\ * District Judge of the Southern District of Texas sitting by

designation.

1 The Public Vessels Act makes available to plaintiffs the

same causes of action against the United States that they would

have against private parties. Mejia v. United States , 152 F.2d UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 89-2965

__________________

THOMAS GAVAGAN,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

______________________________________________

Appeals from the United States District Court for the

Southern District of Texas

______________________________________________

(March 23, 1992)

Before GARWOOD and WIENER, Circuit Judges, and VELA, District

Judge. *

GARWOOD, Circuit Judge:

Plaintiff-appellant Thomas Gavagan (Gavagan) brought this suit

against the United States pursuant to Public Vessels Act, 46 U.S.C.

§ 781, seeking damages, under the Jones Act, 46 U.S.C. § 688, and

the general maritime law, for personal injury sustained while

serving as a seaman on the "American Explorer," a vessel owned by

the United States. 1 Following a bench trial, the district court686, 687-88 (5th Cir. 1945), cert. denied , 328 U.S. 862 (1946).

2 rendered judgment for the United States. Gavagan appeals. We

affirm.

Facts and Proceedings Below

Gavagan brought this suit for the fracture of a finger on his

right han d that occurred on May 30, 1984, while he was trying to

turn a valve on the tanker American Explorer. At the time of the

injury, the same finger was healing from a fracture sustained on

January 7, 1984, in an accident on land unrelated to his

employment. In an operation after the January fracture, a fixation

device consisting of wire, pins, and a screw was inserted in the

finger. Gavagan received therapy after the operation and on May 7,

1984, his treating, personal physician released him as fit for

duty.

At the time he was released, the hardware was still in his

finger and was not yet due for removal. The finger had not healed

completely and was weaker than normal. Gavagan still experienced

pain in the finger and knew to exercise care when using it.

Upon being released, Gavagan bid for a job and received a preemployment physical examination. The examining report, signed by

both the examining physician and Gavagan, indicated that he had not

suffered any injuries. Gavagan did not reveal the condition of his

finger to the examining physician, although the s car from the

operation was visible.

Gavagan then, on May 29 or May 30, joined the American

Explorer as an able-bodied seaman. He knew an able-bodied seaman's2 There was some indication that the tank had earlier been

sprayed with some substance, and in connection with that process

tape had been put around this part of the valves (in the tanks)

to keep the spray off them; apparently, the tape had been removed

from the other valves, but not from this one (T5). On May 30,

the tanks were all empty, and they were not going to be filled on

this voyage.

3 duties included opening and closing valves on a tanker. On May 30,

the tanker's boatswain, under the direction of the chief mate,

ordered Gavagan and an ordinary seaman to open and close the tanker

valves and to apply grease and oil to them. Though greasing and

oiling were not part of his duties, he was not performing outside

his job description.

Gavagan and the ordinary seaman had been opening and closing

valves for approximately ninety minutes without difficulty. They

then came to the "T5" valve and, Gavagan testified, "we put the oil

and everything else and we both grabbed ahold and really pulled on

it. At that time it just didn't give. It didn't what we call

break open. At that time I felt a tremendous sharp pain in my

rig ht hand." Gavagan also stated that he first felt the pain

"immediately, the first time I pulled on that valve."

The chief mate noticed the seamen's situation and approached

them. He ordered them to try again and, after the valve still

would not open, he ordered Gavagan to enter the below deck tank to

determine what was preventing the valve from opening. Gavagan

entered the tank and discovered that duct tape was wrapped around

the stem of the valve. After he cut off the tape, the valve opened

easily. 23 Its opinion states the findings are to be treated as

conclusions, and vice versa, as appropriate.

4 Citing our decision in Spinks v. Chevron Oil Co ., 507 F.2d

216, 223 (5th Cir. 1975), the court also noted that "the

defendant's negligence must have been a substantial factor in

bringing about the plaintiff's harm. . . ."

4 The di strict court entered extensive findings of fact and

c onclusions of law. 3 Its findings of fact are essentially as

summarized in the text above. These findings contained no express

determinations of negligence or unseaworthiness.

In its conclusions, the d istrict court first set out the

general legal principles applicable to recovery for unseaworthiness

under the general maritime law and for negligence under the Jones

Act. It recognized that the "shipowner owes to seamen a duty to

provide a seaworthy vessel. Such obligation is a species of

liability without fault; the duty imposed is absolute" and

"completely independent of princi ples of negligence." As to the

Jones Act, the court observed that "plaintiff must show negligent

breach of duty and proximate cause.

. . . Even the slightest

employer negligence is sufficient for a finding of liability to an

injured seaman.

. . . The issue of proximate cause turns on

whether the employer' s actions contributed even in the slightest

degree and is not destroyed merely be cause the plaintiff also

contributed to his own injury ." 4 As to contributory negligence,

the court noted that "[t]he burden is upon the shipowner to prove

that plaintiff was guilty of contributory negligence"; that

"contributory negligence is not a bar to a plainti ff's recovery

under the Jones Act, but serves to mitigate or apportion damages in5

accordance with the doctrine of comparative negligence"; and that

"under both unseaworthiness and negligence theories, contributory

negligence operates to apportion damages

. . . based upon relative

fault."

Up to this point, the court ha d not expressly spoken to the

unseaworthiness of the vessel, the negligence of either party or

the relationship of any of these matters to Gavagan's injury. It

did so in the next portion of its conclusions, as follows:

"Upon review of the evidence presented, I conclude

that the taped valve assembly was unseaworthy in the

condition as it existed when plaintiff and Mr. O'Hagen

attempted to open it.

. . . [T]he purpose of the valves

on the ship was to regulate the flow of liquid cargo going into and out from the storage tanks, and that the

valves were intended to be operated by hand. There is no

doubt that the taped valve stem prevented the valve

assembly from functioning in its normal manner . Hence,

the valve was not fit for its intended purpose.

"I also conclude that plaintiff's actions were the

sole and proximate caus e of his own injuries , since he

failed to exercise due care in his employment with regard

to his injured finger.

. . . [Plaintiff] did have

peculiar knowledge about the s tate of his finger.

Plaintiff knew at the time

. . . that the screw, pins and

wires remained in his hand, that he did not have full use

of his hand and that he should not strain his hand or

place undue stress upon it. However, he failed to

disclose the impaired state of his finger to either the

chief mate or the boatswain.

. . . [P]laintiff failed to

act in a manner that would minimize the dangers of reinjuring his hand.

. . . I also must conclude that

defendant's negligence in f ailing to untape the valve

assembly was not the proxima t e cause of plaintiff's

injury, but was at most, a mere condition upon which

plaintiff's injur ies were received, and i s not a basis

for imposition of liability upon the defendant

. . . . Therefore, since all of the negligence which caused the

injury resulted from plaintiff's negligence, plaintiff is

n ot entitled to recover under his general maritime law

claim of unseaworthiness, nor is he entitled to recover5 The quoted mention of "defendant's negligence in failing to

untape the valve assembly" is the district court's only reference

to (or possible finding of) any negligence on the part of the

defendant.

6 under his claim of negligence based upon the Jones Act."

(Footnotes omitted; emphasis added). 5

Discussion

On appeal Gav agan urges that the judgment be "reversed and

rendered" in his favor as to liability on the basis of three claims

of error. Two of these relate to the district court's

det ermination that Gavagan was to any extent contributorily

negligent, and each of these two essentially argues that the

evidence is insuffi cient to sustain such a finding, especially

given that the burden of proof was on the defendant. In a bench

tried case, a trial court's findings respecting negligence, cause,

and proximate cause are findings of fact reviewed under the clearly

erroneous standard. S ee, e.g., Johnson v. Offshore Express, Inc

.,

845 F.2d 1347, 1352 (5th Cir.), cert. denied

, 109 S.Ct. 497 (1988)

(Jones Act case; "Questions of negligence and causation in

admiralty cases are treated as fact questions. . . . Findings of

fact in admiralty cases are binding unless clearly erroneous.");

Cheek v. Williams-McWilliams Co., Inc

., 697 F.2d 649, 652 (5th Cir.

1983) ("Questio ns of negligence and proximate cause in admiralty

cases are treated as fact questions" in respect to which a trial

court's "findings will not be reversed unless found to be clearly

erroneous"); Noritake Co., Inc. v. M/V Hellenic Champion

, 627 F.2d

724, 727-728 (5th Cir. 1980) (". . . the appellant has the burden

of establishing that the district court's finding was clearly6 See, e.g., Myles v. Quinn Menhaden Fisheries, Inc ., 302 F.2d

146, 150 (5th Cir. 1962) (". . . a claim under the Jones Act. . .

7 erroneous. . . . Questions of negligence in admiralty cases are

treated as factual, and are thus subject to the clearly erroneous

standard."). There is substantial evidence that Gavagan was

negligent, and that this negligence proximately caused his injury,

as the district court found, and, reviewing the record as a whole,

we are not "left with the definite and firm conviction that a

mistake has been committed," Noritake at 728. We hold that Gavagan

has not established that the district court's findings in this

respect are clearly erroneous.

Gavagan's remaining claim is that the district court "erred in

finding one hundred percent contributory negligence against

plaintiff." Gavagan is arguing here, in essence, that, because the

district court found that the defendant negligently failed to

untape the valve and (at least inferentially) that Gavagan's finger

would not have been injured had the valve not been thus

immobilized, therefore, almost as a matter of law, the defendant's

negligence was a cause of Gavagan's injury for which defendant is

liable to some extent, particularly u nder the Jones Act,

notwithstanding that Gavagan's contributory negligence may have

also been a cause (or proximate cause) of the injury.

We view the matter differently. Initially, we recognize--as

the district court expressly did--that contributory negligence does

not bar recovery under the Jones Act (or for unseaworthiness) and

that, while we have said that proximate cause is applicable in

Jones Act cases, 6 "[t]he question of proximate cause . . . underrequires a finding both of negligent breach of duty . . . and

proximate cause.").

7 We have also stated that the same general negligence

("ordinary prudence") and causation standards apply to both

employer and employee in Federal Employers' Liability Act (and,

by extension, Jones Act) cases. See Page v. St. Louis

Southwestern Railway Co ., 349 F.2d 820, 823-24 (5th Cir. 1965)

(also stating that in jury instructions in such cases "there is

really no place for 'proximate cause' as such," characterized as

"awkward, but outmoded, dialectic").

As to unseaworthiness cases, however, a more traditional

proximate cause standard is applied. As we said in Johnson , 845

F.2d at 1354: "There is a more demanding standard of causation

in an unseaworthiness claim than in a Jones Act negligence

claim. . . . To establish the requisite proximate cause in an

unseaworthiness claim, a plaintiff must prove that the

unseaworthy condition played a substantial part in bringing about

or actually causing the injury and that the injury was either a

direct result or a reasonably probable consequence of the

unseaworthiness."

8 the Jones Act turns on whether the actions of the defendant

contributed to the injury even in the slightest degree. Proximate

cause is not destroyed merely because the plaintiff may also have

contributed to his own injury.

. . ." S anford Bros. Boats, Inc. v.

Vidrine

, 412 F.2d 958, 966 (5th Cir. 1969). 7 Nevertheless, we have

expressly recognized that even in Jones Act cases the necessary

causal connection requires more than simple "but for" cause. As we

said in Chisholm v. Sabine Towing & Transportation Co., Inc ., 679

F.2d 60 at 63 (5th Cir. 1982), "this Court has rejected, in a Jones

Act case, the so-called 'but for' argument. S pinks v. Chevron Oil

Company , 507 F.2d 216, 222 (5th Cir. 1975)." The negligence must

be "a legal cause" of the injury. Chisholm at 67.

The questions of legal cause and scope of duty have frequently

been conflated or confused. Harper, James & Gray, T he Law of Torts

(2d ed. 1986), describes as "the prevailing view" the rule that9

"[t]he obligation to refrain from that particular conduct

is owed only to those who are foreseeably endangered by

the conduct and only with respect to those risks or

hazards whose likelihood made the conduct unreasonably

dangerous

. Duty, in other words, is measured by the

scope of the risk that negligent conduct fore seeably

entails." I d

., Vol. 3, § 18.2 at 655 (emphasis added;

footnote omitted).

However, the authors note that this principle "is, of course,

inextricably bound up with the problems of proximate cause," i d

.

n.4 , and go on to observe that "in judicial decisions the [same]

result is often reached through reasoning in terms of proximate

cause" and that "a professional generation or two ago the 'cause'

reasonin g was used almost exclusively." I d

. at 663. S ee also,

id ., Vol. 4, § 20.2 at 92 n.5, 111-112.

The same approach is reflected in the Restatement (Second) of

Torts §§ 281 (Statement of the Elements of a Cause of Action for

Neg ligence) and 430 (Necessity of Adequate Causal Relation).

Section 281 requires that "the conduct of the actor" be "negligent

with respect to the other, or a class of persons within which he is

included" and be "a legal cause of the invasion." These

requirements are explained as follows in comments e and f :

" e. The hazard problem . Conduct is negligent

because it tends to subject the interests of another to

an unreasonable risk of harm. Such a risk may be made up

of a number of different hazards, which frequently are of

a more or less definite character. The actor's

negligence lies in subjecting the other to the aggregate

of such hazards. In other words, the duty established by

law to refrain from the negligent conduct is established

in order to protect the other from the risk of having his

inter est invaded by harm resulting from one or more of

this limited number of hazards.

". . . .

"f. Harm beyond the risk . Where the harm which in

fact results is caused by the intervention of factors or10

forces which form no part of the recognizable risk

involved in the actor's conduct, the actor is ordinarily

not liable. . . .

" Illustration:

"3. A gives a loaded pistol to B, a boy

of eight, to carry to C. In handing the

pistol to C the boy drops it, i njuring the

bare foot of D, his comrade. The fall

discharges the pistol, wounding C . A is

subject to liability to C, but not to D."

These same principles, which section 281 addresses in a negligence

context, are again considered in section 430, entitled "Necessity

of Adequate Causal Relation." Section 430 provides that in order

for "a n egligent actor" to "be liable for another's harm, it is

necessary

. . . tha t the actor's conduct be negligent t oward the

other" and "that the negligence of the actor be a legal cause of

the other's harm" (emphasis added). The comments give the

following explanation:

" a. Relation of negligence problem to cause

problem. The conditions which are necessary to make the

act negligent in respect to the harm of which the other

complains, as set forth in § 281, Clause (b) and Comment

thereon, may be summarized as follows:

"The actor's conduct, to be negligent toward

another, must involve an unreasonable risk of:

"(1) causing harm to a class of persons of which

the other is a member and

"(2) subjecting the other to the hazard from which

the harm results.

"Until it has been shown that these conditions have

been satisfied and that the actor's conduct is negligent,

the question of the c ausal relation between it and the

other's harm is i mmaterial. While the causal relation

between the actor's conduct and the other's harm is, in

theory, immaterial until the actor's negligence is

established, in practice, courts often consider the

causation question without inquiring into the negligence

problem. . . .

" b

. If the actor's misconduct is negligent and not

intentional, the actor cannot be liable to another harmed

b y it, no matter how directly, unless his condu ct was

negligent toward the other as involving an unreasonable11

risk of harm to hi m, or to a class of which he is a

member. . . .

" c

. Harm may be sustained as a consequence of

conduct which i s negligent only because, and in so far

as, it subjects another to some particular harm. But the

harm may result in some ot her manner than through the

other's exposure to this hazard. If so, there can be no

liability even though in all other respect the manner in

which the harm is brought about is such as would make the

actor liable. . . .

". . . .

" e

. Although the rule stated in this Section is

state d in terms of the actor's negligent conduct, the

necessity that the conduct be a legal cause of the harm

is equally applicable where the conduct

. . . is such as to result in strict liability. . . ."

Our Court has adopted these principles in respect to maritime

torts, as reflected by the following from our opinion in

Consolidated Aluminum Corp. v. C.F. Beam Corp

., 833 F.2d 65, 67

(5th Cir. 1987);

"The analysis of a maritime tort is gu ided by

general principles of negligence law.

. . . Under those

principles a tortfeasor is accountable only to those to

whom a duty is owed. . . .

". . . .

"'Duty

. . . is measured by the scope of the risk

that negligent conduct foreseeably entails.' Harper,

James & Gray, The Law of Torts, Scope of Duty in

Negligence Cases § 18.2 at 655 (2d ed. 1986). The duty

'may be owed only with respect to the interest that is

foreseeably jeopardized by the negligent conduct, and not

to other interests even of the same plaintiff which may

in fact happen to be injured.' Id . at 660 . . . ."

Here, we believe it evident that what the district court in

substance found was tha t any negligence of defendant was not

negligence with "respect to the harm of which" Gavagan complains.

In other words, that while leaving the valve taped may have been

negligent because the valves were not designed to operate that way

and, by requiring entry into the tank to remove the tape before the8 The only possible evidence favorable to Gavagan on this

issue was his testimony:

"Q. I am not asking you as a lawyer, Mr. Gavagan, but

can you tell The Court what you think the ship failed

to do that caused your injury?

"A. I think there was a little unseaworthiness in that

valve if they didn't tell us that. You know, it was a

situation of unsafe situation and the chief mate or

somebody should have known and instructed us

accordingly.

"As I stated earlier having us do a job that we

are not qualified for by the U.S. Coast Guard."

The district court was not bound to accept this vague and

conclusory testimony from an interested witness. Indeed, the

court noted in its findings that "In the Statement of Person

Claiming Injury, plaintiff stated that he did not blame anyone

and that he did not know when the break took place."

12 valve could be turned, this prevented speedy and effi cient

operation of the valve (and perhaps any operation of it, if the

tank were full), nevertheless this did not expose seamen to an

unreasonable or foreseeable risk of injury to their hands or

fingers from trying to turn the valve handle and thus was not

negligent in that respect. Indeed, there is virtually no

evidence--expert or otherwise--that the taped valve presented any

unreasonable or foreseeable risk of injury of such a kind, and no

one else--other than Gavagan, who alone knew he should not strain

with his wired-up hand--was so injured. 8 The district court did

not find--and the evidence did not require it to find--that injury

to the hand or finger of a seaman trying to turn a taped valve was

sufficiently likely so that leaving the valve taped was for that

reason unreas onably dangerous and hence negligent. The district

court did not find--and the evidence did not require it to find--13

that Gavagan's injury resulted from any risk posed by failing to

untape the valve that may have rendered that failure negligent.

Thus the district court's determinations, that "plaintiff's actions

were the sole . . . cause of his own injuries," that "defendant's

negligence in failing to untape the valve assembly

. . . was at

most a mere condition

. . . and is not a basi s for imposition of

liability upon the defendant," and that "all of the negligence

which caused his injury resulted from plaintiff's negligence," are

neither clearly erroneous nor legally incorrect, and they

constitute a legally proper basis for the district court's denial

of recovery under the Jones Act and the general maritime law. In

essence, the district court was not persuaded by a preponderance of

the evidence that leaving the valve taped exposed those who might

try to turn it to a sufficiently great or foreseeable risk of

injury as to constitute negligence, even though leaving the tape on

may have been negligent for other reasons. We cannot say that such

a finding, particularly as to an issue on which plaintiff had the

burden of proof and persuasio n, is clearly erroneous. Moreover,

that finding entitled the defendant to judgment.

Accordingly, the district court's judgment is

AFFIRMED.