FROM THE LEGAL RULE ANNOUNCED IN
GAUTREAUX, AND THE "ERROR" PRONG OF THE OLANO INQUIRY IS THUS SATISFIED IN THIS
CASE.
B.
WE NEXT CONSIDER WHETHER THE ERROR COMMITTED AT TRIAL IS PLAIN. THE SUPREME
COURT HAS PROVIDED CONSIDERABLE GUIDANCE ON THIS POINT. "'PLAIN' IS SYNONYMOUS
WITH 'CLEAR' OR, EQUIVALENTLY, 'OBVIOUS.'" OLANO, 507 U.S. AT 734. "[W]HERE
THE LAW AT THE TIME OF TRIAL WAS SETTLED AND CLEARLY CONTRARY TO THE LAW AT THE TIME
OF APPEAL -- IT IS ENOUGH THAT AN ERROR BE 'PLAIN' AT THE TIME OF APPELLATE
CONSIDERATION." JOHNSON, 117 S. CT. AT 1549.
JUST AS IN THE SUPREME COURT'S RECENTLY DECIDED JOHNSON CASE, THE LAW IN THE
PRESENT CASE HAS CHANGED BETWEEN THE TRIAL AND OUR DETERMINATION ON APPEAL.
JOHNSON DICTATES THAT WE USE HINDSIGHT TO DECIDE WHETHER THE ERROR WAS PLAIN.6 IN
LIGHT OF GAUTREAUX, THE ERROR IS PLAIN, CLEAR, AND OBVIOUS. THUS THE SECOND OLANO
FACTOR IS SATISFIED.
C.
WE NOW INQUIRE WHETHER THE TRIAL COURT'S ERROR AFFECTED FALCON DRILLING'S
SUBSTANTIAL RIGHTS. "OLANO COUNSELS THAT IN MOST CASES THE AFFECTING OF
SUBSTANTIAL RIGHTS REQUIRES THAT THE ERROR BE PREJUDICIAL; IT MUST AFFECT THE
OUTCOME OF THE PROCEEDING." CALVERLEY, 37 F.3D AT 164 (CITING OLANO, 507 U.S.
AT 734-35). IN THIS CASE, THE PREJUDICE TO FALCON DRILLING CAN BE EASILY
DEMONSTRATED.
THE DISTRICT COURT USED ERRONEOUS STANDARDS FOR DETERMINING THE NEGLIGENCE
OF THE PARTIES. THE STANDARD APPLIED TO FALCON DRILLING WAS TOO HIGH. IT MADE
FALCON LIABLE FOR "ANY NEGLIGENCE, HOWEVER SLIGHT, THAT PLAYED A PART IN PRODUCING
THE PLAINTIFF'S INJURIES." ALSO, THE STANDARD APPLIED TO CRAWFORD WAS TOO LOW.
IT STATED THAT CRAWFORD HAD A "DUTY, ALBEIT SLIGHT, TO USE REASONABLE CARE TO
PROTECT HIMSELF."
Prior to the Supreme Court's decision in JOHNSON, OUR EN BANC OPINION IN CALVERLEY SUGGESTED THAT PLAIN ERRORS ARE "ERRORS WHICH ARE SO CONSPICUOUS THAT THE TRIAL JUDGE AND PROSECUTOR WERE DERELICT IN COUNTENANCING THEM, EVEN ABSENT THE DEFENDANT'S TIMELY ASSISTANCE IN DETECTING THEM." CALVERLEY, 37 F.3D AT 163 (BRACKETS AND INTERNAL QUOTATIONS OMITTED). IN LIGHT OF JOHNSON'S HOLDING THAT PLAINNESS IS JUDGED WITH APPELLATE HINDSIGHT TO CORRECT AN ERROR WHICH ONLY BECAME AN ERROR IN LIGHT OF INTERVENING LAW WHICH WAS UNAVAILABLE AT THE TIME OF TRIAL, THIS ASPECT OF CALVERLEY'S DISCUSSION OF PLAINNESS HAS BEEN ABROGATED.
AS GAUTREAUX MAKES CLEAR, THESE STANDARDS SERIOUSLY MISSTATE THE LAW. THE
STANDARDS APPLIED BY THE DISTRICT COURT EMBODY A STRONG PRESUMPTION THAT A JONES
ACT EMPLOYER IS RESPONSIBLE FOR THE INJURIES OF SEAMEN. FURTHERMORE, THEY
ATTRIBUTE VERY LITTLE RESPONSIBILITY TO THE SEAMAN HIMSELF. IN CONTRAST, GAUTREAUX
REQUIRES THAT BOTH THE EMPLOYER AND THE SEAMAN BE SUBJECTED TO THE "ORDINARY
PRUDENCE" STANDARD OF NEGLIGENCE UNDER THE JONES ACT. SEE GAUTREAUX, 107 F.3D
AT 338-39.
HAD THE PROPER STANDARDS BEEN APPLIED, THE DISTRICT COURT MAY VERY WELL HAVE
FOUND CRAWFORD TO HAVE BEEN CONTRIBUTORILY NEGLIGENT TO SOME DEGREE. THERE IS
AMPLE EVIDENCE IN THE RECORD TO SUPPORT THE DISTRICT COURT'S CONCLUSION THAT THE
DRILLER AND THE DRILL HANDS IMPROPERLY POSITIONED THE DRILL