Citations
- 179 F. Supp. 3d 687
Full opinion text
TRIAL RULING
REBECCA F. DOHERTY, UNITED STATES DISTRICT JUDGE
I.Introduction
This matter involves claims brought by the plaintiff, Kirby Semien, against defendant, Parker Drilling Offshore USA, LLC (“Parker Drilling”), under the Jones Act and the general maritime law. At the time of his alleged injury, Mr. Semien was employed by Parker Drilling as a shaker and and alleges on May 22, 2014 he injured his right knee while working aboard the Inland Drilling Rig 54B, which, was owned by Parker Drilling. Mr. Semien asserts a claim under the Jones Act, and under the general maritime law for unseaworthiness, and maintenance and cure, and designated this as an action brought under the admiralty within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure. Trial of this matter was.to the bench, commencing on March 7, 2016, with closing arguments heard on March 10, 2016. Jurisdiction in this matter is premised upon the admiralty law of the United States of America, 28 U.S.C. 1333(1) (Admiralty, Maritime and Prize Cases), the Jones Act, 46 U.S.C. § 30104, and the general maritime law, and venue is proper in the Western District of Louisiana.
II. Procedural History
On June 3, 2014, Kirby Semien filed a Complaint in the United States District Court for the Western District of Louisiana against his former employer, Parker Drilling Offshore Corporation. By amended complaint filed on July 23, 2014 [Doc. 3], Mr. Semien amended his complaint to allege his claims against Parker Drilling Offshore USA, LLC. On September 16, 2015, Parker Drilling filed a motion for summary judgment seeking dismissal of certain claims for damages [Doc. 17] and a motion for summary judgment on liability. The damages motion was granted in part [Docs. 26 & 27], while the liability motion was denied [Docs. 32 & 33].
This matter proceeded to a bench trial on March 7, 20 16. All evidence has been taken and all arguments have been made to the Court and this Court now makes the following findings of fact, conclusion of law, and rules as follows.
III. Factual Background
Kirby Semien was working as a shaker-hand on Rig 54B on the date of the accident. It was established the well was experiencing certain well control problems, which were being addressed and monitored. Prior to running the Bottom Hole Assembly (“BHA") in the well, 135 barrels of water were pumped down the annulus. As the BHA is run in the hole, a portion of the 135 barrels of water which had been added should at some point return through and to the trip tanks, if all is operating properly; Kirby Semien was assigned the task of monitoring the amount of liquid coming back into the trip tanks. This is a job that is performed on the shaker deck and under normal circumstances, would not require Kirby Semien to go to the bottom deck where his accident occurred.
There were two trip tanks on Rig 54B. Mr. Semien testified that on the morning of the accident, he was working on the shaker deck monitoring the tanks located above the bottom deck. Mr. Semien, testified the first tank had filled and needed to be emptied before the second, also, filled. He testified that if the trip tanks were not emptied, they could overflow or the water and liquid could back up into the oil based mud tanks creating undesirable consequences. Mr. Semien testified he believed if the trip tanks overflowed, the overflow could result in an environmental spill of drilling fluid, or if they backed up the water could contaminate the oil based mud found in the mud tank s. It was Mr. Sem-ien’s responsibility to not only monitor the return in the tanks, but also, to manage those tanks. Thus, once the first of the two tanks was filled, Mr. Semien switched the flow to the second tank and attempted to pump the first. However, the pumps did not work. Mr. Semien then went to adjust the manifold, which, again, did not fix the problem. Mr. Semien, then, added another pump, and, yet again, the pumps did not work.
Mr. Semien explained that, normally, the fluid from the trip tanks can be dumped and/or drained by activation of the trip tank pumps, however, as both pumps malfunctioned, Mr. Semien testified the trip tanks would have to be emptied manually by way of two manual valves found on the bottom deck. The two manual dump valves are located lS’-M’ above the floor of the. bottom deck on Rig 54B and must be physically manipulated, “by hand”. When Rig 54B was originally constructed, there was a permanently affixed ladder connected to the deck providing safe access to the manual dump valves. This permanently affixed ladder, also, had a “Lad-Safe” system which worked in concert with the ladder and harness allowing workers to attach their harness to the permanently affixed ladder and allowing the attached safety harness to run along the side of the ladder as employees moved up and down the ladder. Steve Ville-join, the tool pusher, testified this fixed ladder was removed from the rig when it was refurbished; no evidence was provided why the fixed ladder was removed or why it was not replaced. Thus, Rig 54B was left with a known and necessary work area some 13’8‘ above floor level with no rig access. It was this area some 13’8‘ above the floor that Mr. Semien or other Parker Drilling employees would have to access in order to manually dump the trip tanks.
Mr. Semien testified that after he recognized the trip tank pumps were not working, he called his direct supervisor, the driller—Fred Landry—and informed him of the situation. Mr. Landry told him to get the crane operator—Keyomi Palfrey— to go to the bottom deck with a roustabout and for Palfrey and the roustabout to open the dump valves manually. Mr. Semien, thereafter, called Mr. Palfrey, explained the situation and Palfrey agreed to come dump the tanks as requested in about ten minutes, after he completed a permit he was working on. Testimony was submitted the permit in question would take approximately five-ten minutes to complete, and Parker Drilling’s post-accident investigation reflects Palfrey told Semien he would be there in about ten minutes. See: Plaintiffs Exhibit 16, p. 11, para. 6; p. 17. Palfrey was with the toolpusher, Steve Vil-lejoin, when he received Mr. Semien’s call and request for help, and Palfrey and the toolpusher discussed Mr. Semien’s call once the call was completed. Notwithstanding telling Mr. Semien that he was coming in about ten minutes, Mr. Palfrey did not, in fact, go to help Mr. Semien as requested by Mr. Semien, or as he had promised. Rather, Palfrey and the tool-pusher, Villejoin, went either to the pump room or the mud room—Palfrey could not recall which, but in any event, neither went to assist Mr. Semien—and Mr. Palfrey worked there for a time until he went to the bottom deck, some 45 minutes later, not to provide the requested help, but to find a tool needed for the other job. Consequently, Palfrey found Mr. Semien, lying on the deck by happenstance, some forty-five minutes later and in fact, never came to provide the promised help.
Mr. Semien testified he was concerned the trip tanks would overflow or back up and lead to undesirable consequences if the tank was not drained. Consequently, when Palfrey did not come, as promised, Mr. Semien attempted to call Palfrey a second time to find out why he had not come; Palfrey did not answer. Palfrey, whom this Court found to be a poor historian, could not remember if a second call was attempted, and testified he might not have heard it even if it had been made, as he was working in the pump or mud room by this time. Mr. Semien testified he felt pressured, therefore, consequently, he at some point thereafter, again, called Fred Landry, the driller, Mr. Semien’s direct supervisor, and told him he was “going down” to the bottom deck, and Mr. Landry told him “to be safe”. Mr. Landry, also, testified he could not remember whether or not Mr. Semien called a second time. This Court, however, finds it credible that Mr. Semien would have called his driller if only to tell the driller he was leaving his assigned station and task of monitoring and communicating the return coming into the tanks from the well, especially as testimony established Landry and Semien were in consistent contact concerning the return flowing into the tanks given the earlier well issue of losing drilling fluid into the well formation.
Consequently, after, again, calling the driller, M r. Semien went to the bottom deck to get all ready for Palfrey and his helper so as to expedite the dump of the tanks. Mr. Semien obtained a life vest, put it on, got the “elephant hose” needed to dump the tanks and ran it down to the barge for the dump, and set up for Palfrey. As Palfrey still had not arrived as promised, Mr. Semien testified he went to the floor access from where he could see. the tank level indicator and saw that the second tank was quickly filling up. Mr. Sem-ien testified that at that point he made the choice to dump the tanks himself as he had twice called Palfrey, twice called the driller, the second tank was quickly reaching its fill level and feared undesirable consequences if the tank backed up or overflowed.
Up to this point, Mr. Semien had fully complied with all instruction and existing Parker Drilling policy. Mr. Semien testified he “was rushing” because of his concern about the second tank level. He, further, testified he obtained the only ladder in the equipment bin where such equipment was stored on that level—an extension ladder. He testified he did not get a safety harness as there were none stored on that floor and he did not feel he .should spend the time to go one floor up and get a harness, and then decided, given the tank level, he should not wait any longer. Thereafter, Mr. Semien wedged the extension ladder against the round manhole cover, on the wet rig floor, and rested the top of the ladder against the large pipe some 13’8‘ above the rig floor in the vicinity of the two manual valves, and as Palfrey still had not arrived, he climbed the ladder and while in the process of attempting to manipulate the dump valve himself, the ladder shifted and he fell to the rig floor where he lay for some time until discovered by Palfrey, some forty-five minutes after Mr. Semien had first called for Palfrey’s help.
Mr. Semien sustained undisputed traumatic injury to his knee, underwent two surgical procedures to his knee, with another arthroscopic procedure having been recommended, and has not worked since the incident.
IV. Stipulations and Admissions
The parties also stipulated to the following facts:
• Kirby Semien was employed by Parker Drilling Offshore, USA, LLC on May 22, 2013.
• Inland Drilling Rig 54B was owned by Parker Drilling USA, LLC on May 22, ' 2013.
• Parker Drilling Offshore USA, LLC paid Kirby Semien maintenance benefits in the amount of $35 per day until Dr. Jonathan Shults stated Mr. Sem-ien had reached maximum medical cure on May 15, 2014.
• The proper rate of maintenance benefits is $35 per day.
• Parker Drilling Offshore ISA, LLC paid advances to Mr. Semien in the amount of $24,614.48 and is entitled to a credit for that amount.
• Mr. Semien visited Tamatha Newman, Nurse Practitioner, who referred Mr. Semien to Dr. David Clause, an orthopedic surgeon. Based on this stipulation, the parties agreed not to use the medical records or the deposition of Ms. Newman.
• Parker Drilling Offshore USA, LLC paid all medical bills prior to May 15, 2014.
[Doc. 35, p. 16].
V. Applicable Law
A. Jones Act Negligence
The Jones Act allows an injured seaman to bring an action against his employer for negligence. 46 U.S.C. § 30104). The injured person bears the burden of establishing seaman status. Becker v. Tidewater, 335 F.3d 376 (5th Cir.2003). 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.” Becker, 335 F.3d at 387 quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). Second, “a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both duration and nature.” Id.
The Jones Act employer’s possible liability extends to all personal injuries arising'during the course of the seaman’s employment, caused by the employer’s negligence; proof of negligence is essential to recovery. Such negligence may arise in many 'different ways including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the work place, failure to inspect the work place for hazards, failure to take precautions to protect a seaman or any other breach of the duty of care. Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir.1977), overruled on other grounds by Gautreaux v. Inc., 107 F.3d 331, 339 (5th Cir.1997); Thomas J. Schoenbaum, Admiralty and Maritime Law, § 6-21 (4th ed.2004).
The duty of care owed by . a Jones Act employer is that of ordinary prudence, namely, the duty to take reasonable care under the circumstances, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338-39 (5th Cir.1997). “[T]he employer must have notice and the opportunity to correct an unsafe condition before liability attaches.” Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir.1989). “The standard of care is not Svhat the employer subjectively knew, but rather what it objectively knew or should have known.’” Colburn, 883 F.2d at 374.
The seaman must, also, meet the evidentiary' burden of proving that á breach of a duty owed by the employer was a legal cause of his injures. See Davis, 549 F.2d at 331, overruled on other grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997). It is plaintiffs burden'to show, by a preponderance of the evidence, that the employer’s negligence was the cause, in whole or in part, of plaintiffs injuries. See CSX Transp., Inc. v. McBride, 564 U.S. 685, 131 S.Ct. 2630, 2636, 180 L.Ed.2d 637 (2011).
“[T]he standard is one of ‘producing cause’ rather than ‘proximate cause’ and ... the burden of proof is ‘featherweight.’ Thus, two concepts come into play here— the type of causation that must be shown (producing) and the plaintiffs burden to show that cause (featherweight).” Clark v. Kellogg Brown & Root L.L.C., 414 Fed.Appx. 623, 626 (5th Cir.2011)(citing Chisholm v. Sabine Towing & Transp. Co., 679 F.2d 60, 62 (5th Cir.1982)).
A seaman, also, however, is obligated under the Jones Act to act with ordinary prudence under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 339 (5th Cir.1997). And, thus, comparative fault may apply to reduce a seaman’s recovery on a Jones Act claim. Jauch v. Nautical Serv., Inc., 470 F.3d 207, 213 (5th Cir.2006), citing Miles v. Melrose, 882 F.2d 976, 984 (5th Cir.1989), A seaman’s, comparative negligence will not, necessarily, bar his recovery, but might' act to reduce the amount of damages owed proportionate to his share of fault. Id. Comparative negligence applies in both Jones Act and unseaworthiness actions, barring an injured party from recovering for the damages sustained as a result of his own fault. Miles v. Melrose, 882 F.2d 976, 984 (5th Cir.1989). The defendant, however, has the burden of proving that a seaman, such as Mr. Semien, was guilty of comparative negligence. The same causation standard applies to employer negligence and employee contributory negligence in FELA cases, and therefore extends to Jones Act cases. Sorrell, 127 S.Ct. at 802.
Mr. Semien alleges Parker Drilling is hable for the following acts of negligence under the Jones Act:
1. Failing to provide functioning pumps to empty the trip tanks on the day of the accident;
2. Failing to provide the help requested by Mr. Semien to manually open the trip tanks by overhead valves (after the pumps were found to be inoperable);
3. Removing a permanent ladder that was part of the original design whose purpose was to allow a worker to access the overhead valves to manually empty the trip tanks without the need to use a portable ladder.
. 4. Failure to properly train employees in the use of portable ladders by requiring the securing of a portable ladder prior to use; and
5. Failure of the Parker Driller to call an All Stop when he knew that the trip tanks were filling up and the pumps normally used to empty these tanks were inoperable.
In response, Parker Drilling argues Mr. Semien was the sole cause of his injuries; Mr. Semien did not exercise reasonable care under the circumstances; and Parker Drilling exercised reasonable care under the circumstances.
B. Unseaworthiness
. Mr. Semien is, also, asserting a claim for damages for a breach of the warranty of seaworthiness. A Jones Act seaman may sue the owner of any vessel on which he is working for a breach of the warranty of seaworthiness, regardless of whether the vessel is owned by his employer. Becker v. Tidewater, Inc., 335 F.3d 376, 387 (5th Cir.2003). A shipowner has an absolute non-delegable duty to provide a seaworthy vessel. Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir.1991). Accordingly, the seaworthiness issue is treated more akin to a breach of warranty, rather than the narrower duty-breach inquiry for negligence. Id. citing In re Cooper/T. Smith, 929 F.2d 1073,1077 (5th Cir.1991).
To prove a vessel is unseaworthy, a seaman, such as Mr. Semien, must prove that the defendant provided a vessel (including its appurtenances, gear, and equipment) not reasonably fit for its intended purpose, Phillips v. Western Co. of N. Am., 953 F.2d 923, 928 (5th Cir.1992). See also, Courville v. Cardinal Wireline Specialists, Inc., 775 F.Supp. 929 (W.D.La.1999) (failure to provide nonskid paint on stairs rendered vessel unseaworthy); Brister v. A.W.I., Inc., 946 F.2d 350 (5th Cir.1991) (mismatched rig mats on drilling floor rendered rig unseaworthy); Blaauw v. Superior Offshore International, LLC, 2008 WL 4224808 (W.D.La.2008) (presence of a bungee cord in a diving bell rendered vessel unseaworthy; and Campbell v. Chet Morrison Contractors, LLC, 2012 WL 3028079 (W.D.La.2012) (failure to provide needed air compressor rendered the vessel unseaworthy) and that the unseaworthy condition was the proximate cause of his injury. As noted, because the defendant’s duty to provide a seaworthy vessel is completely independent of its duty to exercise reasonable care, Mr. Semien does not have to prove the defendant was negligent to prevail on his unseaworthiness claim. However, Mr. Semien is required to meet the more demanding standard of proximate causation, rather than the lighter standard applicable under the Jones Act negligence claims (i e., the negligence must play any part, in whole on in part, in producing the injury). Consequently, Mr. Semien must establish that the “unseaworthy condition played a ‘substantial part’ in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the vessel’s unseaworthiness.” Phillips, 953 F.2d at 928.
A vessel’s condition of unseaworthiness might arise from any number of circumstances. Her gear might be defective, her appurtenances in disrepair, or her crew unfit. The number of men assigned to perform a shipboard task might be insufficient. Stowe v. Moran Towing Corp., 995 F.Supp.2d 570, 576 (E.D.La.2014), citing Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 517-18, 27 L.Ed.2d 562 (1971) (internal citations omitted); see also Webb v. Dresser Indus., 536 F.2d 603, 606 (5th Cir.1976), cert denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572 (1977).
Mr. Semien, however focuses his claim of unseaworthiness on two particular aspects of the rig: the faulty trip tanks and pumps, which Mr. Semien argues forced him to work in an unsafe area and the absence of the permanent ladder with an anchor point to which a safety harness could have been attached, leaving a known and necessary work area without safe access. Mr. Semien argues both conditions made the rig unsafe for its intended purpose.
C. Maintenance and Cure
Mr. Semien is, also, asserting a claim for maintenance and cure under the general maritime law. In Meche v. Doucet, 777 F.3d 237, 244 (5th Cir.2015), the Fifth Circuit explained a seaman’s rights to maintenance and cure as follows: “Maintenance and cure is a contractual form of compensation afforded by the general maritime law to seamen who fall ill or are injured while in the service of a vessel.” Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th Cir.2006), citing McCorpen v. Cent. Gulf S. S. Corp., 396 F.2d 547, 548 (5th Cir.1968). “Maintenance is a daily stipend for living expenses,” whereas “cure is the payment of medical expenses.” Lodrigue v. Delta Towing, L.L.C., 2003 WL 22999425, at *6 n. 51 (E.D.La. Dec. 19, 2003), citing Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1499 (5th Cir.1995), abrogated on other grounds by Atl. Sounding Co. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009).
The obligation to pay maintenance and cure is independent of tort law, and the shipowner’s duty to pay is not affected by the injured seaman’s own negligence. Boudreaux v. U.S., 280 F.3d 461, 468 (5th Cir.2002), citing Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1013 (5th Cir.1994). Thus,- the obligation to provide this compensation does not depend on any determination of fault, but rather, is treated as an implied term of the contract for maritime employment. A seaman may recover maintenance and cure even for injuries or illnesses pre-existing the seaman’s employment unless that seaman knowingly or fraudulently concealed his condition from the vessel owner at the time he was employed. Jauch, 470 F.3d at 212, citing McCorpen, 396 F.2d at 548. Maintenance and cure must be paid by the seaman’s employer until the point of “maximum medical recovery” or “maximum cure.” See Alario v. Offshore Service Vessels, L.L.C., 477 Fed.Appx. 186 (5th Cir.2012), citing Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88; Pelotto v. L&N Towing Co., 604 F.2d 396, 400 (5th Cir.1979). Maximum' cure is reached when a seaman’s condition is of a permanent character and/or will not further improve with additional medical treatment. Rashidi v. American President Lines, 96 F.3d 124 (5th Cir.1996); Morales v. Garijak, 829 F.2d 1355 (5th Cir.1987). Treatment intended to better a plaintiffs physical condition as opposed to only alleviating pain and discomfort is considered curative. Barto v. Shore Const., L.L.C., 801 F.3d 465, 476 (5th Cir.2015). Treatment that does not improve the seaman’s condition, but only works to alleviate pain is considered palliative: Id.
A seaman may bring a renewed claim for maintenance and cure even if thought to have reached maximum medical improvement if the medical condition changes so that further treatment would improve the claimant’s condition. Morales v. Garijak, 892 F.2d 1355 (5th Cir.1987); Johnson v. Marlin Drilling Co., 893 F.2d 77 (5th Cir.1990).
VI. Remedies
In general, Mr. Semien alleges under the Jones Act recovery “... for personal injuries and damages of Complainant, KIRBY SEMIEN, as well as to recover for past and future lost wages, pain and suffering, both physical and mental, past and future medical expenses, maintenance and cure, and loss of society and services.”
A. Damage Elements Under the Law
Under applicable law, past lost earnings are usually measured by the actual wage losses incurred by a seaman, such as Mr. Semien, from the date of the accident to the date of trial. Thomas J. Schoenbaum, Admiralty and Maritime Law, § 5-15.1 (4th ed.2004); followed in Johnson v. Cenac Towing, Inc., 468 F.Supp.2d 815, 834 (E.D.La.2006).
'The Fifth Circuit established the method for calculating future lost wages in maritime cases in Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir.1983). In the Culver series of cases, the Court set forth a four-step process for determining lost wages: (1) estimate the loss of work life or expected remaining work-life; (2) calculate the lost income stream; (3) compute the total lost income stream; and (4) discount that total to present value. Culver, 722 F.2d at 117. Thomas J. Schoenb-aum, Admiralty and Maritime Law, § 5-15.2 (4th ed.2004). With the exception of monetary awards for future pain and suffering, future losses (income and medical expenses) must be discounted to present value. Culver v. Slater Boat Co., 722, F.2d 114, 117 (5th Cir.1983); Thomas J. Schoenbaum, Admiralty and Maritime Law, § 5-15.1, 2 and 3 and 6-Í8.2 and 3 (4th ed.2004); see also O’Byrne v. St. Louis Southwestern Ry. Co., 632 F.2d 1285, 1286 (5th Cir.1980), Future loss of income, must, also, reflect a judgment to net, after tax, value. Id; Norfolk &W. Ry. v. Liepelt, 444 U.S. 490, 493-494, 100 S.Ct. 755, 757-758 (1980).
Damages for lost earnings are not, necessarily limited to lost wages alone; rather, if factually supported, a claim for lost earning capacity can be allowed.
Under the applicable law, a damage award for pain and suffering may include a sum for mental anguish and physical discomfort, and. for the mental and physical effects of the injury on a seaman, such as Mr. Semien, and his ability to engage in those activities which normally contribute to the enjoyment of life. Thomas J. Schoenbaum, Admiralty and Maritime Law, § 5-15.3 and 6-18.4 (4th ed.2004). These types of damages are not subject to precise measurement. Id. Any amount to be awarded for physical and mental pain and suffering depends to a great extent on, the trial court’s observation of Mr. Semien and its subjective determination of a reasonable amount needed to achieve full compensation. Hyde v. Chevron U.S.A., Inc. 697 F.2d 614, 632 (5th Cir.1983), An award for physical and mental pain and suffering, also, depends on the facts of the particular case. Allen v. Seacoast Products, Inc., 623 F.2d 355, 364-365 (5th Cir.1980) citing Wiley v. Stensaker Schiffahrtsges, 557 F.2d 1168, 1172 (5th Cir.1977) and Fruit Indus., Inc. v. Petty, 268 F.2d 391, 395 (5th Cir.1959), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 1997 A.M.C. 1521 (5th Cir.1997). Thomas J. Schoenbaura, Admiralty and Maritime Law, § 5-15.3 and 6-18.4 (4th ed.2004).
Generally, under the Jones Act, the recovery of prejudgment interest is not permitted. Theriot v. J. Ray McDermott, 742 F.2d 877 (5th Cir.1984). The parties agree, however, the same rule does not apply to Jones Act cases brought under the court’s admiralty jurisdiction, tried without a jury. When the court’s admiralty jurisdiction is invoked under the Federal Rules of Civil Procedure 9(h); when a Jones Act case is brought under the court’s admiralty side, and the case is tried to the court and not to a jury, an allowance of prejudgment interest is within the discretion of the trial court. Williams v. Reading and Bates Drilling Co., 750 F.2d 487 (5th Cir.1985); and as followed in Doucet v. Wheless Drilling, 467 F.2d 336 (5th Cir.1972); Bush v. Diamond Offshore Co., 46 F.Supp.2d 515, 523 (E.D.La.1999); and In re Parish of Plaquemines as Owner of M/V Pointe-A-La-Hache, 231 F.Supp.2d 506 (E.D.La.2002).
Under his maintenance and cure claim, Mr. Semien is seeking maintenance benefits in the amount of $35 per day be paid from the date maintenance was terminated (May 15, 2014) until maximum medical cure is reached—which he argues, has not yet occurred. Mr. Semien is, also, seeking Parker Drilling to pay for additional medical treatment, in particular, treatment provided by and recommended by Dr. David Clause under Parker-Drilling’s cure obligation. Mr. Semien argues the care provided by Dr. Clause is not merely palliative, and, that a recommended arthoscopic procedure is a necessary diagnostic measure required to determine if additional curative treatment is due and that additional maim tenance and cure is owed—Parker Drilling disagrees and argues Mr. Semien reached MMI on. May 15, 2014 and any additional medical care is either palliative or too speculative to be warranted and, therefore, no additional maintenance or cure is due.
VII. Findings
After due consideration of the facts and evidence presented by the parties at trial by way of-live witnesses, exhibits, and deposition testimony, and after having had the opportunity to assess the demeanor of the witnesses, and review and weigh the evidence, this Court makes the following findings:
A. Mr. Semien was a Jones Act seaman
Mr. Semien put forth sufficient evidence establishing that he is, in fact, a Jones Act seaman, and there was no evidence to the contrary presented by Parker Drilling. Accordingly, this Court finds Mr. Semien is a Jones Act seaman.
B. Unseaworthiness
There is no dispute Rig 34B is for purposes of the general maritime law, a vessel under that law. To prove this vessel is unseaworthy, Mr. Semien must show: (1) the vessel, equipment, or crew were not reasonably fit and safe for the purposes required (i.e., an unseaworthy condition); (2) the unseaworthiness actually caused or played a substantial role in causing injury; and (3) the injury was ‘the direct result or reasonably probable consequence of that unseaworthiness. Phillips v. Western Co. of N. Am., 953 F.2d 923, 928 (5th Cir.1992). (emphasis added)
As noted earlier, Mr. Semien focuses his claim of unseaworthiness on two particular aspects of the rig: the faulty pumps and trip tanks, which Mr. Semien argues required him to work in an elevated area- with no regular or otherwise safe access. Thus, the faulty pumps and tanks and the absence of safe access to an elevated work area are his primary focus. After hearing the evidence at trial, this Court concludes the failure of the pumps to operate and the trip tanks to automatically drain would not necessarily, in 'and of themselves, have created an unseaworthy condition, as there was a way to manually drain the tanks. However, there was no longer rig access available to the manual valves required to drain the tanks—the permanent ladder with the permanent safety harness attachment and run having been removed and not replaced by Parker Drilling. Testimony was presented, while not a usual occurrence, it was not necessarily unusual to have to use the manual valves to drain the tanks and that the tanks could be drained in that fashion. However, in this instance, the vessel owner had removed the only rig access to that part of the working system, the manual valves, and had not replaced that access. It is undisputed that Rig 54B at one time had a permanent ladder system providing safe access to the manual valves that included an anchor point system to which a harness could be attached and run along with the employee as he or she climbed, manipulated the manual valve, and descended. This ladder system provided safe access to the manual valve work area which was located 13’8‘ above the bottom deck. Steve Ville-join, the Parker Drilling toolpusher/rig manager, testified he was aware that RIG 54B had previously had a permanent ladder on the bottom deck below the manual trip tank valves. Villejoin, also, testified this ladder was used to access the manual trip tan k valves, but was removed during refurbishing in 2006, and was not replaced; he did not indicate why it was removed or why it was not replaced. Thus, although the vessel had a backup system allowing manual draining of the trip tanks if the pumps failed—as they did in this instance—the vessel had no access to these valves, thus, that area of the vessel became unfit for its intended use once the rig access was removed by the vessel owner and not replaced with a safe substitute. Therefore, this Court finds the vessel was unseaworthy in that regard.
However, the mere existence of ah unseaworthy condition, again, does not, necessarily, end the inquiry. As explained above, the seaman must, also, establish that the unseaworthy condition was the proximate cause of his injury. After having heard all the testimony, this Court concludes removal of the permanent ladder system—while it might have created an unseaworthy condition, was not, however, the proximate cause of Mr. Semien’s injury. As noted above, Mr. Semien is required to meet the more demanding standard of proximate causation when alleging unseaworthiness. In other words, Mr. Semien must show the “unseaworthy condition played a ‘substantial part’ in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the vessel’s unseaworthiness.” Phillips, 953 F.2d at 928. (emphasis added) Here, this Court finds the removal of the permanent ladder system and failing to replace that system with a safe substitute, creating a work area some 13’8‘ above the work area without safe rig access did create an un-seaworthy condition; however, this Court finds the unseaworthy condition was not the proximate cause of Mr. Semien’s injury, as the condition, in and of itself did not play a “substantial part” in causing Mr. Semien’s injury. Rather, this Court finds Parker Drilling’s negligence, paired with Mr. Semien’s negligence, acted in concert to cause Mr. Semien’s accident and injury, as will be explained below.
Based on the foregoing, this Court concludes that although the removal of the permanent ladder system without replacing the system with safe rig access to the manual valve created an unseaworthy condition on board the vessel, nevertheless, Mr. Semien has not established that this unseaworthy condition was the proximate came of his accident and injury.
C. Negligence
In general, as noted above, ’Jones Act negligence on the part of the employer may arise in many different ways including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the work place, failure to inspect the work place for hazards, failure to take precautions to protect a seaman, or any other breach of the duty of care. Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir.1977), overruled on other grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 339 (5th Cir.1997); Thomas J. Schoenbaum, Admiralty and Maritime Law, § 6-21 (4th ed,2004). The duty- of care owed by a Jones Act employer is that of ordinary prudence, namely, the duty to take reasonable care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338-39 (5th Cir.1997). However, the standard for causation in a Jones Act case is light: it is plaintiffs burden to show, by a preponderance of the evidence, that the employer’s negligence was the cause, in whole or in part, of plaintiffs injuries. Derouen v. Vaughn Marine, Inc., 529 F.2d 1222, 1225 (5th Cir.1976); see also CSX Transp., Inc. v. McBride, 564 U.S. 685, 131 S.Ct. 2630, 2636, 180 L.Ed.2d 637 (2011). “[T]he standard is one of ‘producing cause’ rather than ‘proximate cause’ and ... the burden of proof is ‘featherweight.’ Thus, two concepts come into play here-the type of causation that must be shown (producing) and the plaintiffs burden to show that cause (featherweight).” Clark v. Kellogg Brown & Root L.L.C., 414 Fed.Appx. 623, 626 (5th Cir.2011)(citing Chisholm v. Sabine Towing & Transp. Co., 679 F.2d 60, 62 (5th Cir.1982)).
A seaman, however, is, also, obligated under the Jones Act to act with ordinary prudence under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 339 (5th Cir.1997). Comparative negligence may apply to reduce a seaman’s recovery on a Jones Act claim. Jauch v. Nautical Serv., Inc., 470 F.3d 207, 213 (5th Cir.2006), citing Miles v. Melrose, 882 F.2d 976, 984 (5th Cir.1989), see also Johnson v. Cenac Towing, Inc., 544 F.3d 296, 302 (5th Cir.2008) (citing 45 U.S.C. § 53; Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 127 S.Ct. 799, 802, 166 L.Ed.2d 638 (2007)). Whereas, the plaintiff bears the burden of proving the defendant’s fault, the defendant bears the burden of proving the plaintiff is comparatively at fault. See Sorrell, 127 S.Ct. at 807.
Mr. Semien alleges negligence on the part of Parker Drilling in multiple respects. As noted, Mr. Semien alleges injury occurred while he was attempting to physically manipulate a manual “dump valve” located 13’8‘ above the work area floor, with no rig access to those valves. On Rig 54B, the work area including the set of manual valves that were part of the trip tank system, was integral to the operation of the rig, as the manual valves supported the tanks’ operation when the automatic pumps were not working. This work area was located approximately 13’8‘ feet above the rig floor work area and had no rig access. Again, as noted earlier, Rig 54B had, at one-time, a permanent ladder by which workers could access that specific elevated work area, however, Parker Drilling had removed the permanent ladder, not replaced it nor created a safe physical substitute, and thereby, had left a known, and necessary, work area some 13’8‘ above the -floor with no rig access. At that point, Parker Drilling had knowledge of an unsafe workplace and dangerous condition aboard its rig, of its making, and therefore, had the obligation to take precautions to protect someone such as Mr. Semien whose job required him to work in that area. In other words, at the point Parker Drilling created an unsafe workplace and dangerous condition on its rig, Parker Drilling had an obligation to either replace the ladder,with a safe physical structure by which employees could safely access the manual valves, or to take precautions to allow safe access to the manual valves. It is undisputed Parker Drilling did not replace the ladder or put another physical structure in place to allow rig access. Parker Drilling, however, argues it did take precautions to protect its employees as it had certain existing general safety standards—which, if followed or if cobbled together—Parker Drilling argues would suffice to provide a system, process, or policy or policies to allow safe access to the manual valves. However, the testimony at trial establishes that, at each stage, the argued Parker Drilling “system” or policies failed.
Despite having removed and not replaced the only means of rig access to the manual valves, Parker Drilling created no Job Safety Analysis delineating the proper manner to safely access the known, elevated, work site, which, again, was located approximately 13’8‘ above the rig floor, despite having full notice that the only safe means of ingress or access to an integral part of the rig had been removed by them and not replaced. Thus, Parker Drilling removed the only rig access to the known and necessary work area, creating a necessary work area with no rig access, and Parker Drilling, also, failed to take adequate precautions to protect their employees who had to work in that area. Parker Drilling had notice the manual valves were part of the trip tank system; Parker Drilling had notice that employees had to access and manipulate those manual valves when the, automatic system failed; Parker Drilling had notice they had removed the rig access to that area; Parker Drilling had notice no physical replacement was established; Parker Drilling had notice they had created an unsafe work area and dangerous condition; and Parker Drilling had notice they had not created a formal process or system addressing this situation, notwithstanding full knowledge the rig now had a known and necessary work site some 13 plus feet above the rig floor with no rig access.
Parker Drilling argues, however, that its already existing generalized safety policies, individually, and when cobbled together, should suffice. This Court disagrees. The evidence established Parker Drilling had created Job Safety Analyzes for other situations, but chose not to do so for this situation, one of their own making. And, perhaps more importantly, each of the generalized safety policies argued by Parker Drilling failed in actual application, whether from a lack of training of the Parker Drilling’s employees, or by way of the inherent ambiguities within the policies themselves, or by way, of the ambiguities created when those general policies were attempted to be cobbled together or applied to a specific task. Of course, each task to be done aboard a working rig does not necessitate a formal Job Safety Analysis, however, here, Parker Drilling, itself, created an unsafe work area and dangerous condition when they removed the only rig access to a known, elevated, and necessary work area. At that point, Parker Driller had an obligation to provide a safe substitute for access, or to take precautions to protect their employees who would have to work in that unsafe work space.
Again, even in the absence of a formal Job Safety Analysis addressing the hazard Parker Drilling had created, had the generalized safety policies already in place, in fact, acted as a safe substitute, or an adequate precaution, as Parker Drilling argues, perhaps, Parker Drilling’s argument would be more persuasive. However, as noted, and as will be explained below, each of the prongs of this argued impromptu process failed in specific application..
There are three primary, general, safety policies Parker Drilling argues that, individually and particularly when brought together, should act as a safe substitute for the rig access Parker Drilling removed or as adequate precaution. Parker Drilling argues, first and, perhaps, foremost, its “buddy system”, itself; if followed, would have eliminated the risk and unsafe condition. Parker Drilling, also, argues Mr. Semien should not have used an extension ladder to access the 13’8‘ elevated work area; and Parker Drilling, argues Parker Drilling’s safety policy addressing the use of safety harnesses, again, would have prevented Mr. Semien’s accident. And, finally, Parker Drilling argues, when pulled together, these policies, as a collective, create a whole that, also, would have provided a safe manner of access to the known, elevated work area and constitute sufficient precautions. For the reasons noted below, this Court disagrees.
Parker Drilling, first, argues the plaintiff should have used the “buddy system” and had he done so, the accident would not have occurred. However, the testimony establishes Mr. Semien did attempt to use the actual system Parker Drilling instructed him to employ; however, Parker Drilling’s employees failed to honor their role in that system. Mr. Semien did as he was trained and called, his supervisor—Mr. Landry the driller—and explained that the pumps were not working and that the tank would have to be emptied by way of the manual “dump” valve. Landry instructed Semien to call the crane operator—Palfrey and to have Palfrey and his helper come and dump the tank. Mr. Semien, thereafter, did as instructed, called Palfrey, and Palfrey told him he would come as soon as he completed filling out a permit, in about 10 minutes. Plaintiffs Exhibit 16, p. 11, para. 6; p. 17. Palfrey, however, did not come in 10 minutes; Palfrey did not come in 45 minutes; and in fact, testimony established Palfrey never came to provide the requested help. ■ Indeed, when Palfrey found Mr. Semien lying injured on the rig floor, some 45 minutes after Mr. Semien had asked for help, Palfrey was not coming to provide the requested help, rather he was in search of a tool he needed for another job. Clearly, up to that point, Sem-ien had done as instructed and trained; Palfrey did not. When Palfrey did not come as promised, Mr. Semien testified he, again, called Palfrey to no avail, and, again, called his supervisor, Mr. Landry. Although neither Palfrey nor Landry remembers, one way or the other, whether Mr. Semien called a second time, this Court finds for reasons noted and to follow, that Mr. Semien called the driller twice; and called Palfrey twice; requesting help. On the second call to the driller, this Court finds Mr. Semien told the driller that he, Mr. Semien, was going down to the rig floor above which the manual valves were located and the driller told him “to be safe.” Although the driller could not recall one way or the other whether Mr. Semien called a second time, this Court finds Mr. Semien’s testimony on this point credible as Mr. Semien would have been leaving Ms duty station and his assigned task of monitoring and communicating the tank levels to the driller and, therefore, had he left, he would not have been able to report to the driller the return into the trip tanks as he had been assigned. Thus, this Court finds it reasonable to accept that Mr. Semien did call the driller, the second time, before he went down. Thereafter, Mr. Semien went down to make the necessary preparations for Palfrey and Palfrey’s helper to dump the tank, and waited; Palfrey, still, did not come. As noted, Mr. Semien testified he called Palfrey again, however, to no avail. This Court finds Mr. Semien credible on this point as testimony established Palfrey was, by this time, on the other job in either the pump room or the mud room. Thus, this Court finds, up to this point, Semien followed his training and instruction, requested' help multiple times, and help, although promised, never arrived; that is Parker Drilling’s failure—not Mr. Semien’s.
This Court finds the testimony was clear that Mr. Semien followed Parker Drilling’s policy by calling, first, the driller, Fred Landry, for help, who told Mr. Semien to call the crane operator, Palfrey, and then calling Palfrey. Mr. Semien called Palfrey and requested help; Palfrey told him he would come as soon as he completed the permit, in about 10 minutes. Mr. Semien testified he, thereafter, waited about 15-20 minutes for Palfrey to arrive, but Palfrey did not come. When Palfrey did not arrive to help, as noted above, Mr. Semien testified he called Palfrey again, but got no answer. Again, as noted, Mr. Semien testified he, then, again, called the driller and told the driller, that he was “going down” and the driller told him “to be safe.” Again, although, the driller testified he does not recall one way or the- other whether Mr. Semien called him a second time, this Court finds Mr. Semien’s testimony that he called the driller a second time credible, because, again, Mr. Semien and Landry were in close contact during the process at. play on the drill floor as Semien was monitoring the return level in the tanks and providing that information to the driller because the hole had previously been losing liquid into the formation. Therefore, it is reasonable to assume Mr. Semien would have needed Landry’s permission to leave his post—where he was monitoring the water levels in the tanks— to go to the bottom deck.
Mr. Semien testified that, once on the bottom deck, he began preparing the area for Palfrey and his helper, still expecting Palfrey and his helper to arrive to help. Semien located and donned a life vest, hooked his “elephant hose,” and went down to the barge. He obtained a ladder and put it in place, and looked up through the floor opening to check the trip tank gauge level once again—and Palfrey and his helper still had not come. When Palfrey did not arrive and could not be reached, Mr. Semien testified he believed he was running out of time as the second tank was fast filling and at that point he was faced with a “the devils own choice”— to continue to wait for Palfrey and risk the undesirable consequence of an overflow or of the water in the tanks backing into the oil based mud pits and thus, failing in his job responsibility to handle and regulate the tanks, or to attempt the task of dumping the tank himself. Mr. Semien made the decision to manually open the valve himself.
Steve Villejoin, the toolpusher, confirmed that at the time Mr. Semien called Palfrey, and requested the help, Villejoin and Palfrey were intending to perform maintenance in the mud room or the pump room, work that required a lockout permit. Palfrey was filling out that permit in the toolpusher, Villejoin’s office when Mr. Semien called. After Palfrey talked to Mr. Semien, Palfrey continued working on the permit, which takes about 10 minutes, and, thereafter, Palfrey and Villejoin went to the job in the mud or pump room, which Villejoin’s testimony estimated would have taken another 30 minutes. Palfrey did not go to help Mr. Semien as requested and promised and the toolpusher, Villejoin, did not ensure the requested help was supplied. Rather, after Mr. Semien’s call, Palfrey and Ville join left the toolpusher’s office and went to either the mud or pump room to work on another job. At some later point, Palfrey left the mud or pump room to obtain a specific tool he needed for that job; it was only then Palfrey discovered Mr. Semien lying on the floor, by sheer happenstance. Mr. Palfrey never came to provide the requested and promised help and Villejoin did nothing to ensure the requested and promised help was, in fact, supplied.
Although Parker Drilling argues their “buddy system” could have prevented this accident, such argument rings hollow when Parker Drilling’s employees flagrantly failed to provide the help Mr. Semien requested, even though they assured Mr. Semien they would. Villejoin testified that, at most, 45 minutes passed between the time Mr. Semien called, and spoke to Palfrey, and the time Palfrey discovered Mr. Semien; the evidence established Palfrey told Mr. Semien he would be there in 10 minutes; Palfrey’s testimony verified he never went to help Mr. Semien. Villejoin, also, confirmed that trip tanks can overflow—first into the sand traps and then the mud pit, and thereafter, conceivably, into the water—which can create an environmental spill or the contents of the trip tank can back up into the mud pits creating undesirable consequences. Although Villejoin felt these unlikely scenarios, he agreed undesirable circumstances could ensue if the trip tanks backed up or overflowed, as Mr. Semien testified he feared, and, yet, Ville join and Palfrey left Ville-join’s office after Mr. Semien’s call, not to help Mr. Semien as had been promised, but to work in the mud or pump room. Testimony established that avoiding the possible undesirable consequences relating to the trip tanks was part of Mr. Semien’s job responsibility and that he, Mr. Semien, had asked for help as instructed, was promised help, and, yet, no help was provided either as promised, or indeed, ever. Mr. Semien was attempting to do his job as trained and instructed; Parker Drilling employees were not and did not. Mr. Sem-ien honored his role in the “buddy system” by requesting help; the Parker Drilling employees failed to honor their role in argued “buddy system,” entirely by not providing that help as promised or within a reasonable time and manner.
The testimony,'also, made clear that the toolpusher knew Mr. Semien had called Palfrey for help, and that help had been promised in 10 minutes, however, when Palfrey left the toolpusher’s office, the toolpusher went with Palfrey to the mud or pump room to work, and not to provide the promised help. At one point, thereafter, Villejoin testified, Palfrey left the mud or pump room, and he, Villejoin, was not sure if Palfrey was going to help Mr. Semien or to find a tool for the other job. Indeed, the testimony, however, establishes Palfrey was not going to help Semien, indeed, Palfrey never did go to help Mr. Semien, rather Palfrey was still engaged in the other job when he happened upon Semien some 15 minutes later. Palfrey testified that when, he, Palfrey, found the injured plaintiff, he was looking for a specific tool for the other job and had not come to help with the manual valves as he had promised. Thus, although Parker Drilling argues the plaintiff failed to properly utilize their “buddy system,” in this instance, this Court finds it was Parker Drilling’s employees who failed to properly utilize the argued “buddy system.” The Court finds Parker Drilling employees failed to implement its “buddy system,” Mr. Semien called and asked for help; Palfrey told Mr. Semien he would come after completing the permit—in some 10 minutes; Palfrey did not come; the tool-pusher Villejoin knew all of this; Mr. Sem-ien called Palfrey again, there was no answer; Mr. Semien called his driller again, and yet, help never came. Whether Parker Drilling did not train its employees as to the importance of and how to implement their “buddy system,” or whether Parker Drilling’s employees, Palfrey and Villejoin, simply disregarded that possible training is of no real moment. Either way, Parker Drilling’s “buddy system” failed because Parker Drilling’s employees failed to respond- at all, through no fault of Mr. Sem-ien.
. Parker Drilling argues, however, that Mr. Semien should have “gotten” help rather than just “request” help. However, again this Court disagrees. The facts establish Mr. Semien requested the help, was promised help, and tried to reach the “buddy” yet again when the promised help did not come and that the he told his immediate supervisor, Mr. Landry; that we was going below. Parker Drilling’s employees, Palfrey and Villejoin,- for whatever reason—and no credible evidence as to a reason was given—did not play them required roles required for a meaningful “buddy system” to operate—Palfrey to actually provide the help; Villejoin, as tool-pusher, to see that the request for help was, in fact, honored. Indeed, Mr. Landry, the driller, testified he expected help would have been forthcoming quickly. And yet, some 45 minutes after the request and promise of help in 10 minutes, the promised helper was still engaged in another ongoing job and at no time before Mr. Semien’s accident was help ever sent—thus, this Court finds a clear failure of Parker Drilling’s “buddy system,” through its employees, Palfrey, and Ville-join.
Yet, Parker Drilling argues Mr, Semien should, nonetheless, have continued to wait. Mr. Semien argues when the promised help did not come, and when he could not reach Mr. Palfrey to find out why, and as the gauge reflected the second tank was fast filling to capacity, he was faced with the devil’s own choice between possibly failing at his job responsibilities or acting alone—neither choice ideal. Had Parker Drilling’s “buddy system” operated properly, as argued by Parker Drilling—and this Court finds it did not—perhaps, Mr. Semien would have been spared the devil’s choice—and perhaps, as Parker Drilling argues, Mr. Semien’s accident might never have happened. However, under these facts, Parker Drilling’s “buddy system” clearly failed. One cannot argue one has an exonerating safety policy when in reality that policy is not honored by the company and its employees; this failure rests with Parker Drilling.
Parker, also, argues the plaintiff should have used an A-frame, rather than an extension ladder to access the manual valves; the A-frame being sturdier than an extension ladder. Parker Drilling, also, argues, had Mr. Semien done so, his accident might not have occurred. However, there was much conflict in the testimony concerning whether such a policy actually existed and/or whether employees knew of the existence of any such policy, and whether, it, too, was not honored by Parker Drilling’s employees. Conflicting testimony was presented on whether Parker Drilling employees had used A-frame or extension ladders in the past to do this task, evidencing, at least, a lack of training on the part of employees as to the argued, alleged, safety policy. Indeed, Mr. Palfrey testified he had seen Mr. Semien use an extension ladder to do the same task before, and that he, Palfrey, had seen other hands using an extension ladder but, because of his personal preference, he always suggested they use an A-frame. Thus, testimony established extension ladders were used. Regardless, however, Mr. Semien testified that when he went to look for a ladder in the bin area where ladders and other similar equipment were to be kept on this deck—which, incidentally is a deck approximately the size of two to three courtrooms—he could find only the extension ladder he used. Therefore, if Parker Drilling argues the plaintiff should have used only a specific ladder for this specific job, it would seem reasonable to assume Parker Drilling Employees, such as the plaintiff, should have been properly trained to use such a ladder, and it would seem reasonable that the required type of ladder should have been readily available. None of which this Court finds was the case. Again, this Court finds the evidence established a failure of this prong of Parker Drilling’s “system” or argued safety policies.
Finally, Parker Drilling argues the plaintiff should have used a safety harness before climbing the ladder. Here, the testimony clearly established that all employees were, in fact, trained in Parker Drilling’s policy that when working at heights over 6 feet on a ladder, employees were required to use a safety harness or some other form of fall protection. The testimony established the employees, including Mr. Semien, had been trained in this policy. However, the testimony, also, shows that harnesses were not necessarily available on the bottom deck near the manual valve work area. There was testimony that while harnesses could possibly have been found on that deck, the testimony was that harnesses were ordinarily kept on the deck above. Again, as Parker Drilling knew it had a work area 13’8‘ above the deck with no rig access, it would seem reasonable to routinely store fall protection on that deck in the designated area.
Mr. Semien testified, however, that he did not feel he had time to get a safety harness; however, Mr. Sémien testified he had time to get a life jacket and put it on, get the “elephant hose”, go to the barge, find and place the ladder, and to, again, check the tank valve. Mr. Semien, also, knew a harness would be required for whomever. climbed the ladder and, yet, when setting up for Palfrey and his helper, Mr. Semien did not go get any kind of fall protection. This failure rests squarely with Mr. Semien.
However, this Court notes, within the impromptu “system” Parker Drilling argues as its safe substitute or as precautions implemented for the removed ladder and harness line and anchor, there is no replacement anchor site to which fall protection can be attached, at all, and certainly none available while one is on the ladder well above 6’ attempting to attach fall protection. Rather, Mr. Villejoin testified, an employee would have to climb the approximately 14’ ladder, and while perched on the ladder some 12-13 feet in the air, reach behind one’s back to grasp a harness or lanyard attached there, and then, again, all the while perched on a 14’ or higher ladder, locate and grasp the harness or lanyard behind one’s back and once grasped, throw it over an existing pipe even with or above one’s head, which, might, or might not, hold one’s weight if one fell! There is no evidence the suggested pipe met Parker Drilling’s own safety policy, which Mr. Villejoin testified required anchors to have a strength sufficient to handle a static 5,000 pound load and there was not evidence of any anchor point for fall protection to protect while one is above 6’, on a ladder, attempting to attach fall protection. Therefore, it should not go without notice that there is grave question whether Parker Drilling’s argued system (literally, throwing a harness or lanyard dangling from one’s back, over a pipe even or above one’s head to create fall protection, while perched on a ladder some 14 feet in the air with no fall protection) would actually meet Parker Drilling’s obligation to provide a safe place to work or would have prevented Mr. Semien’s accident. However, there is no dispute in thi