UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________

No. 02-40307 _________________

ANTOINETTE HARRISON,

Plaintiff-Appellee,

versus

SEARIVER MARITIME, INC.,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (G-01-CV-247) _________________________________________________________________ January 28, 2003

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

An employer/vessel owner and operator contests Jones Act

liability for an injury allegedly suffered while its

employee/seaman performed a routine task. Primarily at issue is

whether the employer violated a Jones Act duty. REVERSED and

RENDERED.

I.

Antoinette Harrison was born in 1960. After completing high

school, she worked a number of jobs, including, but not limited to,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. custodial, landscaping, and construction; the latter included work

as a welder and bricklayer’s helper. Harrison’s work regularly

involved moderate to extensive labor and physical activities.

Harrison is 5'2" and muscular; at the time of the alleged injury,

she weighed approximately 180 pounds.

Harrison began as a seaman with Sabine Transportation Company

in 1994, serving four years as a cook and steward aboard tankers.

Frequently, she was required to use stairs while carrying loads.

On a Sabine vessel in 1995, Harrison injured her right knee while

carrying a crate up stairs: she felt a pop and twitch in the knee;

she did not suffer a misstep, blow to, or twist of the knee. As

discussed below, that injury and circumstances surrounding it are

similar to the one at issue involving her other (left) knee.

Dr. Hayes, an orthopedist, treated this right knee injury. He

found Harrison had malalignment (lateral tilting) and subluxation

(slight dislocation) of both patellae (kneecaps). He opined:

Harrison’s kneecaps do not glide properly in the groove in which

they move during knee motion; and, because of these congenital

abnormalities, Harrison is predisposed to kneecap problems and

injuries. Dr. Hayes also diagnosed chrondromalacia of the right

knee, which he described as “sick” cartilage of the patellae, which

becomes inflamed and causes pain when the misaligned kneecap does

not glide smoothly in its groove during knee movement.

2 Following arthroscopic surgery to her right knee, Harrison

returned to work at Sabine. In 1998, Harrison applied to defendant

Seariver Maritime, Inc., for employment. She successfully passed

a pre-employment physical, at which time she informed the Seariver

medical director of her right knee surgery.

Harrison accepted entry-level employment with Seariver as a

maintenance seaman in the deck department. After completing a two-

week training course, Harrison was assigned to the NORTH SLOPE, an

oil tanker owned and operated by Seariver.

Harrison boarded the vessel in May 1998; it was en route to a

shipyard for a steel survey and inspection. For her daily work

assignments, Harrison reported to Chief Mate Rauhut, who had sailed

with Seariver and its predecessor since 1991. While en route, the

crew prepared the vessel for the shipyard work, including covering

the interior house decks with plastic protection and cleaning the

cargo tanks for tank entry and inspection.

Harrison participated in the deck-covering on 10 through 14,

and 17, June, performing this work on her hands and knees.

Although she wore knee pads, both knees began hurting.

On 18 June, Rauhut assigned Harrison and Picou, a more

experienced maintenance seaman than Harrison, the task of clearing

discharge hoses and blowers from the main deck (18 June meeting).

Harrison and Picou were advised to use a cart to move the blowers.

Harrison did not request more specific instructions.

3 The blowers were to be moved to the forecastle (forward part

of the vessel); the discharge hoses, one deck below (lower

forecastle). The hoses were a lightweight rubber (polypropylene);

Rauhut had ordered what he termed “ultra lightweight” hoses that he

described as similar in texture to a garden hose. According to

Seariver, the hoses were roughly three and one-half inches in

diameter and varied in length from 50 to 75 feet, with a 50-foot

hose weighing 20 to 30 pounds; Harrison thought they were longer

(75 to 100 feet) and wider (as much as six to eight inches in

diameter).

Following their 18 June meeting with Rauhut, Harrison and

Picou began the assigned task. After moving the blowers to the

forecastle, they began moving the hoses to the lower forecastle —

each hose was brought to a stairwell for transportation down a deck

and then forward. Harrison would take the front of each hose and

proceed down the steps, holding the rail with one hand and carrying

the hose over her shoulder. Harrison estimated the weight she

carried to be 15 to 20 pounds and testified that it increased as

she descended. Picou remained above and moved the hose forward,

carrying the trailing end. They moved eight to ten hoses to the

lower forecastle without incident.

Harrison testified she felt a “pop” in her left knee while

descending to the lower forecastle with the forward end of a hose.

Consistent with her injury in 1995, she did not twist her knee; nor

4 was there any slip, trip, or other trauma. Harrison did not report

the incident and continued working that day for an additional five

or six hours. Picou knew of no injury to Harrison and did not

observe her limping or being otherwise injured. (In fact, Picou

did not even recall that it was he and Harrison who carried the

hoses.) As work progressed with the hoses, Picou offered to switch

places with Harrison; they did so.

After 18 June, Harrison continued to believe she had not been

injured and did not report any accident or injury. She continued

to work her regular assigned watches. After the vessel arrived at

the shipyard, Harrison was transferred to the GALVESTON, another

Seariver vessel, and worked her regular assignments there.

On 12 July, almost a month after the hose-storage, Harrison

reported to the GALVESTON’s master with complaints of pain in both

knees, but particularly her right knee (the knee injured

approximately three years earlier, while employed by Sabine, not

Seariver). The GALVESTON injury report notes swelling and burning

in the right knee and states: for location of injury, “unknown”;

for activity employee engaged in when incident took place,

“unknown”; for activity at time of incident, “noticed gradual

swelling in knees over last several days”; for nature of injury,

“swelling in right knee”. (Emphasis added.)

The GALVESTON’s medical logs confirm that Harrison was treated

for her knees thereafter. (Those logs appear to have been altered

5 (an “s” added) to describe swelling in, and treatment for, knees,

rather than a knee; however, this is not at issue.)

In July 1998, the GALVESTON remained in port; Harrison

received treatment ashore for both knees. On 28 July, an MRI was

performed on Harrison’s left knee.

That August, Harrison again saw Dr. Hayes (as discussed

earlier, he had treated her right knee in 1995), who prescribed

medication and physical therapy. Harrison reported to Dr. Hayes

that her symptoms “started about a month ago after she pulled some

heavy hoses on a large ship at work”. Hayes determined:

Harrison’s left kneecap was malaligned (tilting laterally) and

partially subluxated (dislocated); and she had chrondromalacia in

that knee (as he had diagnosed for her right knee in 1995).

For her left knee, Harrison had arthroscopic surgery, physical

therapy, and work hardening. The knee continued to be unstable,

and Dr. Hayes referred Harrison to an orthopaedic specialist, who

performed a second surgery. Since then, she has undergone physical

therapy and received additional medical treatment. (Seariver paid,

and Harrison does not seek recovery for, these past medical

expenses.) Harrison has remained off duty; her condition probably

will prevent her from working as a seaman.

Harrison filed this action in 2001, alleging she injured her

left knee while moving hoses for Seariver on or about 18 June 1998.

Harrison claimed negligence under the Jones Act (

),

6 unseaworthiness under general maritime law, and entitlement to

maintenance and cure.

A one-day trial was held in late 2001. Pursuant to findings

of fact and conclusions of law entered in early 2002, the district

court held for Harrison on the Jones Act claim but dismissed her

other claims. Among other rulings, it found Seariver breached a

duty to Harrison because the hose-clearing procedure was not safe.

Ninety percent negligence was assessed Seariver; ten percent,

Harrison. She was awarded, inter alia, approximately $550,000.

II.

Regarding Jones Act liability, Seariver contends: it did not

violate a duty; and Harrison did not prove Seariver’s negligence,

if any, was the legal cause of her injury. (In addition, Seariver

challenges several evidentiary rulings and also claims the district

court reversibly erred in the damages awarded, including

undiscounted future losses, a double award of economic loss during

the interval between the date of the alleged injury (18 June 1998)

and trial (14 November 2001), prejudgment interest on future

damages, and an award of fringe benefits without the requisite

evidence. Because, as discussed infra, Seariver did not violate a

Jones Act duty, we do not reach the other issues.)

Conclusions of law are reviewed de novo; findings of fact,

only for clear error. E.g., Dow Chemical Co. v. M/V Roberta

Taylor,

(5th Cir. 1987). “A finding is clearly

7 erroneous when after studying the record, [we are] left with the

definite and firm conviction that a mistake has been committed.”

Jackson v. OMI Corp.,

(5th Cir. 2001) (internal

citations omitted).

Rulings on breach of duty and causation are considered

findings of fact, reviewed for clear error. E.g., Chisholm v.

Sabine Towing & Transportation Co., Inc.,

(5th Cir.

1982); FED. R. CIV. P. 52(a). Rahout and Picou, two of the three

most important witnesses in this case, testified by deposition.

Nonetheless, the clear error standard applies to all findings of

fact, including those based on documentary evidence. FED. R. CIV.

P. 52(a) (as amended in 1985). As discussed infra, the breach of

duty finding was clearly erroneous.

The Jones Act provides: “Any seaman who shall suffer personal

injury in the course of his employment may, at his election,

maintain an action for damages at law....”

. Under

the Act, the employer is liable if its negligent breach of duty

caused, in whole or in part, the seaman’s injury. E.g., Hopson v.

Texaco, Inc.,

(1966). Seariver maintains it did not

breach a duty to Harrison. Again, the breach of duty finding is

reviewed for clear error.

The Jones Act standard of care, applicable to both employers

and seamen, is ordinary prudence under the circumstances. E.g.,

Gautreaux v. Scurlock Marine, Inc.,

(5th Cir.

8 1997) (en banc). This standard is designed to be very light;

because seamen are considered wards of admiralty and the court, the

Jones Act is interpreted broadly for their protection. See, e.g.,

Socony-Vacuum Oil Co. v. Smith,

(1939). On the

other hand, a Jones Act employer is not an insurer of a seaman’s

safety; the mere occurrence of injury does not establish liability.

E.g., Marvin v. Central Gulf Lines, Inc.,

(5th

Cir.) (“the burden of proving negligence ... in a Jones Act case is

a light one, but even at sea injury does not presuppose

negligence”), cert. denied,

(1978). See also

Consolidated Rail Corp. v. Gottshall,

(1994);

Chisholm,

.

Harrison claimed (and the district court found) Seariver was

negligent. In essence, the district court based its negligence

findings on the hose-clearing method not being safe. Included in

the findings was that the hose should have been lowered, not

carried, down the stairs. In this regard, Harrison maintains

Seariver failed to exercise ordinary care in three ways: (1) it

allowed two seamen, one of whom it knew was inexperienced, to carry

lengthy hoses down steep stairs, when they should have been lowered

down (i.e., “fed down”); (2) because Seariver did not conduct a job

hazard assessment as required by its safety manual, it failed to

evaluate safer alternatives for moving the hoses down the stairs;

9 and (3) it required repetitive stair-use by Harrison while carrying

a load, which its own safety manual proscribes.

As noted, notwithstanding the deferential standard of review

and our mandate to broadly interpret the Jones Act, and based upon

our review of the record, the negligence finding was clearly

erroneous. In sum, Seariver did not violate its duty to exercise

reasonable care with respect to workplace safety.

Because a Jones Act employer is not an insurer of its

employee’s safety at sea, the employer is not liable when an injury

arises solely from the ordinary and normal activities or risk of

seamen’s work in absence of proof that the injury complained of was

caused by the employer’s negligence. E.g., Chisholm,

; Massey v. Williams-McWilliams, Inc.,

(5th

Cir. 1969), cert. denied,

(1970). “[T]here are

inevitable hazards – some of a very severe nature – in the calling

of those who go down to sea in ships, hazards which when not

occasioned by negligence ... have to be borne by those who follow

the calling”. Massey,

. An employer simply is not

required to protect (indeed, cannot protect) its employees from all

types of injuries. See Gavagan v. United States,

(5th Cir. 1992). Harrison’s knee problems cannot be

attributed to any negligence by Seariver.

No duty was breached by Seariver’s allowing two seamen,

including one relatively inexperienced seaman, to carry, instead of

lower, hoses down stairs.

First, this task was routine and certainly not hazardous;

moving shipboard equipment is a common and expected physical task.

Ordinary prudence is exercised when a safe procedure is used for a

routine task, even when a safer procedure might exist. See, e.g.,

Ruberry v. United States,

(D. Mass. 1950)

(that “a better tool and a better method” might have been employed

did not aid seaman where no showing that “tool or method actually

used ... was unsafe or unsuitable”). Cf. Marshall v. Ove Skou

Rederi A/S,

(5th Cir.) (no duty to provide best,

most modern gear, so long as gear provided was reasonably

suitable), cert. denied,

(1967).

Critically, although Harrison points to testimony (including

Rauhut and Picou's depositions) that lowering the hoses would have

been safer than carrying them, there is no evidence in the record

that the latter method was unsafe. This was corroborated by the

expert testimony.

Seariver’s liability expert, Captain Marsh, had significant,

relevant experience, having spent 25 years in the Merchant Marine,

the last 12 being spent on tankers as a chief mate or master. He

had personally supervised tank-cleaning activities and the stowing

12 of tank-cleaning equipment. Moreover, he inspected the NORTH SLOPE

and the hoses at issue.

Marsh testified that there were two proper ways to move a

tank-cleaning hose down a stairwell into a storage area: using two

seamen to carry the hose down the stairs; and lowering it. He

opined: either way is acceptable; and carrying the hose is a

routine method for accomplishing the task.

Harrison’s liability expert, Kuykendall, had never sailed on

tankers as a master or chief mate, had never been involved in tank-

cleaning operations aboard tankers of any kind, had no hands-on

experience with discharge hoses used in tank-cleaning activities,

had never been aboard the NORTH SLOPE, and had never inspected the

hoses Harrison was carrying. In any event, Kuykendall’s testimony

(e.g., “I don’t think [carrying the hose is] the smart way to do it

... ”; “I personally would have fed [the hoses] down to the main

deck ... without anyone being underneath the load”) again only

indicates that lowering the hoses was a better method, not that

carrying them was unsafe.

The record is devoid of evidence that would support negligence

under the circumstances. For example, nothing indicates the

manpower assigned to this task was inadequate. See Bommarito v.

Penrod Drilling Corp.,

(5th Cir. 1991) (duty to assign

sufficient manpower to safely complete task). Rauhut and Marsh

13 testified that, at most, two seamen were required for the job to be

performed safely.

Second, nothing in the record supports the job's being too

difficult or complicated for someone of Harrison’s experience

level. See Johnson v. Offshore Exp. Inc.,

(5th Cir.)

(may be negligent to assign task inappropriate for experience

level), cert. denied,

(1988). By her own admission,

Harrison had experience in carrying loads on stairs from the four

years she spent as a cook and steward aboard Sabine’s tankers; and

she had years of experience in positions demanding physical labor.

Picou, the co-worker assigned to assist Harrison, had more

experience working as a sea maintenance worker than Harrison, and

could direct her, if needed. Additionally, regarding physical

strength, Harrison was not ill-equipped for the task; she

testified: the weight on her shoulder was approximately 15 to 20

pounds; and she was a muscular, 180-pound seaman.

Finally, there was no failure to warn Harrison of any unsafe

condition, nor did one exist. See Price v. S.S. Yaracuy,

(5th Cir. 1967). The NORTH SLOPE, a modern vessel, was in calm

waters at the time of the alleged injury. As Harrison testified:

the vessel was well-maintained; the stairs were properly built and

maintained; lighting was adequate; hand rails and non-skid surfaces

were available for her protection; and the stairs were stable. (In

14 this regard, the district court “conclude[d] that the vessel was in

all respects seaworthy”.)

B.

With respect to the alleged failure to conduct a job hazard

analysis (JHA) as required by Seariver’s safety manual, that manual

was adopted by Seariver to ensure the safety of its vessel and

crew. It does not (as Harrison seems to suggest) establish

Seariver’s legal duties. To so hold would discourage vessel owners

from adopting the most stringent safety procedures (i.e.,

procedures that go beyond “ordinary care”), to the detriment of

seamen and their safety. On the other hand, Seariver's failure to

abide by its safety regulations (e.g., failure to perform a JHA

where one was required), would be relevant in determining whether

the vessel owner or its employees failed to exercise ordinary care.

Contrary to the district court’s finding (“both the Chief

Officer and Picou concede that no Job Hazard Assessment was done

whatsoever”), the record does not establish that Rauhut failed to

conduct a JHA. On the one hand, Harrison testified that no JHA was

performed. On the other, it is undisputed that Rauhut met with

Harrison and Picou the morning of 18 June to discuss the blower and

hose removal assignment. Rauhut testified that a JHA was then

performed, and that he would have told them to use: (1) “a couple

of people” to take the hoses; and (2) handtrucks to move the

blowers (which weighed 40-50 pounds). Picou also testified that a

15 JHA was performed, and this testimony is corroborated by the daily

work log for 18 June: “0800 M/S Toni & Don [Harrison & Picou] put

away blowers & hoses on deck. Blowers to forward end for rinsing.

Two person lift use cart. JHA held.” (Emphasis added.)

Although she disputes the timing and content of the JHA,

Harrison now concedes one was performed. She insists there was no

written JHA and urges that the JHA did not address hose-removal.

The safety manual states, however, that, at least for routine tasks

(such as the one at issue), a JHA can be either oral or written.

Moreover, a JHA’s purpose is to identify hazards and minimize

risks; it need not (and cannot) cover every aspect or contingency.

See generally Gavagan,

(no legal duty to protect

against all types of harm, especially where harm neither

foreseeable nor unreasonable).

Even accepting Harrison’s contention that a specific JHA was

not performed with respect to the hose-removal, the failure to

conduct a JHA nonetheless does not support finding negligence,

because Seariver’s safety manual does not require a JHA for this

particular task. Harrison insists that such a JHA was required,

contending Seariver’s safety manual mandates a JHA where the task:

involves movement of bulky items, especially where seamen are

unfamiliar with the work procedures to be used; or requires

sequential steps.

16 The manual does not require a JHA for routine, non-complicated

jobs (again, such as the one at issue). Moreover, whether a JHA is

required is left to the supervisor’s discretion, with the manual

suggesting JHAs for jobs that: have the potential for serious

consequences; are accomplished through a number of sequential

steps; are repetitive, with employees repeatedly exposed to

hazards; are new, or have been modified; or have resulted in

incidents. In short, a JHA was not required by the safety manual

for the routine, simple task of clearing the deck of hoses and

storing them. (According to the safety manual, the employee also

has a responsibility to “identify tasks [she is] unfamiliar with or

do[es] not fully understand, discuss them with [her] supervisor,

and conduct a JHA”. Harrison concedes she did not seek any further

instruction from either Rauhut or Picou with respect to carrying

the hoses, although she could have done so, nor did she suggest

doing a more specific JHA.)

More to the point, there is no requirement at law that a JHA

be conducted, especially for routine tasks. (Along this line, the

phrase “job hazard analysis” originates in Seariver’s safety

manual, not the Jones Act.) In other words, failure to conduct a

JHA for this routine, non-hazardous task did not violate Seariver’s

duty to exercise ordinary care. Nothing indicates that Rauhut’s

supervision or instructions were inadequate. Any implicit finding

to the contrary constituted clear error.

17 C.

Regarding Harrison’s claim that Seariver was negligent in

requiring her to perform repetitive stair-use while carrying a load

(in contravention of its safety manual), we reiterate that the

safety manual, while relevant, does not state Seariver’s legal

duty. Moreover, although the manual notes that excessive stair

climbing has been associated with leg and knee fatigue, it does not

define “excessive”. It states: “unnecessary” stair climbing

should be avoided; and repetitive climbing “over prolonged periods

of time” should be accompanied by rest breaks, if needed.

The record does not demonstrate that Harrison's stair-use was

unnecessary, excessive, or over a prolonged period of time. Nor

does it suggest Harrison was unable to take breaks as needed.

III.

For the foregoing reasons, finding Seariver negligent

constituted clear error. Accordingly, the judgment is REVERSED and

judgment is RENDERED for Seariver.

REVERSED and RENDERED

18