Opposition Brief — Ardoin v. Seacor Marine, Inc.

ied _

In the

Supreme Court of the United States

OCTOBER TERM, 1993

JODY WAYNE ARDOIN

Petitioner

versus

SEACOR MARINE, INC.

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MARK J. SPANSEL

Counsel of Record

EDWIN C. LAIZER

ADAMS AND REESE

4500 One Shell Square

New Orleans, Louisiana 70139

Telephone: (504) 581-3234

Attorneys for Respondent,

Seacor Marine, Inc.

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTION PRESENTED FOR REVIEW

1. In this Jones Act and unseaworthiness case, did the

United States Court of Appeals for the Fifth Circuit act

correctly in affirming the trial judge’s factual determina-

tion that the complainant failed to meet his burden of proof

where the trial judge disbelieved the complainant’s version

of events and found as a matter of fact that the alleged acci-

dent was caused not by any negligence or unseaworthiness

attributable to the defendant, but by the complainant’s

failure to hold the handrails while he attempted to carry his

duffel bag down the vessel stairway on which he fell?

ij

LIST OF INTERESTED PERSONS

Mark J. Spansel and Edwin C. Laizer of the law firm of

Adams and Reese, counsel for respondent Seacor Marine,

Inc., certify that the following listed parties have an in-

terest in the outcome of this case. This representation is

made pursuant to Rule 24.1(b) of the Rules of the Supreme

Court of the United States:

1. Jody Wayne Ardoin - Complainant/Petitioner

2. Mr. Richard J. Arsenault

Mr. Galen W. McBride

NEBLETT, BEARD & ARSENAULT

P. O. Box 1190

Alexandria, Louisiana 71309-1190

Attorneys for Complainant/Petitioner

S. Seacor Marine, Inc.! Defendant/Respondent

1 Pursuant to Rule 29.1 of the Rules of the Supreme Court of the United

States, Seacor Marine, Inc. provides the following list of its parent com-

panies and subsidiaries:

Acadian Offshore Services, Inc. Seacor Ocean Boats, Inc.

Acadian Supply Ships, Inc. Seacor Ocean Lines

Anna Offshore, Inc. Seacor Ocean Support Services,

Inc.

LIST OF INTERESTED PERSONS (continued)

4, Mark J. Spansel

Edwin C. Laizer

ADAMS AND REESE

4500 One Shell Square

New Orleans, Louisiana 70139

Attorneys for Defendant/Respondent

(footnote 1 continued)

Arthur Levy Enterprises Seacor Offshore, Inc.

Gem Shipping, Inc. Seacor Supply Ships Associa-

Gem Shipping, Ltd. tion, Ind.

Seacor Holdings, Inc. Storm Shipping, Inc.

Seacor Marine (Gabon), Inc. Vector-Seacor Ltd.

Seacor Marine International, Veesea Holdings, Inc.,

Inc. West Africa Offshore, Ltd.

Seacor Marine (Nigeria), Inc.

iv

TABLE OF CONTENTS

Page

Questions Presented For Review .................... i

List of Interested Persons ......................... ii

ae I soe weds Oe bee ehh eaecese at eens een iv

Dene OE AMUMOTIOD . ww. ccc eee cttnesences Vv

I nh ad gal al ee 2

Statutory Provisions Involved...................... 2

IS OE UI GID. og nn cs cc ccc enced saves ce: 2

SEE Fos acta ts rk GG ph aes brie arate sae ant 10

I. No Special and Important Reasons Exist to

oc ces sO tate hey stones 10

Il. The Factual Findings of the Trial Court Were

Correct and Were Properly Affirmed Under the

Clearly Erroneous Standard................. 13

III. Both the Trial Court and the Fifth Circuit Ap-

ets CO WOME BAND... oo ccc cewcsses: 15

TE EE EORTC ECO RECEP, ae, 20

Cees Gr ND kd kk cece we wee wsecveceeun 22

v

TABLE OF AUTHORITIES

CASES Page

Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ........ 14

Armour Research Found. of Iii. I. of T. v. Chicago,

R.I. & P.R. Co., 311 F.2d 493 (7th Cir. 1963)....... 15

Ferguson v. Moore-McCormack Lines, 352 U.S. 521,

1 L.Ed.2d 511, 77 S.Ct. 457 (1957)........ 16,17,18,19

Gavagan v. U.S., 955 F.2d 1016 (5th Cir. 1992)... .14,19

Gifford v. National Gypsum Co., 753 F.2d 1345 (5th

RT POPE rer ee rr i es Aad 14

Integrated Circuits Unlimited v. E.F. Johnson, Co.,

875 F.2d 1040 (2d Cir. 1989).................. 15,16

Layne and Bowler Corp. v. Western Well Works,

Inc., 261 U.S. 387, 67 L.Ed. 712, 43 S.Ct. 422

SL Se er a8 Reh RE nn le 11

Noritake Co., Inc. v. M/V HELLENIC CHAM-

PION, 627 F.2d 724 (5th Cir. 1980) .............. 14

Page v. St. Louis Southwestern Railway Company,

349 F.2d 820 (5th Cir. 1965)..................... 18

Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 1

L.Ed.2d 493, 77 S.Ct. 443, reh. den., 353 U.S. 943,

1 L.Ed.2d 764, 77 S.Ct. 808 (1957)........ 16,17,18,19

vi

TABLE OF AUTHORITIES (continued)

CASES Page

Spinks v. Chevron Oil Company, 507 F.2d 216 (5th

Cir. 1975), clarified, 546 F.2d 675 (5th Cir. 1977) ...19

STATUTES AND RULES

Federal Rules of Civil Procedure, Rule 52(a) 2,14,A-1 |

Federal Rules of Civil Procedure, Rule 52(b) 20

Federal Rules of Civil Procedure, Rule 59 20 |

Federal Rules of Civil Procedure, Rule 61 20

U. S. Supreme Court Rule 10.1 11

U. S. Supreme Court Rule 14.1 10

U. S. Supreme Court Rule 24.1(b) vate a ii

U. S. Supreme Court Rule 29.1 ii

45 U.S.C.A.§51........... : 2.A-3

46 U.S.C.A. § 688 2,3,A-2

l

NO. 93-1155

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

JODY WAYNE ARDOIN

Petitioner

versus

SEACOR MARINE, INC.

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Following a bench trial of this Jones Act and

unseaworthiness case, the district court found as a matter

of fact that petitioner Jody Wayne Ardoin (“‘Ardoin”) had

failed to meet his burden of proof, as a result of which judg-

ment was entered in favor of respondent, Seacor Marine,

Inc. (‘‘Seacor’’). That conclusion was summarily affirmed

by the United States Court of Appeals for the Fifth Circuit.

Despite the fact that the case turned on issues of fact and

credibility, Ardoin now asks this Honorable Court to exer-

cise its jurisdiction to review the case. Seacor respect-

2

fully submits that Ardoin’s Petition for Writ of Certiorari

should be denied for the reasons set forth below.

OPINIONS BELOW

The United States District Court for the Western |

District of Louisiana, docket number CV91-0290-L,

rendered its “Memorandum Opinion” rejecting com-

plaint’s claims on December 8, 1992. Judgment was

entered in favor of Seacor on December 9, 1992. (Peti-

tioner’s App. at A-6 through A-12 and A-13, respectfully).

The United States Court of Appeals for the Fifth Cir-

cuit summarily affirmed the trial court in an unpublished

decision bearing docket number 92-5281 and entered into

the record on October 1, 1993. (Petitioner's App. at A-1l

through A-5).

STATUTORY PROVISIONS INVOLVED

1. Federal Rule of Civil Procedure 52(a) - Reproduced

in Appendix.

2. The Jones Act, 46 U.S.C.A. § 688(a) - Reproduced in

Appendix.

3. The Federal Employers’ Liability Act, 45 U.S.C.A

§ 51 - Reproduced in Appendix.

STATEMENT OF THE CASE

In this Jones Act and unseaworthiness case, peti-

tioner Ardoin claimed to have fallen down an interior stair-

ef

3

way on the M/V SEA ISLAND, a vessel owned, maintained

and operated by respondent Seacor. At the time of the

alleged accident, Ardoin was the mate aboard the M/V

SEA ISLAND, on which he had been assigned for one

week. He was an experienced seaman, having worked for

Seacor for slightly over three years in a variety of positions

aboard numerous vessels.

At approximately 5:30 a.m. on the morning of Oc-

tober 11, 1990, the M/V SEA ISLAND was moored at a

dock in Cameron, Louisiana. Ardoin, who was going ashore

as part of a normal crew change, fell while attempting to

descend the stairway running from the forecastle deck to

the main deck of the M/V SEA ISLAND. The accident was

unwitnessed and occurred as Ardoin started down the

stairs carrying his sea bag, which was approximately 3’

long, weighed roughly 15 lbs., and contained his personal

clothes and gear.

On February 11, 1991, Ardoin filed suit against

Seacor in the United States District Court for the Western

District of Louisiana, Lafayette-Opelousas Division, alleg-

ing claims under the Jones Act, 46 U.S.C. § 688, and under

the general maritime law theory of unseaworthiness. Ar-

doin waived his right to a jury and in November, 1992, the

case was tried to District Judge Richard J. Putnam, who

has over thirty-one years experience on the federal bench.

After hearing all of the evidence and having the opportuni-

ty to assess the demeanor and credibility of the witnesses,

Judge Putam disbelieved Ardon’s version of events and

concluded that the accident was caused by Ardoin’s failure

to use the available handrails, rather than by any

4

negligence or unseaworthiness on the part of Seacor.

Although Ardoin initially attempted to suggest in

his trial testimony that he was holding the handrails at the

time he fell, he finally admitted, after rigorous cross-

examination, that he could not remember whether he was

using the handrails. However, Ardoin did not admit this

crucial point without first attempting to avoid it, and even

then, admitted it only in response to questioning by the

trial judge:

Q: All right. Do you remember whether you

were using the handrail?

A: I would think so. I have a good habit of us-

ing them.

Q: But you really don’t recall whether you

were or not? You don’t specifically recall whether

you were using the handrail, do you?

A: I would think so.

Q: You think so but you don’t recall?

THE COURT:

Q: Do you remember; were you using the

handrail or not? If you don’t know, say you

don’t remember or whatever. If you do remember,

say so. We don’t want to know what you think.

THE WITNESS:

A: I don’t remember.

(Record, Vol. IV, pg. 58, In. 19 through pg. 79, In. 7.)

Within fifteen minutes after the accident, Ardoin

completed two accident reports in his own handwriting,

one for Seacor and one for the dock owner, Conoco. In the

Seacor accident report, Ardoin wrote “I was coming down

the stairs an [sic] to the galley and fall [sic]. I was carrying

my bag of clothes.” In the Conoco accident report, Ardoin

wrote “I was coming down the stairs to the galley and fell.

I had a bag in my hand.”’ In neither report did Ardoin men-

tion anything about any condition of the vessel playing any

part in his accident.

Throughout this litigation, Ardoin attempted to

gloss over the obvious fact that his accident was caused by

his failure to hold the handrail by claiming that his acci-

dent was caused by some condition of the stairway. In so

doing, Ardoin took what could best be described as a

“‘shotgun”’ approach, throwing out a number of mercurial

theories and hoping to convince the lower courts that

Seacor was at fault.

Ardoin’s original complaint specifically alleged only

that the lighting was insufficient. In the pre-trial stipula-

tions filed in the trial court, Ardoin modified his claim to

allege that the accident occurred because at the time of the

accident: (1) there were no lights on inside the vessel; (2) the

non-skid material on the stairs was worn and in poor condi-

tion; and, (3) there was an accumulation of foreign

6

substances present on the stairs. At trial, Ardoin’s conten-

tions shifted again, as he added for the first time the claim

that the stairs were not deep enough and were too steep.

As is recognized in Section III of the Fifth Circuit's

summary opinion in this case (Petitioner’s App. at A3-4),

Ardoin failed to prove that any of these alleged conditions

contributed to his fall. Consequently, both of the lower

courts concluded as a matter of fact that Ardoin had failed

to meet his burden of proving negligence and legal causa-

tion. To illustrate the correctness of the lower courts’ deci-

sions, Seacor will briefly outline the evidence which was

presented at trial regarding each of the conditions which

Ardoin sought to blame for his accident.

1. Condition of the Non-Skid Tape

In his Petition for Writ of Certiorari at page 3, Ar-

doin now claims that his fall was caused “‘... primarily by

the worn and frayed condition of the non-skid tape covering

a portion of each tread on the stairwell.’’ At trial, Ardoin

described the non-skip tape as ‘‘worn, torn, peeling, smooth

and slick, frayed,’’ a phrase which he disingenuously denied

having memorized in preparation for his testimony. The

lower courts contrasted the articulateness of this descrip-

tion with Ardoin’s inability to recall how many handrails

were present in the stairwell and with his narration of the

accident in the two aforementioned handwritten accident

reports which he completed within minutes of his fall. In

neither of those accident reports did Ardoin mention

anything about any alleged insufficiency or involvement of

the non-skid tape. Indeed, as noted above, the allegation of

inadequate non-skid tape did not even appear in Ardoin’s

original complaint, which was filed four months after the

accident.

7

Contrary to the suggestion contained in Ardoin’s

Petition for Writ of Certiorari, Ardoin’s claim was ab-

solutely not supported by the testimony of deckhand

Michael Sampson. While Sampson did testify on direct ex-

amination that the tape was worn, Ardoin fails to appraise

this Court of the fact that on cross-examination, Sampson

directly contradicted himself by stating that the tape was

still “‘pretty good.’’ Sampson also contradicted Ardoin’s

testimony that the vessel had run out of non-skid tape so

that the crew could not finish replacing the tape, a routine

maintenance task which Ardoin had started but failed to

complete in the days before his fall. When examined on this

topic, Sampson testified that the tape was never used on

outside steps (as Ardoin claimed) and that he did not recall

running out of tape. Again, this important fact is omitted

from Ardoin’s Petition for Writ of Certiorari.

Ardoin’s papers also attempt to suggest that his ver-

sion of events was supported by the ship’s cook. Patricia

Steinauer. While Ardoin represents to this Honorable

Court that Steinauer testified that the non-skid tape was

wearing out, he fails to point out that the trial court flatly

rejected Ms. Steinauer’s hopelessly confused and con-

tradictory testimony, calling it ‘“‘valueless.’’ As the trial

court correctly noted, Ms. Steinauer testified at trial that

she never used the steps in question. She also repudiated as

‘mistakes’ two earlier recorded statements in which she

had indicated that she was sitting in the galley at the time

of the accident. At trial, she testified that she was actually

in her room asleep at the time.

Seacor presented the clear, credible and convincing

testimony of Gary Williams, the captain of the M/V SEA

8

ISLAND. He deflated Ardoin’s claim that the vessel had

run out of non-skid tape by explaining that he had not

ordered Ardoin to use the tape outside, because non-skid is

used only on inside stairways. Captain Williams also

testified that there were at least two rolls of non-skid tape

in stock on the vessel at the time of the accident, which he

remembered because he had obtained the tape from

Seacor’s safety representative several weeks earlier. With

respect to the condition of the tape on the day of the acci-

dent, Captain Williams testified that after he learned of the

alleged accident, he inspected the steps and found that

although it had been in use for some time, the tape was still

in good condition and still had good traction qualities.

Seacor also offered the testimony of Arthur

Sargeant, who was accepted by the trial court as an expert

in naval architecture and marine engineering. Mr. Sargeant

explained that even without the non-skid tape, the

checkered plate, raised diamond patterned surface of the

steps made them safe and slip-resistant. Mr. Sargeant

characterized the tape as an “extra precaution’’ and ex-

plained that even tape in a condition like that described by

Ardoin would not have presented either a tripping or slipp-

ing hazard.

2. Insufficient Lighting

Although his pre-trial pleadings suggested that

there were no lights on inside the vessel, Ardoin admitted

at trial that in actuality, there were lights on at the top and

bottom landings of the stairway, in the bathrooms at the

top and bottom of the stairway, and in the engineer’s room,

9

which was directly across from the top of the stairway.

Several witnesses, including Sampson, Williams and

Sargeant, testified that the lighting was adequate and suf-

ficient. Sargeant’s testimony established that the lighting

not only met Coast Guard standards, but also met good

naval architecture and marine engineering standards.

3. Foreign Substances on Stairs

Although this claim was included in his pre-trial

pleadings, Ardoin was forced to abandon it at trial. On

direct examination by his own counsel, this claim was not

discussed. When confronted on cross-examination with his

claim in the pre-trial stipulations that foriegn substances

had been involved in the accident, Ardoin initially attemp-

ted to claim that there ‘‘could have been’ a foreign

substance present. However, when pushed, Ardoin even-

tually withdrew this contention and admitted that he was

no longer claiming that a foreign substance was involved.

Not surprisingly, Sampson and Williams, the other

witnesses who testified as to the condition of the steps on

the day of the accident, both confirmed that the steps were

clean and free of foreign substances.

4. Depth and Steepness of Steps

The issue as to whether the steps were too steep or

too narrow was raised for the first time at trial. Again, this

allegation was contradicted by the testimony of the

witnesses, particularly including Mr. Sargeant, who ex-

plained that the stairway was similar in design and con-

struction to those on most offshore supply vessels. As Mr.

Sargeant explained, the M/V SEA ISLAND is a Coast

10

Guard inspected vessel and the stairway in question met

both Coast Guard and A.B.S. requirements.

The Trial Court’s Conclusion

Having heard all of the testimony and viewed the

numerous exhibits which were offered into evidence, the

trial judge concluded that Ardoin failed to carry his burden

of proving negligence or unseaworthiness. In so doing, the

trial judge made credibility determinations and came to the

conclusion that Ardoin’s version of events was not

believable, specifically finding as a matter of fact that Ar-

doin did not hold the handrails as he proceeded down the

steps and that it was the failure to use the handrails which

caused the accident. The trial court also found that none of

the alleged conditions cited by Ardoin contributed to the

accident. These factual findings were summarily affirmed

by the United States Court of Appeals for the Fifth

Circuit.”

ARGUMENT

I. No Special and Important Reasons Exist to Grant

_ Certiorari

This was a fact-specific case in which the able and ex-

perienced trial judge carefully considered the evidence and

2 Ardoin actually appealed only the Jones Act negligence issue to the

Fifth Circuit. Likewise, in his petition for writ of certiorari in this Court,

Ardoin does not brief the lower courts’ rejection of his unseaworthiness

claim; accordingly, the unseaworthiness claim is not before this Court.

See Rule 14.1 of the Rules of the Supreme Court of the United States.

11

testimony, drew conclusions regarding the demeanor and

credibility of the witnesses, and made factual findings

which were fully supported by the record. Although he at-

tempts to couch the issue presented to this Honorable

Court as a question of law, Ardoin’s Petition for Writ of

Certiorari effectively asks this Court to review the trial

judge’s factual conclusion that Ardoin failed to prove his

claims against Seacor, which is the same argument that

was summarily rejected by the Fifth Circuit. Ardoin’s Peti-

tion for Writ of Certiorari presents none of the ‘‘special and

important reasons’ which would be required to justify

review by this Court.

It is axiomatic that review on writ of certiorari is not

a matter of right, but of judicial discretion. For many

years, in determining whether writs of certiorari should be

granted, this Court has applied the principle:

... that it is very important that we be consistent

in not granting the writ of certiorari except in

cases involving principles the settlement of which

is of importance to the public as distinguished

from that of the parties, and in cases where there

is a real and embarrassing conflict of opinion and

authority between the circuit courts of appeal.

Layne and Bowler Corp. v. Western Well Works, Inc., 261

U.S. 387, 393, 67 L.Ed. 712, 714, 43 S.Ct. 422, 423 (1923).

For this reason, Rule 10.1 of the Rules of the Supreme

Court of the United States makes clear that review on writ

of certiorari will be granted only when there are “‘special

and important reasons therefore.’ The rule sets forth the

following examples of the ‘‘character of reasons’’ that will

12

justify review:

(a) When a United States court of appeals has

rendered a decision in conflict with a decision

of another United States court of appeals on

the same matter; or has decided a federal

question in a way in conflict with a state

court of last resort; or has so far departed

from the accepted and usual course of

judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an

exercise of this Court’s power of supervision.

(b) When a state court of last resort has decided

a federal question in a way that conflicts

with the decision of another state court of

last resort or a United States court of

appeals.

(c) When a state court or a United States court

of appeals has decided an important question

of federal law which has not been, but should

be, setiied by this Court, or has decided a

federal question in a way that conflicts with

applicable decisions of this Court.

For obvious reasons, this list does include what Ardoin

seeks; i.e., review of the factual findings of lower federal

courts.

Reference to petitioner's papers will show the

absence of any statement regarding the existence of any

alleged ‘‘special and important reasons”’ for review. This, of

course, is because no such reasons exist in this case, which

turned on questions of fact and credibility. For this reason

alone, petitioner’s writ application should be denied.

EEE EE OOOO eeeee.mLlLlLl

13

II. The Factual Findings of the Trial Court Were Cor-

rect and Were Properly Affirmed Under the Clearly

Erroneous Standard

As discussed above in the “Statement of the Case”’

portion of this brief, although he modified his claims

several times during the course of the litigation, Ardoin

went into the trial alleging that his fall was caused by worn

non-skid tape on the steps, inadequate lighting, the nar-

rowness and steepness of the steps, and the presence of

foreign substances on the steps. Under cross-examination,

Ardoin abandoned the foreign substance claim. The re-

maining claims were carefully considered and rejected by

the trial court after hearing all of the evidence.

The trial court’s ‘‘Memorandum Opinion”’ carefully

dissected each of Ardoin’s remaining claims. (See Peti-

tioner’s App. at A-6 through A-12). Noting the inconsisten-

cies in Ardoin’s testimony and the contradictions in the

testimony of his witnesses, the trial judge accepted the

testimony of Seacor’s witnesses and found: (1) that

although the non-skid tape had been in use for some time

and was worn, it was not frayed, torn or dangerous as plain-

tiff cliamed; (2) that the lighting was proper and adequate;

and (3) that the depth and steepness of the stairway was

normal and appropriate.

Most importantly, the trial court also found that Ar-

doin was not holding the easily accessible handrails as he

descended the stairs and that this caused the accident.

Remarkably, Ardoin’s Petition for Writ of Certiorari never

mentions this crucial factual finding.

It is clear that questions of negligence and causation

14

in admiralty cases are treated as factual findings and are

reviewed under the clearly erroneous standard. See

F.R.C.P. 52(a) and Gavagan v. U.S., 955 F.2d 1016, 1019

(5th Cir. 1992), quoting Noritake Co, Inc. v. M/V

HELLENIC CHAMPION, 627 F.2d 724, 727-28 (5th Cir.

1980). Under this standard, a factual finding is clearly er-

roneous only ‘‘when although there is evidence to support

it, the reviewing court on the entire evidence is left with a

definite and firm conviction that a mistake has been com-

mitted.’’ Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

Where there are two permissible views of the evidence, the

fact finder’s choice between them cannot be clearly er-

roneous. Anderson, supra, 470 U.S. at 573-74, 105 S.Ct. at

1511.

Rule 52(a) of the Federal Rules of Civil Procedure

specifically requires that due regard be given to the oppor-

tunity of the trial court to judge the credibility of the

witnesses. Credibility choices and the resolution of conflic-

ting testimony are matters within the province of the trial

court sitting without a jury, subject only to the clearly er-

roneous rule. Gifford v. National Gypsum Co., 753 F.2d

1345 (5th Cir. 1985).

The trial court in this case was confronted with in-

credible and inconsistent testimony from Ardoin regarding

his unwitnessed accident and was further confronted with

inconsistent and conflicting evidence from the witnesses

Ardoin called to support his case. Seacor’s witnesses, on

the other hand, were consistent, credible and impressive.

As was his duty, the trial judge utilized his extensive ex-

perience to weigh the evidence and the conflicting

15

testimony and made the factual finding that there was no

negligence or unseaworthiness on Seacor’s part and that

the accident was caused by Ardoin’s failure to hold the

handrail. The United States Court of, Appeals for the Fifth

Circuit had no difficulty in summarily affirming these

findings.

Seacor submits that the factual findings at issue are

precisely the kinds of findings which must upheld under

the clearly erroneous standard. The lower courts acted cor-

rectly in rejecting Ardoin’s claims, and Ardoin’s Petition

for Writ of Certiorari should be denied.®

III. Both the Trial Court and the Fifth Circuit Applied

the Proper Law

Recognizing the futility of attacking the trial court's

factual findings, Ardoin argues that the trial court applied

an improper legal standard in deciding this case. In par-

ticular, Ardoin argues that the trial court evaluated his

conduct under a standard of “ordinary care.” Citing

3 Ardoin seems to suggest in his Petition for Writ of Certiorari at page

6 that the trial court's denial of Seacor’s motion for judgment as 4 mat-

ter of law at the close of Ardoin's case somehow establishes the correct-

ness of his position. In the first place, Ardin’s account of the trial

Judge's comments in denying the motion is misleading; taken in their

entirety, the comments clearly show that the judge was not ruling on

liability, but was simply exercising his right to hear the defendant's

case. Moreover, it is obvious that the denial of a motion for judgment

as a matter of law at the conclusion of the plaintiff's case cannot be con-

strued as a ruling in favor of the plaintiff on the merits, because if it

could, then virtually every case would end at the conclusion of the plain-

tiff's case, depriving the defendant of the right to to put on evidence. See

Armour Research Found. of Ii I. of T. v. Chicago, RL. & P_R. Co., 311

F.2d 493 (7th Cir. 1963), cert. denied 372 U.S. 966, 10 L.Ed.2d 129, 83

S.Ct. 1091 (1964) and Integrated Circuits Unlimited v. E.F. Johnson Co.,

16

several Fifth Circuit cases, Ardoin asserts that a Jones Act

seaman’s conduct should be evaluated under a stand-

ard requiring the seaman to exercise only a slight duty to

protect himself.4

Ardoin’s argument is fatally flawed from the outset

because while he claims that an improper legal standard

was applied to his conduct (i.e., comparative negligence),

the reality is that the comparative negligence issue was

never reached, because, as the Fifth Circuit noted in its opi-

nion, the trial court determined that Ardoin failed to carry

his burden of proving negligence or causation, slight or

otherwise, on the part of Seacor. Without proof of these

threshold issues, there could be no liability regardless of

the standard used to judge Ardoin’s actions.

In any event, the trial court correctly applied the law

as enunciated by this Court. In Ferguson v. Moore-

McCormack Lines, 352 U.S. 521, 1 L.Ed.2d 511, 77 S.Ct.

457 (1957), this Court recognized that the appropriate stan-

dard of care for a Jones Act employer is that set forth in

Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 524, 559,

1 L.Ed.2d 493, 515, 77 S.Ct. 443, 459, 478, reh. den., 353

U.S. 943, 1 L.Ed.2d 764, 77 S.Ct. 808 (1957), a F.E.L.A.

3 875 F.2d 1040 (2d Cir. 1989), both of which rejected similar arguments.

4As he did in the Fifth Circuit, Ardoin takes issue in this Court only

with the trial court’s handling of the Jones Act claim. He has not argued

or briefed the unseaworthiness issue, which is therefore waived. See

footnote 3 above.

17

case:

It involves the same general concept on which is

based every ‘negligence case’ in the state courts

and in the multitudinous cases in the federal

courts on diversity of citizenship in which the

question is merely one of common-law negligence;

that is, it is the familiar type of litigation that is

part of the day-to-day business of state and

federal trial judges.

Rogers, supra, 352 U.S. at 538, 1 L.Ed.2d at 527.

With regard to causation, this Court said in Rogers,

supra, 352 U.S. at 506, 1 L.Ed.2d at 499:

Under [the FELA], the test of a jury case is simp-

ly whether the proofs justify with reason the con-

clusion that employer negligence played any part,

even the slightest, in producing the injury or

death for which damages are sought.

In discussing the burden of proof applied to this

case, Judge Putnam quoted directly from this Court’s

decisions:

So far as the claim under the Jones Act for

negligence is concerned, Plaintiff must prove not

only that there was negligence on the part of his

employer, Seacor Marine, Inc., but that such

negligence ‘‘played any part, even the slightest,

in producing the injury ... for which damages are

sought.’’ See Rogers v. Missouri Pacific Railroad,

352 U.S. 500, 524, 559, 1 L.Ed.2d 493, 515, 77

S.Ct. 443, 459, 478, reh.den., 353 U.S. 943, 1

L.Ed.2d 764, 77 S.Ct. 808 (1957); and Ferguson v. |

Moore-McCormack Lines, 352 U.S. 521, 1

18

L.Ed.2d 511, 77 S.Ct. 457 (1957), and their pro-

geny. After carefully considering all of the

evidence introduced by Plaintiff and that opposed

to it, we cannot say that this burden has been car-

ried. (See Petitioner’s App. at A-10).

This excerpt of the trial court’s opinion clearly shows that

the trial court correctly applied the legal standard

developed by this Honorable Court in Ferguson and Rogers

and concluded that Ardoin had failed to carry his burden of

proving negligence or causation against Seacor.®

Since comparative fault was never reached, the issue

Ardoin attempts to raise is moot. However, even if com-

parative fault were properly at issue, evaluation of Ar-

doin’s conduct under an “‘ordinary prudence’”’ standard of

care would have been appropriate under the law establish-

ed by this Court. Indeed, in Page v. St. Louis Southwestern

~ Railway Company, 349 F.2d 820 (5th Cir. 1965), the Fifth

Circuit recognized that the standard of care should be one

of ‘ordinary prudence’ for both employee and employer:

As to both attack or defense, there are two com-

mon elements, (1) negligence, i.e., the standard of

care and (2) causation, i.e., the relation of the

negligence to the injury. So far as negligence is

concerned, that standard is the same - ordinary

prudence - for both Employee and Railroad alike.

Unless a contrary result is imperative, it is at

5 The Fifth Circuit cases which Ardoin cites on page 5 of his Petition

for Writ of Certiorari are all inapposite as they address the standard of

care to be utilized in determining comparative negligence, an issue

which was never reached in the instant case.

19

best, unfortunate if two standards of causation

are used. We think there are several reasons why

substantively there is no such imperative. (Em-

phasis applied).

Id. at 823.

To the extent that some more recent Fifth Circuit

cases suggest that a “slight negligence”’ standard is to be

used in judging comparative fault, those cases mistakenly

follow Spinks v. Chevron Oil Company, 507 F.2d 216 (5th

Cir. 1975), clarified, 546 F.2d 675 (5th Cir. 1977), in which

the Fifth Circuit, citing Ferguson, erroneously departed

from the Rogers/Ferguson “‘ordinary care’’ negligence stan-

dard by misapplying the term ‘‘slight” in describing both

the employer’s and the employee’s standard of care.

Spinks, 507 F.2d at 223. The use of the word “‘slight’”’ in

Rogers, 352 U.S. at 506, 1 L.Ed.2d at 499, related to causa-

tion and not to the standard of care. Through uncritical

repetition in cases such as those cited on page 5 of Ardoin’s

Petition for Writ of Certiorari, the word “‘slight’’ has er-

roneously become associated with the standard of conduct

in some Fifth Circuit cases. However, other Fifth Circuit

cases, such as Gavagan, supra, 955 F.2d at 1019 n.7 (5th

Cir. 1992), correctly follow Ferguson and Rogers and state

the general negligence standard as one of “ordinary

prudence.”’

While there is some conflict in the Fifth Circuit cases

as to the proper standard of care to be used in determining

comparative fault in Jones Act cases, the conflict need not

be resolved in this case, because here, the trial court found

no negligence (slight or otherwise) or causation against

Seacor. Even in a Jones Act case, the plaintiff has the

20

burden of proving by a preponderance of the evidence that

the defendant was negligent and that the defendant’s

negligence played any part, even in the slightest, in produc-

ing the injury. As the Fifth Circuit recognized in its review

of this case, Ardoin failed to meet even this relaxed burden

of proof.®

CONCLUSION

Respondent, Seacor Marine, Inc. respectfully sub-

mits that there are no ‘“‘special and important reasons”

why this case should be reviewed by this Court. The real

issues involved here, which were correctly decided by the

lower courts, involve the factual findings made by the trial

judge. Those factual findings were fully supported by the

record and were properly and summarily affirmed by the

United States Court of Appeals for the Fifth Circuit under

the clearly erroneous standard of review. Ardoin’s request

for review by this Court amounts to a request that this

Court review the factual findings of the lower courts.

While the lower courts’ rejection of Ardoin’s claims

is obviously important to the parties in this case, it

6 Alternatively, Seacor submits that if any error was made, it was

harmless error within the meaning of Rule 61 of the Federal Rules of

Civil Procedure. Since the outcome of the case hinged on credibility

determinations, the simple fact is that if the case were returned to the

trial court for using the phrase ‘‘ordinary care’”’ instead of ‘‘slight care,”

the result would be that the trial court would issue a new opinion mak-

ing exactly the same findings, but replacing the word “‘ordinary”’ with

the word “slight.” It appears that Ardoin recognizes this, for if he truly

believed that the trial court had applied an incorrect standard, he

presumably would have sought to remedy the problem in the trial court

by seeking an amendment of the trial court’s findings under F.R.C.P.

52(b) or by seeking a new trial under F.R.C.P. 59.

21

presents no issue of importance to the general public. This

case does not implicate any of the ‘character of reasons’’

traditionally considered by this Court in determining when

to exercise its jurisdiction on writ of certiorari.

In short, this case was correctly decided both factual-

ly and legally in the lower courts and does not merit review

by this Honorable Court. Accordingly, respondent, Seacor

Marine, Inc. submits that the Petition for Writ of Cer-

tiorari filed by Jody Wayne Ardoin should be denied.

Respectfully submitted,

ADAMS & REESE

MARK J. SPANSEL

Counsel of Record

EDWIN C. LAIZER

4500 One Shell Square

New Orleans, Louisiana 70139

Telephone: (504) 581-3234

Attorneys for Respondent,

Seacor Marine, Inc.

22

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and forego-

ing pleading has been served on Mr. Richard J. Arsenault,

counsel of record for petitioner, by United States mail,

postage prepaid and properly addressed this lst day of

February, 1994.

MARK J. SPANSEL

EDWIN C. LAIZER

A-1

APPENDIX

1. Rule 52 of the Federal Rules of Civil Procedure:

Rule 52. Findings by the Court; Judgment on Partial

Findings

(a) Effect. In all actions tried upon the facts without a jury

or with an advisory jury, the court shall find the facts

specially and state separately its conclusions of law

thereon, and judgment shall be entered pursuant to Rule

58; and in granting or refusing interlocutory injunctions

the court shall similarly set forth the findings of fact and

conclusions of law which constitute the grounds of its ac-

tion. Requests for findings are not necessary for purposes

of review. Findings of fact, whether based on oral or

documentary evidence, shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity

of the trial court to judge of the credibility of the witnesses.

The findings of a master, to the extent that the court

adopts them, shall be considered as the findings of the

court. It will be sufficient if the findings of fact and conclu-

sions of law are stated orally and recorded in open court

following the close of the evidence or appear in an opinion

or memorandum of decision filed by the court. Findings of

fact and conclusions of law are unnecessary on decisions of

motions under Rule 12 or 56 or any other motion except as

provided in subdivision (c) of this rule.

A-2

2. The Jones Act, 46 U.S.C.A. § 688:

§ 688. Recovery for injury to or death of seaman

(a) Application of railway employee statutes; jurisdiction.

Any seaman who shall suffer personal injury in the course

of his employment may, at his election, maintain an action

for damages at law, with the right of trial by jury, and in

such action all statutes of the United States modifying or

extending the common-law right or remedy in cases of per-

sonal injury to railway employees shall apply; and in case

of the death of ary seaman as a result of any such personal

injury the personal representative of such seaman may

maintain an action for damages at law with the right of

trial by jury, and in such action all statutes of the United

States conferring or regulating the right of action for death

in the case of railway employees shall be applicable.

Jurisdiction in such action shall be under the court of the

district in which the defendant employer resides or in

which his principal office is located.

3. The Federal Employers’ Liability Act, 45 U.S.C.A § 51:

§ 51. Liability of common carriers by railroad, in interstate

or foreign commerce, for injuries to employees from

negligence; definition of employees

Every common carrier by railroad while engaging in com-

merce between any of the several States or Territories, or

between any of the States and Territories, or between the

District of Columbia and any of the States or Territories,

or between the District of Columbia or any of the States or

Territories and any foreign nation or nations, shall be liable

A-3

in damages to any person suffering injury while he is

employed by such carrier in such commerce, or, in case of

the death of such employee, to his or her personal represen-

tative, for the benefit of the surviving widow or husband

and children of such employee; and, if none, then of such

employee's parents; and , if none, then of the next of kin

dependent upon such employee, for such injury or death

resulting in whole or in part from the negligence of any of

the officers, agents, or employees of such carrier, or by

reason of any defect or insufficiency, due to its negligence,

in its cars, engines, appliances, machinery, track, roadbed,

works, boats, wharves, or other equipment.

Any employees of a carrier, any part of whose duties as

such employee shall be the furtherance of interstate or

foreign commerce; or shall, in any way directly or closely

and substantially, affect such commerce as above set forth

shall, for the purposes of this Act be considered as being

employed by such carrier in such commerce and shall be

considered as entitled to the benefits of this Act and of an

Act entitled ‘“‘An Act relating to the liability of common

carriers by railroad to their employees in certain cases’’

(Approved April 22, 1908)[45 USCS §§ 51 et seq.] as the

same has been or may hereafter be amended.