* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-60626

Summary Calendar

_____________________

SARAH ANN LOWRY, ET VIR KENNETH O. LOWRY,

Plaintiff-Appellee,

and

KENNETH O. LOWRY,

Plaintiff,

versus

OVERSEAS BULK TANK CORPORATION

AND MARITIME OVERSEAS CORPORATION,

Defendants,

and

 OVERSEAS BULK TANK CORPORATION,

Defendant-Appellant.

_________________________________________________________________

Appeals from the United States District Court

for the Southern District of Texas 

(93-CV-336)

_________________________________________________________________

(July 21, 1995)

Before JOHNSON, BARKSDALE, and PARKER, Circuit Judges.*

JOHNSON, Circuit Judge:

Ship agent claiming she was injured when boarding a vessel

brought suit against the owner of the vessel contending that her
 

1 Shortly after this party boarded the vessel, the crew

secured the bulwark ladder to the gangway.

2

injuries were caused by the failure to provide a reasonably safe

means of ingress to the vessel. After a bench trial, the district

court found the vessel owner fifty percent liable and the agent

fifty percent liable for the injuries and awarded judgment to the

agent. Vessel owner now appeals and we AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

Sarah Ann Lowry was employed by Evans RUR as a ship agent and

was assigned to "enter and clear" the M/V OVERSEAS ARCTIC through

customs and immigration and to make arrangements to have payroll

brought aboard the vessel. Lowry arrived at the dock at about 9:00

A.M. on February 29th, 1992 and, along with two customs officers,

an immigration officer and some security guards, awaited the

arrival of the vessel. When the vessel arrived and was made fast

to the dock, shoreside personnel placed the gangway on the ship's

rail. 

At this point Lowry, the customs and immigration officers, and

the security guards proceeded up the gangway. Upon reaching the

top of the gangway, this party discovered that the bulwark ladder,

a movable device which provides steps from the gangway to the

vessel's deck, had not yet been placed by the crew. The customs

and immigration officials jumped from the gangway to the vessel's

deck, a distance of approximately forty inches. Lowry sat down on

the gangway's edge and, with the help of an immigration officer and

a security guard who supported her arms, hopped down to the deck.1 
 

2 Lowry also pursued claims against Maritime Overseas Corporation, the operator of the vessel, but those claims were

dismissed with prejudice during trial and are not before us.

 

3 Additionally, the district court determined that Lowry

was not a maritime worker as defined by the Longshore and Harbor

Workers Compensation Act, 33 U.S.C. § 901 et seq. and, therefore,

general maritime law governs this case. The parties do not

dispute this finding.

3

Lowry completed her duties that day without reporting any injuries.

The next day, however, Lowry went to the Brazos Memorial

Hospital Emergency Room to be treated for back pain. She returned

two days later with similar complaints. Her treatment thereafter

continued for several months and she required surgery in October of

1992.

Lowry filed a complaint in redress of her injuries seeking

damages against Overseas Bulk Tank Corporation (Bulk Tank), the

owner of the vessel.2 After a trial to the bench, the district

court found equal negligence between Bulk Tank, who failed to

provide a safe means of ingress, and Lowry, who should have waited

for the bulwark ladder to be secured. Further, the district court

found that Bulk Tank's negligence caused Lowry's injuries.3

Accordingly, the district court awarded Lowry fifty percent of her

medical expenses, lost future earning capacity, past earning loss,

and pain and suffering. Bulk Tank timely appealed.

II. DISCUSSION

A. Duty and Breach

In an admiralty action tried to the bench, factual findings of

the district court are binding unless clearly erroneous. Avondale

Industries, Inc. v. international Marine Carriers, Inc., 15 F.3d
4

489, 492 (5th Cir. 1994). Further, questions concerning the

existence of negligence and causation are treated as factual issues

subject to the clearly erroneous standard. Id. A factual finding

is not clearly erroneous if it is plausible in light of the record

taken as a whole. Anderson v. City of Bessemer City, 470 U.S. 564,

573-74, 105 S.Ct. 1504, 1511 (1985). Questions of law are reviewed

de novo. Dow Chemical Company v. M/V ROBERTA TABOR, 815 F.2d 1037,

1042 (5th Cir. 1987).

General principles of negligence guide the analysis of a

maritime tort case. Daigle v. Point Landing, Inc., 616 F.2d 825,

827 (5th Cir. 1980). To prove negligence under general maritime

law, a plaintiff "must demonstrate that there was a duty owed by

the defendant to the plaintiff, breach of that duty, injury

sustained by the plaintiff and a causal connection between

defendant's conduct and plaintiff's injury." In re Cooper/T.

Smith, 929 F.2d 1073, 1077 (5th Cir.), cert. denied, 112 S.Ct. 190

(1991). 

Under general maritime law, a defendant owes a plaintiff a

duty of ordinary care, which includes a duty to warn only of harm

that is reasonably foreseeable. Casaceli v. Martech Int'l, Inc.,

774 F.2d 1322, 1328-29 (5th Cir. 1985). The circumstances of the

danger and the defendant's knowledge of the risk determine the

required degree of care. Id. at 1329. A harm is a "foreseeable

consequence of an act or omission if harm of a general sort to

persons of a general class might have been anticipated by a

reasonably thoughtful person, as a probable result of the act or
5

omission, considering the interplay of natural forces and likely

human intervention." Consolidated Aluminum Corp. v. C.F. Bean

Corp., 833 F.2d 65, 68 (5th Cir. 1987), cert. denied 108 S.Ct. 2821

(1988).

The duty implicated in this case is a shipowner's duty to

exercise reasonable care under the circumstances toward those

lawfully aboard the vessel who are not crewmembers. Kermarec v.

Companie Generale Transalantique, 358 U.S. 625, 630, 79 S.Ct. 406,

409 (1959). Included within this duty is the duty to provide a

safe means of ingress to the vessel. See Massey v. WilliamsMcWilliams, Inc., 414 F.2d 675, 679 (5th Cir. 1969) (shipowner has

duty to provide safe egress for crewmembers), cert. denied, 90

S.Ct. 282 (1970).

The district court herein found that Bulk Tank breached this

duty to provide a safe means of ingress to its vessel because the

gangway without a bulwark ladder constituted a dangerous condition

and Bulk Tank failed to prevent access to the vessel until the

ladder was in place. The bulwark ladder was secured to the gangway

within minutes after Lowry boarded, though. Thus, the district

court also found that, especially in light of her physical

limitations, Lowry could have easily postponed boarding the vessel

despite her perceived need to board simultaneously with the customs

and immigration officials. Accordingly, the district court

determined that the parties were equally negligent.

We conclude that the findings as to Bulk Tank's breach of duty

are plausible in light of the record as a whole. First, there was
6

testimony showing that the shore gangway is commonly placed aboard

a vessel without permission or notification, that persons commonly

board vessels before completion of the docking procedures, and that

it is not safe for persons to board a vessel before such

completion. Thus, the record shows that gangway accidents were

foreseeable. Moreover, the record shows that, despite the

foreseeability of this type of harm, the captain did not take steps

to ensure safe ingress to the vessel such as assigning a crewmember

to the gangway to prevent access before placement of the bulwark

ladder. Hence, it was plausible for the district court to conclude

that the resultant harm to Lowry was a foreseeable consequence of

the failure to secure the bulwark ladder before allowing access to

the vessel.

Moreover, we cannot agree with Bulk Tank's chief argument

that, as opposed to merely being fifty percent negligent, Lowry was

100 percent negligent because, despite the obvious danger posed by

the lack of the bulwark ladder, she impatiently jumped to the deck. 

The essence of this argument is that Bulk Tank simply could not

foresee that Lowry would jump. However, as noted above, there was

testimony that persons commonly board the vessel before docking

procedures are completed. Moreover, everyone else in the boarding

party--two customs agents, an immigration official and two security

guards--jumped. While Bulk Tank claims it was unable to divine

that persons boarding the vessel would, instead of waiting for the

bulwark ladder to be secured, attempt to negotiate the forty inches

between the gangway and the deck, we are unsurprised. We agree
7

with the district court that it was negligent for Lowry to do so,

but we cannot agree that this was the sole cause of the accident.

Lastly, we cannot agree with Bulk Tank that the district court

applied the strict liability doctrine of unseaworthiness to its

analysis. Although the district court did cite several Jones Act

cases to establish a shipowner's duty to provide safe ingress and

egress to and from its vessel, the court's analysis focused on its

determination of Bulk Tank's duty to exercise reasonable care and

its breach of that duty.

Accordingly, we conclude that the district court did not

clearly err in determining that Bulk Tank breached its duty to

provide a safe means of ingress to its vessel.

B. Causation and Damages

In this issue, Bulk Tank initially argues that Lowry's

injuries were not caused by the incident on the vessel. Under

general maritime law, a party's negligence is actionable only if it

is a "legal cause" of the plaintiff's injuries. Donaghey v. Ocean

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

Legal cause is "something more than `but for' causation, and the

negligence must be a `substantial factor' in the injury." Id.

(citation and internal quotation omitted). Substantial factor

means more than but for the negligence, the harm would not have

resulted. Id. A district court's finding relating to legal cause

is a fact finding reviewed only for clear error. Avondale

Industries, 15 F.3d at 492.

This argument by Bulk Tank is basically a recitation of the
8

evidence at trial from which the district court could have

determined that the incident on the vessels was not the cause of

Lowry's injuries. Hence, Bulk Tank stresses that Lowry had preexisting back problems and that the jump from the gangway to the

deck was very short. Further, Bulk Tank points to conflicting

medical testimony and a later injury involving a fall down some

stairs. Undoubtedly, this evidence could have supported a finding

by the district court that the jump from the gangway was not the

legal cause of the accident.

However, there was also evidence in the record supporting the

determination that the district court did make--that Bulk Tank's

negligence was the legal cause of the accident. Although Lowry did

have pre-existing back problems, the district court noted that she

had not needed treatment for those problems for more than two years

before the incident on the vessel. However, the day after the

incident on the vessel, Lowry obviously began having problems with

her back. Further, both Dr. Southern, the physician who performed

the surgery on Lowry, and Dr. Kilian, the physician who treated

Lowry immediately after the accident, attributed the injuries to

the jump from the gangway. In light of this evidence, we cannot

say that the district court's conclusion was implausible in light

of the record as a whole. See Anderson, 105 S.Ct. at 1511. Thus,

the district court did not clearly err in finding that Bulk Tank's

negligence was the legal cause of Lowry's injuries.

Finally, Bulk tank contests the district court's calculation

of damages arguing that Lowry's damages for lost wages should be
9

limited to her period of temporary disability. This is because,

according to Bulk Tank, the medical evidence showed that after she

reached maximum medical improvement, she could have returned to

work at substantially the same wages.

Trial courts are given great latitude in determining the

amount of damages to be awarded, and that determination should not

be set aside unless clearly erroneous. See Nichols v. Petroleum

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

not appropriate unless, after reviewing the entire record, this

Court is left with the unequivocal impression that a mistake has

been made. Id.

In this case, Drs. Kilian and Southern both treated Lowry

after the surgery. Both doctors testified that Lowry would be

unable to work in a job that required prolonged sitting or

standing, stooping, bending, or heavy lifting. Dr. Kilian

testified that Lowry suffered from constant pain that prevented her

from working at the time of his testimony. Further, Viola Lopez, a

vocational rehabilitation expert, testified that Lowry's previous

job was not within the physical restrictions imposed by the

doctors. Lopez also testified that Lowry's ability to secure

employment in the future would be adversely affected by her medical

condition. Considering this evidence, we cannot say that the

district court's finding as to Lowry's ability to return to work is

implausible in light of the record as a whole. See Anderson, 105

S.Ct. at 1511. 

Accordingly, we find no clear error in the district court's
10

findings as to causation and damages.

III. CONCLUSION

For the reasons stated above, the judgment of the district

court is AFFIRMED.