* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 9, 2002

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-40100

 

DUDLEY FOUSSELL

Plaintiff - Appellant

v.

MALLARD BAY DRILLING, INC, LLC; ET AL

Defendants

MALLARD BAY DRILLING, LLC;

PARKER DRILLING OFFSHORE USA, LLC;

Defendants - Appellees

v.

C&F OFFSHORE SERVICES, INCORPORATED

Defendant - Appellee - Appellant

--------------------

Appeals from the United States District Court

for the Southern District of Texas, Galveston

USDC No. G-99-CV-399

--------------------

Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiff Dudley Foussell sued defendant Parker Drilling

Offshore USA, L.L.C. (Parker) for negligence under the Jones Act,

46 App. U.S.C. § 688 (Supp. 2001), and unseaworthiness of the

vessel on which he was employed, as well as for recovery of
No. 01-40100

-2-

unpaid maintenance and cure. Foussell also asserted a general

maritime negligence claim against defendant C&F Offshore

Services, Incorporated (C&F). Parker cross-claimed against C&F

for indemnity with respect to Parker’s payment of maintenance and

cure to the plaintiff. After a bench trial, the district court

determined that the accident that precipitated the suit was

caused by the concurrent negligence of Foussell and Gary Reeves,

an employee of C&F, and assessed comparative fault at seventyfive percent to Foussell and twenty-five percent to Reeves. The

court found that no negligence or vessel unseaworthiness for

which Parker was responsible contributed to cause Foussell’s

injuries. The court awarded damages against C&F, reduced

seventy-five percent for Foussell’s fault. The court also

awarded Foussell certain maintenance and cure owed by Parker and

allowed Parker recovery of maintenance and cure against C&F by

way of indemnity.

On appeal, Foussell argues that the district court clearly

erred in finding him negligent. Alternatively, he argues that

the district court clearly erred in assessing his comparative

fault at seventy-five percent. On brief and at oral argument,

Foussell essentially reargued his view of the facts. But the

evidence supports the district court’s conclusion that he created

a dangerous condition aboard the vessel that he captained by the

unstable method that he chose to stow the pipe. Had we been the

trier of fact, we might or might not have chosen to allocate

seventy-five percent of the fault to Foussell, but there is

simply no way for an appellate court to conclude that the
No. 01-40100

-3-

district court clearly erred in so doing.

Foussell also argues that the district court erred in

finding the vessel seaworthy. He claims that because the vessel

lacked side cleats and because of the relative size of the vessel

and the pipe, he could not have taken the pipe aboard other than

how he did. There was ample testimony, however, that there were

safe (if not ideal) ways to stow the pipe, and the district court

could certainly have correctly concluded (as it did) that any

temporary unseaworthiness of the vessel resulted from the way

that Foussell, the master of the vessel, chose to stow the pipe. 

Foussell claims that the district court deprived him of a

fair trial and was biased against him. We have reviewed the

portions of the record that Foussell points to, and what we see

is a very engaged and knowledgeable district judge doing her job

well. There is no evidence of bias, and the trial was entirely

fair.

Finally, the damage award was handled by the district court

with the same care as the other aspects of the trial and we find

no error.

The judgment of the district court is AFFIRMED.