UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 95-21021

Gabriel Israel Bonefont,

Plaintiff-Appellee,

VERSUS

Valdez Tankships Corporation and Maritime Overseas Corporation,

Defendants-Appellants.

Appeal from the United States District Court For the Southern District of Texas (CA-H-94-1232) January 9, 1998

Before JOLLY, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:*

The plaintiff-appellee, Garbriel Israel Bonefont, formerly a

member of the crew of the S/T OVERSEAS VALDEZ (VALDEZ), brought the

instant action against the owner of the VALDEZ, Valdez Tankships

Corporation, and the operator of the vessel, Maritime Overseas

Corporation, both defendants-appellants herein, alleging that he

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 sustained injuries aboard the VALDEZ as a result of the defendants’

negligence under the Jones Act (46 U.S.C. App. §688) and/or the

unseaworthiness of the VALDEZ. All parties consented to proceed

before a United States Magistrate Judge pursuant to

(c). After a four day trial, without a jury, the court found

that the negligence of the defendants and the unseaworthiness of

the VALDEZ caused the plaintiff’s injury. In addition, the trial

court found that the plaintiff was not contributorily negligent

under either the Jones Act or the general maritime law of

unseaworthiness. The trial court entered judgment awarding the

plaintiff damages. The defendants appealed, contending that the

Magistrate Judge committed clear error in finding negligence,

unseaworthiness and in finding no contributory negligence on the

part of Mr. Bonefont. The defendants also assert that the damages

awarded were excessive. Additionally, the defendants appeal the

Magistrate Judge’s denial of their motion for new trial on the

basis of fraud and her denial of their motion for discovery pending

appeal. Finding no error, we affirm.

Background

At the time of the accident which gave rise to this

litigation, December 14, 1993, the plaintiff, Gabriel Bonefont, was

forty-eight years old and had been a seaman for thirty-one of those

years. Mr. Bonefont held a Z-card license from the United States

Coast Guard which rated him as an unlimited able-bodied seaman,

commonly called an AB, and qualified him to serve on any vessel.

2 An AB is the lowest licensed rating a seaman can hold. Except for

one voyage, Bonefont worked as an AB during his thirty-one years.

In December 1993, Mr. Bonefont was engaged as an able-bodied

seaman aboard the S/T OVERSEAS VALDEZ (VALDEZ), a 700 foot 26,000

ton tanker owned by Valdez Tankships Corporation and operated by

Maritime Overseas Corporation. The plaintiff obtained his

employment aboard the VALDEZ via his union’s hiring hall. At this

time, Mr. Bonefont was a member of the Seafarers’ International

Union which operates a hiring hall by posting employment

opportunities aboard ships and allowing qualified seaman to sign-on

to the ship of their choice with priority going to the seaman with

the most seniority in the union.

On December 14, 1993, the VALDEZ was docked at Corpus Christi,

Texas taking on stores and preparing to undertake a coast-wise

voyage with a cargo of oil. After working his regular midnight to

4:00 a.m. shift, the plaintiff agreed to work overtime loading

stores into the ship’s hold. The plaintiff was directed to assist

in the off-loading of large 20 foot steel pipes weighing

approximately 900 pounds each. The pipes were to be used in making

repairs to the ship while en route.

The loading of 20 foot long steel pipes weighing approximately

900 pounds was not a routine undertaking. It involved off-loading

the pipes from a barge moored along side of the ship onto the

VALDEZ’s deck at midship using a manually-operated boom and a

mechanical winch to which a sling was attached. In this case, the

pipes were to be taken off the barge and placed on the deck two at

3 a time stacked one on top of the other. The pipes, however, were

not bound together.

A total of six crewman were assigned to this task. The

loading procedure’s complement consisted of one crewman operating

the mechanical winch which was located fifty feet from the loading

area at midship. In addition, two crewman held the boom guides and

two crewman, Bonefont and another AB, Michael Duggan, guided and

stabilized the actual load onto the deck. Duggan and Bonefont were

instructed to manually hold the ends of the pipes as they were

lowered into place. The final crewman assigned was the boatswain

who was in charge of the loading operation but was not a permanent

employee of the VALDEZ and had been assigned to the ship in a

relief capacity two months before the accident.

In order to oversee and direct the entire operation, the

boatswain positioned himself in such a way as to give orders to

both the winch operator and Bonefont and Duggan. In this case, the

boatswain’s positioning was especially important because the winch-

man was operating blind in that he could not see the area into

which he was placing the pipes. However, because of the distance

between the winch operator and the off-loading site and the noise

generated by the winch itself, the boatswain could not communicate

orally with the winch operator and relied exclusively on hand

signals. Of importance in this matter, “[t]he hand signal to the

winch operator for ‘go slow’ involves raising one’s hand with

fingers and thumb down and opening and closing the hand with

fingers and thumb touching in a pincher-like motion. To indicate

4 by hand the command to speed up the winch, the motion involves

raising one’s hand, pointing the index finger down and rotating

that finger.”2 While these hand signals are regularly used in

broad daylight, the loading operation in question began at the pre-

dawn hour of 5:24 a.m., while it was still dark. “[A]t night,” the

same orders usually given by hand “are normally accomplished with

flashlight signals in a different manner.” The reason being that

“[i]n the pre-dawn darkness of early morning, both hand signals

look similar to each other.” “Given the winch operator’s

obstructed line of sight with respect to the load and the poorly-

lighted area in which he worked, the boatswain could have and

should have used the alternative flashlight signals to accurately

convey his directions.”

The loading process began with the boatswain signaling to the

winch-man to lift the pipes off the barge and over the deck’s

railings. The two boom guide crewman then positioned the pipes

over the deck at midship. The pipes were positioned so that they

could be lowered onto the deck in the middle of a ten foot area

between the deck rails and the manifold pan. The manifold pan is

a three feet high, twelve feet long and five feet wide steel drip-

pan located on the deck and used to catch oil and other “slushes”

from the manifold. Once the two pipes were placed into position,

the boatswain directed the winch-man to lower the pipes to

approximately three to four feet off the deck and then ordered

2 All quotations found in the opinion, unless otherwise noted, are taken from the trial court’s Findings of Fact and Conclusions of Law with citations to the record omitted.

5 Bonefont and Duggan to stabilize the load.

After the pipes were stabilized above the deck, the boatswain

motioned for the plaintiff to position himself in the middle of the

pipes, by the sling, and orally instructed him to be ready to

unhook the load. In compliance with his orders, Bonefont moved

into position between the pipes and the manifold pan. The

boatswain then signaled to the winch-man who dropped the 1800

pounds of pipes rapidly to the deck. Both Duggan and Bonefont were

surprised at the swift speed with which the massive pipes fell and

they simultaneously attempted to stand clear of the load. Duggan,

whose movement was unimpeded, was able to move clear of the pipes.

Bonefont, however, had been placed by the boatswain between the

pipes and the manifold pan such that the pan was only three to four

feet behind him. “Before Mr. Bonefont could move clear of the

rapidly shifting load, the top pipe of the two vertically stacked

pipes rolled over toward him and landed on his right foot, crushing

it. The manifold [pan] blocked his escape.” The plaintiff was

immediately taken to the hospital in Corpus Christi for emergency

care.

Subsequent to the accident, Mr. Bonefont began receiving

regular treatment for his injured foot. Eventually, the plaintiff

entered the care of Dr. William Donovan who had at the time over

twenty years of experience in handling industrial injuries. Dr.

Donovan diagnosed Bonefont as suffering from two nerve conditions:

1) Tarsal Tunnel Syndrome, an impingement of the posterior tibial

nerve and 2) Morton’s neuroma, a tumor on the nerve. These

6 conditions resulted in pressure being placed on the nerve in two

different areas of the foot causing pain and numbness. Dr. Donovan

testified that both conditions were a consequence of Mr. Bonefont’s

foot being crushed on December 14, 1993. The injury resulted in

Mr. Bonefont’s partial disability, despite his submission to foot

surgery and physical therapy. Dr. Donovan opined that although Mr.

Bonefont, could do some types of work, he was unfit to return to

duty at sea. In fact, Mr. Bonefont did attempt to return to sea

following his surgery but was unable to complete his voyage due to

the pain in his foot.

Following the accident, Mr. Bonefont filed the instant

complaint alleging that he was entitled to recover from the

defendants for the injury to his foot under two theories of

liability, viz. Jones Act negligence and/or the general maritime

law of unseaworthiness. In response, the defendants-appellants

contended that the incident did not result from any negligence on

their part or because of unseaworthiness of the VALDEZ and that,

alternatively, any injury suffered by the plaintiff-appellee was

solely the result of his own negligence.

At a four-day non-jury trial, the Magistrate Judge in this

matter heard testimony and took evidence concerning the pertinent

facts surrounding the accident of December 14, 1993 aboard the

VALDEZ and the damages sustained by the plaintiff. The trial judge

found, inter alia, that the plaintiff had never loaded heavy pipes

such as the ones involved in this matter before December 14, 1993

and that he “had no indepth knowledge or experience in the proper

7 way to load piping.” Furthermore, the Magistrate Judge also found

that “neither the boatswain nor other proper ship personnel”

offered or provided the plaintiff with any training or instruction

as to how to handle these pipes during this particular loading

operation. In addition, the trial court found that the boatswain

was in charge of the loading of the pipes such that all of the

plaintiff’s actions, including his positioning between the manifold

pan and the pipes, were taken pursuant to direct orders from the

boatswain. As to damages, Dr. Donovan recounted the treatment

received by the plaintiff and tendered his “unchallenged opinion”

that the cause of the plaintiff’s nerve injuries was the trauma he

suffered aboard the VALDEZ. The defendants-appellants proffered

evidence in an attempt to paint a different version of the facts

surrounding the accident but did not offer any testimony to counter

Dr. Donovan’s opinion as to causation or damages.

After deliberating over all of the evidence submitted by both

parties and making all credibility determinations necessary, the

Magistrate Judge issued an extensive opinion in this matter finding

that the defendants had been negligent under the Jones Act and that

the VALDEZ has been unseaworthy and that both had been a cause of

injury to the plaintiff. Additionally, the Magistrate Judge found

that under both a Jones Act and unseaworthiness analysis the

plaintiff had not contributed to his injuries in any way. A

judgment was entered in favor of Gabriel Bonefont and this appeal

followed.

8 Analysis

A. Standard of Review

When a case is tried to the court sitting without a jury, the

trial court’s findings of fact are not to be set aside unless found

to be clearly erroneous, and its conclusions of law are reviewed de

novo. See Fed. R. Civ. P. 52(a); Bertram v. Freeport McMoran,

Inc.,

(5th Cir. 1994). A clearly erroneous

standard is appropriate for factual determinations because a

reviewing court must give “due regard...to the opportunity of the

trial court to judge the credibility of the witnesses.” Fed. R.

Civ. P. 52(a). In the maritime context, a trial court’s findings

of negligence, unseaworthiness and proximate cause are considered

findings of fact and thus subject to the clearly erroneous

standard. Chisholm v. Sabine Towing & Transp. Co., Inc.,

(5th Cir. 1982); Webb v. Dresser Industries,

(5th Cir. 1976), cert. denied,

(1977).

In this appeal, Valdez Tankships Corporation, the owner of the

vessel, and Maritime Overseas Corporation, the vessel’s operator,

assert that the trial court misconstrued the evidence in finding

that the VALDEZ was unseaworthy, that such unseaworthiness was a

proximate cause of injury to the plaintiff and that the plaintiff

had not negligently contributed to his own injury.

B. Unseaworthiness and Contributory Negligence

One of the two alternative theories of liability alleged by

Mr. Bonefont in this matter was that the VALDEZ was unseaworthy and

9 that this unseaworthiness was a proximate cause of his injury. The

general maritime law places upon a vessel owner an absolute non-

delegable duty to provide a seaman with a vessel reasonably fit for

its intended use, i.e. a seaworthy vessel. See Comeaux v. T.L.

James & Co., Inc.,

(5th Cir. Unit A 1982);

Webb,

; see also 1 Thomas J. Schoenbaum, ADMIRALTY AND

MARITIME LAW §6-25 (2d ed. 1994)(hereinafter Schoenbaum). This duty

furnishes seamen, and only seamen, with a separate and independent

cause of action against a shipowner for unseaworthiness, distinct

from any liability the shipowner may owe based on fault. See The

Osceola,

(1903); Aguirre v. Citizens Casualty Co.

of New York,

(5th Cir.), cert. denied,

(1971); Schoenbaum at §6-27, p.345(The warranty of

seaworthiness may only be claimed by those recognized as seamen

under the law.).

The doctrine of unseaworthiness obligates a vessel owner to

provide the seaman not only with a seaworthy vessel but with the

necessary gear, equipment and crew needed to make the vessel

reasonably fit for its intended use. Webb,

;

Aguirre,

(For seaworthiness purposes there is no

reason to distinguish between the fitness of the ship’s gear, the

ship’s personnel, and the vessel itself.); see Schoenbaum at §6-25,

p.333-4. “A vessel’s condition of unseaworthiness might arise from

any number of circumstances. Her gear might be defective, her

appurtenances in disrepair, her crew unfit. The number of men

assigned to perform a shipboard task might be insufficient. The

10 method of loading her cargo, or the manner of its stowage, might be

improper.” Usner v. Luckenbach Overseas Corp.

, 517-18

(1971)(internal footnotes omitted); see Rogers v. Eagle Offshore

Drilling Serv.,

(5th Cir. 1985)(“[A]n unsafe

method of work may render a vessel unseaworthy....”); Orient Mid-

East Lines, Inc. v. Shipment of Rice on Board S.S. Orient

Transporter,

(5th Cir. 1974), cert. denied,

(1975)(An inadequate or incompetent crew may render a

vessel unseaworthy.); see also 1B BENEDICT ON ADMIRALTY §24 (7th ed.

1996)(enumerating specific cases of unseaworthiness).

At trial, the plaintiff and AB Duggan gave testimony

explaining the facts and circumstances surrounding the entire

operation. They stated that the boatswain was in charge of the

off-loading procedure and that they followed his orders throughout.

Both seaman confirmed that they received no instruction or training

concerning the loading of pipes of this nature prior to the

commencement of the operation. In addition, the chief mate of the

vessel, Mr. Kelly Forrest, testified that the boatswain in question

was new to the VALDEZ at the time of the accident and was

unfamiliar with the “idiosyncracies” of the ship. Moreover, a

witness with a multitude of years experience in the maritime

industry, Mr. Charles Walker, stated that the loading of large

heavy pipes such as those in question was not a routine exercise to

which a seaman would normally be familiar with in the course of his

employment aboard various ships. Reviewing this testimony and the

evidence as a whole, the trial court found the VALDEZ unseaworthy

11 for three reasons: “1) the boatswain was inadequately trained, 2)

the boatswain and/or others inadequately instructed or trained crew

members on appropriate loading operations, specifically failing to

outline an appropriate ‘game plan’ for the loading of the pipes,

and 3) the vessel did not have adequate lighting and/or equipment

and/or tools to safely and reasonably facilitate communications

between the boatswain and the winch operator.”

A finding that the boatswain and/or the crew was inadequate

or ill-trained for the task they were assigned represents a classic

example of unseaworthiness. Comeaux,

(quoting June

T., Inc., 290 F.2d at 407.). The trial court found that the

boatswain in question was unfamiliar with the VALDEZ and that it

was the boatswain’s “professional shortcomings [that] led to the

accident.” Specifically, the court found that the boatswain chose

to begin the unloading operation in the dark; to load the unbound

pipes two at a time; and to communicate with the winch-man, who was

working in a darkened area some distance away, using hand signals

alone. Moreover, it was the boatswain who placed the plaintiff in

an unsafe position as the pipes quickly dropped to the deck. As

stated by the Magistrate Judge, “[t]he boatswain’s failure to

conduct the exercise in the proper manner due to his inexperience,

and his lack of familiarity with the ship and her crew, are

ultimately to blame for the haphazard method of loading the piping

which caused Mr. Bonefont’s subsequent injury.” It was not clearly

erroneous for the Magistrate Judge to find that the boatswain was

inadequately trained to handle the loading operation he was

12 assigned and that this ill-training rendered the VALDEZ

unseaworthy. See Waldron v. Moore-McCormack Lines, Inc.,

, 727 n.4 (1967)(A seaman inadequate for his calling may render

a vessel unseaworthy.); Brown v. Cliff’s Drilling Co.,

(E.D. Tex. 1986); Cf. Rogers,

(Utilizing

an unsafe method of work may constitute an unseaworthy condition.).

The defendants-appellants argue that even if the Magistrate

Judge’s findings as to unseaworthiness are found to be correct, the

trial court’s finding that unseaworthiness was a proximate cause of

injury was clearly erroneous. This argument is without merit. To

recover under an unseaworthy claim, the “‘plaintiff must prove 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

unseaworthiness.’” Brister v. A.W.I., Inc.,

(5th

Cir. 1991)(quoting Johnson v. Offshore Express, Inc.,

(5th Cir.), cert. denied,

(1988)). The

evidence is uncontroverted that Mr. Bonefont suffered an injury to

his foot when the pipes being loaded on to the VALDEZ rapidly fell

to the deck causing the top pipe to roll off the bottom pipe so

fast as to prevent the plaintiff, in his position between the

manifold pan and the pipes, from moving to safety. Furthermore,

the evidence shows that the accident occurred in the manner it did

because of the unseaworthiness of the vessel described above. It

was not clearly erroneous for the Magistrate Judge to find that the

unseaworthiness of the vessel was a proximate cause of injury to

13 the plaintiff.

In addition to the arguments made above, the defendants-

appellants contend that the Magistrate Judge committed clear error

when she found that the plaintiff was not contributorily negligent

in her unseaworthiness analysis. The appellants assert that the

trial court failed to hold Mr. Bonefont to the standard of care

enunciated by this court in Gautreaux v. Scurlock Marine, Inc.,

(5th Cir. 1997)(en banc), viz. ordinary prudence

under the circumstances. The record reflects otherwise.

The Magistrate Judge clearly considered a number of factors in

finding that it was “reasonable” for Mr. Bonefont to have reacted

as he did and that he had not been contributorily negligence. The

trial court specifically referenced the plaintiff’s age and

experience at sea and found that while he had been a seaman for

thirty-one years, Mr. Bonefont had no knowledge or experience in

loading pipes of this nature and in fact had never participated in

such an activity. The testimony also reflected that the loading

operation was not a routine exercise that a seaman would normally

encounter at sea. In assessing the plaintiff’s education, the

trial court noted not only the lack of prior knowledge through

experience but also the total absence of training or instruction

Mr. Bonefont was given in regard to loading the pipes.

Furthermore, the Magistrate Judge properly considered the

shipowner’s duty to provide a safe work environment by recounting

the boatswain’s failure to conduct a safe operation or adequately

instruct the plaintiff.

14 The trial court found that “[w]ith no instruction in safety

procedures provided to the seaman aboard the VALDEZ and no specific

training of any kind regarding the handling of pipe stores provided

to the seamen aboard the VALDEZ, it was reasonable for Bonefont to

have acted as he did.” The record indicates that even though

Gautreaux had not yet been decided the Magistrate Judge

nevertheless properly held the plaintiff to a reasonableness

standard and employed the factors later enunciated by Gautreaux.

Gautreaux,

.

We conclude that the Magistrate Judge’s finding that the

vessel was unseaworthy, the unseaworthiness was a proximate cause

of injury to the plaintiff, and the plaintiff was not

contributorily negligent, standing alone, support the judgment

entered by the trial court in this matter. Therefore, this court

need not address the defendants-appellants’ contentions of clear

error with regard to the Magistrate Judge’s conclusions as to Jones

Act negligence and contributory negligence under the Jones Act.

See Johnson,

(“We stress again that Jones Act

negligence and unseaworthiness under general maritime law are two

distinct causes of action, each involving separate standards of

proof, causation, and review.”).

C. The Defendants’ Motion for New Trial

Subsequent to the entry of judgment, the defendants-appellants

moved for a new trial on the basis of fraud and/or false testimony.

See Fed. R. Civ. P. 59 & 60(b)(3). The defendants’ asserted that

15 the damages awarded by the trial court were based on the false

testimony of Dr. Donovan and/or Mr. Bonefont because after the

trial had concluded the plaintiff had attempted to return to work

as a seaman and somehow procured a “fit for duty” card from his

doctor’s office. After reviewing the trial transcripts and the

defendants’ motion for new trial, the Magistrate Judge found no

clear and convincing evidence of fraud, and, thus, denied the

defendants’ motion for a new trial.

We review a denial of a motion for new trial made pursuant to

Fed. R. Civ. P. 60(b) for an abuse of discretion. Smith v. Alumax

Extrusions, Inc.,

(5th Cir. 1989). When a

party seeks a new trial on the basis of fraud, the moving party

must prove fraud by clear and convincing evidence and show that the

fraud prevented the party from fully and fairly presenting its

case. Diaz v. Methodist Hosp.,

(5th Cir. 1995);

11 Charles A. Wright, et al., FEDERAL PRACTICE AND PROCEDURE, §2860 at

312-13 (2d 1995). In this case, the trial court found that the

defendants had done neither.

The defendants’ motion asserted that the trial court’s award

for future loss wages, which was predicated on the plaintiff being

unable to return to work as a seaman, was allegedly based on false

testimony because of the plaintiff’s post-trial work as a seaman.

The Magistrate Judge found that the defendants’ motion for a new

trial was an attempt to obtain evidence, ex post facto, in order to

correct what they perceived as an error of fact in regard to the

damages for future loss awarded by the trial court. In addition,

16 after reviewing the evidence presented at trial, the trial court

held that Mr. Bonefont’s post-trial activity did not render

fraudulent Dr. Donovan’s uncontroverted opinion or the plaintiff’s

testimony regarding his prior unsuccessful attempts to return to

work as a seaman both of which had been relied on by the trial

court in making its findings as to damages.

A Rule 60(b)(3) motion is not the proper vehicle for

correcting alleged factual errors but is meant to prevent a party

from prevailing unjustly. Diaz,

; Johnson,

. In this case, the Magistrate Judge did not abuse her

discretion in denying the defendants’ motion for new trial on the

basis of fraud or in denying their motion for discovery pending

appeal.

Conclusion

For the reasons assigned, the judgment of the trial court is

AFFIRMED.

17