge’s emergency tow line. Regardless of how the tow was
reconnected, the record shows that McGuire injured his back on November 1, 1998,
during the connection of the emergency tow line to the M/V ENSCO.
Third, the loss of the tow cable was m ore than a remote but-for factor. As
Captain Saunders explained during his testimony, if the engineer had not “inadvertently
hit the lever and released the clutch and we lost the cable, I see no reason for anybody
to be out on the deck doing what we had to do. We would have continued on with the
tow because as far as the tow function went, the tow went good except for the rough
weather with the hurricane.” The defendant’s negligence in allowing the tow to be lost
was a substantial factor in bringing about the harm. As shown in the video and as is
evident from the testimony at trial, a towing connection is ordinarily made at port in
calm waters, not in the open sea. Without the loss of the towing cable, there was no
reason for McGuire, a captain, to be on the boat’s back deck, pulling on heavy lines
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and shackles connecting a tow line in inclement weather.
In reviewing the results of an action tried without a jury, the district court’s
findings of fact “shall not be set aside unless clearly erroneous.”4 We must give due
regard to the district court’s opportunity to judge the witnesses’ credibility.5 It seems
clear to me that the district court resolved the conflicting stories regarding how the tow
was reconnected in favor of McGuire. Because the district court’s findings of fact are
not clearly erroneous in light of the record viewed in its entirety, I believe we should
affirm. “Where there are two permissible views of the evidence, the fact finder’s
choice between them cannot be clearly erroneous.”6 For these reasons, I dissent.
4
Fed. R. Civ. P. 52(a).
5
Fed. R. Civ. P. 52(a).
6
Tokio Marine & Fire Ins. Co., Ltd. v. FLORA MV, 235 F.3d 963, 970 (5th Cir.2001) (citing Anderson v.
City of Bessemer City, 470 U.S. 564, 573-74 (1985).
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