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Nevor v. Moneypenny Holdings, LLC

United States District Court, D. Rhode Island

January 14, 2016

KENNETH NEVOR, Plaintiff,
v.
Moneypenny Holdings, LLC, Defendant.

MEMORANDUM OF DECISION

JOHN J. McCONNELL, Jr., District Judge.

Kenneth Nevor asserts a cause of action for negligence under the Jones Act, 46 U.S.C. ยง 30104 et seq., against his former employer Moneypenny Holdings, LLC. The Jones Act creates an affirmative duty for a seaman's employer to provide its employees with a reasonably safe place to work. The employer's duty to provide a safe boat is broad.

This Court may enter judgment following a trial without a jury. See Fed.R.Civ.P. 52(a). In crafting a decision following a bench trial, the Court "shall find the facts specially and state separately its conclusions of law thereon[.]" Id. [1]

After a four-day bench trial in September 2015 involving eight witnesses and numerous exhibits, and after a review of all depositions submitted as evidence, as well as the proposed findings-of-fact and legal memorandum from both parties (ECF Nos. 99-102), the Court makes the following Findings of Fact, Conclusions of Law, and Award.

I. FINDINGS OF FACT

Kenneth Nevor and Moneypenny Holdings, LLC

1. Moneypenny Holdings, LLC is a Delaware limited liability corporation.[2] Moneypenny owns the S/V Vesper, a 52-foot state-of-the-art sailboat and the M/V Odd Job, a 35-foot Protector motor vessel.

2. Kenneth Nevor, 35 years old at the time of the incident, was a seaman employed by Moneypenny. The Court found Mr. Nevor to be a highly credible witness.

3. Mr. Nevor had been a sailor since he was eight or nine years of age, sailing dinghies as a boy. He turned professional in 1998 and moved to Newport, Rhode Island in 1999 to pursue professional sailing.

4. A majority of Mr. Nevor's sailing career was as a bowman, a mastman, a midbowman, and a grinder. He also worked on the foredeck.

5. Mr. Nevor distinguished himself in professional yacht races, serving as a crewmember on some of the industry's most distinguished yachts. He participated in regattas in the United States and around the world.

6. Mr. Nevor was involved in sailing at its top level. He advanced through many sailing vessels to get to this stage.

7. Mr. Nevor was conscientious, hardworking, and talented. His professional skills included sailing, racing, delivering, repairing materials such as fiberglass and carbon fiber, optimizing sailboats for racing, servicing a vessel's computers, electronics, rigging, mast tuning, winch break downs, and maintenance.

8. Mr. Nevor first started sailing with the Moneypenny sailing team in the summer of 2007.

9. Moneypenny's Vesper sailing team was made up of highly skilled individuals and was very successful.

10. In the spring of 2011, Mr. Nevor became a member of the sailing crew of the Vesper in St. Thomas. He was scheduled to be a member of the crew at the next regatta in St. Barts.

11. The support vessel for the Vesper was the Odd Job. The Odd Job was a rigid inflatable vessel (sometimes referred to as the support vessel or tender to the Vesper ) and had a hard, fiberglass deck and cabin, surrounded by an inflated rubber type "tube" made of hypalon. It had two 300 horsepower engines. The Odd Job was used to carry sails and equipment and was used for at-sea transfers of personnel from the Vesper.

The March 28, 2011 Incident

12. The first official race for the Vesper took place in St. Thomas from March 24-27, 2011. The Vesper won that race.

13. On March 28, 2011, the Vesper team was moving the boat from St. Thomas to St. Maarten in preparation for the next regatta in St. Barts.

14. The crew of the Vesper consisted of Mr. Nevor and two others (one crewmember and one local man from St. Thomas who was not a member of the Vesper crew). This was not the usual professional race crew. No personnel transfer at sea was anticipated when the Vesper left St. Thomas.

15. Prior to leaving St. Thomas, the Vesper captain did not have the crew report to Customs in St. Thomas before sailing to St. Maarten. Instead, and presumably to save time, Vesper Captain Jeffrey Price collected the passports from the crew and sent the Vesper to St. Maarten Captain Price remained behind to deal with Customs.

16. Customs in St. Thomas, however, did not allow clearance with just the passports, but required the Vesper crewmembers to be in St. Thomas in person. This necessitated bringing the Vesper crew back to St. Thomas to return to Customs.

17. The Odd Job was sent to get the Vesper crew to take them back to St. Thomas for Customs clearance.

18. If clearance via Customs had been done properly before Mr. Nevor and the other crew left St. Thomas, there would have been no need for an at sea transfer.

19. The transfer of the Vesper crew to the Odd Job occurred somewhere east of St. Thomas and St. John in the open waters of the Caribbean Sea. It was in an area known as Sir Francis Drake Channel. There are barrier islands to the south. To go on to St. Maarten, the boats would have to pass through one of the cuts between these barrier islands. The distance across this area of the sea, from island to island, is approximately ten to twelve miles.

20. When the Odd Job reached the Vesper, both vessels were moving under power and oscillating up and down with the sea. The Odd Job approached the left side of the Vesper, putting the right side of the Odd Job along the back left side of the Vesper.

21. The breeze was building at the time of the incident, causing the sea to become choppy. The winds were at least 8-12 knots, and came from the east over the Vesper 's right side, causing the vessels to pitch.

22. The wave action caused the height between the two vessels constantly to change beyond the variance of the hull heights. There was at least a one and one-half foot difference between the heights of the two boats to begin with regardless of wave or ocean action. Both boats were moving independently and separated with a gap appearing between the vessels.

23. The two boats could have safely sailed to calmer waters in order to conduct the personnel transfer, but they chose not to do so.

24. The crew did not tie the two boats together and the captain did not require it.

25. In effect, the crew had to jump from the Vesper to the Odd Job.

26. There are safety procedures that all the professional sailors should follow that Moneypenny's agents did not follow. The captain of the boats gave no instructions or safety ...


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