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Rivera v. Kirby Corp.

United States District Court, S.D. Texas, Galveston Division

August 28, 2019

JAY RIVERA, Plaintiff,
KIRBY CORP., et al, Defendants.



         This 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.


         1. 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.

         2. 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 Marine.

         3. 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).

         4. On 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.

         5. 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.

         6. 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.

         7. 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.

         8. On 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.

         9. 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.

         10. 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 wheelhouse.

         11. In the Tarpon's wheelhouse, Captain Rivera reported his injury to Captain Crossman and requested ice and Ibuprofen, which Captain Crossman provided. Captain ...

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