* District Judge of the Southern District of Mississippi,

sitting by designation.

1 

### REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-30843.

Leroy J. MARCEAUX, Plaintiff-Appellee,

v.

CONOCO, INC., Defendant-Appellant.

Oct. 13, 1997.

A ppeal from the United States District Court for the Western

District of Louisiana.

Before DeMOSS and DENNIS, Circuit Judges, and LEE, District Judge *

.

DENNIS, Circuit Judge:

Alleging Jones Act negligence pursuant to 46 U.S.C.App. § 688

and unseaworthiness u nder the general maritime law, the

plainti ff-appellee, Leroy J. Marceaux, brought this suit against

his employer , Conoco, Inc., the defendant-appellant herein, for

injuries he sustained while working aboard the M/V LAKE CHARLES, a

vessel owned and operated by Conoco. Following a trial on the

merits, a jury returned a verdict in favor of Mr. Marceaux finding

that the defendant had been negligent under the Jones Act, that the

vessel had been unseaworthy and that both had been a legal cause of

injury to the plaintiff. In addition, the jury found that the

p laintiff had not been contributorily negligent under either a

Jones Act n egligence or an unseaworthiness standard. A judgment2

was duly entered in the plaintiff's favor. The defendant has

appealed the judgment for the plaintiff on the following grounds:

(1) that the district court erred in all owing the plaintiff's

expert, Dr. Gary Nelson, to testify at trial, (2) that the evidence

was insufficient to support a verdict of Jones Act negligence or

unseaworthiness, and (3) that the district court committed

reversible error when it refused to instruct the jury as to the

plaintiff's alleged additional duty to make the work place safe or

to inspect the premises. Finding no error, we affirm the judgment

of the district court.

Background

Prior to the accident which gave rise to this litigation, the

plaintiff-appellee, Leroy Marceaux, was employed by the

defendant-appellant, Conoco, Inc., as a pilot/wheelman aboard the

M/V LAKE CHARLES. The M/V LAKE CHARLES, which is owned by Conoco,

is a "pushboat" and is utilized in pushing barges carrying oil and

gas products back and forth from oil refineries and facilities

within the Louisiana-Texas Gulf region. On May 21, 1993, the date

of the accident in question, the M/V LA KE CHARLES was docked at

Westlake, Lou isiana after pushing two barges loaded with an oil

by-product, carbon black, from Port Arthur, Texas.

Once docked, it became necessary for the crew of the M/V LAKE

CHARLES to off-load the carbon black onto the dock. The

off-loading operation was a two man job in which the vessel's

tankerman, Mike Fruge, was in charge. Marceaux was assigned to

assist Fruge in prepar ing the barges and then off-loading the3

carbon black from the out-bound barge to the in-bound barge and

then onto the dock. In preparing the barges for off-load, Marceaux

and Fruge had to connect a number of large heavy crossover hoses to

facilitate pumping th e product off the barge. During the

preparation, Fruge directed Marceaux to pick up one of the

crossover hoses and maneuver it into the proper posit ion for

connection to a flange. When Marceaux attempted to pick up the

hose he felt a sharp pain in the lower part of his back, groaned,

and then fell to his knees. He then needed the help of his

shipmate to reach his feet. Marceaux had injured his back while

attempting to lift the hose and later learned that he had in fact

ruptured two disks.

Following the May 21, 1993 accident, Marceaux filed the

instant complaint alleging that he was entitled to recover for his

back injury under two theories of liability, viz. the Jones Act

and/or th e general maritime law of unseaworthiness. Conoco

asserted various defenses to the suit including that the accident

did not occur and that, alter natively, Marceaux's own negligence

had caused his injury.

A jury trial ensued. At trial, the plaintiff described how,

during his attempt to lift the crossover hose, his back was injured

and the extent of those injuries. Marceaux stated that, while he

had been taug ht proper lifting procedures, he had never been

instructed not to lift something as heavy as the crossover hose

without mechanical or manual assistance. Moreover, he informed the

jury that he had been attempting to lift the heavy hose pursuant to4

the direction of Tankerman Fruge who was in charge of the

operation. Subsequently, Marceaux's testimony concerning Tankerman

Fruge's authority over the off-loading procedure was corroborated

by Larry Morrow, a former Conoco empl oyee. In addition to these

witnesses, Marceaux called one expert, Dr. Gary Nelson, in support

of the liability portion of his case. Dr. Nelson testified that

Conoco had been negligent in its training of Marceaux because it

failed to instruct him not to lift any object weighing as much as

the crossover hose without consulting with management first or how

the crossover hose's weight correlated with the lifting procedures

he had been taught. Prior to trial, Conoco had sought, through a

motion in limine, to have Dr. Nelson's expert testimony excluded on

the grounds that his testimony would not be helpful to the jury and

was thus inadmissible. Fed.R.Evid. 702. The motion was denied.

At trial, the plaintiff, after a voir dire of Dr. Nelson's

qualifications by both sides, tendered Dr. Nelson as an expert in

safety with an expertise in workplace lifting. The defendant did

not object to Dr. Nelson's qualifications or testimony at trial.

After a five day trial, the jury returned a verdict in favor

of Marceaux. After finding that an accident had occurred on May

21, 1993, the jury determined that Conoco had been negligent under

the Jones Act, that such negligence had been a le gal cause of

Marceaux's injury and that Marceaux had not been contributorily

negligent under the Jones Act. Additionally, in answers to

separate interrogatories, the jury held that the M/V LAKE CHARLES

was unseaworthy, that the unseaworthiness had been a legal cause of5

injury to the plaintiff and that the plaintiff had not been

contributorily negligent under the general maritime law. A

judgment was entered in favor of Marceaux and this appeal followed.

Analysis

1. Dr. Gary Nelson—Plaintiff's Expert Witness

Conoco contends that the distri ct court committed manifest

error in permitting the plaintiff's expert, Dr. Gary Nelson, to

testify at trial. Dr. Nelson was tendered by the plaintiff, and

accepted by the district court, as an "expert i n safety with an

expertise in workplace lifting." R. Vol. 8, p. 19. His testimony

consisted of explaining to the jury the nature of workplace safety

engineering, an evaluation of the defendant's training procedures

in regard to lifting in the workplace and why, based on studies and

his analysis, the defendant had failed to properly train Marceaux

to handle the situation he was faced with on May 21, 1993. Conoco

asserts on appeal that Dr. Nelson's testimony was within the common

knowledge of the jurors, would not have been helpful to the jurors

in determining a fact at issue, and was thus inadmissible under

Federal Rule of Evidence 702. However, the plaintiff-appellee

directs the court to the fact that the defendant-appellant did not

object to Dr. Nelson's testimony when it was offered at trial,

therefore, waiving its right to object on appeal. S ee Fed.R.Evid.

103(a)(1).

Conoco offers two ar guments in response. First, Conoco

contends that its motion in limine seeking to exclude Dr. Nelson on

the grounds stated above, which was denied prior to trial, should6

be considered as preserving their objection to Dr. Nelson's

testimony for appellate purposes. Conoco's assertion runs contrary

to the clearly established law of this c ircuit. In M arcel v.

Placid Oil Co., 11 F.3d 563 (5th Cir.1994), the defendant sought to

prevent the plaintiff's expert economist from testifying through a

motion in limine which was denied prior to trial. M arcel, 11 F.3d

at 566. When the economist's testimony was proffered at trial, the

defendant did not object to his testimony and, therefore, the court

held it could not contest the district court's ruling as to the

economist on appeal. I d. (citing Fed.R.Evid. 103(a)(1)). In so

holding, the court stated that "[t]he general rule in this Circuit

is that "an overruled motion in limine does not preserve error on

appeal.' " I d. at 567 (quoting, Rojas v. Richardson, 703 F.2d 186,

189 (5th Cir. 1983)); S ee also Wilson v. Waggener, 837 F.2d 220,

222 (5th Cir.1988) ("A party whose motion in limine is overruled

must renew his objection when the evidence is about to be

introduced at trial."). The reasoning behind this rule is a sound

one. A requirement of a contemporaneous objection to evidence

previously objected to gives the trial judge an opportunity to

"reconsider his in limine ruling with the benefit of having been

witness to the unfolding events at trial." U nited States v.

Graves, 5 F.3d 1546, 1552 (5th Cir.1993). In this case, Conoco's

failure to object at trial to Dr. Nelson's testimony when offered

cannot be salvaged by their motion in limine.

In Conoco's second argument, they assert that their

questioning of Dr. Nelson at trial about his qualifications and the7

plaintiff's objection to that line of questioning considering the

district court's prior ruling effectively "reiterated" Conoco's

objection to Dr. Nelson. This contention is without merit.

Conoco's cross-examination of Dr. Nelson's qualifications was

clearly an attack on his credibility concerning maritime accidents

and not on his ability to testify under Rule 702. In addition, the

bench conference concerning the plaintiff's objection did not, in

any way, renew the defendant's in limine objection to Dr. Nelson's

expert testimony. See Fed.R.Evid. 103(a)(1).

Notwithstanding the defendant's failure to object at trial,

we may review its objection to the admission of Dr. Nelson's

testimony for plain error. Fed.R.Evid. 103(d). Reversal for plain

error is only appropriate where the alleged error was obvious,

substantial and would result in a "miscarriage of justice" if not

corrected. W ilson, 837 F.2d at 222. The district court's

admission of Dr. Nels on's expert testimony was clearly not plain

error. Dr. Nelson provided the jury with "specialized knowledge"

co ncerning safe lifting practices and training procedures which

helped the jury to "understand the evidence" and "determine a fact

in issue" viz. whether Marceaux was i mproperly trained to handle

the situation he was confronted with aboard the M/V LAKE CHARLES.

See Fed.R.Evid. 702.

2. Was the jury's finding of unseaworthiness unsupported by the

evidence?

One of the two alternative theories of liability alleged by

the plaintiff in this action was that the M/V LAKE CHARLES was

unseaworthy and that this unseaworthiness was a legal cause of the8

plaintiff's injuries. The general maritime law places upon a

vessel owner a non-delegable duty to provide a seaman with a vessel

reasonably fit for its intended use. See Comeaux v. T.L. James &

Co., 666 F.2d 294, 298-99 (Former 5th Cir.1982); 1 Thomas J.

Schoenbaum, A DMIRALTY AND M ARITIME L AW § 6-25 (2d ed. 1994). This duty

can be breached and a vessel rendered unseaworthy by an inadequate,

understaffed or ill-trained crew. Orient Mid-East Lines, Inc. v.

A Shipment of Rice, 496 F.2d 1032, 1040 (5th Cir.1974); Brown v.

Cliff's Drilling Co., 638 F.Supp. 1009, 1014 (E.D.Tex.1986); 1B

B ENEDICT ON A DMIRALTY § 24 at 3-74 (7th ed. 1996).

At trial, the plaintiff's expert, Dr. Nelson, testified that

Marceaux was ill-trained for the task he was assigned to perform

aboard the M/V LAKE CHARLES. Marceaux confirmed his lack of

knowledge reg arding his ability to lift the crossover hose using

the procedures he had been taught by Conoco and testified as to how

the attempted lift injured his back. In addition, there was

testimony offered as to the lack of mechanical devices to aid him

in the off-loading operation. There was clearly sufficient

evidence for the jury to find that the vessel was unseaworthy due

to an imprope rly trained crew and that the vessel's unseaworthy

condition was a legal cause of injury to the plaintiff. S ee Boeing

Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) ( e n banc ).

Having affirmed the jury's verdict as to unseaworthiness, we need

not address the defendant's contentions regarding the sufficiency

of the evidence s upporting the jury's finding of Jones Act

negligence.9

The trial judge instructed the jury as to the defendant's

defense of contributory negligence in two separate sections of the

c harge. One section addressed contributory negligence under the

Jones Act and the other under the general maritime law. The

defendant did not object to either instruction at trial and does

not object to the unseaworthiness contributory negligence charge on

appeal. Additionally, the district court provided the jury with

separate interrogatories requesting separate findings of

contributory negligence a s to both the plaintiff's Jones Act and

unseaworthiness claim. S ee Record Excerpt 3. The jury found no

contributory negligence under either standard. Having conducted an

independent review of the district court's unseaworthiness

contributory negligence instruction , we find that it correctly

stated the law of contributory negligence und er the general

maritime law, viz. ordinary prudence. Considering the trial

court's separate charge and interrogatories on contributory

negligence this court need not address the defendant-appe llant's

assignment of error to the district court's Jones Act contributory

negligence charge raised in its reply brief.

3. Did the district court commit manifest error in refusing to

instruct the jury as requested by the defendant-appellant with

regard to the plaintiff's alleged duty to eliminate alleged

hazards?

Before the trial court instructed the jury in this matter the

court gave counsel for both sides an opportunity to place their

objections to the jury charges on the record. At that time, Conoco

requested that the trial court give the jury an additional

contributory negligence instruction referencing the plaintiff's1 Specifically, the defendant requested the follow ing

instruction:

"Although even the sl ight negligence by the Jones Act

employer will a llow the plaintiff to recover and the vessel

owner than [sic] has a nondelegable duty to provide its

employee with a safe place to work, the employee's duty to

make the workplace safe or to inspect the premises may mitigate the employer's responsibility for providing a safe

place to work." R. Vol. 11, p. 3-4.

10 alleged duty to make the workplace safe or to inspect the

premises. 1 Conoco cited the court to K endrick v. Illinois Central

Gulf Railroad, 669 F.2d 341 (5th Cir.1982) in support of its

request. The district court declined to add the defendant's

Kendrick charge to its standard contributory negligence

instruction. In denying the defendant's motion for a new trial,

the district court stated that it refused to give the requested

instruction because it believed that the evidence was conflicting

on this point and that such a charge would take the issue away from

the jury. Record Excerpt 5, p. 6.

We review the district court's refusal to give a requested

jury instruction for an abuse of discretion. J ackson v. Taylor,

912 F.2d 795, 796 (5th Cir.1990). "[I]t is error to refuse a jury

instruction only if there are pleadings and sufficient evidence to

support the instruction." I d. In this case, the district court

did not abuse its discretion in refusing to give the Kendrick

charge. The K endrick charge is proper only in cases where the jury

could find that the injury in question "was due solely to the

plaintiff's failure to carry out his duty to his employer."

Matthews v. Ohio Barge Line, Inc., 742 F.2d 202, 205 (5th11

Cir.1984). The evidence did not support a conclusion that the

plaintiff was the sole employee responsi ble for the off-loading

procedure or his work space. In fact, two witnesses testified that

the tankerman was in charge of the off-loading operation.

Moreover, the defendant points to no evidence for the contention

that the plaintiff was the only individual responsible for making

sure the premises were safe. In summary, the trial court provided

the jury with an appropriate standard contributory n e gligence

instruction and, considering the evidence presented in this case,

properly refused to give the defendant's additional instruction on

this point. Id.

Conclusion

Finding no error in the disposition of this matter by the

district court, we AFFIRM.