Rivera v. Kirby Offshr Mrne

United States Court of Appeals
for the Fifth Circuit

No. 19-40799

Jay Rivera,

Plaintiff—Appellee,

versus

Kirby Offshore Marine, L.L.C., In Personam,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:17-CV-111

Before King, Stewart, and Southwick, Circuit Judges.
Carl E. Stewart, Circuit Judge:
Captain Jay Rivera was hired by Kirby Offshore Marine, L.L.C.
(“Kirby”) to pilot the M/V TARPON (“Tarpon”), a 120-foot seagoing
vessel. While aboard the Tarpon, Captain Rivera injured his foot when he
tripped over a stair inside a hatch door. Captain Rivera’s injuries prevented
him from continuing to work as a harbor pilot, and he sued Kirby for his lost
wages. The district court held a seven-day bench trial on Captain Rivera’s
claims. At the end of trial, the court determined that Kirby was liable to
Captain Rivera on his claim of Sieracki seaworthiness and that Kirby was
alternatively liable under the Longshore and Harbor Workers’
United States Court of Appeals
Fifth Circuit
FILED
December 22, 2020

Lyle W. Cayce
Clerk
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Compensation Act (“LHWCA”). The court awarded Captain Rivera
$11,695,136.00 in damages. Kirby appealed. We AFFIRM.
I. F
ACTS AND PROCEDURAL HISTORY
From June 2007 to July 2018, Captain Rivera was a state-
commissioned Branch Pilot for the Port Aransas Bar and Corpus Christi Bay.
As a Branch Pilot, he assisted vessels in navigating the Port Corpus Christi
Ship Channel and the LaQuinta Channel.
Through July 2018, Captain Rivera was a member of the Aransas-
Corpus Christi Pilots Association (“Association”), an unincorporated pilots
association. The Association regulates the rules and procedures of licensed
pilots practicing on the Port Aransas Bar, the Corpus Christi Bay, and the
surrounding tributaries. The Association collects pilotage fees earned by the
members, uses the fees in a common fund, and makes pro rata distributions
to its members.
Captain Rivera was also the sole owner and officer of Riben Marine,
Inc., an S-Corporation. Captain Rivera incorporated Riben Marine to receive
his various forms of revenue. In addition to his pilot earnings, Captain Rivera
also earned money as an expert witness and as a charter service provider.
On August 19, 2016, Captain Rivera was dispatched to pilot the
Tarpon from the Port Aransas sea buoy to Oil Dock # 11 in the Corpus Christi
Harbor. The Tarpon was indirectly owned and operated by Kirby. The
Tarpon was attached to a tug and barge unit,
1
and Captain Rivera could not
board the Tarpon without first boarding the barge. Captain Rivera traveled
to the Tarpon by pilot boat and boarded the Tarpon using a ladder affixed to

1
In a tug and barge unit, the tug fits into a notch on the barge’s stern and is
connected to the barge by a set of pins.
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the barge. Having just come from outside, Captain Rivera continued to wear
hi s sunglasses while on the Tarpon.
After boarding, Captain Rivera was greeted by David Hudgins, a Kirby
employee who was assigned to escort him to the Tarpon’s wheelhouse.
2

Hudgins had only been working aboard the Tarpon for two days, and he had
not been formally trained on how to escort pilots. Hudgins and Captain
Rivera “transited to the stern of the barge where they both climbed down
onto the deck” of the Tarpon. As they headed toward the Tarpon’s
wheelhouse, Captain Rivera slowed down and lost sight of Hudgins. Captain
Rivera continued his journey to the Tarpon’s wheelhouse without Hudgins
escorting him.
To enter the wheelhouse, Captain Rivera had to climb over a two-foot-
high bulkhead and through a watertight door. From the door, he had to use
another step inside the engine-room hatch access door to step down to the
interior deck area. The area was not well illuminated. When Captain Rivera
reached the inside step, he stepped down toward the deck with his left foot.
He landed on the hatch cover, rolled his ankle, and fell. Captain Rivera lay on
the deck after his injury, and Hudgins eventually found him. Hudgins helped
Captain Rivera the rest of the way to the wheelhouse. Once inside the
wheelhouse, Captain Rivera requested ice and ibuprofen and reported his
injury to Captain Crossman, the Tarpon’s captain. Captain Rivera then
piloted the Tarpon to its intended destination.
After exiting the Tarpon, Captain Rivera sought medical attention for
his injury. Doctors confirmed that Captain Rivera fractured his fifth

2
The wheelhouse or house is the vessel’s enclosed area that normally contains the
vessel’s navigation quarters or engine room. See St. Phillip Offshore Towing Co. v. Wis. Barge
Lines, 466 F. Supp. 403, 406 (E.D. La. 1979).
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metatarsal of his left foot and placed his foot in an air cast. Captain Rivera
experienced lingering injuries during his recovery, and doctors eventually
diagnosed him with Complex Regional Pain Syndrome (“CRPS”). Captain
Rivera was declared medically unfit for his mariner certification due to his
condition and lingering injuries. On recommendation from the Board of Pilot
Commissioners, the Governor of Texas revoked Captain Rivera’s state
harbor commission. After his commission was revoked, Captain Rivera lost
his Association membership as well.
Captain Rivera sued Kirby under various maritime laws for negligence
and vessel seaworthiness. Captain Rivera sought relief on alternative grounds
for: Kirby’s negligence under the common law, Kirby’s breach of the duty of
a seaworthy ship under Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85 (1946),
and Kirby’s negligently maintained vessel under § 905(b) of the LHWCA.
After a seven-day bench trial, the district court issued a Findings of
Fact and Conclusions of Law order that concluded that the Tarpon was
unseaworthy under Sieracki and that, in the alternative, Kirby was negligent
under § 905(b) of the LHWCA. The district court also concluded that
Captain Rivera was not contributorily negligent for wearing sunglasses
aboard the Tarpon.
Because Captain Rivera’s injuries prevented him from working as a
harbor pilot, the district court awarded him damages for his past and future
harbor pilot wages. Captain Rivera did not seek damages for his chartering or
expert work because his injuries did not prevent him from working in these
roles. The district court relied on Captain Rivera’s economic expert’s
calculations and entered a judgment for Captain Rivera in the amount of
$11,695,136.00. Kirby now appeals.

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II. STANDARD OF REVIEW
“We review legal conclusions and mixed questions of law and fact
following a bench trial de novo.” In re Luhr Bros. Inc., 325 F.3d 681, 684 (5th
Cir. 2003). The district court’s factual findings are binding unless clearly
erroneous. Id. “Questions concerning the existence of negligence and
causation are treated as factual issues subject to the clearly erroneous
standard.” Id. (quoting Avondale Indus. v. Int’l Marine Carriers, Inc., 15 F.3d
489, 492 (5th Cir. 1994)). We review the district court’s finding of
contributory negligence for clear error. See Fisher v. Agios Nicolaos V, 628
F.2d 308, 311–312 (5th Cir. 1980).
We review the district court’s evidentiary rulings for abuse of
discretion. Am. Int’l Specialty Lines Ins. Co. v. Res-Care, Inc., 529 F.3d 649,
656 (5th Cir. 2008). We review damages calculations for clear error.
Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 361 (5th Cir. 2016).
III. D
ISCUSSION
On appeal, Kirby argues that the district court committed five errors.
First, it argues that Captain Rivera is a proper plaintiff under § 905(b) of the
LHWCA and is therefore ineligible to bring a claim under Sieracki. Second,
it argues that it was error to hold it liable under § 905(b). Third, it asserts that
the district court erred in holding that Captain Rivera was not contributorily
negligent. Fourth, it asserts that the district court erred by permitting
Captain Rivera to introduce evidence of Kirby’s subsequent remedial
measures. Lastly, it argues that even if it is liable for Captain Rivera’s injuries,
the district court improperly calculated damages because it overestimated his
future earnings.

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1. Captain Rivera’s Status Under the LHWCA
Kirby argues that Captain Rivera is an employee of Riben Marine and
is therefore an eligible plaintiff under 33 U.S.C. § 905(b). Kirby further
argues that if Captain Rivera is eligible to bring a claim under the LHWCA,
he is ineligible to bring a claim under Sieracki. Captain Rivera argues that he
is not an employee of Riben Marine and therefore is not eligible to sue under
§ 905(b). We agree with Captain Rivera.
The district court concluded that Captain Rivera was not covered by
the LHWCA because it was not clear “that [he] was the employee of
anyone.” Bach v. Trident Steamship Co., Inc. 920 F.2d 322, 327 n.5 (5th Cir.
1991), vacated 500 U.S. 949 (1991), reinstated 947 F.2d 1290 (5th Cir. 1991).
Having determined that the record was unclear as to Captain Rivera’s status
as an LHWCA-covered employer, the district court analyzed his Sieracki
unseaworthiness claim. See id. We review the district court’s conclusion
about Captain Rivera’s status under the LHWCA de novo. See New Orleans
Depot Servs. Inc., v. Dir., Off. of Worker’s Comp. Programs, 718 F.3d 384, 387
(5th Cir. 2013) (en banc).
Captain Rivera’s potential LHWCA claim falls under 33 U.S.C. §
905(b). Section 905(b) states that “[i]n the event of injury to a person
covered under this chapter caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages by reason thereof,
may bring an action against such vessel . . . .” 33 U.S.C. § 905(b). To be “a
person covered under this chapter,” Captain Rivera must be the employee of
someone. See Bach, 920 F.2d at 327 n.5. Since there is no evidence that
Captain Rivera was an employee while aboard the Tarpon, he cannot be
covered by the LHWCA.
Kirby argues that Captain Rivera was employed by Riben Marine
when he was injured upon the Tarpon. But the facts do not support such a
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conclusion. Captain Rivera was requested, hired, and paid through his
affiliation with the Association. Kirby does not argue that Captain Rivera is
an employee of the Association,
3
and we consider harbor pilots akin to
independent contractors. See, e.g., Steinhort v. Comm’r of Internal Revenue,
335 F.2d 496, 499 (5th Cir. 1964).
Our holding is consistent with Manuel v. Cameron Offshore Boats, Inc.
In Manuel, we analyzed a § 905(b) claim brought by an employee of an
independent contractor. 103 F.3d 31, 32–33 (5th Cir. 1997). Because Manuel
was an employee of a contractor, he was a proper plaintiff under the
LHWCA. See id. at 33.
Captain Rivera is an independent contractor rather than someone’s
employee, and he is thus not covered by the LHWCA. Since he is also not a
Jones Act seaman
4
, he may proceed on a seaworthiness claim under Sieracki.
See Aparicio v. Swan Lake, 643 F.2d 1109, 1110 (5th Cir. Unit A Apr. 1981)
(“If the harbor worker is not covered by the LHWCA, the Sieracki cause of
action and the concomitant indemnification action afforded the vessel owner
are both still seaworthy.”). We therefore affirm the district court’s
conclusion that Captain Rivera is a Sieracki seaman.

3
Even if Kirby raised the argument that Captain Rivera is an employee of the
Association, we would reject that argument. Associations are generally not liable for the
actions of pilots. See Steinhort v. Comm’r of Internal Revenue, 335 F.2d 496, 499 (5th Cir.
1964). Beyond that, an association “does no business except as an agent of its individual
members.” Mobile Bar Pilots Ass’n v. Comm’r of Internal Revenue 97 F.2d 695, 697 (5th Cir.
1938).
4
A Jones Act seaman is a “master or member of a crew of any vessel.” Chandris,
Inc. v. Latsis, 515 U.S. 347, 355–56 (1995). Neither party argues that Captain Rivera is a
Jones Act seaman.
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2. Captain Rivera’s Sieracki seaworthiness claim
Having determined that Captain Rivera is a Sieracki seaman, we next
turn to analyze his seaworthiness claim under Sieracki. Kirby reiterates its
argument that Captain Rivera is covered by the LHWCA and thus ineligible
to bring a claim under Sieracki. As we have already shown, that argument
fails.
The district court determined that Captain Rivera’s seaworthiness
claim was meritorious. We review the district court’s finding of
unseaworthiness for clear error. Jackson v. OMI Corp., 245 F.3d 525, 528 (5th
Cir. 2001).
To prevail on his Sieracki unseaworthiness cause of action, Captain
Rivera must prove that Kirby “failed to provide a vessel, including her
equipment and crew, which is reasonably fit and safe for the purposes for
which it is to be used.” Id. at 527. He must also “establish a causal connection
between his injury and the breach of duty that rendered the vessel
unseaworthy.” Id. at 527–28. “To establish the requisite proximate cause in
an unseaworthiness claim, a plaintiff must prove 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.” Johnson v. Offshore Exp., Inc., 845
F.2d 1347, 1354 (5th Cir. 1988).
We cannot conclude that the district court committed clear error in
concluding that the Tarpon was unseaworthy. Captain Rivera sufficiently
demonstrated that his injuries were caused by his fall over the unmarked
hatch door and that the door was a tripping hazard. Tripping hazards may
render a vessel unseaworthy. See Jussila v. M/T La. Brimstone, 691 F.2d 217,
219–20 (5th Cir. 1982). We therefore affirm the district court’s finding that
the Tarpon was unseaworthy.
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3. Captain Rivera’s Contributory Negligence
Kirby next argues that Captain Rivera was contributorily negligent by
wearing sunglasses aboard the Tarpon. In the alternative, Kirby argues that
the district court made insufficient findings on the contributory negligence
issue. We disagree in both regards.
The district court concluded that Captain Rivera was not
contributorily negligent. We review the district court’s finding on the issue
of contributory negligence for clear error. See In re Luhr Bros. Inc., 325 F.3d
at 684. “[A] finding is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Hobbs v.
Petroplex Pipe and Constr., Inc., 946 F.3d 824, 829 (5th Cir. 2020) (alteration
in original) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985)).
Here, the district court did not err in determining that Captain Rivera
was not contributorily negligent. The district court determined that Captain
Rivera did not act unreasonably when he wore sunglasses aboard the Tarpon
on a sunny August day. The district court also determined that the hazardous
condition that caused Captain Rivera’s injuries was not open and obvious.
Even if he had not been wearing the sunglasses, it is not clear that he could
have seen the hatch doorstep and avoided his injury. Kirby has failed to
demonstrate that the district court’s contributory negligence determination
was clearly erroneous.
Kirby also argues that the district court made insufficient factual
findings on the contributory negligence question. We again disagree.
Federal Rule of Civil Procedure
52 requires that the district court
“find the facts specially and state its conclusions of law separately.” F
ED.
R. CIV. P. 52(a). The district court’s findings of fact and conclusions of law
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must be “sufficient in detail and exactness to indicate the factual basis for the
ultimate conclusion reached by the court.” Lettsome v. United States, 434
F.2d 907, 909 (5th Cir. 1970).
The record indicates that the district court gave Kirby’s contributory
negligence argument full consideration. The district court’s findings of fact
and conclusions of law on the contributory negligence question are well
within the specificity required by Rule 52. Beyond its legal conclusions, the
district court also made several factual findings that indicate the basis for its
determination. The district court determined that the edges of the hatch
cover were not marked, that the hatch was unusually placed, and that the
hatch cover was oddly positioned and difficult to see. We conclude that the
district court’s findings of fact were sufficient to indicate the basis for its
ultimate conclusion that Captain Rivera was not contributorily negligent.
4. Subsequent Remedial Measures
Kirby next argues that the district court erred by allowing Captain
Rivera to introduce evidence of a subsequent remedial measure. We disagree.
We review evidentiary rulings during a bench trial for abuse of
discretion. Am. Int’l Specialty Lines Ins. Co., 529 F.3d at 656. Even where the
district court committed an error, we reverse only where the error affects a
party’s substantial rights. See F
ED. R. EVID. 103(a).
The district court allowed Captain Rivera to admit evidence of a photo
showing that Kirby later placed reflective tape near the area where Captain
Rivera was injured. Though the district court initially precluded Captain
Rivera from introducing the evidence, it eventually let him after determining
that Kirby opened the door.
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Assuming arguendo that the district court erroneously admitted
evidence of a subsequent remedial measure, Kirby has not demonstrated that
the error affected its substantial rights.
Kirby points to the district court’s mention of the photo as evidence
that its substantial rights were violated. Even without the photograph, there
was evidence from which the court could conclude that Kirby was negligent.
The district court’s findings that the hazard was not visible and that the hatch
was in an unusual place support a ruling for Captain Rivera, and this evidence
exists independent of the photograph that Kirby takes issue with. We
therefore hold that the district court did not abuse its discretion by admitting
evidence of Kirby’s subsequent remedial measures.
5. Damages
Kirby’s final argument is that the district court erred in assessing
Captain Rivera’s lost future earnings. We disagree here as well.
The district court determined that Captain Rivera was entitled to
damages for his lost future earnings. Using Captain Rivera’s expert’s
calculations, the district court awarded him damages of $11,695,136.00. We
review the district court’s calculation of damages for clear error. Deperrodil,
842 F.3d at 361.
To determine lost future earnings in a maritime case, we (1) estimate
the plaintiff’s loss of work-life or expected remaining work-life; (2) calculate
the lost income stream; (3) compute the total damage; and (4) discount that
total to present value. Culver v. Slater Boat Co., 722 F.2d 114, 117 (5th Cir.
1983). Kirby disputes the second step of the Culver analysis, the district
court’s calculation of Captain Rivera’s lost income stream.
The district court adopted the recommendation of Captain Rivera’s
economic expert. Captain Rivera’s expert used Riben Marine’s Schedule K-
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1 tax forms to gauge his income rather than his personal tax returns. Riben
Marine received Captain Rivera’s pilot income as well as the income from his
work as an expert and a charterer. Riben Marine’s K-1 documents reflected
the income that he earned from his pilot earnings. Captain Rivera’s personal
tax returns reflected the total income from his various income streams.
Had the district court relied on Captain Rivera’s personal tax returns
as Kirby suggests, the damages calculation would have been in error. Captain
Rivera sought damages for his lost future wages as a harbor pilot. He did not
seek damages for his work as an expert or a charterer because he was able to
continue working in those roles after he was injured. His personal tax returns
reflected his income from all three roles whereas Riben Marine’s K-1 forms
reflected his pilot earnings separately. Had the district court actually relied
on his personal tax returns, the returns would have inflated his pilot income.
The district court did not err when it used Riben Marine’s K-1 forms.
Lastly, Kirby cites Tran v. Abdon Callais Offshore, LLC, No. 12-0999,
2014 WL 12538905, at *2 (E.D. La. Sept. 22, 2014) for the proposition that
tax returns should be used as evidence of earnings. Tran says that tax returns
can be used to estimate earnings, but it does not say that using tax returns to
estimate earnings is required. Kirby has thus not demonstrated that the use
of tax returns was clearly erroneous.
IV. C
ONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
conclusion that Captain Rivera was a Sieracki seaman and prevails on his
unseaworthiness claim. We also AFFIRM the court’s conclusions as to
Captain Rivera’s lack of contributory negligence, the admission of the photo
evidence, and Captain Rivera’s damages.
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