                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                            April 1, 2004

                                                                    Charles R. Fulbruge III
                                                                            Clerk

                                 No.   03-30301


                         DAFYDD HOFFMAN, ET AL.,
                                                                    Plaintiffs,

                                ANDREW MARIANO,

                                                        Plaintiff - Appellant,

                                       v.

                    HALCOT SHIPPING CORP., ET AL.,
                                                                    Defendants,

      HALCOT SHIPPING CORP.; ZODIAC MARITIME AGENCIES, LTD.,

                                                       Defendants - Appellees.


             Appeal from the United States District Court
                 for the Eastern District of Louisiana
                             00-CV-1815-T

Before DAVIS, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     The plaintiffs filed the instant suit seeking recovery for

injuries sustained as a result of the negligent operation of an

oceangoing     tanker   owned    and   managed    by    the   defendants.       The

district court found the defendants at fault but reduced plaintiff

Mariano’s award fifty percent due to the fault of the plaintiffs’


     *
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                       -1-
employer, Port Ship Service, Inc. We conclude that the record does

not support the district court’s finding that Port Ship was at

fault and the district court erred in reducing plaintiff Mariano’s

recovery.     Plaintiff Mariano also challenges the district court’s

order refusing to allow plaintiff to recover his medical expenses

that were previously paid under the employer’s health plan.                  We

find    no   error   in   the   district   court’s     conclusion    that   the

subrogation exception to the collateral source rule is applicable

in this case.

                                      I.

       Plaintiffs,    Dafydd    Hoffman    (Hoffman)    and    Andrew   Mariano

(Mariano), were employed as boat operators by Port Ship Service,

Inc. (Port Ship).          Port Ship is a water taxi service which

transports goods and personnel to ships anchored in the Mississippi

River in the New Orleans area.        On the night of February 26, 1999,

Hoffman and Mariano were on duty at Port Ship’s facility in Arabi,

Louisiana, and available to serve as operators of the Port Ship

vessels if customers needed water taxi service.               Also present was

deckhand Jeremiah Arabie, who was filling in because the two

deckhands scheduled to work that night failed to show up.                Three

boats were stationed at Port Ship’s Arabi facility on the day of

the accident, the LITTLE RAY, the MISS LESLIE, and the MISS RAE

ANNE.    When transporting passengers on one of its vessels, Port

Ship requires that the vessel be manned by one operator and one

deckhand; otherwise no deckhand is required.

                                     -2-
     At around 11:00 p.m. on the night in question, Hoffman and

Mariano received a call from their dispatcher that the Defendants’

551 foot tanker was out of control up river and was careening down

river directly toward Port Ship’s vessels.           Hoffman, Mariano, and

Arabie acted quickly to move the vessels to safety.                  Hoffman

boarded the LITTLE RAY, cranked the engine, and moved it forward to

provide the necessary slack in the mooring line to allow Arabie to

untie the vessel.      At the same time, Mariano headed for the MISS

LESLIE. Because no other deckhand was available, Mariano attempted

to untie the MISS LESLIE by himself.           The strong river currents

prevented him from doing so, and in the process Mariano sustained

injuries to his neck and shoulder.2

     The plaintiffs filed suit in the Louisiana state court against

Halcot   Shipping     Service,   Inc.     (Halcot)   and   Zodiac   Maritime

Agencies, Ltd., seeking damages for their injuries.           Port Ship was

not a party to the litigation.            The case was then removed to

federal court.      After a bench trial, the district court found the

defendants liable for the injuries suffered by Mariano.                 The

district court also found Port Ship negligent for failing to have

two deckhands on duty the night of the accident and concluded that

Port Ship was 50% at fault for Mariano’s injuries.             Pursuant to

this finding, the district court reduced Mariano’s recovery by 50%.

The district court also concluded that Mariano could not recover

     2
       Plaintiff Hoffman was also injured when the drifting tanker
slammed into the LITTLE RAY. Hoffman is not a party to this appeal.

                                    -3-
any medical expenses that had already been paid by Port Ship’s

medical insurer, Gilsbar, Inc. (Gilsbar).                     The district court

reasoned that under Port Ship’s insurance plan Gilsbar had the

right of subrogation to recover payments made by it and was

therefore the proper party plaintiff to recover those expenses from

the defendants.

                                       II.

     Mariano first argues that the district court erred in reducing

his award by 50% due to the negligence of Port Ship.                       Because no

deliveries were scheduled that night, Mariano argues that Port Ship

had no duty to have a deckhand available for each vessel at the

facility so that all three vessels could service customers at one

time.     Mariano argues that Port Ship has no duty to have a boat

operator and a deckhand on duty for each vessel located at its

facility just in case a tanker loses control in the river and puts

its docks and standby vessels in danger.

     In    denying    Mariano’s   Motion     to    Amend      the    Judgment,     the

district    court    stated   that    “it    cannot      be    ignored      that   the

circumstances surrounding the accident on the night in question

revolve    in   large   portion      on   the     fact   that       Port    Ship   was

understaffed.”       Although true, this fact goes to causation.                    It

does not answer the question of whether Port Ship had a duty to

keep two deckhands at the Arabi station at all times.

     The defendants did not offer any evidence showing that it is

Port Ship’s or industry policy to have two deckhands on duty at all

                                       -4-
times.    Indeed, the trial testimony shows that the only time a

deckhand’s presence was required was to man a vessel transporting

passengers. It is true that if Port Ship had received simultaneous

orders for two vessels to transport passengers it may have been

able to fill only one of those orders, but we are aware of no duty

owed by a vessel owner to maintain a standby crew for all its

available vessels.      The district court erred in holding Port Ship

had a duty to maintain two deckhands at the Arabi facility at all

times.3

                                       III.

      Mariano next argues that the district court erred in applying

the   subrogation     exception   to    the   collateral   source    rule   and

preventing him from recovering from Halcot any medical expenses

already   paid   by    Port   Ship’s     insurer,   Gilsbar.        Under    the

“collateral source” rule a plaintiff’s tort recovery will not be

reduced by the amount of any benefits received by the plaintiff

from sources independent of       the tortfeasor.     Kidder v. Boudreaux,

636 So.2d 282, 284 (La.App. 3d Cir. 1994).           However, an exception

is provided to this rule where an insurer has the right to

subrogate against the tortfeasor who injured the plaintiff.                 This

exception applies even if the party subrogated does not appear to


      3
       Although Mariano does not argue the issue on appeal, our
opinion should not be read as suggesting that Halcot would have been
entitled to a reduction in the amount owed to the plaintiff if the
evidence supported a finding that Port Ship was at fault. Liability
under the general maritime law is joint and several. Coats v. Penrod,
31 F.3d 1113 (5th Cir. 1995).

                                       -5-
assert its subrogation rights and the defendants do not timely

object to the non-joinder of a necessary party.           Id.

      At trial, the Mariano did not make an evidentiary objection to

the   admission   of   the   plan   summary    (except   possibly   to   its

relevance), nor does he make such an argument in this appeal.4

Rather, Mariano argues that this case is identical to Kidder, 636

So.2d at 284.     Mariano contends that under Kidder, the right to

subrogation may only be established by introducing into evidence

the actual insurance policy or plan.          Id.   Mariano argues that the

only evidence of a right to subrogation offered by the defendants

was the Summary of the Gilsbar Employee Benefit Plan of Port Ship

(the “Plan”) and not the Plan itself.

      We reject the plaintiff’s characterization of Kidder.         Kidder

refused to apply the subrogation exception to the collateral source

rule because the defendants in that case introduced no evidence

regarding the right of subrogation.             Id.    Unlike Kidder, the

defendants in the instant case did introduce evidence of Gilsbar’s

right to subrogation through introduction of the Gilsbar Plan

Summary. This uncontradicted Plan Summary adequately demonstrates




      4
       Although plaintiff made a general objection to the
introduction of the plan summary, his reference back to an
earlier objection makes it clear he was challenging evidence of
Port Ship’s payment of plaintiff’s medical bills as irrelevant in
light of the collateral source rule.


                                    -6-
Gilsbar’s right to subrogation.5     The subrogation exception to the

collateral source rule is therefore applicable to this case, and

the district court was correct in refusing to allow the plaintiff

to recover from Halcot medical expenses paid by Gilsbar.        Guillory

v. Terra International, Inc., 316 So. 2d 1084, 1093 (La.App. 3 Cir.

1993).

                                   IV.


     5
         The “Subrogation” section states, in pertinent part:

    If a participant receives benefits under this Plan as a
    result of an illness or injury caused by another party, this
    Plan has the right to seek repayment of those benefits from
    the party that caused the illness or injury or from the
    participant. This means that the Plan is “subrogated.”
    This right exists automatically, without additional notice
    and without obtaining consent of any person. This right may
    be asserted against any party who may be liable for the
    illness or injury, including, but not limited to, a
    participant’s insurance company, or nay uninsured motorist
    or automobile insurance coverage maintained by the
    participant. By participating in this Plan or accepting the
    benefits of coverage hereunder, a participant is deemed to
    have consented and agreed to this right of subrogation and
    granted a lien or privilege in favor of the Plan
    Administrator with respect to any funds received in
    connection with any illness or injury subject to subrogation
    and to have agreed to reimburse the Plan Administrator for
    all benefits paid on account of the illness or injury.
                         *   *   *
    The Plan will be subrogated to all rights of recovery of the
    participant against any source to the extent of any benefits
    paid by this Plan with respect to such expense, and the
    injured participant shall not do anything to prejudice such
    rights of the Plan. The participant shall execute and
    deliver any instruments and papers, and take any such
    actions, necessary to secure such rights to the Plan;
    however, failure to obtain any such written assignment
    shall not affect the right of the Plan to recover benefits
    paid.

    Gilsbar Plan Summary, R. at 528-29 (No. 00-1815) (emphasis
    added).

                                   -7-
     For the above reasons, we agree with the district court’s

holding that the subrogation exception to the collateral source

rule is applicable to this case.      We conclude, however, that the

district court erred in reducing Mariano’s recovery because of Port

Ship’s alleged fault.   We, therefore, VACATE the district court’s

judgment and REMAND for entry of judgment consistent with this

opinion.

     AFFIRMED in part, VACATED in part, and REMANDED.




                                -8-
