Giroir v. Cenac Marine Services, LLC

Filing 47

ORDER granting 30 Motion for Summary Judgment, and 31 Motion for Summary Judgment; the plaintiffs Jones Act negligence and unseaworthiness claims, as well as his claim for maintenance and cure related to his alleged back injury, are hereby DISMISSED with prejudice. Signed by Judge Martin L.C. Feldman on 3/6/2019. (jeg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICKY GIROIR

CIVIL ACTION

V.

NO. 18-3595

CENAC MARINE SERVICES, LLC

SECTION “F”

ORDER AND REASONS
Before the Court are two motions: (1) the defendant’s motion
for summary judgment on the plaintiff’s Jones Act negligence and
unseaworthiness claims; and (2) the defendant’s motion for summary
judgment on the plaintiff’s maintenance and cure claim with respect
to his alleged back injury.

For the reasons that follow, the

motions are GRANTED.
Background
This maritime personal injury litigation arises out of a
relief captain’s claim that he sustained injuries on two separate
occasions while working aboard vessels owned by his employer.
Ricky Giroir began working for Cenac Marine Services, LLC
(“CMS”) in November of 2013 as a relief captain and allegedly
suffered injuries to his lower back in September of 2015 and his
right knee in November of 2017.

Prior to working for CMS, Mr.

Giroir had worked for several other companies and was experienced

1

in conducting tow operations. 1

He also had an extensive medical

and surgical record pre-dating his tenure with CMS; that record
features a history of congenital birth defects and countless
injuries sustained both on and off-the-job.
A. Giroir’s Pre-Existing Medical Conditions
As a child, Mr. Giroir underwent bilateral foot surgery to
correct his congenital club feet and arthroscopic surgery of his
left knee.

As an adolescent, he injured his right knee while

playing high school football and had an additional arthroscopic
surgery.

During that time, he also began to experience problems

with his congenital lower back condition, for which he underwent
lumbar surgery.

Suffering from obesity, Giroir closed off his

adolescent years with gastric bypass surgery.
As an adult, Mr. Giroir went on to suffer two on-the-job
injuries while working for Settoon Towing.

He first injured his

neck and right shoulder when a flat boat fell on him during a crew
change; these injuries required two different surgeries.

He also

injured his lower back while “pulling on some hoses” and was
diagnosed with lumbar strain.

A few years later, in June of 2006,

Mr.

Thomas

Giroir

reported

to

Dr.

Donner

with

complaints

of

numbness and cramping of his right leg. After disclosing his prior
During his deposition on January 16, 2019, Mr. Giroir testified
that he worked for the following companies prior to his employment
with CMS: Cenac Towing, Settoon Towing, Cenac Towing (for a second
time), LeBeouf Towing, and REC Marine.
1

2

on-the-job

back

injury,

he

indicated

that

his

symptoms

had

progressed to the extent that he could only walk for a few minutes
at a time and that the symptoms would improve if he walked bent
forward, like he was “over a shopping cart.”

Dr. Donner then

reviewed an MRI of Giroir’s lumbar spine and noted an impression
of “severe lumbar stenosis.” Despite initially attempting to treat
his lumbar stenosis with steroid epidural injections, Mr. Giroir
ultimately elected to undergo a decompressive laminectomy at the
L2-L3 level on November 8, 2006.
Almost two years passed without incident until March of 2008
when Giroir reported to Drs. Larry Haydel and Brandon Brooks with
complaints of right knee pain.

An MRI of Giroir’s right knee

performed at that time revealed a torn anterior cruciate ligament,
severe loss of cartilage in the posterior aspects of the patella,
and large joint effusion.

Later, in December of 2011, Giroir was

involved in a motor vehicle accident when the car in which he was
riding as a passenger was rear ended; he was placed on a spine
board at the scene and transported to the hospital by ambulance.
The following year, he failed a pre-employment physical when
applying for a position with Enterprise Marine Services.

As a

result, he elected to undergo a cervical fusion surgery, after
which he was able to pass a pre-employment physical with LeBeouf
Brothers.

3

B. The CMS Application Process
On November 7, 2013, Mr. Giroir completed an application for
employment with Cenac Marine Services, LLC, in which he indicated
that he did not have any physical or mental condition(s) which may
interfere with or hinder the performance of the job for which he
wished

to

be

considered.

Although

he

did

disclose

on

the

application that he had sustained a prior on-the-job neck and
shoulder injury while working for Settoon Towing, he did not
disclose his prior on-the-job back injury.

In connection with the

application process, Mr. Giroir also was required to complete a
medical questionnaire and undergo a pre-employment physical exam.
When asked whether he had a prior or current back injury, Giroir
changed his response on the questionnaire from “yes” to “no;” he
signed and dated the form on November 12, 2013.

That same day, he

reported to Dr. Kirk Dantin for a pre-employment physical exam,
during which he indicated that he had hurt his “back or neck” and
had surgery.

He went on to reveal his history of surgeries on his

neck, knees, and feet, as well as his history of bilateral club
feet.

He did not, however, disclose his back injury, conditions,

or surgeries.

Based on these representations, Dr. Dantin released

Mr. Giroir to “employment without restrictions.”

The following

year, on December 2, 2014, Giroir indicated on his annual physical
form that, at some point in time, he had “hurt [his] back or []

4

experienced back pain.”

He also informed the physician that he

had undergone surgery on his lumbar spine at age 19 or 20.
C. The 2015 and 2017 Incidents
In September of 2015, Mr. Giroir was working aboard the M/V
EUGENIE CENAC when he allegedly sustained disabling injuries to
his lower back after retrieving a sixty-to-seventy-pound oil pump
from a shelf in the vessel’s engine room.

Following the incident,

Mr. Giroir completed an accident investigation report, in which he
explained how the injury occurred: “When getting the oil pump off
of shelf felt a pop in lower left side of back.”

He further

indicated that the engine room was well lit at the time of the
incident and that the accident did not involve damage to the hull
or equipment.

Although he reported that the injury could have

been avoided if someone had helped him, he has stated under oath
that he elected not to ask for help even though another crewmember
was

available

to

assist

him;

he

also

has

testified

that

no

condition of the EUGENIE CENAC caused his back injury.
After the alleged 2015 incident, Mr. Giroir continued to work
aboard the M/V EUGENIE CENAC until October 30, 2015 when he visited
an urgent care clinic in Parkersburg, West Virginia with complaints
of lower back pain and weakness in his extremities.

An x-ray

performed that day revealed degenerative changes in Mr. Giroir’s
back, particularly at the L1-L2 levels.

Giroir then returned home

to Louisiana where an MRI of his lumbar spine was completed on
5

November 18, 2015; it showed evidence of spinal canal narrowing
and lumbar stenosis at the L1-L5 levels.
In February of 2016, Dr. Phillip McAllister of Tri-Parish
Orthopedics

advised

laminectomy

syndrome

intervertebral

disc

Mr.

Giroir

(related

that

he

suffered

to

his

prior

degeneration,

and

spinal

from

lumbar

post-

surgery),

stenosis.

Dr.

McAllister also recommended a lumbar laminectomy with ITP fusion
at the L2-S1 levels.

Mr. Giroir elected to undergo surgery for

his lumbar stenosis, after which he was out of work for four
months;

he

remained

on

CMS’s

payroll

during

that

time

and

ultimately was released to work in June of 2016.
Less than six months later, on November 22, 2017, Mr. Giroir
allegedly sustained an unrelated on-the-job injury in connection
with his assignment as a relief captain aboard the M/V CHRISTINE
CENAC when he fell on a flat boat while traveling to shore for a
crew change.

About three weeks later, on December 15, 2017, Mr.

Giroir completed an incident report, in which he described the
incident as follows: “While crew changing the flat boat rocked
causing me to fall on my right knee and twisting left ankel [sic].”
He further clarified in the report that the injury occurred when
he “was getting out the flat boat” and that the boat rocked, which
caused him to trip.

He also reported that the accident could not

have been prevented, was not caused by unfit or unreasonable
equipment, and was not anyone’s fault.
6

Similarly, Mr. Giroir has

testified that he believes the 2017 incident could not have been
prevented and was not caused by unfit or unreasonable equipment;
rather, he has stated under oath: “It ain’t nobody’s fault.
an act of Mother of God, an act of nature.”

It’s

Following the 2017

incident, Giroir visited Terrebone General Hospital, after which
he underwent a knee replacement surgery under the care of Dr.
William Kinnard.
On April 4, 2018, Mr. Giroir sued Cenac Marine Services, LLC,
alleging that the defendant’s negligence under the Jones Act and
the unseaworthiness of its vessels under the general maritime law
caused his injuries in 2015 and 2017; he also alleges that the
defendant owes him maintenance and cure for both incidents.

In

response, CMS filed a counterclaim on July 26, 2018, seeking to
recover

payments

made

to

and

on

behalf

of

Mr.

Giroir

for

maintenance and cure that are not related to his work activity
with the company.

CMS now seeks summary judgment in its favor,

dismissing the plaintiff’s Jones Act and unseaworthiness claims;
the defendant also seeks summary dismissal of the plaintiff’s
maintenance and cure claim insofar as it concerns his alleged back
injury.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
7

judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
“[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence.”

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007) (internal quotation marks and citation omitted).
Ultimately, “[i]f the evidence is merely colorable . . . or is not
significantly

probative,”

summary
8

judgment

is

appropriate.

Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).

Although

the Court must “resolve factual controversies in favor of the
nonmoving party,” it must do so “only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013) (internal quotation marks and citation
omitted).
II.
A.
Under the Jones Act, 46 U.S.C. § 688, a seaman’s employer is
liable for damages if the employer’s negligence caused the seaman’s
injury, in whole or in part.

Gautreaux v. Scurlock Marine, Inc.,

107 F.3d 331, 335 (5th Cir. 1997) (en banc). 2

To prevail in a

Jones Act negligence claim,
Mr. Giroir’s seaman status is undisputed as to both alleged
incidents.
2

9

the plaintiff must present some evidence from which the
fact finder can infer that an unsafe condition existed
and that the vessel owner either knew, or in the exercise
of due care should have known, of the condition.
Martinez v. Offshore Specialty Fabricators, Inc., 481 F. App’x
942, 945, 947 (5th Cir. 2012) (citing Perry v. Morgan Guar. Trust
Co. of N.Y., 528 F.2d 1378, 1379 (5th Cir. 1976)).
A Jones Act employer has the duty to provide his seaman
employees with a reasonably safe place to work.

Colburn v. Bunge

Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989).

The duty to

provide a safe place to work is broad in scope, but it is not a
form

of

strict

liability;

ordinary

prudence

under

the

circumstances is the standard for the duty of care owed by an
employer to a seaman.

Gautreaux, 107 F.3d at 335-36.

Likewise,

seamen are held to the standard of the reasonable seaman in like
circumstances.

Id. at 339 (explaining that the circumstances

include the employee’s reliance on his employer to provide a safe
working

environment,

education).

the

seaman’s

experience,

training,

or

And the causation standard is the same for both the

employer’s negligence and contributory negligence: causation is
established if the party’s “negligence played any part, even the
slightest, in producing the injury.”

See Martinez, 481 F. App’x

at 947 (quoting Johnson v. Cenac Towing, Inc., 544 F.3d 296, 303
(5th Cir. 2008)).

However, more than mere “but for” causation

10

must be established.

Johnson v. Cenac Towing, Inc., 544 F.3d 296,

302 (5th Cir. 2008) (citation omitted).
B.
To succeed on his Jones Act negligence claim at trial, Mr.
Giroir must prove that CMS’s negligent breach of duty caused at
least one of his injuries; he must present some evidence from which
the fact finder can infer that an unsafe manner of operation or
navigation was used (here, the alleged improper method of storing
and unloading the oil pump, or of transporting crew members to
shore) and that CMS knew or should have known of such danger.

CMS

seeks judgment as a matter of law on the ground that it is not
liable for plaintiff’s injuries because he has failed to present
any competent evidence to demonstrate that CMS breached a duty
owed to him as to either alleged incident.
As for the 2015 incident, Mr. Giroir indicated on his accident
investigation report and confirmed during his deposition that he
felt a pop in the lower left side of his back while retrieving an
oil pump off of a shelf in the engine room of the M/V EUGENIE
CENAC.

Advancing a “negligent storage” theory of recovery in his

opposition papers, Giroir invokes Martinez v. Offshore Specialty
Fabricators, Inc., in which another Section of this Court held
that “[r]equiring a Jones Act seaman to work in ‘awkward and
confined quarters without adequate help and without suitable tools
and equipment’ can be negligence under the Jones Act.”
11

Martinez

v. Offshore Specialty Fabricators, Inc., No. 08-4224, 2011 U.S.
Dist. LEXIS 43641, at *14 (E.D. La. Apr. 19, 2011) (Fallon, J.)
(quoting Crador v. La. Dep’t of Highways, 625 F.2d 1277, 1230
(1980)).

Although Mr. Giroir argues in his opposition papers that

the heavy, sixty-to-seventy pound pump he was instructed to use
for oil changes was “inappropriately stored in a small, tight,
difficult to access overhead shelf,” he has presented no evidence
of record (through testimony or affidavit) regarding the placement
of the shelf, the size of the engine room, or the absence of
adequate help to assist him in retrieving the pump.
To the contrary, Mr. Giroir has stated, under oath, that the
injury could have been avoided if someone had helped him but that
he elected not to ask for assistance.
Q: Could this injury have been avoided? And you circled
yes. And what did you explain, how could it have been
avoided?
A: Had someone helped me.
Q: All right. So there were personnel aboard the vessel
available to you as an operator, that could have helped
you?
A: Yes.
Q: And you, as an operator, elected not to have someone
help you?
A: Yup.
Q: When you moved this pump in the engine room, was there
anyone else besides you in the engine room?
A: Yes.
Q: Who was in the engine room with you?
A: Donald Anderson.
. . .
12

Q: So, Mr. Anderson would have been in the engine room,
available as assistance to help you, had you asked for
it?
A: Yes.
Similarly, Giroir’s incident report and deposition testimony
respecting the 2017 incident demonstrate on the record that this
incident was unavoidable and that CMS breached no duty owed to the
plaintiff.

Although Mr. Giroir reported that he tripped, twisted

his left ankle, and fell on his right knee when a flat boat on
which he was traveling to shore for a crew change “rocked” as he
“was getting out,” he has testified that the incident could not
have been prevented and was not anyone’s fault.
Q: So when filling this out in September of 2017 –
December 15th, 2017, you didn’t think this accident
could have been prevented?
A: No.
. . .
Q: Was the accident caused by unfit or unreasonable
equipment? And you checked no. Again, this accident
was not caused by any of the equipment, correct?
A: Yup.
Q: And finally: Was this injury caused by anyone’s fault?
And you checked no, this wasn’t caused by anyone’s fault?
. . .
A: It ain’t nobody’s fault. It’s an act of Mother of
God, an act of nature.
Notwithstanding his sworn testimony, Giroir now attempts to
defeat summary judgment by contending in his opposition papers
that he may (through counsel) be able to establish a potentially
valid Jones Act negligence claim at trial.

For support, Giroir

relies heavily upon Sims v. Hughes, in which another Section of
13

this Court denied an employer’s motion for summary judgment as to
a Jones Act negligence claim because the seaman had “pointed to
sufficient evidence to demonstrate a genuine dispute as to whether
[another] employee breached his duty of care and thereby caused
injury to” the plaintiff. No. 12-421, 2013 U.S. Dist. LEXIS 47594,
at *4-5 (E.D. La. Apr. 1, 2013) (Engelhardt, J.).

The Sims court

emphasized that the seaman’s deposition testimony absolving his
employer of liability was “not entitled to . . .

conclusive legal

effect” because the seaman also “submitted deposition testimony
tending to show that the deck foreman may have erred in following
and/or relaying orders regarding the procedure for disconnecting
the hose.”

Id. at *5.

But, in this case, Mr. Giroir, as the

relief captain of each CMS vessel, has admitted under oath that
there is no evidence indicating that anyone was at fault (aside
from himself). 3
The Court is similarly unpersuaded by Giroir’s attempt to defeat
summary judgment through a negligent job assignment theory of
recovery. In his opposition papers, he appears to contend that
CMS should have been on notice of his pre-existing back condition
and, therefore, was negligent in allowing him to work as a relief
captain.
For support, Giroir invokes Townsend v. Diamond Offshore, in
which another Section of this Court held that an employer was
negligent in allowing a seaman to work as a roustabout because the
employer “knew or should have known that [the plaintiff] was not
qualified for heavy manual labor on its offshore drilling vessel.”
No. 07-7651, 2009 U.S. Dist. LEXIS 69215, at *11-12 (E.D. La. Aug.
7, 2009) (Barbier, J.).
The Court finds Giroir’s reliance on
Townsend, a negligent clearance case, misplaced. In Townsend, the
plaintiff underwent a pre-employment physical, which revealed two
herniated discs in his back, after which the employer’s contracted
3

14

Significantly, “a Jones Act employer is not an insurer of a
seaman’s

safety;

the

establish liability.”

mere

occurrence

of

an

injury

does

not

Marvin v. Central Gulf Lines, Inc., 554

F.2d 1295, 1299 (5th Cir.), cert. denied, 434 U.S. 1035 (1978).
Although Mr. Giroir contends that his deposition testimony should
not be treated as a judicial admission, he simply presents no
competent evidence to controvert his sworn testimony or indicate
how CMS was negligent in causing or contributing to his alleged
injuries.

See St. Angelo v. Pacific-Gulf, Inc., No. 89-5364, 1991

U.S. Dist. LEXIS 1755, at *7-8 (E.D. La. Feb. 7, 1991) (Wicker,

physician cleared the plaintiff to work as a roustabout aboard a
drilling vessel.
Id. at *3-4.
As a result of the negligent
clearance, the plaintiff sustained injuries while performing heavy
manual labor. Id. at 10-12.
Here, Mr. Giroir underwent a pre-employment physical in
November of 2013 during which he failed to disclose his prior back
conditions and surgeries. Moreover, the Court is not persuaded by
Mr. Giroir’s effort to impute knowledge of his back problems to
CMS.
Pointing to his deposition testimony for support, Giroir
contends that he was working for Cenac Towing in November of 2006
when he underwent a lumbar laminectomy surgery. Accordingly, he
asks the Court to infer that Cenac Towing knew about his lumbar
laminectomy surgery and contends that such knowledge can be imputed
to CMS.
However, he also acknowledged during his deposition that
“Cenac Marine Services is a totally different company than Cenac
Towing Company was,” “is at a different physical location,” and
“doesn’t have any of the boats and the barges that used to be Cenac
Towing Company.” He also testified that he took two weeks off to
recover from the lumbar laminectomy surgery, after which he
continued to work for Cenac Towing for a couple of years without
incident.
Accordingly, Mr. Giroir has not demonstrated that a
genuine dispute exists as to whether CMS knew or should have known
that Mr. Giroir was not physically qualified for heavy manual labor
on its vessels as of the date of his injury in 2015.
15

J.) (“The evidence which plaintiff has submitted on his claim for
negligence borders on a metaphysical doubt since he only relied on
his deposition, which for the most part contradicts any allegations
of negligence on the part of the crew.”).

Because the plaintiff

cannot establish an essential element of his Jones Act negligence
claim with respect to either alleged incident, summary judgment in
CMS’s favor is warranted. 4
III.
A.
Independent from a claim under the Jones Act, a seaman has a
claim for injuries caused by the unseaworthiness of a vessel under
the general maritime law.

The duty of a vessel owner to provide

a seaworthy vessel is an absolute non-delegable duty; the duty
imposes liability without fault.

See Mitchell v. Trawler Racer,

Inc., 362 U.S. 539, 548-49, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).

A

ship is seaworthy if the vessel, including her equipment and crew,
is reasonably fit and safe for the purposes for which it was
intended to be used.

Boudreaux v. United States of America, 280

F.3d 461, 468 (5th Cir. 2002) (citation omitted); Boudoin v. Lykes
Bros. S.S. Co., 348 U.S. 336, 339, 75 S.Ct. 382, 99 L.Ed. 354

Having determined that Mr. Giroir has presented no
evidence of negligent breach of duty, the Court need not
alternative ground upon which CMS seeks summary relief
that Giroir’s alleged injuries stem exclusively from
existing conditions.
4

16

competent
reach the
– namely,
his pre-

(1955) (“The standard is not perfection, but reasonable fitness;
not a ship that will weather every conceivable storm but a vessel
reasonably suited for her intended service.”).

“[U]nseaworthiness

is a condition, and how that condition came into being – whether
by negligence or otherwise – is quite irrelevant to the owner’s
liability for personal injuries resulting from it.”

Usner v.

Luckenbach Overseas Corp., 400 U.S. 494, 498 (1971).
Unseaworthiness is not a fault-based standard; however, a
plaintiff must show that the unseaworthy condition “played a
substantial part in bringing about or actually causing the injury
and that the injury was either a direct result or a reasonably
probable consequence of the unseaworthiness.”

Phillips v. Western

Co. of North America, 953 F.2d 923, 928 (5th Cir. 1992).
A vessel’s condition of unseaworthiness might arise from
any number of circumstances.
Her gear might be
defective, her appurtenances in disrepair, her crew
unfit. The number of men assigned to perform a shipboard
task might be insufficient. The method of loading her
cargo, or the manner of its stowage, might be improper.
Usner, 400 U.S. 494 at 499 (internal citations omitted); see also
Webb v. Dresser Indus., 536 F.2d 603, 606 (5th Cir. 1976), cert.
denied 429 U.S. 1121, 97 S. Ct. 1157, 51 L.Ed.2d 572 (1977).

A

vessel is also unseaworthy when an unsafe method of work is used
to perform vessel services.

Rogers v. Eagle Offshore Drilling

Serv., 764 F.2d 300, 303 (5th Cir. 1985); Burns v. Anchor-Wate
Co.,

469

F.2d

730

(5th

Cir.
17

1972).

On

the

other

hand,

[a]n isolated personal negligent act of the crew” is not enough to
render

a

ship

unseaworthy.

Daughdrill

v.

Ocean

Drilling

Exploration Co., 709 F. Supp. 710, 712 (E.D. La. 1989).

&

Rather,

there should be evidence of “a congeries of acts.” Id. (quoting
Robinson v. Showa Kaiun K.K., 451 F.2d 688, 690 (5th Cir. 1971)). 5
B.
CMS contends that Mr. Giroir has presented no evidence to
show that any condition aboard CMS’s vessels, or concerning their
appurtenances or crews, rendered the vessels unseaworthy.

For

support, CMS points to the incident reports completed by Giroir
following each alleged incident, as well as his own deposition
testimony, in which he reaffirms his account of each incident.
As for the 2015 incident, Giroir reported that the engine
room was well lit at the time of the incident and that the accident
did not involve damage to the hull or equipment.

Although he also

reported that the injury could have been avoided if someone had
helped him, he has stated, under oath, that he elected not to ask
for help even though another identified crewmember was available
to provide assistance.

In a similar vein, Giroir has testified

A seaman has a duty under both the Jones Act and general maritime
law to act as an ordinary prudent seaman would act in the same or
similar circumstances. Jackson v. OMI Corp., 245 F.3d 525, 528
(5th Cir. 2001).
If a seaman’s negligence contributes to his
injury, his “contributory negligence will not bar his recovery,
but may reduce the amount of damages owed proportionate to his
share of fault.” Jauch v. Nautical Services, Inc., 470 F.3d 207,
213 (5th Cir. 2006).
5

18

that no condition of the EUGENIE CENAC or its equipment caused the
accident or his back injury.
Q: Okay. Is there anything that the boat, the condition
of the Eugenie Cenac, did to cause your injury on
September 5th, 2015?
A: No.
Q: Okay. Is there anything that your coworkers aboard
the Eugenie Cenac did in September of 2015 that caused
your back injury?
A: No.
With respect to the 2017 incident, Giroir reported that he
tripped, twisted his left ankle, and fell on his right knee when
a flat boat on which he traveling to shore for a crew change
“rocked” as he “was getting out.”

He further reported that the

accident could not have been prevented, was not caused by unfit or
unreasonable equipment, and was not anyone’s fault, and he has
testified that he believes the 2017 incident could not have been
prevented and was not caused by unfit or unreasonable equipment;
rather, he has stated under oath that the incident was “an act of
Mother of God, an act of nature.”
Q: So when filling this out in September of 2017 –
December 15th, 2017, you didn’t think this accident
could have been prevented?
A: No.
. . .
Q: Was the accident caused by unfit or unreasonable
equipment? And you checked no. Again, this accident
was not caused by any of the equipment, correct?
A: Yup.
Q: And finally: Was this injury caused by anyone’s fault?
And you checked no, this wasn’t caused by anyone’s fault?
19

. . .
A: It ain’t nobody’s fault. It’s an act of Mother of
God, an act of nature.
The Court recognizes that “an unsafe method of work may . .
. render a vessel unseaworthy.”

See Broussard v. Stolt Offshore,

Inc., 467 F. Supp. 2d 668, 670 (E.D. La. 2006) (Lemmon, J.)
(quoting Phillips v. Western Co. of North America, 953 F.2d 923,
928 (5th Cir. 1992)).

But, Mr. Giroir’s testimony that he injured

his back while retrieving a sixty-to-seventy-pound oil pump off of
a shelf, without any facts tending to show that CMS stored the
pump in an unsafe location or instituted an unsafe procedure for
lifting the pump, fails to establish a genuine dispute as to
whether the M/V EUGENIE CENAC was unseaworthy.

And Giroir’s bare

testimony that he injured his left ankle and right knee when a
flat boat “rocked” fails to create a genuine issue for trial as to
the seaworthiness of the M/V CHRISTINE CENAC.

Indeed, Giroir

concedes that this incident “was an act of Mother of God, an act
of nature.”
The Court is also not persuaded by Mr. Giroir’s convenient
contention that he does not understand the meaning of the term
“unseaworthiness” and, therefore, “struggled” to respond to nonfactual questions posed by defense counsel during his deposition.
First, no form of the word “unseaworthy” appears in the threehundred-page deposition transcript submitted to this Court.

More

importantly, Giroir was vetted at length during his six-hour
20

deposition to identify any person or equipment that may have caused
or contributed to either of his incidents, and he consistently
testified under oath that he did not fault the vessels, their
equipment, or their crew.

Because the record is devoid of any

evidence to suggest that Giroir can establish that either vessel
was unseaworthy, summary dismissal of his unseaworthiness claim is
appropriate.
IV.
A.
“Maintenance and cure is a contractual form of compensation
afforded by the general maritime law to seamen who fall ill or are
injured while in the service of a vessel.”

Meche v. Doucet, 777

F.3d 237, 244 (5th Cir. 2015) (quoting Jauch v. Nautical Servs.,
Inc., 470 F.3d 207, 212 (5th Cir. 2006) (citing McCorpen v. Cent.
Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968))).

The

obligation to pay maintenance and cure exists regardless of whether
the shipowner was at fault or the vessel unseaworthy.

O’Donnell

v. Great Lakes Dredte & Dock Co., 318 U.S. 36, 41-42 (1943);
Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1499 (5th Cir.
1995), abrogated on other grounds by Atlantic Sounding Co., Inc.
v. Townsend, 129 S. Ct. 2561 (2009).

“‘Maintenance is a daily

stipend for living expenses,’ whereas ‘cure is the payment of
medical expenses.’”

Meche, 777 F.3d at 244 (citations omitted).

21

Maintenance and cure may be awarded “even where the seaman
has

suffered

from

an

illness

pre-existing

his

employment.”

McCorpen, 396 F.2d at 548. Notwithstanding this general principle,
a court will deny maintenance and cure when a seaman wrongfully
concealed a pre-existing medical condition at the time he was
employed.

Id. at 548-49.

Under McCorpen, an employer is relieved

from its duty to pay maintenance and cure in certain circumstances:
where the shipowner requires a seaman to submit to a
pre-hiring medical examination or interview and the
seaman intentionally misrepresents or conceals material
medical facts, the disclosure of which is plainly
desired, then he is not entitled to an award of
maintenance and cure.
Of course, the defense that a
seaman knowingly concealed material medical information
will not prevail unless there is a causal link between
the pre-existing disability that was concealed and the
disability incurred during the voyage.
Id. at 549 (internal citations omitted). Accordingly, to establish
a McCorpen defense to maintenance and cure, an employer must show
that (1) the claimant intentionally misrepresented or concealed
medical facts; (2) the nondisclosed facts were material to the
employer’s decision to hire him; and (3) there is a causal link
between the withheld information and his injury complaint.

Meche,

777 F.3d at 244-45.
B.
In support of its McCorpen defense, CMS submits that Giroir
blatantly failed to disclose his history of back pain and surgeries
on

two

different

medical

questionnaires
22

submitted

during

the

employment application process with CMS, and now seeks maintenance
and cure for a lower back injury.

CMS submits that summary relief

in its favor dismissing the plaintiff’s maintenance and cure claim
as to his alleged back injury is appropriate because all three
elements of the McCorpen defense are satisfied.

The Court agrees.

Concealment
The

record

first

demonstrates

that

Giroir

intentionally

concealed pertinent medical facts when he applied to work for CMS
in November of 2013.

In support of the concealment element, 6 CMS

points to Giroir’s own deposition testimony:
Q: So tell me what is your handwriting on this medical
questionnaire . . . After you filled those questions in,
the yesses and nos that are circled, did you circle those
things?
A: Yes.
. . .
Q: All right. The fourth one down asks “Back Injury”
and you circled no, correct?
A: Yes.
. . .
In further support of this concealment element, CMS offers Mr.
Giroir’s application for employment with CTCO Benefit Services
L.L.C., dated November 7, 2013, in which Giroir indicated that he
did not have any physical or mental condition(s) which may
interfere with or hinder the performance of the job for which he
wished to be considered.
Although he did disclose on his
application that he had sustained a prior on-the-job neck and
shoulder injury in 2006 while working for Settoon Towing, he did
not reveal a prior on-the-job back injury.
CMS also submits its medical questionnaire, dated November
12, 2013, in which Giroir first circled “yes” and then scratched
out the answer and circled “no” in response to the question “Have
you ever had or do now [sic] have: back injury.”
6

23

Q: Okay.
And so, we’ll go back to the questionnaire
from Cenac in 2012. You didn’t tell them about you [sic]
had low back pain because of work activity that you had
engaged in in 2003, did you?
A: No, I didn’t think it was nothing. It was a minor
lumbar strain.
Based on Giroir’s testimony, it is undisputed that he did not
disclose any prior back condition, injury, or surgery when applying
for employment with CMS in 2013.

And the Court is not persuaded

by Mr. Giroir’s attempts to manufacture a fact issue as to whether
he intentionally concealed or misrepresented his pre-existing back
problems.
Giroir seeks the shield of a fact issue by contending that
CMS was on notice during the application process that he had
undergone a lumbar laminectomy surgery in 2006.

For support, he

points to his deposition testimony, in which he states that he was
working for Cenac Towing in November of 2006 when he underwent a
lumbar laminectomy surgery with Dr. Donner.
Q: My notes indicate that you had the surgery on November
8th, 2006 for lumbar stenosis; does that sound correct
to you?
A: Yes, sir.
Q: So this surgery that you had done to your back in
2006 would have been a surgery that you didn’t tell Cenac
about when you were looking for work in 2012, correct?
A: I was working for Cenac in 2006.
Q: Okay. So you think that you were working for Cenac
when Dr. Donner did this 2006 surgery?
A: Yes, sir.

24

He next submits documentation from the Louisiana Secretary of
State, demonstrating that Cenac Towing Co., LLC and Cenac Marine
Services, LLC are related single-member entities that share the
same domicile address and are owned by the same individual, Arlen
B. Cenac, Jr.

He then urges the Court to infer that Cenac Towing

was on notice of his 2006 lumbar laminectomy surgery and to impute
such knowledge to its related entity, Cenac Marine.

However, as

discussed in the context of Mr. Giroir’s Jones Act negligence
claim,

nothing

of

record

imputes

Cenac

Towing’s

hypothetical

notice of Giroir’s 2006 lumbar laminectomy surgery to Cenac Marine.
Insofar as Mr. Giroir attempts to create a fact issue by
contending that he did not intentionally conceal his pre-existing
lower back problems during the CMS application process in 2013,
such efforts likewise fail.

Notably, the intentional concealment

prong of the McCorpen test is an objective inquiry.

Brown v.

Parker Drilling Offshore Corp., 410 F.3d 166, 174 (5th Cir. 2005).
Accordingly, no genuine issue of material fact exists where a
plaintiff conceals his prior injury, even if he denies having
intentionally

withheld

the

information.

See

id.;

Bud’s

Boat

Rental, Inc. v. Wiggins, No. 91-2317, 1992 WL 211453, *2 (E.D. La.
Aug. 24, 1992).
[A] seaman may be denied maintenance
to disclose a medical condition only
to reveal it. Failure to disclose
in an interview or questionnaire
25

and cure for failure
if he has been asked
medical information
that is obviously

designed to elicit such information therefore satisfies
the intentional concealment requirement.
Brown, 410 F.3d at 174 (citation omitted).
dispute

that

Giroir

intentionally

Because there is no

misrepresented

or

concealed

medical facts when he denied having prior back problems on two
pre-employment medical questionnaires completed as part of his job
application, the intentional concealment element of the McCorpen
defense is satisfied.
Materiality
CMS next contends that the concealed medical condition was
material to its decision to hire Giroir.

In opposition, Giroir

insists that CMS has not proved that it materially relied on
Giroir’s answers to the questions regarding prior back problems in
his pre-employment questionnaires prior to hiring him.

The Court

disagrees.
The record indicates that Giroir was required to submit to a
pre-employment physical and to answer questions concerning his
physical fitness for the job before CMS would hire him.

In support

of the materiality element, CMS offers the sworn affidavit of its
Human Resource Marine Personnel Manager, Andrew Soudelier, who
attests that CMS falsely assumed Mr. Giroir was fit for duty to
serve as a relief captain because he concealed his full medical
history of back pain. 7

7

Giroir contends that CMS cannot rely on

Soudelier further attests in his affidavit:
26

the “self-serving affidavit” of Mr. Soudelier, “especially in
light of opposing evidence.”
evidence

that

contradicts

But Giroir fails to point to any
the

affidavit

of

CMS’s

Personnel

Manager.
Giroir

ignores

case

literature

materiality

evidence

present

on

instructing

this

record

that

supports

the
CMS’s

submission that it is entitled to judgment as a matter of law on
this issue.
that

an

Indeed, the Fifth Circuit instructs that “[t]he fact

employer

asks

a

specific

medical

question

on

an

application, and that the inquiry is rationally related to the
applicant’s physical ability to perform his job duties, renders
the information material for the purpose of this analysis.”

Brown

v. Parker Drilling Offshore Corp., 410 F.3d 166, 175 (5th Cir.
2005).

Here, there is no dispute that, before CMS hired Giroir,

it required that he answer questions about his physical fitness
•

•

Had the information pertaining to Mr. Giroir’s
extensive medical history of back pain, congenital
stenosis, degenerative disease of his spine, and
surgeries been known at the time of Mr. Giroir’s
application for employment, this information would
have been material to the decision of placing Mr.
Giroir in a vessel-based service as a Relief Captain
aboard a Cenac Marine Services, LLC vessel and would
have required additional investigation.
Had the information pertaining to Mr. Giroir’s
extensive medical history of these pre-existing
conditions been known at the time of Mr. Giroir’s
application for employment, Mr. Giroir would not have
been employed by Cenac Marine Services, LLC as a
Relief Captain or in any other position aboard any
Cenac Marine Services, LLC vessel.
27

for duty and that, in response, Giroir concealed his pre-existing
back conditions and prior back surgeries. There is also no genuine
dispute that the medical questionnaires were specifically designed
to elicit information concerning pre-existing back problems and
prior back surgeries, that such information was rationally related
to the job applicant’s physical ability to perform job duties, and
that

Giroir

concealed

his

prior

lower

back

conditions

and

surgeries; accordingly, such concealed information was material to
CMS’s decision to hire Giroir.

See Thomas v. Hercules Offshore

Services, L.L.C., 713 F. App’x 382, 387-88 (5th Cir. Mar. 2, 2018).
The second prong of the McCorpen defense is satisfied here.
Causal Link
As to the third element, the record demonstrates that there
was a causal link between the concealed pre-existing lower back
condition – lumbar stenosis - and the injury Giroir alleges he
sustained to his low back while working for CMS.

Giroir does not

submit any evidence that calls into question this causal link
between his prior back condition and the back injury he alleges he
suffered while attempting to retrieve an oil pump from a shelf
while working for CMS.

“[T]here is no requirement that a present

injury be identical to a previous injury.
a

causal

link

between

the

All that is required is

pre-existing

disability

that

concealed and the disability incurred during the voyage.”

was

Brown,

410 F.3d at 175-76 (noting that “employers need to be certain that
28

each employee is physically able to do the work, not only to
protect the employer from liability, but also to protect the
employees.”). 8

Because there is a connection between the withheld

information relative to a prior low back condition and the low
back injury allegedly sustained in 2015, CMS has carried its burden
to show a causal connection.

Therefore, on this record, CMS has

established a McCorpen defense as to Mr. Giroir’s alleged back
injury sustained in 2015.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendant’s motions for summary judgment are hereby GRANTED;
the plaintiff’s Jones Act negligence and unseaworthiness claims,

In Brown, the plaintiff argued there was no medical proof that
his new injury was an aggravation of his old injuries, but the
Fifth Circuit found that such proof was unnecessary. See Brown,
410 F.3d at 175-76. To establish a “causal link,” it was enough
for the defendant to show that the old and the new injuries “were
to the same location of the [plaintiff’s] lumbar spine.” Id. at
176. “The inquiry is simply whether the new injury is related to
the old injury, irrespective of their root causes.” Johnson v.
Cenac Towing, Inc., 599 F. Supp. 2d 721, 728-29 (E.D. La. 2009);
see also Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212-13 (5th
Cir. 2006) (finding requisite connection when new back injury was
“virtually identical” to previous back injury); Noel v. Daybrook
Fisheries, 213 F.3d 637, 2000 WL 554455, at *2 (5th Cir. 2000)
(table) (per curium) (finding requisite connection when both
injuries were to the “same disc”); Boatright v. Raymond Dugat Co.,
L.C., 2009 WL 138464, at *4 (S.D. Tex. 2009) (finding requisite
connection when plaintiff’s “prior and current injuries [were]
both to his right hip”); Jenkins v. Aries Marine Corp., 590 F.
Supp. 2d 807, 813 (E.D. La. 2008) (“To find the requisite
‘connection,’ courts have looked to whether the injuries were
identical or produced identical or substantially similar symptoms
in the same part of the body.”).
8

29

as well as his claim for maintenance and cure related to his
alleged back injury, are hereby DISMISSED with prejudice.
New Orleans, Louisiana, March 6, 2019
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

30