Tran et al v. Abdon Callais Offshore LLC et al

Filing 144

REVISED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Non-substantive revision. Signed by Judge Jay C. Zainey on 7/27/15.(jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THUAN VO TRAN, ET AL.

CIVIL ACTION

VERSUS

NO: 12-0999

ABDON CALLAIS OFFSHORE, LLC,
ET AL.

SECTION: "A"(4)

FINDING OF FACT AND CONCLUSIONS OF LAW
This litigation arises out of a maritime collision between the
F/V STAR OCEAN and the M/V ST. JOSEPH THE WORKER that took place on
March 1, 2012.

Plaintiffs Trinh Van Tran and Lanh Tran, captain

and deckhand, respectively, of the F/V STAR OCEAN, seek damages for
personal injuries, past and future lost wages, lost property, and
other general damages.

Plaintiff Tran & Peter, LLC seeks to

recover the costs of the attempted salvage of the F/V STAR OCEAN,
which sank after the collision, and other damages. Defendant Abdon
Callais Offshore, LLC seeks to recover the cost of the spill
response incurred as part of the aftermath of the collision.
Intervenor Tom's Marine & Salvage, LLC seeks to recover the amount
of a salvage contract entered into with Tran & Peter, LLC.
Defendant

Abdon

Callais

Offshore,

LLC,

appearing

with

defendants Captain Jack Sears, Jr. and the M/V ST. JOSEPH THE
WORKER, disputes the contention of Plaintiffs that it should be
held solely liable for the collision.
The case was tried to the Court, sitting without a jury, on
April 20-22, 2015. Having considered the testimony and evidence at

1

trial, the depositions submitted in lieu of live testimony, the
arguments of counsel, and applicable law, the Court now enters the
following Findings of Fact and Conclusions of Law in accordance
with Federal Rule of Civil Procedure 52(a). To the extent that any
finding of fact may be construed as a conclusion of law, the Court
hereby adopts it as such.

To the extent that any conclusion of law

constitutes a finding of fact, the Court adopts it as such.
I.

FINDINGS OF FACT
a.

The Collision

The F/V STAR OCEAN ("SO"), owned by Tran & Peter, LLC ("T&P"),
was

a

77

x

22

foot

uninspected

fiberglass construction.

fishing

vessel

of

primarily

It had a metal rigging made of 4 and 3

inch pipe raised just above the cabin and extending the width of
the vessel with lighting and other equipment mounted on it. The SO
also had a radio and two radars as well as a radar reflector.

At

the time of the collision, its crew consisted of Trinh Tran, the
captain, three deckhands, including Lanh Tran, and one passenger.
The M/V ST. JOSEPH THE WORKER ("SJW"), owned by Abdon Callais
Offshore, LLC ("ACO"), was a 205 x 46 foot inspected supply vessel
of primarily metal construction. It was outfitted with a radio and
two radars.

At the time of the collision, its crew consisted of

three captains, including Jack Sears who was piloting the SJW
immediately before the collision and Captain McDonald who rushed to
the controls right before the collision, three deckhands, and two
engineers.
2

Both vessels were underway on March 1, 2012 at the time of the
collision.

The SJW had just entered the Gulf of Mexico via Belle

Pass after departing from Port Fourchon and was proceeding at 9
knots on a course of somewhere between 168 and 172 degrees.

The SO

was traveling in the Gulf of Mexico towards Southwest Pass via the
Houma

Navigation

Canal

after

departing

from

Dulac

and

was

proceeding at 3-4 knots on a course of 110 degrees.
Visibility at the time of the collision was restricted due to
fog. However, neither party could establish the specific degree of
visibility.

The captains of the SJW stated at various points that

visibility was maybe 1/4 or 1/8 of a mile and worsening as they
proceeded into the Gulf of Mexico. The captain of the SO testified
that visibility at the time of the collision was 30 feet.

Phuc Vo,

who was in the wheelhouse of the SO at the time of the collision,
stated that visibility was 7-8 feet.

Based on the deposition

testimony of the captains, the Court finds that visibility at the
time of the collision was between 30 feet and 1/4 of a mile.
The SJW had the SO on its starboard side. The SJW attempted to
turn to the starboard and reduce its speed.

It struck the center

of the SO at a perpendicular angle on the port side of the SO.

The

crew of the SO evacuated onto the SJW, and the SO sunk shortly
thereafter.
Both vessels had radar devices.
other on its radar.

Neither vessel detected the

The SO had its radars set at 1/4 of a mile and

3/4 of a mile; the SJW had its radars set at 3 miles and 6 miles.
3

The SJW regularly broadcasted its position on the radio; the SO did
not.

Neither vessel sounded foghorns.

lookout.

The SJW did not have a

The SO had a second individual in its wheelhouse, Phuc

Vo, at the time of the collision.
the captain, Trinh Tran.

He was seated to the right of

Trinh Tran asked Phuc Vo to keep a

lookout to the front and to the right.
b.

Medical Findings
i.

Trinh Tran

At the time of the collision, Trinh Tran was piloting the SO
and fell to his left, onto the chair occupied by Phuc Vo.

At the

referral of counsel for Plaintiffs, Trinh Tran first went to see
Dr. George Murphy, accepted as an expert in orthopaedic surgery, on
March 12, 2012 and was continuing to see him at the time of trial.
Trinh Tran also continues to take medicine for pain prescribed by
Dr. Murphy.

Trinh Tran stated that his work capacity is now only

40% of what it was previously.
has

experienced

intimacy

Trinh Tran also testified that he

problems

with

his

wife,

has

memory

problems, becomes agitated more easily with his family members, and
can no longer play football and basketball.
On his initial visit to Dr. Murphy, Trinh Tran complained of
pain in his neck, lower back and right knee.

As these problems

persisted at his second appointment on April 2, 2012, Dr. Murphy
recommended MRI scans of Trinh Tran's neck, lumbar spine, and right
knee.

Dr. Murphy did not review the actual MRI scans, but he did

review the radiologists' reports from those MRI scans.
4

Regarding the knee, Dr. Murphy noted the presence of some
fluid in, or an effusion of, the knee joint, which is indicative of
inflammation in the knee.

There was no particular damage to the

extensor compartment or the lateral compartment of the knee.

Dr.

Murphy noted a tear of the medial meniscus of the knee, which can
cause irritation and pain.

Dr. Murphy also noted that an abnormal

signal on the MRI indicated a probable partial tear of the anterior
cruciate ligament.
On May 16, 2014, Dr. Pamela Petrocy performed arhthroscopic
surgery on Trinh Tran's right knee.
Dr. Murphy testified that Trinh Tran continues to experience
pain even after the surgery and that the condition in his knee is
chronic.

Dr. Murphy noted effusion in Trinh Tran's knee in his

September 2014 visit.

He also stated that the injuries have

probably accelerated the arthritis in the knee and that more
probably than not Trinh Tran will need knee replacement surgery at
some point.

Dr. Murphy opined that the collision caused the tear

suffered in his right knee.
Regarding Trinh Tran's cervical scan, Dr. Murphy reported that
the MRI revealed some disc protrusion at multiple levels but in
particular at C5-6 and C6-7 (including some cord deformity).

Dr.

Murphy noted particular concern with the deformity and said one
must look for symptoms in the upper extremities to see if the cord
is threatened.

Dr. Murphy testified that Trinh Tran did not

exhibit any such extremity problems.
5

Dr. Murphy also noted

degenerative change at the C6-7 level and opined that such changes
usually are caused by long-standing events.

He testified that

Trinh Tran has bad joints in his neck and that those are causing
him pain.

Dr. Murphy reiterated this opinion on cross examination

by stating that possibly all degenerative changes preexisted the
accident, which would not be unusual in a fifty-one year old male
who primarily has had jobs consisting of manual labor.
however

opine

that,

at

the

very

least,

the

He did

collision

would

aggravate such conditions.
Regarding the scan of Trinh Tran's lumbar spine, Dr. Murphy
noted the radiologist's findings of some spinal stenosis, or
narrowing of the canal, in the lower back and a moderate disc bulge
at L1-2. On cross examination, he acknowledged that the disc bulge
could not be dated.

Similar to the cervical scan, Dr. Murphy

observed that it was important that Trinh Tran was not experiencing
extremity symptoms in his legs. Dr. Murphy remarked that prominent
epidural fat, such as that present at Trinh Tran's L2-3 and L3-4,
contributes to the spinal stenosis.

He testified that while Trinh

Tran obviously had the epidural fat before the collision, it does
make

Trinh

aggravated.

Tran

more

susceptible

to

pain

in

his

back

when

Dr. Murphy concluded that the collision aggravated

Trinh Tran's lower back condition.
Dr. Murphy said restrictions regarding Trinh Tran's knee
depend mostly on how symptomatic the knee is at a given time, but
that he should not do things that require him to run, go up and
6

down stairs, or climb ladders.

He testified that the surveillance

pictures of Trinh Tran's activities are not inconsistent with these
recommendations. Regarding his neck and back, Dr. Murphy said that
Trinh Tran can drive a boat but should not lift more than 40-50
pounds and should be able to change positions frequently.

Dr.

Murphy testified that Trinh Tran did not tell him during the
September 2014 visit that he had returned to work.
Dr. Murphy opined that Trinh Tran was approaching maximum
medical improvement, but he still had some outstanding medical
issues.

He testified that he had not looked at the disability

ratings, but he said it would probably be about 3 to 5% impairment
for the spine and probably about 20-30% impairment for the knee.
Dr. Murphy does not see a need at this point for Trinh Tran to have
surgery regarding his neck or back.
Trinh Tran also met three times with Dr. Gordon Nutik,
accepted as an expert in orthopaedic surgery, at the request of
defense counsel.

These visits took place at Dr. Nutik's office on

November 19, 2012, April 17, 2013, and December 3, 2013.

In

addition to physical examinations, Dr. Nutik reviewed the MRI scans
themselves and also took x-rays of the injured areas on two
different occasions.

Similar to the opinions of Dr. Murphy, Dr.

Nutik noted that the cervical and lumbar issues evidenced in the
MRI scans and x-rays are indicative of long-standing problems that
likely preexisted the collision.

Dr. Nutik acknowledged that the

collision could have aggravated the conditions or caused soft
7

tissue strains of those areas, in other words, causing pain by
making the conditions symptomatic for a period of time.

Dr. Nutik

noted that there was no evidence of nerve root impingement.

Dr.

Nutik testified that he tested for objective indications of issues
in

his

neck

or

lower

back

that

aggravation, and he found none.

would

indicate

permanent

While Trinh Tran complained of

some neck and back pain during the first visit, these complaints
had lessened by the second visit.

By the third visit Trinh Tran

did not have pain complaints regarding his neck or lower back, and
Dr. Nutik thus concluded that those areas were now asymptomatic and
that the soft tissue strains or aggravated conditions had been
resolved.

Trinh Tran's range of motion remained stable throughout

his visits.

Neurological examinations did not show underlying

abnormalities on any visit.
Nutik

concluded

that

there

Based on all of these factors, Dr.
were

no

clinical

indications

of

permanent disability with Trinh Tran's neck or lower back.
As to the knee, Dr. Nutik found clinical signs consistent with
a tear in the medial meniscus.

Regarding the anterior cruciate

ligament, he testified that the MRI image was inconclusive but that
there

were

no

indications

of

instability

correlations to a ligament tear.

or

other

clinical

He did not see any further

deterioration in the right knee after taking a second round of xrays. Dr. Nutik testified that he could not say whether Trinh Tran
would

need

a

knee

replacement

deterioration.
8

since

that

would

depend

on

Regarding restrictions, Dr. Nutik said that he would have
restricted Trinh Tran to sedentary to light level of duty presurgery, but that post-surgery he would think that Trinh Tran could
do most things around a boat depending on the level of lifting.

He

observed that a majority of patients are able to go back to "heavyduty occupations" after surgery for medial meniscus tears.

Dr.

Nutik said that Trinh Tran should not play soccer with his right
knee. When asked about weight restrictions, he said that the level
of lifting depends on rehabilitation, but without a finding of
objective disability, there is no reason that Trinh Tran could not
lift over 50 pounds.
gone back to work.

Trinh Tran told Dr. Nutik that he had not
Surveillance showed Trinh Tran to be more

active than he had told Dr. Nutik on either the second or the third
visits.
Dr. Petrocy, accepted as an expert in orthopaedic surgery,
first met with Trinh Tran on September 30, 2013.

She performed a

physical exam and noted that he had "a large effusion and severe
tenderness to palpation" around the right knee.
both can be due to meniscus tears or arthritis.

She noted that
She reviewed the

MRI and diagnosed a torn medial meniscus and degenerative changes.
She did not diagnose a partial tear of the anterior cruciate
ligament.

Dr. Petrocy recommended the right knee arthroscopy and,

after two more visits, performed it on May 16, 2014.
removed a plica band and the meniscus tear.
seen Trinh Tran since the surgery.
9

Dr. Petrocy

Dr. Petrocy has not

Trinh Tran has only attended

two therapy sessions, although the general therapy recommendation
in such cases is 2 to 3 times a week for a month to 6 weeks.
As to the cause of the knee injury, Dr. Petrocy opined that
"[s]ince he did not have any symptoms prior to the accident, and
the accident's consistent with his injury, I think that it was more
probable than not that it did result in the torn meniscus."

She

based this opinion on the medical history as given to her by Trinh
Tran.

Dr. Petrocy testified that the degenerative conditions

preexisted the collision, as they otherwise would have appeared
differently.
Although she has not seen Trinh Tran since the surgery, Dr.
Petrocy

stated

that

she

would

not

expect

restrictions with regard to the knee itself.

him

to

have

any

She observed that,

generally, a patient will stop feeling pain anywhere from a month
to three to four months after the surgery.

Dr. Petrocy also noted

that therapy would usually help hasten the recovery. She testified
that Trinh Tran had told her that he was not working.
Finally, the Court notes several surveillance photographs in
evidence that show Trinh Tran, both pre and post surgery, engaged
in a wide range of activities in a variety of positions.

While the

expert testimony was clear that none of these activities were
inconsistent

with

Trinh

Tran's

injuries,

they

illuminate

the

spectrum of his abilities even pre-surgery.
The Court finds that Plaintiff has not established that any
disc bulges, protrusions, or other issues noted by the experts as
10

"degenerative" were caused by the collision.

Plaintiffs did

establish that the collision caused some level of aggravation or
related soft tissue strain of these preexisting conditions.

The

Court credits Dr. Nutik's testimony, due to his review of the MRI
scans, two rounds of x-rays, and several examinations based on
objective indicators, that Trinh Tran has no permanent aggravation
or disability as to his neck or back.

There was no evidence of

radiculopathy in the extremities or nerve impingement.

Trinh Tran

has not had nor is he a candidate for neck or back surgery.
Plaintiffs did establish that the medial meniscus tear was
caused by the collision.

Plaintiffs did not establish that there

was a tear to the anterior cruciate ligament or that Trinh Tran
will need a knee replacement as a result of injuries caused by the
collision. While it does appear that Trinh Tran continues to
experience some problems with his knee, the Court questions his
credibility as to the amount of pain his knee is causing him.

He

falsely denied working on several occasions when visiting with the
doctors.

Furthermore, Trinh Tran has failed to take action to

mitigate or address any continuing knee issues outside of his
visits to Dr. Murphy and two therapy sessions as of the date of his
trial.

Despite Dr. Murphy's instructions on September 2, 2014 to

return to his operating surgeon, Trinh Tran still had not done so
as of the date of trial.

Thus, while Dr. Murphy diagnosed a 20-30%

impairment of the right knee, this appears to be largely based on
Trinh Tran's subjective complaints of pain, which the Court does
11

not fully credit.
the

neck

and

The Court also finds that any pain related to

back

is

only

intermittent.

Based

on

these

inconsistencies, the failure to mitigate, and the surveillance
photos, the Court finds that Trinh Tran failed to establish any
compensable future pain and suffering by a preponderance of the
evidence.
Plaintiffs argue that Trinh Tran is entitled to $900,000 in
general damages for all injuries. Defendants argue that Trinh Tran
is entitled to $35,000 in general damages for his injuries.

Both

agree that Trinh Tran is entitled to $23,789.28 in past medical
expenses.
The Court finds that Trinh Tran is entitled to the following
damages: 1.) $23,789.28 in past medical expenses; and 2.) $100,000
for general damages.
ii.

Lanh Tran

At the time of the collision, Lanh Tran was sleeping on a top
bunk in the SO's cabin.

He stated that the cabin collapsed on him,

and that his fellow deckhands were able to pull him free.

The

other deckhands helped him to evacuate to the SJW where he received
dressings for his injuries.

Lanh Tran stated that he had injured

his neck, back, head, and leg in the collision.

He reported that

pain from these injuries has caused problems in his relationship
with his family.

He testified that he can no longer work, and he

cannot play the sports that he used to enjoy.
At the referral of counsel for Plaintiffs, Lanh Tran went to
12

see Dr. Murphy on March 13, 2012 and was continuing to regularly
see him at the time of trial.

Dr. Murphy testified that on the

first visit Lanh Tran came to him with complaints of pain in his
neck, lower back, and left ankle (where he had been cut in the
collision). Lanh Tran also reported that he struck his head in the
collision.

He had pain in his neck and back but no radiation to

the extremities.

On the second visit, Dr. Murphy noted that Lanh

Tran had some radiation to the upper leg, so he recommended
cervical and lumbar MRI scans.

Dr. Murphy then reviewed the

radiologist's reports based on those MRI scans.
The report of the cervical MRI noted a protrusion at C3-4 and
a bulge at C4-5, neither affecting pressure on the spinal cord.

A

protrusion at C5-6 was noted as possibly affecting the nerve root;
however, Dr. Murphy said one would expect to have radicular pain in
the arm, but Lanh Tran had pain only in his shoulder, which could
be either radicular or referred.

He noted that the protrusions or

bulges at multiple levels are evidence of a preexisting condition.
The report of the lumbar MRI noted a disc bulge at L3-4 with
mild spinal stenosis and a bulge at L4-5 that could cause pressure
on the nerve roots on either side, which can lead to irritation in
the legs. On cross examination, Dr. Murphy acknowledged that these
issues could not be dated to the collision.

Dr. Murphy also noted

that in the earlier visits Lanh Tran had some radiation into his
upper legs, a symptom which can come and go and is evidence of
possible nerve root impingement.
13

As

to

both

the

lumbar

and

cervical

issues,

Dr.

Murphy

concluded that the collision at least aggravated his condition and
could have worsened it or even caused some of it.

He noted that

the pain in both the neck and back are chronic, and that Lanh
Tran's headaches are linked to neck problems.

Lanh Tran is not a

candidate for surgery nor has he had any surgery as a result of the
collision.

He reached maximum medical improvement on December 10,

2014.
Regarding restrictions, Dr. Murphy recommended that Lanh Tran
remain active and not lift anything over 40-50 pounds. He does not
recommend a return to commercial fishing.

Dr. Murphy opined that

Lanh Tran suffers from 3-5% permanent impairment of his neck and
back.

He stated that the injuries to his left ankle and head were

temporary contusions.
In summary, the Court finds that the collision aggravated the
conditions of Lanh Tran's neck and back, causing pain.
suffers minimal impairment in both areas.

Lanh Tran

Plaintiffs did not

establish that the collision caused any protrusions or bulges.
Plaintiffs did not establish that Lanh Tran suffers from nerve root
impingement.
collision.

He has not and will not have surgery related to the
Plaintiffs did establish that the temporary head and

ankle contusions were caused by the collision.
The exact extent of any continuing pain or impairment is
difficult to determine.

The Court questions the credibility of

Lanh Tran regarding the effect of his injuries.
14

Several surveillance photographs in evidence show Lanh Tran
engaged in a wide range of activities in a variety of positions,
albeit not ones inconsistent with his injuries.

More importantly

however, Lanh Tran appeared to try to mask the extent of his
abilities on cross examination.

For example, when asked about his

activities in a surveillance photograph in which Lanh Tran is
carrying a propane tank or similar cannister, he first tried to
explain that he was holding a hose and watering the flowers in the
picture.

When the Court asked him further about the item in his

hands, he repeated the answer about watering the flowers.

Lanh

Tran then changed his story and stated that he was carrying a
plastic receptacle for trash. The Court finds that the pain is not
as severe as stated by Lanh Tran.

Based on his diminished

credibility, due to the inconsistency of his testimony and the
surveillance photographs, Lanh Tran did not establish his future
pain and suffering by a preponderance of the evidence.

For these

same reasons, the Court also finds that Lanh Tran did not establish
that he cannot return to work.
Plaintiffs argue that Lanh Tran is entitled to $620,000 in
general damages for all injuries.

Defendant argues that Lanh Tran

is entitled to $30,000 in general damages for his injuries.

Both

agree that he is entitled to $5910 in past medical expenses.
The Court finds that Lanh Tran is entitled to the following
damages: 1.) $5910 in past medical expenses; 2.) $50,000 for
general damages.
15

c.

Lost Wages1
i.

Trinh Tran

Plaintiffs argue that Trinh Tran is entitled to damages for
lost

wages

and

$1,481,703.00.

lost

earning

capacity

in

the

amount

of

For support of this contention, they point to the

testimony of their expert economist, Dr. Randolph Rice.

Dr. Rice

used the average net income of Trinh Tran's tax returns for the
years 2009-2011, including an amended 2011 return as prepared by
Timothy Legendre, CPA, who was also called by Plaintiffs.

As

opposed to the original 2011 Schedule C, which had listed $116,751
in "Other Expenses," the amended 2011 Schedule C reclassified
$81,449 of these expenses as a depreciable capital expenditure due
to conversion of a fishing vessel to "long-line" use.

While this

resulted in the same taxable result as the original 2011 Schedule
C, a loss of $57,837, Mr. Legendre counted the entirety of this
depreciable amount as a positive gain in calculating Trinh Tran's
economic income for 2011, resulting in a profit of $23,662 for that
year.

To this number, Dr. Rice also added an ATAA / RTAA payment

of $25,942.

In addition to the Schedule C net income for 2010, Dr.

Rice also included $125,000 from the Deepwater Horizon Oil Spill

1

In a previous ruling in this case, the Court held that
Plaintiffs should use the tax returns of the three previous years
as evidence of the actual earnings of the individuals in the
overall lost wage calculations instead of relying exclusively on
a wage rate derived from statistical studies of individuals in
similar positions. The Court went no further in limiting the
parties in their methodology or calculations.
16

Trust, a $25,000 INA Insurance payment, and a $12,326.05 taxable
energy grant from the La. Dept. of Wildlife and Fisheries, all as
listed in attendant 1099 forms.

Dr. Rice then arrived at an

average base earnings of $137,380.

Assuming that Trinh Tran has

not been able to work since the date of the accident, March 1,
2012, Dr. Rice concluded that Trinh Tran is owed $352,412 in aftertax past wage losses and $1,129,291 in after-tax loss of future
earning capacity.
Defendants argue that Trinh Tran is entitled to past lost
wages of $33,857.07.

Defendants base this number on the testimony

of their expert economist, Dr. Kenneth Boudreaux.

Dr. Boudreaux

arrived at this number by first taking the average of Trinh Tran's
net income as displayed in his tax returns for 2009-2011.

He

prorated this amount, $47,458, for the window of time between the
date of the accident, March 1, 2012, and the first round of
surveillance photographs of Trinh Tran, January 25, 2013, and then
subtracted

taxes

to

arrive

at

a

figure

of

$33,857.07.

Dr.

Boudreaux did not use the amended 2011 Schedule C nor did he
incorporate the alternative sources of income mentioned above.2
The Court finds that Trinh Tran was able to return to work as

2

For the first time in post-trial briefing, Plaintiffs argue
that the Court should not use the numbers listed under"net income"
but should instead use the number listed under "gross income" for
each and then subtract the lowest figure of expenses from any of the
three years to arrive at a base earnings figure. The Court finds no
fault with the methodology used by all experts at trial, as the net
profit amount represents gross earnings less expenses. The only item
remaining is to deduct taxes.

17

a fishing vessel captain on August 11, 2013.

Surveillance photos

showed Trinh Tran on a boat on this date, and he admitted that it
was a fishing vessel owned by T&P and that he was driving the boat.
Thus, the award of lost wages will extend from March 1, 2012 to
that date.

Plaintiffs did not establish how the collision or

injuries affected Trinh Tran's earning capacity or future lost
wages. Second, the Court credits the testimony that the conversion
of the vessel into a "long-lining" fishing vessel, which the Court
finds was undertaken, is properly classified as a depreciable
capital expenditure. However, all experts agreed that the dominant
methodology

would

only

add

half

of

that

amount

back

into

a

calculation of economic income for the given year. Third, Dr. Rice
admitted on cross examination that he could not say if the money
from INA and Deepwater Horizon were to compensate for lost fishing
income.

Dr. Rice was not rehabilitated on that point, and Trinh

Tran was not asked about it.

The Court finds that these amounts

should not be used in the calculation of Trinh Tran's lost wages.
No one has cited, nor has this Court been able to find, any
jurisprudence to the contrary.3

Based on the preceding, Trinh Tran

is entitled to lost wages in the amount of $69,922.25.4

3

The Court also notes that Plaintiffs do not mention any
argument in post-trial briefing that sources of additional income,
such as the Deepwater Horizon payments, should be included in the
calculation of lost wages for Trinh Tran.
4

To arrive at this figure, the Court calculated the tax rate
used by both experts. As the figures used by Dr. Boudreaux were
closer to the figures used by the Court, the Court elected to use the
tax rates employed by him. The Court then prorated the amounts and

18

ii.

Lanh Tran

Plaintiffs argue that Lanh Tran is entitled to damages for
lost wages and lost earning capacity in the amount of $113,341.00.
Dr. Rice arrived at this figure after taking the average of net
incomes for 2009-2011, including $12,000 from the Deepwater Horizon
Oil Spill Trust and a $9,008 INA Insurance payment.

Using these

figures, Dr. Rice arrived at an annual base earnings of $22,830.
Assuming that Lanh Tran has not been able to work since the date of
the accident, March 1, 2012, Dr. Rice concluded that Lanh Tran is
owed $69,814 in after-tax past wage losses and $43,527 in after-tax
loss of future earning capacity, based on a work-life expectancy of
1.98 years from the trial date.
Defendants argue that Lanh Tran is entitled to past lost wages
of $16,319.38.
2009-2011.

Dr. Boudreaux also used the net income figures for

While he included the $12,000 from the Deepwater

Horizon Oil Spill Trust, he did not use a figure that included the
INA insurance payment.

He prorated this amount, $19,827, for the

window of time between the date of the accident, March 1, 2012, and
the first round of surveillance photographs of Lanh Tran, February
15, 2013, and finally subtracted taxes to arrive at a figure of
$16,319.38.
In reviewing the relevant testimony, the Court finds that Lanh
Tran could return to work as a deckhand on a commercial fishing

applied the relevant tax rates to arrive at an after-tax number.

19

vessel as of February 15, 2013.

Also, consistent with its finding

as to Trinh Tran, the Court will exclude the Deepwater Horizon Oil
Spill

Trust

payment

and

the

INA

insurance

payment

from

its

calculation of lost wages. Based on the preceding, the Court finds
that Lanh Tran is entitled to $13,067.05 in past lost wages.
d.

Salvage Contracts

Following shortly after the collision and the sinking of the
SO, Thuan Vo Tran, co-owner / member of T&P and wife of Trinh Tran,
executed a salvage contract with Tom's Marine & Salvage, Inc.
("Tom's Marine").
The first contract, signed on March 8, 2012, provides in
pertinent part as follows:

...
4.

SALVOR'S

ONLY

OBLIGATION

UNDER

THIS

CONTRACT SHALL BE TO USE ITS BEST EFFORTS TO
REMOVE THE SAID VESSEL . . . .
5. AN INITIAL DEPOSIT OF 20,000.00 DOLLARS
U.S. IS DUE AT THE SIGNING OF THIS CONTRACT
PRIOR TO THE START OF SALVAGE WORK.

THE

REMAINING BALANCE OF 120,000.00 DOLLARS U.S.
IS DUE AT THE SETTLEMENT OF THE LAWSUIT.
...

(Ex. 13) (Emphasis in original).
20

The second contract, signed on March 12, 2012, provides in
full as follows:

THIS AGREEMENT MADE ON THIS 8TH [sic] DAY
OF MARCH 2012 BETWEEN TRAN THUAN AND KHAI
"TOM" DINH ENTAILS IN THE EVENT THE M/V STAR
OCEAN IS UNSALVAGEABLE, THE SALVAGE CONTRACT
STATES THE AMOUNT TO PERFORM THE SALVAGE IS
140,000.00 DOLLARS U.S., WITH NONREFUNDABLE
20,000.00 DOLLARS U.S. DUE AT THE SIGNING OF
THE

SALVAGE

CONTRACT

AND

THE

REMAINING

120,000.00 DOLLARS U.S. DUE AT THE SETTLEMENT
OF THE LAWSUIT, IN THE EVENT THAT THE M/V STAR
OCEAN IS UNSALVAGEABLE, THE AMOUNT DUE TO KHAI
"TOM" DINH WILL BE 50 PERCENT OF THE AMOUNT OF
THE SETTLEMENT OUT OF COURT.

(Ex. 11, at 290) (Emphasis in original).

Tom's Marine argues that it is due the full amount of the
contract, $140,000, less the $20,000 deposit already paid by T&P.
Plaintiffs argue that the contract terms are ambiguous, and thus
the ambiguity should be construed against Tom's Marine and read as
the additional $120,000 coming due only if there is a settlement

21

out of court. Defendants argue that the terms are explicit, should
be

given

their

consequences.

plain

meaning,

and

do

not

lead

to

absurd

They contend that the second contract replaced the

first, and, as there was no out of court settlement, there is no
further amount due.

Defendants also note that a "no cure / no pay"

contract is common in the event of an unsalvageable vessel.

All

parties stipulated that Tom's Marine put forth a good faith effort,
albeit unsuccessful, to salvage the SO.
As to two preliminary issues raised in miscellaneous pretrial
briefings but addressed sparingly, if at all, in trial, the Court
finds that Thuan Tran signed in her capacity as a representative of
T&P.

On both contracts, she signed as "agent of owner."

undisputed owner of the SO is T&P.

The

The Court also finds that it

was not established that Thuan Tran signed this contract under
duress.
The parties did not provide any discussion as to whether
Louisiana

law

or

general

maritime

law

should

interpretation of the salvage contracts at issue.

apply

to

the

Under either

framework, the result would be the same. The Court must first look
to the written language of the contract to discern the intent of
the parties.

Corbitt v. Diamond M. Drilling Co., 654 F.2d 329,

332-33 (5th Cir. 1981); La. C.C. art. 2046.

Only if that language

is found to be ambiguous, or to lead to absurd consequences, may
the Court take into account additional evidence of the intent of
the contracting parties – such as their testimony regarding their
22

understanding of the contractual terms.

See In re Oil Spill by Oil

Rig Deepwater Horizon in Gulf of Mexico, on Apr. 20, 2010, No. 12968,

2014

WL

6698291,

at

*1,

n.3

(E.D.

La.

Nov.

26,

2014)

(citations omitted) (noting the application of such rules under
general maritime law via interstitial adoption of Louisiana law).
The Court finds the second contract inapplicable here.

Two

conditions would have triggered its effect – the vessel being
unsalvageable and a "settlement out of court."

While the vessel

was ultimately found to be unsalvageable, the lawsuit was not
"settled out of court," and thus the application of this second
contract was not triggered.
The first contract therefore governs the parties' agreement.
The Court finds that the phrase "due at the settlement of the
lawsuit" is both ambiguous and would lead to absurd consequences.
This

phrase

characteristic

contemplates
of

a

a

definite

lawsuit

itself

conclusive
but

moment

certainly

characteristic of an amicable settlement out of court.

–

a

not

a

The Court

finds uncertainty as to whether this phrase was intended to mean
the sum became due merely at the conclusion of the lawsuit or that
it would become due only if there was an amicable resolution.

The

Court further notes the absurdity of the conclusion of accepting
the latter proposition.

For example, in this case, the parties

took part in a settlement conference before the magistrate judge
after the conclusion of the trial.

(Rec. Doc. 128).

Under the

latter reading, if the parties reached an agreement, even after
23

trial, Tom's Marine would be entitled to compensation; if instead
the Court issued an opinion, Tom's Marine would be entitled to $0.
The Court now turns to consider the parole evidence to further
discern the intent of the parties.

In re Oil Spill, 2014 WL

6698291, at *1 (noting the propriety of such consideration once
ambiguity or absurdity has been established). Thuan Tran testified
at

trial.

She

unequivocally

stated

that

there

outstanding balance on the contract of $120,000.

is

still

an

When asked

further, she explained that she has not paid yet because she has
been waiting for the Court's decision in the case.
The Court finds that the parties intended the phrase "due at
the settlement of the lawsuit" to indicate that the amount became
due once the lawsuit had concluded.

As further support for this

position, the Court notes that the second contract uses the
language "settlement out of court," which denotes that the parties
were able to specify such a scenario when they wished to do so and
deliberately chose to not use such language in the first contract.
Relatedly, while it is true that there are "no cure / no pay"
salvage arrangements, the advent of salvage contracts was largely
to protect salvors from just such a scenario when unintended.

See

R. Ethan Zubic, Pure Versus Contract Salvage: Narrowing the Scope
of an "Agreement to Volunteer" Bar to Pure Salvage, 10 LOY. MAR.
L.J. 145, 146 (2011).

For this reason, the failure to state in the

first contract, either expressly or impliedly, that this was a "no
cure / no pay" arrangement intimates that the parties' intent was
24

in fact the opposite.

C.f. 2 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME

LAW § 16-1 (5th ed. 2014).
e.

Thus, T&P owes Tom's Marine $120,000.

Spill Response

ACO was instructed by the United States Coast Guard to provide
a preventative oil spill response due to the collision.

ACO in

turn hired Environmental Safety & Health, Inc. In return for their
services, ACO paid $81,836.09.
reasonable amount.
to

offset

the

The Court finds this to be a

ACO is entitled to recover from T&P, or rather

amount

due

to

T&P,

the

sum

on

this

contract

proportionate with T&P's liability.
f.

Personal Property of Trinh Tran and Lanh Tran; Fuel, Ice,

Bait, etc. on the SO
Plaintiffs did not sufficiently carry their burden on proving
damages as to the lost property of Trinh Tran and Lanh Tran or the
loss of supplies on board the SO at the time of collision.
As to the personal property claims, Trinh Tran offered only
his own testimony, stating that he lost a "diamond ring . . . worth
$3800," a "Movado brand" watch that he purchased for $2200, and a
"one carat gold" necklace that he bought for $950. Similarly, Lanh
Tran offered his testimony that he lost a "necklace [of] about 2.5
carats with a value worth [$]1760, a ["Longines"] watch worth . .
. [$]1100, and [an] iPhone . . . [worth] $200."

He also testified

that he had a suitcase with various items totaling "around 200 to
$300" in value.

Finally, testimony as to value of any fuel, ice,

bait, and other supplies on board the SO remained at only the
25

broadest and vaguest level – "I went to get the fuel and the
supplies, I paid 22,000 plus . . . ."
corroborating

evidence

to

Plaintiffs did not offer any

establish

their

loss

–

no

expert

testimony, no evidence of purchase, no further descriptions of the
items, original price, market value, condition at loss, or age.
This purely conclusory statement does not constitute evidence to
substantiate their claim.
While in some cases the uncontroverted testimony of the
plaintiff is sufficient to satisfy his burden of proof, he must
provide some degree of specificity, including details about value,
description, place of purchase, and price of purchase.

See, e.g.,

Cho v. Royal Oldsmobile Co., Inc., 722 So.2d 1138, 1142 (La. App.
4 Cir. 1998).

Having weighed the credibility and the specificity

of the Plaintiffs's testimony on these items, and noting the vague
nature of this testimony and the implausibility that individuals
would choose to bring fine jewelry on a fishing trip, the Court
finds that they did not carry their burden of proof and thus denies
the recovery for lost property as claimed by the Plaintiffs.
However, given that Plaintiffs did not intend for the voyage to be
merely

a

day

trip,

the

Court

does

find

Plaintiffs lost some personal property.

it

established

that

Accordingly, the Court

finds it reasonable to award Trinh Tran and Lanh Tran $250 each for
lost personal property.
II.

CONCLUSIONS OF LAW
The Court has subject matter jurisdiction over this action
26

pursuant to 28 U.S.C. § 1333, which confers on the federal courts
original jurisdiction over admiralty and maritime claims. Venue is
proper in this district and is not contested.
a.

Liability

"The standard of care in maritime cases is derived from
general

concepts

of

prudent

seamanship

and

reasonable

care,

statutory and regulatory rules, and recognized customs and usages."
Tokio Marine and Fire Ins. Co., Ltd. v. M/V Flora, no. 97-1154,
1999 WL 14000, at *10 (citing Schoenbaum, § 14-2 at 255).

The

International

Sea

Regulations

for

Preventing

Collisions

at

("COLREGS"), 33 U.S.C. § 1602, et seq., governed the operations of
the vessels at the time of the collision.

To determine liability,

even in a comparative fault case, the Pennsylvania Rule applies: "a
vessel shown to be in breach of a statute or regulation has the
burden of proving not only that [t]he fault probably was not one of
the contributory causes but that it could not have been."

Id.

(citing The Pennsylvania, 86 U.S. 125 (1874); Otto Candies, Inc. v.
M/V Madeline D., 721 F.2d 1034, 1036 (5th Cir. 1983)).

In other

words, "[T]he burden of proof is shifted as to the causation issue
once it is established that the vessel violated the statute or
regulation."

Id.

(citing Garner v. Cities Serv. Tankers Corp.,

456 F.2d 476, 478 (5th Cir. 1972)).
COLREG 2 (Responsibility) provides,
"(a) Nothing in these Rules shall exonerate any vessel, or the
owner, master, or crew thereof, from the consequences of any
27

neglect to comply with these Rules or of the neglect of any
precaution which may be required by the ordinary practice of
seamen, or by the special circumstances of the case.
"(b) In construing and complying with these Rules due regard
shall be had to all dangers of navigation and collision and to
any special circumstances, including the limitations of the
vessels involved, which may make a departure from these Rules
necessary to avoid immediate danger."
COLREG 5 (Lookout) provides, "Every vessel shall at all times
maintain a proper look-out by sight and hearing as well as by all
available means appropriate in the prevailing circumstances and
conditions so as to make a full appraisal of the situation and of
the risk of collision."
COLREG 6 (Safe Speed) provides, "Every vessel shall at all
times proceed at a safe speed so that she can take proper and
effective action to avoid collision and be stopped within a
distance

appropriate

conditions.

to

the

prevailing

circumstances

and

In determining a safe speed the following factors

shall be among those taken into account:
(a) By all vessels:
(I) The state of visibility;
(ii) The traffic density including concentrations of
fishing vessels or any other vessels;
(iii)

The

manageability

of

the

vessel

with

special

reference to stopping distance and turning ability in the
28

prevailing conditions;
(iv) At night, the presence of background light such as
from shore lights or from back scatter from her own
lights;
(v) The state of wind, sea and current, and the proximity
of navigational hazards;
(vi) The draft in relation to the available depth of
water.
(b) Additionally, by vessels with operational radar:
(I) The characteristics, efficiency and limitations of
the radar equipment;
(ii) Any constraints imposed by the radar range scale in
use;
(iii) The effect on radar detection of the sea state,
weather and other sources of interference;
(iv) The possibility that small vessels, ice and other
floating objects may not be detected by radar at an
adequate range;
(v) The number, location and movement of vessels detected
by radar;
(vi) The more exact assessment of the visibility that may
be possible when radar is used to determine the range of
vessels or other objects in the vicinity."
COLREG 7 (Risk of Collision) provides, in part,
"(a) Every vessel shall use all available means appropriate to
29

the prevailing circumstances and conditions to determine if
risk of collision exists. If there is any doubt such risk
shall be deemed to exist.
"(b) Proper use shall be made of radar equipment if fitted and
operational, including long-range scanning to obtain early
warning of risk of collision and radar plotting or equivalent
systematic observation of detected objects.
"(c) Assumptions shall not be made on the basis of scanty
information, especially scanty radar information."
COLREG 8 (Action to Avoid Collision) provides, in part, "Any
action taken to avoid collision shall be taken in accordance with
Rules 4-19 and shall if the circumstances of the case admit, be
positive, made in ample time and with due regard to the observance
of good seamanship."
COLREG 11 (Applicability) provides, "Rules 11-18 apply to
vessels in sight of one another."
COLREG 15 (Crossing Situation) provides, in part, "When two
power-driven

vessels

are

crossing

so

as

to

involve

risk

of

collision, the vessel which has the other on her own starboard side
shall keep out of the way and shall, if the circumstances of the
case admit, avoid crossing ahead of the other vessel."
COLREG 18 (Responsibilities Between Vessels) provides, in
part, "Except where Rules 9, 10, and 13 otherwise require:
(a) A power-driven vessel underway shall keep out of the way
of:
30

(I) a vessel not under command
(ii) a vessel restricted in her ability to maneuver;
(iii) a vessel engaged in fishing."
COLREG

19

(Conduct

of

Vessels

in

Restricted

Visibility)

provides, in part,
"(a) This Rule applies to vessels not in sight of one another
when navigating in or near an area of restricted visibility.
(b) Every vessel shall proceed at a safe speed adapted to the
prevailing
visibility.

circumstances

and

conditions

of

restricted

A power-driven vessel shall have her engines

ready for immediate maneuver.
(c) Every vessel shall have due regard to the prevailing
circumstances and conditions of restricted visibility when
complying with Rules 4-10."
COLREG 34 (Maneuvering and Warning Signals) provides, in part,
"When vessels in sight of one another are approaching each other
and from any cause either vessel fails to understand the intentions
or actions of the other, or is in doubt whether sufficient action
is being taken by the other to avoid collision, the vessel in doubt
shall immediately indicate such doubt by giving at least five short
and rapid blasts on the whistle. [ Such | This ] signal may be
supplemented by at least five short and rapid flashes."
COLREG 35 (Sound Signals in Restricted Visibility) provides,
in part, "In or near an area of restricted visibility, whether by
day or night the signals prescribed in this Rule shall be used as
31

follows:
(a) A power-driven vessel making way through the water shall
sound at intervals of not more than 2 minutes one prolonged
blast."
Both parties to the collision called expert witnesses to
testify on their behalf.

Plaintiffs called Captain Robert Munger.

Defendants called Captain Ronald Campana.
Applying the rules and legal principles cited above, the Court
finds that both vessels were at fault in the collision.
thus turns to the task of allocating liability.

The Court

See United States

v. Reliable Transfer Co., Inc., 421 U.S. 397, 410-11 (1975)
("[L]iability

.

.

.

is

to

be

allocated

among

the

parties

proportionately to the comparative degree of their fault, and that
liability for such damages is to be allocated equally only when the
parties are equally at fault or when it is not possible fairly to
measure the comparative degree of their fault.").
With respect to the SJW, the captains violated the rules of
the road and the ordinary practice of seamanship by piloting their
vessel

at

9

knots

in

conditions

of

restricted

visibility.

Moreover, they steered the vessel primarily by radar with the
autopilot engaged, despite Captain Sears' knowledge that both
decisions were not ordinary practice for daytime operations in
restricted visibility.

Ex. 12, at 362-64.

The captains also knew

that vessels of primarily fiberglass or wood constructions would
not appear on their radar.

E.g., Ex. 4 at 81-82; Ex. 12, at 53.
32

They did not post a lookout nor did they sound a foghorn.

The SJW

thus failed to use all available means to determine if a risk of
collision existed, failed to conduct itself with due regard to the
prevailing circumstances and conditions of restricted visibility,
and

made

assumptions

on

the

basis

of

scanty

information.

Collectively, the actions violated the ordinary practice of seamen
and violated COLREGS 2, 5, 6, 7, 8, 19, and 35.5

The Court has

considered the other alleged violations but finds that Plaintiffs
have not established the SJW's violation of those rules.
With respect to the SO, the captain neither sounded a foghorn
nor regularly communicated its position via radio. He also did not
make proper use of the SO's radars, as the SO failed to detect the
SJW and failed to engage in long-range scanning.

The violations

establish that the SO failed to conduct itself with due regard to
the

prevailing

visibility.

circumstances

and

conditions

of

restricted

Collectively, these actions violated the ordinary

practice of seamen and violated COLREGS 2, 7, 19, and 35.
The SO was not required to have radar on board.

See 46 C.F.R.

§ 28.300 ("Applicability) (explaining that the requirements of that
subpart, including the requirement of having radar on board, only
apply to commercial fishing vessels that, among other things, have
crews of more than 16 individuals).

5

However, COLREG 7 includes

The Court finds COLREG 34(d), the "danger signal," to be
irrelevant to analysis of either party's liability as the Court finds
such signaling would have had no effect on avoidance of the collision,
i.e., causation.

33

within its ambit all vessels which have radar, not only those which
are required to have it.

The SO violated COLREG 7 insofar as it

was not using its radio and was not using its radar for long-range
scanning.

The SO also failed to make proper use of this radar, by

operator control or by defect, as it did not pick up a 205 x 44
foot metal crew boat; no other explanation was offered for not
detecting such a large, metal target.
The Court finds that Defendants failed to establish any other
violations

on

the

part

of

the

SO.

Defendants

presented

insufficient evidence for a finding that the SO violated COLREGS 5,
6, or 8.
The testimony was inconclusive as to whether SJW was properly
using its radar.

It is clear that they were attempting long range

scanning, as the testimony established that the radars were set at
3 and 6 mile ranges.

It is also clear that radars frequently have

difficulty picking up vessels that are of a primarily non-metallic
structure, as was the SO.
rigging.

However, the SO did have some metal

Additionally, Captain McDonald testified that the SO had

a radar reflector.

No details were provided as to the size or

angle of the radar reflector.
determine

if

the

radar

Therefore, it is impossible to

reflector

was

of

such

a

size

or

so

positioned that the SJW should have picked it up if operating its
radars correctly. Although Captain Munger did testify that the SJW
should have been able to detect the SO as radars can normally pick
up sea buoys, which are of a smaller construction, Captain Campana
34

undermined the importance of this observation in pointing out that
sea buoys are specifically set up and designed to be picked up on
radars, whereas the size and position of the SO's radar reflector
would be determinative factors for its effectiveness.
testified

only

that

improper

operation

was

one

Camapana

of

possibilities for why the SJW did not pick up the SO.

several

The Court

also received deposition testimony of Jeffrey Frankel, captain of
the M/V K MARINE VI, a similarly-sized supply vessel following
shortly behind the SJW until the vessels reached the Gulf. Captain
Frankel stated that he also did not pick up the SO on his radar.
This undermines the importance of Trinh Tran's testimony that yet
another vessel contacted the SO on its own initiative, implying
that the vessel must have picked up the SO on its radar.

That one

vessel could pick up a fishing vessel of primarily fiberglass
construction, but two vessels could not, does not establish that
the two vessels had defective radars or were using their radars
improperly.
Plaintiffs did not carry their burden to show that their
failure to regularly communicate their position or their failure to
sound a foghorn could not have been one of the contributory causes
of the collision. Captain McDonald did state that he did not think
Trinh Tran would have been able to understand him even if they had
communicated on the radio.

In response to questions about whether

he heard any foghorns, Captain McDonald stated that with "six 3516
screaming diesel engines . . . you [sic] not going to hear that"
35

and then "[t]hat would have been pretty tough to hear [depending on
the equipment]." Both experts unequivocally testified that the F/V
STAR OCEAN should have been doing both.

Captain Campana testified

that although he has not been on the SJW, he has been on sister
ships owned by ACO, and that they can pick up "a tremendous amount
[of noise from the outside]."

There was no expert testimony that,

based on the sound devices of the SO and the auditory conditions
aboard the SJW, a sound signal from the SO could not be heard on
the SJW.

Furthermore, Captain Sears was piloting the SJW during

the time leading up to the collision, not Captain McDonald, and he
stated no such opinions.
Based on the above findings of fact and conclusions of law,
the Court finds that the M/V ST. JOSEPH THE WORKER was 75% at fault
and the F/V STAR OCEAN was 25% at fault for the collision and the
damages should be apportioned in these percentages.6

6

Plaintiffs also argue in pre-trial motions and their posttrial briefing that the Court should apply the doctrine of
unseaworthiness in finding liability on part of ACO, thus holding ACO
to this doctrine's stricter standard. The doctrine of
unseaworthiness as applied in the Fifth Circuit operates only in
actions by the injured against the employer / owner of the vessel on
which he worked (or in other limited scenarios not at issue here).
Smith v. Harbor Towing & Fleeting, Inc., 910 F.2d 312, 314-315 (5th
Cir. 1990); Coakley v. SeaRiver Maritime, Inc., 319 F. Supp.2d 712,
714 (E.D. La. 2004) ("The duty of seaworthiness is an absolute and
non-delegable one which 'the owner of a vessel owes to the members of
the crew who man her.' United New York and New Jersey Sandy Hook
Pilots Ass'n v. Halecki, 358 U.S. 613, 616 (1959) ([emphasis in
district court citation]); see Brister v. A.W.I., Inc., 946 F.2d
350,355 (5th Cir. 1991). Thus the plaintiff must establish that he
is a seaman, a crew member, with respect to the barge on which his
injury occurred . . ., and that the defendant was the owner of the
vessel."); In re Diamond B. Marine Srvcs., Inc., no. 99-1346, 2001 WL
1164914, at *14 (E.D. La. Sept. 28, 2001) (Clement, C.J.) ("Because
they were not crewmembers of the CANE RIVER, the claimants have no
right to pursue unseaworthiness claims against Trico as a matter of

36

b.

Summary of Damages and Interest

All amounts below have been reduced, where appropriate, to an
apportionment of damages consistent with this Court's finding of
apportionment of liability.
1.
cost

of

T&P – $84,540.98 to be paid by ACO ($140,000, the

the

salvage

contract,

reduced

by

25%

to

reflect

apportionment of liability and then offset by $20,459.02, the
amount owed to ACO on the preventative oil spill response cost).
2.

Tom's Marine – $120,000 to be paid by T&P.

3.

ACO

-

$20,459.02

(T&P's

liability

for

the

preventative oil spill response cost) to be offset against the
amount owed by ACO to T&P as included in calculation above.
4.

Trinh Tran – $145,471.15 total ($193,961.53 reduced

by 25%, consisting of $69,922.25 in lost wages; $23,789.28 in past
medical expenses; $100,000.00 in general damages; and $250.00 in
lost property).
4.

Lanh

Tran

–

$69,227.05

total

(consisting

of

$13,067.05 in lost wages; $5910.00 in past medical expenses;
$50,000.00 in general damages; and $250.00 in lost property).
Defendants are liable for $51,920.29, or 75%, of this total.
Both Plaintiffs and Intervenor argue that they are entitled to

law.")(citations omitted); CHARLES M. DAVIS, MARITIME LAW DESKBOOK 215

(2010 ed.)(reviewing the related caselaw); see also 1 THOMAS J.
SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 6-27 (5th ed. 2014). Thus, the
doctrine is inapplicable here. Further, it was not established that
the training of the SJW's captains fell below the standard of care of
any duty that ACO might have owed to the crew of the SO.

37

prejudgment

interest.

Prejudgment

interest

is

available

in

admiralty cases to compensate the plaintiff for the use of funds to
which he was rightfully entitled.

Brister, 946 F.2d at 362

(quoting Noritake Co. v. M/V HELLENIC CHAMPION, 627 F.2d 724, 728
(5th Cir. 1980)).
damages.

Id.

It is available as a general rule for past

However, the Court in its discretion may deny

prejudgment interest where peculiar circumstances would make such
an award inequitable.

Reeled Tubing, Inc. v. M/V Chad G., 749 F.2d

1026, 1028 (5th Cir. 1986) (citing Inland Oil & Transport Co. v.
Ark-White Towing Co., 696 F.2d 321, 327 (5th Cir. 1983). "Peculiar
circumstances may be found where plaintiff improperly delayed
resolution of the action, where a genuine dispute over a good faith
claim exists in a mutual fault setting, where some equitable
doctrine cautions against the award, or where the damages award was
substantially less than the amount claimed by plaintiff."

Id.

(citations omitted).
The

Court

prejudgment

finds

interest

that
to

circumstances of this case.

it

would

Plaintiffs

be

inequitable

due

to

to

the

award

peculiar

This case had two trial dates set

shortly after the incident, both of which were continued on motion
by Plaintiffs over objections of Defendants.

Furthermore, as

evident from the trial and this Court's analysis, both parties had
good faith claims and both have been found to be at fault.

Finally

the damages awarded are substantially less than those claimed.
See, e.g., Comar Marine, Corp. v. Raider Marine Logistics, LLC,
38

nos.

13-30156,

13-30819,

2015

WL

4079541,

at

*10

(5th

Cir.

2015)(affirming denial of prejudgment interest on the last factor);
St. James Stevedoring Partners, LLC v. Motion Navig. Ltd., no. 130541, 2014 WL 3892178, at *19 (E.D. La. Aug. 6, 2014)(denying
prejudgment interest on these last three factors).
Intervenor is also not entitled to prejudgment interest. This
Court has found that the balance of the salvage contract became due
at the conclusion of this litigation.

As this order and its

accompanying judgment marks the end of the litigation, there is no
"prejudgment injury" from which prejudgment interest may accrue.
Post-judgment interest and costs are owed in accordance with
the applicable statutes.

July 27, 2015
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

39