United States Court of Appeals

Fifth Circuit

FILED

July 16, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 06-30655

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JOHN E PARK,

Plaintiff - Appellant,

versus

STOCKSTILL BOAT RENTALS INC,

Defendant - Appellee.

Appeal from the United States District Court

For the Western District of Louisiana

Before REAVLEY, GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

In this admiralty case, seaman John E. Park (“Park”) appeals the district court’s grant of

summary judgment in favor of his employer, Stockstill Boat Rentals, Inc. (“Stockstill”), on Park’s

action under the Jones Act and generalmaritime law to recover damagesfor personalinjuriessuffered

while he was working aboard Stockstill’s vessel.

Park was employed by Stockstill to captain the MISS SISSY (“the vessel”), a 38-foot crew

boat charged with carrying supplies to oil rigs off the southern coast of Louisiana. On the morning

of October 26, 2004, Park was reaching to open the engine compartment door of the MISS SISSY
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when he slipped and fell backward, injuring his back. Park sued Stockstill for damages relating to

these injuries. He first claims that Stockstill is liable under the Jones Act for negligence as a matter

of law. According to Park, Stockstill violated 46 U.S.C. § 8104(b) and the MISS SISSY’s

Certificate of Inspection by requiring him to work all night, alone on the vessel; as a result, he claims

he suffered fatigue, which caused him to slip and fall the next morning, injuring his back. Park also

claimsthat the MISS SISSY was unseaworthy because its decking was covered with faded, old paint

and that this unseaworthy condition caused him to fall and injure himself.

The district court granted Stockstill’s motion forsummaryjudgment on the groundsthat “this

accident was caused totally and completely by the negligence ofthe plaintiff himself.” We review the

district court’s grant of summary judgment de novo. Honeywell Intern., Inc. v. Phillips Petroleum

Co., 415 F.3d 429, 434 (5th Cir. 2005). We affirm only when there is no genuine issue of material

fact and Stockstill is entitled to judgment as a matter of law. Id. A dispute about a material fact is

genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

After a close review of the record, we conclude that Park has not identified a genuine issue

of materialfact that, if proved, would satisfy the threshold element of hisJones Act claim. The Jones

Act allows an injured seaman to sue his employer for personal injuries suffered as a result of the

employer’s negligence. See 46 U.S.C. § 30104(a). Under the doctrine of negligence per se, a Jones

Act employer may be liable if its violation of a statutory duty causes injury to its seaman-employee.

See Kernan v. American Dredging Co., 355 U.S. 426 (1958); Dougherty v. Santa Fe Marine, Inc.,

698 F.2d 232, 234 (5th Cir. 1983). In order to establish negligence per se, Park must show, as a

threshold matter, that his employer violated a statute or Coast Guard regulation. See Smith v. Trans-
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World Drilling Co., 772 F.2d 157, 160-61 (5th Cir. 1985) (citing Reyes v. Vantage S.S. Co., Inc.,

558 F.2d 238, 242-44 (5th Cir. 1977), modified 609 F.2d 140 (1980)) (listing the five elements of

a Jones Act negligence per se claim).

The record in this case is devoid of evidence that Stockstill violated a statute or Coast Guard

regulation. While Park asserts that Stockstill violated 46 U.S.C. § 8104(b)’s requirement that “a

licensed individual . . . not be required to work more than . . . 12 of 24 hours at sea, except in an

emergency when life or property are endangered,” he has presented no evidence that Stockstill

actually required him to work more than twelve hours. Park’s deposition reveals that he picked up

a box ofsuppliesfrom the dock dispatcher around 6:00 p.m. on the evening before the accident. The

dispatcher told Park to take the supplies to an oilrig “assoon as[Park] could get it out there.” Park

then chose to make run to an oil rig, alone and in the dark. Unfamiliar with the waters, Park ran the

MISS SISSY onto a sandbar. Unable to contact the rig or the dock for help, he kept watch overnight

in order to make sure the vessel did not dislodge and drift or collide with a larger ship. Park relies

on the fact that he was working or standing guard for twenty-four straight hours as evidence that

Stockstill violated its statutory duty under § 8104(b).

At most, Park has shown that he was working or awake for twenty-four straight hours the

night before the slip and fall. The statute, however, does not prohibit a seaman from working for

more than twelve hours in a row; it prohibits an employer from “requiring” a seaman to work more

than twelve hours in a row. See 46 U.S.C. § 8104(b). Neither Park’s deposition, nor any other

evidence in the summary judgment record, indicates that Stockstill “required” (or even requested)

Park to take this box of supplies to an oil rig at night, let alone that Stockstill required Park to work

all night on the sandbar. Moreover, there is no evidence that Stockstill even knew that Park was
1 Violating the Certificate of Inspection—like any other statute or regulation—can amount

to negligence per se. See 46 U.S.C. § 3313(a) (requiring compliance with a vessel’s Certificate of

Inspection).

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making runs at night or that he had run aground. Cf. Billedeaux v. Tidex, Inc., No. 93-3112, 3 F.3d

437, 1993 WL 347039, at *2 (5th Cir. Aug. 13, 1993) (“[A] plaintiffmust show that a shipowner had

actual or constructive knowledge of the dangerous condition that injured the plaintiff.”). Therefore,

Park has not shown a genuine issue of materialfact to support his assertion that Stockstill “required”

him to work in violation of 46 U.S.C. § 8104(b).

For these same reasons, Park has not shown that a genuine issue of material fact exists on his

assertion that Stockstill violated the MISS SISSY’s Certificate of Inspection, which requires more

than one crewmember if the vessel is away from a shoreside dock for more than twelve hours in any

twenty-four hour period. See 46 U.S.C. § 8101(d) (“A vessel . . . may not be operated without

having in its service the complement required in the certificate of inspection.”).1 An owner does not

violate a vessel’s manning requirement “when a vessel is deprived of the service of a member of its

complement without the consent, fault, or collusion of the owner.” Id. § 8101(e). On the contrary,

when the owner does not know that the vessel may be in violation of the Certificate of Inspection’s

manning requirements, the master of the vessel is given the responsibility to comply. See id. Here,

the record indicates that Park himself was the only one aware that the MISS SISSY was away from

a shoreside dock for more than twelve hours. Nothing in the record suggests that Stockstill directed

Park to take the MISS SISSY away from a shoreside dock for more than twelve hours without

another crewmember. Rather, the record contains evidence that Stockstill asked Park to run only

short jaunts to oil rigs, with the longest distance being an eleven-hour trip between bays. There is
2 We also reject Park’s barely-briefed contentions that Stockstill violated two additional

provisions of the Certificate of Inspection. First, Park asserts that his transit on the Intercoastal

Waterway and the Mississippi River—which took place two days before the alleged slip and

fall—violated the vessel’s Certificate of Inspection limiting the vessel’s navigational route to “lakes,

bays, and sounds.” The Intercostal Waterway and the Mississippi River were not outside the MISS

SISSY’s limits because a vessel is permitted to operate on a “route of less severity” than that

specified in the Certificate of Inspection, see 46 C.F.R. § 176.110(b), and rivers are considered a

route of less severity than “lakes, bays, and sounds.” Id.

Second, Park claims that Stockstill violated the Certificate of Inspection’s provision limiting

the vessel’s runs to thirty minutes. Assuming arguendo Stockstill did violate the thirty-minute run

provision, Park has not presented a scintilla of summary judgment evidence that would link this

violation to hisslip-and-fall accident, and thus has not met the elements of his negligence perse claim.

See Smith, 772 F.2d at 160-61 (listing “causation” as the fifth element of a Jones Act negligence per

se claim); Abshire v. Gnots-Reserve, Inc., 929 F.2d 1073, 1076-77 (5thCir. 1991) (“Under the Jones

Act, a defendant must bear the responsibility for any negligence, however slight, that played a part

in producing the plaintiff’s injury . . . .” However, “summary judgment is nevertheless warranted

when there is a complete absence of proof of an essential element of the nonmoving party’s case.”).

Park’s deposition gives only two reasonsfor hisfall: “fatigue,” caused by working more than twelvehours as a time, and “faded, old paint” on the vessel’s deck. Nothing in the record suggests that a

longer-than-thirty-minute run might have caused his fall.

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no evidence that Stockstill had any knowledge that Park made a run to a rig at night, nor that Park

had run aground on a sandbar overnight. Thus, the summary judgment record does not support

Park’s claim that Stockstill violated the Certificate of Inspection’s manning requirements.2

We also reject Park’s general maritime claim that the MISS SISSY was unseaworthy. A

vessel is unseaworthy only if it presents an unreasonable risk of harm to the seaman. See, e.g.,

Mitchell v. TrawlerRacer, Inc., 362 U.S. 539 (1960);Bommarito v. Penrod DrillingCorp., 929 F.2d

186 (5th Cir. 1991). The owner is not “obligated to furnish an accident-free ship.” Mitchell, 362

U.S. at 550. Rather, seaworthiness requires only that “a vessel and its appurtenances must be

reasonably suited for the purpose or use for which they were intended.” Johnson v. Offshore

Express, Inc., 845 F.2d 1347 (5th Cir. 1988) (citing Mitchell, 362 U.S. at 550).

Park presents no evidence that the MISS SISSY was not reasonably suited for the purpose
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or use for which it was intended. Although he testified in his deposition that the MISS SISSY’s

diamond plate deck was painted with faded, old paint, Park offers no evidence that the condition of

the paint rendered the vessel unseaworthy. He does not present any evidence—such as from an

expert in ship maintenance, for example—that the paint was unsafe or not reasonably suited for the

deck’s purpose. Cf. Rogers v. Eagle Offshore Drilling Serv., Inc., 764 F.2d 300, 304 (5thCir. 1985)

(“Clearly a plaintiff must present sufficient evidence to raise a jury question whether a method of

operation is unsafe, before a fully equipped vessel, with all its gear in good working order, can be

rendered unseaworthy.”). In other words, there is no evidence that the old, faded paint was

dangerous. Rather, Park testified in his deposition that the slippery substance on the deck was the

“morning dew.” Uncontroverted evidence shows that the MISS SISSY was equipped with a deck

that had raised diamond plates to provide traction, and Park presents nothing to indicate that these

raised diamond plates were not reasonably suited for the deck’s purpose. It is not enough for Park

to rest on mere conclusory allegations or denials in his pleadings. Topalian v. Ehrman, 954 F.2d

1125, 1131, 1137 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992). Park must point out, with

factual specificity, evidence demonstrating the existence of a genuine issue of material fact on every

component of his case. Dunn v. State Fire & Cas. Co., 927 F.2d 869, 872 (5th Cir. 1991). Park’s

mere assertion that the MISS SISSY’s paint was old and faded is insufficient to raise a fact issue on

whether the paint rendered the vessel unseaworthy.

Because Park has not put forth any evidence to satisfy the threshold elements of hisJones Act

and unseaworthiness claims, we affirm summary judgment without reviewing the district court’s

holding that these alleged violations could not have caused Park’s injuries. See Holtzclaw v. DSC

Commc’ns Corp., 255 F.3d 254, 258 (5th Cir. 2001) (citing Tex. Refrig. Supply, Inc. v. FDIC, 953
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F.2d 975, 980 (5thCir. 1992)) (affirming summary judgment on any ground supported by the record,

even if it is different from that relied on by the district court).

AFFIRMED.