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LOMBAS v. MORAN TOWING & TRANSP. CO.

September 4, 1995

WHITNEY LOMBAS, Plaintiff, against MORAN TOWING & TRANSPORTATION CO., INC., Defendant.


The opinion of the court was delivered by: JOHN G. KOELTL

 JOHN G. KOELTL, District Judge:

 This action was brought under the Jones Act, 46 U.S.C. § 688. The plaintiff Whitney Lombas alleges that the injuries he suffered on April 8, 1988 while transferring a cable from the tug HEIDI MORAN to the tug JUDY MORAN, both operated by his employer the defendant Moran Towing and Transportation Co. ("Moran"), were due to Moran's negligence. *fn1"

 At issue in this case is whether the plaintiff seaman can recover on negligence grounds from his employer for injuries sustained while dragging a cable across a wooden dock with a warped plank. The plaintiff fell on the dock while he was walking backwards dragging the cable. He and two other Moran captains were dragging the cable at the time. The plaintiff alleges that the defendant was negligent in two ways: (1) Moran required Lombas to perform his job in a dangerous manner when other safer methods were available, and (2) Moran failed to provide a reasonably safe place to work. Specifically, Lombas alleges that the cable transfer could have been done more safely by using one of the following alternatives: (1) moving the JUDY alongside the HEIDI to eliminate the necessity of dragging the cable across the pier; (2) asking a deckhand to assist the three captains in the manual transfer; (3) using the capstan; or (4) using a cherry-picker, which is a type of crane. The defendant denies that it was negligent and argues that the plaintiff may not recover for his injuries because his own negligence was the sole cause of the accident.

 Following a three-day bench trial on liability *fn2" and after reviewing all of the submissions of the parties and having assessed the credibility of all of the witnesses, the Court makes the following findings of fact and conclusions of law:

 FINDINGS OF FACT

 1. Jurisdiction is based on the Jones Act, 46 U.S.C. § 688.

 2. Plaintiff Whitney ("Sonny") Lombas is a resident of Cut Off, Louisiana. (Joint Pre-Trial Order, Undisputed Facts ("UF"), P 1.)

 3. Lombas began working for Moran in February 1988 (UF P 9.) On April 8, 1988, Lombas was employed by Moran and was receiving pay from Moran at a Captain's rate. (UF PP 3, 4.) At the time he fell, Lombas had been going to sea for at least 24 years and had sailed as a tug captain since 1975. (UF P 6.)

 4. On April 8, 1988, Moran was the operator of the tugs JUDY MORAN and HEIDI MORAN. (UF P 7.)

 6. When the ELIZABETH was dry-docked for repairs to its propellers, Lombas joined the JUDY MORAN. (UF PP 12, 13.)

 7. Lombas joined the JUDY on or about April 7, 1988. (UF P 13.) Bill Norgeot, a Moran supervisor, told Lombas to go to the JUDY to pick up the barge CARIBBEAN, which was then docked in Somerset, Massachusetts. (See Lombas 1995 Dep. at 83; Lombas Tr. Test.)

 8. Wayne Savoie, a licensed tug Captain, joined the JUDY the day before Lombas did. (UF P 14.) Malco Guidry, also a licensed tug Captain, joined the JUDY at or about the same time Lombas and Savoie did. (UF P 14.)

 9. There were wires or cables that were used to attach a tug to a barge like the CARIBBEAN when that tug was in the "notch" at the stern of the barge, and these were called make-up wires. (UF P 17.) On April 8, 1988, there were make-up wires suitable for towing the CARIBBEAN that were located on board the tug HEIDI. (UF P 20.) The tug JUDY, which was to go to Somerset, Massachusetts, to pick up the barge CARIBBEAN, did not have such cables aboard at the time. (UF P 19.)

 10. On April 8, 1988, the disabled HEIDI was tied up on the north side of the pier at the Moran Shipyard in Staten Island, New York. (UF P 18.) Moran does not own or lease the real estate or premises known as the Moran Shipyard. *fn3"

 11. On April 8, 1988, the JUDY arrived at the Moran Shipyard in order to pick up these cables from the HEIDI. (UF P 21.) The JUDY docked on the south side of the finger pier, which juts out into the water roughly perpendicular to the shore, across from the HEIDI. (UF P 18.) The dock was about 45 feet wide. (DiNapoli Tr. Test.)

 12. Each cable was two and one-quarter inches in diameter, made of steel, and 30 to 40 feet long. (Savoie Dep. at 32; Lombas 1990 Dep. at 80.) The weight of each cable was estimated to be a maximum of 374.4 pounds and a minimum of 260 pounds; however, 260 pounds is the more reasonable estimate for the cable at issue. (DiNapoli Tr. Test.; Borello Tr. Test.) The cable also had a socket at one end and a thimble at the other, which weighed 60 to 70 pounds and 20 pounds, respectively. (DiNapoli Tr. Test.; Borello Tr. Test.) In total, the cable plus its fittings weighed approximately 340 pounds. (Borello Tr. Test.; DiNapoli Tr. Test.)

 13. On April 8, 1988, the Chief Engineer and a deckhand from the JUDY went to the HEIDI to help transfer the cables. (UF P 24.)

 14. Lombas, Guidry, and Savoie remained on the pier to receive the cables. (UF P 25.)

 15. The three captains undertook the cable transfer as a joint operation. (Savoie Dep. at 75.)

 16. Lombas, Savoie, and Guidry grabbed a section of one of the cables and dragged it across the pier toward the JUDY on the ...


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