IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30413

Summary Calendar

CHAD DAVID LEDET,

Plaintiff–Appellee

v.

SMITH MARINE TOWING CORPORATION,

Defendant–Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:10-CV-1713

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

At issue in this case is Plaintiff–Appellee Chad Ledet’s recovery from

injuries sustained while working as a deckhand aboard the M/V SMITH

HUNTER, a sea-going tug owned by Defendant–AppellantSmith MarineTowing

Corporation (“Smith Marine”). Because we do not find clear error in the district

court’s finding that Ledet was not contributorily negligent nor in its damage

award, we AFFIRM. 

United States Court of Appeals

Fifth Circuit

F I L E D

December 21, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 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 CIR.

R. 47.5.4.

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I. FACTUAL AND PROCEDURAL BACKGROUND

The facts, as found by the district court, are as follows.

On October 17, 2009, Ledet was assigned to the SMITH HUNTER,

a sea-going tug owned by Smith Marine. The crew working with

Ledet on that date consisted of Captain Randy Martin, Relief

Captain Todd Delaune, and Sean Martin, Captain Martin’s son. 

The SMITH HUNTER was towing an unloaded offshore deck barge,

the Tideland No. 21, from a dock near Amelia, Louisiana to the

Eugene Island Sea Buoy in order to release it to the awaiting

HARVEY INVADER, a substantially larger tug. The Tideland No.

21 was equipped with its own towing equipment, or “chain bridle,”

which consisted of two chains attached to its front corners connected

by a “fishplate” and a pendant wire that extended from the fishplate

to the SMITH HUNTER. The “socket” of the pendant wire was

attached to the “hard eye” of the SMITH HUNTER’s “snatch line”

by a “shackle.” The snatch line is a double rope connected to the

SMITH HUNTER’S towing wench, which is located in the center

stern of the vessel. A “shackle” is a metal device that can be opened

and closed. Captain Martin testified that the Tideland No. 21’s

chain bridle made it different from the barges he had towed on other

occasions. In other instances, the tug’s towing gear attached

directly to the barge, without the use of a pendant wire. 

Before arriving at the Eugene Island Sea Buoy, Captain Martin,

Ledet, and Sean Martin convened for a joint safety analysis (JSA),

during which they discussed the method for releasing the Tideland

No. 21 and its towing equipment to the HARVEY INVADER. 

Captain Martin instructed Ledet and Sean Martin that they would

retrieve the Tideland No. 21’s pendant wire to a point where it

would be positioned over the stern deck of the SMITH HUNTER. 

Captain Martin would then have one of the deckhands insert the

SMITH HUNTER’s starboard norman pin into its holster at the

extreme stern of the vessel. A norman pin is a four-foot medal rod

that sticks up two to three feet from the grating in the stern of the

vessel when in place. Once the norman pin was inserted, Captain

Martin would pivot the vessel so that the Tideland No. 21’s pendant

wire was resting against the norman pin and then instruct the

deckhands to tie the pendant wire to the norman pin. The purpose

of securing the pendant wire was to allow Martin to create slack in

the pendant wire and the snatch line so that the two could be

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unshackled. During the JSA, there was a miscommunication as to

which rope Captain Martin intended for the deckhands to use when

tying the pendant wire. Captain Martin wanted the pendant wire

tied with a soft, nylon rope that Sean Martin had prepared for that

purpose, but Captain Martin did not specify that to Ledet.

After the pendant wire was attached to the norman pin, the

deckhands—while standing on the port side of the vessel—would

then disconnect the shackle linking the Tideland No. 21’s pendant

wire to the SMITH HUNTER’s snatch line. Once the shackle was

disconnected, the deckhands would then throw a 100-foot line

attached to the Tideland No. 21’s towing gear to the HARVEY

INVADER from the starboard side of SMITH HUNTER, allowing

the HARVEY INVADER’s crew to pull the barge’s towing gear onto

that vessel. 

At the JSA, Ledet proposed an alternate method for disconnecting

the Tideland No. 21’s towing gear that he had seen used by other

captains. Ledet suggested using the SMITH HUNTER’s anchor

drum wire, or “suitcase wire,” to secure the Tideland No. 21's

pendant wire during the transfer. The suitcase wire is attached to

the anchor drum, which is a small wench located directly below the

towing wench in the center stern of the vessel. Under Ledet’s plan,

the suitcase wire, which is outfitted with a “pelican hook,” would

have been attached to the pendant wire with a second shackle, or

“slider,” placed behind the pendant wire’s socket. The suitcase wire

would have been used to “suck up” the pendant wire to a point

where the crew could disconnect it from the shackle connecting it to

the snatch line. Captain Martin rejected Ledet’s proposal to secure

the pendant wire with the suitcase wire because tying the pendant

wire to the norman pin would take less time.

The SMITH HUNTER arrived at the Eugene Island Sea Buoy at

approximately 2:30 a.m. Ledet was sleeping in his cabin, and Sean

Martin woke him up so that Ledet could assist with the transfer. At

the time, the sea conditions were somewhat rough, with three-to

five-foot waves and wind at 20 to 25 miles per hour. Captain Martin

was in the “doghouse” on the starboard side of the vessel, which

provided him with a bird’s-eye view of the stern deck, and he was

equipped with a PA system that allowed him to be heard by the

deckhands.

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Ledet exited the interior of the vessel from the back door on the port

side. On his way out, he grabbed a plastic rope hanging near the

door. Ledet then approached the norman pin from the port side and

used the plastic rope to tie the Tideland No. 21’s pendant wire to the

norman pin. Ledet then walked around the bow of the SMITH

HUNTER in order to get to the starboard side, where he waited

underneath the doghouse. Sometime after, Martin used the PA

system to order Ledet to tie the pendant wire to the norman pin

using the nylon rope that Sean Martin had prepared. By then, Sean

Martin had placed the nylon rope on the starboard grating in the

stern of the vessel, adjacent to the norman pin. Following [Captain]

Martin’s orders, Ledet approached the norman pin from the

starboard side. When Ledet reached the starboard grating, the

vessel dipped in the trough of a wave, and the pendant wire came

untied and slipped over the norman pin, striking Ledet, throwing

him against the vessel’s bulwarks, and knocking him unconscious. 

At that time, the HARVEY INVADER was pulling up on the

starboard side of the SMITH HUNTER and was not yet parallel to

the vessel. Although Ledet understood that the starboard side of

the vessel was a “pressure zone” or “danger zone” until the pendant

wire was released from the snatch line, he testified that he thought

there was slack in the pendant wire at the time Captain Martin

ordered him to tie the pendant wire to the norman pin with the

nylon rope. Martin also testified that it was his intention to keep

slack in the line once the pendant wire was tied to the norman pin.

. . .

After the accident, Sean Martin awoke Relief Captain Todd

Delaune. Delaune left his sleeping quarters and exited onto the

deck from the port side of the vessel. Delaune then proceeded to

jump over the snatch line, which was then slack, to reach the

starboard side, where Ledet had been thrown by the pendant wire

against the bulwarks. Delaune administered first-aid to Ledet and

assisted him into the galley. Delaune then went back on deck to

unshackle the Tideland No. 21’s pendant wire and transfer it to the

HARVEY INVADER from the starboard side. By that time, the

HARVEY INVADER had pulled alongside the SMITH HUNTER,

which kept the SMITH HUNTER from bouncing in the waves. As a

result, the towline was slack on the deck, and Delaune was able to

make the transfer quickly without securing the pendant wire.

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Ledet v. Smith Marine Towing Corp., No. 2:10-CV-1713, 2011 WL 1303918, at

*1–3 (E.D. La. Apr. 4, 2011) (footnotes omitted).

When the SMITH HUNTER returned to land, Ledet was taken to the

hospital where he underwent a CT scan which indicated that he had suffered a

compression fracture to his L1 vertebra. A few days later, Ledet went to see Dr.

Brian Chaisson, who diagnosed Ledet with compression fractures to both his T12

and L1 vertebrae, gave Ledet a back brace, and prescribed him pain medication. 

A subsequent MRI confirmed Chaisson’s diagnosis of fractures to both T12 and

L1. About a month after the accident and after wearing the back brace all day,

every day without any reduction in pain, Ledet went to see a pain specialist, Dr.

Socrates Zapata Campusano. Campusano also diagnosed Ledet with T12 and

L1 vertebral fractures as well as edemea. Campusano advised Ledet of two

strategies to try to combat the pain: kyphoplasty (surgery involving attachment

of cement to stabilize compressed vertebrae) or epidural streoid injections to

control the pain and decrease inflammation around the area of the trauma. 

Ledet chose the injections. Because of lingering pain even after receiving the

injection, Campusano referred Ledet to Dr. Arthur Ulm, a neurosurgeon. Ulm

prescribed Ledet additional pain medication (Lortab).

After four months of conservative, pain-management-focused treatment,

Ulm recommended that Ledet undergo a laminectomy. Ledet’s laminectomy was

a three-level surgical fusion of his T11 to L2 vertebrae. The surgery helped

Ledet to a degree, but he still experienced a substantial amount of pain following

the surgery. By June 27, 2010, Ledet’s final visit to Ulm, Ulm had concluded 

that Ledet's fusion and implants were successful but that “his response with

regards to pain has been less than satisfactory.” Ledet’s options going forward

were to either have an internal pain pump installed or to continue controlling

his pain through oral pain medication.

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Ledet sued Smith Marine on June 10, 2010 in the Eastern District of

Louisiana. Ledet sought damages pursuant to the Jones Act, 46 U.S.C. §30104

(2006), and general maritime law for injuries he sustained during the October

17, 2009 accident aboard the SMITH HUNTER. A bench trial was held on

February 7 and 8, 2011. On April 4, 2011, the district court entered judgment

in favor of Ledet, in the amount of $1,894,728.39—$373,863 in future wage loss;

$300,000 past pain and suffering; $1,000,000 in future pain and suffering;

$219,379.30 in future medical expenses; and $1,486.09 in additional

maintenance. Smith Marine timely appealed, seeking remittitur and review of

the district court’s finding that Ledet was not contributorily negligent. 

II. STANDARD OF REVIEW

“The standard of review for a bench trial is well established: findings of

fact are reviewed for clear error and legal issues are reviewed de novo.” Kona

Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000). We will

only reverse based on clear error if:

(1) the [district court’s] findings are without substantial evidence to

support them, (2) the court misapprehended the effect of the

evidence, and (3) although there is evidence which if credible would

be substantial, the force and effect of the testimony, considered as

a whole, convinces the court that the findings are so against the

preponderance of credible testimony that they do not reflect or

represent the truth and right of the case.

World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752

(5th Cir. 2009) (citations omitted). For example, “[w]here there are two

permissible views of the evidence, the factfinder’s choice between them cannot

be clearly erroneous.” Anderson v. City of Bessemer, 470 U.S. 564, 572 (1985). 

Embodied in this standard is significant deference to the district court. This

deference is even greater when the factual findings are “based on the credibility

of witnesses.” Tokio Marine & Fire Ins. Co. v. FLORA MV, 235 F.3d 963, 970

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(5th Cir. 2001) (citing FED. R. CIV. P. 52(a)[(6)]); Anderson, 470 U.S. at 575). 

Additionally, “[i]n a bench tried [maritime] case, a district court’s findings

concerning negligence and causation are findings of fact.” Johnson v. Cenac

Towing, Inc., 544 F.3d 296, 303 (5th Cir. 2008).

A district court’s damages award is a finding of fact reviewed for clear

error. Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir. 2006). We only

reverse an allegedly excessive award on the “strongest of showings;” that is,

when it “exceeds the bounds of reasonable recovery.” LeBron v. United States,

279 F.3d 321, 326 (5th Cir. 2002) (internal quotation marks omitted). “‘We apply

the loosely defined “maximum recovery rule” when deciding whether a remittitur

is in order. This judge-made rule essentially provides that we will decline to

reduce damages where the amount awarded is not disproportionate to at least

one factually similar case from the relevant jurisdiction.’” Id. (quoting Douglass

v. Delta Air Lines, Inc., 897 F.2d 1336, 1344 (5th Cir. 1990)) (emphasis in

original). “The rule does not necessarily limit an award to the highest amount

previously recognized in the state; indeed, the rule does not become operative

unless the award exceeds 133% of the highest previous recovery in the relevant

jurisdiction for a factually similar case.” Id. (internal quotation marks and

alteration omitted). “Because the facts of each case are different, prior damages

awards are not always controlling; a departure from prior awards is merited if

unique facts are present that are not reflected within the controlling caselaw.” 

Id. (internal quotation marks omitted).

III. DISCUSSION

A. Comparative Negligence 

Smith Marine asserts that Ledet was negligent because he knew that

Captain Martin’s plan created a pressure zone and that when he stepped

forward beyond the “H-beams” he would be in the pressure zone. Nonetheless,

Smith Marine contends, Ledet went ahead and entered the pressure zone, where

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he was injured. On this point, the district court found that Ledet was reasonable

in complying with Captain Martin’s orders, despite the fact that the plan was

“conceptually flawed from a safety standpoint from the get go” because of

Captain Martin’s “superior vantage point an control of the vessel.” Ledet, 2011

WL 1303918, at *5. Because the district court found that Ledet was following

orders, Smith Marine’s argument about Ledet’s own negligence is foreclosed by

Williams v. Brasea, Inc., 497 F.2d 67 (5th Cir. 1974). There we held that “a 

seaman may not be contributorily negligent for carrying out orders that result

in his own injury, even if he recognizes possible danger.” Id. at 73 (citation and

internal quotation marks omitted). Moreover, as stated above, findings of fact,

like that Ledet was not negligent, are even harder to upset when they are based

on a credibility determination of the district court. Tokio Marine & Fire Ins.,

235 F.3d at 970. The district court specifically found that Captain Martin’s

testimony was not credible. Ledet, 2011 WL 1303918, at *3. Therefore, we find

no clear error in the district court’s determination that Ledet was not negligent.

B. Remittitur

Smith Marine further urges error based on the district court’s award of

$1.3 million in damages for past and future pain and suffering. Both Smith

Marine and Ledet admit that there are relatively few cases from Louisiana

involving injuries to the lower thoracic and upper lumbar spine to use as

comparitors for the maximum recovery rule. Ledet points us to Mihalopoulos v.

Westwind Africa Lines Ltd., 511 So. 2d 771 (La. Ct. App. 1987), as a suitable

comparitor. In Mihalopoulos, the plaintiff brought a Jones Act suit against his

employer for a serious injury he suffered aboard the M/V DESERT PRINCE. Id.

at 773. The jury awarded Mihalopoulos $1.125 million in damages, including

past and future lost wages, which the appellate court affirmed. Id. at 780–81. 

Mihalopoulos, like Ledet, underwent a laminectomy—Mihalopoulos’s was a

single-level where as Ledet’s was a three-level. Id. at 779. Mihalopoulos also

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lost his livelihood as a seaman and had to have assistance to walk. Id. at

779–80. Admittedly, Mihalopoulos underwent three surgeries, was initially

paralyzed, and had other complications such as depression and

incontinence—things that Ledet has not experienced. Id. at 779. Ledet,

however, lives with chronic pain that likely cannot be improved. Even if we

subtract out the approximately $750,000 that the economic report in

Mihalopoulos said were lost wages, there is still a $475,000 verdict in 1987

dollars, which would be about $946,750 today. The Ledet verdict is about 137% 1

of the Mihalopoulos verdict.

As additional proof of the verdict’s reasonableness, Ledet points to a nonmaritime case—Carrier v. Nobel Insurance Co., 87 So. 2d 126 (La. Ct. App.

2002). In this more recent case, the Louisiana Court of Appeals affirmed a

$1.159 million award ($850,000 in past and future pain and suffering plus

$300,000 in loss of enjoyment of life), id. at 133, where the plaintiff, after being

injured in a car accident, underwent a one-level lumbar fusion, id. at 129. 

Unlike Ledet, Carrier also had “urinary dysfunction and torn shoulder

ligaments,” id., but did not suffer chronic pain like Ledet does. One hundred

thirty-three percent of the $1.159 million award in Carrier would be over $1.5

million, which is in excess of the district court’s $1.3 million award.

From the “rough guidance” of Mihalopoulos and Carrier, we find the

maximum recovery rule to be inapplicable. See Moore v. M/V ANGELA, 353

F.3d 376, 385 (5th Cir. 2003). Smith Marine has provided us with no other basis

to upset the district court’s award; therefore, we find no clear error in the district

court’s award and affirm it.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

Conversion done using the Bureau of Labor Statistics’s CPI Inflation Calculator,

1

available at http://data.bls.gov/cgi-bin/cpicalc.pl.

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