United States Court of Appeals

for the Fifth Circuit

No. 21–30353

Faustine Kiwia, 

Plaintiff—Appellee,

versus

Bulkship Management, A.S., 

Defendant—Appellant,

Oslo Bulk Beta, A.S., 

Intervenor—Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:20–CV–96

Before Jones, Stewart, and Duncan, Circuit Judges.

Per Curiam:*

Faustine Kiwia lost three fingers while working as a stevedore aboard 

the M/V Oslo Bulk 9. Kiwia sued the vessel and two related entities alleging 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 28, 2022

Lyle W. Cayce

Clerk

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negligence under § 5(b) of the Longshore and Harbor Workers’ 

Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq. After a bench trial, 

the district court concluded that the Oslo Bulk 9 crew negligently caused 

Kiwia’s injuries and awarded Kiwia $1,076,873 in damages. Finding no clear 

error, we AFFIRM.

I.

Coastal Cargo, a stevedoring company, hired Kiwia to work as a 

longshoreman on February 19, 2019. The same day, Coastal Cargo provided

Kiwia with some basic training on his role, the types of cargo he would work 

with, and safety. Kiwia started working the next day. Ten days later, Coastal 

Cargo put Kiwia on the longshoremen gang responsible for offloading the 

Oslo Bulk 9, a handysize bulk carrier hauling bauxite ore.

After a brief gangway safety meeting, Kiwia and the other 

longshoremen started offloading the bauxite onto a barge rafted alongside the 

Oslo Bulk 9. Kiwia spent the morning assisting with opening and closing the 

barge’s hatches as the crane operator dumped bauxite ore into the barge’s 

holds. During the early afternoon, the longshoremen gang twice stopped 

work and closed the barge’s hatches covers due to rain. After closing the 

barge’s hatch covers the second time, the gang broke for lunch.

Returning back to the dock for lunch required the longshoremen to 

climb onto the Oslo Bulk 9 using a Jacob’s ladder and walk across the deck 

back to the gangway. Coastal Cargo personnel hung the Jacob’s ladder from 

the Oslo Bulk 9’s outer deck railing near the vessel’s No. 2 cargo hold. After 

reaching the last rung of the Jacob’s ladder, the longshoreman would have to 

climb over the outside deck railing. Just beyond that railing lay the vessel’s 

cargo hold opening. Each cargo hold opening was surrounded by a vertical 

bulkhead designed to keep water out, called a hatch coaming. On the Oslo 

Bulk 9, the cargo holds were covered by folding hatch covers. Folding hatch 

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covers consist of four large panels, driven by hydraulic rams, that fold up into 

two inverted “V”s on either side of the hold. The panels have steel wheels 

that roll along a raised rail on top of the hatch coaming.

Kiwia was the third or fourth longshoreman to ascend the Jacob’s 

ladder. Just after Kiwia scaled the deck railing, with both feet on the inboard 

side of the deck, he placed his right hand on top of the hatch coaming directly 

in the path of where the folding hatch covers’ steel wheels run. Kiwia 

planned to disembark the ship by walking aft and crossing the ship to the 

gangway on the starboard side, but, just as he reached the deck, his supervisor 

called him from the bow. Kiwia turned around in response with his hand still 

on top of the hatch coaming for balance.

Unbeknownst to Kiwia, an Oslo Bulk 9 crewmember at the No. 2 hatch 

cover operating panel (located on the starboard side of the hatch) had started 

closing the cover some time before Kiwia reached the deck. The Oslo Bulk 9

crew failed to warn the supervisor of the Coastal Cargo gang that they would 

be closing the hatch or perform a walkaround of the hatch before closing it. 

Kiwia testified that he did not notice the hatch cover closing himself because 

it moved slowly and was “imperceptibly quiet.” Moreover, at the time, 

several stevedores were still working in the hold, which made closing the 

hatch unusual.

Moments after Kiwia placed his hand on top of the hatch coaming, the 

hatch cover’s steel wheels trapped his gloved hand and severed his middle 

three fingers. Roy Hughes, Jr., who was working as the Coastal Cargo gang’s 

flagman and standing about ten feet away from Kiwia, yelled out to the Oslo 

Bulk 9 crewmember operating the hatch cover to stop the cover. Kiwia then

freed what was left of his hand. At some point during this sequence of events, 

the hatch cover crushed Hughes’s work bag as well.

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Another Coastal Cargo employee rushed Kiwia to the hospital. 

Although Kiwia brought his severed index finger to the hospital, the nature 

of the injury prevented doctors from reattaching it. Doctors closed Kiwia’s 

wounds after slightly shortening the bones in two of his severed fingers and 

then discharged him from the hospital. A few months later, Kiwia returned 

to the hospital with pain in one of his amputated fingers, which doctors 

diagnosed as symptomatic neuroma. Doctors performed surgery on the 

finger to address the symptomatic neuroma. The surgery was moderately 

successful in reducing the nerve–related pain.

Kiwia sued the Oslo Bulk 9 and its owners for negligence under § 5(b)

of the LHWCA. Under § 5(b), a stevedore “may seek damages in a third–

party negligence action against the owner of vessel on which he was 

injured . . . .” Howlett v. Birkdale Shipping Co., 512 U.S. 92, 96 (1994). To 

prevail on a § 5(b) negligence claim, the plaintiff must prove duty, breach, 

causation, and damages. 1 Thomas J. Schoenbaum, Admiralty & 

Maritime Law § 7:14, at 703 (6th ed. 2020). In Scindia Steam Navigation 

Co. v. De los Santos, 451 U.S. 156 (1981), the Supreme Court clarified that a 

vessel owner owes stevedores three general duties. Relevant here, a vessel 

owner must exercise due care to the extent that it “actively involves itself in 

the cargo operations” and to “avoid exposing longshoremen to harm from 

hazards they may encounter in areas, or from equipment, under the active 

control of the vessel during the stevedoring operation.” Scindia, 451 U.S. at 

167. This is known as the active control duty.

After a two–day bench trial, the district court concluded that the Oslo 

Bulk 9 was negligent and awarded Kiwia $1,076,873 in damages. The district 

court premised its negligence finding on a breach of the active control duty. 

Based on contested evidence of industry custom, the district court concluded 

that reasonable care required the Olso Bulk 9 crew to survey the vicinity of 

the hatch and verbally warn the Coastal Cargo gang’s supervisor before 

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closing the hatch cover. The Oslo Bulk 9 crew took neither measure and, as 

a result, the court found the defendants 50% at fault for Kiwia’s injuries.1

 

Further, the district court attributed no fault to Kiwia. The court awarded 

Kiwia $81,000 in past medical expenses, $46,000 in past lost wages, and 

$950,000 in general damages. The vessel defendants timely appealed.

II.

Faced with an appeal from a final judgment in a bench trial, this court 

reviews legal issues de novo and findings of fact for clear error. Rivera v. 

Kirby Offshore Marine, L.L.C., 983 F.3d 811, 816 (5th Cir. 2020). Questions 

concerning breach, causation, apportionment of fault, and the amount of 

damages are treated as factual issues subject to clear error review. Deperrodil 

v. Bozovic Marine, Inc., 842 F.3d 352, 356, 358, 361 (5th Cir. 2016). “To 

reverse for clear error, this court must have ‘a definite and firm conviction 

that a mistake has been committed.’” Delahoussaye v. Performance Energy 

Servs., L.L.C., 734 F.3d 389, 392 (5th Cir. 2013)(quoting Canal Barge Co. Inc. 

v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000)). This court cannot 

substitute our view of the record for that of the district court absent clear 

error, even though we might have a different view of the record.

III.

The vessel defendants contend that the district court erred by: 

(1) concluding that its crew breached the active control duty; (2) holding that 

the crew’s alleged failure to notify the Coastal Cargo supervisor that the 

hatch cover would be closed or to maintain situational awareness while 

1 The district attributed the other 50% of fault to Coastal Cargo. But that holding

is of little practical import because (1) liability is joint and several and (2) Coastal Cargo is 

Kiwia’s employer (and is therefore statutorily immune under the LHWCA). See Edmonds 

v. Compagnie Generale Transatlantique, 443 U.S. 256, 260–63 (1979).

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closing the hatch caused Kiwia’s injury; (3) attributing no fault to Kiwia or 

by attributing less than 100% fault to Coastal Cargo; and (4) awarding 

excessive damages. We address each argument in turn.

First, breach. The district court found that “[b]efore closing the 

hatch cover, the exercise of reasonable care mandated that the relevant Oslo 

Bulk crewmember [(1)] warn the Coastal Cargo supervisor or foreman and 

[(2)] survey the vicinity of the hatch coaming to ensure that no individuals or 

objects were in the path of the closing cover.” The vessel’s crew failed on 

both accounts, the district court concluded, and, as a result, breached the 

active control duty. The defendants dispute that the vessel had a duty in 

these circumstances and that there was a breach. Assessing these issues, the 

court heard competing testimony of experts, a former supervisor of Coastal 

Cargo, Kiwia himself, and Hughes, the fellow longshoreman who witnessed 

Kiwia’s injury and testified to facts relevant to whether and how 

longshoremen are or ought to be warned about vessel hatch closings.

Defendants devote a significant portion of their brief to challenging 

the veracity and accuracy of Hughes’s testimony, but the court found him

“highly credible.” To the extent that the defendants’ argument turns on 

Hughes’s credibility, it is without merit. See Anderson v. City of Bessemer City, 

470 U.S. 564, 575 (1985) (“[W]hen a trial judge’s finding is based on his 

decision to credit the testimony of one of two or more witnesses . . . , that 

finding, if not internally inconsistent, can virtually never be clear error.”). 

Any inconsistencies in Hughes’s testimony were not critical enough to 

require the district court to disregard it.

Otherwise, while the evidence noted by defendants certainly 

contradicts that in favor of finding a duty and breach by the vessel crew, the 

trial court exercised its duty to weigh the conflicting evidence. We cannot 

find clear error on this record.

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Second, causation. In a § 5(b) lawsuit, an injured plaintiff must prove 

that the defendant’s breach of a Scindia duty was a “substantial factor” in 

causing the injury. See Moore v. M/V Angela, 353 F.3d 376, 388 (5th Cir. 

2003) (quoting Donaghey v. ODECO, 974 F.2d 646, 649 (5th Cir. 1992)). 

Here, the district court found that (1) “[d]espite his inexperience, Kiwia 

would have responded appropriately to a warning to keep away from the 

hatch coaming” and (2) the hatch cover operator’s lack of situational 

awareness and failure to survey the vicinity contributed to Kiwia’s injuries. 

The defendants contend that these findings amount to clear error because no 

evidence indicates that, had the crew exercised reasonable care, Kiwia 

himself would have received a warning. And given Kiwia’s patent 

inexperience and lack of appropriate training, defendants stress, it is absurd 

to conclude that he would have understood or heeded a warning about the 

hatch cover closing. Further, they posit, it is unclear how surveying the 

vicinity around the hatch cover before closing it could have prevented Kiwia’s 

injury while the cover was closing. The facts as to causation raise a close 

question, but we do not have a definite and firm conviction that the district 

court mistakenly found that the defendants’ breach was a substantial factor 

in causing Kiwia’s injuries.

Third, apportionment. The “longshoreman’s award in a [§ 5(b)] suit 

against a negligent shipowner [should] be reduced by that portion of the 

damages assignable to the longshoreman’s own negligence . . . .” Edmonds v. 

Compagnie Generale Transatlantique, 443 U.S. 256, 259–60 (1979) (citations 

omitted). “[W]hen measuring the longshore worker’s comparative fault, the 

worker’s negligence is adjudged from the standpoint of a reasonable 

longshore worker under the circumstances.” Davis v. Portline Transportes 

Maritime Internacional, 16 F.3d 532, 545 (3d Cir. 1994). The district court 

attributed 50% fault to the Oslo Bulk 9 for failing to exercise reasonable care, 

50% fault to Coastal Cargo for failing to train Kiwia on the dangers posed by

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hatch coamings, and no fault to Kiwia. “Given Kiwia’s lack of knowledge on 

the dangers of the hatch coaming,” the district court reasoned, he “acted 

reasonably in placing his hand on the hatch coaming to climb down from the 

ladder as he simply copied the more experienced longshoremen before him.” 

The district court likewise noted that “Kiwia was an inexperienced 

longshoreman at the time of his injury” but that “any lack of knowledge or 

unfamiliarity he had with the operations [of a vessel] may be attributed to his 

employer for failing to advise [him] of those general dangers.” The 

defendants suggest that the district court erroneously absolved Kiwia of any 

contributory negligence by measuring his negligence against an artificially 

low standard of care. But that argument is unsupported by the record. That 

Kiwia was inexperienced does not mean he lacked the minimum

qualifications ordinarily possessed by longshore workers. Nor does the 

district court’s finding that Coastal Cargo should have trained Kiwia on the 

pinch hazards posed by hatch covers require a finding that Kiwia was himself 

negligent.

Finally, damages. A damages award is excessive “only if it is greater 

than the maximum amount the trier of fact could properly have awarded.” 

Moore, 353 F.3d at 384 (citing Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1035 

(5th Cir. 1984)). An award of damages is not excessive if it is less than 133% 

of the “highest inflation–adjusted recovery in an analogous, published 

decision.” Longoria v. Hunter Express, Ltd., 932 F.3d 360, 365 (5th Cir. 

2019); id. at 365 n.3. Here, the district court awarded Kiwia $950,000 in 

general damages after considering the amount of general damages awarded 

for similar injuries in Robertson v. Superior PMI, Inc., 600 F. Supp. 790 (W.D. 

La. 1985), aff’d as modified, 791 F.2d 402 (5th Cir. 1986), and adjusted for 

inflation. The defendants contend that was error because the plaintiff in 

Robertson suffered far more than Kiwia. Specifically, they point out that, 

among other things, Robertson lost four fingers instead of Kiwia’s three, and

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Kiwia returned to work much sooner than Robertson. Robertson, 600 F. 

Supp. at 794, 796. Notwithstanding those differences, the district court’s 

reliance on Robertson does not amount to clear error. Robertson and Kiwia 

suffered relatively similar injuries. Moreover, the defendants did not identify

any other factually analogous case that shows the damages award is excessive.

AFFIRMED.

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