United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-30488 

____________ 

Lester Johnson, 

Plaintiff—Appellant, 

versus

Cooper T. Smith Stevedoring Company, Incorporated, 

Defendant—Appellee. 

______________________________ 

Appeal from the United States District Court 

for the Middle District of Louisiana 

USDC No. 3:20-CV-749 

______________________________ 

Before Richman, Chief Judge, and Stewart and Douglas, Circuit 

Judges.

Dana M. Douglas, Circuit Judge: 

Plaintiff Lester Johnson (“Johnson”), an injured maritime worker, 

appeals from the district court’s grant of summary judgement to defendant 

Cooper T. Smith Stevedoring Company, Inc. (“Cooper”) on his claims of 

Jones Act negligence, failure to pay maintenance and cure, unseaworthiness, 

and, alternatively, vessel negligence. The district court granted summary 

judgment after concluding that Johnson had not put forth evidence showing 

a genuine dispute of material fact concerning his seaman status or vessel 

negligence. We AFFIRM. 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 14, 2023 

Lyle W. Cayce 

Clerk 

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2 

I. 

Cooper has a facility for midstream cargo operations near Darrow, 

Louisiana. At the Darrow facility, cargo operations occur while vessels are 

located midstream in the Mississippi River. In connection with its 

operations, Cooper owns and operates a weigh station vessel, the 

AMERICA, which is used to transfer bulk cargo from barges to oceangoing 

vessels. 

Cooper’s Darrow facility hires longshoremen on a per-day basis 

through the local union hall to load and unload vessels. Johnson worked 

sporadically as a longshoreman for Cooper as early as 1998 and worked 

regularly for Cooper from 2008 through the date of his injury on June 22, 

2018, never going more than a week and a half without working. his 

employment with Cooper, Johnson performed various jobs including 

operating a front-end loader and track hoe, flagging cranes, and loading 

barges. 

According to Cooper, longshoremen like Johnson are not “assigned” 

to the AMERICA, are not its crewmembers, and “do not operate it, maintain 

it, clean it, fuel it, or perform any other functions similar to her crew,” but 

instead are “instruct[ed]” to report to particular vessels “to identify the midstream location of the cargo barges and oceangoing vessels on which they will 

be working.” In other words, Cooper gives longshoremen like Johnson 

assignments to cargo barges and oceangoing vessels that are limited to 

performance of “discrete tasks,” after which their connections to the vessels 

end. Cooper also has full-time employees, which include crewmembers 

assigned to the AMERICA. 

On the evening of June 22, 2018, Johnson was injured when he fell to 

the deck of the AMERICA from the deck of an adjacent cargo barge, the SCF 

24122. On the night of the injury, Johnson reported to Cooper’s Darrow 

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office and was transported from the landing dock to the AMERICA via crew 

boat. Johnson’s job during that night’s operations was inside the hold of the 

SCF 24112, operating a front-end loader to move cargo, soybean mill, into 

the AMERICA’s “bucket,” which would then move the cargo to the hold of 

an oceangoing vessel, the M/V XENIA. Cooper did not own or operate the 

SCF 24112 or the M/V XENIA. 

After the cargo in the hold of the SCF 24112 had been unloaded, 

Johnson positioned the front-end loader to be removed from the cargo 

barge’s hold by the AMERICA’s winch and then climbed an aluminum 

ladder to exit the hold himself. The ladder was owned by Cooper and 

permanently stored on the AMERICA. On the deck of the barge, Johnson 

and another longshoreman, Joe Thomas, pulled the ladder out of the hold of 

the barge and attempted to place it in its storage “slot” on the AMERICA. 

Doing so was a routine task for Johnson and other longshoremen working for 

Cooper. 

This time, however, Johnson slipped, fell, and landed headfirst on a 

catwalk on the AMERICA’s deck, 13 feet below. Johnson testified that he 

and Thomas did not have any problem with the ladder, but that he slipped on 

“cargo”—meaning pieces of grain and grain dust—on the deck of the barge. 

He testified that cargo dust “gets all over the place” whenever vessels are 

being loaded or unloaded and that he saw cargo all over the barge when he 

got out of the hold the night of the accident. 

Johnson suffered numerous personal injuries and was hospitalized 

because of his fall. Over the next year and half, he underwent multiple 

medical procedures (including two surgeries) and physical therapy. In 

connection with his injuries, Johnson collected workers’ compensation 

benefits from Cooper pursuant to the Longshore and Harbor Workers’ 

Compensation Act (“LHWCA”). 

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Johnson filed suit against Cooper in federal district court in November 

2020, alleging that he was a seaman and a member of the crew of the 

AMERICA, and bringing claims of Jones Act negligence, failure to pay 

maintenance and cure, and unseaworthiness (collectively, “seaman 

claims”). In the alternative, Johnson alleged that if he was not a seaman and 

was covered by the LHWCA, then Cooper as vessel owner had been 

negligent pursuant to 33 U.S.C. § 905(b) and general maritime law. After 

discovery, Cooper moved for summary judgment, asserting that (1) Johnson 

was not a “seaman”; (2) there were no facts to support a vessel negligence 

claim under 33 U.S.C. § 905(b); and (3) Johnson’s general maritime law 

negligence claim was barred by § 905(a)’s exclusivity provision. The district 

court granted the motion and dismissed Johnson’s claims with prejudice. 

According to the district court, Johnson failed to cite to evidence that showed 

a genuine dispute of material fact as to whether he was a seaman and, 

alternatively, as to vessel negligence. 

II. 

“This court reviews de novo a district court’s grant of summary 

judgment, applying the same standard as the district court.” Austin v. Kroger 

Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017) (citation omitted). Summary 

judgment is appropriate “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). “A genuine [dispute] of material 

fact exists when the evidence is such that a reasonable jury could return a 

verdict for the non-moving party.” Austin, 864 F.3d at 328 (citation 

omitted). “All evidence is viewed in the light most favorable to the 

nonmoving party and all reasonable inferences are drawn in that party’s 

favor.” Id. at 328–29 (citation omitted). 

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“A party asserting that a fact cannot be or is genuinely disputed must 

support the assertion” by “citing to particular parts of materials in the 

record” or “showing that the materials cited do not establish the absence or 

presence of a genuine dispute.” Fed. R. Civ. P. 56(c). A party opposing 

summary judgment “must go beyond the pleadings and designate specific 

facts showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 

37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). “[C]onclusory allegations” and 

“unsubstantiated assertions” will not suffice. Id. (citations omitted). 

III. 

On appeal, Johnson challenges the district court’s grant of summary 

judgment to Cooper on his seaman claims and his vessel negligence claim.1

 

As explained below, after reviewing the record, we agree with the district 

court that Johnson failed to show a genuine dispute of material fact as to his 

claims. Cooper was therefore entitled to summary judgment. 

A. 

 “The Jones Act grants ‘a seaman’ a cause of action against his 

employer in negligence.” Sanchez v. Smart Fabricators of Tex., L.L.C., 997 

_____________________ 

1

 Cooper also asserts that Johnson’s general maritime law negligence claim is 

barred by the exclusivity provision of 33 U.S.C. § 905(a) because Cooper was his employer 

and secured payment of LHWCA compensation for his injury. “The liability of an 

employer” for LHWCA compensation “shall be exclusive and in place of all other liability 

of such employer to the employee . . . except . . . if an employer fails to secure payment of 

compensation as required by” the LHWCA. 33 U.S.C. § 905(a). The district court ruled 

that Johnson conceded this issue by failing to brief it and dismissed his general maritime 

law negligence claim as barred by § 905(a). Johnson’s appellate brief likewise does not 

address Cooper’s § 905(a) argument, and he has thus waived or abandoned the issue. See 

Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995); McDowell 

v. Home Depot USA, Inc., 126 F. App’x 168, 170 (5th Cir. 2005) (“Where a claim is not 

briefed on appeal, it is abandoned.”) 

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F.3d 564, 568–69 (5th Cir. 2021) (quoting 46 U.S.C. § 30104).2 “As the 

courts have often lamented, the term ‘seaman’ is not defined in the Jones 

Act.” In re Endeavor Marine Inc., 234 F.3d 287, 290 (5th Cir. 2000). Thus, 

it has largely fallen to the courts “to establish workable tests to define the 

word ‘seaman.’” Sanchez, 997 F.3d at 569. 

To qualify as a “seaman,” a maritime worker must satisfy a two-part 

test: he or she (1) “must contribute to the function of the vessel or to the 

accomplishment of its mission,” and (2) “must have a connection to a vessel 

in navigation (or to an identifiable group of such vessels) that is substantial in 

terms of both its duration and its nature.” Endeavor Marine, 234 F.3d at 290 

(citing Chandris, 515 U.S. at 368)). Johnson claims that he is a seaman based 

on his connection to the AMERICA. 

The first part of this test, the “threshold requirement” of whether a 

worker “does the ship’s work,” is “very broad.” Id. (cleaned up). “‘All 

who work at sea in the service of a ship’ are eligible for seaman status.” 

Chandris, 515 U.S. at 368 (quoting McDermott Int’l, Inc. v. Wilander, 498 U.S. 

337, 354 (1991)) (emphasis in original). The parties and the district court all 

agree that Johnson meets the first part of the test, and so do we. Johnson’s 

work loading and unloading cargo contributed to the mission of the 

AMERICA, as well as the various cargo barges and oceangoing vessels. 

The second part of the test—whether the worker has a substantial 

connection to a vessel—has two elements: the worker’s connection must be 

“substantial in terms of both [1] its duration and [2] its nature.” Sanchez, 

997 F.3d at 571 (quoting Chandris, 515 U.S. at 368). For the duration 

_____________________ 

2

 In addition to damages for negligence under the Jones Act, seamen may also 

recover maintenance and cure and damages for unseaworthiness under the general 

maritime law. See Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995). 

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element, the “rule of thumb for the ordinary case” is that “[a] worker who 

spends less than about 30 percent of his time in the service of a vessel in 

navigation should not qualify as a seaman.” Chandris, 515 U.S. at 371. 

Recently, in Sanchez v. Smart Fabricators, the en banc court refined this 

Circuit’s test for the nature element. 997 F.3d at 573–74. Post-Sanchez, we 

consider four factors when deciding whether a worker’s connection to a 

vessel is substantial in nature: (1) the worker’s exposure to “perils of the 

sea,” meaning the hazards of a maritime working environment; (2) whether 

“the worker owe[s] his [or her] allegiance to the vessel, rather than simply to 

a shoreside employer”; (3) if his or her work is “sea-based or involve[s] 

seagoing activity”; and (4) whether “the worker’s assignment to a vessel [is] 

limited to performance of a discrete task after which the worker’s connection 

to the vessel end[s],” or whether he or she stays with the vessel. Id. at 574. 

Johnson’s claim to seaman status founders on the duration element of 

the substantial-connection test. In opposing Cooper’s motion for summary 

judgment in the district court, Johnson relied on two citations to his 

deposition testimony to establish that he was a seaman: (1) that he worked for 

Cooper for more than 20 years, and (2) that he took a crew boat provided by 

Cooper from the Darrow landing dock to the AMERICA on the night he was 

injured. The district court found this deposition testimony insufficient to 

create a genuine dispute of material fact as to the duration element. We 

agree. The fact that Johnson performed longshoring work for Cooper for 20 

years does not, without more, create a genuine dispute of material fact as to 

whether he had a connection to the AMERICA that was substantial in 

duration. Likewise, the fact that Johnson was transported by crew boat to the 

AMERICA on the night he was injured and was injured when he fell from an 

adjacent vessel on to the AMERICA is not enough to qualify him as a seaman. 

See Chandris, 515 U.S. at 363 (rejecting a “snapshot” test). A “more 

enduring relationship” with the AMERICA is required. Id. 

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On appeal, Johnson attempts to bolster his claim to seaman status by 

citing to the declaration of Cooper’s Director of Maintenance, James 

Gauthreaux, which describes Cooper’s midstream operations. Relying on 

the declaration, Johnson’s argument seems to be that because his longshore 

work for Cooper took place midstream in the Mississippi River and because 

the AMERICA is part of Cooper’s midstream operations, we should infer 

that he had a connection to the AMERICA that was substantial in duration. 

Unfortunately for Johnson, however, nothing in Gauthreaux’s declaration 

allows us to draw that inference.3

 

Assuming that this argument is not forfeited for failure to raise it in 

district court, see Rollins v. Home Depot, USA, 8 F.4th 393, 397–98 (5th Cir. 

2021), the Gauthreaux declaration does not create a genuine dispute of 

material fact as to Johnson’s status. The declaration establishes that 

longshoremen like Johnson performed their work for Cooper on vessels 

midstream and that Cooper used the AMERICA in connection with its 

midstream operations. But critically, the declaration is silent as to the 

duration of the connection that longshoremen like Johnson had with the 

AMERICA. Viewing the evidence in the light most favorable to Johnson, we 

simply do not know and cannot infer based on this record how often he 

reported to or worked on, around, in service of, or in connection with the 

AMERICA; there is a gap in the summary-judgment evidence that dooms his 

claim to seaman status. See Little, 37 F.3d at 1075 (explaining that 

“unsubstantiated assertions” do not satisfy nonmovant’s summary 

_____________________ 

3

 We also note that the section of Johnson’s appellant brief that most forcefully 

argues that he had a connection to the AMERICA that was substantial in duration is 

tellingly short on record citations to support its factual assertions. See Fed. R. App. P.

28(a)(8) (requiring argument contain “citations to . . . parts of the record on which the 

appellant relies”); see also Little, 37 F.3d at 1075 (explaining that “unsubstantiated 

assertions” do not satisfy nonmovant’s summary judgment burden). 

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judgment burden); cf. Endeavor Marine, 234 F.3d at 291 (holding that crane 

operator who worked on a derrick barge had a connection to the vessel that 

was substantial in duration because he spent almost all his time working on 

the vessel in the 18 months prior to his accident).

Because Johnson did not show a genuine dispute of material fact as to 

whether he had a connection to the AMERICA that was substantial in 

duration, the district court was correct to grant summary judgment in 

Cooper’s favor on Johnson’s seaman claims, and we need not proceed to 

consider the nature prong of the substantial-connection test. 

B. 

In the alternative to his seaman claims, Johnson brought a claim 

against Cooper as owner of the AMERICA pursuant to the LHWCA, 33 

U.S.C. § 905(b). The district court granted summary judgment to Cooper 

on this claim because Johnson failed to show a genuine dispute of material 

fact as to vessel negligence. We agree. 

Section 905(b) provides a cause of action to a person injured by 

“negligence of a vessel,” with the caveat that “[i]f such person was 

employed by the vessel to provide stevedoring services, no such action shall 

be permitted if the injury was caused by the negligence of persons engaged in 

providing stevedoring services to the vessel.” 33 U.S.C. § 905(b). In Scindia 

Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), the Supreme 

Court “outlined the three general duties shipowners owe to longshoremen.” 

Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98 (1994) (citing Scindia, 

451 U.S. at 167). Johnson contends that Cooper breached two of the Scindia

duties: (1) the “turnover duty,” which “relates to the condition of the ship 

upon the commencement of stevedoring operations”; and (2) the “active 

control” duty, which “provides that a shipowner must exercise reasonable 

care to prevent injuries to longshoremen in areas that remain under the 

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‘active control of the vessel’” during stevedoring operations. Id. (citing 

Scindia, 451 U.S. at 167–68). 

Johnson failed to cite to any record evidence showing that Cooper 

breached either duty. See Fed. R. Civ. P. 56(c) (explaining that a party 

must support assertion that there is a genuine dispute of material fact by 

“citing to particular parts of materials in the record” or “showing that the 

materials cited do not establish the absence or presence of a genuine 

dispute”); Little, 37 F.3d at 1075 (explaining that “conclusory allegations” 

and “unsubstantiated assertions” do not satisfy nonmovant’s summary 

judgment burden). Nor could he, as an independent review of the record 

shows no evidence of vessel negligence. The district court was correct to 

grant summary judgment to Cooper on Johnson’s § 905(b) claim. 

IV. 

As the district court stated in its ruling, summary judgment is about 

evidence. “We resolve factual controversies in favor of the nonmoving party, 

but only when there is an actual controversy, that is, when both parties have 

submitted evidence of contradictory facts. We do not, however, in the absence 

of any proof, assume that the nonmoving party could or would prove the necessary 

facts.” Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 

871, 888 (1990)) (emphasis in original). Because Johnson did not—and could 

not, based on his failure to put forth evidence—show a genuine dispute of 

material fact as to his claims, the district court’s grant of summary judgment 

to Cooper is AFFIRMED.

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