REVISED UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 96-31071

GREG E. CRAWFORD,

Plaintiff-Appellee,

VERSUS

FALCON DRILLING COMPANY, INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Louisiana December 18, 1997

Before DEMOSS and DENNIS, Circuit Judges, and LEE, District Judge.*

DEMOSS, Circuit Judge: In Gautreaux v. Scurlock Marine, Inc.,

(5th Cir.

1997) (en banc), we signaled a sea change in our Court’s Jones Act

jurisprudence. The present appeal arises from a maritime injury

case tried under pre-Gautreaux standards of Jones Act negligence.

We must decide what effect, if any, our decision in Gautreaux has

on this direct appeal. Finding plain error with respect to the

liability, we vacate that aspect of the judgment of the district

* Chief Judge of the Southern District of Mississippi, sitting by designation. court and remand for reconsideration in light of Gautreaux.

We are also asked to review the district court’s award of

damages. Because the district court’s assessment of Crawford’s

damages was not clearly erroneous, that aspect of the judgment is

affirmed.

I.

Greg Crawford suffered a back injury aboard the PHOENIX V, a

jack-up drilling vessel. He claims, and the district court found,

that the injury was caused by an accident that occurred while he

was working as a derrickman on the PHOENIX V.1 HE FILED SUIT TO RECOVER

DAMAGES UNDER THE JONES ACT AGAINST HIS EMPLOYER, FALCON DRILLING.

AT THE TIME OF THE ACCIDENT, CRAWFORD’S CREW WAS ENGAGED IN A PRACTICE KNOWN

AS “TRIPPING PIPE OUT OF THE HOLE.” THE DRILL’S BIT HAD TO BE CHANGED, AND

TRIPPING PIPE OUT OF THE HOLE INVOLVED PULLING OUT ALL OF THE PIPE BETWEEN THE

SURFACE AND THE BOTTOM OF THE HOLE IN ORDER TO REACH THE BIT. THE PROCESS INVOLVED

THE COORDINATION OF THE MEMBERS OF THE DRILL CREW: THE DRILLER; THE THREE DRILL

HANDS; AND THE DERRICKMAN (IN THIS CASE, CRAWFORD).

FIRST, THE DRILL HANDS ATTACH AN ELEVATOR TO THE TOP PORTION OF THE PIPE.

THE DRILLER, WHO IS IN CHARGE OF THE OPERATION, THEN ENGAGES THE DRAW WORKS. A

“STAND” OF PIPE2 IS THEN PULLED UP AND OUT OF THE HOLE, EXPOSING THE JOINT WITH THE

1 The facts surrounding the accident which the district court determined caused Crawford’s injuries are very complicated. For our immediate purpose, however, the summary set out in the main text will suffice. Quoted material in this section of the opinion is taken from the district court’s findings of fact. 2 A “stand” consists of “[t]hree joints of pipe, each approximately 31 feet in length or a total of approximately 93 feet.”

-2- NEXT STAND. THE DRILL HANDS SET SLIPS AROUND THE NEXT STAND TO HOLD IT IN PLACE,

AND THEY THEN UNSCREW THE STANDS TO SEPARATE THEM AT THAT JOINT.

AT THIS POINT, THE SEPARATED STAND OF PIPE IS READY TO BE PLACED IN THE PIPE

RACK. THE DRILLER LIFTS THE STAND A FEW FEET, AND THE DRILL HANDS THEN PUSH THE

BOTTOM OF THE STAND INTO THE RACK. THE DRILLER THEN LOWERS THE STAND SO THAT THE

BOTTOM IS IN ITS PLACE IN THE RACK.

NEXT, THE DERRICKMAN DOES HIS JOB. THE DERRICKMAN IS POSITIONED ON A

MONKEYBOARD HIGH IN THE AIR ON THE DERRICK, SUCH THAT HE CAN REACH THE ELEVATORS

ATTACHED TO THE TOP OF THE STAND AS THE DRILL HANDS POSITION THE BOTTOM OF THE STAND

IN THE PIPE RACK. HE HAS A PULL-BACK ROPE WHICH HE FLIPS AROUND THE STAND, PULLING

THE TOP TOWARD HIM WITH HIS RIGHT HAND. WHEN THE BOTTOM OF THE STAND TOUCHES THE

FLOOR IN ITS POSITION IN THE PIPE RACK, THE DERRICKMAN REACHES UP AND UNLATCHES THE

ELEVATOR WITH HIS LEFT HAND. HE THEN PULLS THE TOP OF THE STAND WITH BOTH HANDS

SO THAT HE CAN PUT IT IN ITS PLACE IN THE PIPE RACK. THE ENTIRE PROCESS IS THEN

REPEATED UNTIL ALL OF THE PIPE HAS COME OUT OF THE HOLE.

THE STAND OF PIPE WHICH CAUSED CRAWFORD’S INJURY WEIGHED BETWEEN SEVEN AND

EIGHT THOUSAND POUNDS. THE SERIES OF STANDS TRIPPED OUT OF THE HOLE IMMEDIATELY

BEFORE THIS STAND HAD BEEN BOTH LIGHTER AND SHORTER. AS CRAWFORD RELEASED THE

ELEVATORS ON THE LIGHTER STANDS, EACH OF THEM FELL TOWARD HIS LEFT. CRAWFORD THUS

POSITIONED HIS BODY TO TAKE ADVANTAGE OF THE STANDS’ MOMENTUM AND GUIDE THEM INTO

THE PIPE RACK.

CRAWFORD WAS INJURED WHEN A STAND OF PIPE FELL TO THE RIGHT WHEN HE EXPECTED

IT TO FALL TO THE LEFT. THE DISTRICT COURT FOUND THAT THIS UNEXPECTED CHANGE

RESULTED FROM “THE FLOOR HANDS IMPROPERLY POSITIONING THE BOTTOM OF THE DRILL PIPE

ON THE PIPE RACK FLOOR AND THE DRILLER SETTING THE IMPROPERLY POSITIONED DRILL PIPE

DOWN ON THE PIPE RACK FLOOR.” THE STAND’S FALL TO THE RIGHT CAUGHT CRAWFORD OFF-

-3- GUARD, AND THE GRAVITY OF THE SITUATION WAS COMPOUNDED BY CRAWFORD’S ADVANCE

POSITIONING OF HIMSELF TO ACCOMMODATE A LEFTWARD-FALLING STAND. IN HIS ATTEMPT TO

PULL THE MASSIVE STAND OF PIPE INTO THE PIPE RACK, CRAWFORD SERIOUSLY INJURED HIS

BACK.

CRAWFORD SUED FALCON DRILLING FOR DAMAGES. THE DISTRICT COURT FOUND FALCON

DRILLING LIABLE FOR CRAWFORD’S INJURIES. IT ALSO FOUND THAT CRAWFORD WAS NOT

CONTRIBUTORILY NEGLIGENT WITH RESPECT TO THE ACCIDENT. JUDGMENT WAS ENTERED IN

CRAWFORD’S FAVOR IN THE AMOUNT OF $563,190.91. FALCON DRILLING APPEALS.

II.

OUR COURT’S EN BANC DECISION IN GAUTREAUX HAD NOT BEEN ANNOUNCED AT THE TIME

OF THE BENCH TRIAL IN THIS CASE. NATURALLY, THERE WAS NO OBJECTION TO THE DISTRICT

COURT’S CONCLUSIONS OF LAW REGARDING THE STANDARDS OF NEGLIGENCE TO BE APPLIED TO

THE RESPECTIVE PARTIES.

IT IS A FAMILIAR RULE THAT “[O]RDINARILY A PARTY MAY NOT PRESENT A WHOLLY NEW

ISSUE IN A REVIEWING COURT.” 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 2588, at 599 (2d ed. 1995); see also Helvering

v. Wood,

(1940); United States v. Calverley,

(5th Cir. 1994) (en banc), cert. denied,

(1995). It is equally well established, however, that an

exception to the general rule allows our Court to review an issue

of law raised for the first time on appeal in exceptional

circumstances. Most of our older precedent in this area frames the

standard for applying the exception as a question of whether there

was “a miscarriage of justice.” See, e.g., Noritake Co. v. M/V

Hellenic Champion,

(5th Cir. Unit A 1980); see

-4- also 9A WRIGHT & MILLER, supra, § 2588. Our case law has drifted

from these early moorings, however, and more recently our Court has

adopted the practice of reviewing unpreserved error in a civil case

using the plain-error standard of review. See, e.g., Douglass v.

United Servs. Auto. Ass’n,

(5th Cir. 1996) (en

banc) (plain-error rule applies when the appellant failed to object

to a magistrate judge’s report and recommendations); Highlands Ins.

Co. v. National Union Fire Ins. Co.,

(5th Cir.

1994) (plain-error standards govern an allegedly erroneous jury

charge), cert. denied,

(1995).

The Supreme Court has carefully defined the requirements for

reversal for plain error:

There must be an error that is plain and that affects substantial rights. Moreover, Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

United States v. Olano,

(1993) (brackets and

-5- internal quotations omitted); see also Johnson v. United States,

(1997).3

IN REVIEWING THE RESULTS OF A BENCH TRIAL, A DISTRICT COURT’S FINDINGS OF

FACT “SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS.” FED. R. CIV. P. 52(a).

For our present purposes, however, it is important to note that

“when the court’s error goes to the heart of the legal conclusion,

the finding, though similar to one of fact, should not be

protected.” 1 STEVEN ALAN CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF

REVIEW § 2.18, at 2-125 (2d ed. 1992); see, e.g., Viator v.

Delchamps Inc.,

(5th Cir.), cert. denied,

(1997).

3 There has been some confusion in our cases about the continued viability of the “miscarriage of justice” requirement for appellate review of unpreserved error in civil cases. Some of our cases suggest that the “miscarriage of justice” analysis sails in tandem with an OLANO-STYLE STANDARD OF REVIEW. SEE HIGHLANDS INS. CO., 27 F.3D AT 1032 (NOTING THAT APPELLATE REVIEW OF PLAIN ERROR IN CIVIL CASES “IS NOT A RUN-OF-THE-MILL REMEDY AND WILL OCCUR ONLY IN EXCEPTIONAL CIRCUMSTANCES TO AVOID A MISCARRIAGE OF JUSTICE.” (INTERNAL QUOTATIONS OMITTED)). IN CERTAIN CONTEXTS, HOWEVER, OUR EN BANC COURT HAS DISCLAIMED A SEPARATE “MISCARRIAGE OF JUSTICE” REQUIREMENT FOR PLAIN-ERROR REVIEW. SEE DOUGLASS, 79 F.3D AT 1423-28 (CIVIL APPEALS IN WHICH A PARTY FAILED TO OBJECT TO ALLEGED ERRORS IN A MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONS); CALVERLEY, 37 F.3D AT 163-64 (CRIMINAL APPEALS).

THESE ARE ROUGH SEAS TO NAVIGATE, ESPECIALLY IN LIGHT OF THE FACT THAT THE APPLICABILITY OF THE “MISCARRIAGE OF JUSTICE” REQUIREMENT IN UNCHARTED PLAIN-ERROR TERRITORY WAS EXPRESSLY LEFT OPEN IN A RECENT OPINION OF OUR EN BANC COURT. SEE DOUGLASS, 79 F.3D AT 1428 N.15. RATHER THAN CHART A NEW COURSE, WE WILL SIMPLY SAIL WITH THE FLEET IN APPLYING THE OLANO STANDARD OF PLAIN-ERROR REVIEW, CONFIDENT THAT WHATEVER INDEPENDENT STANDARD MIGHT BE REPRESENTED BY “MISCARRIAGE OF JUSTICE” RUBRIC, IT IS ADEQUATELY SATISFIED IN THIS CASE WHICH EASILY SURVIVES THE RIGORS OF OLANO’S FOUR-PART ANALYSIS. CF. DOUGLASS, 79 F.3D AT 1425 (“[M]OST CASES, PRE- AND POST-OLANO, IN OUR CIRCUIT AND OTHERS USE THE TERM ‘MANIFEST INJUSTICE’ TO DESCRIBE THE RESULT OF A PLAIN ERROR.”).

-6- III.

To resolve this appeal, we must determine (1) if there was

error, (2) if that error was plain, (3) if the error affects

substantial rights, and (4) whether allowing that error to stand

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.

A.

We turn first to the question of whether there was Gautreaux

error. As a threshold matter, we pause to note that there can be

no question but that Falcon Drilling is entitled to the benefit of

the Gautreaux rule, despite the fact that it was announced after

the conclusion of the trial in this case. The Supreme Court held

in Harper v. Virginia Dep’t of Taxation,

(1993), that

When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.

Harper,

. In the past, our Circuit has adopted as

its own the Supreme Court’s rules on the retroactivity of legal

principles announced in civil cases. See, e.g., Sterling v. Block,

(5th Cir. 1992).4 THUS, THE GAUTREAUX RULE APPLIES IN

4 This practice comports with that in other circuits. SEE, E.G., NATIONAL FUEL GAS SUPPLY CORP. V. FERC, 59 F.3D 1281, 1285, 1288-89 (D.C. CIR. 1995); LABORERS’ INT’L UNION, AFL-CIO V. FOSTER WHEELER CORP., 26 F.3D 375, 386 N.8 (3D CIR.), CERT. DENIED,

(1994); ECKSTEIN V. BALCOR FILM INVESTORS, 8 F.3D 1121, 1128 (7TH CIR. 1993), CERT. DENIED,

(1994); NEWPORT NEWS SHIPBUILDING & DRY DOCK CO. V. GARRETT, 6 F.3D 1547, 1554 (FED. CIR. 1993); UNITED STATES V. GOODNER BROS.

-7- THE PRESENT CASE, WHICH APPEARS BEFORE OUR COURT ON DIRECT APPEAL.5

WE NOW CONSIDER WHETHER THE CONCLUSIONS OF LAW ENTERED AT TRIAL WERE

ERRONEOUS IN LIGHT OF GAUTREAUX. “ERROR IS DEFINED AS A DEVIATION FROM A LEGAL

RULE IN THE ABSENCE OF A VALID LEGAL WAIVER.” CALVERLEY, 37 F.3D AT 162 (CITING

OLANO, 507 U.S. AT 732). THE DISTRICT COURT RULED:

3. UNDER THE JONES ACT A DEFENDANT MUST BEAR RESPONSIBILITY FOR ANY NEGLIGENCE, HOWEVER SLIGHT, THAT PLAYED A PART IN PRODUCING THE PLAINTIFF’S INJURIES. IN RE COOPER/T. SMITH, 929 F.2D 1073, 1077 (5TH CIR. 1991) [, CERT. DENIED,

(1991)].

4. DEFENDANT WAS NEGLIGENT IN FAILING TO ENSURE THAT THE LOWER END OF THE PIPE STRING WAS POSITIONED PROPERLY BEFORE SETTING IT DOWN.

* * *

7. A SEAMAN HAS A DUTY, ALBEIT SLIGHT, TO USE REASONABLE CARE TO PROTECT HIMSELF. SAVOIE V. OTTO CANDIES, INC., 692 F.2D 363, 371 (5TH CIR. 1982).

8. PLAINTIFF WAS NOT CONTRIBUTORILY NEGLIGENT IN CAUSING THE ACCIDENT WHICH RESULTED IN HIS INJURY.

IN GAUTREAUX, WE HELD THAT “NOTHING IN THE TEXT OR STRUCTURE OF THE FELA-JONES

ACT LEGISLATION SUGGESTS THAT THE STANDARD OF CARE TO BE ATTRIBUTED TO EITHER AN

EMPLOYER OR AN EMPLOYEE IS ANYTHING DIFFERENT THAN ORDINARY PRUDENCE UNDER THE

CIRCUMSTANCES.” GAUTREAUX, 107 F.3D AT 338. WITH RESPECT TO THE APPLICABLE

STANDARD FOR CONSIDERING THE CONTRIBUTORY NEGLIGENCE OF A JONES ACT SEAMAN, WE

AIRCRAFT, INC., 966 F.2D 380, 385 (8TH CIR. 1992), CERT. DENIED,

(1993). 5 The possible exceptions to the HARPER RULE DISCUSSED IN RYDER V. UNITED STATES,

(1995), AND REYNOLDSVILLE CASKET CO. V. HYDE,

(1995), ARE INAPPLICABLE. THE APPLICABILITY OF GAUTREAUX IS ESSENTIAL TO DETERMINING THE OUTCOME OF THIS CASE. SEE HYDE, 514 U.S. AT 758- 59. MOREOVER, THE APPLICATION OF GAUTREAUX WOULD NOT CAUSE CRAWFORD “THE SORT OF GRAVE DISRUPTION OR INEQUITY INVOLVED IN AWARDING RETROSPECTIVE RELIEF” THAT WOULD CALL INTO THE ACTION THE DOCTRINE (OF QUESTIONABLE CONTINUED VIABILITY) OF CHEVRON OIL CO. V. HUSON,

(1971). SEE RYDER, 515 U.S. AT 184-85.

-8- SPECIFICALLY HELD THAT:

A SEAMAN . . . IS OBLIGATED UNDER THE JONES ACT TO ACT WITH ORDINARY PRUDENCE UNDER THE CIRCUMSTANCES. THE CIRCUMSTANCES OF A SEAMAN'S EMPLOYMENT INCLUDE NOT ONLY HIS RELIANCE ON HIS EMPLOYER TO PROVIDE A SAFE WORK ENVIRONMENT BUT ALSO HIS OWN EXPERIENCE, TRAINING, OR EDUCATION. THE REASONABLE PERSON STANDARD, THEREFORE, AND A JONES ACT NEGLIGENCE ACTION BECOMES ONE OF THE REASONABLE SEAMAN IN LIKE CIRCUMSTANCES. TO HOLD OTHERWISE WOULD UNJUSTLY REWARD UNREASONABLE CONDUCT AND WOULD FAULT SEAMEN ONLY FOR THEIR GROSS NEGLIGENCE, WHICH WAS NOT THE CONTEMPLATION OF CONGRESS.

AT 339.

THE DISTRICT COURT’S CONCLUSIONS OF LAW REGARDING STANDARDS OF JONES ACT

NEGLIGENCE MAY HAVE BEEN DEFENSIBLE UNDER OUR PRE-GAUTREAUX CASE LAW. UNDER

GAUTREAUX, HOWEVER, THE RULE IS CLEAR, AND THE DECISION OF THE DISTRICT COURT

PRESENTS ERROR IN TWO RESPECTS. THE DISTRICT COURT CHARGED FALCON DRILLING WITH

“RESPONSIBILITY FOR ANY NEGLIGENCE, HOWEVER SLIGHT,” BUT GAUTREAUX SPECIFICALLY

DISAVOWS “ATTRIBUTING TO JONES ACT EMPLOYERS A HIGHER DUTY OF CARE THAN THAT

REQUIRED UNDER ORDINARY NEGLIGENCE.”

FURTHERMORE, THE DISTRICT COURT RULED

THAT “[A] SEAMAN HAS A DUTY, ALBEIT SLIGHT, TO USE REASONABLE CARE TO PROTECT

HIMSELF,” WHILE GAUTREAUX REJECTS THE RULE “ASCRIBING TO SEAMEN A SLIGHT DUTY OF

CARE TO PROTECT THEMSELVES FROM THE NEGLIGENCE OF THEIR EMPLOYERS.”

THE

DISTRICT COURT’S CONCLUSIONS OF LAW DEVIATE FROM THE LEGAL RULE ANNOUNCED IN

GAUTREAUX, AND THE “ERROR” PRONG OF THE OLANO INQUIRY IS THUS SATISFIED IN THIS

CASE.

B.

WE NEXT CONSIDER WHETHER THE ERROR COMMITTED AT TRIAL IS PLAIN. THE SUPREME

COURT HAS PROVIDED CONSIDERABLE GUIDANCE ON THIS POINT. “‘PLAIN’ IS SYNONYMOUS

WITH ‘CLEAR’ OR, EQUIVALENTLY, ‘OBVIOUS.’” OLANO, 507 U.S. AT 734. “[W]HERE

THE LAW AT THE TIME OF TRIAL WAS SETTLED AND CLEARLY CONTRARY TO THE LAW AT THE TIME

-9- OF APPEAL -- IT IS ENOUGH THAT AN ERROR BE ‘PLAIN’ AT THE TIME OF APPELLATE

CONSIDERATION.” JOHNSON, 117 S. CT. AT 1549.

JUST AS IN THE SUPREME COURT’S RECENTLY DECIDED JOHNSON CASE, THE LAW IN THE

PRESENT CASE HAS CHANGED BETWEEN THE TRIAL AND OUR DETERMINATION ON APPEAL.

JOHNSON DICTATES THAT WE USE HINDSIGHT TO DECIDE WHETHER THE ERROR WAS PLAIN.6 IN

LIGHT OF GAUTREAUX, THE ERROR IS PLAIN, CLEAR, AND OBVIOUS. THUS THE SECOND OLANO

FACTOR IS SATISFIED.

C.

WE NOW INQUIRE WHETHER THE TRIAL COURT’S ERROR AFFECTED FALCON DRILLING’S

SUBSTANTIAL RIGHTS. “OLANO COUNSELS THAT IN MOST CASES THE AFFECTING OF

SUBSTANTIAL RIGHTS REQUIRES THAT THE ERROR BE PREJUDICIAL; IT MUST AFFECT THE

OUTCOME OF THE PROCEEDING.” CALVERLEY, 37 F.3D AT 164 (CITING OLANO, 507 U.S.

AT 734-35). IN THIS CASE, THE PREJUDICE TO FALCON DRILLING CAN BE EASILY

DEMONSTRATED.

THE DISTRICT COURT USED ERRONEOUS STANDARDS FOR DETERMINING THE NEGLIGENCE

OF THE PARTIES. THE STANDARD APPLIED TO FALCON DRILLING WAS TOO HIGH. IT MADE

FALCON LIABLE FOR “ANY NEGLIGENCE, HOWEVER SLIGHT, THAT PLAYED A PART IN PRODUCING

THE PLAINTIFF’S INJURIES.” ALSO, THE STANDARD APPLIED TO CRAWFORD WAS TOO LOW.

IT STATED THAT CRAWFORD HAD A “DUTY, ALBEIT SLIGHT, TO USE REASONABLE CARE TO

PROTECT HIMSELF.”

6 Prior to the Supreme Court’s decision in JOHNSON, OUR EN BANC OPINION IN CALVERLEY SUGGESTED THAT PLAIN ERRORS ARE “ERRORS WHICH ARE SO CONSPICUOUS THAT THE TRIAL JUDGE AND PROSECUTOR WERE DERELICT IN COUNTENANCING THEM, EVEN ABSENT THE DEFENDANT’S TIMELY ASSISTANCE IN DETECTING THEM.” CALVERLEY, 37 F.3D AT 163 (BRACKETS AND INTERNAL QUOTATIONS OMITTED). IN LIGHT OF JOHNSON’S HOLDING THAT PLAINNESS IS JUDGED WITH APPELLATE HINDSIGHT TO CORRECT AN ERROR WHICH ONLY BECAME AN ERROR IN LIGHT OF INTERVENING LAW WHICH WAS UNAVAILABLE AT THE TIME OF TRIAL, THIS ASPECT OF CALVERLEY’S DISCUSSION OF PLAINNESS HAS BEEN ABROGATED.

-10- AS GAUTREAUX MAKES CLEAR, THESE STANDARDS SERIOUSLY MISSTATE THE LAW. THE

STANDARDS APPLIED BY THE DISTRICT COURT EMBODY A STRONG PRESUMPTION THAT A JONES

ACT EMPLOYER IS RESPONSIBLE FOR THE INJURIES OF SEAMEN. FURTHERMORE, THEY

ATTRIBUTE VERY LITTLE RESPONSIBILITY TO THE SEAMAN HIMSELF. IN CONTRAST, GAUTREAUX

REQUIRES THAT BOTH THE EMPLOYER AND THE SEAMAN BE SUBJECTED TO THE “ORDINARY

PRUDENCE” STANDARD OF NEGLIGENCE UNDER THE JONES ACT. SEE GAUTREAUX, 107 F.3D

AT 338-39.

HAD THE PROPER STANDARDS BEEN APPLIED, THE DISTRICT COURT MAY VERY WELL HAVE

FOUND CRAWFORD TO HAVE BEEN CONTRIBUTORILY NEGLIGENT TO SOME DEGREE. THERE IS

AMPLE EVIDENCE IN THE RECORD TO SUPPORT THE DISTRICT COURT’S CONCLUSION THAT THE

DRILLER AND THE DRILL HANDS IMPROPERLY POSITIONED THE DRILL PIPE ON THE PIPE RACK

FLOOR, THEREBY GIVING RISE TO FALCON DRILLING’S LIABILITY. BUT THERE IS ALSO

EVIDENCE TO SUGGEST THAT CRAWFORD WAS HIMSELF NEGLIGENT.

THE DISTRICT COURT’S FINDINGS OF FACT INCLUDE A FINDING THAT “IT WAS NOT

UNREASONABLE FOR GREG CRAWFORD TO EXPECT THAT THE DRILL PIPE HE WAS ATTEMPTING TO

HANDLE WOULD FALL TO THE LEFT AS THE PREVIOUS STANDS OF PIPE HAD RATHER THAN TO THE

RIGHT AS IT DID.” THIS CONCLUSION IS SUPPORTED BY THE EVIDENCE IN THE RECORD THAT

DRILL CREWS WHO WERE EXPERIENCED AT WORKING TOGETHER, AS THIS CREW WAS, DEVELOP A

“RHYTHM” WHICH MIGHT LULL CRAWFORD INTO ASSUMING THAT EACH STAND OF PIPE WOULD FALL

IN THE SAME DIRECTION AS THE PREVIOUS STANDS HAD FALLEN. UNDER THE STANDARD OF

“SLIGHT” NEGLIGENCE APPLIED BY THE DISTRICT COURT, THIS FINDING ALONE MIGHT SUPPORT

A CONCLUSION THAT CRAWFORD WAS NOT CONTRIBUTORILY NEGLIGENT. BUT HAD A STANDARD

OF ORDINARY PRUDENCE STANDARD BEEN APPLIED, OTHER EVIDENCE IN THE RECORD MIGHT HAVE

LED THE DISTRICT COURT TO A DIFFERENT CONCLUSION. SPECIFICALLY, CRAWFORD HIMSELF,

WITNESSES FROM THE DRILL CREW, AND BOTH EXPERT WITNESSES WHO TESTIFIED ABOUT THE

OPERATIONS ON DRILLING RIGS ALL TESTIFIED THAT A DERRICKMAN MUST ALWAYS BE PREPARED

-11- FOR THE STAND OF PIPE TO FALL IN EITHER DIRECTION. THUS, EVEN THOUGH IT MIGHT NOT

HAVE BEEN “UNREASONABLE” FOR CRAWFORD TO EXPECT THE STAND TO FALL TO THE LEFT, THE

ORDINARY PRUDENT SEAMAN MIGHT HAVE TAKEN SOME ADDITIONAL PRECAUTIONS TO PREVENT

INJURY TO HIMSELF.

THERE IS ALSO EVIDENCE THAT CRAWFORD MIGHT HAVE BEEN ABLE TO ANTICIPATE THAT

THE STAND WOULD FALL TO THE RIGHT. ON CROSS-EXAMINATION, CRAWFORD ADMITTED THAT

HE COULD HAVE SEEN THE APPROXIMATE LOCATION OF THE PLACEMENT OF THE BOTTOM OF THE

STAND IF HE HAD LOOKED. THIS TESTIMONY WAS CORROBORATED BY SEVERAL OTHER WITNESSES

AT TRIAL.7 FURTHERMORE, A MEMBER OF THE DRILL CREW AND FALCON DRILLING’S EXPERT

WITNESS BOTH TESTIFIED THAT CRAWFORD SHOULD HAVE GOTTEN AN INDICATION OF WHICH WAY

THE PIPE WAS LEANING BY OBSERVING THE ELEVATORS. IN LIGHT OF CRAWFORD’S CONCESSION

THAT HE HAD TO BE READY FOR THE PIPE TO FALL IN EITHER DIRECTION, IF THE PROPER

STANDARD WERE APPLIED, THE DISTRICT COURT MIGHT CONCLUDE THAT CRAWFORD SHOULD HAVE

BEEN MORE AWARE OF THE THINGS HAPPENING AROUND HIM WHICH MIGHT HAVE HELPED HIM TO

JUDGE WHICH WAY THE STAND OF PIPE WOULD FALL.

AS FURTHER EVIDENCE OF CRAWFORD’S POTENTIALLY CONTRIBUTORY NEGLIGENCE, IT IS

NOTABLE THAT THE DISTRICT COURT ACKNOWLEDGED THAT A “MULE LINE” WAS AVAILABLE TO

ASSIST CRAWFORD IN RACKING THE TOP OF THE STAND OF PIPE.8 THE RECORD SUGGESTS THAT

CRAWFORD KNEW BEFORE IT CAME OUT OF THE HOLE THAT THE STAND WHICH INJURED HIM WAS

A PARTICULARLY HEAVY STAND. THE DISTRICT COURT SPECIFICALLY DETERMINED THAT “[T]HE

7 The possibility that Crawford could have looked down and seen how the stand of pipe was positioned is further corroborated by the testimony of several witnesses from the drill crew that the driller always stopped the process momentarily after the bottom of the stand was racked, and also that Crawford had the ability to stop the process by refusing to unlatch the elevators, which also would have enabled him to look below him. 8 The “mule line” is a device used by the drill crew to ease the task of setting pipe back in the derrick.

-12- DERRICKMAN CAN STOP THE OPERATION AND REQUEST A MULE LINE IF HE DOES NOT THINK HE

COULD HANDLE A PARTICULAR STAND THAT IS TO BE REMOVED FROM THE HOLE.” CRAWFORD’S

OWN EXPERT WITNESS CHARACTERIZED THE ATTEMPT TO MANUALLY HANDLE THE SEVEN-TO-EIGHT-

THOUSAND-POUND STAND OF PIPE AS AN UNSAFE PRACTICE. SO AGAIN, HAD THE COURT NOT

CHARACTERIZED CRAWFORD’S DUTY TO PROTECT HIMSELF AS A “SLIGHT” ONE, THE COURT MIGHT

HAVE DETERMINED CRAWFORD’S FAILURE TO REQUEST A MULE LINE TO BE CONTRIBUTORY

NEGLIGENCE WHICH WOULD HAVE REDUCED FALCON DRILLING’S LIABILITY FOR THE ACCIDENT.

FINALLY, THERE IS EVIDENCE IN THE RECORD THAT CRAWFORD’S OWN ACTIONS

UNNECESSARILY ENDANGERED HIMSELF. IN PARTICULAR, THERE WAS TESTIMONY AT TRIAL THAT

IN LIGHT OF A DERRICKMAN’S DUTY TO BE PREPARED FOR THE STAND TO FALL IN EITHER

DIRECTION, IT WAS UNSAFE FOR CRAWFORD TO HAVE POSITIONED HIS BODY IN RELIANCE ON

HIS ASSUMPTION THAT ALL OF THE STANDS WOULD FALL TO THE LEFT. ALSO, THERE WAS

TESTIMONY THAT INSTEAD OF RISKING INJURY BY TRYING TO COMPENSATE FOR HIS MISJUDGMENT

ABOUT THE DIRECTION IN WHICH THE PIPE WOULD FALL, CRAWFORD SHOULD HAVE SIMPLY LET

THE STAND FALL AGAINST THE DERRICK. WE, OF COURSE, CANNOT KNOW HOW THIS EVIDENCE

MIGHT HAVE AFFECTED THE DISTRICT COURT’S RESOLUTION OF THE CASE HAD THE PROPER

JONES ACT STANDARDS BEEN APPLIED.

THE DISTRICT COURT INCLUDED IN HIS FINDINGS OF FACT HIS ASSESSMENT THAT:

GREG CRAWFORD DID NOT CONTRIBUTE TO HIS OWN INJURY IN ATTEMPTING TO CATCH THE DRILL PIPE WHEN IT WENT TO THE RIGHT RATHER THAN RELEASING THE PIPE AND LETTING IT FALL AGAINST THE DERRICK, IN FAILING TO SEE THAT THE DRILL PIPE HAD BEEN IMPROPERLY RACKED ON THE DRILL PIPE FLOOR BY THE FLOORHANDS BEFORE THE DRILLER SET THE DRILL PIPE, OR IN FAILING TO STOP THE TRIPPING OPERATION TO ASK FOR THE USE OF A MULE LINE ON THE STAND OF PIPE THAT THE CREW WAS HANDLING WHEN HE WAS INJURED.

HOWEVER, FROM THE STATE OF THE RECORD, IT IS NOT CLEAR THAT THE DISTRICT COURT WAS

MAKING A SPECIFIC FACTUAL FINDING THAT CRAWFORD’S SUCCESSFUL ATTEMPT TO RACK THE

PIPE, HIS FAILURE TO OBSERVE THE FAULTY PLACEMENT OF THE BOTTOM OF THE STAND IN THE

PIPE RACK, AND HIS FAILURE TO REQUEST A MULE LINE TO ASSIST THE MOVEMENT OF A

-13- PARTICULARLY HEAVY STAND OF PIPE DID NOT “CONTRIBUTE” TO HIS INJURY. QUITE TO THE

CONTRARY, IT IS MUCH MORE LIKELY THAT THE ABOVE-QUOTED PASSAGE FROM THE DISTRICT

COURT’S OPINION REFLECTS THE COURT’S ASSESSMENT THAT DESPITE THE PRESENCE OF THE

ABOVE-LISTED FACTORS (WHICH APPEAR TO HAVE BEEN, AT THE VERY LEAST, CAUSES-IN-FACT

OF THE ACCIDENT), THESE FACTS DID NOT OR WOULD NOT AMOUNT TO A BREACH OF CRAWFORD’S

“SLIGHT” DUTY TO PROTECT HIMSELF. ACCORDINGLY, THIS ASSESSMENT IS NOT A MERE

“FINDING OF FACT,” BUT RATHER AN APPLICATION OF LAW TO THE FACTS FOUND BY THE

DISTRICT COURT. IT IS THEREFORE NOT SUBJECT TO THE CLEAR-ERROR ANALYSIS OF RULE

52(A), BUT IS, RATHER, SUBJECT TO OUR RULES FOR REVIEWING ERRORS OF LAW.

THE DISTRICT COURT’S FINDINGS OF FACT ACKNOWLEDGE THAT “[T]HE WORK OF THE

DRILLER, THE FLOORHANDS AND THE DERRICKMAN ARE INTERRELATED.” THE FINDINGS ALSO

NOTE THAT “THE DERRICKMAN CAN STOP THE OPERATION BY REFUSING TO UNLATCH THE

ELEVATORS.” THESE FINDINGS SUGGEST THAT THE DISTRICT COURT BELIEVED THAT CRAWFORD

WAS JUST AS INVOLVED IN (AND RESPONSIBLE FOR) THE PROCESS OF TRIPPING THE PIPE AS

WERE THE WORKERS ON THE DRILL FLOOR. IN LIGHT OF THE SUBSTANTIAL POSSIBILITY THAT

THE APPLICATION OF ERRONEOUS JONES ACT NEGLIGENCE STANDARDS AFFECTED THE DISTRICT

COURT’S DETERMINATION OF THE ISSUE OF CRAWFORD’S POSSIBLE CONTRIBUTORY NEGLIGENCE,

WE FIND THAT FALCON DRILLING’S DEFENSE WAS MATERIALLY PREJUDICED. WHETHER OR NOT

A RECONSIDERATION UNDER THE PROPER STANDARDS WILL ULTIMATELY RESULT IN A FINDING OF

CONTRIBUTORY NEGLIGENCE, THE PRESENCE OF EVIDENCE IN THE RECORD SUGGESTING THAT

CRAWFORD’S OWN NEGLECT COULD HAVE CONTRIBUTED TO HIS ACCIDENT PERSUADES US THAT

FALCON DRILLING’S SUBSTANTIAL RIGHTS HAVE BEEN AFFECTED FOR THE PURPOSES OF PLAIN-

ERROR ANALYSIS.

D.

FINALLY, WE TURN TO THE QUESTION OF WHETHER THE ERROR IN THIS CASE SERIOUSLY

-14- AFFECTS THE FAIRNESS, INTEGRITY, OR PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS. SEE

OLANO, 507 U.S. AT 732. THIS PART OF THE OLANO TEST ESSENTIALLY ENTRUSTS US TO

EXERCISE OUR JUDICIAL DISCRETION TO DETERMINE WHETHER OR NOT THIS IS THE KIND OF

EXCEPTIONAL CASE THAT MERITS REVERSAL ON THE BASIS OF PLAIN ERROR. SEE

AT

735-37; JOHNSON, 117 S. CT. AT 1550; CALVERLEY, 37 F.3D AT 164. AN ARRAY

OF FACTORS CONVINCE US THAT THIS STANDARD IS MET IN THE PRESENT CASE.

FIRST, THE SIMILARITY BETWEEN THE PROCEDURAL SETTING OF THIS CASE AND THAT

OF HORMEL V. HELVERING,

(1941), IS COMPELLING. IN HORMEL, THE

COMMISSIONER OF INTERNAL REVENUE ASSESSED A DEFICIENCY AGAINST MR. HORMEL FOR

FAILURE TO REPORT ON HIS INDIVIDUAL INCOME TAX RETURNS THE INCOME FROM SEVERAL

TRUSTS WHICH THE COMMISSIONER DEEMED TO BE REVOCABLE (THE INCOME FROM SUCH TRUSTS

THEREFORE BEING ATTRIBUTABLE TO THE DEFENDANT). THE COMMISSIONER DEFENDED HIS

POSITION BY RELYING ON SECTIONS 166 AND 167 OF THE INTERNAL REVENUE CODE. THE

BOARD OF TAX APPEALS RULED IN FAVOR OF MR. HORMEL ON THE QUESTION OF WHETHER HE

WAS LIABLE FOR TAXES ON THE TRUST INCOME. ON APPEAL TO THE EIGHTH CIRCUIT, THE

COMMISSIONER ABANDONED HIS RELIANCE ON SECTION 166, AND RELIED ON SECTIONS 22(A)

AND 167 TO SUPPORT THE FINDING OF DEFICIENCY. THE DEFENDANT OBJECTED TO THE

COMMISSIONER’S USE OF A NEW ARGUMENT, THAT BASED ON SECTION 22(A), ON APPEAL.

STILL, THE EIGHTH CIRCUIT REVERSED THE JUDGMENT OF THE BOARD OF TAX APPEALS,

HOLDING THAT SECTION 22(A) GOVERNED THE MATTER AND DICTATED THE RESULT ADVOCATED

BY THE COMMISSIONER. SEE HORMEL, 312 U.S. AT 553-55.

THE SUPREME COURT GRANTED CERTIORARI, AND DIRECTLY CONFRONTED THE PROPRIETY

OF THE EIGHTH CIRCUIT’S CONSIDERATION OF A NEW LEGAL ARGUMENT ON APPEAL. THE

COURT NOTED THAT “[O]RDINARILY AN APPELLATE COURT DOES NOT GIVE CONSIDERATION TO

ISSUES NOT RAISED BELOW,” BUT ALSO THAT “[T]HERE MAY ALWAYS BE EXCEPTIONAL CASES

OR PARTICULAR CIRCUMSTANCES WHICH WILL PROMPT A REVIEWING OR APPELLATE COURT, WHERE

-15- INJUSTICE MIGHT OTHERWISE RESULT, TO CONSIDER QUESTIONS OF LAW WHICH WERE NEITHER

PRESSED NOR PASSED UPON BY THE COURT OR ADMINISTRATIVE AGENCY BELOW.”

AT 556,

557. THE COURT THEN DISCUSSED THE PECULIAR SETTING OF THE CASE BEFORE IT:

[W]E ARE OF OPINION THAT THE COURT BELOW SHOULD HAVE GIVEN AND PROPERLY DID GIVE CONSIDERATION TO SECTION 22(A) IN DETERMINING PETITIONER’S TAX LIABILITY. THE COMMISSIONER URGED THIS POINT BEFORE THE CIRCUIT COURT OF APPEALS AND HAS STRONGLY PRESENTED IT HERE. AT THE TIME THE BOARD OF TAX APPEALS MADE ITS DECISION IN THIS CASE, WE HAD NOT YET HANDED DOWN OUR OPINION IN HELVERING V. CLIFFORD,

[(1940)], IN WHICH WE HELD THAT UNDER SECTION 22(A) THE INCOME OF CERTAIN TRUSTS WAS TAXABLE TO RESPONDENT. . . . AS THE RECORD NOW STANDS WE THINK THE COURT BELOW CORRECTLY CONCLUDED THAT THE TRUST INCOME WAS TAXABLE TO PETITIONER UNDER THE PRINCIPLES ANNOUNCED IN THE CLIFFORD CASE. THEREFORE TO APPLY HERE THE GENERAL PRINCIPLE OF APPELLATE PRACTICE FOR WHICH PETITIONER CONTENDS WOULD RESULT IN PERMITTING HIM WHOLLY TO ESCAPE PAYMENT OF A TAX WHICH UNDER THE RECORD BEFORE US HE CLEARLY OWES. THUS VIEWED, THIS IS EXACTLY THE TYPE OF CASE WHERE APPLICATION OF THE GENERAL PRACTICE WOULD DEFEAT RATHER THAN PROMOTE THE ENDS OF JUSTICE, AND THE COURT BELOW WAS RIGHT IN SO HOLDING.

AT 559-60. THE SUPREME COURT THUS AFFIRMED THE EIGHTH CIRCUIT AND DIRECTED

THAT THE CASE BE REMANDED TO THE BOARD OF TAX APPEALS FOR FURTHER FACT FINDING AND

PROCEEDINGS IN LIGHT OF THE INTERVENING CLIFFORD OPINION. SEE

AT 560. IT IS

HARD TO IMAGINE A CASE CLOSER TO THE POINT THAN THIS. THE COURT’S HOLDING IN

HORMEL STRONGLY SUPPORTS -- IF NOT COMPELS -- OUR DETERMINATION THAT A TRIAL ERROR

THAT BECOMES PLAIN ON DIRECT APPEAL IN LIGHT OF AN INTERVENING JUDICIAL ANNOUNCEMENT

OF A CONTROLLING RULE IMPLICATES THE SORT OF SERIOUS EFFECT ON THE “FAIRNESS,

INTEGRITY, OR PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS ” ENVISIONED BY OLANO.

EVEN IF THE RESULT IN HORMEL WERE NOT SUFFICIENTLY SUGGESTIVE, WE WOULD BE

PERSUADED TO EXERCISE OUR DISCRETION BY THE PRESENCE OF OTHER FACTORS. FOR

EXAMPLE, THE VERY FACT THAT WE GRANTED EN BANC REVIEW IN GAUTREAUX SUGGESTS THAT

THE CONFUSION AND CONFLICT THAT CHARACTERIZED OUR PRIOR PRECEDENTS IN THIS AREA OF

LAW COMPROMISED THE FAIRNESS, INTEGRITY, OR PUBLIC REPUTATION OF JUDICIAL

PROCEEDINGS. WE REMEDIED THAT PROBLEM BY ANNOUNCING A NEW RULE AND GRANTING RELIEF

-16- TO THE GAUTREAUX DEFENDANT. THE REASONS THAT PROMPTED OUR COURT TO PAUSE AND TAKE

STOCK OF OUR JONES ACT JURISPRUDENCE ALSO SUPPORT GRANTING RELIEF IN THIS CASE.

THE CASE BEFORE US IS A DIRECT APPEAL; CRAWFORD SHOULD NOT GET THE ADVANTAGE OF

PRE-GAUTREAUX RULES MERELY BECAUSE OF THE FORTUITY OF THE TIMING OF THE RELEVANT

DECISIONS.

FURTHERMORE, OUR DISCRETION IS INFORMED BY THE FACT THAT THIS CASE WAS TRIED

TO THE COURT. A CHIEF JUSTIFICATION FOR OUR GENERAL RULE AGAINST PERMITTING NEW

ISSUES TO BE RAISED ON APPEAL IS THE CONCERN “OF THE PUBLIC INTEREST” FOR

PROTECTING THE FINALITY OF JUDGMENTS. UNITED STATES V. ATKINSON,

(1936); SEE ALSO CALVERLEY, 37 F.3D AT 162. THE PARTIES’ INTEREST IN

FINALITY IS SELF-EVIDENT; THE “PUBLIC CONCERN” FOR FINALITY IS BASED ON THE NEED

TO CONSERVE LIMITED JUDICIAL RESOURCES. IN THIS CASE, ACKNOWLEDGING THE PRESENCE

OF PLAIN ERROR AND REMANDING THE CASE FOR FURTHER PROCEEDINGS WILL NOT UNNECESSARILY

BURDEN OUR FEDERAL COURTS’ TREMENDOUS CASELOAD. A SITUATION WHICH WOULD REQUIRE

REPEATING A LENGTHY JURY TRIAL MIGHT PRESENT A DIFFERENT CASE. HERE, HOWEVER, THE

DISTRICT COURT ABLY CONDUCTED THE BENCH TRIAL BELOW AND IS ALREADY INTIMATELY

FAMILIAR WITH THE FACTS OF THIS CASE. ALL THAT IS REQUIRED ON REMAND IS A

RECONSIDERATION OF THE DISTRICT COURT’S PRIOR CONCLUSIONS IN LIGHT OF GAUTREAUX.

WE CONFIDENTLY LEAVE THE QUESTION OF WHETHER THIS PROCESS WILL REQUIRE FURTHER

SUBMISSIONS OR ARGUMENTS FROM THE PARTIES TO THE SOUND DISCRETION OF THE DISTRICT

COURT.

IN SUM, THEN, THE SUPREME COURT’S DECISION IN HORMEL, OUR RECOGNITION OF THE

FUNDAMENTAL NATURE OF THE CHANGE IN OUR CIRCUIT’S INTERPRETATION OF JONES ACT

NEGLIGENCE STANDARDS EFFECTED BY GAUTREAUX, AND THE FACT THAT WE ARE DEALING WITH

THE AFTERMATH OF A BENCH TRIAL CONDUCTED ON THE EVE OF GAUTREAUX’S SEA CHANGE, ALL

CONVINCE US THAT THE PRESENT APPEAL IS AN APPROPRIATE CASE FOR RECOGNIZING PLAIN

-17- ERROR. WE THEREFORE CONCLUDE THAT THE ERROR’S SERIOUS EFFECT ON THE FAIRNESS,

INTEGRITY, OR PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS REQUIRES US TO VACATE THE

DISTRICT COURT’S JUDGMENT AS TO THE RESPECTIVE LIABILITY OF THE PARTIES.

IV.

FALCON DRILLING ALSO APPEALS THE AMOUNT OF DAMAGES AWARDED TO CRAWFORD. WE

REVIEW FOR CLEAR ERROR. SEE FED. R. CIV. P. 52(a); Nichols v. Petroleum

Helicopters, Inc.,

(5th Cir. 1994). We have

considered the arguments on appeal and the evidence presented to

the district court. The award entered by the district court was

based on a finding of Crawford’s future earnings that fell within

the range of earnings suggested by the evidence at trial. We

conclude that the district court’s findings with respect to the

amount of Crawford’s damages were not clearly erroneous.

V.

In light of our Court’s holding in Gautreaux, the district

court’s findings of fact and conclusions of law regarding the

liability of the parties are plainly erroneous. We emphasize that

we cast no aspersion on the district court’s application of the law

as it stood under our Circuit’s governing precedents at the time

this case was tried. But we will not close our eyes to the plain

error committed below, even though that error is apparent only with

the benefit of appellate hindsight.

We affirm the district court’s valuation of Crawford’s

damages. Of course, any reallocation of liability that may result

-18- from the proceedings on remand will require an appropriate

allocation of responsibility among the parties for Crawford’s

damages, and we therefore vacate the damages award.

The judgment of the district court is AFFIRMED in part and

VACATED in part, and the case is REMANDED for further proceedings

consistent with the holdings of this Court in Gautreaux v. Scurlock

Marine, Inc.,

(5th Cir. 1997) (en banc).

-19-