* 

### Chief Judge of the Southern District of Mississippi,

sitting by designation. 

## REVISED

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-31071

GREG E. CRAWFORD,

Plaintiff-Appellee,

VERSUS

FALCON DRILLING COMPANY, INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Louisiana

December 18, 1997

Before D E 

### MOSS and DENNIS, Circuit Judges, and LEE, District Judge. *



### D E 

### MOSS, Circuit Judge:

In Gautreaux v. Scurlock Marine, Inc.

, 107 F.3d 331 (5th Cir.

1997) (en banc), we signaled a sea change in our Court’s Jones Act

jurisprudence . The present appeal arises from a maritime injury

case tried under pre- Gautreaux standards of Jones Act negligence.

We must decide what effect, if any, our decision in Gautreaux has

on this direct appeal. Finding plain error with respect to the

liability, we vacate that aspect of the judgment of the district1 

### The facts surrounding the accident which the district

court determined caused Crawford’s injuries are very complicated.

For our immediate purpose, however, the summary set out in the main

text will suffice. Quoted material in this section of the opinion

is taken from the district court’s findings of fact.

2 

### A “stand” consists of “[t]hree joints of pipe, each

approximately 31 feet in length or a total of approximately 93

feet.”

-2- court and remand for reconsideration in light of Gautreaux

.

We are also asked to review the district court’s award of

damages. Because the district court’s assessment of Crawford’s

damages was not clearly erroneous, that aspect of the judgment is

affirmed.

I.

Greg Crawford suffered a back injury aboard the PHOENIX V, a

jack-up drilling vessel. He claims, and the district court found,

that the injury was caused by an accident that occurred while he

was working as a derrickman on the PHOENIX V. 1 

### H E FILED SUIT TO RECOVER

DAMAGES UNDER THE 

### J ONES 

### A CT AGAINST HIS EMPLOYER



### , F ALCON 

### D RILLING



### .

A T THE TIME OF THE ACCIDENT



### , C RAWFORD 

### ’ S CREW WAS ENGAGED IN A PRACTICE KNOWN

AS 

### “ TRIPPING PIPE OUT OF THE HOLE 

### .” T HE DRILL 

### ’ S BIT HAD T O BE CHANGED



### , AND

TRIPP ING PIPE OUT OF THE HOLE INVOLVED PULLING OUT ALL OF THE PIPE BETWEEN THE

SURFACE AND THE BOTTOM OF THE HOLE IN ORDER TO REACH THE BIT



### . T HE PROCESS INVOLVED

THE COORDINATION OF T HE MEMBERS OF THE DRILL CREW 

### : THE DRILLER 

### ; THE THREE DRILL

HANDS 

### ; AND THE DERRICKMAN 

### ( IN THIS CASE



### , C RAWFORD 

### ).

F IRST



### , THE DRILL HANDS A TTACH AN ELEVATOR TO THE TOP PORTION OF THE PIPE



### .

T HE D RILLER



### , WHO IS IN CHARGE OF THE OPERATION



### , THEN ENGAGES THE DRAW WORKS



### . A

“ STAND 

### ” OF PIPE 2 IS THEN PULLED UP AND OUT OF THE HOLE



### , EXPOSING THE JOINT WITH THE

### -3-

NEXT STAND



### . T HE DRILL HANDS SET SLIPS AROUND THE NEXT STAND TO HOLD IT IN PLACE



### ,

AND THEY THEN UNSCREW THE STANDS TO SEPARATE THEM AT THAT JOINT



### .

A T THIS POINT



### , THE SEPARATED STAND OF PIPE IS READY TO BE PLACED IN THE PIPE

RACK



### . T HE DRILLER LIFTS THE STAND A FEW FEET



### , AND THE DRILL HANDS THEN PUSH THE

BOTTOM OF THE STAND INTO THE RACK



### . T HE DRILLER THEN LOWERS THE STAND SO THAT THE

BOTTOM IS IN ITS PLACE IN THE RACK



### .

N EXT



### , THE DERRICKMAN DOES HIS JOB



### . T HE DERRICKMAN IS POSITIONED ON A

MONKEYBOARD HIGH IN THE AIR ON THE DERRICK



### , SUCH THAT HE CAN REACH THE ELEVATORS

ATTACHED TO THE TOP OF THE STAND AS THE DRILL HANDS POSITION THE BOTTOM OF THE STAND

IN THE PIPE RACK



### . H E HAS A PULL



### - BACK ROPE WHICH HE FLIPS AROUND THE STAND



### , PULLING

THE TOP TOWARD HIM WITH HIS RIGHT HAND



### . W HEN THE BOTTOM OF THE STAND TOUCHES THE

FLOOR IN ITS POSITION IN THE PIPE RACK



### , THE DERRICKMAN REACHES UP AND UNLATCHES THE

ELEVATOR WITH HIS LEFT HAND



### . H E THEN PULLS THE TOP OF THE STAND WITH BOT H HANDS

SO THAT HE CAN PUT IT IN ITS PLACE IN THE PIPE RACK



### . T HE ENTIRE PROCESS IS THEN

REPEATED UNTIL ALL OF THE PIPE HAS COME OUT OF THE HOLE



### .

T HE STAND OF PIPE WHICH CAUSED 

### C RAWFORD 

### ’ S INJURY WEIGHED BETWEEN SEVEN AND

EIGHT THOUSAND POUNDS



### . T HE SERIES OF STANDS TRIPPED OUT OF THE HOLE IMME DIATELY

BEFORE THIS STAND HAD BEEN BOTH LIGHTER AND SHORTER



### . A S 

### C RAWFORD RELEA SED THE

ELEVATORS ON THE LIGHTER STANDS



### , EACH OF THEM FELL TOWARD HIS LEFT



### . C RAWFORD THUS

POSITIONED HIS BODY TO TAKE ADVANTAGE OF THE STANDS 

### ’ MOMENTUM AND GUIDE THEM INTO

THE PIPE RACK



### .

C RAWFORD WAS INJURED WHEN A STAND OF PIPE FELL TO THE RIGHT WHEN HE EXPECTED

IT TO FALL TO THE LEFT



### . T HE DISTRICT COURT FOUND THAT THIS U NEXPECTED CHANGE

RESULTED FROM 

### “ THE FLOOR HANDS IMPROPERLY POSITIONING THE BOTTOM OF THE DRILL PIPE

ON THE PIPE RACK FLOOR AND THE DRILLER SETTING THE IMPROPERLY POSITIONED DRILL PIPE

DOWN ON THE PIPE RACK FLOOR 

### .” T HE STAND 

### ’ S FALL TO THE RIGHT CAUGHT 

### C RAWFORD OFF



### -

### -4-

GUARD



### , AND THE GRAVITY OF THE SITUATION WAS COMPOUNDED BY 

### C RAWFORD 

### ’ S ADVANCE

POSITIONING OF HIMSELF TO ACCOMMODATE A LEFTWARD



### - FALLING STAND



### . I N HIS ATTEMPT TO

PULL THE MASSIVE STAND OF PIPE INTO THE PIPE RACK



### , C RAWFORD SERIOUSLY INJURED HIS

BACK



### .

C RAWFORD SUED 

### F ALCON 

### D RILLING FOR DAMAGES



### . T HE DISTRICT COURT FOUND 

### F ALCON



### D RILLING LIABLE FOR 

### C RAWFORD 

### ’ S INJURIES



### . I T ALSO FOUND THAT 

### C RAWFORD WAS NOT

CONTRIBUTORILY NEGLIGENT WITH RESPECT TO THE ACC IDENT



### . J UDGMENT WAS ENTERED IN



### C RAWFORD 

### ’ S FAVOR IN THE AMOUNT OF 

### $563,190.91. F ALCON 

### D RILLING APPEALS



### .

II.

O UR 

### C OURT 

### ’ S EN BANC DECISION IN 

### G AUTREAUX HAD NOT BEEN ANNOUNCED AT THE TIME

OF THE BENCH TRIAL IN THIS CASE



### . N ATURALLY



### , THERE WAS NO OBJECTION TO THE DISTRICT

COURT 

### ’ S CONCLUSIONS OF LAW REGARDING THE STANDARDS OF NEGLIGENCE TO BE APPLIED TO

THE RESPECTIVE PARTIES



### .

I T IS A FAMILIAR RULE THAT 

### “[ O 

### ] RDINARILY A PARTY MAY NOT PRESENT A WHOLLY NEW

ISSUE IN A REVIEWING COURT 

### .” 9 A C HARLES 

### A LAN 

### W RIGHT 

### & A RTHUR 

### R. M ILLER



### , F EDERAL



### P RACTICE AND 

### P ROCEDURE 

### § 2588, at 599 (2d ed. 1995); see also Helvering

v. Wood , 309 U.S. 344, 349 (1940); United States v. Calverley , 37

F.3d 160, 162 (5th Cir. 1994) (en banc)

, cert. denied , 513 U.S.

1196 (1995). It is equally well established, however, that an

exception to the general rule allows our Court to review an issue

of law raised for the first time on appeal in exceptional

circumstances. Most of our older precedent in this area frames the

standard for applying the exception as a question of whether there

was “a mi scarriage of justice.” S ee, e.g.

, Noritake Co. v. M/V

Hellenic Champion , 627 F.2d 724, 732 (5th Cir. Unit A 1980); see

### -5-

also 9A W RIGHT 

### & M ILLER



### , supra

, § 2588. Our case law has drifted

from these early moorings, however, and more recently our Court has

adopted the practice of reviewing unpreserved error in a civil case

using the plain-error standard of review. See, e.g.

, Douglass v.

United Servs. Auto. Ass’n , 79 F.3d 1415, 1424 (5th Cir. 1996) (en

banc) (plain-error rule applies when the appellant failed to object

to a magistrate judge’s report and recommendations); Highlands Ins.

Co. v. National Union Fire Ins. Co. , 27 F.3d 1027, 1032 (5th Cir.

1994) (plain-error standards govern an allegedl y erroneous jury

charge), cert. denied , 513 U.S. 1112 (1995).

The Supreme Court has carefully defined the requirements for

reversal for plain error:

There must be an error that is pl ain and that

affects substantial rights. Moreover, Rule 52(b)

leaves the decision to correct the forfeited error

within the sound discretion of the court of

appeals, and the court should not exercise that

discretion unless the error seriously affects the

fairness, integrity or public reputation of

judicial proceedings.

United States v. Olano

, 507 U.S. 725, 732 (1993) (brackets and3 

### There has been some confusion in our cases about the

continued viability of the “miscarriage of justice” requirement for

appellate review of unpreserved error in civil cases. Some of our

cases suggest that the “miscarriage of justice” analysis sails in

tandem with an O LANO



### - STYLE STANDARD OF REVIEW



### . S EE 

### H IGHLANDS 

### I

NS



### . C O



### . , 27

F.3 D AT 

### 1032 ( NOTING THAT APPELLATE REVIEW OF PLAIN ERROR IN CIVIL CASES 

### “ IS NOT

A RUN



### - OF



### - THE



### - MILL REMEDY AND WILL OCCUR ONLY IN EXCEPTIONAL CIRCUMSTANCES TO AVOID

A MISCARRIAGE OF JUSTICE 

### .” ( INTERNAL QUOTATIONS OMITTED 

### )). I N CERTAIN CONTEXTS



### ,

HOWEVER



### , OUR EN BANC 

### C OURT HAS DISCLAIMED A SE P ARATE 

### “ MISCARRIAGE OF JUSTICE 

### ”

REQUIREMENT FOR PLAIN



### - ERROR REVIEW



### . S EE 

### D OUGLASS



### , 79 F.3 D AT 

### 1 423-28 ( CIVIL

APPEALS IN WHICH A PARTY FAILED TO OBJECT TO ALLEGED ERRORS IN A MAGISTRATE JUDGE 

### ’ S

REPORT AND RECOMMENDATIONS 

### ); C ALVERLEY



### , 37 F.3 D AT 

### 163-64 ( CRIMINAL APPEALS 

### ).

T HESE ARE ROUGH SEAS TO NAVIGATE



### , ESPECIALLY IN LIGHT OF THE FACT THAT THE

APPLICABILITY OF THE 

### “ MISCARRIAGE OF JUSTICE 

### ” REQUIREMENT IN UNCHARTED PLAIN



### - ERROR

TERRITORY WAS EXPRESSLY LEFT OPEN IN A RECENT OPINION OF OUR EN BANC 

### C OURT



### . S EE



### D OUGLASS



### , 79 F.3 D AT 

### 1428 N 

### .15. R ATHER THAN CHART A NEW COURSE



### , WE WILL SIMPLY

SAIL WITH THE FLEET IN APPLYING THE 

### O LANO STANDARD OF PLAIN



### - ERROR REVIEW



### , CONFIDENT

THAT WHATEVER INDEPENDENT STANDARD MIGHT BE REPRESENTED BY 

### “ MISCARRIAGE OF JUSTICE 

### ”

RUBRIC



### , IT IS ADEQUATELY SATISFIED IN THIS CASE WHICH EASILY SURVIVES THE RIGORS OF



### O LANO 

### ’ S FOUR



### - PART ANALYSIS



### . C F



### . D OUGLASS



### , 79 F.3 D AT 

### 1 425 (“[M] OST CASES



### ,

PRE



### - AND POST



### - O LANO



### , IN OUR CIRCUIT AND OTHERS USE THE TERM 

### ‘ MANIFEST INJUSTICE 

### ’

TO DESCRIBE THE RESULT OF A PLAIN ERROR 

### .”).

-6- internal quotations omitted); see also Johnson v. United States

,

117 S. Ct. 1544, 1548-49 (1997). 3



### I N REVIEWING THE RESULTS OF A BENCH TRIAL



### , A DISTRICT COURT 

### ’ S FINDINGS OF

FACT 

### “ SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS 

### .” F ED



### . R. C IV



### . P. 52(a).

For our present purposes, however, it is important to note that

“when the court’s error goes to the heart of the legal conclusion,

the finding, though similar to one of fact, should not be

protected.” 1 S T EVEN 

### A LAN 

### C HILDRESS 

### & M ARTHA 

### S. D AVIS



### , F EDERAL 

### S TANDARDS OF



### R EVIEW 

### § 2.18, at 2-125 (2d ed. 1992); see, e.g.

, Viator v.

D elchamps Inc.

, 109 F.3d 1124, 1126-27 (5th Cir.), cert. deni ed

,

118 S. Ct. 165 (1997).4 

### This practice comports with that in other circuits. S EE



### ,

E



### . G



### . , N

ATIONAL 

### F

UEL 

### G AS 

### S UPPLY 

### C

ORP



### . V



### . FERC

, 59 F.3 D 

### 1281, 1285, 1288-89

(D.C. C IR



### . 1995); L ABORERS 

### ’ I

NT 

### ’ L 

### U NION 

### , AFL-CIO V



### . F OSTER 

### W

HEELER 

### C

ORP



### . , 26 F.3 D 

### 375, 386 N 

### .8 (3 D 

### C IR 

### .), CERT



### . DENIED



### , 513 U.S. 946 (1994);

E CKSTEIN V



### . B

ALCOR 

### F

ILM 

### I NVESTORS



### , 8 F.3 D 

### 1121, 1128 (7 TH 

### C IR



### . 1993), CERT



### .

D ENIED



### , 510 U.S. 1073 (1994); N EWPORT 

### N

EWS 

### S HIPBUILDING 

### & D RY 

### D OCK 

### C O



### . V



### .

G ARRETT



### , 6 F.3 D 

### 1547, 1554 (F ED



### . C IR



### . 1993); U NITED 

### S TATES V



### . G OODNER 

### B ROS



### .

-7- III.

To resolve this appeal, we must determine (1) if there was

e rror, (2) if that error was plain, (3) if the error affects

substantial rights, and (4) whether a llowing that error to stand

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.

A.

We turn first to the question of whether there was Gautreaux

error. As a threshold matter, we pause to note that there can be

no question but that Falcon Drilling is entitled to the benefit of

the Gautreaux rule, despite the fact that it was announced after

the conclusion of the trial in this case. The Supreme Court held

in Harper v. Virginia Dep’t of Taxation , 509 U.S. 86 (1993), that

When this Court a pplies a rule of federal law to

the parties before it, that rule is the controlling

interpretation of federal law and mu st be given

full retroactive effect in all cases still open on

direct review and as to all events , regardless of

whether such events predate or postdate our

announcement of the rule.

H arper , 509 U.S. at 97. In the past, our Circuit has adopted as

its own the Supreme Court’s rules on the retroactivity of legal

principles announced in civil cases. S ee, e.g.

, Sterling v. Block

,

953 F.2d 198, 200 (5th Cir. 1992). 4 

### T HUS



### , THE 

### G AUTREAUX

RULE APPLIES IN

### A IRCRAFT 

### , I NC



### . , 966 F.2 D 

### 380, 385 (8 TH 

### C IR



### . 1992), CERT



### . DENIED



### , 506 U.S.

1049 (1993).

5 

### The possible exceptions to the H ARPER RULE DISCUSSED IN 

### R YDER

V



### . U NITED 

### S TATES



### , 515 U.S. 177 (1995), AND 

### R EYNOLDSVILLE 

### C

ASKET 

### C

O



### . V



### . H

YDE



### , 514 U.S. 749 ( 1995), ARE INAPPLICABLE



### . T HE APPLICABILITY OF 

### G AUTREAUX IS

ESSENTIAL TO DETERMINING THE OUTCOME OF THIS CASE



### . S EE 

### H YDE



### , 514 U.S. AT 

### 758-

59. M OREOVER



### , THE APPLICATION OF 

### G AUTREAUX WOULD NOT CAUSE 

### C RAWFORD 

### “ THE SORT OF

GRAVE DISRUPTION OR INEQUITY INVOLVED IN AWARDING RETROSPECTIVE RELIEF 

### ” THAT WOULD

CALL INTO THE ACTION THE DOCTRINE 

### ( OF QUESTIONABLE CONTINUED VIABILITY 

### ) OF 

### C HEVRON



### O IL 

### C O



### . V



### . H

USON



### , 404 U.S. 97 (1971). S EE 

### R YDER



### , 515 U.S. AT 

### 184-85.

-8- THE PRESENT CASE



### , WHICH APPEARS BEFORE OUR 

### C OURT ON DIRECT APPEAL



### . 5



### W E NOW CONSIDER WHETHER THE CONCLUSIONS OF LAW ENTERE D AT TRIAL WERE

ERRONEOUS IN LIGHT OF 

### G AUTREAUX



### . “ E RROR IS DEFINED AS A DEVIATION FROM A LEGAL

RULE IN THE ABSENCE OF A VALID LEGAL WAIVER 

### .” C ALVERLEY



### , 37 F.3 D AT 

### 162 ( CITING



### O LANO



### , 507 U.S. AT 

### 732). T HE DISTRICT COURT RULED 

### :

3. U NDER THE 

### J ONES 

### A CT A DEFENDANT MUST BEAR RESPONSIBILITY

F OR ANY NEGLIGENCE



### , HOWEVER SLIGHT



### , THAT PLAYED A PART IN

PRODUCING THE PLAINTIFF 

### ’ S INJURIES



### . I N RE 

### C OOPER 

### /T. S

MITH



### , 929 F.2 D 

### 1073, 1077 (5 TH 

### C IR



### . 1991) [, CERT



### . DENIED



### , 502

U.S. 865 (1991)].

4. D EFENDANT WAS NEGLIGENT IN FAILING TO ENSURE THAT THE

LOWER END OF THE PIPE STRING WAS POSITIONED PROPERLY BEFORE

SETTING IT DOWN



### .

* * *

7. A SEAMAN HAS A DUTY



### , ALBEIT SLIGHT



### , T O USE REASONABLE

CARE TO PROTECT HI MSELF



### . S AVOIE V



### . O TTO 

### C

ANDIES 

### , I

NC



### . , 692

F.2 D 

### 363, 371 (5 TH 

### C IR



### . 1982).

8. P LAINTIFF WAS NOT CONTRIBUTORILY NEGLIGENT IN CAUSING THE

ACCIDENT WHICH RESULTED IN HIS INJURY



### .

I N 

### G AUTREAUX



### , WE HELD THAT 

### “ NOTHING IN THE TEXT OR STRU CTURE OF THE 

### F ELA-J ONES



### A CT LEGISLATION SUGGEST S THAT THE STANDARD OF CARE TO BE ATTRIBUTED TO EITHER AN

EMPLOYER OR AN EMPLOY E E IS ANYTHING DIFFERENT THAN ORDINARY PRUDENCE UNDER THE

CIRCUMSTANCES 

### .” G AUTREAUX



### , 107 F.3 D AT 

### 338. W ITH RESPECT TO THE APPLICABLE

STANDARD FOR CONSIDERING THE CONTRIBUTORY NEGLIGENCE OF A 

### J ONES 

### A CT SEAMAN



### , WE

### -9-

SPECIFICALLY HELD THAT 

### :

A SEAMAN



### . . . IS OBLIGATED UND ER THE 

### J ONES 

### A CT TO ACT

WITH ORDINARY PRUDENCE UNDER THE CIRCUMSTAN CES



### . T HE

CIRCUMSTANCE S OF A SEAMAN 

### ' S EMPLOYMENT INCLUDE NOT ONLY HIS

RELIANCE ON HIS EMPLOYER TO PROVIDE A SAFE WORK ENVIRONMENT BUT

ALSO HIS OWN E XPERIENCE



### , TRAINING



### , OR EDUCATION



### . T HE

REASONABLE PERSON STANDARD



### , THEREFORE



### , AN D A 

### J ONES 

### A CT

NEGLIGENCE ACTION BECOMES ONE O F THE REASONABLE SEAMAN IN LIKE

CIRCUMSTANCES



### . T O HOLD OTHERWISE WOULD UNJUSTLY REWARD

UNREASONABLE CONDUCT AND WOULD FAULT SEAMEN ONLY FOR THEIR GROSS

NEGLIGENCE



### , WHICH WAS NOT THE CONTEMPLATION OF 

### C ONGRESS



### .

I D



### . AT 

### 339.

T HE DISTRICT CO URT 

### ’ S CONCLUSIONS OF LAW REGARDING STANDARDS OF 

### J ONES 

### A CT

NEGLIGENCE MAY HAVE BEEN DEFENSIBLE UND ER OUR PRE



### - G AUTREAUX CASE LAW



### . U NDER



### G AUTREAUX



### , HOWEVER



### , THE RULE IS CLEAR



### , AND THE DECISION OF THE DISTRICT COURT

PRESENTS ERROR IN TWO RESPECTS



### . T HE DISTRICT COURT CHARGED 

### F ALCON 

### D RILLING WITH



### “ RESPONSIBILITY FOR ANY NEGLIGENCE



### , HOWEVER SLIGHT 

### ,” BUT 

### G AUTREAUX SPECIFICALLY

DISAVOWS 

### “ ATTRIBUTING TO 

### J ONES 

### A CT EMPLOYERS A HIGHER DUTY OF CARE THAN THAT

REQUIRED UNDER ORDINARY NEGLIGENCE 

### .” I D



### . F URTHERMORE



### , THE DISTRICT COURT RULED

THAT 

### “[ A 

### ] SEAMAN HAS A DUTY



### , ALBEIT SLIGHT



### , TO USE REASONABLE CARE TO PROTECT

HIMSELF 

### ,” WHILE 

### G AUTREAUX REJECTS THE RULE 

### “ ASCRIBING TO SEAMEN A SLIGHT DUTY OF

CARE TO PROTECT THEMSELVES FROM THE NEGLIGENCE OF THEIR EMPLOYERS



### . ” I D



### . T HE

DISTRICT COURT 

### ’ S CONCLUSION S OF LAW DEVIATE FROM THE LEGAL RULE ANNOUNCED IN



### G AUTREAUX



### , AND THE 

### “ ERROR 

### ” PRONG O F THE 

### O LANO INQUIRY IS THUS SATISFIED IN THIS

CASE



### .

B.

W E NEXT CONSIDER WHETHER THE ERROR COMMITTED AT TRIAL IS PLAIN



### . T HE 

### S UPREME



### C OURT HAS PROVIDED CONSIDERABLE GUIDANCE ON THIS POINT



### . “ ‘P LAIN 

### ’ IS SYNONYMOUS

WITH 

### ‘ CLEAR 

### ’ OR



### , EQUIVALENTLY



### , ‘ OBVIOUS 

### .’” O LANO



### , 507 U.S. AT 

### 734. “ [W] HERE

THE LAW AT THE TIME OF TRIAL WAS SETTLED AND CLEARLY CONTRARY TO THE LAW AT THE TIME6 

### Prior to the Supreme Court’s decision in J OHNSON



### , OUR EN BANC

OPINION IN 

### C

ALVERLEY SUGGESTED THAT PLAIN ERRORS ARE 

### “ ERROR S WHICH ARE SO

CONSPICUOUS THAT THE TRIAL JUDGE AND PROSECUTOR WERE DERELICT IN COUNTENANCING THEM



### ,

EVEN ABSENT THE DEFENDANT 

### ’ S TIMELY ASSISTANCE IN DETECTING THEM 

### .” C ALVERLEY



### , 37

F.3 D AT 

### 163 ( BRACKETS AND INTERNAL QUOTATIONS OMITTED 

### ). I N LIGHT OF 

### J OHNSON 

### ’ S

HOLDING THAT PLAINNESS IS JUDGED WITH APPELLATE HINDSIGHT TO CORRECT AN ERROR WHICH

ONLY BECAME AN ERROR IN LIGHT OF INTERVENING LAW WHICH WAS UNAVAILABLE AT THE TIME

OF TRIAL



### , THIS ASPECT OF 

### C ALVERLEY 

### ’ S DISCUSSION OF PLAINNESS HAS BEEN ABROGATED



### .

-10- OF APPEAL



### - - IT IS ENOUG H THAT AN ERROR BE 

### ‘ PLAIN 

### ’ AT THE TIME OF APPELLATE

CONSIDERATION 

### .” J OHNSON



### , 117 S. C T



### . AT 

### 1549.

J UST AS IN THE 

### S UPREME 

### C OURT 

### ’ S RECENTLY DECIDED 

### J OHNSON CASE



### , THE LAW IN THE

PRESENT CASE HAS CHANGED BETWEEN THE TRIAL AND OUR DETERMINATION ON APPEAL



### .

J OHNSON DICTATES THAT WE USE HINDSIGHT TO DECIDE WHETHER THE ERROR WAS PLAIN



### . 6 

### I N

LIGHT OF 

### G

AUTREAUX



### , THE ERROR IS PLAIN



### , CLEAR



### , AND OBVIOUS



### . T HUS THE SECOND 

### O LANO

FACTOR IS SATISFIED



### .

C.

W E NOW INQUIRE WHETHER THE TRIAL COURT 

### ’ S ERROR AFFECTED 

### F ALCON 

### D RILLING 

### ’ S

SUBSTANTIAL RIGHTS



### . “ O LANO COUNSELS THAT IN MOST CASES THE AFFECTING OF

SUBSTANTIAL RIGHTS REQUIRES THAT THE ER ROR BE PREJUDICIAL 

### ; IT MUST AFFECT THE

OUTCOME OF THE PROCEEDING 

### .” C ALVERLEY



### , 37 F.3 D AT 

### 164 ( CITING 

### O LANO



### , 507 U.S.

AT 

### 734-35). I N THIS CASE



### , THE PREJ UDICE TO 

### F ALCON 

### D RILLING CAN BE EASILY

DEMONSTRATED



### .

T HE DISTRICT COURT USED ERRONEOUS STANDARDS FOR DETERMINING THE NEGLIGENCE

OF THE PARTIES



### . T HE STANDARD APPLIED TO 

### F ALCON 

### D RILLING WAS TOO HIGH



### . I T MADE



### F ALCON LIABLE FOR 

### “ ANY NEGLIGENCE



### , HOWEVER SLIGHT



### , THAT PLAYED A PART IN PRODUCING

THE PLAINTIFF 

### ’ S INJURIES 

### .” A LSO



### , THE STANDARD APPLIED TO 

### C RAWFORD WAS TOO LOW



### .

I T STATED THAT 

### C RAWFORD HAD A 

### “ DUTY



### , ALBEIT SLIGHT



### , TO USE REASONABLE CARE TO

PROTECT HIMSELF 

### .”

### -11-

A S 

### G AUTREAUX

MAKES CLEAR



### , THESE STANDARDS SERIOUSLY MISSTATE THE LAW



### . T HE

STANDARDS APPLIED BY THE DISTRICT COURT EMBODY A STRONG PRESUMPTION THAT A 

### J ONES



### A CT EMPLOYER IS RES PONSIBLE FOR THE INJURIES OF SEAMEN



### . F URTHERMORE



### , THEY

ATTRIBUTE VERY LITTLE RESPONSIBILITY TO THE SEAMAN HIMSELF



### . I N CONTRAST



### , G AUTREAUX

REQUIRES THAT BOTH THE EMPLOYER AND THE SEAMAN BE SUBJECTED TO THE 

### “ ORDINARY

PRUDENCE 

### ” STANDARD OF NEGLIGENCE UNDER THE 

### J ONES 

### A CT



### . S EE 

### G AUTREAUX



### , 107 F.3 D

AT 

### 338-39.

H AD THE PROPER STANDARDS BEEN APPLIED



### , THE DISTRICT COURT MAY VERY WELL HAVE

FOUND 

### C RAWFORD TO HAVE BEEN CONTRIBUTORILY NEGLIGENT TO SOME DEGREE



### . T HERE IS

AMPLE EVIDENCE IN THE RECORD TO SUPPORT THE DISTRICT COURT 

### ’ S CONCLUSION THAT THE

DRILLER AND THE DRILL HANDS IMPROPERLY POSITIONED THE DRILL PIPE ON THE PIPE RACK

FLOOR



### , THEREBY GIVING RISE TO 

### F ALCON 

### D R ILLING 

### ’ S LIABILITY



### . B UT THERE IS ALSO

EVIDENCE TO SUGGEST THAT 

### C RAWFORD WAS HIMSELF NEGLIGENT



### .

T HE DISTRICT COURT 

### ’ S FINDINGS OF FACT INCLUDE A FINDING THAT 

### “ IT WAS NOT

UNREASONABLE FOR 

### G REG 

### C RAWFORD TO EXPECT THAT THE DRILL PIPE HE WAS ATTEMPTING TO

HANDLE WOULD FALL TO THE LEFT AS THE PREVIOUS STANDS OF PIPE HAD RATHER THAN TO THE

RIGHT AS IT DID 

### .” T HIS CONCLUSION IS SUPPORTED BY THE EVIDENCE IN THE RECORD THAT

DRILL CREWS WHO WERE EXPERIENCED AT WORKING TOGETHER



### , AS THIS CREW WAS



### , DEVELOP A



### “ RHYTHM 

### ” WHICH MIGHT LULL 

### C RAWFORD INTO ASSUMING THAT EACH STAND OF PIPE WOULD FALL

IN THE SAME DIRECTION AS THE PREVIOUS STANDS HAD FALLEN



### . U NDER THE STANDARD OF



### “ SLIGHT 

### ” NEGLIGENCE APPLIED BY THE DISTRICT COURT



### , THIS FINDING ALONE MIGHT SUPPORT

A CONCLUSION THAT 

### C RAWFORD WAS NOT CONTRIBUTORILY NEGLIGENT



### . B UT HAD A STANDARD

OF ORDINARY PRUDENCE STANDARD BEEN APPLIED



### , OTHER EVIDENCE IN THE RECORD MIGHT HAVE

LED THE DISTRICT COURT TO A DIFFERENT CONCLUSION



### . S PECIFICALLY



### , C RAWFORD HIMSELF



### ,

WITNESSES FROM THE DRILL CREW



### , AND BOTH EXPERT WITNESSES WHO TESTIFIED ABOUT THE

OPERATIONS ON DRILLING RIGS ALL TESTIFIED THAT A DERRICKMAN MUST ALWAYS BE PREPARED7 

### The possibility that Crawford could have looked down and

seen how the stand of pipe was positioned is further corroborated

by the testimony of several witnesses from the drill crew that the

driller always stopped the process momentarily after the bottom of

the stand was racked, and also that Crawford had the ability to

stop the process by refusing to unlatch the elevators, which also

would have enabled him to look below him.

8 

### The “m ule line” is a device used by the drill crew to

ease the task of setting pipe back in the derrick.

-12- FOR THE STAND OF PIPE TO FALL IN EITHER DIRECTION



### . T HUS



### , EVEN THOUGH IT MIGHT NOT

HAVE BEEN 

### “ UNREASONABLE 

### ” FOR 

### C RAWFORD TO EXPECT THE STAND TO FALL TO THE LEFT



### , THE

ORDINARY PRUDENT SEAMAN MIGHT HAVE TAKEN SO ME ADDITIONAL PRECAUTIONS TO PREVENT

INJURY TO HIMSELF



### .

T HERE IS ALSO EVIDENCE THAT 

### C RAWFORD MIGHT HAVE BEEN ABLE TO ANTICIPATE THAT

THE STAND WOULD FALL TO THE RIGHT



### . O N CROSS



### - EXAMINATION



### , C RAWFORD ADMITTED THAT

HE COULD HAVE SEEN THE APPROXIMATE LOCATION OF THE PLACEMENT OF THE BOTTOM OF THE

STAND IF HE HAD LOOKED



### . T HIS TESTIMONY WAS CORROBORATED BY SEVERAL OTHER WITNESSES

AT TRIAL



### . 7 

### F URTHERMORE



### , A MEMBER OF THE DRILL CREW AND 

### F ALCON 

### D RILLING 

### ’ S EXPERT

WITNESS BOTH TESTIFIED THAT 

### C RAWFORD SHOULD HAVE GOTTEN AN INDICATION OF WHICH WAY

THE PIPE WAS LEANING BY OBSERVING THE ELEVATORS



### . I N LIGHT OF 

### C RAWFORD 

### ’ S CONCESSION

THAT HE HAD TO BE READY FOR THE PIPE TO FALL IN EITHER DIRECTION



### , IF THE PROPER

STANDARD WERE APPLIED



### , THE DISTRICT COURT MIGHT CONCLUDE THAT 

### C RAWFORD SHOULD HAVE

BEEN MORE AWARE OF THE THINGS HAPPENING AROUND HIM WHICH MIGHT HAVE HELPED HIM TO

JUDGE WHICH WAY THE STAND OF PIPE WOULD FALL



### .

A S FURTHER EVIDENCE OF 

### C RAWFORD 

### ’ S POTENTIALLY CONTRIBUTORY NEGLIGENCE



### , IT IS

NOTABLE THAT THE DISTRICT COURT ACKNOWLEDGED THAT A 

### “ MULE LINE 

### ” WAS AVAIL ABLE TO

ASSIST 

### C RAWFORD IN RACKING THE TOP OF THE STAND OF PIPE



### . 8 

### T HE RECORD SUGGESTS THAT



### C RAWFORD KNEW BEFORE IT CAME OUT OF THE HOLE THAT THE STAND WHICH INJURED HIM WAS

A PARTICULARLY HEAVY STAND



### . T HE DISTRICT COURT SPECIFICALLY DETERMINED THAT 

### “[ T 

### ] HE

### -13-

DERRICKMAN CAN STOP THE OPERATION AND REQUEST A MULE LINE IF HE DOES NOT THINK HE

COULD HANDLE A PARTICULAR STAND THAT IS TO BE REMOVED FROM THE HOLE 

### .” C RAWFORD 

### ’ S

OWN EXPERT WITNESS CHARACTERIZED THE ATTEMPT TO MANUALLY HANDLE THE SEVEN



### - TO



### - EIGHT



### THOUSAND



### - POUND STAND OF PIPE AS AN UNSAFE PRACTICE



### . S O AGAIN



### , HAD THE COURT NOT

CHARACTERIZED 

### C RAWFORD 

### ’ S DUTY TO PROTECT HIMSELF AS A 

### “ SLIGHT 

### ” ONE



### , THE COURT MIGHT

HAVE DETERMINED 

### C RAWFORD 

### ’ S FAILURE TO REQUEST A MULE LINE TO BE CONTR IBUTORY

NEGLIGENCE WHICH WOULD HAVE REDUCED 

### F ALCON 

### D RILLING 

### ’ S LIABILITY FOR THE ACCIDENT



### .

F INALLY



### , THERE IS EVIDENCE IN THE RECORD THAT 

### C RAWFORD 

### ’ S OWN ACTIONS

UNNECESSARILY ENDANGERED HIMSELF



### . I N PARTICULAR



### , THERE WAS TESTIMONY AT TRIAL THAT

IN LIGHT OF A DERRICKMAN 

### ’ S DUTY TO BE PREPARED FOR THE STAND TO FALL IN EITHER

DIRECTION



### , IT WAS UNSAFE FOR 

### C RAW FORD TO HAVE POSITIONED HIS BODY IN RELIANCE ON

HIS ASSUMPTION THAT ALL OF THE STANDS WOULD FALL TO THE LEFT



### . A LSO



### , THERE WAS

TESTIMONY THAT INSTEAD OF RISKING INJURY BY TRYING TO COMPENSATE FOR HIS MISJUDGMENT

ABOUT THE DIRECTION IN WHICH THE PIPE WOULD FALL



### , C RAWFORD SHOULD HAVE SIMPLY LET

THE STAND FALL AGAINST THE DERRICK



### . W E



### , OF COURSE



### , CANNOT KNOW HOW THIS EVIDENCE

MIGHT HAVE AFFECTED THE DISTRICT COURT 

### ’ S RESOLUTION OF THE CASE HAD THE PROPER



### J ONES 

### A CT STANDARDS BEEN APPLIED



### .

T HE DISTRICT COURT INCLUDED IN HIS FINDINGS OF FACT HIS ASSESSMENT THAT 

### :

G REG 

### C RAWFORD DID NOT CONTRIBUTE TO HIS OWN INJURY IN ATTEMPTING

TO CATCH THE DRILL PIPE WHEN IT WENT TO THE RIGHT RATHER THAN

RELEASING THE PIPE AND LETTING IT FALL AGAINST THE DERRICK



### , IN

FAILING TO SEE THAT THE DRILL PIPE HAD BEEN IMPROPERLY RACKED ON

THE D RILL PIPE FLOOR BY THE FLOORHANDS BEFORE THE DRILLER SET

THE DRILL PIPE



### , OR IN FAILING TO STOP THE TRIPPING OPERATION TO

ASK FOR THE USE OF A MULE LINE ON THE STAND OF PIPE THAT THE

CREW WAS HANDLING WHEN HE WAS INJURED



### .

H OWEVER



### , FROM THE STATE OF THE RECORD



### , IT IS NOT CLEAR THAT THE DISTRICT COURT WAS

MAKING A SPECIFIC FACTU AL FINDING THAT 

### C RAWFORD 

### ’ S SUCCESSFUL ATTEMPT TO RACK THE

PIPE



### , HIS FAILURE TO OBSERVE THE FAULTY PLACEMENT OF THE BOTTOM OF THE STAND IN THE

PIPE RACK



### , AND HIS FAILURE TO REQUEST A MULE LINE TO ASSIST THE MOVEMENT OF A

### -14-

PARTICULARLY HEAVY STAND OF PIPE DID NOT 

### “ CONTRIBUTE 

### ” TO HIS INJURY



### . Q UITE TO THE

CONTRARY



### , IT IS MUCH MORE LIKELY THAT THE ABOVE



### - QUOTED PASSAGE FROM THE DISTRICT

COURT 

### ’ S OPINION REFLECTS THE COUR T 

### ’ S ASSESSMENT THAT DESPITE THE PRESENCE OF THE

ABOVE



### - LISTED FACTORS 

### ( WHICH APPEAR TO HAVE BEEN



### , AT THE VERY LEAST



### , CAUSES



### - IN



### - FACT

OF THE ACCIDENT 

### ), THESE FACTS DID NOT OR WOULD NOT AMOUNT TO A BREACH OF 

### C RAWFORD 

### ’ S



### “ SLIGHT 

### ” DUTY TO PROTECT HIMSELF



### . A CCORDINGLY



### , THIS ASSESSMENT IS NOT A MERE



### “ FINDING OF FACT 

### ,” BUT RATHER AN APPLICATION OF LAW TO THE FACTS FOUND BY THE

DISTRICT COURT



### . I T IS THEREFORE NOT SUBJECT TO THE CLEAR



### - ERROR ANALYSIS OF 

### R ULE



### 52( A 

### ), BUT IS



### , RATHER



### , SUBJECT TO OUR RULES FOR REVIEWING ERRORS OF LAW



### .

T HE DISTRICT COURT 

### ’ S FINDINGS OF FACT ACKNOWLEDGE THAT 

### “[ T 

### ] HE WORK OF THE

DRILLER



### , THE FLOORHANDS AND THE DERRICKMAN ARE INTERRELATED 

### .” T HE FINDINGS ALSO

NOTE THAT 

### “ THE DERRICKMAN CAN STOP THE OPERATION BY REFUSING TO UNLATCH THE

ELEVATORS 

### .” T HESE FINDINGS SUGGEST THAT THE DISTRICT COURT BELIEVED THAT 

### C RAWFORD

WAS JUST AS INVOLVED IN 

### ( AND RESPONSIBLE FOR 

### ) THE PROCESS OF TRIPPING THE PIPE AS

WERE THE WORKERS ON THE DRILL FLOOR



### . I N LIGHT OF THE SUBSTANTIAL POSSIBILITY THAT

THE APPLICATION OF ERRONEOUS 

### J ONES 

### A CT NEGLIGENCE STANDARDS AFFECTED THE DISTRICT

COURT 

### ’ S DETERMINATION OF THE ISSUE OF 

### C RAWFORD 

### ’ S POSSIBLE CONTRIBUTORY NEGLIGENCE



### ,

WE FIND THAT 

### F ALCON 

### D RILLING 

### ’ S DEFENSE WAS MATERIALLY PREJUDICED



### . W HETHER OR NOT

A RECONSIDERATION UNDER THE PROPER STANDARDS WILL ULTIMATELY RESULT IN A FINDING OF

CONTR IBUTORY NEGLIGENCE



### , THE PRESENCE OF EVIDENCE IN THE RECORD SUGGESTING THAT



### C RAWFORD 

### ’ S OWN NEGLECT COU LD HAVE CONTRIBUTED TO HIS ACCIDENT PERSUADES US THAT



### F ALCON 

### D RILLING 

### ’ S SUBSTANTIAL RIGHTS HAVE BEEN AFFECTED FOR THE PURPOSES OF PLAIN



### ERROR ANALYSIS



### .

D.

F INALLY



### , WE TURN TO THE QUESTION OF WHETHER THE ERROR IN THIS CASE SERIOUSLY

### -15-

AFFECTS THE FAIRNESS



### , INTEGRITY



### , OR PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS



### . S EE



### O LANO



### , 507 U.S. AT 

### 732. T HIS PART OF THE 

### O LANO TEST ESSENTIALLY ENTRUSTS US TO

EXERCISE OUR JUDICIAL DISCRETION TO DETERMINE WHETHER OR NOT THIS IS THE KIND OF

EXCEPTIONAL CASE THAT MERITS REVERSAL ON THE BASIS OF PLAIN ERROR



### . S EE ID



### . A T



### 735-37; J

OHNSON



### , 117 S. C T



### . AT 

### 1550; C ALVERLEY



### , 37 F.3 D AT 

### 164. A N ARRAY

OF FACTORS CONVINCE US THAT THIS STANDARD IS MET IN THE PRESENT CASE



### .

F IRST



### , THE SIMILARITY BETWEEN THE PROCEDURAL SETT I NG OF THIS CASE AND THAT

OF 

### H ORMEL V



### . H

ELVERING



### , 312 U.S. 552 (1941), IS COMPELLING



### . I N 

### H ORMEL



### , THE



### C OMMISSIONER OF 

### I NTERNAL 

### R EVENUE ASSESSED A DEF ICIENCY AGAINST 

### M R



### . H ORMEL FOR

FAILURE TO REPORT ON HIS INDIVIDUAL INCOME TAX RETU RNS THE INCOME FROM SEVERAL

TRUSTS WHICH THE 

### C OMMISSIONER DEEMED TO BE REVOCABLE 

### ( THE INCOME FROM SUCH TRUSTS

THEREFORE BEING A TTRIBUTABLE TO THE DEFENDANT 

### )

. T HE 

### C OMMISSIONER DEFENDED HIS

POSITION BY RELYING ON 

### S ECTIONS 

### 166 AND 

### 167 OF THE 

### I NTERNAL 

### R EVENUE 

### C ODE



### . T HE



### B OARD OF 

### T AX 

### A PPEALS RULED IN FAVOR O F 

### M R



### . H ORMEL ON THE QUESTION OF WHETHER HE

WAS LIABLE FOR TAXES ON THE TRUST INCOME



### . O N APPEAL TO TH E 

### E IGHTH 

### C IRCUIT



### , THE



### C OMMISSIONER ABANDONED HIS RELIANCE ON 

### S ECTION 

### 166, AND RELIED ON 

### S ECTIONS 

### 22( A 

### )

AND 

### 167 TO SUPPORT THE FINDIN G OF DEFICIENCY



### . T HE DEFENDANT OBJECTED TO THE



### C OMMISSIONER 

### ’ S USE OF A NEW ARGUMENT



### , THAT BASED ON 

### S ECTION 

### 22( A 

### ), ON APPEAL



### .

S TILL



### , THE 

### E IGHTH 

### C IRCUIT REVERSED THE JUDGMENT OF THE 

### B OARD OF 

### T AX 

### A PPEALS



### ,

HOLDING THAT 

### S ECTION 

### 22( A 

### ) GOVERNED THE MATTER AND DICTATED THE RESULT ADVOCATED

BY THE 

### C OMMISSIONER



### . S EE 

### H ORMEL



### , 312 U.S. AT 

### 553-55.

T HE 

### S UPREME 

### C OURT GRANTED CERTIORARI



### , AND DIRECTLY CONFRONTED THE PROPRIETY

OF THE 

### E IGHTH 

### C IRCUIT 

### ’ S CONSIDERATION OF A NEW LEGAL ARGUMENT ON APPEAL



### . T HE



### C OURT NOTED THAT 

### “[ O 

### ] RDINARILY AN APPELLATE COURT DOES NOT GIVE CONSIDERATION TO

ISSUES NOT RAISED BELOW 

### ,” BUT ALSO THAT 

### “[ T 

### ] HERE MAY ALWAYS BE EXCEPTIONAL CASES

OR PARTICULAR CIRCUMSTANCES WHICH WILL PROMPT A REVIEWING OR APPELLATE COURT



### , WHERE

### -16-

INJUSTICE MIGHT OTHERWISE RESULT



### , TO CONSIDER QUESTIONS OF LAW WHICH WERE NEITHER

PRESSED NOR PASSED UPON BY THE COURT OR ADMINISTRATIVE AGENCY BELOW 

### .” I D



### . AT 

### 556,

557. T HE 

### C OURT THEN DISCUSSED THE PECULIAR SETTING OF THE CASE BEFORE IT 

### :

[W] E ARE OF OPINION THAT THE COURT BELOW SHOULD HAVE GIVEN AND

PROPERLY DID GIVE CONSIDERATION TO SECTION 

### 22( A 

### ) IN DETERMINING

PETITIONER 

### ’ S TAX LIABILITY



### . T HE 

### C OMMISSIONER URGED THIS POINT

BEFORE THE 

### C IRCUIT 

### C OURT OF 

### A PPEALS AND HAS STRONGLY PRESENTED

IT HERE



### . A T THE TIME THE 

### B OARD OF 

### T AX 

### A PPEALS MADE ITS

DECISION IN THIS CASE



### , WE HAD NOT YET HANDED DOWN OUR OPINION IN



### H ELVERING V



### . C

LIFFORD



### , 309 U.S. 331 [(1940)], IN WHICH WE

HELD THAT UNDER SECTION 

### 22( A 

### ) THE INCOME OF CERTAIN TRUSTS WAS

TAXABLE TO RESPONDENT



### . . . . A S THE RECORD NOW STANDS WE THINK

THE COURT BELOW CORRECTLY CONCLUDED THAT THE TRUST INCOME WAS

TAXABLE TO PETITIONER UNDER THE PRINCIPLES ANNOUNCED IN THE



### C LIFFORD CASE



### . T HEREFORE TO APPLY HERE THE GENERAL PRINCIPLE

OF APPELLATE PRACTICE FOR WHICH PETITIONER CONTENDS WOULD RESULT

IN PERMITTING HIM WHOLLY TO ESCAPE PAYMENT OF A TAX WHICH UNDER

THE RECORD BEFORE US HE CLEARLY OWES



### . T HUS VIEWED



### , THIS IS

EXACTLY THE TYPE OF CASE WHERE APPLICATION OF THE GENERAL

PRACTICE WOULD DEFEAT RATHER THAN PROMOTE THE ENDS OF JUSTICE



### ,

AND THE COURT BELOW WAS RIGHT IN SO HOLDING



### .

I D



### . AT 

### 559-60. T HE 

### S UPREME 

### C OURT THUS AFFIRMED THE 

### E IGHTH 

### C IRCUIT AND DIRECTED

THAT THE CASE BE REMANDED TO THE 

### B OARD OF 

### T AX 

### A PPEALS FOR FURTHER FACT FINDING AND

PROCEEDINGS IN LIGHT OF THE INTERVENING 

### C LIFFORD OPINION



### . S EE ID



### . AT 

### 560. I T IS

HARD TO IMAGINE A CASE CLOS ER TO THE POINT THAN THIS



### . T HE 

### C OURT 

### ’ S HOLDING IN



### H ORMEL STRONGLY SUPPORTS



### -- IF NOT COMPELS



### -- OUR DETERMINATION THAT A TRIAL ERROR

THAT BECOMES PLAIN ON DIRECT APPEAL IN LIGHT OF AN INTERVENING JUDICIAL ANNOUNCEMENT

OF A CONTROLLING RU LE IMPLICATES THE SORT OF SERIOUS EFFECT ON THE 

### “ FAIRNESS



### ,

INTEGRITY



### , OR PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS 

### ” ENVISIONED BY 

### O LANO



### .

E VEN IF THE RESULT IN 

### H ORMEL WERE NOT SUFFICIENTLY SUGGESTIVE



### , WE WOULD BE

PERSUADE D TO EXERCISE OUR DISCRETION BY THE PRESENCE OF OTHER FACTORS



### . F OR

EXA MPLE



### , THE VERY FACT THAT WE GRANTED EN BANC REVIEW IN 

### G AUTREAUX SUGGESTS THAT

THE CONFUSION AND CONFLICT THAT CHARACTERIZED OUR PRIOR PRECEDENTS IN THIS AREA OF

LAW COMPROMISED T HE FAIRNESS



### , INTEGRITY



### , OR PUBLIC REPUTATION OF JUDICIAL

PROCEEDINGS



### . W E REMEDIED THAT PROBLEM BY ANNOUNCING A NEW RULE AND GRANTING RELIEF

### -17-

TO THE 

### G

AUTREAUX DEFENDANT



### . T HE REASONS THAT PROMPTED OUR 

### C OURT TO PAUSE AND TAKE

STOCK OF OUR 

### J ONES 

### A CT JURISPRUDENCE ALSO SUPPORT GRANTING RELIEF IN THIS CASE



### .

T HE CASE BEFORE US IS A DIRECT APPEAL 

### ; C RAW FORD SHOULD NOT GET THE ADVANTAGE OF

PRE



### - G AUTREAUX RULES MERELY BECAUSE OF THE FORTUITY OF THE TIMING OF THE RELEVANT

DECISIONS



### .

F URTHERMORE



### , OUR DISCRETION IS INFORMED BY THE FACT THAT THIS CASE WAS TRIED

TO THE COURT



### . A CHIEF JUSTIFICAT ION FOR OUR GENERAL RULE AGAINST PERMITTING NEW

ISSUES TO BE RAISED ON APPEAL IS THE CONCERN 

### “ OF THE PUBLIC INTEREST 

### ” FOR

PROTECTING THE FINALITY OF JUDGMENTS



### . U NITED 

### S TATES V



### . A TKINSON



### , 297 U.S. 157,

159 (1936); SEE ALSO 

### C ALVERLEY



### , 37 F.3 D AT 

### 162. T HE PARTIES 

### ’ INTEREST IN

FINALITY IS SELF



### - EVIDENT 

### ; THE 

### “ PUBLIC CONCERN 

### ” FOR FINALITY IS BASED ON THE NEED

TO CONSERVE LIMITED JUDICIAL RESOURCES



### . I N THIS CASE



### , ACKNOWLEDGING THE PRESENCE

OF PLAIN ERROR AND REMANDING THE CASE FOR FURTHER PROCEEDINGS WILL NOT UNNECESSARILY

BURDEN OUR FE D ERAL COURTS 

### ’ TREMENDOUS CASELOAD



### . A SITUATION WHICH WOULD REQUIRE

REPEATING A LENGTHY JURY TRIAL MIGHT PRESENT A DIFFERENT CASE



### . H ERE



### , HOWEVER



### , THE

DISTRICT COURT ABLY CONDUCTED THE BENCH TRIAL BELOW AN D IS ALREADY INTIMATELY

FAMILIAR WITH THE FACTS OF THIS CASE



### . A LL THAT IS REQUIRED ON REMAND IS A

RECONSIDERATI ON OF THE DISTRICT COURT 

### ’ S PRIOR CONCLUSIONS IN LIGHT OF 

### G AUTREAUX



### .

W E CONFIDENTLY LEAVE THE QUESTION OF WHETHER THIS PROCESS WILL REQUIRE FURTHER

SUBMISSIONS OR ARGUMENTS FROM THE PARTIES TO THE SOUND DISCRETION OF THE DISTRICT

COURT



### .

I N SUM



### , THEN



### , THE 

### S UPREME 

### C OURT 

### ’ S DECISION IN 

### H ORMEL



### , OUR RECOGNITION OF THE

FUNDAMENTAL NATURE OF THE CHANGE IN OUR 

### C IRCUIT 

### ’ S INTERPRETAT I ON OF 

### J ONES 

### A CT

NEGLIGENCE STANDARDS EFFECTED BY 

### G AUTREAUX



### , AND THE FACT THAT WE ARE DEALING WITH

THE AFTERMATH OF A BENCH TRIAL CONDUCTED ON THE EVE OF 

### G AUTREAUX 

### ’ S SEA CHANGE



### , ALL

CONVINCE US T HAT THE PRESENT APPEAL IS AN APPROPRIATE CASE FOR RECOGNIZING PLAIN

### -18-

ERROR



### . W E THEREFORE CONCLUDE THAT THE ERROR 

### ’ S SERIOUS EFFECT ON THE FAIRNESS



### ,

INTEGRITY



### , OR PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS REQUIRES US TO VACATE THE

DISTRICT COURT 

### ’ S JUDGMENT AS TO THE RESPECTIVE LIABILITY OF THE PARTIES



### .

IV.

F ALCON 

### D RILLING ALSO APPEALS THE AMOUNT OF DAMAGES AWARDED TO 

### C RAWFORD



### . W E

REVIEW FOR CLEAR ERROR



### . S EE 

### F ED



### . R. C IV



### . P. 52(a); Nichols v. Petroleum

Helicopters, Inc. , 17 F.3d 119, 121 (5th Cir. 1994). We have

considered the arguments on appeal and the evidence presented to

the district court. The award entered by the district court was

based on a finding of Crawford’s future earnings that fell within

the range of earnings sug gested by the evidence at trial. We

conclu de that the district court’s findings with respect to the

amount of Crawford’s damages were not clearly erroneous.

V.

In light of our Court’s holdi ng in G autreaux

, the district

court’s finding s of fact and conclusions of law regarding the

liability of the parties are plainly erroneous. We emphasize that

we cast no aspersion on the district court’s application of the law

as it stood under our Circuit’s governing precedents at the time

this case was tried. But we will not close our eyes to the plain

error committed below, even though that error is apparent only with

the benefit of appellate hindsight.

We affirmthe district court’s valuation of Crawford’s

damages. Of course, any reallocation of liability that may result

### -19-

from the proceedings on remand will require an approp riate

a l location of responsibility among the parties for Crawford’s

damages, and we therefore vacate the damages award.

The judgment of the district court is AFFIRMED in part and

VACATED in part, and the case is REMANDED for further proceedings

consistent with the holdings of this Court in Gautreaux v. Scurlock

Marine, Inc. , 107 F.3d 331 (5th Cir. 1997) (en banc).