                             NUMBER 13-10-00425-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

KING FISHER MARINE SERVICE, L.P.,                                             Appellant,

                                            v.

JOSE H. TAMEZ,                                                                 Appellee.


                    On appeal from the 103rd District Court
                         of Cameron County, Texas.


                         MEMORANDUM OPINION
                   Before Justices Garza, Vela, and Perkes
                    Memorandum Opinion by Justice Vela
       This appeal is from a trial court judgment awarding appellee, Jose H. Tamez,

damages against appellant, King Fisher Marine Service, L.P. ("King Fisher") in a case

involving Jones Act, unseaworthiness, and maintenance and cure claims. On appeal,

King Fisher claims that: (1) there is legally and factually insufficient evidence to support
finding that Tamez was acting under specific orders at the time the incident occurred; (2)

the trial court erred by rejecting King Fisher's proposed definition of "specific orders,"

which it claims is a technical term that serves to differentiate that type of order from

"general orders"; and (3) the response to question three was immaterial due to the jury's

answers to the contributory negligence questions. We affirm.

                                      I. BACKGROUND

       Tamez sued King Fisher alleging that he was injured when he received an order

from his supervisors to manually lift a piece of equipment. Tamez claimed that he

suffered injuries while in the process of lifting certain equipment, which should have been

lifted with mechanical assistance or with additional crew.        In response, King Fisher

asserted affirmative defenses, including contributory negligence. Tamez replied that the

injury occurred at a time when he was carrying out "specific orders."

       At the time the injuries allegedly occurred, Tamez was working aboard a dredging

vessel called the LEONARD M. FISHER. He was assisting in the process of putting the

cutterhead back on and attaching it to the dredge. The cutterhead is a device used to

loosen material at the bottom of a channel. According to Tamez, the captain and another

employee were having a difficult time removing the shaft and the socket. Tamez testified

that the captain "yelled" out to him to help them quickly. Tamez said that he had a torch

in his right hand and he immediately held the socket with his left hand, and when it fell, "it

made like a bell and that was where I had the accident." Tamez testified that Captain

Cordova "demanded, yelled out for me to help them fast because it was going to fall." He

stated that he did not put the torch down before assisting them because he was told to


                                              2
respond quickly. According to Tamez's testimony, he told the dredge's captain that he

had been hurt. After the accident, Tamez left for a ten day vacation. When he returned

he sought medical assistance.

       Jorge Cordova, the dredge captain, testified that he needed Tamez's help to lift the

socket portion of the shaft and wrench connection. He agreed that he ordered Tamez to

come over and assist them because they needed help.            He and an assistant, Mr.

Delgado, could not handle the job on their own. According to Cordova, Tamez used both

of his hands. Cordova stated that Tamez did not tell him he had been hurt until after

Tamez returned from vacation.         Cordova testified that he asked Tamez if he could

handle the job he was being asked to do and Tamez confirmed that he could. When the

socket came down, Tamez's arm went to the side and he said "ouch." Cordova said

Tamez told him he was fine. According to Cordova, Tamez's sign out sheet denied that

he had been hurt during the work shift. Cordova claimed he did not know Tamez had

been hurt until June 2, 2008. In August 2008, Tamez quit. He then filed the lawsuit

which is the basis for this appeal.

       The jury found that: (1) the negligence of both parties caused Tamez's injuries;

(2) each party was 50% responsible; (3) the unseaworthiness of the LEONARD M.

FISHER proximately caused Tamez's injuries; and (4) Tamez was entitled to $420,000.00

as compensatory damages. The jury also found that Tamez was acting under specific

orders at the time of the incident.      Because of the answer to the "specific orders"

question, the trial court did not reduce Tamez's damages by the percentage of his

negligence.


                                              3
                                  II. STANDARD OF REVIEW

       The Jones Act provides a cause of action for maritime workers injured by an

employer's negligence. 46 U.S.C.A. 30104 (West Supp. 2010)); Maritime Overseas

Corp. v. Ellis, 971 S.W.2d 402, 405–06 (Tex. 1998). When a state court hears an

admiralty case, that court occupies essentially the same position occupied by a federal

court sitting in diversity: the state court must apply substantive federal maritime law but

follow state procedure. Id. at 406. "Under the Federal Employers' Liability Act (FELA),

a related statute, the causation burden is not the common law proximate cause standard."

Id.   Rather, the causation burden is "whether the proof justifies with reason the

conclusion that employer negligence played any part, even the slightest, in producing the

injury for which the claimant seeks damages."              Id.    The Jones Act expressly

incorporates FELA and the case law developing that statute. Id. "Thus, the causation

standard under the Jones Act is the same as that under FELA." Id.

       Texas courts have recognized that both the burden of proof and the standard of

appellate review in a Jones Act case are less stringent than under the common law. See

id.; Tex. & Pac. Ry. v. Roberts, 481 S.W.2d 798, 800 (Tex. 1972). Also, FELA's standard

of appellate review applies in Jones Act cases. See Ellis, 971 S.W.2d at 406. The

purpose of the Jones Act standard of review is to vest the jury with complete discretion on

factual issues about liability.    Id.   Once an appellate court determines that some

evidence about which reasonable minds could differ supports the verdict, the appellate

court's review is complete.       See id.   A Texas appellate court may not conduct a

traditional factual sufficiency review of a jury's liability finding under the Texas "weight and


                                               4
sufficiency" standard. See Roberts, 481 S.W.2d at 800. Rather, courts of appeals must

apply the less stringent federal standard of review.

       On the other hand, under the Texas legal sufficiency standard of review, we view

the evidence in a light most favorable to the finding and indulge every reasonable

inference to support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We

credit favorable evidence if a reasonable fact-finder could, and disregard contrary

evidence unless a reasonable fact-finder could not. Id. at 827. If there is more than a

scintilla of evidence to support the finding, the legal sufficiency challenge fails. Formosa

Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).

More than a scintilla of evidence exists "if the evidence 'rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.'" Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow Pharm., Inc. v. Havner,

953 S.W.2d 706, 711 (Tex. 1997)).

                                       III. ANALYSIS

A. Sufficiency of the Evidence

       King Fisher urges in its first issue that there is legally and factually insufficient

evidence to support the jury's answer to question three that inquired if Tamez was acting

under specific orders at the time the incident occurred on May 13, 2008. Notably, the

trial court did not define what a specific order was and the absence of such an instruction

is discussed in King Fisher's second issue.            The jury answered the question

affirmatively. King Fisher urges that the term "specific order" is a "phrase that serves to

illustrate a careful and important legal distinction between, on one hand, being ordered to


                                             5
perform a task in a specific way, and, on the other hand, having the ability to choose the

manner of performance."

       The Fifth Circuit addressed this issue in Williams v. Brasea, in which it stated that

"a seaman may not be contributorily negligent for carrying out orders that result in his own

injury, even if he recognizes possible danger." 497 F.2d 67, 73 (5th Cir. 1974). In

Williams, the court concluded: "a seaman's duty to obey orders from his immediate

supervisor overrides the postulate that the seaman must delay execution of the order until

he makes a reasonable effort to be sure that following the order will not injure the superior

who gave the order." Id. This Court adopted the Fifth Circuit’s rule in Tio Mario Inc. v.

Matos, 778 S.W.2d 529, 531 (Tex. App.—Corpus Christi 1989, writ denied). This Court

opined that appellant was following the captain’s specific order that he pick up equipment

and tie up the line. Id.

       In maritime law, comparative negligence bars an injured party from recovering

damages sustained as a result of his own fault. Simeonoff v. Hiner, 249 F.3d 883,

889–90 (9th Cir. 2001). An exception to the doctrine of comparative negligence exists

when a seaman is injured while following a specific order. Id. at 891. The Ninth Circuit

has stated: "where a general order is given, an employee must use ordinary care in its

execution, and the giving of the order does not affect the question whether the servant

has been negligent in his manner of carrying it out, where there is a choice open to him."

Jenkins v. Union Pac. R.R. Co., 22 F.3d 206, 211 (9th Cir. 1994) (quoting Atchison

Topeka & Santa Fe Ry. Co. v. Seamas, 201 F,2d 140, 144 (9th Cir. 1952)). In such

cases, the plaintiff's actions are reviewable for contributory negligence.


                                             6
       King Fisher argues that the specific order exception requires a supervisor to order

the seaman to perform a specific task in a particular way. See Fashauer v. New Jersey

Transit Rail Operations, Inc., 57 F.3d 1269, 1279 (3d Cir. 1995) (stating that when the

employee is given a specific order—that is, where he or she is told to perform a specific

task in a particular way "he is not contributorily negligent; rather his conduct falls under

the abolished doctrine of assumption of risk."). In other words, when a plaintiff has no

real choice, his recovery should not be reduced because he performed the task,

regardless of whether the plaintiff acted reasonably or unreasonably. Id. But when the

plaintiff has reasonable alternatives available to him, he must act reasonably in

performing his job. Id. And if he acts unreasonably, he is answerable for contributory

negligence. Id.

       When a seaman is ordered to do a task but is not instructed on the method to use,

and he acts negligently, the negligence and the availability of a safer alternative may be

considered in determining contributory negligence. Alholm v. Am. S.S. Co., 144 F.3d

1172, 1179 (8th Cir. 1998). In Alholm, the court stated that the trial court had properly

instructed the jury that if the plaintiff had been ordered to handle the cable in a particular

fashion and acted as ordered, it could not consider the plaintiff to be contributorily

negligent. Id. If however, he had been directed to move the line but was not ordered to

use a particular method, the jury could consider contributory negligence. Id.; see also

DuBose v. Matson Navigation Co., 403 F.2d 875, 877 (9th Cir. 1968) (stating that

contributory negligence doctrine applies when alternative courses of action are available

and the injured party chooses the unreasonable course).


                                              7
       Fairly recently, in a case in which the Texas Supreme Court has granted petition

for review, the San Antonio court of appeals has applied the specific order exception and

found that the trial court did not err in awarding the plaintiff seaman the full amount of

damages found by the jury. See Weeks Marine, Inc. v. Garza, No.04-08-00660-CV,

2010 WL 1609694 (Tex. App.—San Antonio Apr. 21, 2010, pet. granted) (mem. op.).

       While other courts’ analyses of what constitutes a specific order are instructive,

Matos is precedent in this Court. There, the plaintiff alleged that he was injured while he

was following the captain's specific order that he pick up equipment and tie up the "lazy

line" because they were going into port. Matos, 778 S.W.2d at 531. That order is no

more detailed than the order issued by Captain Cordova in this case. The Matos jury, as

did the jury here, found the plaintiff 50% responsible. The trial court, relying on the jury's

finding as to the captain's specific order, awarded the plaintiff the full amount of damages.

Id. This Court held that there was some evidence to show that the plaintiff was following

specific orders at the time he was injured and affirmed the award of damages. Id.

Recognizing Williams, this Court opined that a seaman cannot be contributorily negligent

for carrying out orders, even if that individual recognizes possible danger. Id. This

Court did not differentiate or define a general versus a specific order.

       At trial, Tamez testified that Captain Cordova yelled at him to assist them. Tamez

testified that he responded to Cordova's call for assistance and he had the torch in his

right hand, so he used his left arm to help them. Likewise, Captain Cordova testified that

he ordered Tamez to help them because they could not handle the job on their own and

needed his assistance. The evidence was controverted by Cordova with respect to


                                              8
whether the situation was as dire as Tamez testified and whether Tamez used one hand

or two to assist the effort. However, the jury found that Tamez was following specific

orders and there was evidence to support the finding. Following Matos, we hold that

there was some evidence about which reasonable minds could differ supporting the

verdict that Tamez was following a specific order. While there is nothing to suggest that

Tamez was ordered to keep the torch in his hand while helping the others complete the

task, there is evidence that Tamez was responding to a specific order for assistance in an

emergency situation. Thus, we overrule issue one.

B. Charge Error

         By King Fisher's second issue, it argues that the trial court erred by rejecting its

proposed definition of "specific orders." We review the trial court's decision with respect

to the charge for abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.

2006). Trial courts have considerably more discretion in submitting jury instructions than

in submitting jury questions. Harris v. Harris, 765 S.W.2d 798, 801 (Tex. App.—Houston

[14th Dist.] 1989, writ denied). The trial court abuses its discretion when it acts without

reference to any guiding rules or principles. Low v. Henry, 221 S.W.3d 609, 614 (Tex.

2007). To reverse a judgment based on a claimed error in the jury charge, a party also

must show that the error "probably caused the rendition of an improper judgment." TEX.

R. APP. P. 44.1(a)(1); Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex.

2006).

         The proposed definition was:

         You will be asked a question as to whether Jose H. Tamez was working
         under specific orders on May 13, 2008 at the time of the incident. A

                                              9
       "specific order" is given when a seaman is told to perform a specific task in
       a particular way, or, in other words, the seaman has no real choice as to
       how to perform that task. If Jose Tamez has reasonable alternatives
       available to him, he is not acting under specific orders and must act
       reasonably in performing his job duties.

       Tamez argues that King Fisher failed to preserve error because it did not timely

present its proposed specific order instruction to the trial court. We agree. The trial

court's docket control order in this case stated: "Each side shall submit its requested

special issues at trial or immediately prior to trial," and "at the commencement of trial,

each party should present their proposed charge of the court on computer disc, formatted

on WordPerfect and/or Microsoft Word, to the court coordinator."

       Prior to trial, Tamez submitted his proposed charge that included the specific order

question the trial court ultimately included. King Fisher then submitted its proposed

charge, which did not contain an instruction or definition defining the proposed definition

of "specific order."    King Fisher amended its proposed charge twice, yet neither

amendment contained a definition or instruction to accompany the specific order

question.

       At the informal discussion about the charge, counsel for Tamez informed the trial

court that his proposed specific order question was not a pattern jury charge, but was one

that was submitted in a case in Rio Grande City and was affirmed by the San Antonio

court of appeals.      At the formal charge conference, King Fisher did not submit a

proposed definition or instruction to accompany the specific order question.           King

Fisher's counsel objected to the specific order instruction on the basis that the evidence

did not support it.     Counsel argued that our opinion in Matos was incorrect and


                                            10
improperly analyzed the Williams case, discussed earlier in this opinion. King Fisher

also objected that the instruction was an improper comment on the weight of the

evidence.

       It was not until the trial court was ready to bring in the jury to read the charge that

King Fisher requested to submit its proposed instruction. In response, Tamez argued

that he did not have time to determine if the proposed instruction was in substantially

correct form. The trial court replied that it was going to reject the "specific orders"

instruction "mainly because it's not timely. I mean, we needed to have all this stuff done

and in by yesterday."

       Texas Rule of Civil Procedure 272 requires the trial court to allow counsel a

reasonable time to inspect and raise objections to the charge. Counsel for King Fisher

argued that the proposed definition was timely because it was submitted to the trial court

prior to the case going to the jury. Tamez argues that it was within the trial court's

discretion to deny the instruction.

       A trial court is afforded great latitude in its control of trial proceedings. The court

must be free to exercise its discretion to maintain control of its docket, and appellate

courts will not overturn the incidental rulings of a trial court. See Clanton v. Clark, 639

S.W.2d 929, 931 (Tex. 1982) (stating that at the trial court has wide discretion in

managing its docket). Trial courts have wide discretion in managing their dockets, and

appellate courts will not interfere with the exercise of that discretion absent a showing of

clear abuse. Clanton, 639 S.W.2d at 931; see also Dow Chem. Co. v. Francis, 46

S.W.3d 237, 240 (Tex. 2001) (trial court has inherent power to control disposition of cases


                                             11
"with economy of time and effort for itself, for counsel, and for litigants" (quoting Landis v.

N. Am. Co., 299 U.S. 248, 254 (1936))). That discretion can be exercised through

enforcement of a scheduling order. See G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply

Co., 177 S.W.3d 537, 542 (Tex. App.—Dallas 2005, no pet.); Wil-Roye Inv. Co. II v.

Washington Mut. Bank, FA, 142 S.W.3d 393, 401 (Tex. App.—El Paso 2004, no pet.).

       Here, the trial court had a scheduling order in place that established that the

parties were to have their proposed charges ready prior to trial. The trial court had both

an informal and formal charge conference at which it heard objections. King Fisher had

ample opportunity to present its proposed instruction to the trial court, but did not. Under

the circumstances, we cannot say that the trial court erred in refusing to include an

instruction tendered minutes before the charge was to be read to the jury. We overrule

issue two.

C. Materiality of Question Three

       King Fisher argues by its third issue that the jury's finding of contributory

negligence in response to questions 1 and 4, and its finding that Tamez was contributorily

negligent rendered question three, the "specific orders" question immaterial.

       In Williams, the Fifth Circuit Court of Appeals held that a seaman cannot be

contributorily negligent for carrying out orders, even if he recognizes possible danger.

Williams, 497 F.2d at 73. This court, in Matos, awarded the plaintiff the full amount, even

though he was found to be 50% at fault, because there was some evidence to show he

was following specific orders at the time of his injuries. See Matos, 778 S.W.2d at 531.

Thus, following precedent from this Court, we overrule King Fisher's third issue.


                                              12
                                         IV. CONCLUSION

         Having overruled each of King Fisher's issues, we affirm the judgment of the trial

court.



                                                  ROSE VELA
                                                  Justice

Delivered and filed the
31st day of May, 2012.




                                             13
