United States District Court, S.D. Texas, Galveston Division
FINDINGS OF FACT AND CONCLUSIONS OF LAW
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
case was tried to the bench for seven days. The following are
the Court's findings of fact and conclusions of law.
See FED. R. Civ. P. 52. Any conclusion of law more
properly characterized as a finding of fact is adopted as
such, and any finding of fact more properly characterized as
a conclusion of law is adopted as such.
UNDERLYING FACT FINDINGS
Captain Jay Rivera ("Captain Rivera" or
"Rivera") suffered a severe injury to his left foot
on August 19, 2016 while on board the M. V. Tarpon
("the Tarpon"), a seagoing tugboat owned
and operated by Kirby Offshore Marine, LLC
("Kirby"). At the time, Captain Rivera was 39 years
old and was a state-commissioned harbor pilot working in
Corpus Christi, Texas. Captain Rivera, who grew up watching
his father work as a pilot in Puerto Rico, had received his
commission from the Governor of Texas as a Branch Pilot for
the Port Aransas Bar, Corpus Christi Bay and Tributaries in
2008. Captain Rivera's commission was renewed in 2011 and
again in 2015.
While serving as a harbor pilot in Corpus Christi, Captain
Rivera was a member of an association known as Aransas-Corpus
Christi Pilots, which exists, according to its Articles of
Agreement, "to establish and maintain a set of
agreements, rules and procedures by which the licensed bar
pilots individually practicing their profession on the Port
Aransas Bar, Corpus Christi Bay and Tributaries may act
together in order to improve and enhance the efficiency of
such individuals." Aransas-Corpus Christi Pilots
collects the pilotage fees earned by its members; places
those fees in a common fund; and makes regular pro rata
distributions, less expenses, to its members. Captain Rivera
formed an S corporation, Riben Marine, Inc., that received
his distributions from Aransas- Corpus Christi Pilots.
Captain Rivera was the sole owner and sole officer of Riben
Captain Rivera was self-incorporated and acting as an
independent contractor during his membership in
Aransas-Corpus Christi Pilots. The Court finds that the
record facts regarding Captain Rivera's employment status
during his membership in Aransas-Corpus Christi Pilots are
materially indistinguishable from the record facts regarding
the employment status of the pilot in Bach v. Trident
Steamship Co., Inc., 920 F.2d 322, 327 & n. 5 (5th
Cir. 1991) ("Bach IF), reinstated after remand
at 947 F.2d 1290, 1291 (5th Cir. 1991), cert.
denied, 504 U.S. 931 (1992); see also Bach v.
Trident Steamship Co., Inc., 708 F.Supp. 772, 773 (E.D.
La. 1988) ("Bach F) (district court opinion
describing Bach pilot as self-incorporated, a member
of a pilots' association, and an independent contractor).
August 19, 2016, Captain Rivera boarded a pilot boat and
traveled approximately three to four miles offshore to serve
as a compulsory harbor pilot aboard the Tarpon and
guide the Tarpon to a berth at Oil Dock # 11 in the
Corpus Christi Harbor. When Captain Rivera's boat met the
Tarpon, the Tarpon was near the Port
Aransas sea buoy. The Tarpon was attached to a barge
as part of an articulated tug/barge unit, a configuration
that required Captain Rivera to board the barge in order to
board the Tarpon.
After Captain Rivera boarded the barge from the pilot boat,
he made his way to the bow of the Tarpon, where he
was met by an able-bodied seaman named David Hudgins
("Hudgins"), who was assigned to escort Captain
Rivera to the Tarpon's wheelhouse. Hudgins did
not typically work on board the Tarpon and had only
been working on board the Tarpon for two days. The
master of the Tarpon, Captain Jay Crossman
("Captain Crossman" or "Crossman"),
testified that he had not provided Hudgins with any formal
training regarding how to escort pilots safely to and from
the wheelhouse of the Tarpon. Moreover, there is no
evidence in the record showing that Hudgins had undergone the
new-vessel familiarization training that Kirby's internal
policies require. Kirby's general manager and corporate
representative, Captain Kevin Fogelsanger
("Fogelsanger" or "Captain Fogelsanger"),
testified that he did not recall seeing any notation
indicating that Hudgins had undergone new-vessel
familiarization training on the Tarpon.
Hudgins briefly greeted Captain Rivera before turning around
and walking down the port side of the Tarpon toward
the stern, headed for the aft side of the
Tarpon's house. Captain Rivera trailed Hudgins,
walking slowly to keep from slipping on sea spray that he saw
on the Tarpon's deck. When Captain Rivera
reached the aft side of the Tarpon's house, he
had lost sight of Hudgins, who had already entered the house.
Entering the Tarpon's house from the aft side
entailed entering through a watertight door by climbing over
a two-foot-high bulkhead. A single raised step was attached
to the bulkhead's outboard side, and another single
raised step was attached to the bulkhead's inboard side.
The two steps were roughly one foot high from the
Tarpon's deck. The watertight door led into a
part of the Tarpon's engine room in which engine
pistons and other machine parts were stored.
the deck just inboard of the watertight door was a closed
hatch cover. When open, that hatch cover allowed the crew of
the Tarpon to raise large machinery items out of and
lower large machinery items into the Tarpon's
lower engine room. But even when the hatch cover was closed,
the hatch cover's edge was not flush with the
Tarpon's deck; rather, it sat one to
one-and-a-half inches above the deck, creating a drop-off of
one to one-and-a-half inches around the perimeter of the
closed hatch cover. The hatch cover was very close to the
bulkhead; the aft edge of the hatch cover lay approximately
fifteen inches forward from the forward edge of the
one-foot-high step that was attached to the bulkhead's
inboard side. The edges of the hatch cover were not marked
and were not painted in a color contrasting the color of the
deck. Captain Fogelsanger conceded that the placement of this
access hatch-inboard of and underneath a watertight door in a
primary walkway-was unusual and that no other vessel in
Kirby's fleet contained an access hatch that was placed
in such a location. Captain Fogelsanger, in fact, could not
say that he had ever seen an access hatch placed in such a
location on any vessel other than the Tarpon.
Captain Rivera entered the Tarpon's house by
climbing over the bulkhead using the raised steps. From the
inside step, he stepped down toward the deck with his left
foot. His left foot landed on the edge of the hatch cover.
When Captain Rivera stepped on the edge of the hatch cover,
his ankle rolled and he fell, fracturing the fifth metatarsal
of his left foot. Hudgins was still out of sight and was not
present when Captain Rivera fell.
Captain Rivera lay on the deck for a few minutes until
Hudgins realized that he had left Captain Rivera behind and
reentered the engine room to look for him. Hudgins helped
Captain Rivera stand up; and Captain Rivera hopped on his
right foot to the Tarpon's galley, where he
checked in, and from there to the Tarpon's upper
the Tarpon's wheelhouse, Captain Rivera reported
his injury to Captain Crossman and requested ice and
Ibuprofen, which Captain Crossman provided. Captain ...