Gonzales v. River Ventures, LLC

Filing 95

JUDGMENT AND REASONS: IT IS HEREBY ORDERED that there be judgment in favor of Defendant River Ventures and against Plaintiff Angelo Gonzales on all of Gonzales' claims against River Ventures. Signed by Judge Nannette Jolivette Brown on 4/14/2017.(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANGELO GONZALES

CIVIL ACTION

VERSUS

CASE NO. 15-2145

RIVER VENTURES, LLC

SECTION: “G”(1)
JUDGMENT AND REASONS

This matter came before the Court for trial without a jury from October 24, 2016, to
October 25, 2016.1 The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§ 1333(1), which confers on the federal district courts original jurisdiction over admiralty and
maritime claims, and pursuant to 33 U.S.C. § 905(b) of the Longshore and Harbor Workers’
Compensation Act (“LHWCA”).2 Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b),
as Defendant River Ventures, LLC (“River Ventures”) resides in the Eastern District of Louisiana.3
The substantive law applicable to this case is the LHWCA, 33 U.S.C. § 901, et seq., and the general
maritime law.4
The Court has carefully considered the testimony of all of the witnesses and the exhibits
entered into evidence during the trial, as well as the record. After reviewing all of the evidence and
pursuant to Federal Rule of Civil Procedure Rule 52(a), the Court issues the following findings of

1

Rec. Doc. 81.

2

Rec. Doc. 1 at 1; Rec. Doc. 43 at 8; Rec. Doc. 78 at 3.

3

See Rec. Doc. 1 at 1; Rec. Doc. 78 at 2.

4

See Rec. Doc. 1 at 1; Rec. Doc. 43 at 8; Rec. Doc. 44 at 5.

1

fact and conclusions of law. To the extent that any finding of fact may be construed as a conclusion
of law, the Court hereby adopts it as such, and to the extent that any conclusion of law constitutes
a finding of fact, the Court hereby adopts it as such.
I. BACKGROUND
In this litigation, Gonzales, an employee of Intervenor United Bulk Terminals Davant, LLC
(“UBT”), seeks damages for injuries sustained on June 17, 2014, while being transported on a
vessel by Defendant River Ventures. 5 As a result of this accident, Gonzales asserted a claim
against Intervenor American Longshore Mutual Association, Ltd. (“ALMA”) and UBT
(collectively, “Intervenors”) pursuant to the LHWCA.6 Intervenors contend that ALMA, on behalf
of UBT, made payments to Gonzales in connection to these injuries pursuant to the LHWCA.7
On June 16, 2015, Gonzales filed a complaint in this matter against River Ventures. 8
ALMA and UBT intervened on December 1, 2015, and March 10, 2016, respectively. 9 No
dispositive motions were filed. On October 13, 2016, ALMA filed a motion in limine to preclude
Jerry Hannah, president of River Ventures, from testifying about matters it believed constituted
parol evidence regarding the contract between River Ventures and UBT.10 The Court took the
motion under advisement prior to trial. 11 River Ventures chose not to call Jerry Hannah as a

5

See Rec. Doc. 1 at 2; Rec. Doc. 43 at 1.

6

Rec. Doc. 78 at 4.

7

Id.

8

Rec. Doc. 1.

9

Rec. Docs. 10, 20.

10

Rec. Doc. 66.

11

See Rec. Doc. 87 at 16.

2

witness during the trial, which rendered the motion moot.12 On October 19, 2016, River Ventures
filed a motion to exclude the “surprise” expert testimony of Dr. Charles Haddad.13 River Ventures
also filed a motion to continue the trial based on Dr. Haddad’s allegedly new testimony on October
20, 2016.14 The Court denied both motions.15 A trial without a jury was held from October 24,
2016, to October 25, 2016.16
On November 7, 2016, the Court ordered the parties to submit supplemental post-trial
briefing, if necessary. 17 On November 20, 2016, ALMA filed a post-trial memorandum. 18 On
November 21, 2016, Gonzales filed a post-trial memorandum.19 On December 8, 2016, River
Ventures filed a post-trial memorandum,20 and on December 9, 2016, ALMA and UBT filed a
reply.21 On December 12, 2016, Gonzales filed a reply.22

12

See Rec. Doc. 87 at 271.

13

Rec. Doc. 67.

14

Rec. Doc. 70.

15

Rec. Doc. 77.

16

Rec. Doc. 81.

17

Rec. Doc. 84.

18

Rec. Doc. 85.

19

Rec. Doc. 86.

20

Rec. Doc. 92.

21

Rec. Doc. 93.

22

Rec. Doc. 94.

3

II. FINDINGS OF FACT
A.

The Parties
1.

Plaintiff Angelo Gonzales is a resident of the Parish of St. Bernard, Louisiana.23

2.

Defendant River Ventures, LLC is a Louisiana limited liability company with its
principal place of business in St. Amant, Louisiana.24

3.

Intervenor United Bulk Terminals Davant, LLC is a Louisiana limited liability
company with its principal place of business in Davant, Louisiana.25

4.

Intervenor American Longshore Mutual Association, Limited is a mutual association,
organized and existing under the laws of Bermuda.26

B.

The Relationships Between the Parties
5.

Gonzales has been employed by UBT as an electrician since 2012.27

6.

Gonzales has worked as an electrician for 40 years, including 14 years as a marine
electrician and supervisor at Avondale Shipyards prior to being employed by UBT in
2012.28

23

This fact is uncontested. See Rec. Doc. 78, Pre-Trial Order, at 2.

24

This fact is uncontested. See id.

25

This fact is uncontested. See id.

26

This fact is uncontested. See id.

27

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 159:10–159:13; Rec. Doc. 78, Pre-Trial Order,

28

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 159:10–159:20, 181:17–181:25.

at 5.

4

7.

UBT transfers coal to and from river barges and oceangoing vessels and maintains
stockpiles of coal at several land-based storage areas.29

8.

UBT owns and operates several docks in Davant, Louisiana, on the Mississippi River
on which vessels may be moored and equipment may be stored.30

9.

While working for UBT, Gonzales was responsible for performing general electrical
maintenance on all UBT equipment, including the equipment located on UBT’s
docks.31

10.

River Ventures, a crew boat/transport vessel company, contracted with UBT to provide
transportation for UBT employees on the Mississippi River.32

11.

The General Agreement contract between River Ventures and UBT was in effect and
controlling at the time of the incident that is the subject of this litigation.33
ALMA insured UBT for claims arising under the Longshore and Harbor Workers’

12.

Compensation Act.34
River Ventures’ Vessel: The M/V TROOPER

C.

River Ventures owned and operated the vessel “the M/V TROOPER.”35

13.

29

See Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 43:18–43:23.

30

See id. at 43:20–44:12; Rec. Doc. 78 at 3.

31

See Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 160:4–160:11.

32

This fact is uncontested. See Rec. Doc. 78, Pre-Trial Order, at 3, 5.

33

This fact is uncontested. See id. at 5.

34

This fact is uncontested. See id.

35

This fact is uncontested. See id.

5

14.

River Ventures used the M/V TROOPER to transport UBT employees between work
sites.36

15.

The M/V TROOPER includes a large open deck on the stern of the ship with handrails
on both the port and starboard corners of the stern of the deck.37
The captain’s wheelhouse, which is a covered structure with several windows installed

16.

where the captain operates the vessek, is located at the bow of the ship.38
17.

The captain sits inside the wheelhouse cabin on the port side of the vessel.39

18.

The M/V TROOPER is also equipped with an off-loading platform constructed on the
top of the captain’s wheelhouse.40

19.

The off-loading platform on the M/V TROOPER is used to offload personnel onto
docks that are raised above the regular deck of the vessel.41

20.

The platform was equipped with a metal grated floor and handrails on both sides, with
openings in the handrails on both the port and starboard sides of the platform to allow
passengers to disembark from the platform either way and an opening for the ladder
entrance.42

36

This fact is uncontested. See id.

37
See Rec. Doc. 82, Plaintiff’s Exhibit Number One, at 1 (Annotated Photograph of the M/V TROOPER
(Stern view)); Rec. Doc. 82, Plaintiff’s Exhibit Number Three, at 1 (Photograph of the M/V TROOPER (angled
photograph)); Rec. Doc. 82, Intervenor’s Exhibit Number Eight, at 1 (Annotated Photograph of the M/V TROOPER).
38

Id.

39

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 121:12–121:16.

40
See Rec. Doc. 43, Plaintiff’s Suggested Findings of Fact and Conclusions of Law, at 2; Rec. Doc. 44, River
Ventures, LLC’s Proposed Findings of Fact and Conclusions of Law, at 2.
41

See Rec. Doc. 78, Plaintiff’s Suggested Findings of Fact and Conclusions of Law, at 2.

42

See Rec. Doc. 82, Plaintiff’s Exhibit Number One, at 1 (Annotated Photograph of the M/V TROOPER

6

21.

To reach the top of the platform to disembark, a passenger must first climb a ladder on
the starboard side of the vessel onto an intermediate stage on the back half of the
wheelhouse, walk across the intermediate stage of the wheelhouse to the port side of
the vessel, and then climb a second ladder to the top of the platform.43

D.

The Events of June 17, 2014: Gonzales boards the vessel
22.

On June 17, 2014, Gonzales was working for UBT as a Class A electrician.44

23.

On June 17, 2014, Noble Ruffin (“Captain Ruffin”) was an employee of River Ventures
and the captain of the M/V TROOPER.45

24.

Captain Ruffin had been a captain at River Ventures for approximately six months prior
to the incident on June 17, 2014.46

25.

On June 17, 2014, Gonzales requested that Captain Ruffin transport him and some
equipment to the “F boom” dock operated by UBS.47
Gonzales instructed Captain Ruffin on where he should be dropped off.48

26.

(Stern view)); Rec. Doc. 82, Plaintiff’s Exhibit Number Three, at 1 (Photograph of the M/V TROOPER (angled
photograph)); Rec. Doc. 82, Intervenor’s Exhibit Number Eight, at 1 (Annotated Photograph of the M/V TROOPER);
Rec. Doc. 44, River Ventures, LLC’s Proposed Findings of Fact and Conclusions of Law, at 2–3.
43

See id.

44

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 160:1–160:4.

This fact is uncontested. See Rec. Doc. 78, Pre-Trial Order, at 3, 5; Rec. Doc. 43, Plaintiff’s Suggested
Findings of Fact and Conclusions of Law, at 1.
45

46

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 116:8–116:25.

47
See Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 81:13–81:19; Test. of Angelo Gonzales, Trial Tr.,
Oct. 24, 2016, at 161:5–162:10, 185:6–185:17; Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 117:13–119:25,
151:21–151:24.
48

See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 91:16–91:24; Test. of Noble Ruffin, Trial Tr., Oct.
24, 2016, at 117:13–119:25, 151:21–151:24; Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 185:6–185:17.

7

27.

Captain Ruffin piloted the M/V TROOPER to the barge where Gonzales was waiting
to depart.49

28.

Captain Ruffin backed the stern of the M/V TROOPER up to the barge and tied up the
M/V TROOPER to the barge.50

29.

The M/V TROOPER was level with the barge where Gonzales was awaiting transport,
such that he could walk directly from the barge onto the deck.51
Gonzales and Steve Rivera (“Rivera”), another UBT employee, loaded equipment and

30.

material from the barge onto the M/V TROOPER.52
31.

Gonzales proceeded to walk onto the stern of the M/V TROOPER to be transported.53

32.

Rivera did not board the M/V TROOPER and instead walked to meet Gonzales at his
destination at UBT’s “F boom” dock.54
Todd Ferniz (“Ferniz”), another UBT employee, boarded the M/V TROOPER with

33.

Gonzales.55

49

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 161:3–161:13.

50

See id. at 161:11–161:13.

51

See id. at 161:11–161:16.

See id. at 161:11–161:25; Rec. Doc. 44, River Ventures, LLC’s Proposed Findings of Fact and Conclusions
of Law, at 2.
52

53

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 161:14–161:24; Test. of Noble Ruffin, Trial Tr.,
Oct. 24, 2016, at 119:8–119:19.
54

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 161:20–161:25.

See id. at 161:24–161:25; Rec. Doc. 44, River Ventures, LLC’s Proposed Findings of Fact and Conclusions
of Law, at 2.
55

8

E.

The Events of June 17, 2014: Gonzales attempts to disembark from the vessel
Captain Ruffin piloted the M/V TROOPER from the barge to the “F boom” dock with

34.

Gonzales and Ferniz on board.56
35.

Captain Ruffin backed the stern end of the M/V TROOPER to the “F boom” dock.57

36.

Rivera was already on the “F boom” dock to assist Gonzales and Ferniz with unloading
equipment from the M/V TROOPER.58

37.

Gonzales and Ferniz proceeded to hand the equipment on the back deck of the M/V
TROOPER to Rivera on the “F boom” dock.59

38.

After the equipment was off-loaded, Gonzales needed to use the offloading platform
above the vessel’s wheelhouse to disembark from the M/V TROOPER to the “F boom”
dock, as the back deck of the M/V TROOPER was several feet below the dock.60

39.

Gonzales and Ferniz remained on the M/V TROOPER while Captain Ruffin began
maneuvering the M/V TROOPER.61

40.

While the M/V TROOPER was positioned with its stern against the dock, Captain
Ruffin attempted to pivot the vessel starboard such that the starboard side of the
offloading platform and vessel would be flush with the dock.62

56

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 162:6–162:11.

57

See id. at 162:9–162:11.

58

See id. at 162:11–162:13.

59

See id.

60

See id. at 186:11–186:16; Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 63:13–63:20.

61

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 162:17–22.

62

See id.

9

This maneuver is referred to as “walking” the vessel in order to re-position the vessel

41.

to let passengers off from the top of the offloading platform.63
On June 17, 2014, at the time of the instant incident, the Mississippi River was “rough”

42.

and “running high,” such that the water level was higher than normal and the river was
moving faster.64
Captain Ruffin attempted to “walk” the M/V TROOPER over several times in the rough

43.

waters so that the starboard side of the vessel would be flush with the dock.65
44.

While Captain Ruffin was performing this maneuver and the vessel was still moving,
Gonzales proceeded to climb up the two ladders on the M/V TROOPER to the top of
the offloading platform.66

45.

Passengers are not supposed to climb up onto the offloading platform until the captain
signals for them to do so.67

63

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 122:7–122:10.

64

See id. at 126:18–126:23, 129:12–129:21; Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 186:11–
186:16; Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 56:11–57:6, 63:13–63:20.
65

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 163:19–163:21; Test. of Noble Ruffin, Trial Tr.,
Oct. 24, 2016, at 126:18–126:20.
66

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 163:9–163:14 (Gonzales testifying that he
“proceeded to get up on the ramp, anticipating [Captain Ruffin] docking up against the side of the boat so [he] can get
off”); id. at 186:7–186:10.
See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 122:13–123:3 (stating that passengers “shouldn’t get
up [on the offloading platform] until I tell them to get up there” and that he would signal to the passengers when it
was time to get on the platform “every time somebody would get up on that [platform]”); Test. of Perry Triche, Trial
Tr., Oct. 24, 2016, at 82:23–82:25 (Q: “When that transfer is being made—I would assume you have to wait until it's
safe to do that. Wouldn't you?” A: “Yes, sir.”).
67

10

46.

Gonzales did not inform Captain Ruffin that he was climbing up to the offloading
platform.68
Captain Ruffin, who was inside the vessel’s wheelhouse, was not aware that Gonzales

47.

had climbed up onto the offloading platform above the wheelhouse.69
48.

Ferniz remained on the deck of the M/V TROOPER and held on to the handrails
because he “didn’t want to get thrown into the river.”70

49.

While Captain Ruffin was attempting to turn the M/V TROOPER to be flush with the
dock, the M/V TROOPER bumped hard against the dock several times.71

50.

Captain Ruffin did not warn his passengers to watch for the bump.72

51.

Bumping against the dock while “walking” a vessel over is common when performing
this maneuver.73

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 186:7–186:10 (Q: “When you went to the top
and you climbed up here to the top, you did not tell the captain you were going up there, did you?” A: “No, I did
not.”).
68

69

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 128:20–130:13, 138:15–138:17, 143:1–143:5. The
Court further notes that Gonzales also testified that the passenger must signal to the captain through the window that
they have successfully disembarked before the captain knows that he can depart. See id. at 163:13–163:18.
70

See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 114:1–114:10.

71

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 165:7–165:11 (saying the vessel hit the dock
“real hard”); Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 93:6–93:16, 101:1–101:25. While Captain Ruffin
testified that he only bumped against the dock once and it was not a hard physical strike, see Test. of Noble Ruffin,
Trial Tr., Oct. 24, 2016, at 126:18–126:20, the Court credits the testimony of Angelo Gonzales and Todd Ferniz on
this point, who both testified that the vessel struck the dock multiple times that day with at least some force.
72

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 141:17–141:19.

See id. at 146:24–146:25 (“Was the bump or bumps pretty typical and common? Yes, sir.”); Test. of Todd
Ferniz, Trial Tr., Oct. 24, 2016, at 104:8–104:12 (Ferniz stating that he was holding on while Captain Ruffin was
“walking” the vessel because he “knew there was going to be a shock and bounce”); Test. of Perry Triche, Trial Tr.,
Oct. 24, 2016, at 68:6–69:17 (stating that it was “true” that sometimes the captain will bump a vessel against the dock
once or twice while maneuvering the vessel); Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 182:18–183:1
(agreeing that he is aware that boats might bump against the dock when docking).
73

11

While “walking” the vessel, Captain Ruffin did not accelerate the M/V TROOPER or

52.

otherwise increase its speed beyond what was necessary to turn the vessel’s starboard
side to be parallel with the dock.74
53.

While Captain Ruffin was attempting to dock the M/V TROOPER, Gonzales remained
on top of the offloading platform and tried to communicate to Ferniz that Captain
Ruffin should proceed to an alternative location to offload Gonzales.75

54.

Because the vessel had two diesel engines operating and creating noise, Captain Ruffin
did not hear Gonzales climb on top of the offloading platform or hear Gonzales’
suggestions to Ferniz that Captain Ruffin proceed to a new drop off location.76
Gonzales had the “stop-work authority” to immediately end the work being done

55.

because an employee feels like he is in an unsafe situation, but Gonzales failed to utilize
it when he was on the offloading platform while the vessel was moving.77
It was Gonzales’ obligation as a UBS employee to use his “stop-work authority” to

56.

immediately end a situation that Gonzales felt was unsafe.78

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 128:20–130:13 (“Well, I was coming in. I didn’t
have that much to do, so I put my engines in forward and I left one in reverse. I kind of let it walk.”); Test. of Perry
Triche, Trial Tr., Oct. 24, 2016, at 67:19–68:5.
74

75

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 164:10–165:6.

76
See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 129:22–130:11; Test. of Todd Ferniz, Trial Tr., Oct.
24, 2016, at 102:1–102:8.
77

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 184:6–185:5; Test. of Perry Triche, Trial Tr.,
Oct. 24, 2016, at 70:3–70:20.
See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 184:6–185:5 (Q: “You certainly had the right
and obligation to [use your ‘stop-work authority’], true?” A: “True.”); Test. of Perry Triche, Trial Tr., Oct. 24, 2016,
at 71:4–71:7 (Q: “It was Mr. Gonzales’ job, it was his obligation to do that if he felt it was unsafe, wasn’t it?” A: “If
he felt it was unsafe, yes, sir.”); id. at 59:15–60:10 (Q: “You would agree with me that Mr. Gonzales’ obligation is to
not put himself or others at risk by jumping from that rack to the dock?” A: “Yes, sir.”).
78

12

57.

While on top of the offloading platform, Gonzales was holding a bag in one hand.79

58.

While Captain Ruffin continued to try to “walk” the M/V TROOPER to be flush against
the “F boom” dock, Ferniz saw that Gonzales was preparing to jump down from the
offloading platform to the dock before Captain Ruffin had completed the maneuver or
had signaled to Gonzales that it was safe to climb onto the platform or disembark.80

59.

Ferniz yelled to Gonzales to not jump.81

60.

Because the offloading platform is approximately ten to twelve feet in length, Gonzales
had room to safely step several feet back away from the starboard side opening on the
platform’s walkway.82
On the fourth attempt to walk the vessel to the “F boom” dock, when the M/V

61.

TROOPER bumped against the dock, Gonzales jumped down to the dock.83

79
See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 92:16–92:20 (Q: “After you both got on the boat, was
there any equipment on the boat that you were moving too?” A: “I didn’t have any. Mr. Angelo had something in his
hand. I don't know if it was a work bag or not, but he had something in his hand that I can remember.”); id. at 111:4–
111:5 (Q: “In fact, he also had some tools in his hand, true?” A: “I seen a bag.” Q: “So he was really just holding onto
the handrail with one and balancing some tools in his other hand, true?” A: “True.”); see also Test. of Perry Triche,
Trial Tr., Oct. 24, 2016, at 83:1–83:4 (Q: “Even when you are transferring from that plank to the dock, at some point
you are not going to have three points of contact, correct?” A: “What they would generally do is put their bag down.”).
Gonzales testified that he did not have anything in his hand when he was on the offloading platform. See Test. of
Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 162:23–163:1. However, the Court credits the testimony of Ferniz on
this point, as he could directly see Gonzales and what he was holding.
80

See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 101:1–102:2, 108:4–108:25.

See id. at 101:1–102:2; 108:12–108:25. Gonzales testified that Ferniz’s statements that he told Gonzales
not to jump were false. See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 195:3–196:24. However, the Court
credits Ferniz on this point.
81

82

See Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 68:11–69:20; Test. of Todd Ferniz, Trial Tr., Oct. 24,
2016, at 111:18–112:5; Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 148:6–148:22; Test. of Angelo Gonzales,
Trial Tr., Oct. 24, 2016, at 190:24–192:4.
83

See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 95:15–95:20, 101:1–102:2; Test. of Noble Ruffin,
Trial Tr., Oct. 24, 2016, at 146:17–146:23 (“Todd told me he jumped.”). One of the central disputes between the
parties at trial was whether Gonzales was thrown from the vessel or attempted to jump down to the dock when he
injured himself. As discussed in greater detail infra, the Court credits Ferniz’s testimony on this point, as he was a

13

62.

Passengers are prohibited from jumping from the vessel to the dock or putting
themselves or others at risk by their actions.84

63.

Gonzales landed on his shoulder when he impacted with the dock.85

64.

Captain Ruffin did not know that Gonzales was injured and proceeded to transport
Ferniz to his location.86

65.

Gonzales did not fill out an accident report following his injury.87

66.

Following the incident, Ferniz wrote a statement in which he stated: “It was about 1:45
p.m. The crew boat was approaching dock. The electrician pursued to jump. I told him
not to, to wait until it is stable. On about the fourth time, the fourth bounce, he jumped
onto a pile of rope. He landed on his shoulder. (1) Rope on dock; (2) He fell on rope;

direct eye-witness who has credibly maintained since the day of the incident that Gonzales jumped from the vessel.
By contrast, the Court is not persuaded by Gonzales’ testimony that he fell from the force of the bumps, which is
directly contradicted by Ferniz’s testimony. Gonzales pointed to little to no corroborating evidence for his story that
he was thrown from the vessel, such as damage to the vessel or testimony that Ferniz was also thrown by the fourth
bump. Moreover, Gonzales could not remember certain details of the alleged fall such as landing on a pile of rope.
See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 197:1–197:8. Likewise, the Court is not persuaded by the
testimony of Gonzales’ orthopedic surgeon, Dr. Charles Haddad, who testified that Gonzales’ story is consistent with
his injuries and that Dr. Haddad’s “assumption” is that someone who jumps from a vessel is “more likely” to have
“some lower extremity injuries.” See Test. of Charles Haddad Jr., Trial Tr., Oct. 24, 2016, at 224:2–224:21. However,
on cross examination, Dr. Haddad conceded that his notes on how the incident occurred were based solely on his
interview with Gonzales and that it was “possible” that the injury occurred in a different manner. See id. at 257:3–
257:19. Thus, because Dr. Haddad was not present at the incident or offered as an expert witness in issues of injury
causation, and because Dr. Haddad’s testimony was at least partially based on the information gathered from Gonzales,
the Court finds that Dr. Haddad’s causation testimony to be of little persuasive value.
See Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 57:12–57:14 (Q: “What are the rules regarding
whether UBT employees should jump or not jump from vessel to dock?” A: “Don’t jump.”); id. at 60:7–60:13 (Q:
“You would agree with me that Mr. Gonzales’ obligation is to not put himself or others at risk by jumping from that
rack to the dock?” A: “Yes, sir.” Q: “That would be a major, major mistake on Mr. Gonzales’ part if he jumped,
wouldn’t it?” A: “Yes, sir.”). See also Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 109:8–109:16 (Q: “The actions
of Mr. Gonzales that you witnessed with your two eyes, by him jumping, was unsafe on his part, true?” A: “True.”).
84

85

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 165:14–165:15.

86

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 130:11–131:20.

87

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 170:19–170:21.

14

(3) Rope might have saved him.”88
67.

Accordingly, as discussed in greater detail infra, the Court finds that Gonzales was
injured because he climbed up onto the offloading platform without informing Captain
Ruffin and before the vessel stopped moving and because he attempted to jump down
to the dock before the vessel had stopped moving and before the captain had signaled
that he could safely disembark.
The Events of June 17, 2014: Gonzales’ Injuries and Medical Treatment

F.
68.

After landing on the dock, the first responders were called.89

69.

Gonzales’ shoulder injury caused him significant pain, and he was unable to move his
left arm immediately after the injury.90

70.

Gonzales walked away from the dock to the vehicle of Johnny Lacrosse, a production
supervisor, who brought Gonzales to a first aid room.91
Gonzales was taken by Perry Triche, the President of UBT, to Dr. Swift, the “company

71.

doctor,” who examined Gonzales and ordered x-rays to be taken.92
Gonzales was referred to Dr. Charles Haddad, an orthopedic surgeon.93

72.

88

See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 101:1–101:10.

89

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 169:9–169:11.

90

See id. at 170:10–170:18.

91

See id. at 169:12–169:23.

92

See id. at 170:22–171:7.

93

See id. at 172:5–172:13.

15

Dr. Charles Haddad determined that there were multiple breaks on Gonzales’ shoulder

73.

and recommended surgery.94
74.

The following week after Gonzales was injured on June 17, 2014, Gonzales underwent
surgery at East Jefferson Hospital.95

75.

Gonzales remained in pain from his injuries for several months after the surgery.96

76.

Following the surgery, Gonzales underwent physical therapy.97

77.

Gonzales returned to light duty employment at UBS approximately three months after
the incident on June 17, 2014, and remained on light duty for approximately three more
months.98
Gonzales underwent a second surgery several months later.99

78.

III. CONCLUSIONS OF LAW
Gonzales brings this action against River Ventures pursuant to Section 905(b) of the
LHWCA, which permits certain workers engaged in maritime employment and injured on a vessel
to bring an action against the vessel owner, and General Maritime Law.100 All parties agree that

94

See id. at 172:14–172:22.

95

See id. at 173:4–173:12.

96

See id. at 173:24–174:3.

97

See id. at 174:5–174:9.

98

See id. at 174:10–175:7.

99

See id.at 175:13–175:23.

100

See Rec. Doc. 78 at 3 (invoking jurisdiction under the General Maritime Law and 33 U.S.C. § 905(b));
see also 33 U.S.C. § 905(b); Ne. Marine Terminal Co. v. Caputo, 432 U.S. 249, 264 (1977); Levene v. Pintail
Enterprises, Inc., 943 F.2d 528, 531 (5th Cir. 1991).

16

Gonzales was a “longshoreman” pursuant to the LHWCA, 33 U.S.C. § 901, et seq. 101 Under
Section 905(b), a vessel owner is liable for those damages “caused by the negligence of a vessel,”
i.e. the vessel’s failure to exercise reasonable care.102 Section 905(b) does not define negligence
or specify particular acts or omission of a vessel that would constitute negligence. 103 The Fifth
Circuit has determined that Section 905(b) was not intended to “create a new or broader cause of
action in admiralty,” but rather “preserves an injured worker’s pre-existing right, under general
maritime law, to recover for third-party negligence.”104 Maritime tort cases under this provision
are analyzed using general principles of negligence law. 105 Thus, to succeed on his claim against
River Ventures, Gonzales must show: (1) River Ventures owed a duty to Gonzales; (2) there was
a breach of that duty; (3) causation; and (4) damages.106

101

See Rec. Doc. 43 at 8 (Gonzales stating that he is a longshoreman bringing a Section 905(b) claim); Rec.
Doc. 44 at 5 (River Ventures stating that Gonzales was a longshoreman and brings this action under Section 905(b)).
See 33 U.S.C. § 905(b); Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1031 (5th Cir. 1985) (“Section
905(b) expressly provides that a longshoreman whose injury is caused by the negligence of a vessel may bring a thirdparty action for damages against the owner of the vessel.”); Smith v. M/V Captain Fred, 546 F.2d 119, 120 (5th Cir.
1977); Ducrepont v. Baton Rouge Marine Enterprises, Inc., 666 F. Supp. 882, 884 (E.D. La. 1987), aff’d, 877 F.2d
393 (5th Cir. 1989).
102

103

Castorina, 758 F.2d at 1031.

104

May v. Transworld Drilling Co., 786 F.2d 1261, 1264 (5th Cir. 1986).

105
See Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 356 (5th Cir. 2016); Daigle v. Point Landing, Inc.,
616 F.2d 825, 827 (5th Cir. 1980); Couch v. Cro-Marine Transp., Inc., 44 F.3d 319, 324 (5th Cir. 1995) (noting that
“the scope of the duty owed by a vessel to longshoremen [under Section 905(b)] was left to ‘be resolved through the
application of accepted principles of tort law and the ordinary process of litigation’” (citing H.R. Rep. No. 92–1441,
92nd Cong., 2nd Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 4698, 4704)); Gravatt v. City of N.Y., 226 F.3d 108,
118 (2d Cir. 2000) (noting that, in amending the LHWCA in 1972, the House Committee determined that third-party
negligence actions thereunder would be “developed as a matter of uniform federal maritime law, not by incorporating
the tort law of the particular state in which the action arose” (quoting H.R. Rep. No. 92-1441, reprinted in 1972
U.S.C.C.A.N. at 4704)).
106

See Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000) (citing In re Cooper/T. Smith,
929 F.2d 1073, 1077 (5th Cir. 1991)); DePerrodil v. Bozovic Marine, Inc, No. 13-849, 2015 WL 8542829, at *2 (W.D.
La. Dec. 10, 2015), aff'd in part, vacated in part on other grounds, remanded sub nom. Deperrodil v. Bozovic Marine,
Inc., 842 F.3d 352 (5th Cir. 2016).

17

A.

Duty
Gonzales argues that, in maritime cases such as this one, a vessel operator owes passengers

aboard its vessel a duty of reasonable care under the circumstances to “not negligently injure them,
and to warn them of any dangers of which the operator knows or should know.”107 In particular,
Gonzales avers that River Ventures owed Gonzales a duty to provide safe egress from its vessel.108
In Kermarec v. Compagnie Generale Transatlantique, the Supreme Court held that it is a
“settled principle of maritime law that a shipowner owes the duty of exercising reasonable care
towards those lawfully aboard the vessel who are not members of the crew.”109 The Supreme Court
determined that “the owner of a ship in navigable waters owes to all who are on board for purposes
not inimical to his legitimate interests the duty of exercising reasonable care under the
circumstances of each case.” 110 The Fifth Circuit has further held that “shipowners, relatively
speaking, are held to a high degree of care for the safety of their passengers.”111 Thus, here it is
clear that River Ventures owed its passenger, Gonzales, a duty of reasonable care under the
circumstances, including a duty to provide a safe egress from its vessel and a duty to warn Gonzales

107

See Rec. Doc. 43 at 9.

108

See id.; Rec. Doc. 46 at 4.

109

358 U.S. 625, 630 (1959) (citations omitted).

110

Id. at 632.

111

Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 357 (5th Cir. 2016) (citations omitted); Smith v. S. Gulf
Marine Co. No. 2, 791 F.2d 416, 420 (5th Cir. 1986) (determining that, although the Fifth Circuit had previously
described the standard of care due to passengers on a vessel in several different ways, shipowners are generally held
“to a high degree of care for the safety of passengers”).

18

of any dangers of which River Ventures knew or should have known.112 Accordingly, Gonzales
has satisfied the first element of his negligence claim.
B.

Breach
Next, Gonzales must establish that River Ventures breached its duty to exercise reasonable

care. According to the Fifth Circuit, the relevant factors to consider when determining whether a
vessel exercised reasonable care under the circumstances include: (1) the experience of the crew;
(2) the type of vessel involved; (3) the risks and dangers to the passengers peculiar to that type of
vessel; (4) the vessel’s degree of control over the passengers; and (5) the vessel’s ability to take
precautions against such dangers.113 Here, the M/V TROOPER is a small vessel used to, inter alia,

112

Id.; Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980). The Court notes that River Ventures
cites to Scindia Steam Navigation Company v. De Los Santos, 451 U.S. 156, 168–69 (1981) where the Supreme Court
held that vessels only owe three limited duties to stevedores: a “turnover duty,” an “active control duty,” and a “duty
to intervene.” See Rec. Doc. 44 at 6. This Court notes that, while the Fifth Circuit has determined that Scindia is “not
limited to the stevedoring context,” it applies to independent contractors and harborworker employees “covered by
the LHWCA and working aboard ship.” Hudson v. Schlumberger Tech. Corp., 452 F. App’x 528, 532 (5th Cir. 2011)
(citing Casaceli v. Martech Int’l, Inc., 774 F.2d 1322, 1326–27 (5th Cir. 1985)). See also Fontenot v. McCall’s Boat
Rentals, Inc., 227 Fed. App’x 397, 403 n.2 (5th Cir. 2007) (unpublished) (“This court has held that the principles of
Scindia, though formulated in the context of the respective duties of vessel owners and stevedores, apply equally to
any suit by an LHWCA-covered employee working for an independent contractor aboard a vessel.”); Teply v. Mobil
Oil Corp., 859 F.2d 375 (5th Cir. 1988) (“The Supreme Court interpreted § 905(b) as it applies to stevedores, but in
principle as [sic] it applies to other harborworkers who work on board vessels as well . . . .”). As the Supreme Court
noted in Scindia, this is because, absent a contract provision, the shipowner has “no general duty by way of supervision
or inspection . . . within the confines of the cargo operations that are assigned to the stevedore.” Scindia, 451 U.S. at
172. However, this case involves a non-stevedore passenger transfer and allegations of vessel operational negligence,
rather than injuries for an “employee working for an independent contractor aboard a vessel.” Fontenot, 227 Fed.
App’x at 403 n.2. Thus, the Court will consider whether River Ventures violated the more general “duty of reasonable
care under the circumstances.” See Chiasson v. Rogers Terminal & Shipping Corp., 679 F.2d 410, 415 (5th Cir. 1982)
(affirming a district court’s decision to distinguish between negligence attributable to stevedoring services and
negligence attributable to the vessel itself); see also Deperrodil, 842 F.3d at 357 (applying the general duty to exercise
reasonable care in a maritime-tort action for injuries arising out of a plaintiff’s being taken to a work site on a vessel
operated by the defendant); Smith, 791 F.2d at 420 (applying the same standard of care for a passenger of crew boat
transporting worker who slipped and fell when attempting to disembark). Moreover, the Court notes that, even
assuming River Ventures only owed Gonzales the three duties outlined in Scindia, the Court’s analysis discussed infra
would remain the same: that Gonzales has failed to establish that River Ventures breached any duty to Gonzales or
that such a breach was causally connected to Gonzales’ injury.
113

See Deperrodil, 842 F.3d at 357; Smith v. So. Gulf Marine Co., No. 2, Inc., 791 F.2d 416, 421 (5th Cir.
1986) (citing Kermarec, 358 U.S. at 632).

19

transport UBT employees and equipment between work sites. 114 Captain Ruffin, the sole
crewmember of the M/V TROOPER, had approximately six months of experience as a captain at
the time of the incident, which Ferniz, a UBT employee, characterized as “pretty green” and
“fresh.”115 Captain Ruffin exercised significant control over the M/V TROOPER as the captain of
the vessel, and passengers were prohibited from climbing aboard the offloading platform until the
captain signals that it is safe to do so. 116 However, the UBT employees, including Gonzales,
determined both the pick-up and drop-off locations when requesting a transport from River
Ventures. 117 River Ventures had also adopted some measures to protect against injuries when
passengers disembark from the offloading platform, which, when followed, would allow for an
“ordinary,” “customary,” and “typical safe transfer.” 118 As several witnesses testified, these
precautionary measures include: prohibiting passengers from climbing up to the offloading
platform until the captain signals that it is safe to do so; 119 requiring three points of contact with

114

See Rec. Doc. 78, Pre-Trial Order, at 3, 5.

115

See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 98:20–99:6.

116

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 122:13–123:3; Test. of Perry Triche, Trial Tr., Oct.
24, 2016, at 82:23–82:25.
117

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 134:15–135:16, 151:21–152:3.

118
See Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 63:13–63:24, 106:16–106:24; Test. of Noble Ruffin,
Trial Tr., Oct. 24, 2016, at 152:4–152:7.

See id. at 82:18–82:25 (Q: “When that transfer is being made—I would assume you have to wait until it's
safe to do that. Wouldn't you?” A: “Yes, sir.”).
119

20

the vessel when on a ladder or platform;120 prohibiting jumping from the offloading platform to
the dock;121 and attending safety meetings.122
Here, Gonzales argues that River Ventures breached its duty to exercise reasonable care
under the circumstances by failing to provide for a safe transfer for Gonzales.123 In particular,
Gonzales asserts that River Ventures, through Captain Ruffin and the M/V TROOPER, breached
its duties by: (1) failing to use an alternative, safer location to drop off Gonzales; (2) failing to
warn the passengers to “watch the bump;” (3) bumping the M/V TROOPER hard against the
dock;124 and (4) failing to know where his passengers were positioned on the boat.125 Gonzales
further contends that striking a pier “with sufficient force to throw down” a passenger “is indicative
of negligence and poor seamanship,” and that there is a presumption of fault against the defendant
when a moving vessel strikes a stationary object such as a dock.126
In response, River Ventures argues that it did not breach any duty to Gonzales.127 River
Ventures asserts that there is no presumption of a breach in this case from the mere fact that the
vessel bumped against the dock, as the “Oregon Rule” is only applicable to unintended vessel

120

See id. at 62:21–63:12.

121

See id. at 57:12–57:14, 60:7–60:13; Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 109:8–109:16.

122

See Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 61:2–62:20.

123

See Rec. Doc. 86 at 1–2; Rec. Doc. 43 at 9.

124

See Rec. Doc. 86 at 2–3; Rec. Doc. 43 at 9 (stating that the vessel and its captain was negligent by
“creating a peril Gonzales could not have expected and causing an impact with the dock and causing him to be thrown
from the vessel”).
125

See Rec. Doc. 86 at 11.

126

See Rec. Doc. 43 at 9–10 (citing The Oregon, 158 U.S. 186, 197 (1895); Bunge Corp v. M/V Furness
Bridge, 558 F.2d 790 (5th Cir. 1977); Dow Chem. Co. v. Dixie Carriers, Inc., 463 F.2d 120, 122 n.4 (5th Cir. 1972)).
127

See Rec. Doc. 92 at 8.

21

allisions where the fixed object’s owner has brought a claim for damages.128 Moreover, River
Ventures avers that merely because an incident occurred while a passenger was disembarking does
not create a presumption that the egress was not safe, particular when the passenger’s own actions
allegedly cause the injury.129 According to River Ventures, this case solely arises from Gonzales’
“poor and dangerous choice in climbing to the platform of the River Ventures’ M/V TROOPER
while the vessel was underway and jumping onto the UBT dock before the vessel had safely
landed.”130
Based on the testimony and evidence presented at trial and for the reasons that follow, the
Court finds that Gonzales has not demonstrated by a preponderance of the evidence that River
Ventures breached its duties to Gonzales while he was a passenger onboard the M/V TROOPER.
Here, Gonzales does not argue, nor does any evidence suggest, that Captain Ruffin breached any
duties when he picked Gonzales up, first piloted the M/V TROOPER over to the “F boom” dock,
or backed the stern of the vessel up against the dock. Rather, Gonzales asserts that River Ventures’
duty to exercise reasonable care was breached when Captain Ruffin “walked” the M/V TROOPER
over to the dock, i.e. turned the vessel from having its stern against the dock to having its starboard
side parallel with the dock.131

128

Id.

129

Id. at 10–11.

130

Id. at 1.

131

See Rec. Doc. 86 at 2–3; Rec. Doc. 43 at 9; see also Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016,
at 167:13–168:12 (stating that the vessel came into contact with the dock with enough force to throw him sideways
off the platform and onto the dock).

22

However, while the Court credits Gonzales’ and Ferniz’s testimony that Captain Ruffin
attempted to “walk” the M/V TROOPER over to the dock multiple times,132 the Court finds that
Gonzales has failed to establish that such actions constitute a breach of River Ventures’ duty to
Gonzales. First, the testimony shows that Gonzales, as a UBT employee, determined where he
would be picked up and dropped off by River Ventures, and that it was Gonzales who instructed
Captain Ruffin to transport him to the “F boom” dock.133 Moreover, Gonzales failed to show that
Captain Ruffin’s decision to take Gonzales to the “F boom” dock was itself negligent in light of
either his experience or the water conditions that day, or that it was negligent for Captain Ruffin
to continue attempting to “walk” the vessel over instead of piloting the vessel to an alternative
location. No witness testified that this maneuver was uncommon or should not have been
performed.134 Likewise, there was no testimony that Captain Ruffin should have left the “F boom”
dock and piloted the M/V TROOPER to another location if he did not successfully dock the vessel
on the first try. Rather, the Court credits the testimony that, once Captain Ruffin succeeded in
turning the vessel, Gonzales could have safely stepped off from the vessel to the dock, and that
this maneuver was typical, ordinary, and customary. 135

132

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 165:7–165:20; Test. of Todd Ferniz, Trial Tr.,
Oct. 24, 2016, at 107:13–107:20.
133

See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 91:16–91:24; Test. of Noble Ruffin, Trial Tr., Oct.
24, 2016, at 117:13–119:25, 151:21–151:24; Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 185:6–185:17
134
See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 122:7–122:9, 146:15–146:25 (describing the
practice of “walking” a vessel); Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 67:16–68:10 (agreeing that “many
times” a captain of a vessel will “walk” into the dock).
135
See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 106:16–106:24 (Q: “In this particular instance, if the
vessel had landed up against the dock and Mr. Gonzales had not jumped, he could have safely stepped off, no problem?
It was a typical step, true?” A: “I can’t say what he would have did. That’s Mr. Gonzales.” Q: Understood. From your
view, if the vessel had landed and he had safely stepped off, he could have safely done it?” A: “Yes.” Q: “Typical,
ordinary, customary?” A: “Yes.”); Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 63:13–63:24 (agreeing that it is
a “typical safe transfer” for a passenger to disembark from the platform down about two feet to the dock after the

23

Second, while the Court also credits Gonzales’ and Ferniz’s testimony that the vessel
bumped against the dock more than once,136 the Court finds that Gonzales did not establish that
bumping against the dock constitutes a failure to exercise reasonable care under the circumstances
or that Gonzales had a duty to warn Gonzales of the bumps. Instead, several witnesses, including
Gonzales, testified that bumping against the dock is a typical and common occurrence while
docking or “walking” the vessel.137 As the Fifth Circuit has repeatedly held, “[a] vessel owner
does not need to warn passengers or make special arrangements for open-and-obvious risks.”138
For example, in Superior Oil Company, the Fifth Circuit held that a seaman acted negligently when
he attempted to jump between two vessels, as he was “an experienced seaman [who] should have
been fully cognizant of the danger involved” and should have avoided the obvious risk of
jumping.139
Here, the testimony established that bumping against a dock while “walking” the vessel
and docking is a common and expected occurrence, and thus constitutes an “open-and-obvious

vessel was “walked” over).
136

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 165:7–165:11; Test. of Todd Ferniz, Trial Tr.,
Oct. 24, 2016, at 93:6–93:16, 101:1–101:25.
See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 146:24–146:25 (Q: “Was the bump or bumps pretty
typical and common?” A: “Yes, sir.”); Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 104:8–104:12 (Ferniz stating
that he was holding on while Captain Ruffin was “walking” the vessel because he “knew there was going to be a shock
and bounce”); Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 68:6–69:17 (stating that it was “true” that sometimes
the captain will bump a vessel against the dock once or twice while maneuvering the vessel); Test. of Angelo Gonzales,
Trial Tr., Oct. 24, 2016, at 182:18–183:1 (agreeing that he is aware that boats might bump against the dock when
docking).
137

138
Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 357 (5th Cir. 2016) (citing Massey v. Williams–
McWilliams, Inc., 414 F.2d 675, 678–79 (5th Cir. 1969); Superior Oil Co. v. Trahan, 322 F.2d 234, 237 (5th Cir.
1963); Counts v. Lafayette Crewboats, Inc., 622 F.Supp. 299, 301 (W.D. La. 1983)); see also Canal Barge Co. v.
Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000) (determining that a shipper had no duty to warn the shipowner of
hazards of which the shipowner was aware or could reasonably have been expected to be aware).
139

Superior Oil Co., 322 F.2d at 237.

24

risk.” This is particularly true for passengers with significant maritime experience and familiarity
with the M/V TROOPER such as Gonzales.140 For instance, Ferniz testified that he was holding
on to the handrail on the back deck of the vessel when Captain Ruffin first began “walking” the
vessel because Ferniz “knew there was going to be a shock and bounce.”141 Accordingly, this case
is analogous to Superior Oil Company in that Gonzales, an experienced maritime electrician who
was familiar with the M/V TROOPER, should have been cognizant of the risk of bumping against
the dock while the captain was “walking” the vessel over to the dock. Thus, the Court finds that,
considering the evidence and testimony presented, Captain Ruffin did not have a duty to
affirmatively warn Gonzales that the vessel would bump against the dock in these circumstances.
Likewise, to the extent that Gonzales argues that Captain Ruffin should have warned
Gonzales not to climb onto the offloading platform while the vessel was moving, the Court finds
that such conduct also constitutes an “open and obvious” risk. The Court credits Captain Ruffin’s
unchallenged testimony that passengers should not climb up onto the offloading platform until the
captain signals for them to do so.142 Thus, in light of this direct prohibition and the obvious risks
of standing while the vessel is moving on a raised, open-ended platform meant to only assist in
disembarking from the vessel, as well as Gonzales’ extensive experience on vessels, the Court

140

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 159:10–159:20, 181:17–181:25.

141

See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 104:8–104:12.

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 122:13–123:3 (stating that passengers “shouldn’t
get up [on the offloading platform] until I tell them to get up there” and that the captain would do that every time a
passenger got on the platform); see also Test. of Perry Triche, Trial Tr., Oct. 24, 2016, at 82:23–82:25 (Q: “When that
transfer is being made—I would assume you have to wait until it's safe to do that. Wouldn't you?” A: “Yes, sir.”).
142

25

finds that Captain Ruffin did not have a duty to affirmatively warn Gonzales to not board the
offloading platform while the vessel was moving.
While Gonzales cites to several cases in which courts found that a presumption of
negligence exists when a vessel allides with a fixed object, each of the cases is distinguishable, as
they involved situations where the only explanation for hitting the fixed object was poor
seamanship and negligence.143 In Bunge Corporation v. M/V Furness Bridge, the Fifth Circuit
explained that the “common sense behind the rule makes the burden a heavy one,” as “[s]uch
accidents do not occur in the ordinary course of things unless the vessel has been mismanaged in
some way.”144 Here, the testimony established that bumping against the dock does in fact “occur
in the ordinary course of things” when “walking” the vessel over to a dock.145 Thus, the Court
concludes that, in the facts and circumstances of this case, Gonzales has not established that he is
entitled to a presumption of negligence merely because the vessel bumped into the dock. To the
extent that he is entitled to such a presumption, the Court further determines that River Ventures
has rebutted the presumption.

143

See Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 793 (5th Cir. 1977) (determining that there was a
presumption of fault when a “supertanker” struck a mooring dolphin that it should not have touched when attempting
to dock); Freund v. The Chauncey M. Depew, 45 F. Supp. 263, 265 (S.D.N.Y. 1942) (“In the absence of some
intervening cause, a vessel does not, in broad daylight under normal weather and tide conditions, collide with a pier
with such force as to materially damage the pier and injure passengers on the vessel, unless there was poor seamanship,
and the Depew’s collision with the pier plainly was the result of poor seamanship. The circumstances permit no other
conclusion.”); Kornreich v. City of N.Y., 1958 WL 92168 (N.Y. Sup. Ct. Feb. 20, 1958) (finding that the defendant’s
ferryboats hit a pier’s pilings because of the defendant’s negligence, as the defendant failed to offer any proof as to
controvert the plaintiff’s evidence or otherwise explain why the boat hit the pier).
144

Bunge Corp, 558 F.2d at 793.

145

Id.

26

Next, the Court further notes that, even crediting Gonzales’ testimony that the bumps were
“real hard,”146 the Court finds that Gonzales failed to establish that the bumps were so hard as to
constitute a breach of duty, i.e. that Captain Ruffin did not exercise reasonable care under the
circumstances of this case. As the Fifth Circuit determined in Daigle v. Point Landing, Inc., a
moving vessel does not breach its duty to its passengers when the master or captain did not “[know]
or [have] reason to suspect the vessel’s maneuvering in the river endangered the plaintiff’s
safety.”147 There, the Fifth Circuit held that the vessel’s movement only jeopardized the plaintiff’s
safety because the plaintiff was operating a defective winch without a protective cover, without
informing the master or crew that he was doing so, and without instructing the master or crew to
cease maneuvering the vessel.148
Here, Captain Ruffin testified that he did not know that Gonzales had climbed to the top of
the offloading platform,149 and no witness testified that Gonzales told Captain Ruffin that he was
going to climb onto the offloading platform while the vessel was moving or that Captain Ruffin
ever signaled Gonzales that it was safe to do so. Moreover, there was no testimony as to how long
Gonzales was on top of the offloading platform or that Captain Ruffin should have been checking
to make sure Gonzales had not prematurely climbed up to the platform while he was
simultaneously “walking” the vessel. In fact, Captain Ruffin testified that he would have been

146

See Rec. Doc. 86 at 2–3; Rec. Doc. 43 at 9; see also Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016,
at 167:13–168:12 (stating that the vessel came into contact with the dock with enough force to throw him sideways
off the platform and onto the dock).
147

Daigle, 616 F.2d at 827.

148

Id.

149

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 143:1–143:5, 151:3–151:5 (stating that he thought
Gonzales was at the stern of the ship and that he did not see him when he got up to the top of the platform).

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unable to both “walk” the vessel and keep an eye on every passenger simultaneously, and the Court
finds such testimony persuasive.150 Rather, the only testimony that establishes that Captain Ruffin
knew that Gonzales was on top of the platform before Gonzales jumped comes from Captain
Ruffin himself, who testified that Ferniz told him that Gonzales was about to jump right before it
occurred and without any opportunity to stop the vessel. 151 Accordingly, the Court finds that
Gonzales has failed to establish that Captain Ruffin “knew or had reason to suspect the vessel’s
maneuvering in the river endangered [Gonzales’] safety,” as the Court is persuaded that Captain
Ruffin was not aware that Gonzales was not on the stern of the deck with Ferniz.152
To the extent that Gonzales argues that the “hard” bumps would have constituted a failure
to exercise reasonable care in the instant circumstances even if he had not been on top of the
offloading platform, the Court determines that there was insufficient evidence presented to support
such a finding. There was no testimony that Captain Ruffin was “walking” the vessel too fast or
was otherwise improperly maneuvering the vessel in light of the fact that the river was “rough”
and “running high” that day. Nor was there any expert or credible lay testimony that the bumps
were so forceful as to evidence a failure to exercise reasonable care regardless of where Gonzales
was standing. Likewise, there was little to no corroborating evidence that Captain Ruffin bumped
the M/V TROOPER against the dock too hard for those circumstances, such as evidence of damage
to the vessel or the dock or testimony from Ferniz that he was also thrown by the force of the
bumps while he was on the back deck. In fact, the Court notes that, despite having already felt

150

See id. at 154:18–155:5.

151

See id. at 128:10–129:11.

152

Daigle, 616 F.2d at 827.

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three “hard” bumps, Gonzales testified that he did not use his “stop-work authority” or step away
from the edge of the platform, both of which undermines Gonzales’ contention that the bumps
were too hard in those circumstances.
In other words, in light of the river’s conditions that day and the established routine nature
of bumping against the dock while “walking” a vessel to the dock, Gonzales has not established
by a preponderance of the evidence that these bumps were so hard that they constitute a failure to
exercise reasonable care under the circumstances by River Ventures. It was Gonzales’ burden to
show that the bumps against the dock were of such force that they crossed the line from an ordinary
occurrence while docking into an act of negligence; Gonzales failed to do so.
Rather, as discussed infra, in light of the testimony and evidence presented and the relative
credibility of each witness, the Court finds that Gonzales’ injuries arose not from any breach of
duty by River Ventures, but because Gonzales: (1) improperly climbed onto the offloading
platform while the vessel was still moving and without Captain Ruffin’s permission; (2) failed to
inform Captain Ruffin that he was climbing onto the platform; and (3) attempted to jump down to
the dock before Captain Ruffin finished “walking” the vessel into position so that Gonzales could
safely disembark. Accordingly, the Court finds that Gonzales failed to establish by a
preponderance of the evidence that River Ventures breached its duties to Gonzales during the
events of June 17, 2014.
C.

Causation
The Court further finds that, even if River Ventures’ conduct constitutes a breach of its

duties to Gonzales, Gonzales has failed to establish by a preponderance of the evidence a causal
connection between the alleged breach and Gonzales’ injury. “Under the general maritime law, a
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party’s negligence is actionable only if it is the ‘legal cause’ of the plaintiff’s injuries, which is
something more than ‘but for’ causation —the negligence must be a substantial factor in causing
the injuries.”153
Here, Gonzales testified that he was thrown from the vessel onto the dock when Captain
Ruffin bumped against the dock on his fourth attempt at “walking” the vessel, and thus River
Ventures’ alleged negligence was causally connected to Gonzales’ injury. 154 However, as stated
supra, the Court finds the testimony of Todd Ferniz, the only other eye witness to Gonzales’
actions who testified, to be the most credible. Ferniz, like Gonzales, is an employee of UBT.155
Despite his connections to both the plaintiff and the intervening parties, Ferniz testified that: (1)
while Captain Ruffin was attempting to “walk” the vessel over to the “F boom” dock, Gonzales
climbed onto the offloading platform; 156 (2) while Captain Ruffin was still trying to properly
position the vessel, it appeared that Gonzales was going to jump down to the dock while the vessel
was moving;157 (3) he yelled to Gonzales to not jump;158 and (4) Gonzales jumped down to the
dock, landed on his shoulder, and injured himself.159 Immediately after the incident, while the
153

In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 213–14 (5th Cir. 2010) (quoting Donaghey v.
Ocean Drilling & Explor. Co., 974 F.2d 646, 649 (5th Cir.1992)) (internal quotation marks omitted); see also
DePerrodil v. Bozovic Marine, Inc, No. 13-849, 2015 WL 8542829, at *2 (W.D. La. Dec. 10, 2015) (noting that both
factual causation and proximate causation must be established to support a negligence claim under general maritime
law), aff'd in part, vacated in part on other grounds, remanded sub nom. Deperrodil v. Bozovic Marine, Inc., 842 F.3d
352 (5th Cir. 2016)
154

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 165:4–165:15.

155

See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 89:8–90:14.

156

See id. at 95:1–95:13.

157

See id. at 101:1–102:2, 108:1–108:22.

158

See id. at 101:1–102:2, 108:4–108:25.

159

See id. at 95:15–95:20, 101:1–102:2.

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incident was fresh in his mind, Ferniz also told Captain Ruffin that Gonzales had jumped from the
offloading platform down to the dock. 160 Moreover, that same day, Ferniz prepared a written
statement in which he reiterated that: (1) Gonzales “pursued to jump;” (2) Ferniz “told him not to”
and “to wait until it is stable;” and (3) on the fourth attempt by Captain Ruffin to dock the vessel,
Gonzales “jumped onto a pile of rope” and “landed on his shoulder.”161 At trial, Ferniz testified
that “pursued to jump” meant that he saw Gonzales in a jumping stance and getting ready to
jump.162
Furthermore, Ferniz’s recollection and testimony remained unchanged at trial over two
years later: that Gonzales was up on the offloading platform while the vessel was moving and that
he decided on his own to jump down to the dock while Captain Ruffin was still docking the
vessel.163 The only contradicting eye witness testimony that Gonzales was thrown from the vessel
comes from Gonzales himself. However, the Court finds Gonzales’ testimony unpersuasive and
less credible in light of Ferniz’s consistent and repeated testimony and the absence of corroborating
evidence that Gonzales was thrown from the boat or that the boat was moving fast enough or hit
the dock hard enough to do so. Furthermore, the Court found Gonzales’ testimony and recollection
to be less credible because he was unable to remember certain details of the alleged fall, such as
landing on a pile of rope.164

160

See Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 146:17–146:23 (“Todd told me he jumped.”).

161
See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 101:1–101:11; Defendant’s Exhibit Number Three,
at 1 (Statement of Todd Ferniz).
162

See Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 108:8–108:11.

163

See id. at 102:12–103:2, 108:4–109:16.

164

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 197:1–197:8 (“I don’t remember the rope.”).

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The Court notes that Gonzales’ orthopedic surgeon, Dr. Charles Haddad, testified that
Gonzales’ story is consistent with his injuries and that Dr. Haddad’s “assumption” is that someone
who jumps from a vessel is “more likely” to have “some lower extremity injuries.”165 However,
the Court finds such testimony has little persuasive value, as Dr. Haddad only testified as
Gonzales’ treating physician for his shoulder injuries and was not offered as an expert witness on
such causation issues. There was also no evidence presented that Dr. Haddad prepared any report
or analysis to support his opinions. Moreover, on cross examination, Dr. Haddad conceded that his
notes on how the incident occurred were based solely on his interview with Gonzales and that it
was “possible” that the injury occurred in a different manner.166
Accordingly, the Court finds that Gonzales has failed to establish that any alleged breach
of duty by River Ventures was sufficiently causally connected to Gonzales’ injuries. That is, even
assuming it was a breach of duty for, inter alia, Captain Ruffin to bump hard against the dock, to
fail to warn the passengers to watch for the bump or to not prematurely board the offloading
platform, or to fail to proceed to an alternative drop off location, Gonzales has not established that
his injuries were sufficiently caused by anything other than his own decisions, mainly: (1) to climb
up to the offloading platform without informing Captain Ruffin or getting Captain Ruffin’s
permission and in contradiction to established safety procedures; and (2) to jump down to the dock
before the vessel had stopped moving and before the captain had signaled that he could disembark.
This is particularly true in light of Gonzales’ extensive maritime experience and the fact that

165

See Test. of Charles Haddad Jr., Trial Tr., Oct. 24, 2016, at 224:2–224:21.

166

See id. at 257:3–257:19.

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Gonzales had already felt up to three bumps against the dock and did not step farther back on the
offloading platform or use his “work-stop authority” to end the maneuver; instead, he jumped on
Captain Ruffin’s fourth attempt to dock the vessel.167
Additionally, the Court notes that, even if the Court were to find that Gonzales did not
jump, he has failed to carry his burden of establishing that his injuries were caused by anything
other than his decision to climb onto the platform when he was not supposed to and while the
vessel was docking. In sum, Gonzales has failed to establish by a preponderance of the evidence
that River Ventures’ alleged negligence caused his injuries. Therefore, considering the evidence
presented, the Court finds that Gonzales has not carried his burden of proof in this case, and thus
River Ventures is not liable for Gonzales’ injuries pursuant to Section 905(b) of the LHWCA or
under General Maritime Law.
IV. CONCLUSION
For the reasons above, the Court finds that Gonzales has failed to establish by a
preponderance of the evidence that River Ventures breached a duty to Gonzales or that any alleged
negligence of the vessel caused Gonzales’ injuries. Thus, the Court concludes that River Ventures
is not liable for Gonzales’ injuries pursuant to Section 905(b) of the LHWCA or under the General
Maritime Law. Accordingly,

167

See Test. of Angelo Gonzales, Trial Tr., Oct. 24, 2016, at 184:6–185:5, 190:24–192:4; Test. of Perry
Triche, Trial Tr., Oct. 24, 2016, at 68:11–69:20, 70:3–70:20; Test. of Todd Ferniz, Trial Tr., Oct. 24, 2016, at 111:18–
112:5; Test. of Noble Ruffin, Trial Tr., Oct. 24, 2016, at 148:6–148:22.

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IT IS HEREBY ORDERED that there be judgment in favor of Defendant River Ventures
and against Plaintiff Angelo Gonzales on all of Gonzales’ claims against River Ventures.

14th
NEW ORLEANS, LOUISIANA, this ______ day of April, 2017.

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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