Thompson v. Vane Lines Bunkering ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELGIN THOMPSON, 
Plaintiff-Appellant,
v.
 No. 00-1997
VANE LINES BUNKERING; UNITED
STATES OF AMERICA,
Defendants-Appellees.

ELGIN THOMPSON, 
Plaintiff-Appellee,
v.
VANE LINES BUNKERING,
Defendant-Appellant,  No. 00-1998
and
UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-99-1632)
Argued: June 5, 2001
Decided: July 23, 2001
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 THOMPSON v. VANE LINES BUNKERING
COUNSEL
ARGUED: Patrick B. Streb, WELTIN LAW OFFICE, P.C., Oak-
land, California, for Appellants. Debra Joan Kossow, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees. ON BRIEF: John Holloway, HUNTON & WILLIAMS,
Norfolk, Virginia, for Appellants. David W. Ogden, Assistant Attor-
ney General, Helen F. Fahey, United States Attorney, David V.
Hutchinson, Assistant Director, Admiralty, Douglas A. Winegardner,
Trial Attorney, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Elgin Thompson, a merchant seaman, brought this action under the
Jones Act, 46 U.S.C. § 688 et seq., the Public Vessels Act, 46 U.S.C.
§ 781 et seq., the Suits in Admiralty Act, 46 U.S.C. § 741 et seq., and
"general maritime law" against his employer, Vane Lines Bunkering,
and the United States. Thompson alleges that negligent acts of Vane
and the United States proximately caused him to fall from a rope lad-
der while he was attempting to climb from a tank barge to the U.S.S.
Ponce. Thompson severely injured himself in the fall and seeks dam-
ages in excess of $300,000. After a full bench trial, the district court
granted judgment to Vane and the United States. We affirm.
The critical facts are undisputed and set forth in detail in the district
court’s opinion. Briefly summarized, at the time of the accident,
December 18, 1997, Thompson, a 49 year old tankerman, who
weighed 275 pounds, had worked loading and unloading transport
petroleum ships for nineteen years. Since 1991, a doctor had treated
Thompson for osteoarthritis and degenerative disc disease and had
THOMPSON v. VANE LINES BUNKERING 3
prescribed a number of different medications for pain relief, anxiety,
and inflammation, including Vicodin Extra Strength and Valium.
On December 17, 1997, Thompson began working for Vane to
offload fuel oil from the Navy’s U.S.S. Ponce into a Vane tank barge
at the Norfolk Naval Base. To do so, Thompson had to use a rope lad-
der to exit the barge via the U.S.S. Ponce, which he did. On this date,
the vertical distance between the deck of the barge and the side port
of the U.S.S. Ponce was approximately six feet. The next day, how-
ever, at the time Thompson attempted to use the rope ladder to exit,
the distance between the side port and the barge was 18 to 20 feet.
When Thompson attempted to navigate the rope ladder at the end of
the day on December 18, he was wearing two layers of clothing, a
back brace, and a work vest, which was one inch thick and served as
a flotation device, and was carrying a 30 by 18 inch sea bag that con-
tained clothing, a flashlight, a cell phone, and papers. Thompson fell
and severely injured himself.
Thompson maintains that the Navy negligently rigged the rope lad-
der without handrails or grabrails and in a way that made it hang
away from the side of the ship causing his feet to push the ladder in
toward the ship’s hull and his body to lean backwards as he climbed.
He contends that this negligence proximately caused his fall.
After considering all of the evidence, the district court held to the
contrary. The court specifically found that "Thompson fell off the lad-
der because he was exhausted and physically unable to hold on or
climb further. . . . [T]he sole proximate cause of Plaintiff’s fall was
his physical inability to climb or hold on to the ladder." Although
Thompson testified that he had taken neither Vicodin Extra Strength
nor Valium on the day of the accident, the district court rejected that
testimony as not credible and concluded that Thompson did take these
drugs, as was his usual daily practice. The court found that Thomp-
son’s weight, fatigue, extra clothing, back brace, and sea bag, com-
bined with dizziness because of the drugs, not the United States’s
negligence in the arrangement of the ladder, caused his accident.
We have carefully reviewed the briefs and record in this case, con-
sidered the oral and written arguments of the parties, and the relevant
legal authorities, and conclude that we must affirm. We do note that
4 THOMPSON v. VANE LINES BUNKERING
maritime law, with its comparative negligence standard, rather than
Virginia law, with its contributory negligence standard, governs this
case; thus, the district court erred in finding that Thompson was con-
tributorily negligent. See Yamaha Motor Corp., U.S.A. v. Calhoun,
516 U.S. 199, 210 (1996); White v. United States, 53 F.3d 43, 47 (4th
Cir. 1995); Bubla v. Bradshaw, 795 F.2d 349, 354 (4th Cir. 1986).
This error, however, is harmless in view of the district court’s express
finding that "the sole proximate cause of Plaintiff’s fall was his physi-
cal inability to climb or hold on to the ladder." (Emphasis added).
Although a trier of fact could have resolved the issue differently, we
cannot hold that the district court clearly erred and so affirm essen-
tially on the reasoning (other than the contributory negligence find-
ing) of the district court. See Thompson v. Vane Lines Bunkering, Civ.
Act. No. 2:99cv1832 (E.D. Va. June 28, 2000).
AFFIRMED