Petition for Writ of Certiorari — Marquette Transportation Company, L.L.C., Petitioner v. Kelvin Dunn

APPENDIX TABLE OF CONTENTS

Per Curiam Opinion of the Fifth Circuit

(December 11, 2018) ........................................... 1a

Judgment of the Fifth Circuit

(December 11, 2018) ........................................... 3a

Judgment of the District Court of Louisiana

(September 7, 2017)............................................ 4a

Finding of Fact and Conclusions of Law

(September 6, 2017)............................................ 6a

Order of the Fifth Circuit Denying Petition for

Rehearing En Banc (January 15, 2019) .......... 35a

Trial Testimony of Kevin Dunn

(July 11, 2017) .................................................. 37a

Oral Deposition of Junious Brown

(January 26, 2017)............................................ 98a

Oral Deposition of Corey Crespo

(January 26, 2017).......................................... 123a

Written Statement of Corey Crespo

(August 21, 2015) ........................................... 154a

App.1a

PER CURIAM∗ OPINION OF THE FIFTH CIRCUIT

(DECEMBER 11, 2018)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

KELVIN DUNN,

Plaintiff-Appellee,

v.

MARQUETTE TRANSPORTATION

COMPANY, L.L.C.,

Defendant-Appellant.

________________________

No. 17-30889

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CV-13545

Before: SMITH, BARKSDALE,

and HO, Circuit Judges.

Kelvin Dunn sued Marquette Transportation Company for unseaworthiness, maintenance and cure, and

Jones Act negligence after an injury sustained on the

vessel owned by Marquette. After a two-day bench

trial, the district court awarded damages for past

∗ 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opinion should not be published and is not precedent except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.

App.2a

and future wages, future medical costs, past and

future fringe benefits, and an award for pain and

suffering. Marquette appealed the damages award,

arguing that Dunn’s negligence should mitigate the

damages, the evidence does not support the damage

award, and the district court incorrectly found unseaworthiness.

We have reviewed the briefs, the applicable law,

and relevant parts of the record, and heard oral argument. The district court committed no reversible

error. The judgment is AFFIRMED, essentially on the

basis carefully explained by the district court in its

26-page September 6, 2017 Order.

App.3a

JUDGMENT OF THE FIFTH CIRCUIT

(DECEMBER 11, 2018)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

KELVIN DUNN,

Plaintiff-Appellee,

v.

MARQUETTE TRANSPORTATION

COMPANY, L.L.C.,

Defendant-Appellant.

________________________

No. 17-30889

D.C. Docket No. 2:16-CV-13545

Appeal from the United States District Court

for the Eastern District of Louisiana

Before: SMITH, BARKSDALE,

and HO, Circuit Judges.

This cause was considered on the record on appeal

and was argued by counsel.

It is ordered and adjudged that the judgment of

the District Court is affirmed.

IT IS FURTHER ORDERED that defendantappellant pay to plaintiff-appellee the costs on appeal

to be taxed by the Clerk of this Court.

App.4a

JUDGMENT OF THE

DISTRICT COURT OF LOUISIANA

(SEPTEMBER 7, 2017)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

________________________

KELVIN DUNN

v.

MARQUETTE TRANSPORTATION

________________________

Civil Action No. 16-13545

Section: L (5)

Before: Eldon E. FALLON,

United States District Judge

Considering the Court’s Findings of Fact and Conclusions of Law entered herein on September 6, 2017,

accordingly:

IT IS ORDERED, ADJUDGED AND DECREED

that on the basis of the above Findings of Facts and

Conclusions of Law, there be judgment in favor of

Plaintiff Kelvin Dunn and against Defendant Marquette

Transportation Company, LLC, in the total amount of

$3,359,718.87. This amount does not include deductions

for past wages or other benefits Defendant paid Plaintiff

after the date of the accident, which should be deducted.

IT IS FURTHER ORDERED that Plaintiff is

entitled to pre-judgment interest on the abovementioned past losses at the rate of 3% percent per

App.5a

annum from the date of judicial demand until satisfied.

Furthermore, the Plaintiff is entitled to post-judgment

interest at the federal judicial rate from the date of

judgment until paid.

New Orleans, Louisiana, this 7th day of September, 2017.

/s/ Eldon E. Fallon

United States District Judge

App.6a

FINDING OF FACT AND CONCLUSIONS OF LAW

(SEPTEMBER 6, 2017)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

________________________

KELVIN DUNN

v.

MARQUETTE TRANSPORTATION

COMPANY, LLC

________________________

Civil Action No. 16-13545

Section: “L” (5)

Before: Eldon E. FALLON,

United States District Judge

I.

Factual and Procedural History

This case arises out of injuries allegedly sustained

by Plaintiff Kelvin Dunn (“Plaintiff”) on or about

August 21, 2015 while he was employed as a relief

captain on the M/V ST. RITA, which at the time of

the accident was located in the intracoastal waterway

in Bolivar, near Galveston, Texas. Specifically, Plaintiff alleges that he slipped and fell on diesel fuel

that had accumulated in the engine room due to a

fuel leak on the vessel and sustained injuries to his

leg, hip, and back.

On August 3, 2016, Plaintiff filed a complaint

against Defendant Marquette Transportation Company,

App.7a

LLC (“Marquette”), the owner of the ST. RITA, and

Plaintiff’s employer at the time of the accident. He

seeks damages under the Jones Act, 46 U.S.C. § 30104,

and general maritime law for Defendant’s alleged negligence and vessel unseaworthiness. Defendant denies

liability claiming that Plaintiff’s injuries were caused

in whole or in part by Plaintiff’s own actions.

This matter came on for trial without a jury on July

10, 2017. The trial lasted two days. The Court has

carefully considered the testimony of all of the witnesses, the exhibits entered into evidence during the

trial, as well as the record. Pursuant to Rule 52(a) of

the Federal Rules of Civil Procedure, the Court hereby enters the following findings of fact and conclusions of law. To the extent that any findings of fact

may be construed as conclusions of law, the Court

hereby adopts them as such. To the extent that any

conclusions of law constitute findings of fact, the

Court adopts them as such.

II.

Findings of Fact

(1) Plaintiff Kelvin Dunn is an individual of the

age of majority and a resident of Louisiana.

(2) Defendant Marquette Transportation is the

owner of the M/V ST. RITA, a tug boat which was

maneuvering loaded chemical barges into their proper

position in the fleeting area, more specifically, the

Kirby Fleet area in the intracoastal waterway in

Bolivar, near Galveston, Texas at the time of Plaintiff’s

accident.

(3) At all relevant times, Plaintiff was employed

by Defendant Marquette Transportation, as a seaman

or member of the crew of the M/V ST. RITA, in the

App.8a

capacity of relief captain. Plaintiff’s job duties required

him to steer the vessel and supervise the crew, as

well as walk up and down stairs, along with some

other moderate physical activity.

(4) The M/V ST. RITA has a two-level engine

room, with a center stairway that leads from the upper/

mezzanine level of the engine room to the lower engine

room. The stairway lands on the lower engine room

deck just aft of the front of the port and starboard

engines, and directly between the port and starboard

engine.

(5) The engine room contains the two generators

for the vessel. The M/V ST. RITA relies on one generator

at a time, and automatically switches between these

generators every twelve hours. The generators can also

be shut off manually. In that case, the running generator would be turned off, and power would be manually

switched to the other generator. The vessel is also

equipped with an emergency shut off switch, which

will shut off both generators, and thus all power to the

vessel, simultaneously.

(6) The switch to shut off individual generators

is located on the generators themselves. The emergency

shut-off switch is located outside of the engine room

near the door.

(7) When the emergency shut-off switch is activated, the vessel’s engines are shut off. The vessel

does have some back-up battery power, but this will

only run the emergency lights and radio. Without

power, the vessel can still maneuver its rudders, but

the rudders are insufficient to adequately and safely

steer the vessel.

App.9a

(8) The morning of the accident, the M/V ST.

RITA was pushing two loaded chemical barges, at a

speed of five knots. These barges had a ten foot draft,

four feet wide and three hundred feet long. The M/V

ST. RITA was approaching the Kirby Fleet where it

would maneuver the loaded barges into the proper

position in the fleeting area.

(9) Just before 5:00 a.m., Plaintiff was awakened

by the sound of the vessel’s engines “backing down”

as the on-duty pilot was struggling to align the chemical

barges in the fleeting area. Plaintiff left his bunk

room, and went to the helm to assist Pilot Julius

Brown. When he arrived at the helm, Plaintiff found

the M/V ST. RITA was “sideways” trying to swing the

head of the tow around to land a single barge level in

the fleet. Plaintiff temporarily took over the controls

and radioed for another tug in the fleet to come act as

an assist boat. With an assist tug alongside and Plaintiff

operating the controls, the tow was straightened back

out and landed in an ordinary manner alongside the

fleet.

(10) As Plaintiff was preparing to return to his

bunk room to get ready for his shift, Corey Crespo, a

deckhand on the M/V ST. RITA, radioed and said,

“there’s some diesel or some fluid spraying from a

generator in the engine room.” Plaintiff left the helm

and proceeded down the stairs to the mezzanine deck

of the engine room to investigate the fuel leak. Upon

assessing the leak, Plaintiff determined the safest

response was to switch generators, rather than using

the emergency cut-off switch, which would shut off

power to the entire vessel. To shut off the leaking

starboard generator and switch power to the port

generator, Plaintiff would need to use the shut off

App.10a

switch located on the generator itself, which was only

accessible from the floor of the engine room.

(11) Plaintiff entered the engine room on the

mezzanine level, then proceeded down the stairs to

the first floor of the engine room, where the generators

were located. When Plaintiff reached the bottom of

the stairs, he turned to his left (towards the starboard

engine) and then proceeded between the stairway and

the starboard engine forward towards the running

starboard generator. Corey Crespo had followed Plaintiff into the engine room and down the stairs. As soon

as Plaintiff and Crespo reached the decking, they

slipped on the accumulated diesel fuel. Crespo nearly

fell, but was able to catch himself on nearby equipment. Plaintiff fell and landed hard on his right hip

resulting in a severely fractured femoral head.

(12) After the fall, Plaintiff was unable to move

and another deckhand came down into the engine room

to assist with the transfer of generator power. When

the starboard generator was shut down, the fuel leak

stopped. Pilot Brown then returned the vessel to the

fleet and called for an ambulance. Within the hour

paramedics arrived and Plaintiff was evacuated to a

hospital in Galveston, where he underwent emergency

treatment and a surgery where four screws were placed

in his hip to stabilize and reduce the hip fracture.

(13) At the time of the accident, Plaintiff was

wearing a pair of athletic Nike slide shoes with rubber

soles. These slide shoes were not in compliance with

Marquette’s safety requirements for working on the

deck or in the engine room. However, Corey Crespo

testified that he was wearing safety work boots with

rubber soles when he entered the engine room. Both

App.11a

Plaintiff and Crespo slipped when they attempted to

enter the engine room.

(14) While Plaintiff was not on duty at this

time, he was the captain of the vessel and was well

aware of Marquette’s safety regulations which required employees to wear closed-toed shoes while on

deck and in the engine room. However, even if Plaintiff had been wearing steel-toed shoes, he still would

have slipped. Corey Crespo slipped while wear steeltoed boots. While he was able to catch his fall, he did

so by grabbing on to adjacent equipment, and not

because his footwear completely prevented a slip.

Further, steel-toed boots are generally effective at preventing injury caused by heavy objects dropping on

an employee’s foot; generally, they are not required

because of their anti-slip properties. As Captain

Nichols testified, if Plaintiff had been wearing steeltoed boots he still would have slipped; once there is

diesel fuel on the bottom of your shoes, you are going

to slip. While it is undeniable that closed-toe boots

were required footwear for crew members working in

the engine rooms, Corey Crespo, who was wearing

boots, also slipped because of the diesel fuel. Captain

Dunn was in violation of company safety policy and

therefore negligent in not wearing the required boots;

however, his negligence, in this regard, was not the

cause of his fall or injury.

(15) Further, the Court expressly finds that

Plaintiff’s decision to enter the lower-engine room to

shut down the starboard generator and stop the fuel

leak was a reasonable choice under the circumstances.

The tug was approaching a barge fleeting area, pushing

two loaded chemical barges. If Plaintiff had used the

emergency shut-off switch outside of the engine room,

App.12a

he would have killed all power on the vessel. The tug

had only recently regained complete control of the

two barges, as the current had pushed them sideways

and a second assist tug was required to get the barges

back in place. Cutting off power, and the ability to

navigate, would have resulted in two loaded chemical

barges and a tug with a diesel leak in the engine room

floating—uncontrolled—towards an entire fleet of

chemical barges.

Rather than make a choice which would have

exacerbated the dangerous situation already unfolding

on the vessel, Plaintiff decided to enter the engine room

to, as he phrased it, “fix the situation.” He could not

see the source of the leak from the top of the stairs,

so proceeded down the stairs to the main level of the

engine room when he slipped and fell on the accumulated fuel.

(16) The Court has reviewed the evidence presented regarding the fuel leak and finds that the factual

issues surrounding this aspect of the case are not

significantly in dispute. Port engineer, Walter Hayes,

who was responsible for coordinating and performing

the maintenance aboard the ST. RITA, testified at trial.

He explained that three days prior to the accident, he

went aboard the M/V ST. RITA to repair one of the

main engine gears. While working, he noticed that the

fuel filter housing to the starboard generator appeared

to be worn, so Hayes ordered a new fuel filter housing

and replaced it at the same time that the main

engine gear repair was underway. After installation,

Hayes inspected the fitting, found it was acceptable,

cleaned it, placed Teflon on its threads and reinstalled

it to the new housing. Hayes then said that he

restarted the generator and tested the new assembly

App.13a

and found that all the fittings were holding tight and

not leaking diesel fuel.

(17) Hayes also repaired the fuel pressure gage

after the leak and the resulting accident. He explained

that the leak began when the stem which connects the

valve to the fuel filter housing broke in half. He had

never known one of these stems to fail before, and

had no reason to believe it would break after he

completed the initial repair. Nonetheless, the broken

fuel pressure gauge was the direct cause of the dangerous condition which rendered the vessel unseaworthy. Plaintiff’s fall and injuries were caused directly

by the unseaworthy condition of the broken fuel pressure gauge and the Defendant’s negligence in failing

to provide the Plaintiff with a safe place to work.

(18) Plaintiff has undergone significant medical

treatment as a result of the accident. This treatment

included an emergency surgery to stabilize his broken

hip, injections in the facet joints of the lower back, an

epidural steroid injection, as well as physical therapy

and medication. Plaintiff underwent emergency surgery

under general anesthesia to place four 7.3mm stabilizing screws in the broken hip. He then attended 25

physical therapy sessions.

On August 25, 2015, he was discharged from University of Texas Medical Branch and returned to his

home in Denham Springs, Louisiana. He followed up

with Dr. David Pope at the Bone and Joint Clinic in

Baton Rouge, Louisiana. Dr. Pope was a physician

selected by Marquette to follow Mr. Dunn’s recovery.

Dr. Pope testified (by deposition) that he was familiar

with Dr. Craig Greene as a hip and trauma specialist,

and that he would defer to Dr. Greene regarding future

medical treatment as it related to Mr. Dunn’s hip,

App.14a

since Dr. Greene had taken over Dunn’s care. Dr. Pope

also stated that he would defer to his partner, Dr.

Kevin McCarthy (a spine specialist), regarding opinions

relating to Mr. Dunn’s lumbar spine. Although Dr.

Pope did release Mr. Dunn to return to work, Mr.

Dunn’s consistent complaints of lumbar spine pain

while treating with Dr. Pope were never addressed.

Mr. Dunn also underwent extensive physical therapy

at Peak Performance Physical Therapy between September, 2015 and March, 2016 which involved electrical stimulation, flexibility exercises, isometric hip

abduction exercises, and dynamic and stabilization

training.

(19) On April 4, 2016, Kelvin Dunn sought a second opinion with Dr. Craig Greene, a hip and trauma

specialist at Baton Rouge Orthopedic Clinic. Dr. Greene

performed an extensive evaluation on Dunn and opined

Mr. Dunn will need a total hip replacement before he

reaches the age of 50, and since the hardware will not

last the rest of his life, he will need a revision surgery,

i.e., a second total hip replacement surgery somewhere

down the road. Dr. Greene also testified that, prior to

any hip replacement surgery, he would recommend

hardware removal surgery, whereby Mr. Dunn would

be placed under general anesthesia in a hospital setting,

and Dr. Greene would remove the four large screws

from plaintiff’s femur. Dunn testified that he remains

in significant pain in his right hip and he is ready to

proceed with the hardware removal surgery. Dr. Green

referred Dunn to Dr. Jeremy Comeaux, a physical

medicine and rehabilitation specialist.

(20) Dr. Jeremy Comeaux first saw Kelvin Dunn

on May 5, 2016, at which time he ordered a CT scan

of the lumbar spine. This CT scan was performed at

App.15a

Imaging Center of Louisiana on June 20, 2016, and it

revealed multiple abnormalities including a herniated

lumbar disc at the L4-5 level, lumbar retrolisthesis,

and facet hypertrophy. Dr. Comeaux opined that all

of Mr. Dunn’s ongoing hip and lumbar spine complaints

are indeed related to the August 21, 2015 accident in

question, and that the need for ongoing care as it

relates to the lumbar spine would also be related to

that traumatic event. On December 2, 2016, Dr. Comeaux performed a lumbar epidural steroid injection

under fluoroscopic guidance. Dunn testified that this

injection helped with his pain for approximately one

month. Dr. Comeaux eventually referred Mr. Dunn

to orthopedic spine surgeon, Dr. Kevin McCarthy,

who also practices at the Bone and Joint Clinic with

Dr. David Pope.

(21) Dr. Kevin McCarthy saw Kelvin Dunn for

the first time on December 15, 2016. Dr. McCarthy’s

examination and treatment focused on Mr. Dunn’s facet

joints in his lower back. He also felt that the retrolisthesis (shifting of the vertebrae) could definitely be a

source of pain for Mr. Dunn. Dr. McCarthy gave Mr.

Dunn his first round of facet injections on January 20,

2017. He injected two joints on each side of the spine

with an anesthetic and a steroid medication under

fluoroscope. Plaintiff did receive temporary relief

from the injections, which suggested to Dr. McCarthy

that his back pain was coming from the facet joints.

Plaintiff underwent a second round of facet joint

injections on June 20, 2017, which appear to have

provided him with some relief. Dr. McCarthy testified that Mr. Dunn would benefit from additional

treatment for the lumbar spine in the form of

rhizotomies over the next ten-year period. Rhizotomy

App.16a

is a procedure that utilizes radio frequency waves to

produce heat on the nerves surrounding the lumbar

spine. This prevents the nerve from being able to

transmit pain signals to the brain. Dr. McCarthy further testified that Kelvin Dunn will eventually need a

lumbar spine fusion at some point in his lifetime as a

result of the subject accident and resulting injuries.

Dr. McCarthy also related all of the symptoms for

which he was treating Kelvin Dunn, as well as the

need for the future care (office visits, diagnostic studies,

rhizotomies and ultimately a lumbar spine fusion) to

the subject accident.

(22) Plaintiff was also seen by the Defendant’s

independent medical expert, Dr. Christopher Cenac,

Jr., in Houma, Louisiana. After examining Plaintiff,

Dr. Cenac opined that Mr. Dunn would benefit from

hardware removal from his hip. He also testified that

he agrees with Dr. Greene in that he feels Mr. Dunn

will eventually require a total hip replacement of the

right hip, although he did not give a specific timeline,

nor did he comment on Mr. Dunn’s need for a revision

hip surgery at some point in the future. Dr. Cenac

further testified that the facet injections and subsequent

rhizotomies being recommended by Dr. McCarthy were

reasonable and necessitated by symptoms arising from

the subject accident; however, he testified that there

was no indication that Plaintiff’s injuries would require a lumbar fusion in the future.

(23) Marquette’s Claims Manager, Ronnie Dupuy,

testified that Marquette initiated maintenance payments as of the date of incident and has continued

these payments through the date of trial. Aside from

the outstanding medical expenses submitted by Plaintiff

at trial, the Court finds that Marquette continually

App.17a

and systematically paid all medical expenses and maintenance obligations up-through the date of trial.

Having considered the testimony of all the doctors,

the Court finds that Plaintiff will not reach maximum

medical improvement until he has had the hardware

surgically removed from his hip, and has had adequate

time to recover from that surgery. Thus, Defendant is

responsible for paying maintenance from the date of

trial up until Plaintiff recovers from the removal

surgery. Based on the testimony of the doctors, the

Court finds Plaintiff will reach maximum medical

improvement three months from the date of the

removal surgery.

(24) Marquette shall have 60 days to review the

charges which have been incurred by the Plaintiff,

but not yet submitted, and to reimburse Plaintiff for

same.

(25) At the time of his injury the plaintiff was

39 years old. He attended some high school, although

he did not graduate. Recent vocational testing indicates

that Plaintiff has 6th grade reading comprehension

and 4th grade math proficiency. Plaintiff has never

obtained a GED. Kevin Dunn had an extensive maritime work history. He began working on boats at the

age of 19 and started as a deckhand trainee and

worked until finally promoted to captain. Dunn worked

on the ST. RITA for four years.

(26) The Court finds that Plaintiff’s work life

expectancy is 16.4 years and his life expectancy is 37.8

years. His post-tax wages for the year of the accident

annualize to $124,500. He worked through August

21, 2015 and has not worked since that date. Based

on the medical expert testimony presented by both

App.18a

parties, the Court finds that Plaintiff’s injuries will

prevent him from ever returning to his position as a

captain aboard vessels. However, the evidence supports the conclusion that he is not permanently, totally

disabled. After a time he will be able to return to some

gainful activity requiring less physical demands.

(27) Plaintiff’s life care planner and economic

expert, Stephanie Chalfin testified that if and when

Mr. Dunn was able to return to work, based on his

work history, his limited education, and his physical

limitations as a result of the subject accident, Mr.

Dunn would likely be relegated to sedentary/light

duty employment earning between $8.55 to $9.00 per

hour. In particular, the Court notes that Plaintiff

does not have a high school diploma and tested wellbelow the twelfth-grade level in both reading and

math. Based on this evidence, the Court finds that

Plaintiff could earn $18,000 annually in a new occupation given his limited education, training, experience,

and physical limitations.

Defendant’s vocational rehabilitation expert, Ronnie Ducote, testified Dunn was qualified for a range of

medium level jobs ranging from a scale operator to a

custodial supervisor with earnings in the range of

$40,000.00-$50,000.00 per year. However, the Court

finds that these salaries are unrealistic given Plaintiff’s education, training, and experience. The entirety

of Plaintiff’s work experience has taken place on

vessels. Due to his physical limitations as a result of

the accident, he is no longer able to perform this type

of work. He does not have skills or experience that will

transfer into most other land-based positions that are

available to someone with his work restrictions. Additionally, while Mr. Ducote testified Plaintiff could earn

App.19a

up to $125,000 if he opened his own tattoo parlor, the

Court finds this is not a reasonable future salary

based on Plaintiff’s training, experience, and education level.

(28) Using Chalfin’s figures on loss of earnings

as applied by Plaintiff’s expert forensic accountant,

John Theriot, the Court finds that Plaintiff’s annual

salary for the purposes of computing his past and

future lost wages is $124,000.00, plus fringe benefits

that his employer paid such as 401K contributions

and food. These figures are based on Mr. Dunn’s welldocumented earnings history as a boat captain.

Plaintiff has not worked since the date of the

accident on August 21, 2015 through the date of trial

on July 10, 2017. This represents 1.89 years, at an

annualized salary of $124,000 a year. Therefore, Plaintiff is entitled to recover $234,360 in lost wages. Any

wages that Defendant paid to Plaintiff after the date

of his accident shall be deducted from this amount.

The Court finds that Plaintiff lost fringe benefits

and the cost of meals during this period. Specifically,

Plaintiff lost fringe benefits, such as 401K contributions

and health care that would have been paid by his

employer during this period. According to Plaintiff’s

economist, these benefits amount to 14.61% of his

annual wages. Thus, Plaintiff is entitled to an additional

$34,240 in past loss of fringe benefits. Finally, the

evidence demonstrated that Plaintiff was provided

meals as another benefit of his employment. Plaintiff

received meals on the days he was on a hitch, which

amounts to $2,392 annually. This total is based on the

total number of meals provided each year, multiplied

by the average cost of a home meal as determined by

the Department of Agriculture. Thus, Plaintiff shall

App.20a

receive an additional $4,520.88 to compensate him for

lost meal benefits from his accident to the date of trial,

less the maintenance payments paid to him until he

reaches MMI.

Plaintiff will also sustain future losses of wages,

fringe benefits, and meals. First, Plaintiff is not yet

employed, and must endure additional surgeries before

he is fit to return to work. Given his required future

medical treatment, the Court finds it is unlikely Plaintiff will return to work within two years from the

trial date. Thus, the Court will not assume any offsets

to Plaintiff’s future lost wages due to alternate employment during the next two years. Based on an

annual wage of $124,000, Plaintiff is entitled to future

lost wages in the amount of $248,000 for the next two

years. Reduced to present value, this amounts to

$244,329.

Additionally, during the next two years Plaintiff

will suffer losses of fringe benefits and meals. As

discussed above, Plaintiff received a benefit of $2,392

annually in meals. His fringe benefits amounted to

14.61% of his base salary. Together, his fringe benefits

and meals are valued at $20,508.40 annually. Reduced

to present value, this amounts to $40,409.75 for the

two year period before Plaintiff returns to work.

Both parties agree that Plaintiff’s work-life span

is at least 16.4 years from the date of trial. The Court

finds that after Plaintiff has the hardware removal

surgery and has had adequate time to recover, he

will be able to secure alternative employment with

earnings of $18,000 annually. This amount will reduce

his loss of wages accordingly. Therefore, for the 14.4

remaining years in Plaintiff’s work life, his annual

lost wages will be $106,000. Adjusted to present value,

App.21a

the Court finds that Plaintiff is entitled to $1,420,792.

00 in lost wages for the remaining 14.4 years of his

work life.

Moreover, Plaintiff will sustain losses of fringe

benefits and meals during this time. Fringe benefits

amount to 14.61% of his salary; however, it is reasonable to assume that any new employment would also

include some of these benefits. As such, Plaintiff is

entitled to compensation for 14.61% of the difference

between his former salary and the salary he earns in

alternate employment. Thus, Plaintiff is entitled to

14.61% of $106,000, or $15,486 annually, in lost fringe

benefits. He is also entitled to $2,392 annually for lost

meals. These benefits total $17,878 annually. Adjusted

to present value, Plaintiff is entitled to receive

$239,631.35 in fringe benefits and lost meals for the

remaining 14.4 years of his work life expectancy.

(29) Plaintiff’s prior medical history indicates

he was treating for anxiety and panic disorder in the

few years before the accident. In relation to this

treatment, Dr. Rachael Wissner prescribed Plaintiff

a generic form of Ativan, which he explained he took

as needed, but never while he was on the vessel. While

Defendant argued this medication would have prevented him from continuing as a captain, the Court

disagrees. The evidence demonstrates that Mr. Dunn

was a long term and excellent employee for Marquette,

and its predecessor company, Eckstein Marine. Other

than a brief stint with Crosby, Dunn testified he

spent his entire work life on the water with Eckstein

and Marquette. While employed with Marquette, Dunn

was promoted through the ranks from deckhand ultimately ending up as a relief captain. He never had

any disciplinary issues while employed at the com-

App.22a

pany. Dunn provided consistent service as a captain to

the company between 2010 and 2015, and he never

failed a single random drug test. There was no evidence

of any alcohol or controlled substances in his system

following the subject accident.

III. Conclusions of Law

(1) This Court has jurisdiction over this matter

pursuant to 28 U.S.C. § 1333, which provides original

jurisdiction over admiralty or maritime claims, and

the Jones Act, 46 U.S.C. § 688. Venue is proper because

the Defendants are subject to the personal jurisdiction

of this Court.

(2) Plaintiff has designated this matter as an

Admiralty and Maritime claim within the meaning of

Federal Rule of Civil Procedure 9(h), and as such,

this matter is appropriately being tried to the bench

as opposed to a jury.

(3) The testimony presented clearly establishes

that Kelvin Dunn was a Jones Act seaman at the time

of the August 21, 2015 accident. Defendant did not

contest Plaintiff’s status as a seaman at trial. The

substantive law applied to this case is the Jones Act

and general maritime law.

(4) The matters before this Court include determination as to whether the vessel was unseaworthy

under general maritime law, whether Defendant was

negligent under the Jones Act, whether Plaintiff was

contributorily negligent, and the nature and extent of

Plaintiff’s injuries.

(5) “To establish a claim for unseaworthiness, the

injured seaman must prove that the owner has failed

to provide a vessel, including her equipment and

App.23a

crew, which is reasonably fit and safe for the purposes

for which it was intended to be used.” Boudreaux v.

United States of America, 280 F.3d 461, 468 (5th Cir.

2002) (quoting Jackson v. OMI Corp., 245 F.3d 525,

527 (5th Cir. 2001)). “The standard is not perfection, but

reasonable fitness; not a ship that will weather every

conceivable storm but a vessel reasonably suited for

her intended service.” Boudoin v. Lykes Bros. S.S.

Co., 348 U.S. 336, 339 (1955). “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 method of loading her cargo, or

the manner of its stowage, might be improper.” Usner

v. Luckenbach Overseas Corp., 400 U.S. 494, 499-500

(1971) (internal citations omitted); see also Webb v.

Dresser Indus., 536 F.2d 603, 606 (5th Cir. 1976), cert.

denied, 429 U.S. 1121 (1977). A vessel is unseaworthy

when an unsafe method of work is used to perform

vessel services. Rogers v. Eagle Offshore Drilling Serv.,

764 F.2d 300, 303 (5th Cir. 1985); Burns v. AnchorWate Co., 469 F.2d 730 (5th Cir. 1972). The duty of the

vessel owner to provide a seaworthy vessel is an absolute non-delegable duty.

(6) To recover damages from an unseaworthy

condition, the plaintiff is required to establish a causal

connection between his injury and the breach of duty

that rendered the vessel unseaworthy. Id.; see also

Gavagan v. United States, 955 F.2d 1016, 1020 (5th

Cir. 1992) (quoting Johnson v. Offshore Exp., Inc.,

845 F.2d 1347, 1354 (5th Cir. 1988)) (“To establish

the requisite proximate cause in an unseaworthiness

claim, a plaintiff must prove that the unseaworthy

App.24a

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.”).

(7) Defendants had a non-delegable duty to provide Plaintiff with a safe place to work and provide

seaworthy equipment on the vessel. The credible evidence supports the finding that Marquette breached

this duty as it failed to properly maintain its vessel,

the M/V ST. RITA, specifically the fuel gauge on the

starboard generator. This unseaworthy condition

directly caused the fuel leak and the dangerous condition Plaintiff encountered on August 21, 2015.

The Court hereby concludes that the vessel was

unseaworthy and Plaintiff’s injuries and resulting

damages were proximately caused by the vessel’s

unseaworthiness, as well as the defendant’s negligence

in failing to provide him with a safe place to work.

(8) Comparative negligence may apply to decrease

the amount of a plaintiff seaman’s recovery on a Jones

Act claim for negligence. Jauch v. Nautical Services,

Inc., 470 F.3d 207, 213 (5th Cir. 2006). “A seaman’s

contributory negligence will not bar his recovery, but

may reduce the amount of damages owed proportionate

to his share of fault.” Id. “The standard of care for a

seaman under the Jones Act is to act as an ordinarily

prudent seaman would act in similar circumstances.”

Jackson, 245 F.3d at 528; Gautreaux, 107 F.3d at 33839; see also Norfolk Southern Ry. Co. v. Sorrell, 127

S.Ct. 799 (2007).

(9) Having considered the testimony of the fact

witnesses and expert witnesses presented by both sides,

the Court has determined that Plaintiff violated the

App.25a

company’s safety rule regarding proper footwear in

the engine room and was therefore negligent.1 However,

his negligent actions were not a cause of his fall and

resulting injury.2 The evidence clearly supports the

conclusion that the cause of his fall, as well as his

fellow crew member’s fall, was the slippery condition

of the engine room decks which rendered the vessel

unseaworthy.

(10) Furthermore, the Court does not find that

Plaintiff was contributorily negligent in his decision

to enter the engine room and shut off the starboard

generator. A seaman is “obligated under the Jones

Act to act with ordinary prudence under the circumstances,” which circumstances take account of the

seaman’s “experience, training, [and] education.”

Martinez v. Offshore Specialty Fabricators, Inc., 481

Fed. App’x. 942, 947 (5th Cir. 2012) (quoting Gautreaux

v. Scurlock Marine, Inc., 107 F.3d 331, 339 (5th Cir.

1997) (en banc)). However, “[w]here one is confronted

through no fault of his own with a sudden emergency,

his actions in extremis are not to be judged as they

would be in ordinary circumstances.” Fruit Indus.,

Inc. v. Petty, 268 F.2d 391, 394 (5th Cir. 1959). Captain

Dunn was faced with an emergency. He had to

choose between shutting off all power to the vessel,

which was pushing two loaded chemical barges towards

the fleeting area, after already been pushed off course

1 Company policy requires crew members to wear steel-toed boots.

However, the purpose of this policy is to prevent injury if something

falls on a crew member’s foot, rather than to prevent them from

slipping on diesel fuel.

2 “To establish that a seaman is contributorily negligent, an

employer must prove negligence and causation.” Johnson v. Cenac

Towing, Inc., 544 F.3d 296, 302 (5th Cir. 2008) (emphasis added).

App.26a

by the current or entering the engine room to see if

he could stop the leak. The Court finds that Captain

Dunn’s response to this emergency was reasonable

under the circumstances. He chose the response which,

based on his training and experience, would expose

the other crew members and the vessel to the least

amount of risk.

(11) Under the Jones Act and general maritime

law, an injured seaman is entitled to monetary recovery

for past, present and future loss of earning capacity

and wages, medical expenses, and pain and suffering

resulting from an injury caused by negligence and/or

unseaworthiness. Cortes v. Baltimore Insular Line,

287 U.S. 367, 377, 1933 AMC 9, 14 (1932).

(12) As discussed in full above, the evidence

supports the conclusion that Plaintiff has after-tax past

lost earnings of $234,360.00 and future wage loss

(after commuting to present value and accounting for

earnings in non or light laborious work) of $1,665,

121.00 (Pl. Report of John Theriot, Report of Kenneth

J. Boudreaux, Ph.D.).

(13) Defendant has paid all of Plaintiff’s past

medical bills which were submitted at the time of

trial. Plaintiff submitted additional medical expenses

on the day of trial. Therefore, Marquette shall have

60 days to review the charges which Plaintiff recently

submitted, and to reimburse Plaintiff for same.

(14) Regarding future medicals, the evidence

indicates that the hardware removal surgery and postsurgery physical therapy are estimated to cost

$11,992.00. Both Dr. Greene and Dr. Cenac agree that

Mr. Dunn will require a total hip replacement in the

future. Dr. Greene testified this surgery will take

App.27a

place before Mr. Dunn reaches the age of 50, and as

hip replacements only last 10-12 years, he will ultimately need another hip replacement revision surgery.

Based on the report of Plaintiff’s forensic accountant, John Theriot, the cost of Plaintiff’s first hip

replacement will be $52,444. That surgery will take

place in approximately ten years; thus, once adjusted

to present value, the cost of that hip surgery will be

$59,434. The Court finds that the expected life of a

hip replacement is ten years; Plaintiff has an

estimated life expectancy of 37.8 years. Thus, he will

need-at minimum—one revision hip replacement during

his lifetime. According to the evidence, this procedure

will cost $78,973 and take place when Plaintiff is in

his late 60s. Adjusted for future value, this procedure

will cost $114,947.

Next, the credible evidence indicates that Plaintiff

will require a bilateral endoscopic rhizotomy every

12-18 months for the next ten years. While the Court

agrees that Plaintiff will need ongoing treatment, the

evidence demonstrates that the need for these procedures will decrease as Plaintiff improves following the

hardware removal procedure. Thus, the Court finds

that Plaintiff will only require this procedure every

24 months for the next ten years. According to Plaintiff’s

life care planner, each bilateral endoscopic rhizotomy

will cost $33,910. This averages to an annual cost of

$16,955 every year for the next ten years. Thus, the

present value of this treatment is $160,585.89.

Additionally, the evidence demonstrates that

Plaintiff will require follow-up orthopedic treatment,

physical medicine, rehabilitation and injections for

the remainder of his life. While Plaintiff estimates

these treatments may need to occur up to six times

App.28a

per year, the Court finds that the evidence demonstrates Plaintiff’s condition will substantially improve

after the hardware is removed from his hip, and

again after each of his hip replacement surgeries.

Thus, the Court finds Plaintiff will need to attend

orthopedic follow-up visits twice a year, for a discounted

cost of $10,408. Likewise, Plaintiff will need to seek

follow-up care in physical medicine three times per

year, for a total cost of $21,886. Finally, Plaintiff will

need annual lumbar injections for a total cost of

$81,061. The total cost of this lifetime treatment

$113,355.

Further, Plaintiff’s injuries will require ongoing

physical therapy and medication. Plaintiff’s life care

planner indicates that he will need physical therapy

for ten years; the Court finds this is reasonable based

on the nature and extent of his injuries. However,

the Court finds that Plaintiff will likely only require

6-12 weeks of therapy every two to three years during

this period, as his condition will improve with his

additional surgical procedures. The cost for this therapy

is $32,415. Finally, Plaintiff will require medication,

specifically Mobic and Tramadol for the duration of

his life. The annual cost of these prescriptions is

$641; adjusted to present value this amount is $31,426.

Regarding the lumbar spine, the weight of the

evidence presented at trial shows that Dr. McCarthy,

Dr. Comeaux, and Dr. Cenac all agree that Mr. Dunn

would benefit from long-term pain management care

in the form of facet joint injections and rhizotomies.

Although one doctor disputes Mr. Dunn’s need for

surgery, two-level lumbar spine fusion, the weight of

the evidence supports Dr. McCarthy’s conclusion that

the surgery is required as a result of his injuries. Mr.

App.29a

Dunn was an outstanding worker for 12 years and there

is no indication of back problems prior to the hip

injury; the lumbar spine injury occurred subsequent

to the fall. Dr. McCarthy is uncertain as to the exact

time Plaintiff will require this surgery, but it is likely

that it will be needed in the near future. Based on

the report of Plaintiff’s forensic accountant, John Theriot, the cost of Plaintiff’s lumbar fusion surgery will

be $148,707. Due to a lack of certainty regarding the

timing of this procedure, the Court will use the

present cost rather than increasing it.

Plaintiff’s future medicals are summarized as

follows:

•

Hardware Removal Surgery: $11,992

•

Hip Replacement Surgery: $59,434

•

Hip Revision Surgery: $114,947

•

Bilateral Endoscopic Rhizotomy: $160,585.89

•

Orthopedist, Physical Medicine, Lumbar Injections: $113,355

•

Physical Therapy: $32,415

•

Medication: $31,426

•

Lumbar Fusion Surgery: $148,707

Total: $641,435.89.

Thus, the Court finds that an award of $641,435.

89 for future medical expenses is appropriate.

(15) Damages for pain and suffering may be

awarded to a seaman who is injured due to the unseaworthiness of the vessel. Sosa v. M/V Lago Izabal, 736

F.2d 1028, 1034 (5th Cir. 1984). The Plaintiff has

suffered physical pain due to his hip injury, surgery,

App.30a

and recovery. He will undergo additional surgeries in

the near future to remove the hardware from his hip,

and both Plaintiff’s treating physician and Defendant’s

IME agree Plaintiff will eventually require a full hip

replacement. He is likely to have hip and back pain

in the future. The Plaintiff also faces significant

restrictions in his employment due to his injuries.

The Court finds that the Plaintiff is entitled to an

award of $100,000.00 for past pain and suffering and

$400,000.00 for future pain and suffering. An award

of $500,000 for his past and future pain and suffering

is appropriate given the nature and extend of Plaintiff’s

injuries. This award is consistent with other cases

involving similar injuries.3

(16) A seaman injured in the course of his or

her employment has a claim for maintenance and

3 See Zeno v. Great Atl. & Pac. Tea Co., 803 F.2d 178, 181-82 (5th

Cir. 1986) (looking to similar cases to determine award); Klemetsen

v. H & R Block, Inc., 569 So.2d 559, 559-60 (5th Cir. 1990) (awarding $111,300 for broken hip); Fromenthal v. Delta Wells

Surveyors, Inc., 98-1525, p. 12-14 (La. App. 4 Cir. 10/4/2000); 776

So.2d 1, 12-14 (awarding $250,000 for hip fracture requiring

surgery and residual pain and disability); Pate v. Skate Country,

Inc., 96-0364, p. 1 (La. App. 4 Cir. 10/9/1996); 682 So.2d 288, 289

(awarding $200,000 for hip fracture); Keyworth v. Southern Baptist

Hospitals, Inc., 524 So.2d 56, 57, 62 (La. Ct. App. 4 Cir. 1988)

(awarding $225,000 for hip fracture resulting in mobility

restriction); Graham v. Offshore Specialty Fabricators, Inc., 090117, p.21 (La. App. 1 Cir. 1/8/10); 37 So.3d 1002, 1019 (awarding

$225,000 for lumbar fusion with severe pain); Bouquet v. WalMart Stores, Inc., 06-1811 p.1-2 (La. App. 1 Cir. 12/21/07); 978

So.2d 447, 453-54 (awarding $200,000 for lumbar injections

and fusion); Matos v. Clarendon Nat. Ins. Co., 00-2814 (La. App.

1 Cir. 2/15/02); 808 So.2d 841 (awarding $265,000 for multilevel

lumbar fusion); Derouen v. Mallard Bay Drilling, L.L.C., 00-1268

p.13 (La. App. 1 Cir. 6/22/01), 808 So.2d 694, 707 (awarding

$300,000 for lumbar fusion with residual disability).

App.31a

cure. Maintenance and cure is the implied right of

the seaman arising from his or her employment relationship with the shipowner and is “independent of

any other source of recovery for the seaman (e.g.,

recovery for Jones Act claims).” Bertram v. Freeport

McMoran, Inc., 35 F.3d 1008, 1013 (5th Cir. 1994).

Thus, whether the seamen or employer was negligent

is not at issue. Brister v. AWI, Inc., 946 F.2d 350, 360

(5th Cir. 1991); Jauch, 470 F.3d at 212. Maintenance

is the seaman’s right to food and lodging and cure is

the seaman’s right to necessary and appropriate

medical services, and both rights extend to the point

at which the seaman reaches MMI. See Breese v. AWI,

Inc., 823 F.2d 100, 104 (5th Cir. 1987) (citing Vaughan

v. Atkinson, 369 U.S. 527, 531 (1962)). Therefore, the

maintenance and cure duty does not extend to treatment which is only palliative in nature and “results

in no betterment in the claimant’s condition.” Rashidi

v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996).

(17) The evidence demonstrates that Marquette

has paid maintenance and cure from the date of

Plaintiff’s injury until the date of trial. The credible

evidence supports the conclusion that the Plaintiff

sustained injuries to his hip and back on August 21,

2015 while working aboard the M/V ST. RITA and

that he was unfit for duty as a result of this injury

from that date until the time he is deemed to have

achieved MMI. The weight of credible evidence indicates

that Plaintiff has not yet reached MMI. However,

Plaintiff will reach MMI three months after he has

the hardware removal procedure. Thus, Defendant

would ordinarily owe additional maintenance from the

date of trial to the date Plaintiff reaches MMI. However,

because the Plaintiff will receive the cost of the meals

App.32a

which were furnished by his employer as part of his

future damages, he is not entitled to any maintenance

payments.

(18) Pre-judgment interest may be awarded in

admiralty cases if appropriate, and the Court finds

that an order of pre-judgment interest is appropriate

in this case. “Prejudgment interest is compensation

allowed by law as additional damages for lost use of

the money due as damages during the lapse of time

between the accrual of the claim and the date of judgment.” Jauch, 470 F.3d at 214-15. However, pre-judgment interest on future damages is not available. Id.

The starting date and rate of interest is left to the sound

discretion of the Court. See Doucet v. Wheless Drilling

Co., 467 F.2d 336, 340 (5th Cir. 1972); Marathon Pipe

Line Co. v. M/V Sea Level II, 806 F.2d 585, 593 (5th

Cir. 1986), reh’g denied, 811 F.2d 602 (1987). The

Court finds that an award of prejudgment interest is

warranted on Plaintiff’s past wages and past pain

and suffering.

(19) On the basis of the above Findings of Facts

and Conclusions of Law, the Court finds that Plaintiff

Kelvin Dunn sustained damages due to Defendant’s

negligence and the unseaworthiness of the vessel.

Therefore, the Plaintiff is entitled to recover the following damages from the Defendants:

(1) Past wage loss: $234,360.00;4

(2) Past fringe benefits and meal loss:

$38,760.88;5

4 Any wage payments Defendant made to Plaintiff since the

date of the accident shall be deducted from this amount.

App.33a

(3) Future wage loss: $1,665,121.00;

(4) Future fringe benefits and meal loss:

$280,041.10;

(5) Past medical expenses: Marquette paid all

past medical bills it received before trial. It

has 60 days to review and remit payment

for the medical bills Plaintiff submitted on

the date of trial.

(6) Future medical expenses: $641,435.89;

(7) Past pain and suffering: $100,000.00;

(8) Future pain and suffering: $400,000.00 and

Total: $3,359,718.87. This amount does not include

deductions for past wages or other benefits Defendant paid Plaintiff after the date of the accident, which

should be deducted.

(20) Additionally, Plaintiff is entitled to pre-judgment interest on the above-mentioned past losses

totaling at the rate of 3% percent per annum from

the date of judicial demand until satisfied. Furthermore,

the Plaintiff is entitled to post-judgment interest at

the federal judicial rate from the date of judgment

until paid.

5 Any payments Defendant made to Plaintiff for fringe benefits,

such as health insurance, 401K contributions, or meal payments

since the date of the accident shall be deducted from this amount.

App.34a

New Orleans, Louisiana, this 6th day of September, 2017

/s/ Eldon E. Fallon

United States District Judge

App.35a

ORDER OF THE FIFTH CIRCUIT DENYING

PETITION FOR REHEARING EN BANC

(JANUARY 15, 2019)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

KELVIN DUNN,

Plaintiff-Appellee,

v.

MARQUETTE TRANSPORTATION

COMPANY, L.L.C.,

Defendant-Appellant.

________________________

No. 17-30889

Appeal from the United States District Court

for the Eastern District of Louisiana

Before: SMITH, BARKSDALE,

and HO, Circuit Judges.

PER CURIAM:

Treating the Petition for Rehearing En Banc as

a Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. No member of the panel nor

judge in regular active service of the court having

requested that the court be polled on Rehearing En

Banc (Fed. R. App. P. and 5th Cir. R. 35), the Petition

for Rehearing En Banc is DENIED.

App.36a

Entered for the Court

/s/ Jerry E. Smith

United States Circuit Judge

App.37a

TRIAL TESTIMONY OF KEVIN DUNN

(JULY 11, 2017)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

________________________

KELVIN DUNN

v.

MARQUETTE TRANSPORTATION

COMPANY, LLC

________________________

Docket No. 16-CV-13545 Section “L”

New Orleans, Louisiana

Before: The Honorable Eldon E. FALLON

United States District Judge

APPEARANCES:

FOR THE PLAINTIFF:

Saunders & Chabert

by: Henri M. Saunders, Esq.

Scotty E. Chabert, Jr., Esq.

Cheyenne Moeller, Esq.

6525 Perkins Road

Baton Rouge, LA 70808

App.38a

FOR THE DEFENDANT:

Scialdone Law Firm

by: John a. Scialdone, Esq.

Anne S. Warren, Esq.

1319 24th Avenue

Post Office Box 4080

Gulfport, Ms 30502

Official Court Reporter:

Karen A. Ibos, CCR, RPR, CRR, RMR

500 Poydras Street, B-275

New Orleans, Louisiana 70130

(504) 589-7776

[July 11, 2017 Transcript, p. 289]

THE COURT: Be seated, please. Let’s call the next

witness.

MR. SAUNDERS: Call Kelvin Dunn to the stand.

THE DEPUTY CLERK: Raise your right hand.

(WHEREUPON, KELVIN DUNN, WAS

SWORN IN AND TESTIFIED AS FOLLOWS:)

THE COURT: You can have a seat.

DIRECT EXAMINATION

BY MR. SAUNDERS:

Q.

Kelvin, why don’t you introduce yourself to the

Court by, again, stating your name and your

address, please.

A.

Kelvin Dunn, 8608 Nottaway Street, Denham

Springs, Louisiana.

App.39a

Q.

And, Kelvin, obviously, we’re here to talk about

your accident. Leading up to that accident—before

that accident, what was your occupation?

A.

I been a deckhand my whole life; worked my way

up to a captain.

Q.

Where did you go to high school?

A.

Franklinton, Louisiana.

THE COURT: Try to speak up so we can all hear you.

THE WITNESS: Franklinton, Louisiana.

BY MR. SAUNDERS:

Q.

And how far did you go in school?

A.

Ninth.

Q.

And after that, what did you do?

A.

I went to get my GED and then I didn’t do that. I

went a few days, I quit, and went on the boats.

Q.

You worked on the water your whole life?

A.

Yes.

Q.

Your father was a boat captain; correct?

A.

Yes.

Q.

What companies did you work for?

A.

Marquette—well, I started with Eckstein, and I

worked for Marquette, but I worked for Crosby

for about three months.

Q.

Other than that three-month period with Crosby,

your entire work life was with—

A.

Eckstein and Marquette.

App.40a

Q.

Okay. Thank you. And at the time of the accident

you were a—

A.

Relief captain.

Q.

You were a relief captain. You had a license?

A.

Yeah.

Q.

And you had your master’s license?

A.

Yes.

Q.

And you had been—you had been a captain for

about how long?

A.

Five years with my master’s.

Q.

All right. Tell me where you—what vessel were

you assigned to, the ST. RITA?

A.

Yes.

Q.

And you would operate that vessel where?

A.

Between Bolivar, Houston, and Corpus Christi,

Freeport.

Q.

And what would you tow?

A.

Sometimes one barge, sometimes three, four

barges, just depends on what Kirby gave us to

push.

Q.

And so Kirby was Marquette’s customer?

A.

Yes.

Q.

And in doing that fleet work, the types of barges

were mostly what?

A.

Nothing but chemical.

Q.

Hazardous chemicals?

A.

Yes, sir. Red flags.

App.41a

Q.

Now, there’s a difference between a chemical barge

that’s loaded and one that’s light; correct?

A.

Yes.

Q.

How does that affect the maneuverability of your

vessel when you’re towing loaded barges as opposed

to light barges?

A.

Well, if you got light barges, they up out of the

water. The wind bothers you; if you got loads,

the current gets you.

Q.

Okay. And if you got loaded barges and you’re

traveling—you’re pushing ahead at, say, five knots,

is it easy to stop that load?

A.

No. Sometimes you might go to fully backing on

it and it take you half a mile to stop it.

Q.

Now, let’s talk about your record with Marquette.

Did you have any disciplinary issues with

Marquette or in your file?

A.

No.

Q.

Were you given random drug tests?

A.

Yes.

Q.

Did you ever fail any of those?

A.

Never.

Q.

After the accident did anybody tell you you failed

a drug or alcohol test?

A.

No, sir.

Q.

Did you ever get written up for any safety

violations?

A.

No.

App.42a

Q.

In that regard, let’s talk about your footwear. In

the wheelhouse when you were on duty, what

would you wear?

A.

My tennis shoes.

Q.

And when you would go out on the deck or go in

the engine room, you also wore your tennis shoes,

didn’t you?

A.

Yes.

Q.

Now, did management come on the boat from time

to time?

A.

Yeah, at least—between ours and Kirby’s, at least

every week.

Q.

And these people saw you in your tennis shoes;

right?

A.

Yes.

Q.

Did they see you in your tennis shoes out on the

deck?

A.

Yes.

Q.

Did anybody ever tell you that you should be

wearing work boots?

A.

They was supposed to come out with a, like,

mandatory, but they never did. They was giving

away vouchers for people to start buying the—

getting steel-toed boots, but they never gave me

mine.

Q.

Did you ever have any problems before the accident

when you were out on the deck with—or in the

engine room with your tennis shoes, did you ever

have any problems with—

App.43a

A.

No.

Q.

—with slipping or anything like that?

A.

No, not at all.

Q.

Let’s talk about the day of the accident. You

were not on watch at the time of the accident;

correct?

A.

No, I was asleep. And then the vibration woke me

up from him backing down on it, Junious Brown.

Q.

And just for us lay people, when you say “backing

down,” that means trying to stop the vessel?

A.

That means trying to stop. And I knew—sounded

like he was in a bind. He is not really an experienced pilot. He is—just got his mate license.

So I go upstairs to see if he’s okay. When I got

up there, he was getting sideways in the current.

Q.

Okay. So—

A.

I told him, Watch out, Jun—well, we call him J.

I said, “Watch out, J. I got it.”

Q.

And you took over the sticks?

A.

I took over the sticks. We was in the process of

getting it back straight, and then they had one

of our company boats offered an assistance. I

said, “Yeah, you come push in on the head and

I’ll work against you and we’ll get over towards

the fleet.”

Q.

So that boat helped you get back in position?

A.

Yes, he was pushing on the head. As he’s pushing

it, I am twisting against him. Junious said, “I got

it from here,” so I stepped outside, was smoking a

cigarette.

App.44a

Q.

You had handed the sticks back to Mr. Brown?

A.

Gave them back to Mr. Brown. Stepped outside,

smoked a cigarette, threw it out. I told him, “I’mma

go down, get ready. I’ll be back.” You know, it

was getting close to five, 4:30, something like

that.

So as I was gonna go down the stairs, that’s

when I hear Corey say there’s diesel spraying in

the engine room.

Q.

And Corey’s one of your deckhands?

A.

Yeah.

Q.

Corey Crespo?

A.

Yes.

Q.

So you hear about diesel spraying in the engine

room, and what do you do in response to that?

A.

I go down in the engine room and see what’s going

on, follow him. By the time I got down, he’s coming

in, too, in the side of the door and I’m coming

through the inside of the boat.

THE COURT: Was your vessel still tied to the barge?

THE WITNESS: Yes, sir.

THE COURT: How many barges?

THE WITNESS: Two barges.

THE COURT: One in top—one in front of the other

or side by side?

THE WITNESS: They were strung out.

MR. SAUNDERS: One in front of the other for the

record.

App.45a

BY MR. SAUNDERS:

Q.

But to be clear, the boat and the barges were

free floating, they were not tied to a fleet or tied

to a dock?

A.

No.

Q.

Just for sake of completeness, you were still

wearing your night clothes because you had

addressed the other situation just prior to this

situation; correct?

A.

Yes, yes.

Q.

And you had your Nike slippers?

A.

Yes.

Q.

They’re some athletic slippers that go over your

foot?

A.

Yeah.

Q.

Were they secure on your feet?

A.

Yes.

Q.

Did you have any trouble with them when going

down to the engine room?

A.

No.

Q.

Did you have any trouble with them when you

were walking across the deck to the engine room?

A.

No. No, sir. They were Jordan slippers. I’ve got

more grip than the boots do really.

Q.

Okay. So you met Corey down at the engine room

door?

A.

Yeah.

Q.

Or had he already gone into the engine room?

App.46a

A.

On the catwalk. And then he was going down

and I was right behind him.

Q.

Okay. So y’all were in the engine room together?

A.

Yeah.

Q.

And it’s very loud in the engine room; correct?

A.

Yes, yes.

Q.

You cannot—it’s very difficult to carry on a

conversation in there; isn’t it?

A.

Yeah. So I was just following him and—

Q.

Was it your impression that he was going down

to try to show you where the leak was coming

from?

A.

Yes, that’s what—

Q.

When you were going down the stairs to the

lower engine room, did you know exactly where

the—

A.

No, I did not know which side.

Q.

—where the leak was coming from?

A.

Which side, I did not know.

THE COURT: Could you see it from the catwalk?

THE WITNESS: No. Because you got your catwalk,

stairs go down, and then you got to come around.

You got your main engines, the generators are

behind the engines. So I couldn’t see them at all.

BY MR. SAUNDERS:

Q.

Just so the Court can get a layout, where are the

generators located as far as that engine room?

What’s the layout?

App.47a

A.

Like I said—

Q.

Talk into the microphone, please.

A.

You come down the stairs of the engine room. You

got maybe eight-foot to the wall. You got your

clutches—your shafts, clutches, generator—I

mean, engines and the generators are in front of

the engines.

THE COURT: Forward of the engine or stern?

THE WITNESS: Forward of the engines.

BY MR. SAUNDERS:

Q.

It’s difficult to see them from the catwalk?

A.

Yes. Yes.

Q.

And so tell us what happened when you went

down to the lower level to go address the situation.

A.

Well, I went down. He turned to the starboard

side, so I went behind him, and I slipped. I’m

talking about so quick I didn’t even have time to

put my hand down.

Q.

Okay. So you slipped and fell right after you made

the turn—made the left turn to go toward the

starboard generator?

A.

Yes, yes.

Q.

And you were following your deckhand?

A.

Yes.

Q.

What happened next?

A.

I was still trying to get up. I was hurting, but I

was still trying to get up, but I knew something

was wrong. So I am trying to tell him, “Crank

the other generator up, kill this one, you know,

App.48a

swap them,” but he couldn’t understand what I was

saying. So then I am telling him, “Go get somebody. Go get somebody.” And that’s when he went

and woke up my leadman.

Q.

Okay. If the testimony shows that Marcus—who

is Marcus?

A.

Marcus was a green guy that just got on the boat

that didn’t know nothing.

Q.

Do you know if Marcus is the one that went and

woke up the leadman?

A.

I am not sure. I was in so much pain. I—and I

am trying to hold myself still on the deck with

my hands is slipping, because every time I moved

it hurt.

Q.

Do you know at that point you had broken

something?

A.

Yeah, I knew something had to be broke.

Q.

Now, who came down and shutdown the generator?

A.

My leadman.

Q.

After that—so he swapped the generators; correct?

A.

Yes.

Q.

And what happened after that?

A.

They got the barges tied off, broke the boat out,

went to the dock, and then an ambulance come and

got me.

THE COURT: How close were you to the generator

when you slipped?

THE WITNESS: Probably here to that computer right

there (INDICATING).

App.49a

THE COURT: Ten feet?

THE WITNESS: Maybe eight.

THE COURT: Eight feet. Could you see the spray

before you slipped?

THE WITNESS: I couldn’t see nothing but my deckhand in front of me. You know, we had, like, this

much room in-between the sewer system and the

main engine (INDICATING).

BY MR. SAUNDERS:

Q.

Does this show the steps that you came down?

A.

Yes.

Q.

And then you took a left and turned the corner

right around here (INDICATING)?

A.

Yes.

Q.

And you fell right around in this area somewhere

(INDICATING)?

A.

Yeah, that’s where I slipped.

Q.

And so, if you look back in the distance here,

that’s the bottom of the starboard generator

(INDICATING)?

A.

Yes.

THE DEPUTY CLERK: Try to talk a little bit louder,

if you can.

BY MR. SAUNDERS:

Q.

Why didn’t you shutdown the emergency fuel

shut off outside the engine room?

A.

If I’d did that with an unexperienced pilot with

two barges, we’d—he was already—that’s why I

App.50a

had to get up, the current was beating him up.

We’d took out the whole fleet.

Q.

You think the current would have caused some

problems if you’d lost propulsion?

A.

No doubt. Anybody that runs that area knows

the water runs hard through Bolivar fleet right

there.

Q.

What was your intention in going down into the

engine room?

A.

Get the other generator running and shut off the

one that was leaking and try to fix it. Or vice

versa. To get it to stop.

Q.

You did consider it an urgent situation?

A.

Yes.

Q.

Did anybody on your crew ask you if they could

shut the emergency fuel shut off outside the engine

room?

A.

No, no.

Q.

Nobody brought that up?

A.

No.

Q.

Junious Brown didn’t bring it up?

A.

No.

Q.

The leadman didn’t bring it up?

A.

No.

Q.

Corey Crespo didn’t bring it up?

A.

No.

Q.

The other deckhand didn’t bring it up?

App.51a

A.

No. You know, I been on several boats that have

leaks, you know, I went down and fixed them. I

didn’t know how bad it was, you know, I went and

fixed it.

Q.

You just went down and dealt with it?

A.

Yeah.

Q.

Are you aware of any Marquette policy or procedure that you should treat a leak as a fire?

A.

No.

Q.

Did anybody ever tell you that you should treat

a spray leak as a fire?

A.

No.

Q.

Are you aware of any Marquette policy that tells

you should not go into the engine room to

address a leak?

A.

No.

Q.

Now, you’ve heard some testimony about your

medical condition of anxiety.

A.

Yes.

Q.

You did seek some treatment in 2013, 2014, 2015

for anxiety; correct?

A.

Yes.

Q.

Who was your doctor?

A.

Rachel Wissner.

Q.

And she prescribed you certain medications; right?

A.

Yes.

Q.

Did you talk to her about those medications?

App.52a

A.

She just told me do not bring them—I couldn’t

bring them on the boat.

Q.

Okay. The one you’re talking about is the Ativan?

A.

Yes.

Q.

And she instructed you not to bring that on the

boat; correct?

A.

Yes.

Q.

And did you follow those instructions?

A.

Yes.

Q.

When you had taken a little time off in 2013 for

the anxiety—

A.

Yes.

Q.

—before you went back on the boat, did you go

see Marquette’s doctor?

A.

Yes. I went to Marquette’s doctor, and I told her

what I been taking.

Q.

And she told you the same thing as Dr. Wissner,

correct, that you—

A.

Well, she gave me a drug test. I told her I haven’t

token them in awhile. I only took them when I

needed them.

Q.

Okay.

A.

And I passed everything and—

Q.

She told you the same thing Dr. Wissner told you,

though, you can’t take the Ativan onto the boat?

A.

Onto the boat.

MR. SCIALDONE: I’m sorry, I don’t mind him leading

some.

App.53a

THE COURT: Yeah, you’re leading, please. I got it.

Let’s not—I sustain the objection. Let’s not lead

your witness.

MR. SAUNDERS: I understand. I am just trying to

keep it moving.

BY MR. SAUNDERS:

Q.

So were you released to return back to work

after that time off—

A.

Yes.

Q.

—in 2013?

A.

Yes.

Q.

And Marquette allowed you go back to work?

A.

Go back to work.

Q.

And you worked consistently—

A.

Yes.

Q.

—operating the vessel?

A.

Yes. Never late. Never missed a day except for a

few—couple of times I had to get off for anxiety.

Q.

And that happened again in 2015 at some point;

correct?

A.

Yes.

Q.

Now, the anxiety, would that happen while you

were at the helm or would that happen when you

were off duty?

A.

Most of the time it was off duty.

Q.

Did you ever have any problems operating the

boat—

App.54a

A.

No.

Q.

—because of anxiety?

A.

No, no. That’s what everybody on the boat used

to trip out. They said, “You got anxiety,” but put

me under pressure, and I’m good.

Q.

Did you have any trouble with anxiety when you

were assisting Junious Brown when he got caught

in the current?

A.

No.

Q.

Did you have any trouble with anxiety when you

were going down the engine room to address the

leak?

A.

No.

Q.

Was it your intention to—had you not had this

accident, did you want to continue your work as

a boat captain?

A.

Oh, yeah, yeah. That’s all I know. That’s all I’ve

ever done, you know, work on boats.

Q.

You enjoyed that job?

A.

Yeah, I love it.

Q.

Did you have plans to do that for the rest of your

work life?

A.

Yes.

Q.

Do you feel that you’re physically capable of

doing that work now?

A.

No.

Q.

Why not?

App.55a

A.

My hip. I can’t go up and down stairs like that;

especially if something happens, I can’t do it.

Q.

When something—when you say, “something,” like

an emergency?

A.

An emergency happens, I got to run down the

stairs or whatever. I can’t do it.

Q.

Let’s talk about your medical treatment. We know

you had emergency surgery in the hospital and

had screws placed in your hip; correct?

A.

Yes.

Q.

Who did you follow-up with when you got back to

Baton Rouge?

A.

I believe it was Dr. Greene.

Q.

If the records show that you saw Dr. Pope before

you saw Dr. Greene, would you disagree with that?

A.

I’m bad with names. It was Pope and Greene. I

know that’s the two I seen.

Q.

Okay. The first one you saw, who selected that

doctor?

A.

Marquette.

Q.

And then the next one you saw, you got a second

opinion with Dr. Greene; correct?

A.

Yes.

Q.

And what did Dr. Greene do for you?

A.

He—that’s the one that ended up giving me shots

in my spine.

Q.

Okay. If the records show that was Dr. Comeaux,

that Dr. Greene referred you to Dr. Comeaux—

App.56a

A.

Yeah.

Q.

—does that sound right?

A.

Yeah, yeah.

Q.

Okay. So Dr. Comeaux gave you shots in your

spine. What did that do for you?

A.

It helped for a little while, a few days, but then

it started back hurting.

Q.

Getting back to the first doctor you saw that

Marquette selected for you, did he ever—did he

ever workup your back or do anything for your

back?

A.

No. And I told him every time I went and seen

him my back was hurting. He gave me an insert

to put in my shoe.

Q.

Now, you also saw Dr. Kevin McCarthy at the

same clinic with Dr. Pope. Do you remember Dr.

McCarthy?

A.

Yes.

Q.

And what’s your understanding of the treatment

that he’s provided for you?

A.

He put me to sleep and he put shots in my spine,

and they last week-and-a-half, a couple of weeks.

Real well. And it slowly comes back.

Q.

Okay. And you’ve recently had the second round

of those injections; correct?

A.

Yes.

Q.

And what did they do for you?

App.57a

A.

They—like, right now, my back it hurts a little

bit, but not as bad, you know, but it’s starting to

wear off.

Q.

Dr. McCarthy has testified that he’s recommending

some procedures called rhizotomies, and I believe

they call it—they might have told you where they

burn the nerves.

A.

Yes.

Q.

Are you willing to have those procedures?

A.

Yes.

Q.

A couple of doctors have talked about removing

the hardware in your hip.

A.

Yes.

Q.

That might help you. Are you ready and willing

to have that surgery?

A.

Yes. No doubt.

Q.

Tell the Court just some of the things that you

would do before you were injured in your leisure

time.

A.

Like, when I was home?

Q.

When you were off duty and you were at home.

A.

I like riding four wheelers, going fishing, going

out in the boat, working on old trucks.

Q.

Do you do any of that now?

A.

No.

Q.

Why not?

A.

I can’t.

Q.

What do you do on a daily basis?

App.58a

A.

Pretty much sit around my house, you know. I

was flooded and my contractor was in jail, so I

do a little bit, whatever I can do here and there

when I am not hurting bad.

Q.

You have some friends helping you with that?

A.

Yes. You know, it ain’t like I pick up sheetrock

and hold it up and screw it, but, you know,

whatever little bit I can do, I do.

THE COURT: Where do you live?

THE WITNESS: Denham Springs.

THE COURT: I’m sorry?

THE WITNESS: Denham Springs.

THE COURT: Who do you live with?

THE WITNESS: Myself.

BY MR. SAUNDERS:

Q.

As far as what you intend to do, if you get better

with this next surgery or at least get some pain

relief, would you like to re-enter the work force?

A.

I’d love to, you know. That’s been my childhood

dream was to work on boats. You know, I love it.

Q.

Do you know what you’re going to try to do as we

sit here today?

A.

If my pain goes away and I can, yeah, I’d love to

go back on the boat.

Q.

What if you can’t?

A.

Well, if I can’t, I don’t know. I don’t know a whole

lot about nothing else.

App.59a

MR. SAUNDERS: Thank you, Kelvin. Please answer

any questions that Mr. Scialdone has for you.

THE COURT: Let me ask you this. Before you went

down, while were you in the wheelhouse and you

were securing that—pushing that barge properly

into place, how far were you from docking the

barge? What were you intending to do? Bring the

barges to, what, the fleet area?

THE WITNESS: Yeah, into the fleet area because he

was crossways.

THE COURT: Yeah.

THE WITNESS: So I got it back straight, and then

one of our other company boats asked on the radio,

“Y’all need a hand?” I said, “Yeah.” So he come

and was pushing. And that’s when Junious says,

“I’ll take over.”

THE COURT: So you got him straightened out?

THE WITNESS: Yeah.

THE COURT: What was your intent? To do what with

the barges?

THE WITNESS: To go into the fleet.

THE COURT: And then do what with them? Just

secure them to the fleet?

THE WITNESS: Yeah, I think we was just dropping

them.

THE COURT: Were you going to go back and pick up

empty barges or what?

THE WITNESS: Yeah. We was dropping and then

gonna be picking up.

App.60a

THE COURT: And how close were you to the fleeting

area?

THE WITNESS: A few hundred feet.

THE COURT: And you were still connected to the

barges?

THE WITNESS: Yes.

THE COURT: All right. Go ahead.

CROSS-EXAMINATION

BY MR. SCIALDONE:

Q.

Good morning, Mr. Dunn. I am John Scialdone.

A.

Good morning.

Q.

I think you and I met when I took your deposition

in Baton Rouge. I would like to turn directly to

the point that Judge Fallon just asked you about.

What was the location of the boat when you got

the report from Corey Crespo that you needed to

go down into the engine room? Well, that you had

a fuel leak?

A.

Yes.

Q.

At that moment, isn’t it true that the—you still

had an assist tug on your side and that you were

being landed in the fleet?

A.

He was pushing us in.

Q.

So at the moment that you got the radio call, you

actually had an assist boat on you and you were

still being landed in the fleet at that point;

correct?

A.

No, we weren’t landing. He was pushing us into

the fleet. No line on us or nothing.

App.61a

Q.

But that was my question, so I want to make sure

it’s clear. I’m looking at your deposition testimony, so I just want to make sure we have a

clear exchange on that.

A.

Yeah.

Q.

And let me read and tell me if this is an accurate

statement. At the time that you were headed down

to the engine room, that they were still in the

process of getting pushed into the fleet?

A.

Yeah, that’s what I just said.

Q.

I know you and I know our—sometimes may know

our answers, but if you’ll just let me make it just

to the end of that question.

A.

Sorry.

Q.

And I promise you I am going to try my best not

to do the same to you.

Just to make sure it came across so the judge

will be able to hear it and just let me make it to

the end of it.

At the time that you got the radio call from Corey

Crespo and that you proceeded down to the engine

room, the location of the ST. RITA and its tow

was that you were still in the process of getting

pushed into the fleet with the other boat; is that

correct?

A.

No.

Q.

Okay. So I’m going to—

A.

Junious Brown had done took the wheel, and I

had stepped outside and smoked a cigarette, and

then stepped back in and told Junious I was going

App.62a

down to get dressed and I’d be back up. That’s

how that happened.

Q.

I understand that that’s what you were doing,

Mr. Dunn. But what I want to make clear is where

the ST. RITA and its tow were in orientation to

the fleet, where they were. And I am asking you

if it’s a correct statement that at that point, that

is at the point that you were leaving to go downstairs to go down to the engine room, that at that

point when I asked you, “Were you landed in the

fleet already?” that your recollection and your

answer today is, “No, they were still in the process

of getting pushed into the fleet with the other

boat”?

A.

Yeah.

Q.

That is accurate?

A.

Yes.

Q.

Okay. So at the time that you were going down

to investigate the spill in the engine room, there

was another Marquette boat assisting the tow

already?

A.

Yes.

Q.

Thank you. So let me turn now and come back

just to make sure so the point is clear. If you had

shut the boat down, the tow boat down completely,

you had another boat already on your side at that

point; didn’t you?

A.

Yeah, with no lines and him on the side, he’d

been useless. He’d had—

App.63a

Q.

But you had another boat right there standing

next to you, didn’t you? And you were very close

to the—

A.

He was—

Q.

And you were—

A.

Proceed—as he was pushing ahead, we was

twisting against him to go into the fleet.

Q.

Okay. But you were next to the fleet and you

had an assist boat?

A.

Yes.

Q.

So let me take you now—I want to talk to you a

little bit about your background, what it took.

Your process of becoming a captain didn’t happen

overnight, did it? That took years of work on

your behalf?

A.

No. I spent 14 years on the deck.

Q.

So the first thing you had to do was learn to be a

deckhand trainee; correct?

A.

Yeah.

Q.

Then after that you had to learn skills and

advance to a senior deckhand?

A.

Yes.

Q.

And then up to leadman?

A.

Yeah.

Q.

And then on to mate; correct?

A.

Well, when I started everybody was just

deckhands. They didn’t have mates and second

mates and all of that.

App.64a

Q.

But you made it to a senior deckhand position?

A.

Yeah.

Q.

And you did that by gradually learning your

skills?

A.

Yes.

Q.

And I take it, as you entered into a steersman

program eventually, it was because you also did

a good job of mentoring other deckhands and

teaching; right?

A.

Yes. Well, people still brag on me decking and I

been off the deck ten years.

Q.

So you had—and that was something you were

good at was learning—

A.

I was proud of.

Q.

Absolutely. So you were able to not only learn

the procedures on deck and the operation of the

boat yourself, but you were good at teaching other

people?

A.

Yes.

Q.

And that’s part of the reason that you advanced

on to the steersman program; correct?

A.

Yes.

Q.

Now, to do that, you had to take tests with the

United States Coast Guard, written tests; right?

A.

Yes.

Q.

You had to learn the rules of the road?

A.

Yes.

Q.

You had to learn navigational function?

App.65a

A.

Yes.

Q.

Learn how to use radios?

A.

Yes.

Q.

Plot a radar course?

A.

Yes.

Q.

Okay. You had to learn safety rules and procedures

as well of the vessels; correct?

A.

Yes.

Q.

Those were all written materials; right?

A.

Yes.

Q.

And you had to learn to organize those materials

into weekly presentations for the crew; correct?

A.

Yes.

Q.

You had to learn to hold safety meetings?

A.

Yes.

Q.

You had to learn to manage drills?

A.

Yes.

Q.

As a captain, you ultimately—as you move from

a steersman to becoming a pilot, you ultimately

started to fall into a management role aboard

the vessel; right?

A.

Yes.

Q.

And you know that as you advanced to becoming

a captain that you were the final point of authority

on that vessel, at least when you were on board

it and you were running it; correct?

A.

Yes.

App.66a

Q.

Do you have the final authority over the deckhands?

A.

Yes.

Q.

As well as the authority over your pilot?

A.

Yes.

Q.

You were the one, at that point, as you started to

continue functioning as the captain, you knew of

your responsibilities to enforce safety rules

aboard the vessel?

A.

Yes.

Q.

As part of your work as a captain, you also had

to engage in a certain amount of recordkeeping

such as the deck logs; right?

A.

Yes.

Q.

Also, the vessel had to maintain engine room logs

so that the deck crew had to coordinate going and

making readings aboard the vessel and keeping

those logs on a regular basis; correct?

A.

Yes.

Q.

Then those logs, the deck logs, the engine logs,

you had to coordinate getting that information

back to a home office; right?

A.

Yes.

Q.

Part of working as a captain you also had to understand logistics. You had to be able to participate

in knowing when to pick up a barge and when to

drop it off?

A.

Yes.

App.67a

Q.

Sometimes you also had to make decisions about

how you built your tow—

A.

Yes.

Q.

—so that you would drop a barge off knowing

where to put a barge depending on which barge

would be dropped off first in your voyage; right?

A.

Yes.

Q.

So you engaged in I think what we would call

logistics management, and so you knew that you

would plan the orientation of your tow based on

which destination was coming first and which

barges you’d drop off—

A.

Yes.

Q.

Depending on how—

A.

Yes.

Q.

Okay. And you would maintain records of that

kind of work and you would exchange those records

with the traffic department of the company?

A.

We had a Kirby computer and a Marquette

computer.

Q.

Right. So you would have a customer as well as

the boat operator; right?

A.

Yes.

Q.

You were hauling barges for somebody else;

right?

A.

Yes.

Q.

That’s the whole business you’re engaged in?

A.

Yes.

App.68a

Q.

I think they call it being a power provider; right?

A.

Yes.

Q.

If somebody had barges that needed to be moved,

so you had to coordinate two things in that job;

you had to be able to coordinate both the physical

operation, the plant operation of the vessel, and

at the same time you had to successfully coordinate

with a customer who needed to tell you where their

cargos needed to be dropped off; right?

A.

Yes.

Q.

You were doing all of this with red flag barges,

which are serious cargo; correct?

A.

Yes.

Q.

And you understood the value of the cargos you

were handling—

A.

Yes.

Q.

—and the risks?

A.

Yes.

Q.

And those were all things that you had the

management skills to be able to handle properly;

right?

A.

Yes.

Q.

You never had an action against your Coast Guard

license?

A.

Yes.

Q.

So you would agree with me, the mere fact that

you fractured your hip, that hasn’t taken away

what you have up here, has it? You still have the

App.69a

mental capability of doing all of those things;

right?

A.

Yes.

Q.

Okay. If you had to go to another job, you

haven’t lost your intellect. You haven’t lost that,

have you?

A.

No. Like the Kirby computer—Marquette computer

ain’t too hard. The Kirby computer, the captain

that was teaching me how, he cussed and slung.

It took a long time to learn that but I learned it.

Q.

You learned it. The point I am making, it’s kind

of an optimistic—it’s a complimentary point and

an optimistic point. I understand, sir, that you

fractured your hip and everybody is sorry that

happened. But you didn’t sustain a head injury.

You still have your mental capabilities, don’t

you?

A.

Yeah.

Q.

And you still have the ability, with all of that

management skill you learned being a captain,

you can bring that to bear at another job; right?

A.

Yes.

MR. SAUNDERS: I think that’s argumentative, your

Honor.

THE COURT: He is under cross. If he wants to keep

saying, “Yes,” that’s fine.

THE WITNESS: If I can lose the pain in my hip and

my back, yeah.

App.70a

BY MR. SCIALDONE:

Q.

Okay. Let me make a distinction there. If you—

or if your back and your hip stops hurting, you

have no concerns whatsoever going back out and

working as a captain; right?

A.

If I can’t do it, I can’t do it. I got five steps on

front my house, and when I walk up them five

steps, I got to stop and almost sit down.

Q.

I completely understand that, Captain Dunn, and

I am not suggesting otherwise. My question to you

was: If you were pain free in your hip and your

back, you would have no concerns today of going

back?

A.

Yeah, I would have no concern with going back.

I’d love to.

Q.

And the injury that you sustained to your hip

hasn’t affected your mental abilities or your

management skills. You can still bring those skills

to bear at a different job that didn’t involve

climbing stairs; right?

A.

Yeah.

Q.

True. Now, you’ve been an artist all your life,

haven’t you?

A.

Yeah, I like to draw.

Q.

You love to draw. You’ve done that since high

school; right?

A.

Yeah.

Q.

If I remember right. And you love tattoos, don’t

you?

A.

Yeah.

App.71a

Q.

And I know you have a number of them yourself.

Some of those you’ve designed yourself; right?

A.

Yes.

Q.

Those are things that were meaningful to you,

usually, of some important event in your life;

right?

A.

Yes. Yes.

Q.

And you would commemorate it by designing a

tattoo and having it put on your body; right?

A.

Yes.

Q.

So becoming a tattoo artist is something, as a

personal endeavor, you would like to do, wouldn’t

you?

A.

Yes. Takes practice, though. Drawing and tattooing, it’s different. I’d have to practice for awhile.

Q.

It’s another skill set, but you’re already a good

artist, aren’t you?

A.

Yeah, yeah.

Q.

Okay. And you would agree with me probably

when you got your first tattoo in your life it was

something that maybe only a few people did, but

today it’s much more common out there; right?

A.

Yeah.

Q.

It’s a pretty decedent business today. You see

tattoo parlors all over the place.

A.

Right, all over.

Q.

You don’t doubt that you have the management

skills. I mean, if you were able to work as a

App.72a

captain, don’t you think you have the management

skills to run a tattoo parlor; don’t you?

MR. SAUNDERS: Your Honor, I am going to object

to that question. Again, that’s something that

the vocational rehabilitation experts can testify

to. This man has never run his own business.

THE COURT: I understand. He can also testify as to

his interests.

THE WITNESS: I can run a tattoo parlor. As far as,

like, financial part, I’d be lost.

BY MR. SCIALDONE:

Q.

You would have somebody do that for you?

A.

Yeah, yeah.

Q.

Today your mom runs your finances—

A.

Because I’ve always worked and my woman paid

the bills, you know. I brought home the bacon.

She fried it.

Q.

That’s been your entire life?

A.

My entire life.

Q.

If it wasn’t your girlfriend running your finances,

your mom would do it for you?

A.

Yeah, yeah.

Q.

And you new if you went on to have your own

tattoo parlor, you would just have somebody keep

your books for you; right?

A.

Yeah. But my momma, she ain’t—wouldn’t be able

to do that.

App.73a

Q.

So let me go back. Let’s talk a little bit about

your authority on board the vessel. I think these

are points that you and I will agree on.

The time that the fuel leak was reported by Mr.

Crespo, if you wanted, you had—at that moment,

you were the senior most officer on the boat. You

had authority over the remaining crew; correct?

A.

I had the what?

Q.

You had the authority over all of the rest of the

crew?

A.

Yeah.

Q.

If you wanted to, you had the authority to stay

on the bridge and direct the response from there,

if you wanted to?

A.

Yeah.

Q.

Okay. And if you didn’t—

A.

But—

Q.

If you didn’t have on the proper protective gear,

you could have stayed on the bridge and done the

same job that—same job that the pilot was doing

and have the pilot or leadman respond to this.

All I am asking you about is authority. If you

wanted to you, you had the authority to do this?

A.

Yes.

Q.

And you certainly had the skill set to stay on the

bridge and run the bridge if you wanted, you had

the highest skill sets on the boat; right?

A.

Yes.

App.74a

Q.

Okay.

A.

I don’t know any captain that would have stayed

up there and did that, though. Every captain I

know would have did the same thing.

Q.

I understand. You believe you did the right

thing, and my question, is it right—I think that’s

what you believe and I understand that. But my

question to you is simply whether you had the

authority to stay on the bridge and whether you

had the skill set to stay on the bridge and run

the radio and continue to operate the vessel, and

I believe you’re agreeing with me on that?

A.

Yeah. But—

Q.

Before you left the bridge—just to make sure. I

think we covered this. But before you left the

bridge and after you received a report from Corey

Crespo of spraying fuel, did you sound the general

alarm?

A.

Junious was back at the wheel. I was headed

down the stairs and I heard on the radio.

Q.

Okay. Did you ask Junious to sound the general

alarm?

A.

I didn’t ask nothing. I just went to the engine

room where the trouble was.

Q.

Did you attempt to marshal the crew into one

location?

A.

No. I was going to fix the situation.

Q.

I understand. Did you stop to assess what protective gear you may need to put on before you

entered the engine room?

App.75a

A.

No.

Q.

I know you said you had your slippers on, so I

think it’s obvious you also didn’t stop to change

your shoes, did you?

A.

I got a fuel leak in the engine room. My only

concern is getting down there and fixing it.

Q.

Is fixing it—

A.

Stopping it.

Q.

—as quickly as you could.

You made some comments to the Court earlier

about whether or not other people may have seen

you in the past wearing your tennis shoes on deck;

right?

A.

Yeah, on the boat. I don’t go out on the deck.

Q.

So just to make sure I am clear about that.

Would you ever let one of your deckhands work

out on a barge or on the deck—

A.

No, no, no, no. Not at all.

Q.

You wouldn’t let them wear their tennis shoes;

would you?

A.

Not on the deck.

Q.

Okay. Would you ever let your deckhands go in

the engine room wearing their tennis shoes?

A.

Yes. Company policy is they on watch, they wear

steel toes.

Q.

Okay. So you understand that that’s what’s

required?

A.

Yeah.

App.76a

Q.

I just want to make sure that’s clear.

A.

Yeah.

Q.

The fact that you were wearing your tennis

shoes, it doesn’t mean that you would permit any

other crew members to do that, would you?

A.

Well, it’s not company policy for me to wear steel

toes in the wheelhouse.

Q.

But more than it not being—in addition to it not

being company policy, what I want to make clear

is that you would know not to let one of your

deckhands wear tennis shoes out on deck or in

the engine room? You would know that anyway,

wouldn’t you?

A.

Well, if they off watch and in the boat, they can

wear tennis shoes.

Q.

Right.

A.

As long as they ain’t out on the barges, building

tow. Yeah.

Q.

And you would know that regardless of whether

somebody from management or an auditor coming

on the boat told you that. I mean, that’s something

you’ve done your whole life. You’ve enforced that

rule your whole life; haven’t you?

A.

Yeah.

Q.

So let me go back and talk to you for a moment

about any anxiety issues. Anxiety in one form or

another has been something you’ve dealt with most

of your life; true?

A.

My whole life.

App.77a

Q.

This isn’t new. You would agree with me that for

most of your marine career, the real impact on

you was—had to do with transportation. You didn’t

like flying?

A.

No, I hate flying.

Q.

You hate flying?

A.

Yes.

Q.

And you made that clear to the company?

A.

Yes.

Q.

And the company helped you with that; right?

A.

Yes.

Q.

You did not want to obtain a driver’s license as

well?

A.

No.

Q.

You had the ability to get a driver’s license, but

you’ve chosen not to get one?

A.

Yes.

Q.

And you agree driving is something that heightens

your anxiety?

A.

Yes. I was in a bad car wreck in ’98 and don’t

want to drive no more.

Q.

Okay. That experience changed your desire to

want to drive again?

A.

(WITNESS NODS HEAD IN THE AFFIRMATIVE.)

Q.

The anxiety that you have, though, predated

that car accident; right? As we said, that’s been

a lifelong issue for you.

App.78a

As we got into 2013, you agree with me that you

started to sustain anxiety, not just in transportation, but you were starting to have anxiety on

board the boat; right?

A.

Yes.

Q.

And you agree with me that as you entered the

bridge and you started to work as a captain you

found that also to be stressful?

A.

Yes.

Q.

And that stress was—

A.

It kind of kicked up my nerves a little bit when I

first started by myself. But that went away.

Q.

And part of that is what would trigger some of

the anxiety or panic attacks that you were having;

right?

A.

No. You could ask anybody that works with me.

Put me in a bind, a bad situation, and I am cool

as a cucumber.

Q.

But being on board the vessel was causing you

stress and becoming a captain was causing you

stress, and that was having an impact on your

anxiety. Just going off of what we talked about

in your deposition.

A.

I am saying when I first started, yeah, my

anxiety was through the roof. I was up there by

myself. I am used to having somebody up there

telling me what to do. But the more experience I

got, the more—finally all of that went away.

Q.

Okay. By 2013, you took a six-month leave from

working on board a vessel, didn’t you?

App.79a

A.

Yeah. Sometime—I be just sitting there not doing

nothing and the anxiety will kick in.

Q.

Okay. So just being on board the vessel was

causing you to have anxiety even though the

anxiety related to becoming—of the captain—

A.

I have them at home, too.

Q.

—wasn’t bothering you?

A.

I have them at home, also.

Q.

And do you get it at home as well?

A.

I’ve had them since I was a kid.

Q.

Okay. So the anxiety or the panic attacks started

happening while you were on board the vessel?

A.

No. I’ve had them since I was a kid before I ever

even went on boats.

Q.

I understand that. Let me clear up my question

because I could have said that better.

As you came into 2013, you started to experience

anxiety and panic attacks while you were on the

vessel?

A.

Yes.

Q.

And by June, July of 2013, you made the decision

that you needed to come off the vessel?

A.

Yes. If I had anxiety attacks, I would call the

office and get off.

Q.

Okay. And you took six months off?

A.

Yes.

Q.

During that time you were treating with Dr.

Wissner?

App.80a

A.

Yes.

Q.

And Dr. Wissner was working with you with

various medications to see what might work; right?

A.

Yes.

Q.

At some point Dr. Wissner recommended Ativan

to you?

A.

Yes.

Q.

And Ativan turned out to be one of the medications

that was effective?

A.

Yes. She gave me—

THE COURT: You’re going to have to speak in the

microphone or we’re not going to get this.

THE WITNESS: She gave me ten of them.

THE COURT: You can move it closer to you, sir.

THE WITNESS: She gave me ten of them, ten or 15,

something like that. And she told me if I go back

on the boat, do not take them. And I never did.

BY MR. SCIALDONE:

Q.

So that was the medication that was prescribed

to you and still prescribed to you today; right?

A.

No, I don’t take them today.

Q.

When is the last time you had a prescription for

Ativan?

A.

Well, I’ve—I think I still got two from whenever

the last time I got them filled.

Q.

Okay. So you haven’t had a need to refill them?

A.

Yeah, just every now—I only take them if needed.

App.81a

Q.

If needed, okay. It’s an effective medication for

you, yes?

A.

Is it what?

Q.

It’s an effective medication. It works; right?

A.

Yes.

Q.

But it’s—you understand that even though it’s

effective, it’s a medication you cannot take if

you’re going to work on vessels—while you’re

working on vessels?

A.

And I did not take them on the vessel.

Q.

And you understand that it’s not allowed; right?

A.

Yes. I think it was, like, the last three times I

went on the boat before—before this, they gave

me drug tests the last three times, and I passed

every one.

Q.

Do you know what those drug tests are for, what

the panel—what they’re screening for?

A.

Kirby drug test is all I know.

Q.

Okay. And you agree with me that you took a

second leave in 2015 for about three months; right?

Correct?

A.

Something like that I guess, yeah.

Q.

And before you took that leave in 2015, you

actually had to leave the boat and go to the

emergency room in Texas?

A.

That was—yes.

Q.

And then when you came back to the boat in

August of 2015, that was your first hitch back

when we had this incident?

App.82a

A.

Yes.

Q.

Let’s move and talk a few things about this—

about safety program. I think you heard Byron

Thompson go through the parameters of the safety

calendar and the topics and what are on there. I

take it, though, that was all something you were

familiar with. You had seen that over your four

years as a captain, hadn’t you?

A.

Yes.

Q.

Now the—and I believe you told me earlier that

you agree when you were on board the vessel as

the captain, you were also the one who was

running the 15-minute huddles and running the

safety meetings—

A.

Usually my mate did that.

Q.

But you were in charge of them?

A.

Yeah. But I sit there and run the boat and he

would do the huddle.

Q.

You agree with me that situational awareness is

an important component for safety aboard a vessel

for any job that you go do?

A.

I didn’t hear that.

Q.

Do you agree with me that maintaining situational

awareness is an important safety responsibility

for any job you do on board the vessel?

A.

Yes.

Q.

You agree with me that monitoring and knowing

environmental hazards that are around you is a

critical part of working on a tow boat?

A.

Yes.

App.83a

Q.

And you agree with me that using the proper

personal protective gear is a critical part of

working on a tow boat?

A.

Yes. But at the time I did not have time to go

put on boots, shoes, whatever.

Q.

I know. I understand why you did what you did.

Some of these questions I am giving you are to

make sure you and I agree on the same points.

A.

Yes.

Q.

You understand the importance of drills with the

crew in order to teach routine?

A.

Oh, yes.

Q.

And that’s to teach routine behavior?

A.

Yes.

Q.

Even under a stressful situation?

A.

Yes.

Q.

You appreciate and know that diesel fuel is a

very real slip hazard and always has been?

A.

Yes.

Q.

You understand also that diesel fuel is combustible—

A.

Yes.

Q.

—and that it can create a fire risk?

A.

Yes. That’s why I needed to get down there and

stop it.

Q.

And when you left the bridge and you were going

to the engine room, you knew that you had spraying diesel fuel already. That was what had been

App.84a

reported by Corey Crespo. You knew that before

you got there?

A.

Yeah, I knew diesel was leaking.

Q.

And you specifically knew from what Corey Crespo

told you over the radio that diesel fuel was

spraying?

A.

Spraying or leaking. I knew I was going down

there to try to stop it.

Q.

You appreciated the fact that what you were

responding to was a very real fire hazard. You

knew that was a fire risk before you got there?

A.

Yeah, that’s why I was trying to get there to stop

it.

Q.

That was the whole reason that you were responding quickly is because you were worried

that you could have a fire at any moment?

A.

I wasn’t thinking about fire. I was actually just

thinking about stopping the leak.

Q.

But didn’t you have a concern that the whole thing

could blow? Referring, again, to your deposition

when you and I spoke earlier. You had a concern

that the whole thing could blow or it could catch

a fire at any point?

A.

Yeah, it was blowing onto the turbos they said. I

didn’t know that at the time.

Q.

And so you’re well aware of the fire triangle, the

three elements of the fire that are important to

know?

A.

Yes, yes.

App.85a

Q.

So if it was blowing—if fuel was blowing onto

the turbo, you appreciated that you had both fuel

and heat at the same time; right?

A.

Yes.

Q.

And that’s why you would be very concerned of a

fire risk?

A.

Yes.

Q.

And so the only reason that you were going into

the lower engine room was for the purpose of

stopping the fuel from spraying; right?

A.

Yes. Shut down the generator, get the other one

going, kill the fuel without losing my engines.

Q.

So if you also wanted to maintain electrical

power on board the vessel—

THE COURT: We have to do something. Either get

Steve or something. I don’t know what to do.

THE DEPUTY CLERK: I don’t know, Judge.

THE COURT: Could you move it closer? If you speak

over it, it’s better.

THE WITNESS: How is this? Hello?

MR. SCIALDONE: You let me know. Are you having

trouble hearing?

THE COURT: We have to get it down, otherwise it’s . . .

THE WITNESS: How about this?

THE COURT: We’ll just do what we can, Dean.

THE DEPUTY CLERK: He can’t do anything.

THE COURT: Let’s go with it. Turn it on as loud as

you can. Go ahead.

App.86a

MR. SCIALDONE: So what we need to do, Mr. Dunn,

is just kind of pretend that microphone isn’t there.

THE WITNESS: All right.

MR. SCIALDONE: And just try to speak in a little

bit of a louder voice. They’re just having trouble

hearing you.

THE COURT: Just make sure this lady right over

there hears you. That’s the most important person

here.

MR. SCIALDONE: So if you speak directly to her.

THE WITNESS: All right.

MR. SCIALDONE: And I will tell you what I will do.

I’m going to stand off here to the side. If you can

hear my voice when I speak to you and I can hear

your voice, I’m pretty sure she can hear us in

between the two of us.

THE WITNESS: Okay.

MR. SCIALDONE: Your microphone just isn’t picking

up that well.

BY MR. SCIALDONE:

Q.

The last thing I was saying to you was that the

reason that you went into the lower engine room

was because you wanted to stop the spray of diesel

fuel?

A.

Yes.

Q.

You also wanted to make—your intent was to

maintain electrical power at the same time. You

didn’t want to shut the boat down; correct?

App.87a

A.

No, I did not want to shut the engines down.

Period.

Q.

And the only way for you to maintain electrical

power on the boat was if you also started the

port engine generator?

A.

That was my plan.

Q.

And you agree with me that that was your plan

when you went there was to first—I promise I am

going to try not to talk over you. Let me get the

question out. It will be easier on the court reporter.

So your plan was to first start the port generator,

then switch the electricity over to it? Yes?

A.

(WITNESS NODS HEAD IN THE AFFIRMATIVE.) Yes.

Q.

And then after that, you were going to shut off

the starboard generator?

A.

Shut off the fuel.

Q.

Okay. And the reason you were going to do it in

that order was because if you first turned off the

starboard generator, you were going to at least

temporarily lose electrical power aboard the vessel?

A.

Well, we have battery lights that kick on when

the generators are off, so.

Q.

But—

A.

I’d still been able to see. Whatever one I got to

first, I was going to shut off, crank the other one,

you know.

App.88a

Q.

The fuel that was spraying, it was spraying from

the starboard generator onto the front of the

starboard engine; correct?

A.

Yes.

Q.

The other side of the stairway, the port engine

and the port generator, it didn’t have diesel fuel

on it, did it?

A.

I did not know what side was leaking.

Q.

So when you turned to the bottom of the stairway—

A.

—as soon as I hit the diesel, I fell.

Q.

But when you turned—you actually turned and

you were facing the starboard generator when you

fell; right?

A.

I was following Corey.

Q.

You were following Corey Crespo. Now, Corey

Crespo was a deckhand with, what, six months or

so experience but fairly young guy; right?

A.

Six, seven, eight months, something like that.

Q.

You agree with me that, obviously, he was the

junior-most member aboard the vessel and you

were the senior-most member aboard the vessel

on that day?

A.

Yes.

Q.

Yes?

A.

Yes.

App.89a

Q.

When Corey was going forward, he was actually

having diesel fuel spraying him and hitting him

in the chest, wasn’t he? I believe that’s what you

recalled was diesel fuel was spraying forward

and actually physically hitting him.

A.

I remember him slipping and me falling at the

same time.

Q.

Okay. You heard earlier from your liability expert that there was a point where Corey Crespo

stood and blocked the diesel spray from hitting

you?

A.

Yes.

Q.

And you recall that happening, don’t you?

A.

I was hurting so bad I don’t recall nothing really.

My hip was spun in front of me. My only thing I

was thinking my hands kept slipping and I was

trying to hold myself up without them slipping.

Q.

Okay. But you know that Corey Crespo was there

and Corey Crespo got diesel fuel sprayed on him?

A.

Yes. And I remember telling him go get the lead

guy. At first I was telling him to crank the other

generator, but he couldn’t understand what I was

saying because it’s so loud.

Q.

All right. So it was difficult for you to communicate

what you wanted him to do because you were both

in an environment that had a lot of noise in it?

A.

Yes, sir. So then I said, “Go get the leadman.”

App.90a

MR. SAUNDERS: Excuse me. Let’s pull that away

from your body. Your sleeve is causing some interference.

THE COURT: Thank you. Go ahead.

BY MR. SCIALDONE:

Q.

But to make sure that you and I are abundantly

clear on this point. At the time that you had

fallen in the engine room, Corey Crespo was also

having diesel fuel sprayed directly on him?

A.

I had it spraying on me after he moved.

Q.

So the both of you were both in the engine room

and you both had diesel fuel on your bodies—

A.

Yes.

Q.

—at the same time that the starboard generator

was running and at the same time the boat’s main

engines were running?

A.

Yes.

Q.

Do you agree with me that that was a highly

risky situation for the both of you, don’t you?

A.

Yes. But it was risky for everybody around there

if I’d lost the power on my engines and hit a

barge and had an explosion.

Q.

At the same time—

A.

It’d been a chain reaction.

Q.

At the same time you were sitting in a fleet and

you had an assist boat with you; correct?

A.

I was not sitting in a fleet. We was not tied off.

Had an assist boat that was not tied off to us.

App.91a

Q.

But you were not in any imminent danger of a

collision at that moment, were you?

A.

Yes, we was.

Q.

You’re saying that while you were trying to

land—

A.

It don’t matter if we only doing half-a-mile an

hour. We got two big barges. You hit, it’s going

to rip the whole fleet loose.

Q.

So you believed at that moment that you were at

a risk of collision when you left the bridge?

A.

He said he got it. So I said, “All right. I’m going

downstairs to get ready to come on watch.” I didn’t

know that all of this other stuff was going to

happen.

As I started to go down, that’s when he said,

“There’s diesel spraying in the engine room.”

So I said, “I’ll go check it out.”

Q.

So before you entered the engine room, did you

have any other communications with the bridge

to understand what was the orientation of the

boat or what was happening with the assist boat

that was already on your barge?

A.

No. I am going down to take the fuel leak.

Q.

Before you entered the engine room, and I think

this is abundantly clear, you knew there was a

fuel leak and you knew it was a slip hazard?

A.

Yeah.

Q.

And you knew it was a fire hazard before you

went down there?

App.92a

A.

Them decks are slick anyway on that boat. There’s

no nonskid.

Q.

I’m sorry?

A.

No nonskid on the deck of that boat in the engine

room.

Q.

There was raised diamond plating there, wasn’t

there?

A.

It’s still supposed to be nonskid.

Q.

Did you ever fill out a report requesting—are you

aware of any report to the engineering department

that ever requested a change of the stairs or the

diamond plate?

A.

No. Not sure. Maybe the head captain.

Q.

Now, did any other crew member get injured on

this diesel fuel? Did any other crew member fall?

Did any other crew members fall and injure themselves?

A.

No.

Q.

Same thing with the paramedics. They were able

to come in and get you out without falling?

A.

Yes.

Q.

Same thing for Junious Brown?

A.

Yeah. By the end, they had done shut off the fuel

and was wiping up all of the diesel.

Q.

But nobody else fell on this fuel other than yourself?

A.

Yes.

App.93a

Q.

You were evacuated from the boat after they

landed in the fleet. Said it took about 20 minutes

for the paramedics to come and get you.

A.

Yes.

Q.

And since that time you’ve been provided with

consistent constant medical care?

A.

Yes.

Q.

Marquette paid you advances as well. They advanced you about another $15,000 over the top of

what they paid you in maintenance?

A.

Yeah, they paid me my regular pay at first.

Q.

Okay. And even from the time of the accident

through to today, you’ve received $35 a day as a

maintenance payment from them continuously;

right?

A.

Yes.

MR. SCIALDONE: If you give me just one moment,

Mr. Dunn, I am going to check my notes. I stepped

away from my notes to talk.

THE COURT: Sure, I understand. I appreciate it.

MR. SCIALDONE: If you give me just a moment.

THE COURT: Yeah, take your time.

BY MR. SCIALDONE:

Q.

Mr. Dunn, you’d agree with me that the diesel fuel

that was spraying off the starboard engine—off

the starboard generator was also likely entering

the bilge of the vessel; wasn’t it?

App.94a

A.

Yes.

Q.

And you agree with me that a bilge fire—potential

for a bilge fire presents its own unique risk—

A.

As long as it was going in the bilge, I wasn’t

worried about a fire.

Q.

But if the diesel were to catch fire from another

source, such as from the turbo chargers, you understand that a bilge fire, if it had been spread to the

bilge, that has its own particular risk—

A.

Yes.

Q.

—because that can spread much more quickly as

the oil spreads out across the water?

A.

Everything on a tow vessel is a risk. Just driving

down the canal is a risk. You know, making a

bridge is a risk. It’s all risk. You know, you can

lose steering at any time, which I have had that

happen several times.

Q.

You agree with me that there’s a 12-volt back-up

power system that’s available for maintaining

emergency lighting and radios in the event—

A.

Yes.

Q.

—that you do shut down the generators; correct?

A.

Yes.

MR. SCIALDONE: That’s all the questions I have.

THE COURT: Any redirect? Let’s see if we can finish

before we take a break for lunch.

MR. SAUNDERS: Sure. Just a few.

THE COURT: Okay.

App.95a

REDIRECT EXAMINATION

BY MR. SAUNDERS:

Q.

Kelvin, are you aware of any captains that worked

on the ST. RITA, are you aware of any of them

wearing steel-toed boots in the wheelhouse?

A.

No. No.

Q.

Including Mr. Brown?

A.

No. None of them wore them.

Q.

So what did Junious Brown wear in the wheelhouse? What kind of shoes?

A.

Nikes.

Q.

Okay. He would have had to wear those if he

would have gone and checked on the engine room

to check on the leak; correct?

A.

Yeah.

Q.

And you don’t—when you are captaining a boat,

I know you have different duties, but you don’t

do what the deckhands do; right?

A.

No.

Q.

You don’t engage in operations where there’s a

risk of crushing your toes?

A.

No.

Q.

Just to be clear for the Court. When you have an

assist vessel that’s not tied to you, can that

vessel control your tug and the load?

A.

No, cannot.

THE COURT: Where was the assist vessel, on the lead

barge or on the second barge?

App.96a

THE WITNESS: The lead barge.

THE COURT: Were you underway at the time?

THE WITNESS: He was pushing the tow in like this,

and as he was pushing, we was prying against him

to work, you know—

THE COURT: Straighten it up.

THE WITNESS: Straighten it up and to go in sideways.

BY MR. SAUNDERS:

Q.

So in order to control those two loaded barges, at

that moment you needed two vessels?

A.

Yeah. To shut mine down, yeah, I needed two

vessels.

Q.

Is there any way possible that if the ST. RITA

lost power that an assist vessel up near the front

barge could have controlled those three vessels?

A.

No.

Q.

And what’s—if you know, when those barges are

loaded with chemicals, what’s the weight of those

barges?

A.

With the—

THE COURT: You don’t know the weight. What’s the

draft of them?

THE WITNESS: Ten foot, 54-foot wide, 300-foot long,

295.

MR. SAUNDERS: Thank you, Kelvin. That’s all I have.

THE COURT: Okay. We’ll take a lunch break here and

we’ll come back at one o’clock. The Court will

stand in recess until one. Thank you very much.

App.97a

(WHEREUPON, A LUNCH RECESS WAS TAKEN.)

PROCEEDINGS

(AFTERNOON SESSION)

(OPEN COURT.)

App.98a

ORAL DEPOSITION OF JUNIOUS BROWN

(JANUARY 26, 2017)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

________________________

KELVIN DUNN

v.

MARQUETTE TRANSPORTATION

COMPANY, LLC

________________________

Civil Action No: 16-13545 L(5)

Before: Michael NORTH, Magistrate,

Eldon E. FALLON, United States District Judge

ORAL DEPOSITION OF JUNIOUS BROWN,

produced as a witness at the instance of the Plaintiff,

and duly sworn, was taken in the above-styled and

numbered cause on January 26, 2017, from 11:54

a.m. to 12:25 p.m., before Jo Ann Kelley, CSR in and

for the State of Texas, reporting by machine shorthand,

at the offices of Marquette Corporate Office, 223 N.

10th Street, La Porte, Texas, pursuant to the Federal

Rules of Civil Procedure and the provisions stated on

the record or attached hereto.

[...]

App.99a

APPEARANCES

FOR THE PLAINTIFF:

Mr. Henri M. Saunders

SAUNDERS & CHABERT

6525 Perkins Road

Baton Rouge, Louisiana 7 0 808

Phone: 225-771-8100 - Fax: 225-771-8101

E-Mail: hsaunders@saunderschabert.com

FOR THE DEFENDANT:

Mr. John A. Scialdone

SCIALDONE LAW FIRM

25 0 5 14th Street, Suite 5 0 0

Gulfport, Mississippi 395 0 1

Phone: 228-822-9340 - Fax: 228-822-9343

E-Mail: jscialdone@frfirm.com

[...]

[January 26, 2017 Transcript, p. 4]

JUNIOUS BROWN, having been first duly sworn,

testified as follows:

THE REPORTER: Did you want to waive the 30(b)(5)

Rule?

MR. SCIALDONE: Yes.

MR. SAUNDERS: Yes.

THE REPORTER: Any stipulations?

MR. SAUNDERS: Usual stipulations is fine.

App.100a

EXAMINATION

BY MR. SAUNDERS:

Q.

Good morning, Mr. Brown. Why don’t you start

by giving us your full name and business address

for the record?

A.

Junious Anthony Brown, Jr., 17174 Beaver Springs

Drive, Houston, Texas, 77090.

Q.

And that’s your home address?

A.

Yes, sir.

Q.

All right. And you don’t have any plans on relocating any time soon, do you?

A.

I don’t know yet.

Q.

Well, if you do, will you please notify—

A.

Yes.

Q.

—Mr. Scialdone here? Just hopefully we don’t

need to talk to you again, but we might somewhere

down the road. We just need to know where to find

you.

It’s my understanding that you’re employed with

Marquette?

A.

Yes, sir.

Q.

What’s your position?

A.

I am a pilot, sir.

Q.

In August of 2015, what was your position?

A.

Pilot, sir.

Q.

All right. Give me a quick rundown of your educational background.

App.101a

A.

I graduated high school ’99, took a semester of

college. I also went to Seaman’s Church in Lafourche. And that’s it.

Q.

Where did you graduate high school?

A.

Peoria High.

Q.

That’s—

A.

Illinois.

Q.

—Illinois?

A.

Yes, sir.

Q.

And where did you—where did you go to college

for a semester?

A.

ICC, Illinois Central College.

Q.

Okay. And then you mentioned the school in

Lafourche?

A.

Yes, sir.

Q.

Was that where you—

A.

Got my maritime license, yes, sir.

Q.

What was the name of the school?

A.

Lafourche Merchant Marine.

Q.

That’s right. And where exactly in Lafourche

Parish is that located?

A.

Raceland, I believe.

Q.

Raceland. I grew up in Thibodeaux right down

the street.

When did you graduate from Lafourche Merchant

Marine?

App.102a

A.

2012, I think.

Q.

And when did you first come on with Marquette?

A.

2007.

Q.

Did you start up as a deckhand?

A.

Yes, sir.

Q.

That’s usually how it goes.

So, you were a deckhand for a few years and then

worked your way up. And I guess you were a

steersman at some point?

A.

Yes, sir.

Q.

Was that before Lafourche or after?

A.

No. It was after.

Q.

So, you—

A.

I got my license and then, after a while, became

a steersman.

Q.

And how long were you a steersman? What years,

approximately?

A.

About a year and a half, two years. I’m not 100

percent sure on that, sir.

Q.

When did you become a pilot?

A.

I went back to Lafourche in September 2013.

Q.

All right. And just for the record, as a steersman,

what’s your understanding of what that means?

A.

Excuse me?

Q.

Well, as a steersman, you’re not—you’re not—

you’re not a pilot yet, right?

A.

Right. I’m being trained.

App.103a

Q.

You’re being trained. So, in other words, when

you’re in the wheelhouse, there has to be a pilot

up there with you?

A.

Yes, sir.

Q.

Okay. Tell me what kind of work you are doing

today. In other words, what—you working for

Kirby, the same type of stuff that was going on

back in August of 2015?

A.

Yes, sir. The same exact runs they’re running now.

THE REPORTER: Say that again.

A.

The same exact runs they’re running now, the

ST. RITA was one.

Q.

(By Mr. Saunders) Are you still piloting the ST.

RITA?

A.

No, sir. CORPUS CHRISTI right now.

Q.

CORPUS CHRISTI. All right. Similar boat?

A.

No, sir. Bigger boat.

Q.

Bigger boat. All right.

How long did you have the opportunity to pilot

the ST. RITA?

A.

Till August of this year when they tied her up.

Q.

Well, give me—give me a time frame. When were

you piloting the ST. RITA? When did it start,

and when did it end?

A.

It started probably around 2012, and it ended

August this year—last year about.

Q.

August of 2016?

A.

Yes, sir.

App.104a

Q.

Okay. Just give me a general description of the

ST. RITA.

A.

She’s 26 feet wide, 66 feet long, 104 tons, 1250

horsepower. She was 38 feet tall.

Q.

What was the draft on the boat?

A.

The draft was 10 foot, sir.

Q.

Tell me about the generators on the boat.

A.

You had two generators. One was air. One was

battery backup. Battery backup was on the port

side. The air was on the starboard side.

Q.

Overall, did you have a lot of problems with the

boat? Was it a good performing boat?

A.

It was a good performing boat, sir. It worked well.

Q.

How about the generators? I know they were

swapped out in ’16. But let’s talk about 2012 to

2015. Did y’all have a lot of problems with the

generators? Did they perform well, as expected or—

A.

They performed—as far as I can remember, they

performed as expected.

Q.

Okay. And we know there was a problem with

one of them on the day of Kelvin’s accident. We

are going to talk about that in more detail. I am

talking about in general, you don’t—you don’t

recall there being, like, consistent problems with

the generators?

A.

Not as far as I can remember, sir.

Q.

Okay. Tell me about regular scheduled maintenance on the generators, who would perform that?

A.

The mate would.

App.105a

Q.

The deckhands?

A.

Yes, sir.

Q.

All right. And how would they know to do it?

A.

We have a system where you do it every so many

hours.

Q.

I believe Walter testified it was every 250 hours,

certain things are done to the generators?

A.

Yes. Yes, sir.

Q.

And those are—a record is kept of that in the

engine logs, correct?

A.

Yes, sir.

Q.

So, how would the deckhands know to do that

every 250 hours?

A.

We will calculate the hours up. It was normally

around the scheduled crew change or if needed

to be before, but there was—the hours were kept

on record.

Q.

And is the—is that scheduled maintenance, is

that something that you did in the past as a mate?

A.

Yes, sir.

Q.

And, so, what’s your understanding of exactly

what is done for that scheduled maintenance?

A.

Scheduled maintenance is changing the oil filters,

pretty much that’s about it.

Q.

And that would be the oil filter and the fuel

filter?

A.

Yes, sir.

Q.

Let’s talk about.

App.106a

A.

And the secondary filters as well.

Q.

Secondary filter?

A.

Yes, sir.

Q.

Let’s talk specifically about the fuel filters on

the—on the generators. When those are changed,

tell me how that’s done.

A.

Well, you shut your fuel off to the generator so

that you don’t have spillage or anything like that.

You have two fuel filters on there. One is the BF

7600. The secondary one, I can’t remember right

off the top of my head. But it’s tucked up under

the backside of the generator. But you have to

screw that one in manually.

Q.

Okay. The primary fuel filler on the generator

when that one is changed out, is there anything

that’s done with the pressure gauge and the fittings

behind the gauge?

A.

No, sir. You just shut your fuel off to it.

Q.

You shut the fuel off and change the filter?

A.

Yes, sir.

Q.

Okay. In your years of—of piloting boats for

Marquette-and just so we’re clear, you haven’t

piloted for any other companies, have you?

A.

No, sir.

Q.

In your years of piloting boats for Marquette,

have you ever seen failure of these fittings behind

the fuel gauge?

A.

I’m not 100 percent on that one, sir. I have seen

a lot. So, I really can’t answer that honestly.

App.107a

Q.

I see.

As we sit here today, do you know what was

causing the fuel leak on August the 15th, 20—I’m

sorry—August the 21st of 2015?

A.

Just that the gauge was shooting out diesel.

That’s the report I got.

Q.

You didn’t—you didn’t get down into it and figure

out exactly what was causing the problem?

A.

No. My main concern was getting Kelvin off the

boat, sir.

Q.

Sure.

And I’m not just talking about that day. I’m talking about afterward. I realize Mr. Hayes, he’s the

one that figured out what was—what the

problem was. And he’s testified to that.

I guess a better way to ask of you: You weren’t

involved in investigating exactly what happened

with the equipment, were you?

A.

No, sir. I just had to make the phone calls and

make sure everybody was okay.

Q.

Okay. It’s my understanding that the accident

occurred right when Kelvin was about to come on

duty. Is that—is that accurate?

A.

Yeah. He woke up early that day.

Q.

Okay. What caused him to wake up, if you know?

A.

I was coming into Bolivar, and I was tying off on

the empty tier at Bolivar terminal. And he heard

the engines and thought I was in trouble.

App.108a

Q.

Okay.

A.

And he came up to make sure I was okay.

Q.

Okay. And when he heard the engines—when you

say he heard the engines, was it your impression

that he heard a problem with the engines or were

they—

A.

I was backing down harder than normal.

Q.

That’s what I was asking.

Okay. So, that would suggest that you might be

caught up in a current or something like that?

A.

Yes, sir.

Q.

So, he came up. And what—tell me, for the record,

what exactly was going on at that point in time.

A.

Well, I was trying to get it on the empty tier; and

it just wouldn’t get over there for me. So, Kelvin

came up and saw what I was doing and he lent me

a hand and helped get it on there for me.

Q.

Okay. And that’s what he said, he took the sticks

and he helped maneuver the load in at that point?

A.

The empty. It was the empty.

Q.

It was one empty?

A.

Yes, sir. He got a high low cup. And he got the

empty in there for me and I fleeted the load.

Q.

And it was a chemical barge?

A.

Yes, sir.

Q.

And what happened next? In other words, what—

App.109a

A.

After we got the barge tied off—well, after Kelvin

got the barge tied off, I took the sticks back over,

went and fleeted our load. After fleeting the load,

we was coming back light boat because the LADY

LORD was pushing that—or emptying it for us.

Q.

Okay.

A.

Coming back light boat, deckhand Corey said

there’s diesel shooting out of the main.

Q.

He—sorry. When he—Corey said that where,

where was Kelvin?

A.

He was in the wheelhouse with me still.

Q.

But you had taken the sticks back?

A.

Yes, sir.

Q.

Okay.

A.

And we both heard that, but we didn’t know what

happened. So, I could not leave the wheelhouse.

So, Kelvin went down to check it out for me

because he was already up.

Q.

Okay. And that’s something that—that’s something

that the captain would normally do if there’s a

big problem like that—

A.

If there’s a problem, yes, sir.

Q.

—in the engine room?

As we sit here today, you don’t take issue with

Kelvin going down and checking out the problem,

do you?

A.

No, sir. Because if he hadn’t have done it, I would

have had to wait till I tied off and then I would

have went down there and checked it myself.

App.110a

Q.

Okay. Tell me what you recall happening next.

A.

What happened next was, the deckhands—one of

the deckhands woke up—woke up the other

deckhands but didn’t tell me what was going on.

The other deckhand that they woke up came up to

me and asked while I was coming up to a barge

did he want me to get tied off.

I said: Just tie me off, what’s wrong?

He said: Kelvin is down. I can’t make it out, and

he can’t get up.

So, I told him to tie me off. I went down, saw

Kelvin laying on the floor. I said: Are you okay?

He said: No.

I said: Do you think you broke something?

He said: Yeah.

I said: I’m going to call the police—call the

ambulance, call the port captain and get you

some help.

He asked me to prop him up because he had diesel

in his face. So, I propped him up, gave him some

water. He got the diesel out of his face. I went up

and made the proper phone calls.

Q.

Okay. Who was the other deckhand that notified

you of the problem?

A.

David Murphy.

Q.

And, obviously, we’re going to talk to Corey

today. Is David still employed with the company?

A.

I have no idea, sir.

App.111a

Q.

There was also a Marcus Harrison. Do you remember him?

A.

Yes, sir.

Q.

And it’s my understanding, he’s no longer with

the company?

A.

I have no idea.

Q.

You have no idea.

Was Marcus Harrison involved in the operations

at the time of the accident? What was he doing?

A.

He was—he was involved, but he was a green

deckhand.

Q.

Okay.

A.

So, he was working with Corey.

Q.

I gotcha.

When you got down to the engine room, was the

diesel still leaking or spraying?

A.

No. Kelvin had—Kelvin had told—my understanding, Kelvin told Corey to swap the generators because the diesel was shooting out. And

I believe they shut the valve off, sir.

Q.

Okay. So, Corey or somebody shut the fuel valve

off and turned the other generator on?

A.

I believe, yes, sir, because I was in the wheelhouse.

I could not leave.

Q.

Sure. I understand.

And I know this goes without saying, but only

one generator is powered at one time?

App.112a

A.

Yes, sir. Unless there’s certain circumstances

like cold weather, high river, or anything serious

of that nature, sir.

Q.

Typically, you just share time on the two generators?

A.

Yes.

Q.

And, again, since, you know, we’re focused on

generators, just for us lay people, tell us what

the generator powers on a boat?

A.

That particular generator I was running?

Q.

Yes.

A.

That powers the whole entire vessel. That one

was running at 18, I believe 18 rpms. The other

was 12. I believe that’s what it was.

Q.

When you—when you found Kelvin, tell us exactly

where you were finding him on the—on the deck

of the engine room.

A.

Between the mains and the MSDs.

Q.

Between the main engine?

A.

Starboard main engine and the sewage tank.

There’s a little catway you walk right there. He

was there right when I found him.

Q.

Do you know what caused him to fall?

A.

No, sir. All I know, there was diesel all over the

floor. That’s all I can tell you.

Q.

Okay. Can we agree diesel is a slippery substance

when it’s on the floor?

A.

Yes, sir.

App.113a

Q.

And what was the deck made of? Was it steel diamond plate?

A.

Some parts are and some parts are solid. The

solid metals are covered with nonskid.

Q.

Nonskid paint?

A.

Yes, sir.

Q.

Do you know the area where Kelvin was on the

deck, was that diamond plate or was that solid

metal with nonskid paint?

A.

It was a combination of both.

Q.

Okay. All right. And we are going to go take a

look at the vessel. So, we’ll get a better visual of

that. I’m just trying to determine what you recall.

A.

Yes, sir.

Q.

Did Kelvin tell you exactly how he slipped and

fell?

A.

No, sir.

Q.

And, obviously, you were really just concerned

about getting him the help he needed.

A.

Yes, sir.

Q.

And I appreciate that. I’m just trying to cover

everything.

A.

No. I understand.

Once I saw him and I asked him those questions,

once he told me he wasn’t good and I got him

to sit up, all I did was go upstairs, told Corey to

stay with him and went upstairs to make the

phone call, just called Bolivar terminal, asked for

App.114a

the address, got the address and called the

ambulance and the ambulance came.

Q.

Was Kelvin in obvious pain?

A.

Yes, sir.

Q.

What was he telling you? What was hurting him?

A.

He said he can’t move. He can’t get up.

Q.

Did he say what part of his body was hurting?

A.

He said lower part, he can’t move.

Q.

Okay. You said he had diesel on his face. Was he

covered in diesel?

A.

Well, from what I heard, when he fell, the diesel

was spraying on top of his face.

Q.

Okay. Did diesel spray all over the engine room?

A.

On that starboard side right where the generator

and the main is, that little walkway was completely

soaking wet. And the little walkway where Kelvin

was completely soaked with diesel as well.

Q.

Okay. Do you recall if you had any trouble

walking on the surface that was covered in diesel?

A.

I can’t recall. It was a quick reaction to go check.

And I really can’t recall, sir.

Q.

How long did it take for the ambulance personnel

to arrive?

A.

I don’t know. But they got there pretty quick.

Q.

Did you stay with Kelvin while waiting on them?

A.

Yeah. I was going in between making the phone

calls and checking on him and going back up and

making sure that everybody was there.

App.115a

Q.

And who got Kelvin out of the engine room?

A.

The—it was the ambulance people and all of us

helped bring him up.

Q.

Okay. Did they put him on a spine board first, or

did y’all carry him out of there?

A.

No. They put him on a board first.

Q.

There was enough room in the engine room—

A.

Yes.

Q.

—to put him on a spine board?

After—after he was taken off the boat, what do

you do next?

A.

I went—that’s when I went down to go look to

see what happened or what I could see happened.

Q.

Okay.

A.

And the gauge was down because we were told it

was the engine. That’s when I found out, of course

it’s not the engine. It’s the generator.

Q.

Okay.

A.

That’s when I found out that we had a problem.

Q.

All right. And when you said the gauge was

down, what do you mean by that?

A.

It’s like it got blown off, just broke off.

Q.

Okay. And it was just sort of hanging there?

A.

Yes, sir.

Q.

Do you have any idea what would have caused it

to blow off?

A.

No.

App.116a

Q.

Have you ever seen that before?

A.

No, sir, never.

Q.

According to Mr. Hayes, the normal psi on the

fuel pressure on the generator is around 40. Does

that sound about right to you?

A.

Yes, sir, about 20 or 40, yes, sir.

Q.

Okay. Do you recall when you saw the pressure

gauge hanging there, did you notice any broken

fittings?

A.

I—

Q.

Or did you look at it that closely?

A.

I didn’t look at it that close. I just—that night, I

can’t even say I remember exactly everything.

But I do recall that the gauge was down and that

I was making phone calls and trying to make sure

everybody was okay.

Q.

All right. Walter testified when he got on the

boat, I guess, soon thereafter, he found the gauge

on the deck. Do you know if somebody took it off

and put it on the deck? Did it fall on the deck?

A.

I couldn’t tell you.

Q.

You just recall it was hanging there?

A.

It was just, like, down. So, it probably fell off. I

don’t know.

Q.

It wasn’t where it was supposed to be?

A.

Right.

Q.

It wasn’t—the usual position of the gauge would

be what?

App.117a

A.

Facing straight at you.

Q.

Facing straight at you.

Okay. My understanding is, it’s screwed into the

fuel filter housing. Is that—is that your recollection?

A.

Yes, sir.

Q.

Okay. What was done with the ST. RITA after

the accident?

A.

We cleaned—the deckhands went down there and

cleaned up all the diesel so no one else could fall.

Q.

Okay.

A.

And we had tied up there and waited for the port

captain and everybody to come out there and talk

with us, whatever.

Q.

Did y’all have a meeting on the boat about the

accident?

A.

We talked about it briefly. We talked about it

briefly. But I was up for awhile trying to do all

the paperwork and phone calls and stuff. Then I

went to bed. I was up past my time.

Q.

Did anybody tell you or tell the group that

Kelvin did something he should not have?

A.

No, sir. No.

Q.

As we sit here today, do you know of any safety

rules that Kelvin violated?

A.

Sir, I couldn’t tell you that.

Q.

And do you know if Walter came on the boat or

when did he come on the boat and when were the

repairs made?

App.118a

A.

I couldn’t tell you. I think the repairs were made

right away. I’m not 100 percent. Like I said, I

went to sleep. When I woke up, I think it was

already in the midst of being taken care of or

already taken care of. But I was sleeping, spunked

out.

Q.

Okay. Did you do anything to assist in preparation

of any accident reports?

A.

I had to do all the incident reports, sir.

Q.

I’m sorry, what?

A.

I had to do all that reports.

Q.

You had to do all the reports because you were

the captain on duty at the time.

A.

Yes, sir.

MR. SAUNDERS: I apologize. I didn’t make copies of

this in advance. It’s not much.

MR. SCIALDONE: Oh, the accident report?

MR. SAUNDERS: Yeah. Since he—since he identified

it, let’s go ahead—

MR. SCIALDONE: You have got second copies of that

stuff in the files. It’s in there with the—

MR. SAUNDERS: We don’t even need to attach it. I’ll

just ask him to identify it.

Q.

(By Mr. Saunders) This is Marquette 1 and 2. Is

this the accident report that you prepared?

A.

I believe I did write this.

Q.

If you look at the second page, the document suggests that you’re the one that completed the

form. And I’m asking you to verify that for me.

App.119a

A.

Yeah. I believe I did write that.

Q.

Again, we don’t need to attach it. It’s Marquette

Bates stamped 1 and 2.

It’s my understanding that Mr. Dunn underwent

alcohol and drug tests. Did you also have to submit

a sample?

A.

I believe I did, sir.

Q.

And obviously you passed. They were negative?

A.

Yeah.

Q.

You’re still here?

A.

Yeah.

Q.

Counsel had produced some daily boat logs. Other

than the daily boat logs, it’s my understanding

there’s engine room logs. Are there any other logs

maintained on the ST. RITA?

A.

No, sir. Those were it.

Q.

Business has been good since August of 2015, been

consistent?

A.

Yes. It’s been very consistent.

Q.

Can you tell me the current rate of pay for

captains? You know, I know it may be a little different for certain ones depending on experience.

But what’s the range of pay for captains? What’s

the daily rate?

A.

It depends what you are, sir.

Q.

Okay.

A.

You’re asking about captain. There’s three stages.

Q.

Tell me about the three stages?

App.120a

A.

Captain, relief captain, pilot, they all have different pay.

Q.

All right. What was Kelvin at the time of the

accident?

A.

He was a relief captain.

Q.

All right. Do you know the rate of pay for relief

captains today?

A.

Today for relief captains, I think it’s 580.

Q.

And what—what benefits does Marquette provide

to its relief captains? In other words, what type

of fringe benefits—health insurance, 401(k)? Do

you know?

A.

I wouldn’t know, sir.

Q.

We will cover that in another deposition. I am

just asking if you know.

In your years here at Marquette, other than

Kelvin’s accident, are you aware of any other

accidents that occurred while you were at the

helm?

A.

No, sir.

Q.

Have you been written up for any disciplinary

issues in your years here at Marquette?

A.

Not that I know. I probably have, but I couldn’t

tell you.

Q.

That’s fine. And I’m not asking to—

A.

No. I understand.

Q.

—insult you. I’m just trying to cover all the basis

here.

App.121a

How often did you have the opportunity to work

with Kelvin?

A.

I worked with him for a couple of years.

Q.

Did you know him to be a competent relief captain?

A.

No, sir.

Q.

I’m sorry. When I say “competent,” was he a

good captain?

A.

He was a great captain.

Q.

He knew what he was doing?

A.

Yes, sir.

Q.

Was he a safe captain?

A.

Yes, sir.

Q.

Are you aware of any accidents involving Kelvin

at the helm or other than this accident he was

involved in, are you aware of any—

A.

None.

Q.

—issues or problems with Kelvin Dunn?

A.

None.

Q.

Did you provide a written or recorded statement?

A.

I think I had to write a statement.

Q.

Okay.

A.

I’m not sure.

Q.

The reason I ask, the only one that I have is one

from Corey Crespo. And I’m just wondering if

you—they gave you a piece of paper and said,

“Hey, write out what happened”?

App.122a

A.

I don’t think so because I wasn’t involved. I did

that one.

Q.

We already looked at Marquette 1.

A.

Yeah. I don’t think I did another one. I am not

sure.

Q.

Okay. Fair enough.

Is there anything that we haven’t discussed today

that you want to tell me about this accident or

about Kelvin? Is there—

MR. SCIALDONE: Object to the form of the question.

Q.

(By Mr. Saunders) Did you understand my question? I’m just asking if there’s anything glaring

in your mind that we haven’t discussed today

relating to Kelvin or the boat or the accident?

A.

(Moving head side to side.)

Q.

That’s a “no”?

A.

Yes. No, sir.

MR. SAUNDERS: Okay. Mr. Brown, I thank you for

your time. We are done.

MR. SCIALDONE: Good. No questions here.

(The deposition concluded at 12:25 p.m.)

App.123a

ORAL DEPOSITION OF COREY CRESPO

(JANUARY 26, 2017)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

________________________

KELVIN DUNN

v.

MARQUETTE TRANSPORTATION

COMPANY, LLC

________________________

Civil Action No: 16-13545 L(5)

Before: Michael NORTH Magistrate,

Eldon E. FALLON United States District Judge

ORAL DEPOSITION OF COREY CRESPO,

produced as a witness at the instance of the Plaintiff,

and duly sworn, was taken in the above-styled and

numbered cause on January 26, 2017, from 12:27

p.m. to 1:08 p.m., before Jo Ann Kelley, CSR in and for

the State of Texas, reporting by machine shorthand, at

the offices of Marquette Corporate Office, 223 N. 10th

Street, La Porte, Texas, pursuant to the Federal Rules

of Civil Procedure and the provisions stated on the

record or attached hereto.

[...]

App.124a

APPEARANCES

FOR THE PLAINTIFF:

Mr. Henri M. Saunders

SAUNDERS & CHABERT

6525 Perkins Road

Baton Rouge, Louisiana 7 0 808

Phone: 225-771-8100 - Fax: 225-771-8101

E-Mail: hsaunders@saunderschabert.com

FOR THE DEFENDANT:

Mr. John A. Scialdone

SCIALDONE LAW FIRM

25 0 5 14th Street, Suite 5 0 0

Gulfport, Mississippi 395 0 1

Phone: 228-822-9340 - Fax: 228-822-9343

E-Mail: jscialdone@frfirm.com

[...]

[January 26, 2017 Transcript, p. 4]

COREY CRESPO, having been first duly sworn,

testified as follows:

THE REPORTER: Would you like to waive the 30(b)(5)

Rule?

MR. SCIALDONE: Yes.

MR. SAUNDERS: Yes.

THE REPORTER: And any stipulations?

MR. SAUNDERS: Usual stipulations.

App.125a

EXAMINATION

BY MR. SAUNDERS:

Q.

Good afternoon, Corey. Why don’t you start by

giving us your full name and address for the

record?

A.

It’s Corey, C-o-r-e-y, Crespo, C-r-e-s-p-o. My current

address right now is 7523 Hablo, H-a-b-l-o, Drive,

Houston, Texas, 77083.

Q.

Corey, have you ever given a deposition?

A.

First time. Never.

Q.

Okay. Very simple. I’m going to ask you a few

questions. This nice lady is recording everything.

She is going to print a transcript somewhere down

the road. Please listen to my questions. When

I’m done talking, you answer the question. If you

don’t understand the question, let me know; and

I will be happy to rephrase it.

Try to give verbal responses because it’s hard to

get shaking and nodding of the head on the record.

A.

You’ll probably get a couple.

Q.

We’ll remind you if we need to.

A.

All right.

Q.

I’m not here to harass you. I’m here just to gather

some facts, question-and-answer session.

You’re employed with Marquette?

A.

Yes.

Q.

What is your position?

App.126a

A.

Relief mate.

Q.

Tell us what you do as a relief mate.

A.

I basically go with the crew, make sure they’re

learning what they need to, supervise them. I

work mainly hand in hand with the captain on the

boat. I have a senior mate that is above me. I’m

relieving him when he is not on the boat, acting

as the first mate when he is gone. I attend safety

meetings. Basically, anything that needs to be

done, I’m the one that the captain goes to and

says, “Hey, man, make sure everything has been

done.” Supervising the deck crew basically.

Q.

Was that your position in August 2015?

A.

No.

Q.

What was your position then?

A.

To the best of my knowledge, I believe I was

either deckhand or senior deckhand, one or the

other.

Q.

Okay. Are the levels of deckhands and mates the

same now as they were in twenty—in August of

2015?

A.

Yes.

Q.

Tell me about that, you know, that hierarchy?

A.

We’ve got deckhand trainee. From that, we have

deckhands to senior deckhands, lead men.

Q.

I’m sorry. What was that?

A.

A lead man.

Q.

Okay.

A.

Relief mate to mates to senior mates.

App.127a

Q.

Lead men, relief mate, mate, and senior mate?

A.

Yes. That’s the positions.

Q.

And do the duties change a lot as the level changes

or is it just mean—does that just mean, if you

have seniority, you’re kind of in charge?

A.

Are there differences in each levels? Is that what

you’re asking?

Q.

Yes.

A.

Yes. You are required to know—we have a book

that has to get signed off for each position per

level. And you have to have a superior, like a

relief mate or a mate going off of the newer guys,

like minimum—I mean, you’ve got to know so

much to move up. It’s like a promotion just like

any job you go to.

Q.

Sure.

A.

So, they’re not—they get evaluation after so many

days, however long it normally takes. But, yes,

there’s different levels of different—you have different job duties for each level you go up to, more

responsibilities.

Q.

Sure. Okay.

Give me a quick rundown on your educational

background. Where did you go to high school?

A.

Stephen F. Austin in Fort Bend.

Q.

Okay.

A.

Sugar Land, Texas.

Q.

All right.

A.

Stephen F. Austin.

App.128a

Q.

Okay. Did you graduate?

A.

Yes.

Q.

What year?

A.

’99, 2000. And then 2007, I went to University of

Phoenix online for five, six months. And I dropped

out due to a death in the family.

Q.

Okay. And as far as working on the water, when

did that start?

A.

The first day I started out here with this

company, I believe that was January or February

2015, I think it was. I’ve been here for two years

and a couple of months or something.

Q.

Okay. How often did you get to work with Kelvin

Dunn?

A.

The best of my knowledge, I do know it was

probably a couple of days during the crew changes.

So, he came on, like, towards the end of my hitch,

I believe.

Q.

Okay. Did you have any problems with Kelvin

when he was captain?

A.

I never really even talked to him other than:

Hey, how are you doing? My name is such-andsuch.

No, I didn’t have no problems.

Q.

Did you work with him enough to learn, you

know, whether he was a good captain, a crappy

captain? I mean—

A.

Personally?

Q.

As far as his performance.

App.129a

A.

Personally, like, from my personal experience, I

was—I didn’t work with him long enough to know.

We didn’t run into stuff. Like, we survived. He

was a nice guy. I’ve heard good things about him.

But—

Q.

Okay.

A.

—but I didn’t work with him long enough to get

my own personal reflection of him.

Q.

Fair enough.

Tell me about what is done for regularly scheduled

maintenance of the generators on the ST. RITA.

What—

A.

Like hours? I think it’s 250 hours we’re change

filters—air filters, fuel filters, oil filters—

swapping every 48 hours. Company policy.

Q.

Swapping generators?

A.

Uh-huh.

Q.

And on the maintenance of changing the filters,

is that something you have done?

A.

Yes, I have.

Q.

Okay. And let’s—let’s focus on the fuel filter on

the generator, what do you do to change it out?

A.

Turn off the fuel. There’s a valve for that. Take

the fuel filter off. And I get the new one and I

bring the fuel up inside the filter to a certain

level, twist it back on, wipe the excess off, make

sure it’s got a good tight fit on it, crank the valve

up, start the generator to make sure there is no

leaks.

App.130a

Q.

Okay. And when you do that process, do you ever

—do you ever get involved with breaking this fuel

gauge, pressure gauge down and inspecting

these fittings behind it?

A.

Do I—have I ever or did I then?

Q.

Is that something that you would do in the

normal course of changing the fuel filter?

A.

I have got a question—

Q.

Sure.

A.

—before I answer that.

I did not do oil changes. I didn’t swap generators

probably months after that situation. I’m going

off of what I know now compared to then. I do

know—

MR. SCIALDONE: That’s a good clarification. I think

he understands. He is just talking about what

you do today.

THE WITNESS: Okay.

MR. SCIALDONE: Not what you knew then.

A.

I’ve got to be very observant on things. I check—

I’m looking—I put my hands on lines to make sure

there’s no pressure buildup. We read the gauges.

They’re monitored every 12 hours in logbooks.

Do I break those down and fix them myself, no,

that’s not my job.

Q.

(By Mr. Saunders) Okay. And that’s a very good

explanation. I’m just talking in the normal course

of changing a fuel filter. You described that process

for us, and I understand that.

App.131a

So, I was simply asking, in that process, you’re

obviously going to check the gauge. But do you

actually take the gauge off of the fuel filter

housing and look at these couplings and this nipple

here?

A.

I never have.

Q.

Okay. Let’s talk about the day of the accident.

Approximately what time was Kelvin’s accident,

if you recall?

A.

It was late evening.

Q.

Okay.

A.

I’m not for sure. Not mid morning. Early, super

early morning.

Q.

It was dark?

A.

Yes.

Q.

And where were y’all?

A.

Bolivar Texas in the Kirby fleet.

Q.

And it’s my understanding that Kelvin had been

sleeping and he was getting close to coming on

duty. So, my question for you is: Were you on

duty, or were you about to come on duty?

A.

I was on duty for a couple of hours.

Q.

Okay. And we heard testimony about Kelvin going

up into the—into the wheelhouse to help Mr.

Brown. It’s my understanding that you discovered

a leak in the engine room?

A.

Yes, sir.

Q.

Tell me how you came to discover that.

App.132a

A.

Me and another deckhand, Marcus is his name,

we were fleeting a barge, it was a load. And I

was on the bottom deck of the boat. And I smelled

something funny. You know, when you’re out there

in these fleets, you smell chemicals from other

passing boats, barges, or barges next to the barges

where we’re going to.

It kept on getting a little stronger. I was like,

something don’t smell right. So, I said, “Hey,

Marcus, do you smell that?”

He’s like, “Yeah. But it’s probably just the barge.”

I said, “Yeah. I’m not sure. Let me go check.”

So, I went in from the galley entrance of the boat

through the hallway and opened up the engine

doors from the galley—I’m inside the boat now—

opened up the engine room door which would have

been on the port side of that boat. And I looked

over the rails and I could see—I could see the

diesel. It was definitely leaking.

Q.

Okay. And when you saw that, you didn’t physically go in the engine room. You just looked

there; is that fair?

A.

I was physically in the engine room but just

enough to open up a door and—within a couple of

steps. And I could look down from the angle I

was at, I could see the majority of the engine

room bottom deck. I was on the top deck is what

I’m talking about now, though.

Q.

And, so, you have to go down some steps to get

down?

A.

(Moving head up and down.)

App.133a

Q.

And you were standing on the steps when you

looked?

A.

On the platform.

Q.

On the platform?

A.

Like, the platform. And then there’s a stairwell

going down in the middle of the walkway.

Q.

Okay. Was the generator still on when the fuel

was leaking? Was it still getting some fuel in

order to operate?

A.

It was running.

Q.

It was running.

Okay. And tell me about the—tell me exactly what

you saw as far as the fuel—the diesel spraying,

like, where was it coming from? And describe the

spray.

A.

At that time when I looked into the engine room

from the top deck when I noticed the diesel was

spraying, it was ricocheting off the main which

was right across from the generator that had the

accident.

Q.

Okay. And was it a wide spray or was it a stream?

Can you describe it?

A.

It was a very good amount, very well, like—

Q.

Like, almost like a pressure washer kind of thing?

A.

It had some pressure behind hit, yes.

Q.

Okay.

A.

It wasn’t just a couple of squirts. It was—it was

spraying.

App.134a

Q.

And it was spraying toward the main engine, on

a main engine. Is that a fair statement?

A.

Yes, sir.

Q.

What went through your mind when you saw that?

A.

I was scared.

Q.

Why?

A.

Well, I’ve never been in a situation like that

before. I was fairly new. They do—we do have our

safety procedures and policies and rules we follow.

We’ve gone over incidents and things like that

more now through the time I’ve been with

Marquette. You know, it was something new to me.

It was, like—you know, I had a little bit of—

Q.

Could you tell or did you make a mental note

exactly where the fuel was coming from? In other

words, did you see it coming from that fuel filter

housing or did you—

A.

When I first went in there, I did not know exactly

where from the generator it was coming from. I

know it was coming from the generator the way

it was ricocheting off the main, though. But the

location on the generator itself from the angle I

was at, I couldn’t see where exactly it was coming

from.

Q.

I see. And were you concerned about a possible fire?

A.

Honestly, I’m not even sure I thought about a

fire, to be honest. I just knew there was—hey, I

need to get back inside the boat and let the captain

know, hey, we’ve got a situation going on.

Q.

Okay.

App.135a

A.

That was my biggest thing to do first.

Q.

Okay. And it’s my understanding you did exactly

that. Did you hustle up to the wheelhouse to let

them know what was going on?

A.

(Moving head side to side.)

Q.

What did you do?

A.

Called on the radio.

Q.

Who did you speak with?

A.

J.J.

Q.

What did you tell him?

A.

I said, “We have an incident going on in the

engine room.”

He said, “What are you talking about?” “Hey, man,

there’s some diesel or some fluid spraying from

the engine room.”

Q.

Okay. And what happened next?

A.

I think I even went to the front of the boat to get

Marcus. From there, I went back into the engine

room. And then basically towards the end of the

stairwell I realized Kelvin was right behind me.

Q.

So, you went down in the engine room and Kelvin

followed you?

A.

At the very first time I went into the engine

room was just, I noticed something. I never went

down, the second—once I radioed up to the captain.

And the deckhand was kind of in the boat. I mean,

from here to here is where the engine room door

would be at to where the galley door would be

from the outside inside the boat.

App.136a

I went to get his attention. I go back to the

engine room by the stairs. My foot was at the

bottom of the stairs was when Kelvin was right

up on me.

Q.

Okay. So, you descended the stairs in the engine

room and Kelvin descended them behind you?

A.

Uh-huh.

Q.

That’s a “yes”?

A.

Yes.

Q.

And when you got to the bottom of the stairs and

you stepped on the deck of the engine room floor,

was it covered with diesel?

A.

Yes, sir.

Q.

Was it slippery?

A.

Yes.

Q.

Did you almost fall?

A.

Yes.

Q.

And tell me what happened next.

A.

By the time my feet hit the actual engine room

floor, somehow—however it happened, because it

was so quick—but me and Kelvin pretty much were

side by side somehow. And I kind of caught my

fall a little bit. I noticed Kelvin kind of slid forward

in front of me. And I went to go catch him. Ain’t

much I could have done because I started sliding

just a little bit more. I caught myself. And that’s

when Kelvin went to the right side of me. He

was on the ground.

App.137a

Q.

Is it fair to say, basically his feet came out from

underneath him?

A.

He slipped. Yeah.

Q.

And he fell. Did you see how he landed?

A.

I saw the right side at first. And then he rolled

to the back.

Q.

And what happened next?

A.

By then, I think the lead man—I think he was a

lead man at the time, David Murphy, he came

down. I hadn’t swapped a generator yet on that

boat. I’m not going to go start turning valves or

turning stuff off that I don’t know how.

So, I stood in front of the generator that was

spraying diesel to keep Kelvin from, you know,

keep on getting drenched because it was spraying

a good amount. And that’s just until David went

over there and swapped the generators to cut

power off from that, you know, to keep it from

leaking, to get power from the boat. I was standing

in front of Kelvin.

Q.

You were trying to block the diesel?

A.

Yeah. The diesel was spraying on me.

Q.

You were just blocking it with your body?

A.

Yeah, with my back.

Q.

Okay.

A.

I don’t know if that was the right thing to do or

not. But diesel was spraying on Kelvin.

Q.

When Kelvin fell, did he say anything to you?

App.138a

A.

He yelled loud.

Q.

Did he yell? Did he scream?

A.

What he was actually telling me to do was swap

the generators. But it was so loud, I couldn’t

make it out. But the lead man, he swapped generators. As soon as he came downstairs, he knew

—he didn’t think twice about it. It was boom,

boom, boom.

Q.

And at that point, the spray stopped?

A.

Yes.

Q.

And I realize it’s loud down in the engine room.

Could you tell if Kelvin was hurt?

A.

Yes.

Q.

Did he appear in obvious pain?

A.

Yes.

Q.

Did you try to help him up? Or did he say, “I

can’t get up”? “I can’t”—

A.

He said he couldn’t get up.

Q.

Okay.

A.

I did put my hand down, but he—he couldn’t get

up.

Q.

What kind of shoes were you wearing at the

time?

A.

Steel toe, my proper PPE.

Q.

What brand? Is that like Red Wings or—

A.

I got them from Red Wings. I think they are Red

Wing boot at the time, the ones the company issued

out to us.

App.139a

Q.

Rubber sole?

A.

Yeah. Nonskid, metatarsals, steel toe, lace-up

boots.

Q.

Do you know, if you know, at the time of that

accident, were captains required to wear any

particular type of shoe?

A.

At that time, I don’t know if they were or not.

Q.

Do you know if anything has changed since then?

A.

They should wear steel toe shoes.

Q.

Do you think there’s been a change in the policy?

A.

I don’t know, because I don’t know if that was

the situation or it was, you know, enforced then

or not. But they’re required to.

Q.

Okay. After—after the leak was stopped and

that problem was rectified, what—what happened

next?

A.

Can you say it one more time?

Q.

Well, after the—after Murphy swapped the generators and the leak stopped, the spray stopped,

what happened at that point? What did you do?

A.

Once the diesel quit spraying, J.J. was down

there. Basically, the whole crew was down in the

engine room.

Q.

The boat was tied up at that time, or do you

know?

A.

I don’t know because I was in the engine room. I

don’t know. I don’t know. I’m pretty sure it had

to have been because the captain wouldn’t have

came and left the wheelhouse. I’m positive it was.

App.140a

But from there, I was told to go upstairs. And I

don’t know who called ambulance or paramedics

or whatever, but they were out there shortly after.

And I assisted them.

Q.

Okay. You helped get Kelvin out of there?

A.

Just to hold—once—the paramedics put him on

the stretcher. But going upstairs, everybody gave

a hand to help support going up the stairs.

Q.

Did you participate in any investigation after

the accident to determine, you know, what caused

it or what happened?

A.

After—I was—that was like an hour and a half

after my watch.

Q.

Okay.

A.

Some time went by. I went and got cleaned up.

And by then, I was told, you know, just go ahead

and go to bed and get ready for my next watch.

By then, they had already did what they had to

do in the engine room to clean up the mess.

Q.

And I’ve been provided with a—with a written

statement dated August 21, 2015. Can you take

a look at that and tell me if that’s a statement

you wrote out?

A.

It clearly is. That’s my signature and my handwriting. I do remember writing this.

Q.

For the record, that’s Marquette Bates stamp No. 3.

Will you take a minute to just read over it and

tell me if there is anything in there that you

wanted to change or if that’s an accurate recollection of your memory of that—that accident?

App.141a

A.

It’s accurate to me.

Q.

And we will mark and attach this as Crespo No.

1.

Who asked you to write that?

A.

It would have to have been J.J. at the time,

because we had to sit there in Bolivar because

he had to call the port captains and follow up

with the incident report or situation. It was J.J.

Q.

And for the record, J.J. is Junious Brown,

correct?

A.

That what I—yes, sir.

Q.

That’s fine. I just want to make sure, when

somebody is reading this, they know who you are

talking about.

A.

Yes.

Q.

Were there any safety meetings after this where

y’all talked about the accident?

A.

We have safety meetings every day.

Q.

Okay.

A.

Yeah. We did go over, like: Man, what happened?

What’s going on? Like, who was there?

Q.

Did you—did you go back down there and figure

out where the diesel was coming from?

A.

I never—I never—I mean, from the time the

generator, you know, had its accident, other than

hearsay, I—

Q.

You weren’t involved in figuring out what caused

the leak?

App.142a

A.

Huh-uh.

Q.

That’s a “no”?

A.

I was not involved with that at all.

Q.

And you weren’t involved in repairing any issue

that may have caused the leak?

A.

No, sir.

Q.

Okay. Fair enough.

What is your understanding of what caused the

leak? Did anybody ever tell you?

A.

I still don’t know. I don’t feel comfortable staying

either. I’m just being honest. I don’t want to say

the wrong thing or the right thing. I still today

don’t know what—

MR. SCIALDONE: Look, “I don’t know” is a perfectly

fine answer.

THE WITNESS: Okay.

Q.

(By Mr. Saunders) We’ve already talked to Mr.

Walter about that issue. I’m just asking what you

know. If you don’t know, that’s what—that’s what

you should say. That’s fair.

A.

I don’t know.

Q.

Did anybody tell you or did you overhear anybody

say that Kelvin did anything wrong in causing

this accident?

A.

Yes.

Q.

Okay. Tell me what you heard.

A.

He said he came downstairs in his sandals or

Croc’s, whatever they’re called.

App.143a

Q.

Okay.

A.

He should have been wearing the proper steel

toe shoes, boots required to do our job.

Q.

Anything else?

A.

No, not that I can recall.

Q.

And who told you that?

A.

It was kind of, like, we’re in a group. It was, J.J.

talked about it, because they asked what he had

been wearing. We told him he was in his sandals.

Q.

That was sort of a group discussion in a safety

meeting?

A.

Yes. Yes, sir.

Q.

Okay. Did Marcus Harrison have any involvement

in the, I guess the maintenance of the engine

room or finding the leak or, you know, fixing the

problem? In other words, what was he doing when

all this was

This text is long and has been trimmed here. Open the source document for the complete record.