Petition for Writ of Certiorari — Furrh v. Sabine Towing & Transportation Co.

BQ- 1898 | Fivep

WRF 17 1990

JOSEPH F. SPANIOL, JR

2 CLERK

Ae ae

5

‘

-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

RAY STANLEY FURRH

Petitioner,

VERSUS

SABINE TOWING & TRANSPORTATION COMPANY, INC.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOSEPH J. WEIGAND, JR. (13323)

WEIGAND, WEIGAND & MEYER

#7 Progressive Boulevard

P.O. Box 6062

Houma, Louisiana 70361

Telephone: (504) 876-3071

COUNSEL FOR PETITIONER,

RAY STANLEY FURRH

II.

Ill.

-

QUESTIONS PRESENTED

The District Court/Fifth Circuit Court of Appeals

erred in not finding the M/V TITAN unseaworthy

because the M/V TITAN did not furnish an adequate

crew to handle the lines.

The District Court/Fifth Circuit Court of Appeals

erred in not finding the defendant negligent for

failure of the M/V TITAN to furnish an adequate

crew to handle the lines.

The District Court/Fifth Circuit Court of Appeals

erred in not finding that the plaintiff's back surgery

was causally related to his accident of October 25,

1984.

TABLE OF CONTENTS

Page

Questions Presented ...... 66.506 eee -i-

Favee OF Comtents ... .. 05445 050020 ee eee -ii-

Fable of Authorities ............5 454 soe ae eee -lil-

Cpmions BeIOW ww. os is 0 0 oO ee eee -iv-

SUTOEICHIOR ww ci bo wv eee eee -V-

Statement of the Case ....05 00666445 s5se eee l

Statement of the Facts .. .......... 523066 eee 2

Asqument 2... 20.0 63 4 se eee 17

Conclusion ..;. o.... 0... /.0322.44.22 eee 21

a |

Certificate of Service ....... 2.1... 28402 eee

ead

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TABLE OF AUTHORITIES

Pages

Benedict on Admiralty, Vol. 1B, pg. 3-71 thru

SES OE a, 17

Crumady vy. J. H. Fisser, 358 U.S. 423, 79 S.Ct.

445, 3 L.Ed.2d 413, 1959 A.M.C. 580 (1959) ....... 18

Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct.

455, 88 L.Ed. 561, 1944 A.M.C. 1 (1944) .......... 18

Reed v. S. S. Yaka, 373 U.S. 410, 83 S.Ct. 1349,

10 L.Ed.2d 448, 1963 A.M.C. 1373 (1963) ......... 19

Waldon v. Moore-McCormack Lines, Inc., 386 U.S.

724, 87 S.Ct. 1410, 18 L.Ed.2d 484, 1967 A.M.C.

ca eeu eeuae woes i?

-ivV-

OPINIONS BELOW

The initial Opinion of the United States District Court for

the Eastern District of Texas, Beaumont Division, is dated

May 30, 1989 and unreported, but appears at App. A, infra,

pp. la-10a. The Opinion of the United States Fifth Circuit

Court of Appeals is dated February 16, 1990, and unreport-

éd, but appears as App. A, infra, pp. 1 la-14a.

- -V-

JURISDICTION

The judgment of the court below (App. A, infra., pp.

9a-10a) was entered on May 30, 1989. An appeal was taken

to the United States Circuit Court of Appeal which affirmed

in a decision rendered on February 16, 1990 and unreported.

The jurisdiction of this Court is invoked under 28 U.S.C.

Section 1254(1).

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STATEMENT OF THE CASE

Ray Stanley Furrh has brought this action against his

employer, Sabine Towing and Transportation Company,

Inc., under the Jones Act and General Maritime Law for

damages for a back injury sustained on October 25, 1984

while he was assigned to the M/V TITAN. Sabine Towing

and Transportation Co., Inc. has paid all maintenance and

cure.

The case was tried to the District Court without a jury on

December 14, 1988 and the Court rendered a “Memorandum

Opinion” on May 26, 1989 finding in favor of Sabine Towing

and Transportation Company, Inc.

The Fifth Circuit Court of Appeals affirmed the District

Court in its written opinion dated February 16, 1990.

2

STATEMENT OF FACTS

Ray Stanley Furrh was born in Port Arthur, Texas on

December 18, 1950, and went to school through the ninth

grade at Woodrow Wilson High School until 1964.

From 1964 until 1982 Ray Stanley Furrh worked at

various Honda shops in this area as a mechanic, various

auto dealers as a salesman, various marine shipyards as a

pipe welder and finally as a deckhand for Western Towing

from 1980 to 1982 and in 1982 Ray Stanley Furrh was

employed by Sabine Towing & Transportation Company

as a deckhand. As a deckhand for Sabine Towing Transpor-

tation, he worked four on and four off and was paid $41.00

a day for twelve hours.

In October, 1983, Ray Stanley Furrh sprained his back

while working for Sabine Towing and Transportation, spent

twelve days in the hospital and returned to work.

On or about October 25, 1984, Ray Stanley Furrh was

assigned to the M/V TITAN as a deckhand along with Buck

Reynolds, Captain, Ferrel Frazer, Engineer and Tom Ellis,

deckhand.

Between 10:00 A.M. and 11:00 A.M. on October 25,

1984, the bow of the M/V TITAN was tied to the port side

of a seagoing barge which was docked at Harbor Island for

the loading of railroad cars on the seagoing barge. During this

time it was necessary to shift the barge.

Captain “Buck” Reynolds sent Ray Stanley Furrh and

Tom Ellis onto the barge to untie the two lines securing the

seagoing barge to the dock to allow the M/V TITAN to shift

or move the barge down the dock and then re-tie or secure

the barge to the dock after it had been moved or shifted.

3

Ray Stanley Furrh went to the bow of the seagoing barge

which had a line about 200° long and 6” in diameter. Tom

Ellis went to the stern line. To move the seagoing barge both

lines have to be untied and tied simultaneously.

Ray Stanley Furrh succeeded in untying his line at the

bow. To properly secure the seagoing barge it was necessary

to re-tie the lines at an angle to function as spring lines. Ray

Stanley Furrh could not move his line by himself, but strug-

gled with sections of the line to get it secured to the bit on

the dock. As he was trying to pull the slack out of the line

secured to the bit on the dock to wrap the line around the

cord on the seagoing barge, he felt pain in his lower back.

We quote from the deposition of Ray Furth, at page 67:

A. Well, I was up on the barge; and I was mov-

ing - transferring - a line, tying the barge off.

And it was a lot of line. And there was a

doubled-up line, and I had shifted it from -

from the middle of the barge to the end of

the barge to the bow of the barge where |

was going to tie it off there. But then I only

had two lines to tie the whole barge off, and

one line was the—The stern line was a short

line, and the only place to tie it off at was -

you know, that would do it any good at all

- was—Well, it meant that I had to shift my

line back.

And, so, I carried my line back and doubled

it up: and that’s—And when I went down -

when I pulled my slack out of the line and I

went down to make it fast, is when my back

went.

Q. What kind of line was it?

Q.

Q.

4

A regular tie-off line for seagoing barge. And

it was a pretty long line and it was a long lead

and it was doubled up.

Was it nylon line, hemp, poly, steel or cable

or what?

No, it wasn’t steel: and it wasn’t grass. It

was—I don’t know. I guess nylon, whatever -

whatever kind of material that it was. I don’t

know.

How big around was it?

| would say 6, 8 inches, somehting like that.

When you say 6. 8 inches around, you mean

the circumference from point to point?

A circumference.

And how long was this one particular line

that you were tying off?

Oh, I had a good 30 foot to the bit then

doubled up. So, that would make a good 60

foot of line, I would say. And, then, the rest

of the line | might have had 50 foot or so of

tail.

Do you remember what day this accident

happened?

October 25th.

Further, plaintiff testified in his deposition at page

Q.

>

> ©

©

> 0 FF 8

Were you tied up when this accident happen-

ed?

Were we tied up?

Were you there at the dock”

We were tied to the seagoing barge.

You were in the water?

Un-huh.

You weren't at anyone's dock’

You are confusing me.

Were you in transit: Was the vessel and its

barge and its tow in transit, or were you tied

up at the dock when the accident happened”

The barge was tied up at Harbor Island where

they were loading train cars on it. We went

from Continental Grain to Harbor Island,

light boat.

Whose barge was it that you were tying off”

I have no idea. I think it might have been a

Candies. I’m not sure.

When you got up to it, was she full?

70

Q.

O

Q.

6

No, she -They only had about four or five of

the train cars on it. They were still welding

train rails - train car - where the tracks on the

barge - where they could—They still had a

bunch of train cars to put on it.

So, they were in the process of readying it?

They were in the process of loading it. They

were still readying it, but they were loading

the train cars on it.

And what time did you get there to Harbor

Island?

Well, it was five or ten minutes after we

docked the ship at Sabine - 1 mean at Contin-

ental.

So, tar argument’s sake of this accident - - -

(Interrupting) 10:30 or 11:00 o'clock some-

where night in there - a.m.

And how long were you engaged in this line

shifting process before the accident happen-

ed?

I had aiready - I guess a good 10 minutes or

1S minutes. | was—I worked with that line, |

guess. a good 20 minutes.

Did someone order or instruct you to go out

there and do something?

Yes, my captain ordered me.

A.

-

What did he tell you to do?

To do whatever had to be done out there to

shift line, if it needed to be shifted, to secure

the barge.

Im not sure I understand.

They were shifting-They wanted to shift the

barge down where it would be easier for them

to load their cars, the train cars.

You wanted to shift it further down the

dock?

Right. We shifted the barge—I mean we untied

the barge completely from the dock and

shifted it - and moved it.

So, your tug was made fast to the barge?

Right. We had a line out on the barge. I had a

line.

And how many lines were there from the

barge to the dock”

Two.

Where were they when you first started?

One on the stern and one up forward.

And how many times was the barge moved

down the dock?

Q.

Q.

A.

8

Well, to get it in the position where they

wanted it. I guess twice. We went down-

stream, and then we had to go back upstream

a little ways.

Did you have to - - -

(Interrupting) I had to carry the line from the

moor of the forward—Well, I had the forward

line; and it was the long line, the longest line

of the two that they had to secure the barge.

And I shifted it all the way up to the bow of

the barge because I was up on the rake, in

fact.

And the stern line was short, too short to

make it - to secure the barge properly, really.

So, Tom - he was the other deckhand. Where

he had to tie it off at, both lines would have

been leading forwards: and the barge wouldn’t

have stayed in the dock at all. So, I had to

shift my lines back. So, I carried—You

[k]now, I had to carry it back which - then

loop my bit down on the dock and pull my

line up, you Know, my slack.

Whose lines were they?

Thev were on the barge.

So, the lines, that were securing the barge to

the dock at the time you got there were the

Ones you were moving around?

Right.

9

Was there any additional line on the TITAN?

We only put out one head line on the barge

off the TITAN.

Was there a line that wasn’t being used in the

TITAN that you could have used if you had

wanted?

Yes, sir, there was a couple of lines, the boat’s

lines, that we used to make up to the ships.

But they weren’t used at that time because

you were made up to a barge’

Well, we wasn’t using our lines to secure the

barge, no.

Were you doing that line shifting job by

yourself?

I had one line. The other deckhand was

working the other - working the stern line.

What was his name?

Tom Ellis.

So, if there were two of you doing the job

and you moved it twice - - -

(Interrupting) I worked on line by myself. I

worked the forward line by myself.

And you shifted that line twice?

A.

10

Correct.

And by “shifting” it, what that entails is un-

wrapping it from the dock, carrying it down,

and wrapping it again?

Yes. more or less.

And the barge is against the dock, pretty

close to the dock?

Yeah.

Do you have to pick up the line and carry it?

Yeah, I had to carry it and drag it. There was

so much line, I couldn’t carry it all.

You couldn't carry it all because it was physi-

cally too big to pick up?

Physically too heavy.

How much do you think the whole line

weighed?

I have no idea. I don’t know how much line

was there. I know it was a good 200 feet of

line, I'd say.

You felt like you hurt your back when you

were securing it on the second time?

When I shifted the line, yes. When I shifted

the line back down the barge and when |

pulled it up. When I pulled up the slack, when

I went over to holding the slack and, you

P

-

11

know, trying to keep the line as taut as I

could. And when I went down to make my

first wrap on the clavel is when it happened.

When [What] does a clavel look like?

Like cow horns.

Is it right up on the deck?

It’s off the deck. It’s--The center part of it is

welded to the deck; and it comes up so high -

6 inches or so off the deck. And it has these

horns out (demonstrating with hands).

How far would you have to bend over to

touch it:

Oh, about 6 or 8 inches from the deck.

You said you were pulling the slack out like

you pulled the slack when your back went

out. Correct me if | am wrong; but, as I

understand it, you already have the line

secured to the dock. Is that nght?

No.

It’s not?

It’s not secured. I had a doubled-up line, and

the eye of the line was on my clavel. And

then it went from the barge down to the bitt

on the dock then back up to the barge.

So, it was just looped around the bitt on the

dock?

Q.

12

Yeah, it was hung on it, yeah.

And you were going - - -

(Interrupting) I had to pull the line, pull the

slack.

You are going to pull the slack up then

tighten it up, and wrap it around the clavel

again?

Yes, something like that.

Is that the way it’s done?

Well, yes, you pull all the slack out and make

your fast on any line.

When exactly was it that you felt you[r] back

going out, after you reached down?

After I pulled the slack out of the line.

Okay.

And I went over- Holding the line taut to

make the first wrap, making it fast, is when it

happened.

So, as I understand it, when you were pulling

the slack out, you were facing the bitt on the

dock and you are standing upright as you are

pulling it: is that right?

Yes.

13

And the idea is to hold it taut then bend over

and wrap it around the clavel before it goes

loose on you again.

Yeah.

At what point during that operation did you

feel your back hurting you”

When I went over to make it fast.

As you bent over to make it fast or to tie it

on?

I was already there.

But you had to bend over. When you pulled

the slack out, you were standing up; right?

Yeah. When I pulled the slack out of the line,

I was standing up.

And you had to bend over to wrap it around

the kevel [clavel] .

Right.

It was during that bend that you felt your

back going out on you?

Yes, when I made my first down loop for the

end of the clavel to start making my Figure

“ae.

Was Mr. Ellis out there on the stern line at

that time?

A.

Q.

14

Correct.

Did he see the accident happen?

I have no idea.

Did you ever ask him whether or not he saw

it?

No.

Never talked to him about it?

Yeah, I told him then.

You told him your back hurt?

Yeah. | told my captain then. I finished

making up and tying off that line and went

over to the boat.

Had you ever shifted lines before?

Sure.

It’s a pretty common job for a deckhand?

Uh-huh. It’s a pretty common job, pretty

common job.

Was there anything unusual about that

particular job that was, say, different from

any other times that you had done it?

Yeah. There should have been two men on

the line because of the length of the line and

the distance - the distance.

1S

Captain Buck Reynolds testified Ray Stanley Furrh was

a good deckhand and always did what he was told. Captain

Reynolds thought that longshoremen were on the seagoing

barge and would help Ray Furrh with the lines. Tom Ellis

testified he handled the stern line by himself without inci-

dent.

Ray Stanley Furrh reported his injury and was taken off

the M/V TITAN and seen at St. Mary’s Hospital at the

emergency room. He was seen by Dr. Martin R. Haig on

October 26 and 31, 1984 for back pain and then was seen

by Dr. Russell McDonald on November 1, 1984. He then

saw Dr. M. Fukuda on November 6, 19, 27 and December

3, 1984. Ray Stanley Furrh was admitted to St. Mary Hospi-

tal and on December 14, 1984, a laminectomy and foramin-

otomy at L4-L5, LS5-S] were performed with the surgical

findings noted as follows:

Findings: On the right side the LS nerve root

is swollen, minor discoloration. On the whole

the patient has an unusual posterior element

of the bone and curved in deep. Most likely

this is the cause of spinal stenosis. LS on the

left side appears to be in normal color and

diameter as well as S1 on the left. However,

on the right side, S1 nerve root appeared to

be enlarged. The intervertebral disc is a minor

degree of pouched out. A ruptured disc ts

noted. Irrigation is carried out using Garamy-

cin solution. Hydrocortisone is sprayed. Fat

is placed as well as Gelfoam around the

laminectomized site. The wound is closed

following insertion of meovac drainage in

situ. Dry dressing is applied. At the end of the

procedure general condition is satisfactory

Post operative care was provided through January 11,

1984.

Dr. Pete Rhymes, an orthopedic surgeon, saw Ray Stanley

Furrh on May 13, 1985 periodically through June 11, 1987.

A disability rating of 5°? to 10% was assigned and restrictions

were assigned of not lifting more than forty pounds maxim-

mum. not to lift ten to fifteen pounds frequently, and no

repetitive stooping, squatting, bending, walking on uneven

surfaces and not to go up and down stairs on a frequent

basis. The last diagnosis was back pain with the limitations

outlined above. Dr. Rhymes stated Ray Stanley Furrh could

not return to work as a deckhand. Dr. Rhymes testified

that Ray Stanley Furrh’s back injury was related to the

accident of October 25, 1984. In his deposition at page 36,

16

Dr. Rhymes testified:

2)

— *

And if there was in fact no significant follow-

up following either of these accidents and

then he had the pain that he described on

October 25 and then was followed up and

subsequently and surgery performed, do you

have any problem relating the incident that

he had on October 25, to the back pain for

which you treated him”

No

And at page 10 of deposition, Dr. Rhymes testified

QO

Doctor, the history he gave you as to the

mechanics of shifting a line on a seagoing

barge. would that be consistent with the

type of injury that he suffered”

Yes. I think so

17

In 1981 the earnings were $10,550.00, $13,108.00 in

1982, $9,793.00 in 1983 and $15,513.00 in 1984.

ARGUMENT

This is a very simple Jones Act case. The captain failed

to furnish enough men to handle the lines of the seagoing

barge. This rendered the vessel unseaworthy.

In Benedict on Admiralty, Volume IB at page 3-7]

through 3-73, it is stated as follows:

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

386 U.S. 724, 87 S.Ct. 1410, 18 L.Ed.2d 484,

1967 A.M.C. 579 (1967). (The question

presented was ‘‘whether a vessel is unsea-

worthy when its officers assign too few

crewmen to perform a particular task in a safe

and prudent manner.” The plaintiff and four

other seamen were engaged in a docking

operation when the third mate instructed the

plaintiff and another crewman to put out

additional mooring line. While uncoiling this

very heavy rope the plaintiff fell and injured

his back. There was expert evidence to the

effect that “safe and prudent seamanship”’

called for assigning no fewer than three men

to handle the rope. The plaintiff contended

that the unseaworthiness lay in the fact that

too few men were assigned to perform this

specific task; there was no allegation that the

vessel as a whole was insufficiently manned,

that the rope was defective, or that the third

mate or the seaman assisting plaintiff was

incompetent. The Supreme Court reversed

18

the findings of the district court and the

court of appeals that the vessel was seaworthy

and that the plaintiff's only basis for recovery

was the negligence of other crewmembers:

“The basic issue here is whether there is any

justification, consistent with the broad

remedial purposes of the doctrine of unsea-

worthiness, for drawing a distinction be-

tween the ship’s equipment, on the one hand,

and its personnel, on the other. As regards

equipment, the classic case of unseaworthi-

ness arises when the vessel is either insuffi-

ciently or defectively equipped [Mahnich vy

Southern S.S. Co., 321 U.S. 96, 64 S.Ct.

455, 88 L.Ed. 561, 1944 A.M.C. 1 (1944)],

. And ... , even though the equipment

furnished for the particular task is itself

safe and sufficient, its misuse by the crew

renders the vessel unseaworthy [Crumady v.

JH. Fisser, 358 U.S. 423, 79 S.Ct. 445,

3 L.Ed.2d 413, 1959 A.M.C. 580 (1959)].

In Boudoin ... we said, ‘We see no

reason to draw a line between the ship and

gear on the one hand and the ship’s personnel

on the other’... We likewise see no reason

to draw that line here. That being so, under

Vahnich it makes no difference that respond-

ent’s vessel was fully manned or that there

was a_ sufficient complement of seamen

engaged in the overall docking operation, for

there were too few men assigned ‘when and

where’ the job of uncoiling the rope was to

be done. And under Crumady it makes no

difference that the third mate and two men

he assigned to perform the job were them-

selves competent seamen, or that the rope

19

was itself a sound piece of gear. By assigning

too few men to uncoil and carry the heavy

rope, the mate caused both the men and the

rope to be misused. This analysis, we believe.

is required by aclear recognition of the needs

of the seaman for protection from dangerous

conditions beyond his control and the role of

the unseaworthiness doctrine’ which, by

shifting the risk to the shipowner, provides

that protection. If petitioner had been order-

ed to use a defective pulley in lifting the rope,

he would clearly be protected by the doctrine

of unseaworthiness. If the pulley itself were

sound but petitioner had been ordered to

load too much rope on it, he would likewise

be protected. If four men had been assigned

to uncoil the rope but two of the men lacked

the strength of ordinary efficient seamen,

petitioner would again be protected. Should

this protection be denied merely because the

shipowner, instead of supplying petitioner

with unsafe gear, insufficient gear, or incom-

petent manual assistance, assigned him in-

sufficient manual assistance? We think not. . .

We [have] noted that “the hazards of mari-

time service, the helplessness of the men to

ward off the perils of unseaworthiness, the

harshness of forcing them to shoulder their

losses alone, and the broad range of the

‘humanitarian policy’ of the doctrine of

unseaworthiness,” [Reed vy. S.S. Yaka, 373

U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448,

1963 A.M.C. 1373 (1963)], should prevent

the shipowner from delegating, shifting or

escaping his duty by using others’ men or

others’ gear to perform the ship’s work.

20

By the same token, the shipowner should not

be able to escape liability merely because he

has used men rather than machines or physi-

cal equipment to perform that work.”). . .

Based on the law of the Supreme Court and the facts of

this case, there can be no other conclusion than that the

vessel was unseaworthy and the defendant failed to furnish

an adequate number of men to handle the line.

As to medical causation, there is absolutely no dispute

that Dr. Rhymes clearly stated that the surgery was related

to the accident of October 25, 1984.

21

_

CONCLUSION

We respectfully submit that the District Court and the

Fifth Circuit Court of Appeals were in error in failing to find

Sabine Towing and Transportation Company, Inc.’s vessel

unseaworthy, in failing to find Sabine Towing and Transpor-

tation Company, Inc. negligent and failing to find Ray

Stanley Furrh’s back injury causally related to the accident

of October 25, 1984.

We respectfully request that the decision be reversed in

favor of the plaintiff.

22

CERTIFICATE

I hereby certify that a copy of the Petition for Writ of

Certiorari to the United States Court of Appeals for the

Fifth Circuit on Behalf of Petitioner, Ray Stanley Furrh,

has been furnished all counsel of record on this the 17th

day of May, 1990.

ferach $) bes pand Ip sca

JOSEPH. WEIGAND, JR.

APPENDIX

la

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

CIVIL ACTION NO. B-87-1134-CA

RAY STANLEY FURRH

VS.

SABINE TOWNING &

TRANSPORTATION CO., INC.

Honorable Joseph J. Weigand, Jr.

Weigand, Weigand & Meyer

#7 Progressive Boulevard

P.O. Box 6062

Houma, Louisiana 70361

COUNSEL FOR PLAINTIFF

Honorable David E. Black

Griggs & Harrison

P.O. Box 4616

Houston, Texas 77210-4616

COUNSEL FOR DEFENDANT

EOD MAY 30 1989

(stamp)

FILED-CLERK

U.S. DISTRICT COURT

89 MAY 26 PM 2:21

TEXAS-EASTERN

BY s/s Jewel Lyons

(stamp)

2a

MEMORANDUM OPINION

The Court, having conducted a full and complete bench

trial in the above referenced matter, is called upon to decide

the claim of Ray Stanley Furth (‘Plaintiff’) against Sabine

Towing & Transportation Co., Inc. (““Defendant’’).

In this cause of action, Plaintiff seeks money damages

pursuant to the Jones Act and General Maritime Law. Plain-

tiff, a former employee of defendant, claims that he injured

himself while working as a deckhand on the M/V TITAN,

a vessel owned and operated by the defendant. Plaintiff

alleges that his back injury was caused by the Defendant’s

negligence and/or the vessel’s unseaworthiness.

Pursuant to FED. R. CIV. P. 52, the Court having con-

sidered all the evidence and the arguments of counsel, makes

the following Findings of Fact and Conclusions of Law. If

any Finding of Fact should be construed as a Conclusion of

Law, it is to be so considered; and should any Conclusion

of Law be construed as a Finding of Fact, it is to be so

considered.

FINDINGS OF FACT

1.

Plaintiff was hired by defendant on December 14, 1982.

During his initial service with the defendant he worked as a

deckhand aboard the M/V AJAX.

4

as

On October 25, 1984, Plaintiff was assigned to the defend-

ant’s vessel, the M/V TITAN as a deckhand. The vessel was

captained by Henry Reynolds. The crew included deckhands

Tom Ellis the plaintiff, and an engineer, Ferrel Frazer.

3a

3.

The M/V TITAN (a tug) is a vessel of United States Regis-

try and was, at all times material hereto, owned and operated

by the defendant.

4.

On October 25, 1984, the defendant instructed the M/V

TITAN to proceed up the Neches Waterway, near Beaumont,

Texas, to shift a barge along a dock at Harbor Island. The

barge was a seagoing barge approximately 300 feet by 75 feet

and was owned by Ottos Candies. Captain Reynolds was

instructed that his job was to make-up to the barge and press

it against the side of the dock.

2:

Upon arriving at the barge, Captain REynolds noticed

that there was a crew of longshoremen loading railroad cars

on the barge. Captain Reynolds made the M/V TITAN fast

to the starboard side of the Ottis Candies barge. The Captain

ordered his two deckhands to go aboard the barge and assist

the longshoremen in handling the lines so that the barge

could be shifted along the dock.

6.

The two deckhands proceeded with their supervisory

duties. Tom Ellis remained at the stern of the barge while

the Plaintiff proceeded to the bow.

7

Defendant did not own and did not exercise control over

the barge or its appurtenant equipment.

4a

8.

The plaintiff testified! that there were only two lines

securing the barge and that the bow line was in excess of 200

feet long. The Court finds that there were five or six lines

along the barge, all of ordinary length of approximately 60

feet. The plaintiff shifted the bow line, Tom Ellis shifted the

stern line and the longshoremen shifted the remaining lines.

9.

Piaintiff testified that as he was trying to pull the slack

out of the bow line he felt pain in his lower back.

10.

On October 25, 1984, plaintiff reported his injury and was

admitted to St. Mary’s Hospital, examined and discharged to

the care of a private physician. The Plaintiff was treated by a

Port Arthur orthopedic surgeon, Dr. Martin Haig, between

October 29 and 31, 1984. On November 1, 1984, Plaintiff

was treated by Dr. McDonald, who released him to return to

work. Plaintiff still complained of back pain and arrange-

ments were made for him to be treated by Dr. Fukuda on

November 6, 1984. Dr. Fukuda ordered a CT Scan and

determined that Plaintiff suffered from spinal stenosis. On

November 13 through 20, 1984, Plaintiff was hospitalized,

again at St. Mary’s, and underwent a lumbar laminectomy.

Dr. Fukuda provided a follow-up office visit on Januray 11,

1985. Plaintiff failed to return for later scheduled follow-

up visits.

3 Plaintiff did not attend trial. His testimony was submitted by

deposition.

Sa

11.

The Court finds that Plaintiff experienced low back

discomfort as early as June 1982 due to many events not at

issue in this cause of action. Plaintiff injured his lower back

in an automobile accident on June 28, 1982. Additionally,

on December 7, 1983, the Plaintiff suffered an injury to his

low back while manipulating a stripping wand aboard the

defendant’s vessel, the M/V AJAX!. The Plaintiff injured

his back again on October 9, 1984, while working on a car

transmission at home.

2.

The Plaintiff failed to establish that his October 25,

1985 reported onset of pain was anything other than a

continuation of the low back discomfort he experienced

from earlier events not at issue in this cause of action.

13.

The Plaintiff failed to establish that the defendant was

negligent on the occasion in question.

14.

The Plaintiff failed to establish that the M/V TITAN was

unseaworthy. At all time material hereto, the M/V TITAN

was sufficiently manned and equipped and was seaworthy

in all respects.

1... The injury the plaintiff suffered aboard the M/V AJAX on

December 7, 1983 is barred by the three year statute of limitations.

Alvertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223 (5th Cir. 1984).

6a

15.

The pretrial order reflects that the plaintiff only alleged

damages in the nature of pain and suffering and physical

disabilities.

CONCLUSIONS OF LAW

I.

This proceeding is brought under the Jones Act, 46 U.S.C.

section 688 and the General Maritime Law. This Court has

jurisdiction over the parties and subject matter of this action.

28 U.S.C. sections 1331, 1333.

Il.

The M/V TITAN is a vessel for purposes of the Jones

Act and the General Maritime Law in that it is a water

craft built for navigation and commerce. Cook vy. Belden

Conc. Prod., Inc., 472 F.2d 999, 1001 (Sth Cir. 1972),

cert. denied 414 U.S. 868, 38 L.Ed.2d 116 (1973).

IIT.

On October 25, 1984, the plaintiff was a seaman and a

member of the crew of the M/V TITAN. Offshore Co. vy.

Robison, 266 F.2d 769, 779 (Sth Cir. 1959).

IV.

The burden of proving, negligence and unseaworthiness

falls on the injured seaman. Chisolm vy. Sabine Towing &

Transportation Co., Inc., 679 F.2d 60, 62 (Sth Cir. 1982).

7a

V.

Setting aside the seaworthiness issue, a ship owner is only

negligent “if he fails to use reasonable care to maintain a

reasonably safe place to work”’. /ivy v. Security Barge Lines,

Inc., 585 F.2d 732, 741 (Sth Cir. 1978).

VI.

Despite the fact that even slight negligence will give rise

to Jones Act liability, the fact that an injury or accident

occurs does not by itself presuppose the negligence of a

ship owner. Marvin v. Central Gulf Lines, Inc., 554 F.2d

1295, 1299 (Sth Cir. 1977), cert. denied, 434 U.S. 1035, 54

L.Ed.2d 782 (1978). Defendant was not negligent.

VII.

Although a ship owner has an absolute duty to provide a

seaworthy vessel, Mitchell v. Trawler Racer, Inc., 362 US.

539, 549, 4 L.Ed.2d 941, 948 (1960), the vessel’s warranty

of seaworthiness stops at the gangway. Russel v. City Ice &

Fuel Co. of Point Pleasant, 539 F.2d 1318 (4th Cir. 1976).

The evidence here does not establish that the defendant’s

vessel, the M/V TITAN was unseaworthy or that such con-

dition proximately caused an injury to the plaintiff. Plaintiff

contends that his injury occurred aboard the Ottos Candies

barge. He does not contend that his accident had anything

to do with the condition of the M/V TITAN or its appurten-

ances. Thus, defendant’s duty of seaworthiness does not

come into play.

CONCLUSION

The plaintiff's evidence presented to the Court fails to

establish that the defendant was negligent or that the M/V

TITAN was unseaworthy.

8a

Accordingly, it is ORDERED, ADJUDGED and DE-

CREED that the plaintiff take nothing from the Defendant.

Taxable costs of court, if any, are assessed against the party

incurring same.

SIGNED this 26 day of May, 1989.

s/s (illegible)

UNITED STATES DISTRICT JUDGE

9a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

C.A. NO. B-87-1134-CA

RAY STANLEY FURRH

VS.

SABINE TOWING & TRANSPORTATION

CO., INC.

EOD MAY 30 1989

(stamp)

FILED-CLERK

U.S. DISTRICT COURT

89 MAY 26 PM 2:20

TEXAS-EASTERN

BY s/s Jewel Lips

(stamp)

FINAL JUDGMENT

The Court, after having filed its Findings of Fact and

Conclusions of Law herein directing the entry of judgment in

favor of Defendant and against the Plaintiff, it is

ORDERED, ADJUDGED and DECREED that the Plain-

tiff. Ray Stanley Furrh, take nothing from the Defendant,

10a

Sabine Towing & Transportation Co., Inc. and that this case

be, and hereby is dismissed with prejudice.

DONE at Beaumont, Texas this 26 day of May, 1989.

s/s_ (illegible)

UNITED STATES DISTRICT JUDGE

lla

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-2635

Summary Calendar

RAY STANLEY FURRH,

Plaintiff-Appellant,

versus

SABINE TOWING & TRANSPORTATION

COMPANY, INC..,

Defendant-Appellee

Appeal from the United States District Court for the

Eastern District of Texas

(CA-B-87-1134)

(February 16, 1990)

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

PER CURIAM: !

In this bench-tried, personal injury suit brought under the

Jones Act and the general maritime law, plaintiff-appellant

2; Local Rule 47.5 provides: ‘“‘The publication of opinions that have

no precedential value and merely decide particular cases on the basis of

well-settled principles of law imposes needless expense on the public

and burdens on the legal profession.”” Pursuant to that Rule, the Court

has determined that this Opinion should not be published.

12a

Ray Stanley Furrh (Furrh) appeals the district court’s judg-

ment in favor of his employer, defendant-appellee Sabine

Towing & Transportation Company, Inc. (Sabine). We affirm.

The district court found that Furrh had failed to establish

negligence on the part of Sabine and likewise had not estab-

lished unseaworthiness. The court further found that Furth

had failed to establish that the back pain he allegedly suffer-

ed on the day in question was due to anything other than a

continuation of Furrh’s back problems arising from other

prior incidents not made the basis of this suit. Furrh asserts

on appeal that the district court was clearly erroneous in

failing to find that Sabine’s tug on which Furrh was a deck

hand was unseaworthy because its captain failed to furnish

enough men to handle the lines of the third-party barge

which were used to tie the barge to the dock.

Furrh’s theory was that he injured his back while pulling

an approximately six- to eight-inch circumference, two-

hundred-foot-long line, which was too heavy for one man to

handle. However, there was evidence from another deck

hand that the lines on the barge were the smaller lines of

approximately five-inch circumference and two-inch diameter

and less than one hundred feet long. There was also evidence

that the tug had only two types of lines, two-hundred-foot-

long lines of approximately nine-inch circumference, and

smaller lines of approximately five-inch circumference and

one hundred feet or less in length. The district court clearly

credited the testimony of the other deck hand, and failed

to credit Furrh’s testimony. There was no evidence—certainly

no compelling evidence—that the smaller lines required two

people to handle them, and the testimony of the other

deck hand clearly suggests that the smaller lines did not

require two people. Further, the testimony of the captain

and the other deck hand indicates that the deck hands were

not instructed to tie off the barge, but rather merely to be

13a

sure that the longshoremen tied it off properly. There was

nothing which would have compelled the district court to

find that Furrh was required to handle the line by himself

or that help from the longshoremen was not available. We

are unable to conclude that the district court was clearly

erroneous in determining that Furth had not carried his

burden of persuasion to establish either unseaworthiness or

negligence.

Nor can we say that the district court was clearly erron-

eous in its further determination that Furrh had not carried

his burden of persuasion to establish that the back pain he

reported incurring on the day in question, October 25,

1984, was other than simply a continuance of back troubles

he experienced from prior unrelated incidents. The other

deck hand testified that Furrh came down to where the other

deck hand was on the barge and bent over to inspect the line

tie there and, when he straightened up, said that liis back

hurt, all in such a manner to indicate that he had just hurt

it when bending over. Further, it was shown that Furth

injured his lower back in an automobile accident on June

22, 1982, and sustained another back injury, this time on

the job, in December 1983, and then approximately two

weeks before the alleged incident in question, reinjured his

back handling an automobile transmission when he was off

work. Furrh’s doctor on deposition answered ‘‘No” to a

question asking if there had been “‘no significant follow-up”

of the prior incidents, and if Furrh had the pain he described

on October 25, “[D]o you have any problem relating the

incident that he had on October 25, to the back pain for

which you treated him?” This doctor apparently first saw

Furth on May 13, 1985. We observed that Furrh had also

been involved in an automobile accident in January 1985.

The doctor also answered on deposition, “Yes, I think

so” to a question asking whether shifting a line on a barge

“would . . . be consistent with the type of injury that he

14a

suffered?” While this testimony might have supported a

finding in Furrh’s favor in this respect, it does not compel

it, particularly as Furrh had told the doctor he did not have

back problems prior to October 25, 1984, it was not clearly

established that Furrh had fully recovered from his prior

back problems by that time, and the doctor noted that at

least some of the back problems he observed could be either

congenital or induced by trauma, and he was not sure which

was the case.

On a more general level, there was no corroborating

evidence to the incident in question as related by Furth,

his credibility was impeached, and the district court was

simply not required to believe all that he stated.

Since we cannot say that the district court’s findings

are clearly erroneous, the judgment below is

AFFIRMED.