     Case: 10-40784 Document: 00511385514 Page: 1 Date Filed: 02/17/2011




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

                                                 FILED
                                                                          February 17, 2011

                                     No. 10-40784                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



LAVERN D. BONIN,

                                                   Plaintiff - Appellee
v.

RYAN MARINE SERVICES, INC.,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 3:07-CV-00481


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       This appeal involves a suit brought by Lavern D. Bonin, under the
Jones Act and pursuant to general maritime law, against his employer, Ryan
Marine Services, Incorporated (“Ryan Marine”), for injuries that he sustained
to his left shoulder in the course of his employment. After a bench trial, the
district court found in favor of Bonin and awarded him damages. On appeal,
Ryan Marine challenges the district court’s findings of fact as to (1)


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40784

negligence; (2) causation; and (3) the appropriate damages for Bonin’s lost
wages. Because the district court did not clearly err as to these findings of
fact, we AFFIRM the district court’s judgment.
                                      BACKGROUND
       Bonin was working for Ryan Marine on April 6, 2007, on the M/V RMS
CITATION (“the vessel”) when his supervisor, Captain Bill Cox (“Captain
Cox”) ordered him and another deckhand, Brian Smith, to go to the anchor
platform1 in order to detach the vessel from a work platform on shore, to
which the vessel was attached. They were to do this by disconnecting and
retrieving the mooring line2 which connected a cable, called the anchor cable,
on the vessel, to a cable attached to the work platform.
       Bonin claimed that he suffered a severe injury to his left shoulder while
attempting to retrieve the mooring line, impairing his ability to work. He
brought suit against Ryan Marine in district court. After conducting a bench
trial, the district court determined that Captain Cox was negligent in
ordering Bonin to retrieve the mooring line and thereby created an
unseaworthy vessel, which was the proximate cause of the injury to Bonin’s
shoulder. The court awarded Bonin $203,168 in damages.
       On appeal, Ryan Marine contests the sufficiency of the evidence as to
(1) the district’s finding regarding Captain Cox’s negligence; (2) the district
court’s finding that Captain Cox’s negligence caused Bonin’s injury; and (3)
the damages awarded by the district court to Bonin. We address each
argument in turn.




       1
        The record indicates that the anchor platform was a platform on the back of the vessel
to house the anchor.
       2
           The mooring line is also sometimes referred to in the record as the shock line.

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                                  No. 10-40784

                          STANDARD OF REVIEW
       “In a bench tried admiralty case, a district court’s findings concerning
negligence and causation are findings of fact reviewable by this court only for
clear error.” Johnson v. Cenac Towing, Inc., 544 F.3d 296, 303 (5th Cir.
2008). As damages awards are also findings of fact, we review such awards
for clear error. Nichols v. Petroleum Helicopters, Inc., 71 F.3d 119, 121 (5th
Cir. 1994). “A finding is clearly erroneous when the appellate court, viewing
the evidence in its entirety, ‘is left with the definite and firm conviction that a
mistake has been made.’” Bertucci Contracting Corp. v. M/V ANTWERPEN,
465 F.3d 254, 258-59 (quoting Walker v. Braus, 995 F.2d 77, 80 (5th Cir.
1993)). We may not reverse “[if] the district court’s finding is plausible in
light of the record as a whole,” even if this court “would have weighed the
evidence differently.” Id. at 258.
                                 DISCUSSION
                                        A.
      The parties do not dispute that this case is governed by the Jones Act,
46 U.S.C. § 30104, which permits “an injured seaman to sue his employer for
personal injuries suffered as a result of the employer’s negligence.” Park v.
Stockstill Boat Rentals, Inc., 492 F.3d 600, 603 (5th Cir. 2007). In a Jones Act
case, the relevant standard of care is “ordinary prudence under the
circumstances.” Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338 (5th
Cir. 1997). The district court found that Captain Cox was negligent in
ordering Bonin to retrieve the mooring line, which was very heavy, under
dangerous conditions at sea, and with only one person to assist him. The
court also found that Captain Cox should instead have ordered Bonin to cut
the mooring line.
      Here, Ryan Marine contends that there is no evidence or expert
testimony to support a finding that Captain Cox was negligent. Specifically,

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                                  No. 10-40784

Ryan Marine argues that Bonin and the other deckhand, Smith, were the
only witnesses who testified that Captain Cox was negligent, and that they
did not have the requisite expertise required to testify as to whether Captain
Cox was negligent in ordering them to retrieve the mooring line. This
argument fails; Ryan Marine cites no authority in its brief supporting its
claim that expert testimony was required to establish that Captain Cox did
not exercise ordinary prudence under the circumstances. Moreover, Bonin
had 40 years of experience working on vessels, and Smith had 15 years of
such experience.
      Ryan Marine also argues that even if Bonin and Smith were qualified to
testify as to whether Captain Cox was negligent, their testimony did not show
that Captain Cox was negligent. We disagree. The record contains evidence
that Captain Cox ordered the two other men to retrieve a heavy, waterlogged
mooring line under dangerous conditions. When the men attempted to
retrieve the mooring line, the seas were heavy, and visibility was poor
because it was late at night. Moreover, the mooring line itself was heavy and
water-logged, and the weather caused it to be pulled taut, making it difficult
to disconnect the line. The men also had no safety equipment or guard rails
where they were standing on the anchor platform. We discern no clear error,
because the district court’s finding that Captain Cox was negligent and
should have ordered the men to cut rather than retrieve the mooring line is
plausible in light of the record as a whole.
                                        B.
      Ryan Marine also contends that the evidence shows that Captain Cox’s
negligence, if any, did not cause Bonin’s injury. Ryan Marine argues that
Captain Cox ordered Bonin and Smith to disconnect the mooring line from
the cable connected to the work platform, whereas at one point in his
testimony, Bonin stated that he was injured when attempting to disconnect

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                                 No. 10-40784

the mooring line from the anchor cable on the vessel. Ryan Marine further
contends that disconnecting the mooring line from the anchor cable was the
safest method for detaching the vessel from the work platform.
      The district court found that Captain Cox’s negligence was in sending
Bonin and Smith out to retrieve the mooring line at all, rather than simply
ordering them to cut the mooring line, and that Bonin suffered the injury to
his shoulder while attempting to retrieve the line. There was testimony from
both Smith and Bonin to support the proposition that under the
circumstances, Captain Cox should have ordered the men to cut the mooring
line. There was also testimony that Bonin suffered the injury after being sent
by Captain Cox to the anchor platform to attempt to retrieve the mooring
line. We discern no clear error in the district court’s finding regarding
causation.
                                       C.
      Ryan Marine’s final argument is that the evidence does not support the
damages awarded to Bonin, because the evidence shows that Bonin was
disabled when he went to work for Ryan Marine, and so Bonin is not entitled
to past or future lost wages.
      The district court found that Bonin suffered an injury to his left
shoulder while trying to retrieve the mooring line as ordered, and that any
pre-existing condition that he had was not acute or debilitating. These
findings are plausible in light of the record as a whole, which included
testimony from an orthopedic surgeon regarding Bonin’s medical condition
before and after the April 6, 2007 injury, and from an economist hired by
Bonin to testify regarding his economic losses. In addition, the district court’s
award of lost past and future wages was lower than what the economist
calculated. Accordingly, the district court did not clearly err in the lost wages
that it awarded to Bonin.

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                               CONCLUSION
     We conclude that the district court did not clearly err in its findings as
to negligence, causation, or damages. Thus, we AFFIRM the district court’s
judgment and award of damages to Bonin.




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