United States Court of Appeals Fifth Circuit 

## FILED July 16, 2007 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________ No. 06-30655

____________ JOHN E PARK,
Pl aint iff - 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 Bo at Rentals, Inc. (“Stockstill”), on Park’s action under the Jones Act and general marit ime law to recover damages fo r personal injuries suffered 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 of f the southern coast of Loui siana. On the morning of October 26, 2004, Park was reaching to open the engine com partm ent door of the MISS SISSY-2-

when he slipped and fell backward, injuring his back . Park sued Stockstill fo r damages relating to these injuries. He first claims that Stockstill is liable under the Jones Act for negligence as a matter of la w. According to Park, Stockstill vio lat ed 46 U.S.C. § 8104(b) and the MISS SISSY’s Certificat e of Inspection by requiring him to work all night , alo ne on the vessel; as a result, he claims he suffered fatigue, which caused him to slip and fall the next mo rning, injuring his back. Park also claims th at the MISS SISSY was unseaworthy because it s decking was covered wit h faded, old paint and that this unseaworthy condition caused him to fall and injure himself. The district court granted Stockstill’s mo tion fo r summary judgment on the grounds th at “t his accident was caused totally and com pletely by the negligence of the plaint iff himself.” We review the district court’s grant of summary judgment de novo . H oneywell Intern., Inc. v. Phillips Petroleum Co. , 415 F.3d 429, 434 (5th Cir. 2005). We affirm o nly when t here is no genuine issue of material fact and Stockstill is entitled to judgment as a matter of law. Id . A dispute about a mat erial fact is genuine “if the evidence is such th at a reasonable jury could return a verdict for the nonmoving party .” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Aft er a close review of the record, we conclude that Park has not identified a genuine issue of mat erial fact th at, if proved, would sati sfy the th reshold element of his Jones Act claim. The Jones Act allo ws an injured seaman to sue his employer fo r personal injuries suffered as a re s ult of the employer’s negligence. S ee 46 U.S.C. § 30104(a). Under the doctrine of negligence p er se , a Jones Act employer may be liable if it s vio lat io n of a statutory duty causes injury to it s seaman-employee. See Kernan v. American Dredging Co. , 355 U.S. 426 (1958); Dougherty v. Santa Fe Marine, Inc. , 69 8 F.2d 232, 234 (5th Ci r. 1983). In order to establish negligence p er se , Park must show, as a th reshold mat ter, th at his employer vio lat ed a statute or Coast Guard regulation. S ee Smith v. Trans--3-

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 th at Stockstill vio lat ed a statute or Coast Guard regulation. While Park asserts that Stockst ill vio lat ed 46 U.S.C. § 8104(b)’s requirement that “a licensed individual
. . . not be required to work m ore than . . . 12 of 24 hours at sea, except in an emergency when life or property are endangered,” he h as presented no evidence that Stockstill actually required him to work mo re th an twelve hours. Park’s deposition reveals that he picked up
a box of supplies from the dock dispatcher around 6:00 p.m . on the evening before the accident. The dispatcher told Park to take the supplies to an oil rig “as soon as [Park] could get it out there.” Park then chose to make run to an oil rig, alo ne and in the dark. Unfamiliar wit h t he waters, Park ran the MISS SISSY onto a sandbar. Unable to contact the rig or the dock for help, he kept watch overnight in o rder to make sure the vessel did not dislodge and drift or collide with a larger ship. Park relies
on the fact th at he was working or standing guard for twenty -four straight hours as evidence that Stockstill vio lat ed its statutory duty under § 8104(b). At mo st, Park has shown that he was working or awake fo r twenty -four straight hours the night b efore th e slip and fall. The statute, however, does not prohibit a seaman from working for
mo re than twelve hours in a row; it prohibits an employer from “requiring” a seaman to work mo re th an twelve hours in a row. S ee 46 U.S.C. § 8104(b). Neither Park’s deposition, nor any other evidence in the summary judgment record, indicates th at Stockstill “required” (or even requested ) Park to take this box of supplies to an oil rig at night , let alo ne th at Stockstill required Park to work all night on the sandbar. Moreover, there i s no evidence that Stockstill even knew that Park was1 Violating the Certificat e of Inspection—like any other statute or regul ation—can amount

to negligence per se . S ee 46 U.S.C. § 3313(a) (requiring compliance with a vessel’s Certificate of Inspection). -4- making runs at night or th at he had run aground. C f. Billedeaux v. Tidex, Inc. , No. 93-3112, 3 F.3d 437, 1993 WL 347039, at *2 (5th Cir. Aug. 13, 1993) (“[A] plaint iff must show th at a shipowner had actual or constructive knowledge of the dangerous condition th at injured the plaint iff. ”). Therefore, Park has not shown a genuine issue of mat erial fact to support his assertion th at Stockstill “required” him t o work in vio lat io n of 46 U.S.C. § 8104(b). For these same reasons, Park has not shown th at a genuine issue of mat erial fact exists on his assertion that Stockstill vio lat ed the MISS SISSY’s Certificate of Inspection, which requires more th an one crewmember if the vessel is away from a shoreside dock fo r mo re th an twelve hours in any twenty -four h our period. See 46 U.S.C. § 8101(d) (“A vessel
. . . may not be operated wit hout having in it s service the com plement required in the certificat e of inspection.”). 1 An o wner does not vio lat e a vessel’s manning requirement “when a vessel is deprived of the service of a member of its
com plement wit hout the consent, fault , or collusio n of the owner.” Id. § 8101(e). On the contrary , when the owner does not know th at the vessel may be in vio lat io n of the Certificat e of Inspection’s manning requirements, the master of the vessel is given the responsibility to com ply. S ee id. Here, the record indicates th at Park himself was the only one aware th at the MISS SISSY was away from
a shoreside dock fo r mo re th an twelve hours. Nothing in t he record suggests that Stockstill directed Park to take the MISS SISSY away from a shoreside dock fo r mo re th an twelve hours without another crewmember. Rather, the record contains evidence that Stockstill asked Park to run only short j aunts to oil rigs, wit h the lo ngest distance being an eleven-hour tri p between bays. There is2 We also reject Park’s barely-briefed contentions that Stockstill violated two additional

provisions of the Certificat e of Inspection. First, Park asserts that his transit on th e Intercoastal Waterway and the Mississippi River—which took place two days bef ore the alleged slip and fall—vio lat ed the vessel’s Certificat e of Inspection limit ing the vessel’s navigational route to “lakes, bays, and sounds.” The Intercostal Waterway and the Mississippi River were not outside the MISS SISSY’s limit s because a vessel is permitted to operate on a “route of le ss severity” than that specified in the Certificat e of Insp ecti on, s ee 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 th at Stockstill vio lat ed the Certificat e of Inspection’s provision limit ing the vessel’s runs to thirty minutes. Assuming arguendo Stockstill did vio lat e the thirty-minute run provision, Park has not presented a scintilla of summary judgment evidence th at wou ld link this vio lat io n to his slip-and-fall accident, and thus has not met the elements of his negligence per se claim. See Smith , 772 F.2d at 160-61 (l ist ing “causation” as the fift h element of a Jones Act negligence per se claim) ; Abshire v. Gnots-Reserve, Inc. , 929 F.2d 1073, 1076-77 (5th Cir. 1991) (“Under the Jones Act, a defendant must bear the responsibility fo r any negligence, however slight, that played a part in produci ng the pl aint iff’s injury . . . .” However, “summary judgment is nevertheless warranted when there is a com

plete absence of proof of an essential element of the nonmoving party ’s case.”). Park’s deposition gives only two reasons fo r his fall: “fat igue,” caused by working mo re th an twelvehours as a time, and “faded, old paint” on the vessel’s deck. Nothing in t he record suggests that a lo nger-than-thirty-minute run might have caused his fall. -5- no evidence th at 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 sum mary 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 marit ime claim th at the MISS SISSY was unseaworthy. A vessel is unseaworthy only if it presents an unreasonable ri sk of harm t o th e seaman. S ee, e.g. , Mitchell v. Trawler Racer, Inc. , 362 U.S. 539 (1960); Bommarito v. Penrod Drilling Corp. , 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 fo r the purpose or use fo r which t hey were int ended.” J ohnson 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-6-

or use fo r which it was int ended. Alt hough he testified in his depositio n t hat the MISS SISSY’s diamond plate deck was painted wit h faded, old paint, Park of fers no evidence th at the condition of the paint rendered the vessel unseaworthy. He does not present any evidence—such as from an expert in ship maint enance, fo r example—that the paint was unsafe or not reasonably suited fo r the deck’s purpose. C

f. Rogers v. Eagle Offshore Drilling Serv., Inc. , 764 F.2d 300, 304 (5th Cir. 1985) (“Clearly a plaint iff must present sufficient evidence to rai se a jury question whether a method of operation is unsafe, before a fully equipped vessel, with all it s gear in good working order, can be

r endered unseaworthy .”). In other words, there i s no evidence that the old, faded paint was dangerous. Rather, Park testified in his deposition th at the slippery substance on the deck was the “mo rning dew.” Uncontroverted evidence shows that the MISS SISSY was equipped with a deck th at had raised diamond plates to provide traction, and Park presents nothing to indicate th at these raised diamond plates were not reasonably suited for the deck’s purpose. It i s not enough for Park to rest on mere conclusory allegations or denials in his pleadings. T opalian v. Ehrman , 954 F.2d 1 125, 1131, 1137 (5th Cir. 1992), cert. denied , 506 U.S. 825 (1992). Park must point out, wit h factual specificit y, evidence demonstrating the existence of a genuine issue of mat erial fact on every
com ponent of his case. Dunn v. State Fire & Cas. Co. , 927 F.2d 869, 872 (5th Cir. 1991). Park’s
mere assertion th at 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 fo rth any evidence to sati sfy the th reshold elements of his Jones Act and unseaworthiness claims , we af fir m summary judgment without reviewing the district court’s holding th at these alleged vio lat io ns 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 , 953-7-

F.2d 975, 980 (5th Cir. 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.