Opposition Brief — American Electric Power Fuel Supply, Inc. v. Perkins

Supreme Court, U.S.

FILED

No. 01-0325 SEP 24 200:

In The CTCERK

Supreme Court of the United States —

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AMERICAN ELECTRIC POWER FUEL SUPPLY, INC.

AND INDIANA MICHIGAN POWER CO., INC.,

RIVER TRANSPORTATION DIVISION,

Petitioners,

JAMES W. PERKINS AND JUDITH LYNN PERKINS,

Respondents.

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On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Sixth Circuit

o¢—--

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

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Of Counsel: James B. Hetmer, Jr.

FreperickK M. MorGan, Jr. Counsel of Record

JENNIFER M. VerKAmp Hevtmer, Martins &

Hetmer, Martins & Morcan Co., L.P.A.

Morcan Co., L.P.A. 105 East Fourth Street,

105 East Fourth Street, Ste. 1900

Ste. 1900 Cincinnati, OH 45202

Cincinnati, OH 45202 (513) 421-2400

sin Raa ania Attorneys for Respondents

MerepitH L. Lawrence James W. Perkins and

MerepitH CL. Lawrence, PSC Judith Lynn Perkins

101 Second Street

P.O. Box 1330

Warsaw, KY 41095

(859) 567-8500

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE CP ARPT Eee is occ ccc ccd vncaneenscass iii

pos Gk ee 8 ee errr rrr ree rer rer rr eee 1

pee S|: eer er eee Terre ry ert eee eee r er eee Tee 4

I, PETITIONERS’ STATEMENT OF THE CASE

MISSTATES APPLICABLE LAW AND THE

PI er RAINE oc ee es cic cc cscs. 4

Bi. SR OF TW on kn es cine ccvasdsss 4

B. Proper Application of the Jones Act and

the Doctrine of Unseaworthiness......... 5

ae: fk US. eee ere ee re 5

2. The Unseaworthiness Doctrine ....... 7

C. Petitioners’ Misstatements Regarding the

ee MUPPET Leer ree 9

1. Inadequate Safety Precautions........ 9

2. Malfunctioning Ratchet .............. 12

a. The Court of Appeals Made a

Legal Conclusion From the District

eg |. re 13

b. Petitioners’ Claimed Evidence of

Respondent’s Negligence is

Unsupported by the Record and

oS errr rer rer 14

c. Petitioners’ Claimed Evidence of

Lack of Knowledge of a Defect in

the Ratchet Is Irrelevant.......... 18

II REASONS FOR DENYING THE WRIT........ 19

il

TABLE OF CONTENTS —- Continued

Page

A. Petitioners Wrongly Claim a Conflict Exists

with Decisions that Shipowners Need Not

Provide An Accident-Proof Vessel........ 20

B. Petitioners Wrongly Claim a Conflict Exists

with Decisions Regarding Review of Fac-

tual FRM. cia vet eeeceeecueeds ss seen 21

CONCLUSION .::sxatndenndu cae eee n eee eae ae al 24

lil

TABLE OF AUTHORITIES

CASES:

American Export Lines, Inc. v. Alvez, 446 U.S. 274

REST SG eS ee a ae ee

Bernard v. Maersk Lines, Ltd., 22 F.3d 903 (9th Cir.

CC Ciee see e usu essen ebussenucdeheedceacesd’

EO err err Tee Pere rere

Caidwell v. Manhattan Tankers Corp., 618 F.2d 361

CM Vicekdveus aves sss 494 000c0s eases

California Home Brands, Inc. v. Ferreira, 871 F.2d 830

EAS. Veer chhdesocnaurenessnessase

| REP EPSP Pr rer rs ere rere TePeE EET EEeer

Cleveland Cliffs Iron Company v. Martini, 96 F.2d

632 (6th Cir.), cert. denied, 305 U.S. 605 (1938).

Commissioner v. Rankin, 295 U.S. 123 (1935)......

Daughenbaugh v. Bethlehem Steel Corp., 891 F.2d

EE EE WES 6 oie ko en ka asencsnodeecceus

Ferguson v. Moore-McCormack, 352 U.S. 521 (1957)

Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449 (1st Cir.

ee rein

Flunker v. United States, 528 F.2d 239 (9th Cir. 1975)

Gibbs v. Kiesel, 382 F.2d 917 (5th Cir. 1967)......

Greene v. Vantage Steamship Corp., 466 F.2d 159 (4th

CP sccneh dis bak dees ehuwshantddnan Weta’

Harden v. Gordon, 11 Fed. Cas. 480 (No. 6,047) (CC

re bce acd L ea pugs ak kaa eee oA

Page

2s ae

iV

TABLE OF AUTHORITIES - Continued

Page

Havens F/T Polar Mist, 996 F.2d 215 (9th Cir. 1993) ..... 8

Imperial Oil v. Drlik, 234 F.2d 4 (6th Cir.), cert.

Gemiod, 352 US. G41 CISGG) oo ccc cs cnscnness 6, 7, 15

Isbrandtsen Co. v. Johnson, 343 U.S. 779 (1952) ..5, 7, 20

McAllister v. United States, 348 U.S. 19 (1954), mod-

ification denied, 348 U.S. 957 (1955)...........66. 4, 14

Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944)

Mills v. Mitsubishi Shipping Co., 358 F.2d 609 (5th

COE ROE & ss 4 scan ashen shutcwen na sdnneepesawshaa oes 8

Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960)...7, 8

Moragne v. State Marine Lines, 398 U.S. 375 (1970) .... 20

Norfleet v. Isthmian Lines, Inc., 355 F.2d 359 (2d Cir.

Oc teen ee eens oe ee 8

Oliveras v. American Export Isbrandtsen Lines, Inc.,

oe Wie ee Cie Ge SFO oan oo penance swankacninnrs 8

Robertson v. Baldwin, 165 U.S. 273 (1897) ............. 7

Schaeffer v. Michigan-Ohio Navigation aapeny, 416

2 Biss Fe err rere Ferre 7, 15

Seas Shipping Company v. Sieracki, 328 U.S. 85

Ee ss, ooaycadauveusekenteeeeeuuens 3, 7, 8, 18, 21

Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424 (1939) ..... >

The Ernest H. Meyer, 84 F.2d 496 (9th Cir.), cert.

eee, Fee es ee CE os 686s aaa eas hares 5

The Seeandbee, 102 F.2d 577 (6th Cir. 1939)............ 5

United States v. Oregon State Medical Society, 343

OE ee CREE hs nok ns cabo s cake eceenieensseneda 4

TABLE OF AUTHORITIES - Continued

Page

United States v. United States Gypsum, 333 U.S. 364,

rehearing denied, 333 U.S. 869 (1948)............. 4, 22

Vega v. The Trustees of Eastern Gas and Fuel Assoct-

ates, 399 FR.D. 337 (B.D. Pa. TIGR y so ca cc ascccsavnis 8

Villarosa v. Massachusetts Petition of Read, 224

FE Supp. 241 (S.D. Pa. 1963) 2.0.6 66s ccsssscessncees 8

Viller’s Seafood Company v. Vest, 813 F.2d 339 (11th

Cie. 2967) oo cncc even oa snceus caus ee ree 8

Webb v. Dresser Industries, 536 F.2d 603 (5th Cir.

1976), cert. denied, 429 U.S. 1321 (2977)... 65 2. 6.20: 12

Wing v. Rothport Steamship Co., 30 F.R.D. 349 (W.D.

Mich. 1962)... osc ccnscccueacsctunseeeceseeeeeensaian 8

Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199

(ROBB) io unis en acandcnaweda sane eee 7

OTHER AUTHORITIES:

46 USC..§ GOB cdc cance diye ca ees hese 1

Rule 52(a), Fed. R. Civ. Pw... 1... eee e ee eee eens 18, 23

INTRODUCTION

Respondent Perkins respectfully requests that this

Court deny the petition for writ of certiorari to review the

judgment entered in this case by the United States Court

of Appeals for the Sixth Circuit.

Respondent James Perkins - a 17-year veteran of the

inland waterways with an exemplary record of safety -

was permanently disabled when he fell from the coaming

of a barge to the deck of the Petitioners’ Ohio River

towboat M/V C.J. Bryan as the result of an equipment

malfunction aboard the barge. Mr. Perkins was working

late at night on December 28, 1997 to secure an outside

barge to the towboat by laying wire and tightening it

with a ratchet fixed to the barge facing the front of the

M/V C.J. Bryan, cranking it outboard (away from the

center of the barge) with a “cheater bar” (fabricated pipe)

slipped over the ratchet handle for added leverage. As

Petitioner’s expert admitted on the stand (App. 17 at

[462]), the ratchet malfunctioned when the dog of the

ratchet slipped out of gear as the wire neared “bar-tight.”

The cheater bar abruptly lost its resistance and Mr.

Perkins was propelled forward. He lost his balance and

fell over the edge of the barge. Though he teetered on the

edge attempting to regain his balance, there was no safety

chain, guard rail or deck of any kind, and Mr. Perkins fell

onto the main deck of the M/V C.J. Bryan, almost 10 feet

below, sustaining grievous injuries.

Respondent sued Petitioners, his employer, on Janu-

ary 21, 1998 in the United States District Court for the

Southern District of Ohio based on negligence under the

Jones Act, 46 U.S.C. § 688, and breach of the Petitioners’

duty to provide a seaworthy vessel under general admi-

ralty law. After a three-day bench trial, the district court

ruled against Respondent on all counts of his complaint

on November 24, 1999. Respondent appealed the judg-

ment to the United States Court of Appeals for the Sixth

Circuit. The Court of Appeals reversed the district court’s

judgment under the Jones Act and general admiralty law

on April 6, 2001 because of Petitioners’ malfunctioning

equipment and failure to provide adequate safety

devices. Specifically, the court of appeals found that the

district court’s findings regarding adequate safety

devices were unsupported by the evidence and con-

cluded that Petitioners were liable under the Jones Act

and general admiralty law. The court of appeals also

concluded that a finding of the district court — the ratchet

malfunctioned — demonstrated the vessel was unseawor-

thy as a matter of law. Finally, contrary to Petitioners’

claim that the case was remanded for a determination of

damages and “comparative negligence” (Petition at 11),

the court of appeals reversed the district court’s findings

regarding the contributory negligence of Respondent as

unsupported by the evidence and clearly erroneous and

remanded only for a “hearing on the issue of damages to

the extent necessary.” Pet. App. A at 26a.

Petitioners seek writ of certiorari on two grounds: (1)

that the court of appeals’ decision conflicts with decisions

of this Court and other appellate courts which limit the

scope of review of factual findings; and (2) that the court

of appeals’ decision conflicts with decisions holding that

vessel owners have no duty to provide an accident-proof

vessel. However, the Petition fails to acknowledge that

the court of appeals cited the proper standard of review,

reversed only factual findings it concluded were unsup-

ported by the evidence, and independently held that

Petitioners were liable as a-matter of law based on the

district court’s findings, as entered. The Petition also fails

to cite any specific legal standard applied by the court of

appeals which conflicts with existing precedent of this

Court, apart from its apparent view that any finding of

liability would create this so-called conflict. Petitioners

also fail to address how the court of appeals’ decision

conflicts with decisions of this Court such as Mahnich v.

Southern S.S. Co., 321 U.S. 96, 102 (1944) and Seas Shipping

Company v. Sieracki, 328 U.S. 85, 94 (1946) which impose

an absolute and nondelegable duty on the Petitioners to

provide Respondent with a seaworthy vessel, and which

hold that Petitioners’ malfunctioning equipment render

Petitioners liable as a matter of law.

The court of appeals’ decision is fully consistent with

nearly a century of decisions protecting the rights of

seamen injured in the line of duty. Petitioners feign a

conflict: with vague references to standard of review and

selective citation to basic admiralty principles, without

identifying any actual or specific conflict regarding an

important federal question. As such, Petitioners have pre-

sented no compelling reason to grant writ of certiorari

and the petition should be denied.

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ARGUMENT

I. PETITIONERS’ STATEMENT OF THE CASE MIS-

STATES APPLICABLE LAW AND THE PROCEED-

INGS BELOW. |

A. Standard of Review.

Petitioners argue that the court of appeals imper-

missibly reversed findings of fact when there was evi-

dence in the record to support them. Petition at 23.

Petitioners flatly overlook that the court of appeals inde-

pendently found the Petitioners liable as a matter of law

under general admiralty law for malfunctioning equip-

ment, based on the findings of the district court. Pet.

App. A at 18a. Even if the court of appeals had not so

found, the other grounds of liability are equally proper.

The court of appeals found the district court’s findings as

to adequate safety devices clearly erroneous based on the

entire evidence, a result which is fully supported by the

relevant standard of review. “A finding is clearly erro-

neous when ‘although there is evidence to support it, the

reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.’ ” McAllister v. United States, 348 U.S. 19, 20

(1954), modification denied, 348 U.S. 957 (1955), quoting

United States v. Oregon State Medical Society, 343 U.S. 326,

339 (1952) and United States v. United States Gypsum, 333

U.S. 364, 395, rehearing denied, 333 U.S. 869 (1948).

Indeed, the court of appeals reversed the district

court on findings of fact only where it specifically found

that the findings were unsupported by the evidence. This

is squarely within the court’s purview. “The function of

the court is to decide whether the correct rule of law was -

Ol

applied to the facts found; and whether there was sub-

stantial evidence . . . to support the findings made.”

Commissioner v. Rankin, 295 U.S. 123, 135 (1935).

The appellate court . . . has the final respon-

sibility for the facts as well as the law and

findings of the District Court will not stand

where . . . its findings of fact are contrary to the

clear weight of the evidence.

The Seeandbee, 102 F.2d 577, 581 (6th Cir. 1939), citing The

Ernest H. Meyer, 84 F.2d 496 (9th Cir.), cert. denied, 299 U.S.

600 (1936).

B. Proper Application of the Jones Act and the

Doctrine of Unseaworthiness.

Petitioners argue restrictive application of the Jones

Act and admiralty doctrines without citing nor acknowl-

edging the fundamental principle that “[mJaritime law by

inveterate tradition has made the ordinary seamen a

_ member of a favored class.” Isbrandtsen Co. v. Johnson, 343

U.S. 779, 782 (1952). Thus, “remedial legislation [enacted]

for the benefit and protection of seamen has been liber-

ally construed to attain that end.” Socony-Vacuum Oil Co.

v. Smith, 305 U.S. 424, 431 (1939).

1. The Jones Act.

It is under this liberal rubric that Petitioners’ stan-

dard of care is measured. Moreover, the burden‘ of proof

for a seaman under the Jones Act is “very minimal and

has been referred to as ‘featherweight.’ ” Caldwell v. Man-

hattan Tankers Corp., 618 F.2d 361, 363 (5th Cir. 1980);

Burden v. Evansville Materials, 840 F.2d 343, 346 (6th Cir.

1988). Petitioners argue that the court of appeals “misap-

prehended” the standard of care with reference to

“imprecise and inapplicable judicial opinions” charac-

terizing the standard of care as “slight negligence.” Peti-

tion at 6. Petitioners argue “slight negligence” is really a

reduced standard of causation afforded Jones Act cases,

rather than a reduced standard of care. Id. Though it is

unclear how such a distinction changes the outcome of

the decision, it is clear that the court of appeals did not

“misapprehend” the standard as accused by Petitioners

because the court of appeals does not even use the term

“slight negligence.” In fact, the court of appeals cites to a

reduced standard of causation, and indeed, quotes the

very language chosen by this Court in Ferguson v. Moore-

McCormack, 352 U.S. 521 (1957):

[I]n suits under the Jones Act, the court must

determine whether the evidence justifies the

conclusion that the employer was negligent and

that the employer’s negligence played any part,

however slight, in producing the injury to the

seaman.

Pet. App. A at 8a (citations omitted).

Petitioners also argue that seamen are under a duty

to use reasonable care for their own safety (Petition at

9-10), but fail to acknowledge that neither contributory

negligence nor assumption of the risk is a defense to a

Jones Act claim. Imperial Oil v. Drlik, 234 F.2d 4, 9

(6th Cir.), cert. denied, 352 U.S. 941 (1956). “A seaman does

not assume the risk of injury even from obvious dan-

gers....” The Seeandbee, 102 F.2d at 581, citing Cleveland

Cliffs Iron Company v. Martini, 96 F.2d 632 (6th Cir.), cert.

denied, 305 U.S. 605 (1938); Mahnich, 321 U.S. at 103;

Socony-Vacuum Oil, 305 U.S. 424.!

2. The Unseaworthiness Doctrine.

While arguing that its duty under the Jones Act is not

absolute (Petition at 7), Petitioners fail to recognize that

their duty to provide a seaworthy vessel under general

admiralty law is “absolute and completely independent

of [Petitioners’] duty under the Jones Act to exercise

reasonable care.” Mitchell v. Trawler Racer, Inc., 362 U.S.

539, 549 (1960); Mahnich, 321 U.S. at 102; Seas Shipping Co.,

328 U.S. 85; Carlisle Packing Company v. Sandanger, 259

U.S. 255 (1922). In line with the “ancient characterization”

of seamen as wards of the court,? admiralty law imposes

a “strict liability” rule in which vessel owners are liable

for any failure to provide a seaworthy ship, without

regard to fault. Yamaha Motor Corp., U.S.A. v. Calhoun, 516

U.S. 199, 208 (1996), quoting Seas Shipping Co., 328 U.S. at

94. “[T]he doctrine of seaworthiness imposes a heavy

burden on ship owners, who are liable for the defective

physical condition of their vessels regardless of fault.”

California Home Brands, Inc. v. Ferreira, 871 F.2d 830, 836

(9th Cir. 1989), citing Flunker v. United States, 528 F.2d 239,

242 (9th Cir. 1975).

1 Contributory negligence on the part of the seaman,

however gross, merely moderates damages, rather than barring

the claim. Imperial Oil, 234 F.2d at 9; Schaeffer v. Michigan-Ohio

Navigation Company, 416 F.2d 217, 222 (6th Cir. 1969).

2 Isbrandtsen, 343 U.S. at 783, quoting Robertson v. Baldwin,

165 U.S. 275, 287 (1897) and Harden v. Gordon, 11 Fed. Cas. 480,

485 (No. 6,047) (CC Me. 1823).

Moreover, while citing that it must have notice and

an opportunity to correct before liability will attach

under the Jones Act, Petitioners fail to acknowledge that

notice is irrelevant to their duty to provide a seaworthy

ship: “The ship owner’s actual or constructive knowledge

of the unseaworthy condition is not essential to his lia-

bility.” Mitchell, 362 U.S. at 549. It is well-settled under

admiralty law that the failure of a piece of a ship’s

equipment - such as the malfunctioning ratchet in this

case — renders the vessel unseaworthy as a matter of law,

whether the cause of the failure is known or detectable by

visual inspection. Mahnich, 321 U.S. at 103; Seas one

Co., 328 U.S. at 94.5

The mere fact that a failure occurs is sufficient evi-

dence to support a finding of unseaworthiness, even if

the appurtenance fails because of a latent defect. Norfleet

v. Isthmian Lines, Inc., 355 F.2d 359, 361 (2d Cir. 1966).

3 Courts have repeatedly held that the failure of ship’s

equipment is sufficient to establish unseaworthiness, though

the cause of the failure may be inexplicable. Havens F/T Polar

Mist, 996 F.2d 215, 218 (9th Cir. 1993), citing Viller’s Seafood

Company v. Vest, 813 F.2d 339, 342 (11th Cir. 1987); Greene v.

Vantage Steamship Corp., 466 F.2d 159, 163 (4th Cir. 1972);

Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814

(2d Cir. 1970); Gibbs v. Kiesel, 382 F.2d 917, 919 (5th Cir. 1967);

Mills v. Mitsubishi Shipping Co., 358 F.2d 609, 612 (5th Cir. 1966),

cert. denied, 386 U.S. 1036 (1967); Vega v. The Steamship Malulah,

291 F.2d 415, 419 (5th Cir. 1961); Villarosa v. Massachusetts

Trustees of Eastern Gas and Fuel Associates, 39 F.R.D. 337, 339 (E.D.

Pa. 1966); Petition of Read, 224 F. Supp. 241, 249 (S.D. Fla. 1963);

Wing v. Rothport Steamship Co., 30 F.R.D. 349, 351 (W.D. Mich.

1962).

C. Petitioners’ Misstatements Regarding the Pro-

ceedings Below.

Petitioners incorrectly state that the court of appeals

found “no legal error” and reversed only on errors in the

district court's finding of facts. Petition at 11. Rather, the

court of appeals found that the district court’s legal con-

clusions were improper and that Respondent was entitled

to recover under three independent grounds because the

district court both rendered findings of fact unsupported

by the evidence and misapplied admiralty law. Pet. App.

A at 14a, 16a, 18a-19a. The court of appeals held that (1)

the district court’s findings regarding adequate safety

precautions were unsupported by the evidence of record

(Pet. App. A at 14a); (2) the entire evidence supported

recovery under the Jones Act (Pet. App. A at 16a) and

general admiralty law (Pet. App. A at 19a) for inadequate

safety precautions; and (3) the district court’s factual

finding that the equipment used by the Petitioners mal-

functioned (as proven by the testimony of Petitioners’

own expert) rendered the vessel unseaworthy as a matter

of law (Pet. App. A at 18a).

1. Inadequate Safety Precautions.

The district court found that the lack of installation of

a safety chain or grab irons on the area of the barge from

where Respondent fell did not render the vessel unsafe or

unfit for service. Pet. App. A at 14a. The court of appeals

held this finding was “unsupported by the evidence in

the record” (id.) and that the district court ignored evi-

dence that mandated a finding of liability on the part of

10

Petitioners (Pet. App. A at 16a, 19a). Petitioners incor-

rectly argue that this holding “misinterprets” the evi-

dence and substitutes appellate judgment for that of the

district court. Petition at 15-17.

Petitioners mistake their own crabbed interpretation

of the facts for the factual record. First, Petitioners falsely

state that the only expert testimony was that such devices

are not practical, appropriate, or used in the industry.

Petition at 16. Quite the opposite, the only testimony by

Petitioners’ expert regarding safety devices was that the

size of the vessel would prohibit installation of a safety or

rigging deck (App. 16-17) but that nothing prevents the

installation of a safety chain on top of the tow knees (App.

18-19).

Second, Petitioners cite that there is “no evidence” to

support Respondent’s burden under this theory of lia-

bility. Petitioners fail to advise the Court that:

e Petitioners’ safety manager testified that

every other area of the boat where men were

likely to work and prone to fall was guarded

in some manner (App. 1-6);

e there is a safety chain installed at the bottom

of the tow knees (testimony of safety man-

ager, App. 6 at [46]-[47]); and

e other boats in Petitioners’ own fleet have

safety appliances of some kind between the

tow knees* (testimony of safety manager,

4 No evidence suggests that there is any difference between

these vessels which justifies requiring crewmen to work in a

precarious and completely unguarded area high off the vessel’s

decks on some of Petitioners’ vessels but not on others.

11

App. 6-7; Respondent, App. 12-13; and Peti-

tioners’ expert, App. 17).

Third, Petitioners state it is “particularly telling” that the

court of appeals did not describe “what the safety devices

would look like, how they would be implemented, or how

they would have prevented Respondent's injury.” Petition at

15. Though it is unclear of what this point is “telling” or why

Petitioners expect the court of appeals’ judges to be adept at

naval architecture, this statement is an inaccurate character-

ization of the court of appeals’ opinion. The court of appeals

plainly described “safety chains or rails” (Pet. App. A at 15a)

which are placed in several other areas of the vessel and on

other vessels (id.; see also testimony of safety manager, App.

1-7). Moreover, the court of appeals correctly stated that the

testimony at trial supported the conclusion that such chains

or rails would have prevented the fall. Pet. App. A at 16a (see

testimony of Respondent, App. 13 at [161], 14 at [180}).

Fourth, Petitioners argue that the court of appeals

improperly found that Petitioners had knowledge of the

need for such devices based on a fall from the same area

of the vessel by another employee of Petitioners the

month prior to Respondent's fall. Petitioners argue that

this incident is distinct because that employee fell down

the steps of the towknee instead of the gap between the

towknees where the chain would be installed. Petition at

16-17. Petitioners’ argument relies on their own inter-

pretation of the evidence outside the record as the testi-

mony cited makes no reference to the steps or that the

area of the fall was different than that of Respondent’s

(Pet. App. F at 49a-50a). More importantly, such

12

argument ignores that the court of appeals found that

Petitioners were liable for inadequate safety devices

under both the Jones Act and general admiralty law.

Under general admiralty law, Petitioners are liable for

unseaworthy vessels without regard to its knowledge of

the unseaworthy condition. Mitchell, 362 U.S. at 549.

Even had Petitioners established that a safety chain

across the towknees was not industry practice, Petitioners

also ignore the fact that it does not absolve them of

liability for failing to provide Respondent a safe place to

work. “It has long been held that determination of rea-

sonable fitness is not limited by custom” particularly in

view of the “awesome obligations of seaworthiness.”

Webb v. Dresser Industries, 536 F.2d 603, 607 (5th Cir. 1976),

cert. denied, 429 U.S. 1121 (1977).

The court of appeals correctly found that the evi-

dence supported a finding that the lack of adequate

safety devices on the vessel imposed liability on Peti-

tioners under both the Jones Act and general admiralty

law. -

2. Malfunctioning Ratchet.

The court of appeals held that the district court’s

finding that the ratchet malfunctioned made the vessel

unseaworthy — and Petitioners liable — as a matter of law.

Pet. App. A at 18a. Petitioners fail to recognize this inher-

ently legal conclusion, and argue instead that the court of

appeals “substituted its judgment” for the district court

by not considering alleged evidence of Respondent's neg-

ligence and Petitioners’ lack of knowledge of the defect.

13

Petition at 19. Petitioners’ argument is defective on multi-

ple grounds, being that (1) the court of appeals imposed

liability on Petitioners based on a legal conclusion drawn

from the district court’s findings; (2) the district court did

not make most of the findings urged by Petitioners; (3)

there is no evidence of negligence on the part of Respon-

dent or lack of knowledge on the part of Petitioners; and

(4) even if there was, neither Respondent’s negligence nor

Petitioners’ lack of knowledge bars a finding of

unseaworthiness as a matter of law.

a. The Court of Appeals Made a Legal

Conclusion From the District Court’s

Findings.

The district court found that the ratchet malfunc-

tioned while in use by Respondent. Pet._App. A at 18a;

Pet. App. D at 35a, J 12. Such finding should not shock

Petitioners as their own expert also testified that the

ratchet malfunctioned. Pet. App. A at 18a. The district

court, however, concluded that the vessel was not

unseaworthy due to the malfunction because there was

no evidence of a defective condition of the ratchet (which

was never produced by Petitioners). Pet. App. D at 35a,

{ 11.-In contrast, the court of appeals held that the law

required a finding of unseaworthiness based on the mal-

function of the ratchet, without regard to whether there

was evidence of the reason the ratchet malfunctioned.

Pet. App. A at 18a. “Unseaworthiness is a condition, and

how that condition came into being . . . is quite irrelevant

to the owner’s liability for personal injuries resulting

from it.” Id. at n.6, quoting Ferrara v. A. & V. Fishing, Inc.,

99 F.3d 449, 443 (1st Cir. 1996) (emphasis in original). “It

14

is well-settled law that even a temporary or unforesee-

able failure of a piece of vessel equipment under proper

and expected use is sufficient to establish unseaworthi-

ness....” Id. at 17a (citations omitted).

Having found the vessel unseaworthy, the court of

appeals also found that the unseaworthy condition was

the “substantial and direct cause of [Respondent's] inju-

ries.” Pet. App. A at 18a. This was also the finding of the

district court, which found that Respondent lost his bal-

ance “as a result” of the malfunction. Pet. App. D at 35a,

{ 12. As such, liability was imposed on Petitioners for

Respondent's injuries under general admiralty law. Pet.

App. A at 26a. Thus, contrary to Petitioners’ argument,

the court of appeals did not substitute its judgment for

the district court on disputed facts, but properly

reviewed the district court’s conclusions of law de novo

(McAllister, 348 U.S. at 20) and found them to be erro-

neous.

b. Petitioners’ Claimed Evidence of Respon-

dent’s Negligence is Unsupported by the

Record and Applicable Law.

Petitioners claim that Respondent should be liable for

his own injuries, because they claim that Respondent was

behaving negligently at the time Petitioners’ equipment

malfunctioned. Petition at A. Notwithstanding that these

claims misrepresent the record, the court of appeals

found that Petitioners’ arguments were wrong as a matter

of law. Pet. App. A at 19a-2la. The court of appeals

correctly recognized that there is “no support in the law

for the proposition that the violation of company policy

15

alone constitutes negligence.” Pet. App. A at 21a. More-

over, Petitioners must establish not just negligence,> but

negligence that actually contributed to his injuries. Even if —

both those hurdles are crossed, contributory negligence

on the part of the seaman, however gross, merely miti-

gates damages, rather than bars the claim. Imperial Oil,

234 F.2d at 9; Schaeffer, 416 F.2d at 222. As shown below,

however, Petitioners never presented any evidence to

support a finding of contributory negligence on the part

of Respondent. pee

Petitioners claim that the way Respondent was stand-

ing and tightening the ratchet violated company safety

polices that were instituted because of the tendency for

the ratchet to malfunction. Petition at 19-20. There is no

evidence to support this representation. Nor did the

district court make any such finding.

First, it is undisputed that Respondent was standing

with his feet straddling the ratchet. The district court

made no finding as to how Respondent’s stance contrib-

uted to his fall, stating only in dicta, without explanation,

that Respondent's stance was “likely” the sole proximate

cause of his injuries. Pet. App. A at 4a, Pet. App. D at 40a,

n.1. There was no evidence that anything about the stance

resulted in lost balance by Respondent. Rather, both par-

ties’ experts testified that the wider stance used by

Respondent actually_provided him a more stable platform

(Pet. App. A at 20a-21a; testimony of Petitioners’ expert,

> Courts temper this doctrine with recognition of the

peculiar dangers attached to the work of a seaman. Momentary

lapses of care by an ordinarily-careful worker do not constitute

negligence in admiralty. Bernard v. Maersk Lines, Ltd., 22 F.3d

903, 907 (9th Cir. 1994). .

16

App. 17 at [482]; Respondent’s expert, App. 15 at [289]).

Contrary to Petitioners’ statements, the testimony estab-

lished that straddling ratchets was prohibited because of

the risk from being lashed by a broken cable, not from a

malfunctioning ratchet (testimony of Respondent’s

expert, App. 15 at [283]). The court of appeals correctly

found the district court’s findings as to contributory neg-

ligence to be “unsupported by the record and clearly

erroneous.” Pet. App. A at 20a.

Second, as to claims Respondent was pushing the

cheater bar past vertical, the court of appeals rightly

recognized that (1) “the district court did not draw such a

conclusion;” (2) “there is no evidence to show that

[Respondent] actually pushed the ratchet past vertical;”

and (3) “In [Petitioners’ videotape] exhibit, purporting to

show the correct way of laying the wire, the deck hand

there pushed the ratchet past vertical.” Pet. App. A at

21a. Petitioners do not dispute that these are correct

recitations of the evidence and the district court’s find-

ings. Rather, Petitioners again make the bald assertion

(that was not well taken by either the district court or the

court of appeals) that Respondent pushed the ratchet past

vertical, though Respondent denies it (App. 13 at [174],

14-15 at [241]),6 his supervisor who observed him

6 Petitioners unsuccessfully argued to the district court and

court of appeals that this testimony is contradicted by

Respondent’s deposition testimony in which, Petitioners claim,

Respondent said he did not know whether the bar was past

vertical. To the contrary, Mr. Perkins testified he did not know

where the cheater bar was when the ratchet failed. Petitioners’

counsel did not ask Respondent whether he knew whether the

cheater bar was past vertical.

—

17

performing the procedure up until seconds before the

malfunction did not see him push the ratchet past vertical

(App. 7-10 at [105]-[114]), and no other witness observed

him doing so. Petitioners further make the unsupported

statement that the company prohibits pushing the ratchet

past vertical because of the tendency of the ratchet to

malfunction, with citation to an irrelevant portion of the

record that says no such thing. No evidence was pre-

sented that such rule, even if violated, was instituted

because of the risk of falls from malfunctioning ratchets.”

And Petitioners themselves presented evidence that

Respondent’s alleged conduct was consistent with

accepted practice as Petitioners’ own videotape, prepared

and offered by Petitioners’ expert, actually shows a deck-

hand both straddling a ratchet and pushing past vertical

in demonstration of proper technique for using a ratchet.

Petitioners’ contributory negligence claims point to

no basis for review by this Court. Petitioners merely seek

to re-argue its flawed interpretation of portions of the

record that were never adopted by any court.

7 Petitioners also cite testimony that the procedure of

tightening the ratchet can be performed safely. Petition at 19.

Such testimony is irrelevant because, contrary to Petitioners’

claims, it describes procedures employed by Petitioners’

employees, including Respondent, when the equipment did not

malfunction. There is no evidence, nor have Petitioners even

suggested, that Respondent did anything to cause the ratchet to

malfunction.

18

c. Petitioners’ Claimed Evidence of Lack of

Knowledge of a Defect in the Ratchet Is

Irrelevant.

Petitioners argue that the testimony reflects that the

type of ratchet used by Petitioners met industry stan-

dards, the malfunction at issue was common, and was not

caused by a known defect. Petition at 20. Petitioners’

argument, though factually unsound, is an apparent

attempt to establish that Petitioners had no knowledge of

a pre-existing defect. This argument, as the court of

appeals found, is incorrect as a matter of law. The failure

of ship’s equipment establishes unseaworthiness without

regard to the cause of the failure (see supra n.3). Moreover,

actual or constructive knowledge is not a prerequisite to a

seaworthiness claim: The shipowner is absolutely liable

under the general admiralty law for even undetectable

conditions which cause injury to its employees. Mahnich,

321 U.S. at 97, 103-104; Seas Shipping Co., 328 U.S. at 87

n.1, 94. Of note, however, Petitioners’ argument seems to

establish quite the opposite - that they were on notice

that this failure could occur.

Though its arguments are legally irrelevant, Respon-

dent also notes that Petitioners have again misstated the

record. There was no evidence the ratchet used by Mr.

Perkins was identical to those used by the industry or

was in perfect condition, as Petitioners were unable to

produce the exact ratchet used. The only testimony was

that visual inspection of the ratchet did not reveal a

defect (testimony of Respondent, App. 13 at [171]; and

testimony of Respondent’s supervisor, App. 10-11 at

[124]-[125]), just as the defects in Mahnich and Seas Ship-

ping were undetectable by visual inspection. There is

19

certainly no evidence, as Petitioners claim, that the

ratchet behaved as Respondent expected. The only wit-

ness that ever uttered the word “common” in relation to

the dog slipping on a ratchet, Petitioners’ expert, testified

at the same time that this occurrence was a malfunction of

the ratchet (App. 17 at [462]).§

II. REASONS FOR DENYING THE WRIT.

The writ should be denied because the court of

appeals’ decision is fully consistent with the holdings of

this Court and other appellate courts, and was reached

with proper use of its discretion under Rule 52(a), Fed. R.

Civ. P.

In an attempt to create the appearance of a review-

able issue, Petitioners argue that the court of appeals’

decision conflicts with (1) decisions of this Court and

other appellate courts that the shipowner did not provide

an accident-proof vessel; and (2) decisions of this Court

and other appellate courts regarding review of factual

findings. As explained briefly below, Petitioners’ claimed

conflicts do not bear out: The court of appeals made a

_ legal finding that Petitioners were liable based on well-

8 Petitioners also make passing reference to a claimed

failure by Respondent to introduce any evidence of a safer

method of tightening the ratchet. Petition at 19. This is another

resurrection of failed arguments by Petitioners, as it was not

mentioned by either the district court or court of appeals.

Petitioners cite no legal support for the proposition that

Respondent must establish that a safer alternative could have

been used, although it is certain that non-malfunctioning

equipment would have been a safer alternative.

20

settled principles of admiralty law which Petitioners do

not dispute in their Petition.

A. Petitioners Wrongly Claim a Conflict Exists

with Decisions that Shipowners Need Not Pro-

vide An Accident-Proof Vessel.

Petitioners argue that the court of appeals’ decision

somehow imposes a duty to ensure accident-proof vessels

in contradiction to this Court’s precedent. Petition at 20.

Quite the contrary, the court of appeals recognized that

“a vessel need not be free from all possibility of mishap.”

Pet. App. A at 17a. By doggedly avoiding other well-

settled principles of admiralty law, Petitioners’ argument

reduces to the proposition that any finding on behalf of

an injured seaman would create this so-called conflict.

What Petitioners do not call to the Court’s attention is

that the weight of the law, including the precedent of this

Court, by far supports the court of appeals’ decision on

behalf of the seaman. Not only do Petitioners ignore that

the seaman is a ward of this Court,’ but they also ignore

the repeated statements by this Court regarding the “set-

tled canon of maritime jurisprudence that ‘it better

becomes the humane and liberal character of proceedings

in admiralty to give than to withhold the remedy, when

not required to withhold it by established and inflexible

rules.’ ” Daughenbaugh v. Bethlehem Steel Corp., 891 F.2d

1199, 1204 (6th Cir. 1989), quoting American Export Lines,

Inc. v. Alvez, 446 U.S. 274, 281-282 (1980); accord Moragne

v. State Marine Lines, 398 U.S. 375, 387 (1970).

9 E.g., Isbrandtsen Co., 343 U.S. at 782.

21

Moreover, while Petitioners claim the resulting find-

ing of liability violates established precedent, they fail to

identify any particular erroneous conclusion of law. The

court of appeals found Petitioners liable under the doc-

trine of unseaworthiness because Respondent was injured

as the result of the malfunction of Petitioners’ equipment,

based on decisions such as those in Mahnich and Seas

Shipping that impose such liability under general admi-

ralty law without regard to Petitioners’ arguments

regarding their knowledge of the defect. Petitioners make

no claim that this legal conclusion is incorrect, and

thereby rests the whole of their petition solely on their

unsupportable contention that the court of appeals’ con-

clusions regarding the factual findings were erroneous.

B. Petitioners Wrongly Claim a Conflict Exists with

Decisions Regarding Review of Factual Findings.

Petitioners claim the court of appeals erred in revers-

ing findings of fact because the findings were supported

by “ample evidence at trial” and were choices between

two permissible views of the evidence. Petition at 23.

Petitioners’ argument fails to present a proper issue for

_ writ of certiorari.

First, Petitioners fail to recognize that, even if the

court of appeals had not reversed a single factual finding

of the district court, Petitioners would still be liable based

on the court of appeals’ legal conclusion that the undis-

puted malfunction of its equipment rendered the vessel

unseaworthy under general admiralty law.

Second, Petitioners fail to acknowledge that the court

of appeals did not set out an improper standard of

hN

N

review. Instead, the court of appeals set out in the begin-

ning of its analysis (consistent with Petitioners’ argu-

ments) that it “gives due regard to the district court’s

opportunity to judge the credibility of witnesses” and

that such findings are clearly erroneous if “on the entire

evidence [the court] is left with the definite and firm

conviction that a mistake has been committed.” Pet. App.

A at 5a.

Finally, Petitioners do not correctly represent the

nature of the court of appeals’ review: It did not overturn

findings based on the credibility of witnesses, but over-

turned findings not supported by any evidence. The court

of appeals reversed two principal findings of the district

court: (1) that the vessel was reasonably fit for service

based on adequate safety devices; and (2) that the

Respondent’s stance was the sole proximate cause of his

injuries. The first finding was reversed because, while the

court of appeals agreed with the district court’s factual

predicate that safety devices were not required by regula-

tion or industry practice, it found that the entire evidence

supported that such devices were not inconsistent with

custom and could have prevented the fall. Pet. App A at

15a-16a. This is squarely within United States Gypsum, one

of the cornerstone cases in this arena, which holds that

the court of appeals may look to the entire evidence even

when “there is evidence to support” the district court’s

finding. 333 U.S. at 395. The second finding was reversed

because the district court had stated no factual predicate

for such a finding, and it was not otherwise supported by

the evidence. The reversal of findings unsupported by the

‘evidence is one of the primary functions of the appellate

court. Commissioner v. Rankin, 295 U.S. 123, 135 (1935).

y

Thus, there were no factual findings which were reversed

outside the scope of the appellate court’s power pursuant

to Rule 52(a), Fed. R. Civ. P.

In short, Petitioners have not demonstrated any basis

for review on certiorari. The court of appeals’ decision is

consistent with nearly a century of jurisprudence by this

Court establishing liability for damages suffered by sea-

men injured in the line of duty because of the failure of

the ship’s equipment. Moreover, the court of appeals

properly applied this jurisprudence to the district court’s

findings of fact, while also setting aside those findings

that were without support in the evidence. Because Peti-

tioners argue that review is merited because a perceived

conflict among the courts creates a question of “excep-

tional importance” and renders the decision of the court

of appeals “erroneous” (Petition at 21-23), the complete

absence of any conflict with any decision of this Court or

other appellate court obviates the need for review on

certiorari. The court of appeals properly reversed the

district court, and this Court should permit its judgment

to stand.

24

CONCLUSION

Respondent Perkins respectfully requests that this

Court deny the petition for writ of certiorari to review the

judgment entered in this case by the United States Court

of Appeals for the Sixth Circuit.

Respectfully submitted,

James B. HeELMER, Jr.

Counsel of Record

Hevmer, Martins & MorcGan Co., L.P.A.

105 East Fourth Street, Ste. 1900

Cincinnati, OH 45202

(513) 421-2400

Of Counsel:

FREDERICK M. MorGan, Jr.

JENNIFER M. VERKAMP

HeELMER, Martins & MorGAn Co., L.P.A.

105 East Fourth Street, Ste. 1900

Cincinnati, OH 45202

(513) 421-2400

MereEpDITH L. LAWRENCE

MerepitH L. Lawrence, PSC

101 Second Street

P.O. Box 1330

Warsaw, KY 41095

(859) 567-8500

Attorneys for Respondents James W.

Perkins and Judith Lynn Perkins

App. 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES W. PERKINS,

PLAINTIFF,

V.

AMERICAN ELECTRIC

POWER FUEL SUPPLY,

INC., ET AL.,

DEFENDANTS.

CIVIL 1-98-64

TRIAL TO THE BENCH

VOLUME I

BEFORE THE HONORABLE SANDRA S. BECKWITH,

UNITED STATES DISTRICT JUDGE, SITTING AT

CINCINNATI, OHIO, ON MONDAY, SEPTEMBER 29,

1999.

> » *

[38] Q And on top of the pilot house there are

located the speaker, loud speaker, radars, radio antennas

and so forth?

A Yes, sir.

Q And there are men work up here occasionally;

isn’t that true?

A Yes, sir.

App. 2

Q And around the pilot house there is a grab rail;

isn’t there?

A Yes, sir.

Q Go down to the next level. This is the pilot house

roof level up here. The second deck from the top, if you

will, this is the pilot house itself; is that true?

A Yes, sir.

Q Is it called the pilot house level or pilot house

deck?

A Yes, sir.

Q And all the way around that deck there are men

work there, aren’t there?

A On occasion.

Q Have to wash the windows, chip paint, repaint,

and so [39] forth?

A Yes, sir.

Q It’s an ongoing thing, isn’t it, the work on a boat?

A Some of it is.

Q Yes. And around this deck there are handrails or

safety grab irons all the way around it; aren’t there?

A Yes, sir.

Q And why are those there, sir?

A Why are they there?

Q

Yes, sir.

A

Q

App. 3

It is part of the safety “apertures” of the boat.

Okay. Do you, as the man in charge of safety at

AEP, recognize there is a danger of falling from this level?

A

Q

A

Q

Yes, sir.

Because there is crewmen working here?

Yes, sir.

But go down to the next level, sir, this is called

what level, please?

A

Q

That’s the guest quarter deck.

Is it true that this area is probably how high off

the main deck, sir?

A

Q

Twenty feet.

Is it true that this area is a place where work is

conducted regularly on an ongoing basis to wash these

windows, chip this paint, keep that boat in operation?

[40} A On occasion, yes, sir.

Q

A

Q

A

Q

And men work here?

Yes, sir.

Crewmen?

Yes, sir.

And is it true that these grab irons or safety hand

grab irons are all the way around this deck?

A

Q

Yes, sir.

Want to go down to the next deck with you, and

that’s called the Texas deck; isn’t it, sir?

App. 4

A Yes, sir.

Q The Texas deck is a deck where quite a bit of

work goes on because it is so big on the stern end, isn’t it?

A Yes, sir.

Q The Texas deck has men working regularly at this

level?

A On occasion.

* > >

[42] QO On this level of the deck called the Texas

deck, sir, there is men working there with ratchets?

A Yes, sir.

Q And there is a handrail all the way around that

A Yes, sir.

Q And that’s about, would you say, eight or nine

feet off the main deck?

A Approximately, yes, sir.

Q Now, this level of the boat is about even with the

top of the tow knees, isn’t it, about the same level or

height off the main deck?

A I would say that the tow - looking at the picture,

the tow knees are maybe just a little bit higher.

Q Yes, just a little bit higher. Okay. And these hand-

rails here on this deck are for the same purposes as they

are on the ones above it?

Oe + ne ener er nett stim

ee ee

A Yes, sir.

Q Crewmen may fall?

[43] A Yes, sir.

Q And these rails keep them from falling down

onto the boat?

A They could.

Q Around the main deck, sir, are you familiar with

the type of safety device that is installed all the way

around that boat?

A We have safety chains.

Q And those safety chains must be in place for that

boat to operate?

A Yes, sir.

Q If in fact a tow boat did not have these safety

chains on the starboard, port, or stern on the main deck,

you would not believe it fit to do its work, would you?

A Now, say that again, please?

Q Yes, sir. If these chains, these safety chains on the

main deck were missing, you would not believe that boat

should go out to work, would you?

A We would want to correct it and get them in

piace.

Q And the C. J. Bryan, throughout all the time we

know of, has had these safety chains in place?

A Yes, sir.

App. 6

[46] Q Are there any safety chains or safety guards

on the bow of the boat, is my question.

A Yes, sir. Yes, sir, there are.

od ~ tad

Q And between the tow knees there is one safety

chain; isn’t there?

A Yes.

Q Allright. About three or three and a half feet off

the main deck is a white safety chain; is that true?

A Yes, sir.

© This is marked Exhibit - Plaintiff’s 19-46. Does

that show the safety chain on that tow knee fairly close

up?

[47] A Yes, sir, it does.

Q You can see it hanging right here?

A Yes, sir.

[52] Q At the height of the tow knees there are

handrails that come up actually above the tow knees?

A Yes, sir.

[55] Q But isn’t it true that you do on some of your

line haul vessels, or at least one, provide something

$n ih Reale aaacdis

Se Meee

App. 7

called a safety deck that covers this area between the tow

knees in case people fall off empty barges?

A On our smaller vessels, yes, they have a working

platform that extends out to the tow knees.

Q Yes, sir. And that working platform is at about

tow knee level or a little under?

A It’s below the top of the tow knee level, if I recall.

Q And that motor vessel is at least the Motor Vessel

Safety [56] Leader, is it not?

* » *

Q Are there other boats that AEP operates in addi-

tion to the Safety Leader that maintains a safety deck up

on the tow knee level of their line haul boat, any other

boats?

A We have five 2,800-horsepower vessels that have

that deck.

Q Would you state the name of those boats, please.

A The Motor Vessel Norman Snodgrass; the Motor

Vessel Roger Keeney; the James Pinson, Motor Vessel

Pinson; James Morehead.

* * *

[105] Q Tell me what - tell the Court, please, what

you saw Wes Perkins doing.

A Well, I saw Wes Perkins and his deck man, the

deck man at this point, Keith something, laying the -

making the setup for the towing knee jockeys, commonly

called, as you're [106] calling them, rock and roll wires,

App. 8

yes, sir. 1 saw them lay the starboard wire first, which

would be the right-hand side.

QO Yes, sir.

A Yes, sir. And, excuse me, I watched them go

through the process, the method, which was monitoring,

yes.

QO I see.

A Same on the port side. I monitored them laying

the wire, the lay of the wire. No, sir, I wasn’t on their

back, I was just monitoring. It’s an important factor.

And I saw Wes pick the ratchet up, spin it out,

preparing it to use it, and did put it into service. And

once he put it into service, which I mean — which I mean

by service is tightening it, was good enough.

Q Iam sorry, your last two words, please?

A Was good enough. Everything was routine, all in

rhythm, yes, sir.

Q Suited you fine?

Excuse me?

It suited you fine?

Yes, sir.

And you’re his supervisor?

> O F&F O PF

Yes, sir.

App. 9

* * *

[108] Q Did Mr. Perkins do anything, after he star-

ted using the cheater pipe, that you thought at that time

was unsafe?

A No, sir.

Q_ It looked okay to you?

A (Indicating.)

Q It looked okay to you as AEP’s officer on that

vessel?

A While I was looking at it, yes, sir.

Q Yes, sir. You saw nothing wrong.

A (Witness indicating affirmatively.)

Q And then I believe in your deposition you said

you turned, or your attention was directed to something

else?

A Yes, sir.

Q And what happened next, please tell the Court.

Please [109] tell the Court what happened next, Captain.

A Next, when my attention was diverted from the -

back there?

Q Yes. Yes.

A I heard —- what happened next? I heard Wes

Perkins hit the deck, and the cheater pipe.

* * +

CO

App. 10

[114] Q Yes. Did you see Wes Perkins tighten his

ratchet with a cheater bar to the point to where his

cheater bar was aimed down at the deck of the boat?

a A No, sir.

Q Did you see him go past vertical much?

A No, sir.

[124] Q After Wes Perkins was removed from the

vessel, Captain, did you make an investigation to deter-

mine what had happened or why he had fallen?

A Yes, sir.

Q Tell the Court vour investigation and its results,

please.

A Tell the Court?

© Tell Her Honor.

[125] A The investigation?

QO Yes, sir.

A_ | investigated the equipment, the rigging, which

in this case is the ratchets, the wires, what have you. It

was usable, serviceable.

And I asked how it happened. I asked how it hap-

pened; they gave me the best of their knowledge.

Q Yes, sir. And there was nothing wrong with that

ratchet; was there?

a ee eT a

4, aes? tee

oo Ne Rl ea ite

App. 11

A_ No, sir.

Q Based on what you could observe, it looked fine?

A Serviceable.

App. 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES W. PERKINS,

PLAINTIFF, :

V. . CIVIL 1-98-64

AMERICAN ELECTRIC

POWER FUEL SUPPLY,

INC., ET AL.,

DEFENDANTS.

TRIAL TO THE BENCH

VOLUME II

BEFORE THE HONORABLE SANDRA S. BECKWITH,

UNITED STATES DISTRICT JUDGE, SITTING AT

CINCINNATI, OHIO, ON TUESDAY, SEPTEMBER 21,

1999.

* * *

[159] A Yes, sir, except the Safety Leader has a

safety deck on it.

Q Have you seen the safety deck?

A Yes, sir.

Q Can you describe the safety deck for the Court,

please.

whisie A pints ios. mn.

App. 13

A Yes, sir. It’s made out of a corrugated steel. It’s

painted white, it has a red stripe, and it has a guard chain

that goes across the handrail over to the other handrail.

Q Is that up on top of the tow knee?

A Top deck, on top the tow knee.

* + *

[161] Q Based on what happened to you, sir, and in

your experience, would you tell the Court what it is that

you believe, from what you saw, that AEP did that caused

you to be hurt.

A I believe I went off balance tightening a ratchet,

but my injuries were caused because there wasn’t a safety

chain there for me to grab, or a safety deck, so my fall

was eight or nine feet instead of maybe no feet, or grab-

bing a safety chain.

* * +

[171] Q Stop there, please. Did you inspect your

ratchet that night?

A Yes, sir.

Q Did you do it in the fashion he did?

A Yes, sir.

* * *

[174] Q That night, when you were working, did

you go past that mark on toward the boat with your

cheater pipe?

A No, sir.

App. 14

[180] Q On the evening that you were injured, Mr.

Perkins, are you able to tell, based on your work that

night with that ratchet, if anything happened to the

ratchet unusual?

A Yes, sir. The dog kicked out, threw me off bal-

ance, I went nine foot to the deck.

Q When you were off balance, did you try to regain

your balance?

MR. POWERS: Objection, Your Honor.

THE COURT: Overruled. I will permit it.

THE WITNESS: Oh, yes. I tried to gain balance.

I was reaching in the air for anything I could grab, and I

had time to think about the fall that I was about to take.

BY MR. LAWRENCE:

Q Were you able to help yourself in gaining balance

in any way?

A Just waiving my hands. I - I mean, I wasn’t

tumbling head over heels. I was standing up straight, but

I was at the edge and went over.

+ + *

[241] Q So you’re going to come up with both

hands?

A And before you get vertical, you’re pushing out a

little bit. If you want to turn your video on, I will show

you how Bob Baldwin is doing it, pushing it.

App. 15

Q Let’s just take it a step at a time.

A_ I didn’t go past vertical.

» tad tad

[283] Q What did you tell your students about

straddling the ratchet?

Answer: It’s against the safety rules.

Question: Why is it against the safety rules?

Answer: Well, it’s common sense. If something

comes loose, something breaks, you never want to be

straddling a rope, straddling a wire, et cetera.

* * »

[289] Q Is there any other position that you know of

that would [290] have been safer than straddling the

ratchet on the job Mr. Perkins was assigned to do?

A That situation, your balance is - you’re much

more balanced if you do straddle the ratchet. You have

very little room to work in.

» * 7

App. 16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES W. PERKINS,

PLAINTIFF, :

V. . CIVIL 1-98-064

AMERICAN ELECTRIC

POWER FUEL SUPPLY,

INC., ET AL.,

DEFENDANTS.

TRIAL TO THE BENCH

VOLUME IV

BEFORE THE HONORABLE SANDRA 5S. BECKWITH,

UNITED STATES DISTRICT JUDGE, SITTING AT

CINCINNATI, OHIO, ON THURSDAY, SEPTEMBER 23,

1999.

+ * *

[428] Q Yes. Now, you testified about this safety

deck being inappropriate for the Viking class vessel; is

that true?

A 1 think it’s - I forget the words I used, but, ves,

it’s inappropriate. It’s unworkable.

Q And 1 want to ask you, sir, you said that because

of the size of the boat, 2,000 tons, et cetera, that has

something to do with it?

App. 17

A Yes, the size of the boat, the dimensions, the deck

fittings, the superstructure, there is several things that

have something to do with it.

* * *

[462] Q Now, it is true, is it not, in this case, Mr.

Perkins’ case, this ratchet malfunctioned?

AI think that would be a fair statement. The dog

slipped. It’s a common malfunction, it’s recognized in the

industry, but, yeah, | think that’s a fair statement, yes, sir.

Q And would you also agree with me that any

examination that Mr. Perkins could have done that night

in the normal use of the ratchet would not necessarily

have prevented that malfunction?

A I can agree with that.

* + *

[482] Q Let me see if I have got it clear, because I

am a little confused now. I thought I had it. If his legs are

further apart, he is more stable in this maneuver that he

was doing?

A That's a question?

Q Yes, sir. Is that true?

A I think it stands to reason, and I would agree

with you that if your legs are further apart, you create a

more stable platform.

* * *

[508] Q Captain Hammond, you can see from the

photograph the name of the boat, true?

for?

> O F&F DMD Ff DH FP ODO PP

Q

railing?

A

App. 18

Yes, it’s the Safety Leader.

And you also can see the company that it works

Yes, sir, AEP.

Yes. And see the gentleman standing out here?

Yes, I do.

And also they have a wheel house?

Yes, sir.

Railing, can you see the stands for the rails?

Yes.

Also this is completely railed?

Yes, sir.

This deck? And this deck all the way around,

Yes, sir.

[520] Q Could not be placed in an infinite number

of places by simply providing the hooking places for it?

A

The question is, is there any functional reason,

any technical reason why it couldn’t - yqu couldn't pro-

vide a hooking place to install that chain -

Q

A

Q

Yes.

- in that photograph of that tow knee?

Yes.

App. 19

A My answer is there is nothing that would prevent

you from doing that.

Q And on up on the handrail?

A Nothing would prevent you from doing that.

Q So that the chain, the safety chain could be

adjusted at whatever it’s pushing, empty, part load, both,

what's in front; safety chain becomes adjustable?

A From them eyelets?

© Yes, sir.

A Yes.

Q And the C. J. Bryan has no such apparatus on its

tow knees, does it, to allow for that variable hooking

height?

A It does not.