SUPREME COURT ALTERS STANDARD OF CARE IN JONES ACT
06/11/1999

          Louisiana Supreme Court applies Gautreaux Standard of Care for Jones Act Seaman, but with a twist?

By a 6-1 decision, the Louisiana Supreme Court, in an opinion released January 20, 1999, upheld a decision of the Louisiana First Circuit Court of Appeal in the case of Vendetto v. Sonat Offshore Drilling Company, 1999 WL20785 (La. 1999). In so holding, the Court applied the relatively new ordinary prudence standard for seaman pronounced by the U.S. Fifth Circuit Court of Appeals in Gautreaux v. Scurlock Marine, Inc., 107 F. 3rd. 331 (5th Cir., 1997), and reversed a judgment of the trial court awarding the plaintiff $1,048,768.00 in damages.

In Vendetto, the plaintiff had worked for six years for Sonat as a seaman aboard the Discoverer 534 drill ship, and had worked two years previously for another employer in a similar capacity, which required the carrying and lifting of heavy objects. On January 19, 1993, the plaintiff was called to assist with a maintenance procedure which required him to lower tools and chain falls weighing 30 to 40 lbs., a distance of approximately 30 feet into a thruster tunnel aboard the Discoverer 534. The plaintiff performed these tasks by lowering the tools and chain falls with a rope, hand over hand, to fellow workers located below in the thruster tunnel. While performing these tasks, the plaintiff felt a pain in his neck, but continued working. When the soreness continued, the plaintiff reported the injury to the medic aboard the ship and was later referred to a doctor. The plaintiff was initially diagnosed with muscle strain, but eventually it was determined that plaintiff had sustained a ruptured disc which required surgery.

A tort action ensued, in which the plaintiff alleged two theories of recovery: 1) the negligence of defendant in failing to provide proper training and safe methods of lifting and lowering tools, and in failing to ensure that supervisory personnel required employees to utilize safe and proper procedures in performing maintenance procedures such as those performed by the plaintiff; and 2) the unseaworthiness of the vessel arising from the dangers of having an improperly trained and supervised crew. At trial, the plaintiff testified he had seen and used a wrap around method of lowering tools, as an alternative to the hand over hand method used by plaintiff, but that generally wraps were used for lowering heavier objects than those lowered by plaintiff when he was injured. Nevertheless, the plaintiff admitted he could have used the wrap around method, but chose the hand over hand method instead. The plaintiff complained that the defendant should have provided mechanical means for lowering such objects.

It was established at trial that plaintiffs employer discussed safe lifting techniques frequently at weekly safety meetings, which were attended by the plaintiff. Other evidence established that placards illustrating proper lifting techniques were posted at various places around the ship. Additionally, Sonat's attorneys, Timothy W. Cerniglia and James H. Colvin, presented evidence that manually lowering tools weighing 40-50 lbs. a distance of 25-30 feet with a rope by the hand over hand method was an acceptable procedure, and one which could be done effectively and safely without being negligent.

The District Court of St. Mary's Parish, Judge William Hunter presiding, ruled in plaintiffs favor on both theories, awarding a total of 1,048,768.00 in damages. In so doing, the District Court found that the vessel had an improperly trained and supervised crew, and that Sonat's failure to ensure that the supervisors on board were following and enforcing proper safety methods resulted in a condition that made the vessel unseaworthy. As to Jones Act negligence, the lower court ruled that the defendant negligently failed to provide a reasonably safe work place based on the same factors referred to in the unseaworthiness determination. In finding no contributory negligence, the trial court, citing Spinks v. Chevron Oil Company, 507 F.2d. 216 (5 Cir. 1975), noted that a seamans duty to protect himself is slight, especially when the supervisor knows the methods used by the seaman and does nothing about it.

On behalf of Sonat, Cerniglia and Colvin appealed the trial courts judgment to the First Circuit Court of Appeal. Prior to the First Circuit Court's review of the case, the U.S. Fifth Circuit Court of Appeal rendered its opinion in Gautreaux, supra, which overruled Spinks,and other cases which had used loose language such as slight negligence in describing the standard of care in Jones Act negligence cases. The court in Gautreaux held that a Jones Act seaman is required to act as a reasonable seaman under like circumstances, raising the standard by which a seamans contributory negligence is measured from slight duty of care to ordinary prudence under the circumstances. The First Circuit reviewed the facts in Vendetto under the standard of care set forth in the Gautreaux decision. Characterizing the task the plaintiff was assigned to perform in Vendetto as a common, ordinary task that he had done many times before, the First Circuit, in a 3-2 decision, held that although other methods of lowering the tools were available, the method selected was not unsafe. In emphasizing that the plaintiff had selected the method for lowering the tools from among several methods known and available to him, the Court concluded that Jones Act negligence on the part of Sonat was not proved. As to the unseaworthiness of the vessel, the Court of Appeal held that the trial courts findings that plaintiff was not properly trained in lifting and that this lack of training made the vessel unseaworthy, were manifestly erroneous, reversing the lower court.

The Louisiana Supreme Court granted certiorari to address the correctness of the First Circuit's decision. In affirming the First Circuit's reversal of the trial court, the Supreme Court held that the plaintiff knew and had used safe methods of lifting and lowering tools, had used the exact procedure touted as the safest method on other occasions, and that there was nothing unsafe about any of the methods described at trial which were used by Sonat employees to manually lower tools with a rope.

Interestingly, while the Supreme Court correctly upheld the appellate courts reversal in Vendetto, the Court's published decision leaves questions remaining as to the duty owed by employers of Jones Act seaman. After citing the Gautreaux decision for the premise that the negligence of the employer is determined according to the standard of a reasonable employer in like circumstances, the Court went on to state:

Nevertheless, since the duty to provide a safe place to work allocates substantial risk of maritime employment to the employer, identical conduct is not demanded of the employer and the employee. The law allocates different risks to different parties, and that allocation forms part of the reasonableness equation and the negligence determination. A defendant's standard of care, like that of the plaintiff, varies according to the conduct in which the parties is engaged. [Emphasis ours.]

The Court further stated:

The duty on the employer to make the work place safe may, in a sense, impose a greater duty on the employer than on the duty of the seaman to use reasonable care for his own safety. But irrespective of the duty imposed, the standard of care on both an employer and a seaman is that of a reasonable person in the same position under like circumstances. [Emphasis ours.]

Vendetto v. Sonat Offshore Drilling Company, 1999 WL20785 (La. 1999).

In sum, while the Vendetto Court applied the Gautreaux standard in upholding the First Circuit's reversal of the trial court, the Court's opinion, authored by Justice Lemmon, suggests that a Jones Act employer owes a greater duty of care than that incumbent of a Jones Act seaman. While this differs from the standard set forth in Gautreaux, it is likely that attorneys representing injured seamen will raise this issue in connection with Jones Act claims tried in Louisiana State courts. Only time will tell how Louisiana's lower courts will interpret this dicta, and all Maritime employers, as well as their lawyers, must stay tuned to see what ultimately results from the Court's decision in Vendetto.