     Case: 10-30924     Document: 00511635927         Page: 1     Date Filed: 10/18/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 18, 2011

                                       No. 10-30924                        Lyle W. Cayce
                                                                                Clerk

LEJO BAHAM, also known as Lee Baham,

                                           Plaintiff-Appellant Cross Appellee
v.

NABORS OFFSHORE CORPORATION,

                                           Defendant-Appellee Cross-Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:06-cv-2372


Before REAVLEY, GARZA, and GRAVES, Circuit Judges.
PER CURIAM:*
        Plaintiff Lejo Baham brought this suit under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901, et seq., after he was
injured while working on an offshore drilling rig owned by the predecessor in
interest of Defendant Nabors Offshore Corp. At the time he was hurt, Baham
was working for Intervenor SeatraxServices, Inc. (“Seatrax”).                    Intervenor
SeaBright Insurance Co. is Seatrax’s longshore insurance carrier.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-30924
      The parties appeal and cross-appeal the district court’s judgment after a
bench trial. We affirm.
      The accident occurred at the base of the port-side crane on Nabors’s
offshore drilling rig Dolphin 109. The crane’s cab sits about twenty feet above
the Dolphin 109’s deck, on a circular concrete pedestal. Ladder rungs on the
pedestal extend downward from the cab to a circular platform of open-grated
steel, which surrounds the pedestal at a height of about fourteen feet above the
rig’s deck. There is an opening in the circular platform, through which a second
ladder extends to the deck. The ladder opening is usually covered by a hinged
square of steel grating of the same kind as the circular platform. It was Nabors’s
policy that this cover be closed at all times, except very briefly to permit passage
through the opening. A Coast Guard regulation requires that:
     Openings in decks accessible to personnel must be covered, guarded,
     or otherwise made inaccessible when not in use. The manner of
     blockage shall prevent a person’s foot or body from inadvertently
     passing through the opening.

33 C.F.R. § 142.87.
      Baham is a crane mechanic. He was dispatched to the Dolphin 109 on
September 14, 2006, to inspect and possibly repair the port-side crane. Before
ascending to the circular platform, Baham spent a few minutes drinking coffee
and smoking with David Prather, the senior supervisor on the Dolphin 109.
After receiving a call from the crane’s cab, Prather left Baham and ascended the
two ladders to the cab. After passing through the ladder opening in the circular
platform, Prather did not close its cover before he continued up the ladder into
the cab. Baham lingered briefly where he and Prather had been speaking and
then climbed the ladder to the circular platform. He testified at trial that he did
not notice the ladder opening’s cover, as he was facing away from the cover as
he passed through. The cover still open, Baham made his way around the
circular platform, looking upward to examine equipment located just below the

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                                 No. 10-30924
cab. As he completed the circuit around the pedestal, Baham stepped into the
ladder opening and fell to the deck below.
      Baham’s injuries prevent him from working as a crane mechanic, but he
eventually returned to work for Seatrax in a clerical capacity. Although Baham
actually worked between twenty and twenty-five hours per week, Seatrax paid
him for fifty-five hours per week. He was paid the wage he had enjoyed as a
crane mechanic, about twice the regular rate for a clerical worker. Seatrax
ultimately paid Baham a total of $106,810.00 under this arrangement.
      After Baham brought the instant suit against Nabors, the parties
consented to trial before a U.S. Magistrate Judge, and the district court entered
judgment for Baham after a four-day bench trial. Prather and Baham offered
conflicting testimony regarding whether Prather had authorized Baham to
ascend the ladder alone. The district court credited Baham’s testimony that
when Prather left to ascend to the crane’s cab, they agreed that Baham would
finish his cigarette and then ascend to the circular platform to begin his
inspection. The district court found Nabors had breached its duties under 33
U.S.C. § 905(b) by failing to exercise ordinary care and committing negligence
per se by violating 33 C.F.R. § 142.87. The court found that Baham’s own
negligence made up fifty percent of the fault giving rise to the accident, and
reduced his recovery by half.
      The district court also entered judgment for Seatrax and SeaBright,
awarding them reimbursement for benefit payments advanced to Baham. Of the
wages Seatrax paid to Baham when he worked in a clerical capacity after the
accident, the court found that $26,702.50 was genuine compensation for the
clerical work, and that the remaining $80,107.50 constituted an advance of
workers’ compensation benefits. The court thus entered judgment for Seatrax
in the amount of $80,107.50, to be satisfied out of Baham’s net recovery from
Nabors.

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                                 No. 10-30924
      On appeal, Baham asserts that his comparative fault should not have been
considered in an LHWCA case, and that the district court erred in the allocation
of fault between Baham and Nabors. Baham challenges the district court’s
finding that Seatrax’s wage payments were advance payments of compensation
benefits under the LHWCA, and he argues that SeaBright’s compensation lien
against Baham’s recovery should be reduced by the fraction of comparative fault
attributed to Baham.
      Nabors cross-appeals, challenging the district court’s findings that Nabors
was negligent under 33 U.S.C. § 905(b), that Nabors violated 33 C.F.R. § 142.87,
and that the violation constituted negligence per se. Nabors joins Baham’s
challenge to the district court’s finding that Baham’s post-accident wages were
advance payments of workers’ compensation benefits.
      Regarding his first issue, Baham’s challenge is foreclosed by Neal v. Saga
Shipping Co., 407 F.2d 481, 486 (5th Cir. 1969) (plaintiffs who are not Jones Act
seamen do not enjoy the benefit of the rule barring application of contributory
negligence in Jones Act cases). Baham’s argument regarding the effect of
comparative negligence on an employer’s entitlement to recoup advance workers’
compensation payments is also foreclosed by binding precedent. See Bloomer v.
Liberty Mut. Ins. Co., 445 U.S. 74, 85-87, 100 S.Ct. 925, 931-33 (1980); Jacques
v. Kalmar Indust., AB, 8 F.3d 272, 274 (5th Cir. 1993); Hayden v. Kerr-McGee,
787 F.2d 1000, 1002-04 (5th Cir. 1986).
      The district court’s negligence findings and its allocation of fault between
Baham and Nabors are factual determinations, Johnson v. Offshore Express,
Inc., 845 F.2d 1347, 1352-53, 55 (5th Cir. 1988), which this Court may not set
aside absent clear error. Turner v. Costa Line Cargo Servs., Inc., 744 F.2d 505,
507-08 (5th Cir. 1984). Neither Baham nor Nabors has pointed to any problem
with the district court’s fact finding that would merit reversal under that
standard.

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                                 No. 10-30924
      Nabors argues that 33 C.F.R. § 142.87 does not apply because Nabors was
not Baham’s employer, and that the district court used the incorrect legal
standard in its negligence per se analysis. The former argument is raised for the
first time on appeal, and therefore not considered. Spotts v. United States, 613
F.3d 559, 569 (5th Cir. 2010). Regarding the latter, we note that the district
court applied the same standard set forth in Nabors’s own pretrial filing of
January 28, 2009. We find no merit in Nabors’s third argument regarding
§ 142.87, that the opening was continuously “in use” from the time when Prather
ascended to the crane cab until Baham ascended to the circular platform. As
noted above, the district court credited Baham’s testimony that he and Prather
agreed that Baham would follow Prather onto the circular platform after Baham
finished his cigarette. In any event, the district court’s conclusion that Nabors
failed to exercise ordinary care supports its fault determination independently
of the § 142.87 violation.
      We do not accept Baham’s argument that traditional concepts of
negligence per se required allocating all of the fault to Nabors “when a statute
designed to protect against [a] worker’s inadvertence is ignored and
consequently causes an injury.” Baham’s argument assumes that 33 U.S.C.
§ 142.87 made Nabors solely and completely responsible for ensuring that the
cover was immediately shut after Baham used the ladder opening. Section
142.87 requires that there be covers for such openings and makes vessels
generally responsible for ensuring that the covers remain closed outside of the
brief periods when openings are in use. It does not require that deck openings
be fool proof, or relieve a longshoreman of his own duty of care regarding
coverage of a deck opening he has just used.
      The intentions of the employer are dispositive of whether post-injury
payments to an LHWCA-covered employee constitute true wages or advance
payments of workers’ compensation. Shell Offshore, Inc., v. Dir., Office of

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                                 No. 10-30924
Worker’s Comp. Programs, 122 F.3d 312, 317-18 (5th Cir. 1997). The district
court’s conclusions regarding Seatrax’s intentions are supported by enough
evidence to preclude finding clear error.
      AFFIRMED.




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