DUGAS v. DIAMOND SERVICES CORPORATION (2026)

Plaintiff brought a lawsuit under the Jones Act and general maritime law against his employer for damages from a December 2021 workplace injury. Following a bench trial, the district court found Plaintiff permanently and totally disabled as a result of the incident and determined Plaintiff and his employer were each 50% at fault for the accident. The district court awarded Plaintiff damages totaling over one million dollars plus pre- and post-judgment interest. The employer appealed, and Plaintiff filed an answer to the appeal. For the reasons that follow, we affirm in part, reverse in part, and render. In addition, we deny Plaintiff's answer to the appeal.

FACTUAL BACKGROUND

Randall Gabriel Dugas had a long history as a crane operator. He began employment with Diamond Services Corporation (“Diamond”) in October 2021 as a crane operator on the D-9, a dredge built, owned, and operated by Diamond. The D-9 and its crew, including Dugas, embarked on a project (“the Badge Oil project”) with the purpose of cleaning hurricane debris from six miles of canal (also known as a “sweep job”). The D-9 operated 24 hours a day in two shifts; Dugas worked the 12-hour night shift, and he remained on the D-9 when he was not working. Dugas was assigned two subordinates who also worked the night shift: Robert Crawford and Trevon Francis.

On December 12, 2021, around 2:30 a.m., Dugas notified the night shift crew that he was ready for them to move the dredge. After several minutes, the dredge still had not moved, so Dugas went to investigate. Dugas learned that a jacket got caught in the spud winch fan of the D-9, destroying multiple belts on the apparatus.¹ Dugas instructed the night shift crew to take the fan shroud off and cut the jacket out. Then, Dugas returned to the crane to do more dredging. By the time Dugas got back to the spud rig, all of the belts and the jacket were removed from the machine. A number of employees aboard the D-9 attempted to locate a replacement belt; although the search yielded multiple belts, none were the correct size for the spud winch motor. At that point, the company man ² on the D-9, Gary Williams (“Williams”), instructed them to “shut it down” until he could travel to shore to purchase the proper replacement belt. Dugas and others then went into the house of the D-9 to wait for breakfast.

At approximately 4:00 a.m., day shift manager and Diamond's supervisor for the Badge Oil project, Clyde Berryhill, entered the house, got some coffee, and walked outside. Crawford followed him. About 15 minutes later, Dugas heard the spud winch motor start, and he went outside to investigate. Dugas observed Crawford on the spud rig and Berryhill walking towards the back of the D-9. Assuming that Crawford started the spud winch motor at Berryhill's direction, Dugas told Crawford to stop the machine so he could adjust the belt Crawford installed. Dugas did not de-energize or lockout/tag out the machine before working on it.³ Several minutes later, Crawford, inexplicably and without warning, started the machine while Dugas’ hand was still inside of it as he continued adjusting the belt. As a result of the accident, Dugas lost the tip of his left index finger and the tip of his left middle finger was crushed.

PROCEDURAL HISTORY

On December 13, 2022, Dugas filed suit in the 16th Judicial District Court, asserting claims under the Jones Act, 46 U.S.C. § 30104, et seq., and general maritime law. Dugas alleged Diamond was liable to him for failing to comply with government and industry rules and regulations pertaining to the safety and operation of vessels such as the D-9; failing to maintain and/or properly operate the D-9; failing to adequately supervise or train employees; failing to warn of the hazardous conditions on the D-9; and failing to provide a safe workplace for its employees. Dugas alleged that Diamond's negligence and the unseaworthiness of the D-9 caused his damages, including past and future physical and mental pain and suffering, medical expenses, and lost wages.

Diamond answered Dugas’ petition and generally denied liability. Diamond also asserted numerous affirmative defenses, namely, comparative negligence and a limitation of liability pursuant to 46 U.S.C. § 30523.

A three-day bench trial was held on September 16 and 17, 2024, and October 29, 2024. At the conclusion of trial, the district court ordered the parties to submit post-trial memoranda. The district court issued written reasons for judgment on January 30, 2025. Therein, the district court found: (1) Crawford was 50% at fault for the incident and Diamond was vicariously liable for that negligence; (2) Dugas was 50% at fault for the incident because he was aware the motor was energized and nevertheless placed his hand into the fan without disconnecting the battery; (3) there was a reasonably adequate crew and adequate gear provided for the task at issue; (4) the D-9 was seaworthy; and (5) in light of the pre-existing injury to Dugas’ right hand, the injuries to his left hand as a result of this incident rendered Dugas permanently and totally disabled. The district court also declined to limit Diamond's liability for the accident pursuant to 46 U.S.C. § 30523.

The district court awarded Dugas damages for his injuries in the following amounts (adjusted for 50% due to Dugas’ own negligence):

The district court also awarded Dugas pre-judgment interest for the itemized damages and post-judgment interest until paid. The district court signed a judgment memorializing its ruling on February 14, 2025.

Diamond appealed the district court's February 14, 2025 judgment. On appeal, Diamond assigns the following errors to the district court's ruling: (1) the district court committed legal error in denying Diamond a limitation of liability; (2) the district court's award of general damages and wage loss claims based on its finding of total and permanent disability was erroneous because it was based on an incorrect application of the treating physician presumption; and (3) the district court committed legal error in holding Dugas and Crawford each 50% at fault.

Dugas filed an answer to the appeal, seeking modification of the judgment “to account for [Diamond's] independent negligence and its vicarious liability[,]” which he alleged would thereby increase the amount of fault attributed to Diamond and decrease the amount of fault attributed to him. Dugas also seeks reversal of the district court's finding related to seaworthiness and an increase in the award of damages.

STANDARD OF REVIEW

Admiralty claims may be brought in federal court pursuant to its admiralty jurisdiction or in state court under the savings to suitors clause. See 28 U.S.C. § 1333. In either case, federal substantive maritime law applies. Graham v. Offshore Specialty Fabricators, Inc., 2009-0117 (La. App. 1 Cir. 1/8/10), 3 7 So.3d 1002, 1008. State appellate courts sitting in maritime cases apply state standards of review. Bryant v. Helix Energy Solutions, Inc., 2023-1290 (La. App. 1 Cir. 12/11/24), 404 So.3d 804, 811. Louisiana appellate courts apply the manifest error–clearly wrong standard of review to facts in general maritime and Jones Act cases. Bryant, 404 So.3d at 811. To reverse a factfinder's determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. See Bryant, 404 So.3d at 811 (citing Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987)). Thus, if there is no reasonable factual basis in the record for the trier of fact's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. Bryant, 404 So.3d at 811. If the district court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Bryant, 404 So.3d at 811. Questions of law, however, are reviewed de novo, with no deference to the district court's legal conclusions. Roland v. Louisiana Department of Public Safety and Corrections, 2024-00865 (La. 5/9/25), 408 So.3d 926, 929 (per curiam).

SEAWORTHINESS

Under general maritime law, an owner of a vessel has an absolute duty to furnish a seaworthy vessel, and a breach of that duty gives rise to a claim for general damages. See Thomas v. Department of Wildlife & Fisheries, 2018-0869 (La. App. 1 Cir. 10/2/19), 289 So.3d 579, 588, writ denied, 2019-01767 (La. 1/14/20), 291 So.3d 687; Foster v. Destin Trading Corp., 96-0803 (La. 5/30/97), 700 So.2d 199, 209, on reh'g (Oct. 21, 1997). The owner's exposure for unseaworthiness is a form of liability without fault, in that liability is imposed upon the vessel owner, whether the owner is the injured seaman's employer or a third party, and without regard to his due care or negligence. Thomas, 289 So.3d at 588.

To succeed on an unseaworthiness claim, the plaintiff bears the burden of proving his injury was caused by a defective condition of the ship, its equipment, or its appurtenances. See Foster, 700 So.2d at 209. The test for determining seaworthiness is one of reasonable fitness. The vessel, its equipment, and appurtenances need not be perfect, but all must be reasonably fit for their intended use. Seaworthiness, then, is a relative term dependent on the circumstances. Foster, 700 So.2d at 209.

Members of the crew of a vessel may contribute to a vessel being unseaworthy, and there may be liability for negligent orders or for utilizing an understaffed or ill-trained crew. Costanza v. Florida Marine Transporters, LLC, 2024-0913 (La. App. 1 Cir. 4/17/25), 409 So.3d 1138, 1144, writ denied, 2025-00649 (La. 9/24/25), 417 So.3d 61, cert. denied, ––– U.S. ––––, 146 S.Ct. 1770, 224 L.Ed.2d 162 (2026). A crew that is inadequately trained, is not instructed in the use of equipment, or engages in unsafe methods of work can render the vessel unseaworthy, as can the failure of a shipowner to provide adequate equipment for the crew to complete an assigned task. Crane v. Diamond Offshore Drilling, Inc., 99-166 (La. App. 5 Cir. 9/15/99), 743 So.2d 780, 790; see also Thomas, 289 So.3d at 588. In any event, the 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. Thomas, 289 So.3d at 588.

Conversely, an isolated act of operational negligence will not suffice to create an unseaworthy condition. Vendetto v. Sonat Offshore Drilling Co., 97-3103 (La. 1/20/99), 725 So.2d 474, 481. Operational negligence must be pervasive or repeated frequently for it to rise to the level of an unseaworthy condition. Vendetto, 725 So.2d at 481. Isolated and instantaneous acts of negligence with an otherwise seaworthy vessel do not give rise to a finding of unseaworthiness unless they are of such a character or continue for such a length of time that they become related to the status of the vessel. See Vendetto, 725 So.2d at 481; Robinson v. Showa Kaiun K. K., 451 F.2d 688, 690 (5th Cir. 1971).

In Dugas’ answer to the appeal, he asserts the district court erred in finding the D-9 was seaworthy after determining the crew on the D-9 was capable and adequate and the equipment was safe.

Competent Crew

Dugas argues that the D-9 did not have a capable and adequate crew because (1) the night shift crew were all short-service employees (“SSE”)⁴ who had not received required training in electrical-related safety work practices; and (2) Crawford was unqualified for the job.

At trial, Dugas offered the testimony of Heidi Tardo, who was Diamond's health, safety, and environment manager at the time of the accident and was responsible for all written programs, policies, and procedures, including training. Tardo testified regarding safety training received by all Diamond employees through either in-person orientation or watching videos, which includes training related to OSHA compliance, first aid, CPR, and Diamond's safety and environmental management system (“SEMS”) manual. Tardo testified that employees in the barge department are required to complete additional, job-specific safety training including certified rigger safety training and basic water survival training. Tardo also confirmed Dugas and Crawford received all required safety training. Notably, lockout/tag out training is part of OSHA core compliance training, which both Dugas and Crawford completed.

When questioned about energy control procedures for the spud winch, Tardo stated that she was unsure if Diamond had a written procedure, although she agreed lockout/tag out standards require one. Tardo stated that Berryhill and Traye Brown, another employee aboard the D-9 on the date of the accident, were trained in locking out/tagging out the spud winch. She also identified Berryhill, Brown, and Dugas as “qualified person[s]” to work on or near energized electrical circuits and equipment. Tardo further explained that Diamond policy requires a qualified person to de-energize equipment, but she was unaware if there was documentation stating that Dugas was qualified.⁵ When asked if Dugas was trained to de-energize equipment, Tardo answered:

He was trained by [Berryhill] or [Brown] in reference to their particular barge, but he also has experience which yields him training․ Diamond made him familiar with the barge he was working on and his years of experience give him equivalent on why they gave him the competent person position.

Berryhill likewise testified that Dugas came to Diamond with knowledge of how to run a crane and described him as a “capable crane operator.” However, he also stated that he was unaware of anyone on the D-9 authorized to work on or near electric circuits.

Crawford was hired as a barge worker (also known as an oiler). Tardo stated that when Crawford was hired, he was “green,” which is a term used in the industry to indicate the employee needs on-the-job training. Berryhill confirmed there was a lot of on-the-job training for new employees and explained training consisted of safety meetings and attending classes. He stated Crawford had mechanical knowledge when he came aboard the D-9 (i.e., he knew how to change filters on the motor, do minor repairs, etc.), but Berryhill taught Crawford how to run the spuds. Berryhill stated, “Once I taught him how to run the spud unit and change cables[,] he was competent for anything he needed to do.”

Dugas admitted Diamond showed videos and talked about safety and how their operations worked, but he also testified that he did not receive any specific training from Diamond on lockout/tag out or de-energization of the spud winch. Berryhill also confirmed he was never told of a specific lockout/tag out procedure for the spud winch. Nevertheless, Berryhill testified that anyone working on the spud winch can unhook the battery without any special training, and he confirmed all employees are trained on lockout/tag out procedures. In fact, Dugas explicitly stated during his trial testimony that he knew how to de-energize the spud winch. Berryhill testified that Dugas and Crawford “were capable of doing what they were supposed to do[.]”

In addition, Tardo explained the SSE program in depth. She stated that all newly hired employees are classified as SSEs and that both Dugas and Crawford were SSEs at the time of the accident. According to Diamond's employee manual, all SSEs are assigned a mentor. The mentor's purpose is to assist in training by managing the SSEs through observation during individual job task training until the SSE sufficiently demonstrates the capability of safely performing each task correctly. Tardo testified that Berryhill was assigned as Dugas’ mentor and that Dugas was assigned as Crawford's mentor.⁶ Tardo further stated that although Dugas was technically classified as an SSE, his experience and knowledge “held weight” when assigning crews, which is further demonstrated by the fact that he was the supervisor on his shift.

Dugas also offered the testimony of his expert, Jim Quackenbos. Quackenbos reviewed Diamond's policies and procedures manual and opined that the safety program was well-suited to maintain safety aboard the vessel. Regarding training, Quackenbos specifically stated that he assumed training did not occur because he was not provided with any training certificates reflecting compliance.

The district court, relying on Berryhill's testimony, concluded the D-9 had a capable and adequate crew. Dugas testified that he was OSHA trained, and Tardo confirmed that Dugas and Crawford received OSHA training, which consisted of training on lockout/tag out procedures. Dugas admitted that he knew how to de-energize the spud winch. Accordingly, the evidence supports a finding that Dugas and Crawford received adequate training.

To the extent Dugas contends three SSEs should not have been on duty at the same time, we note there was no absolute prohibition against this. Although the Diamond employee manual states that, normally, SSEs will not exceed 50% of any crew, the manual also says that supervision of SSEs must continue until the SSE sufficiently demonstrates the capability of safely performing each task correctly. Berryhill specifically testified that both Dugas and Crawford “were capable of doing what they were supposed to do.” After reviewing the record in its entirety, we find no error in the district court's conclusion that the D-9 was equipped with a capable and adequate crew.

Necessary Equipment

In addition, Dugas argues the equipment on the D-9 was not safe and suitable for its intended use. The unsafe conditions, according to Dugas’ expert, were the lack of necessary safety equipment on the spud winch including guards to prevent injury and/or malfunction, correct replacement fan belts, and lockout/tag out devices to prevent the on/off button from being pushed during maintenance and repairs. Dugas argues he would not have been injured if any of these pieces of equipment were present.

Dugas also argues the configuration of the battery used to start the spud winch created an unsafe method of work by virtue of the battery also being connected to the generators that powered the D-9. Quackenbos explained that the spud winch on the D-9 is powered by a battery to which it is connected with wires. He opined this is problematic because the generators, which are also connected to the same battery, remain running, meaning the wire is “hot” (i.e., there is still a charge going from the generators to the battery) when the spud winch is being disconnected. Quackenbos opined it was unsafe to disconnect the spud winch from its energy source while it was configured in such a manner; he explained that usually each generator and the spud winch would have its own battery to avoid this issue. Quackenbos stated the only safe way to disconnect the spud winch from its energy source is to “kill” the generators to fully de-energize the spud winch, which would cause the D-9 to go “black.” According to Quackenbos, simply disconnecting the spud winch from the battery without going black presents the danger of shock, which could potentially be fatal. Rather than going black, Quackenbos recommended installing a lock box over start buttons and a disconnect mechanism (like a breaker).

The district court determined the jacket getting caught in the spud winch fan caused the fan belt to break, not a lack of maintenance that Diamond should have discovered. Therefore, the district court concluded that the spud winch, if not for the jacket, was suitable for its intended use. Dugas, however, argues this conclusion “ignores” the lack of safety devices on the spud winch, such as a guard on the fan, as well as the unsafe electrical configuration. Therefore, the issue we must decide, stated more succinctly, is whether a lack of safety features renders the spud winch, and hence the D-9 as a whole, unfit for its intended use.

In Foster, the Louisiana Supreme Court considered the plaintiff's assertion that the defendant breached its duty of seaworthiness by requiring him to use wooden boards to cross between the tank tops of barges, rather than providing an adequate walkway. Foster, 700 So.2d at 209. The wooden boards were provided by the employer for use in supporting the weight of discharge hoses on the barges—a purpose other than for use as walkways. Foster, 700 So.2d at 209. The court did not find the barge to be unseaworthy. Foster, 700 So.2d at 210. The court explained that a condition of unseaworthiness exists only if a piece of equipment or an appurtenance is not reasonably fit for its intended use; since the plaintiff's use of the wooden boards was outside the scope of its intended use, his claim of unseaworthiness failed. Foster, 700 So.2d at 210.

In reaching this conclusion, the Foster court cited Jordan v. United States Lines, Inc., 738 F.2d 48 (1st Cir. 1984). In that case, the U.S. First Circuit decided that an automatic valve that did not close completely did not constitute unseaworthiness when steam and hot water escaped from it and injured a worker. Jordan, 738 F.2d at 50. The Jordan court determined the intended purpose was not to safeguard workers from escaping steam but to maintain pressure inside the ship's boiler, and the automatic valve did not have to close completely to perform this function. Foster, 700 So.2d at 209 (citing Jordan, 73 8 F.2d at 49-50).

As noted in footnote 1, supra, the spud winch allows the “spuds,” which act like anchors on the D-9, to raise so the D-9 can be moved. There is no evidence that, prior to the jacket getting stuck in the motor in the early morning hours of December 12, 2021, the spud winch was inoperable or could not act like an anchor on the D-9 or raise to move the D-9. Therefore, we find neither the alleged lack of safeguards on the D-9, nor the unusual battery configuration renders the spud winch unreasonably fit for its intended use and conclude the district court did not err in finding the D-9 was seaworthy.

JONES ACT NEGLIGENCE

Jones Act negligence is a distinct cause of action from unseaworthiness, with a lesser burden of causation. See Costanza, 409 So.3d at 1144-45. The Jones Act provides a seaman a cause of action for injuries sustained in the course and scope of employment as a result of his employer's negligence.⁷ See 46 U.S.C. § 30104; Costanza, 409 So.3d at 1144. Such negligence may arise in many ways, including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, failure to inspect the vessel for hazards, or any other breach of the duty of care. Foster, 700 So.2d at 204-05; Bryant, 404 So.3d at 811. The duty of care owed by an employer under the Jones Act is that of ordinary prudence, i.e., the duty to take reasonable care under the circumstances. Bryant, 404 So.3d at 811. The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause, however slight, of his injuries. See Foster, 700 So.2d at 208; Bryant, 404 So.3d at 811; see also Jones v. United States, 936 F.3d 318, 322 (5th Cir. 2019).

A seaman is also obligated under the Jones Act to act with ordinary prudence under the circumstances. Bryant, 404 So.3d at 811. The circumstances of a seaman's employment include not only his reliance on his employer to provide a safe work environment but also his own experience, training, or education. The reasonable person standard in a Jones Act negligence action becomes that of the reasonable seaman in like circumstances. Bryant, 404 So.3d at 811. A seaman's negligence, however, will not defeat his claim under the Jones Act but may be considered as comparative negligence to mitigate damages in proportion to the degree of his negligence. Foster, 700 So.2d at 204.

The district court's judgment states only that it found both Diamond and Dugas negligent and that their respective negligence was the legal cause of Dugas’ injuries. However, the reasons for judgment explain, in pertinent part, “Both Diamond Service[s] Corp. (through Robert Crawford) and Randall Dugas are negligent for this injury.” Neither the reasons for judgment nor the judgment itself contains any language suggesting the district court determined Diamond was independently negligent for the accident.⁸

In his answer to the appeal, Dugas asserts the judgment should be modified to account for both Diamond's independent negligence and its vicarious liability for Crawford's actions. Dugas claims the accident would not have happened if (1) the spud winch engine was protected from rotating components; (2) the D-9 had a correct replacement belt on board; (3) a lock box was over the on/off button; or (4) the battery to the spud winch was properly configured such that Dugas would be able to safely disconnect the battery from the engine. In addition, Dugas asserts Diamond's negligent hiring practices led to Crawford's employment with Diamond, which also contributed to the accident.

Dugas’ expert, Quackenbos, prepared a report in which he identified several conditions he believed led to Dugas’ injury, including jacket entanglement, the broken belt on the spud winch, inability to effectively lockout/tag out the spud winch, and Crawford's decision to start the spud winch motor. Quackenbos also testified at trial. He stated that he personally inspected the D-9 and noted that “the vessel did not reflect compliance with some of the safety systems [he] reviewed.” Most significantly, Quackenbos stated that there were three pieces of critical machinery—two generators and the spud winch motor—that were all wired to one starting battery. As previously noted, Quackenbos explained this is problematic because the connecting wire is “hot” when the spud winch is being disconnected. He also observed there was no way to lockout/tag out the spud winch, although there were several potential methods of doing so, including installing a lock box over the on/off button. Therefore, Quackenbos opined the only safe way to work on the spud winch would require the entire D-9 to go black. Quackenbos opined that, had the spud winch been locked out/tagged out, Dugas’ injuries would have been avoided.

As to employee qualifications, Quackenbos stated that a spud operator should be qualified as a rigger, and Crawford's personnel file revealed that he was not. Quackenbos also stated that it is “fair” to state that Crawford's presence on the D-9 created an unsafe work environment because he was unqualified for his position. Quackenbos opined that there should have been a specific lockout/tag out procedure for the spud unit and that the person authorized to do so should have been trained to deal with a live conductor. He agreed that the failure to implement a lockout/tag out program created an unreasonably unsafe work environment.

Lastly, Quackenbos discussed several causes for Dugas’ injury, which he believed could have been easily averted: the fan belt on the spud winch was unguarded, which caused the jacket to become entangled and break the fan belt; loose fitting clothing or other objects were near the spud winch motor, risking entanglement; a JSA ⁹ was not completed to make those onboard aware of the risks associated with repairing the spud winch; and correct replacement belts were unavailable.

The district court expressly rejected Quackenbos’ testimony regarding the allegedly unsafe configuration of the battery and instead relied on the testimony of Brown, who stated that he has, on many occasions, disconnected the spud winch from the battery and that there was no need to de-energize the spud winch by shutting down the electric generators. The district court reasoned, “Quackenbos’ testimony is an opinion, but Traye Brown speaks of his own work experience.” Therefore, relying on Brown's testimony, the district court found that Dugas needed only to disconnect the battery cables from the battery terminals to de-power the spud winch. This factual finding is adequately supported by the record.

Furthermore, we do not find Diamond's failure to train employees on electrical safety constitutes negligence under the specific facts of this case. In Vendetto, 725 So.2d 474, the Louisiana Supreme Court was faced with similar circumstances and came to the same conclusion. In that case, the plaintiff was ordered to assist with a Sonat automated maintenance (“SAM”) procedure, which required the lowering of tools and chain falls approximately 30 feet. This was the first time the plaintiff was required to perform the SAM procedure in any capacity other than as a helper. Vendetto, 725 So.2d at 475. The plaintiff stated that he learned the SAM procedure by watching and assisting others; using that procedure, he began to lower the tools and chain falls. Vendetto, 725 So.2d at 475-76. While he was lowering a chain fall, the plaintiff felt a pain in his neck but continued working. He reported the injury to medical personnel on board the next day. Vendetto, 725 So.2d at 476.

The plaintiff sued his employer (“Sonat”), alleging negligence in failing to provide proper training in safe methods of lifting and lowering tools and in failing to ensure that supervisory personnel required employees to utilize safe and proper procedures in performing the SAM procedure.¹⁰ Vendetto, 725 So.2d at 476. The district court agreed Sonat was negligent due to its failure to provide a safe workplace by not ensuring that proper safety measures were being enforced by the supervisors on board and failure to make sure the crew members were properly supervised. Vendetto, 725 So.2d at 477. In particular, the district court observed the plaintiff was not properly trained in the safe method for lowering and lifting tools but simply followed the example of those he watched and assisted. Vendetto, 725 So.2d at 477. The appellate court reversed. Vendetto, 725 So.2d at 477.

The Louisiana Supreme Court granted certiorari. In its ruling, the court explained that, absent a showing that the method utilized in performing the SAM procedure was unsafe, there could be no finding of negligence by Sonat on which to assign liability under the Jones Act. Vendetto, 725 So.2d at 479. The court determined that the record “simply [did] not support a finding” that the method of performing the SAM procedure utilized by the plaintiff was unsafe or presented an unreasonable risk of harm. Vendetto, 725 So.2d at 479. In addition, the court declared that “mere failure to instruct and supervise does not equate to Jones Act negligence when the seaman is fully knowledgeable of the available safe method.” Vendetto, 725 So.2d at 480 (citing Grover v. American President Lines, Inc., 1995 A.M.C. 2105, 1995 WL 510329, *2 (N.D. Cal. 1995) (holding the plaintiff failed to prove his employer was negligent in failing to remind him of what “he already knew or should have known”)). The court noted (1) testimony from the plaintiff's supervisor that it is a matter of “common knowledge” and “common sense” and not a matter requiring special training; and (2) testimony from the plaintiff himself regarding his years of experience working offshore and performing “these types of elementary tasks” and that he would not have done anything differently if he had been instructed further or provided with additional supervision. Vendetto, 725 So.2d at 480-81. The Vendetto court ultimately concluded the plaintiff failed to present any evidence to support a finding that Sonat's failure to instruct him on proper lifting and lowering procedures, of which he admitted he had knowledge, was even a cause, however slight, of his injury. Vendetto, 725 So.2d at 480.

Like in Vendetto, the record in the case before us establishes Diamond did not offer training to Dugas related to the safe handling of electrically powered equipment. Nevertheless, Dugas had extensive experience as a crane operator and stated that he knew how to disconnect the spud winch from the battery source yet failed to do so. Dugas also admitted that the only things that would have prevented his injury were disconnecting the battery and not placing his hands in a “pinch point” of energized equipment. Additionally, both Berryhill and Brown testified that they safely disconnected the spud winch from the battery source on numerous occasions.

We find Diamond's failure to instruct and supervise does not equate to Jones Act negligence in these particular circumstances since it is well-established by the record that Dugas was fully knowledgeable on the available methods to avoid this accident. In addition, Dugas’ repeated testimony that no one instructed him to disconnect the battery while working on the spud winch is not persuasive, as an employer is not negligent in failing to remind its employee of what he already knew or should have known. See Grover, 1995 WL 510329 at *2. Accordingly, we find no manifest error in this regard.

As to the other alleged acts of negligence, the same reasoning applies to preclude liability for Diamond individually. Dugas admitted that the accident happened because he failed to de-energize the equipment and knowingly put his fingers in a pinch point. Despite his undisputed experience, Dugas also testified that he continued to work on the spud winch although he knew the belt installed on the spud winch motor was the wrong belt; was told by Williams to “shut it down” and “assumed” Berryhill disregarded that order; and attempted to fix the spud winch motor without completing a JSA. In addition, for reasons already discussed, we find Crawford's employment with Diamond, and thus Dugas’ injury, was not caused by negligent hiring practices. Accordingly, we find no manifest error in the district court's rejection of Dugas’ claim of independent negligence on behalf of Diamond.

DAMAGES AWARD

In its reasons for judgment, the district court stated that it did “not accept the argument of Diamond ․ of malingering by ․ Dugas”; noted that “[t]he diagnosis and opinions of a treating physician are entitled to more weight than those of a doctor for diagnosis purposes”; and concluded that the injury to Dugas’ left hand rendered him permanently disabled and unable to work in any capacity. Then, the district court, accepting the life-care plan proposed by Dugas, awarded Dugas $1,175,000.00 in general damages (reduced by 50% for Dugas’ own negligence).

On appeal, Diamond seeks modification of the district court's damages award.¹¹ Diamond argues that the district court erroneously relied on the treating physician presumption to find Dugas was totally and permanently disabled, which in turn led to an incorrect conclusion on general damages. According to Diamond, Dugas’ treating physician, Dr. Henderson, agreed with the most significant findings of the AMO physician,¹² Dr. George. Nevertheless, the district court explicitly stated it gave more weight to Dr. Henderson's findings (from two years before trial) than to Dr. George's findings (from shortly before trial).

Diamond also contests the amount of wages Dugas was awarded. Diamond argues that Dugas’ economist applied what an ordinary crane operator would make rather than applying what Dugas actually earned and also erroneously completed his wage calculation assuming Dugas could not return to work.

Dr. Henderson's Testimony

Dugas began treating with Dr. Henderson shortly after the accident. Dr. Henderson performed surgery on Dugas’ injured hand and saw Dugas at several follow-up appointments. Dr. Henderson last saw Dugas on December 5, 2022, about a year after the accident and more than a year before trial. Dr. Henderson found that Dugas’ complaints of pain were severe and not improving.

While treating Dugas, Dr. Henderson performed a series of tests to evaluate the range of motion in Dugas’ hand. Dr. Henderson performed a grip strength test at Dugas’ first visit on January 10, 2022, approximately one month after the accident. On that date, Dugas’ grip strength was 26 pounds in his injured hand and 39 pounds in his other hand. To illustrate, Dr. Henderson explained that a man of Dugas’ size would normally have a grip strength of 100 to 120 pounds in each hand. Dr. Henderson also performed a pinch test, which is used to determine how hard Dugas could pinch his thumb to each finger, at Dugas’ first visit. The results of the pinch test revealed each finger in Dugas’ injured hand was severely limited. Dr. Henderson also noted that, in his first month of treating Dugas, Dugas exhibited a severe inability to flex the fingers of his left hand mostly due to pain; struggled to make a fist; and reported his pain level was a 10 out of 10, with numbness and pain radiating up his arm. Dr. Henderson characterized Dugas’ injury as severe.

Although Dugas showed some improvement over the course of the next year, Dr. Henderson maintained his position that Dugas is unable to work due to his injury. Dr. Henderson limited Dugas to “very light activities only.” Following Dugas’ final visit with Dr. Henderson on December 5, 2022, Dr. Henderson noted Dugas was still exhibiting weakness—his grip strength in his injured hand was now only 17 pounds—and experiencing severe pain and numbness. Dr. Henderson noted that he did not notice any drastic changes, either positive or negative; Dugas was still unable to work; and Dugas likely reached the point of maximum medical improvement. Dr. Henderson also testified that he did not believe Dugas was exaggerating his complaints, pain, or limitations. Dr. Henderson stated that he did not believe Dugas was manipulating any of the tests performed to evaluate his progress nor did he believe Dugas was capable of doing so.

Dr. Henderson opined Dugas will remain unable to work and is totally and permanently disabled as a result of the injury he sustained on the D-9. Although he admitted Dugas would be able to perform “inside desk work,” Dr. Henderson stated that Dugas’ lack of education would prevent him from doing so. Dr. Henderson also stated that he would not have cleared Dugas to work as a crane operator even before the accident in light of a pre-existing injury to his right hand. Dr. Henderson opined that someone with injures like Dugas’ would have difficulty doing “almost everything,” including dressing, shaving, and buttoning his shirt, and that he is not surprised by the level of pain Dugas is experiencing.

Dr. George's Testimony

Dugas submitted to an AMO conducted by Dr. George and his team in May 2024. Dr. George's findings were quite different from Dr. Henderson's findings. Dr. George's testing revealed Dugas’ grip strength in his right hand was 52 pounds, double what it was when he tested with Dr. Henderson, and 54 pounds in his injured hand. Dr. George also performed a pinch test, which revealed Dugas’ pinch strength was two pounds in his left hand and which was noted by Dr. George to be “tremendously low.” Diamond offered Dr. George as an expert in hand and upper extremity surgery at trial. When asked to medically explain the difference in Dr. Henderson's testing results, Dr. George stated, “I can't explain it. I believe [it's] symptom magnification.”

Dr. George also performed additional testing not performed by Dr. Henderson, including a rapid exchange test. To conduct a rapid exchange test, a meter is moved back and forth across the patient's hand as quickly as possible, and the patient is asked to act quickly. A rapid exchange test is used to identify malingering because it renders the patient physically unable to recruit all muscles. Because the patient does not have time to squeeze fully, the rapid exchange test generally results in lower grip strength. For Dugas, the results were the opposite: Dugas could squeeze with 61 pounds of force in his injured left hand versus 47 pounds in his right, which Dr. George stated is “consistent with symptom magnification and low effort.” Dr. George further explained that based on the rapid exchange test, Dugas should have a sustained grip strength of around 80 pounds. Dr. George also performed confusion testing, another way to identify malingering, which consisted of touching Dugas’ finger when he was expecting it and then touching it again when he was distracted. Dr. George noted Dugas would complain of pain when he was paying attention but not when he was distracted. Again, Dr. George concluded this behavior is consistent with symptom magnification.

Dr. George ultimately concluded that Dugas could return to medium strength work and possibly even heavy work despite probable fine motor issues associated with a fingertip injury. Dr. George explicitly stated that Dugas is capable of working on a crane with his injuries.

Dr. Henderson was asked about Dr. George's findings during his trial deposition and stated that he found Dr. George's findings “surprising.” When asked about the rapid exchange test performed by Dr. George, Dr. Henderson agreed that the rapid exchange test is a valid and valuable test and stated that it was “probably a pretty accurate test.” Dr. Henderson was also asked if he could medically explain why Dugas’ grip strength tripled over the course of a year and a half, to which he responded, “No.” Dr. Henderson also stated, “About the only thing I disagree with Dr. George [on] is when he said [Dugas] could go back to work in medium duty.”

General Damages

A factfinder is free to accept or reject in whole or in part any opinion expressed by an expert. The effect and weight to be given to expert testimony is within the factfinder's broad discretion. Costanza, 409 So.3d at 1147-48. The factfinder's choice to accept or reject an expert's opinions will not be disturbed on appeal absent a finding that the factfinder abused its broad discretion. Costanza, 409 So.3d at 1148.

Louisiana's jurisprudence provides that a treating physician's opinion is given more weight than a non-treating physician. See Nitcher v. Northshore Regional Medical Center, 2011-1761 (La. App. 1 Cir. 5/2/12), 92 So.3d 1001, 1009, writ denied, 2012-1230 (La. 9/21/12), 98 So.3d 342. However, a treating physician's testimony is not irrefutable, as the trier of fact is required to weigh the testimony of all medical witnesses. Costanza, 409 So.3d at 1148. The weight to be given to the testimony of experts is largely dependent upon their qualifications and the facts upon which their opinions are based, and the district court is not bound to accept the testimony of an expert whose testimony is presumptively given more weight if he finds the opinion is less credible than that of other experts. Costanza, 409 So.3d at 1148. Therefore, the proper inquiry in this case is whether, based on the totality of the record, the district court was manifestly erroneous in accepting the testimony of Dr. Henderson over that of Dr. George. See Costanza, 409 So.3d at 1148. We find that it was not.

Dugas’ trial testimony, as well as the trial testimony of his two daughters,¹³ was consistent with Dr. Henderson's findings—that since the accident on the D-9, Dugas is unable to complete basic life functions such as opening a water bottle or unzipping his pants. Dugas demonstrated some of his limitations for the court during his trial testimony. He also testified that he heavily relies on his daughters to perform basic life functions such as cooking, cutting the grass, and cleaning the house.

Dugas was 61 years of age at the time of trial. He did not finish eighth grade and never received his GED. His job history consists of two years at a grocery store right after he dropped out of school and over 20 years of operating cranes. Dugas admitted that his work skills primarily involve working with his hands. Dugas also testified at length regarding a pre-existing injury to his right hand, which he sustained in the early 1990s and required hospitalization and surgeries. As a result of that injury, he became left-hand dominant, and now that his left hand is also injured, he is unable to work.

The testimony of Dugas’ treating neurologist, Dr. Karim, was also introduced into evidence. Dr. Karim diagnosed Dugas with mild to moderate neuropathy (carpal tunnel); left C5, C6, C7 radiculopathy (compressed or irritated nerves) without denervation (evidence of permanent or significant nerve injury); and most likely reflex sympathetic dystrophy (also known as complex regional pain syndrome), which is a chronic pain syndrome. He opined that these findings were related to Dugas’ work accident. Later, Dr. Karim additionally noted Dugas has bulging disks from C2 to C7 with some herniation, as shown on an MRI.

When asked about Dugas’ exhibited weakness, Dr. Karim explained that it is difficult to tell why someone is weak, i.e., whether it is due to pain or due to actual muscle weakness. Nevertheless, Dr. Karim stated that the test for nerve damage cannot be manipulated. Dr. Karim opined that the symptoms exhibited by Dugas are consistent with his injury and that he did not believe Dugas was exaggerating his complaints. Dr. Karim also opined that Dugas’ injured left hand is permanently impaired and stated that even typing would cause too much pain based on Dugas’ reported pain level. Moreover, Dr. George agreed that his testing results were still significantly lower than what they should be for someone of Dugas’ size.

The district court considered all of this evidence and had the opportunity to observe Dugas, the variations in his demeanor, and the tone of his voice. Ultimately, it chose to accept Dr. Henderson's expert testimony and conclusion that Dugas is permanently and totally disabled. We find this determination is amply supported by other evidence in the record and find no manifest error in the district court's determination that Dugas is unable to return to work. Diamond did not request a modification of general damages if the district court's finding that Dugas was permanently and totally disabled was not reversed.

Past and Future Loss of Wages

Diamond also contests the amount of wages Dugas was awarded. Dugas’ economist, G. Rudolph Rice, Ph.D. (“Dr. Rice”), applied what an ordinary crane operator would make when calculating Dugas’ past and future loss earnings at the amount of $549,673.00. Diamond did not offer any evidence to directly rebut Dr. Rice's calculations.

In accordance with Dr. Rice's calculations, the district court awarded Dugas with past loss of wages in the amount of $209,884.00 and future loss of wages in the amount of $339,789.00 for a total of $549,673.00. Diamond asserts the district court's loss of wages award should be modified because (1) Dugas was only working for Diamond for two months prior to the accident; (2) the Badge Oil project was a “spot job,” meaning there was no guarantee of permanent employment at the conclusion of the Badge Oil project, which was only three days after the accident; and (3) according to Dr. Henderson, Dugas should not have worked on a crane before the accident due to the pre-existing injury to his right hand.

First, it is insignificant that Dugas was only working for Diamond two months prior to the accident. Regardless, he is entitled to past loss of wages for the time he was unable to work between the accident and trial.¹⁴ See Brown v. City of Madisonville, 2007-2104 (La. App. 1 Cir. 11/24/08), 5 So.3d 874, 888, writ denied, 2008-2987 (La. 2/20/09), 1 So.3d 498. Second, although the Badge Oil project was a “spot job” that ended three days after the accident, but for the accident, Dugas potentially could have secured a job as a crane operator with another employer after the Badge Oil project was completed. While we acknowledge Dr. Henderson's opinion that Dugas should not have been working as a crane operator even prior to the accident, it is notable that several Diamond employees, including Tardo and Berryhill, testified that Dugas was an excellent crane operator. Therefore, we do not find the district court's decision to accept Dr. Rice's calculations manifestly erroneous, as there is adequate support for its decision in the record.

ALLOCATION OF FAULT

Both parties contest the district court's 50/50 allocation of fault. Diamond suggests fault should be assigned 80% to Dugas, rather than the 50% assigned by the district court because “[w]hen a supervisor and a subordinate make the same mistake, the supervisor is more responsible for the mistake.” Dugas, on the other hand, argues that the district court should have assigned a portion of the fault to Diamond for its own independent negligence in addition to Crawford's negligence, and as a result, those combined shares should be much higher than the portion of fault assigned to Dugas. Dugas suggests that his fault should be no more than 10% and that Diamond should be assigned the remaining 90% for unseaworthiness, Diamond's independent negligence, and Crawford's negligence.

A plaintiff's own fault will proportionately reduce his recovery for injuries caused by negligence or unseaworthiness. Thomas, 289 So.3d at 588. To prove comparative negligence on the part of the plaintiff, the defendant has to show that the plaintiff was contributorily negligent and that such negligence was a proximate cause of the resulting injury. Bryant, 404 So.3d at 812.

Like all factual findings, the standard of review of comparative fault allocations is that of manifest error. Moore v. Murphy Oil USA, Inc., 2015-0096 (La. App. 1 Cir. 12/23/15), 186 So.3d 135, 150, writ denied, 2016-00444 (La. 5/20/16), 191 So.3d 1066. A number of factors are considered in determining the portion of fault attributable to the parties, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Moore, 186 So.3d at 150. After reviewing the record in its entirety and considering the above-outlined factors used in determining the portion of fault attributable to the parties, we find the district court was not clearly wrong in finding Diamond (through Crawford) and Dugas were equally at fault for the accident.¹⁵

LIMITATION OF LIABILITY

Pursuant to 46 U.S.C. § 30523(a), the owner of a vessel may limit its liability for maritime casualties to the value of the vessel and pending freight. Under this statute, a party is entitled to limitation only if it is without privity or knowledge of the cause of the loss. SCF Waxler Marine, L.L.C. v. Aris T M/V, 24 F.4th 458, 472 (5th Cir. 2022). Knowledge, when the shipowner is a corporation, is judged not only by what the corporation's managing officers actually knew, but also by what they should have known. That is, if the unseaworthy condition could have been discovered through the exercise of reasonable diligence, a corporate owner is deemed to have knowledge of it and cannot limit its liability. SCF Waxler Marine, 24 F.4th at 472.

Once an injured seaman establishes that negligence or unseaworthiness caused his injuries, the burden shifts to the vessel owner to establish lack of privity or knowledge of the dangerous condition that caused the injury. See Graham, 37 So.3d at 1011 (quoting Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991)). Generally, “a finding of negligence indicates complicity in the cause of the accident sufficient to make limitation unavailable.” See In re Omega Protein, 548 F.3d 361, 371 (5th Cir. 2008). Nonetheless, even if negligence caused the seaman's injury, an owner can still limit its liability. See Graham, 37 So.3d at 1011. “First, where the acts of negligence result not from any lack of competence on the part of the crew, but rather are merely ‘mistakes of navigation,’ the shipowner is not precluded from the limitation of liability.”¹⁶ Brister, 946 F.2d at 356. Second, whether a corporation has privity or knowledge of a negligent act may be determined on the basis of whether the negligent employee is sufficiently high in the corporate hierarchy to make his awareness that of the corporation. Brister, 946 F.2d at 356. The question of whether Diamond lacked privity or knowledge, and thus may limit its liability, is a fact-specific inquiry subject to reversal only if clearly erroneous. See Graham, 37 So.3d at 1011 (quoting Brister, 946 F.2d at 355-56).

Diamond does not contest the district court's finding that Crawford's negligence was a cause of the accident or that it is vicariously liable for such negligence. Additionally, it is clear from the record that Crawford did not occupy a high enough position in Diamond's organization so that his negligence is imputed to it.¹⁷ Therefore, the only issue for our consideration is whether Crawford's negligence in turning on the spud winch—the only negligence the district court found on Diamond's part—is imputable to Diamond as a lack of competence on the part of the crew, which the owner should have known, versus a mere “mistake of navigation” or other negligence, which the owner could not have known about. See SCF Waxler Marine, 24 F.4th at 473; Petition of Kristie Leigh Enterprises, Inc., 72 F.3d 479, 481 (5th Cir. 1996). If it is the latter, Diamond is entitled to limit its liability.

An employee's negligence at sea, without more, is not enough to deny limitation. In re Kristie Leigh Enters., 72 F.3d at 482. Thus, courts may not deny a limitation of liability for a master's navigational errors at sea when the owner has exercised reasonable care in selecting the master. See Continental Oil Co. v. Bonanza Corp., 706 F.2d 1365, 1377 n.15 (5th Cir. 1983) (en banc). Similarly, courts have held that for purposes of limitation of liability, privity or knowledge will exist if the owner fails to train its crew or fails to make appropriate inquiries as to the crew's competence. See In re Omega Protein, 548 F.3d at 374; Hercules Carriers, Inc. v. Claimant State of Fla., Dept. of Transp., 768 F.2d 1558, 1577 (11th Cir. 1985); Southern Oil of Louisiana LLC v. Alliance Offshore, LLC, No. CV 21-2337, 2024 WL 3873940, *22 (E.D. La. Aug. 20, 2024) (unpublished).

For example, in In re Kristie Leigh Enters., Captain Rogers captained a tugboat through a waterway while pushing three empty barges. In re Kristie Leigh Enters., 72 F.3d at 480. The captain spotted two fishing boats ahead, and he estimated that he would miss them by five or six feet. In re Kristie Leigh Enters., 72 F.3d at 480. The captain did not post a lookout and did not signal a warning with his horn; the tow of M/V Kristie Leigh struck the fishing boats minutes later. In re Kristie Leigh Enters., 72 F.3d at 480.

The owner of the tugboat, Gateway, sought a limitation of liability, but the district court denied limitation. It charged Gateway with constructive knowledge of the captain's negligence on grounds that neither its president nor its port captain possessed enough expertise to determine whether the ships’ masters they employed acted reasonably. In re Kristie Leigh Enters., 72 F.3d at 480-81. The court also found Gateway made no efforts to ensure compliance with the Inland Navigational Rules by its captains, did not hold safety meetings, failed to enact safety policies, and did not make any inquiry into their captains’ operational decisions. Therefore, the district court concluded Gateway bore “complicity in the fault” for the captain's negligence and was not entitled to a limitation of liability. In re Kristie Leigh Enters., 72 F.3d at 481.

Like Diamond herein, Gateway did not contest on appeal the district court's finding that its employee's negligence caused the accident, and it accepted the district court's determination that the captain did not occupy a high enough position in Gateway's organization so that the captain's negligence was imputed to it. See In re Kristie Leigh Enters., 72 F.3d at 481. Accordingly, the only issue the Fifth Circuit considered on appeal was whether the district court erred in concluding Gateway could not limit its liability because it failed to exercise reasonable diligence in discovering similar navigational errors the captain made earlier and because it did not provide better training and supervision. In re Kristie Leigh Enters., 72 F.3d at 481. The Fifth Circuit noted the district court did not find the captain incompetent nor did the record support such a finding. The evidence showed that the captain had a clean record absent the accident at issue, and no evidence suggested that Gateway knew or should have known the captain previously committed navigational errors. In re Kristie Leigh Enters., 72 F.3d at 482. Therefore, the court concluded, “Without knowledge by Gateway that its captain was inadequate or unsafe[,] the record does not support a conclusion that Captain Rogers was incompetent and needed additional training or instruction in performing his duties.” In re Kristie Leigh Enters., 72 F.3d at 482. The Fifth Circuit reversed the district court's judgment denying Gateway a limitation of liability and remanded the matter for further proceedings. In re Kristie Leigh Enters., 72 F.3d at 482.

The Fifth Circuit later distinguished In re Kristie Leigh Enters in Trico Marine Assets Inc. v. Diamond B Marine Services Inc., 332 F.3d 779 (5th Cir. 2003). In that case, the district court determined the shipowner had privity and knowledge of the captain's negligence and participated in the negligence that caused a collision because the shipowner failed to train the captain to use radar, to evaluate the captain's competence, to inspect the vessel logs, to employ a safety manager, and to provide safety training or safety manuals. Trico Marine Assets, 332 F.3d at 790. The district court further found the shipowner knew the vessel was operating in less-than-ideal weather conditions and would continue to do so, yet employed a captain without the proper qualifications and without adequate policies or procedures to guide him. The Fifth Circuit affirmed. Trico Marine Assets, 332 F.3d at 790. After acknowledging that a vessel owner cannot be denied limitation of liability based on mere errors in navigation or other negligence by master or crew, the court noted the case “present[ed] far more than mere navigational errors.” Specifically, the court stated that the owner sent the captain out even through it was aware that the captain had trouble hearing the radio. The court also found the evidence suggested the captain did not have sufficient hands-on experience in using radar. Trico Marine Assets, 332 F.3d at 790. Therefore, the court concluded the owner knew or should have known that the captain was improperly trained. Trico Marine Assets, 332 F.3d at 790. See also Hercules Carriers, 768 F.2d at 1576-77 (finding negligent navigation became the responsibility of the owner when it failed to adequately train its crew, which lead to multiple negligent acts, and authorized crew members to ignore regulations and its own manual).

In the case before us, the district court found Diamond “present[ed] no evidence [at trial] to establish it lacked privity or knowledge of the dangerous condition.” To the contrary, Diamond offered the testimony of Tardo, who stated Crawford received all required training. In addition, Dugas himself testified that he did not know Crawford would push the start button on the spud winch, and Berryhill stated that he felt confident Crawford was “capable of doing what [he was] supposed to do.”

Nevertheless, Dugas argues that Diamond had knowledge of the lack of certain safeguards for the equipment on the D-9, which constitutes knowledge sufficient to deny limitation of liability. We disagree. To be entitled to limit liability, the owner must have privity or knowledge of the “acts of negligence or conditions of unseaworthiness [that] caused the accident.” SCF Waxler Marine, 24 F.4th at 472 (quoting Farrell Lines Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976)) (emphasis in original). The owner's knowledge of acts of negligence or conditions of unseaworthiness that did not cause the accident does not prevent the owner from limiting liability. SCF Waxler Marine, 24 F.4th at 472. In its reasons for judgment, the district court stated, in pertinent part: “Both Diamond Service[s] Corp. (through Robert Crawford) and Randall Dugas are negligent for this injury. Robert Crawford in his pushing the start button. Randall Dugas knowing the spud winch was energized was negligent in placing his left hand into the fan without disconnecting the battery connection.” The district court did not find that the lack of certain safeguards was the cause of the accident, and we find the record supports such a finding.¹⁸ Therefore, Diamond's alleged negligence in failing to include certain safeguards on its machinery cannot preclude a limitation of liability in this case. The district court erred in determining that Diamond is not entitled to limit its liability in accordance with 46 U.S.C. § 30523(a) to the value of the D-9.

As a general matter, appellate courts will not consider issues which the district court has not addressed. Council of City of New Orleans v. Washington, 2009-1067 (La. 5/29/09), 9 So.3d 854, 856. However, the appellate court, in discharging its duty to render judgment which is just, legal, and proper upon the record, has the authority to consider any legal point or theory presented in the case when the record contains all the necessary evidence to determine the question, even though no ruling was made on that issue by the district court. See Savoy v. Cecil Perry Imp. Co., 96-889 (La. App. 3 Cir. 2/5/97), 691 So.2d 692, 702, amended on reh'g (Apr. 7, 1997); see also Georgia Gulf Corp. v. Board of Ethics for Public Employees, 96-1907 (La. 5/9/97), 694 So.2d 173, 176 (citing La. C.C.P. art. 2164 & Uniform Rules of Louisiana Courts of Appeal, Rule 1–3). In this case, the district court did not consider the value of the D-9 because it determined Diamond was not entitled to limit its liability. Nevertheless, both parties offered evidence of the value of the D-9, and that evidence is in the record before us on appeal. As such, we will make an independent review of the record on the issue of the value of the D-9.

Diamond retained a surveyor to value the D-9. Diamond's surveyor noted the D-9 was built in 1969 and appears to be “in fair condition externally commensurate with its age.” He further noted the interior of the D-9 is well used/dated. Diamond's surveyor pulled several listings from online databases of vessels he believed to be comparable to the D-9; based on the comparisons, Diamond's surveyor estimated the fair market value (“FMV”) of the D-9 is $400,000.00. Tardo also testified regarding the value of the D-9. She stated that, at the time of trial, the D-9 was currently listed for sale at $450,000.00, but the highest bid Diamond received from interested buyers was $3 50,000.00. Tardo also testified that the D-9 had “been parked” in Diamond's shipyard ever since its return following completion of the Badge Oil project.

Dugas’ expert, Quackenbos, was also asked to opine on the FMV of the D-9 in the scope of his expert duties. Quackenbos disputed the conclusions of Diamond's surveyor. Although he acknowledged the average listing of vessels like the D-9 was priced around $500,000.00, he explained that the comparables used by Diamond's surveyor were not outfitted to the extent the D-9 is in terms of accommodations, machinery on board, and other “accessories.” Using a different set of comparables also pulled from online databases, Quackenbos opined the FMV of the D-9 is between $850,000.00 and $1.05 million. On cross-examination, Quackenbos admitted that the asking price for a vessel is not always equal to the sale price. Nevertheless, we find Quackenbos’ testimony, particularly that the D-9 was well-outfitted, persuasive. We hereby determine the value of the D-9 to be $850,000.00. Accordingly, Diamond is entitled to limit its liability to the amount of $850,000.00.¹⁹

DECREE

We find Diamond carried its burden of proving it is entitled to limit its liability to the amount of $850,000.00, the value of the vessel as determined by this court. The district court's February 14, 2025 judgment is affirmed in all other respects. In addition, the answer to the appeal filed by Plaintiff, Randall Gabriel Dugas, is denied. All costs of these proceedings are to be shared equally by the parties.

AFFIRMED IN PART; REVERSED IN PART; ANSWER DENIED.

FOOTNOTES

1.   The spud winch allows the “spuds,” which act like anchors on the D-9, to raise so the D-9 can be moved.

2.   The company man is the individual on board representing the client's interests in the job.

3.   We note that Diamond's safety manual distinguishes between lockout/tag out and de-energization. At times, the manual requires application of both procedures when performing repairs or maintenance on energized equipment. According to the manual, the purpose of lockout/tag out protocol is to ensure that a machine is “stopped, isolated from all potentially hazardous energy sources, and locked out before employees perform any servicing or maintenance where the unexpected energization or startup of the machine ․ could cause injury.” The parties to this lawsuit and the witnesses they presented often use these terms interchangeably.

4.   SSE refers to new employees and/or workers who have less than six months continuous service or current employees and/or workers who have less than six months continuous service in the same job type/craft, or both.

5.   Diamond's safety manual defines a “qualified person” as one familiar with the construction and operation of electronically operated equipment and the hazards involved. An unqualified person is one who has little to no training in avoiding the electrical hazards of working on or near exposed energized parts. Dugas testified that he was not aware that he was authorized to lockout/tag out or de-energize equipment.

6.   We note Dugas, Berryhill, and Brown all stated that they were unaware of the mentor program.

7.   Diamond admitted that Dugas is and was a Jones Act seaman at all times pertinent hereto.

8.   Appellate courts review judgments, not reasons for judgment; nevertheless, reasons for judgment may be reviewed to “gain insight” into the district court's judgment. Sennett v. Boudreaux, 2023-0013 (La. App. 4 Cir. 10/5/23), 376 So.3d 254, 258 n.6, writ denied, 2023-01465 (La. 1/17/24), 377 So.3d 249. In this case, the reasons for judgment make clear that the district court found Diamond negligent only on the basis that it is vicariously liable for the actions of its employee, Crawford. Further, silence in a judgment as to any issue, claim, or demand placed before the court is deemed a rejection of the claim and the relief sought is presumed to be denied. Costanza, 409 So.3d at 1149. Applying these precepts, it is clear the district court rejected any and all claims of independent negligence on behalf of Diamond.

9.   JSA stands for “job safety analysis.” A JSA is a written document used to identify risks to personnel associated with their job tasks and to determine appropriate mitigation measures needed to reduce hazards. It identifies, analyzes, and records the steps involved in performing a particular job, the existing or potential safety and health hazards associated with each step, and recommended actions or procedures that will eliminate or reduce these hazards and the risk of a workplace injury or illness. On the date of the accident, the only JSA completed was for dredging. All Diamond employees who testified at trial agreed that a second JSA should have been completed prior to attempting to repair the spud winch motor.

10.   Similar to the instant matter, the plaintiff in Vendetto also argued that the vessel was unseaworthy. Vendetto, 725 So.2d at 476. However, that portion of the opinion is not relevant to our analysis of Dugas’ Jones Act claims.

11.   In his answer to the appeal, Dugas seeks modification of the damages award. However, Dugas fails to brief this matter or offer any suggestion of the proper amount of damages to be awarded; rather, he repeatedly suggests the damages awards should be affirmed. Accordingly, we find this assignment of error in Dugas’ answer to the appeal is abandoned. See J. Reed Constructors, Inc. v. Roofing Supply Group, L.L.C., 2012-2136 (La. App. 1 Cir. 11/1/13), 135 So.3d 752, 754, writ denied, 2014-1031 (La. 9/12/14), 148 So.3d 931; Uniform Rules—Courts of Appeal, Rule 2–12.4(B)(4).

12.   Pursuant to La. C.C.P. art. 1464, when the physical condition of a party is in controversy, the court may order the party to submit to an additional medical opinion (“AMO”) by a physician. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties. La. C.C.P. art. 1464(A).

13.   We also note Brooke White, one of Dugas’ daughters, attended most of Dugas’ appointments, including the AMO examination with Dr. George. She testified that she was not allowed to go into the room with Dugas during the AMO examination, and when she was with Dugas, she described witnessing the technician assisting Dugas with the rapid exchange test. Although not discussed in its reasons for judgment, the district court's choice to credit the findings of Dr. Henderson over those of Dr. George is further supported by this testimony.

14.   The jurisprudence does not require the plaintiff to prove lost wages with mathematical certainty. Woods v. Hall, 2015-1162 (La. App. 1 Cir. 4/20/16), 194 So.3d 689, 693. The plaintiff must instead present proof sufficient to establish past lost wages to a degree of reasonable certainty; such proof may consist only of the plaintiff's own testimony. Woods, 194 So.3d at 693.

15.   Since we determined there was no manifest error in the district court's decision to decline to assign fault to Diamond for its own independent negligence or its finding the D-9 was seaworthy, an adjustment of the allocation of fault to account for Diamond's independent negligence is unnecessary.

16.   This is because “when the owner is so far removed from the vessel that he can exert no control over the master's actions, he should not be taxed with the master's negligence.” SCF Waxler Marine, 24 F.4th at 472-73 (quoting Continental Oil Co. v. Bonanza Corp., 706 F.2d 1365, 1377 n. 15 (5th Cir. 1983) (en banc)).

17.   To the extent Dugas argues Dugas’ or Berryhill's knowledge can be imputed to Diamond, this argument must fail. Dugas testified that he did not know Crawford would push the start button on the spud winch and that Berryhill was not part of the discussions or repair of the spud winch.

18.   See subsection titled “Jones Act Negligence[,]” supra.

19.   Limitation of liability does not apply to wages claims. See 46 U.S.C. § 30523(c).

EDWARDS, J.