* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40390

Summary Calendar

ROY MUDRICK; CAROL MUDRICK

Plaintiffs-Appellants

v.

CROSS EQUIPMENT LTD

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas, Galveston

No. 3:04-CV-593

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiffs-appellants Roy and Carol Mudrick appeal from the district

court’s March 12, 2007 order granting summary judgment for defendant-appellee

Cross Equipment, Ltd., determining thattheir decedent was a Jones Act seaman

and barring their recovery of non-pecuniary damages. For the following reasons,

we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

October 4, 2007

Charles R. Fulbruge III

Clerk
No. 07-40390

2

I. FACTUAL AND PROCEDURAL BACKGROUND

This case comes to us on appeal for the second time. It arises out of a

tragic event that resulted in the death of Roy and Carol Mudrick’s (the

“Mudricks” or “Plaintiffs”) son, Jonathan Mudrick (the “Decedent”), on October

17, 2002. The Decedent was employed by Cook Inlet Spill Prevention &

Response, Inc. (“CISPRI”) as an Oil Spill Technician (“OST”) aboard Barge 141

in Nikiski Bay, Alaska when he was struck in the head by a steel anchor cable

that came off of the winch, manufactured by Cross Equipment, Ltd. (“Cross” or

“Defendant”), that he was using to wind the cable and raise the anchor. 

As an OST, the Decedent was required to: conduct “and/or direct the

deployment, operation, and recovery of each of CISPRI’s oil spill response

systems . . . to effectively control, contain, and clean-up oil spills”; and to safely

“operate all CISPRI spill response and support equipment, vessels, vehicles, and

heavy equipment.” 

The education and experience required for the Decedent’s OST position

include: a “[m]arine background with thorough knowledge of marine conditions

which exist within the State of Alaska and specifically in the current CISPRI

response area”; vessel “operating skills including navigation, seamanship,

weather observations, operating in close proximity to other vessels and spill

response equipment”; and a “Merchant Marine Document with Barge

Tankerman . . . endorsement – includes barge firefighting training.” 

The physical demands of the Decedent’s job include: “walking, climbing

ladders, work on vessels and barges”; “driv[ing]/operat[ing] vehicles, vessels, and

heavy equipment (including cranes)”; “lifting small pumps and generators . . .

from vessel to vessel . . . or on the deck of a vessel moving both up and down and

side to side on iced or wet surfaces”; “climb[ing] up and down a dock ladder . . .

and mov[ing] to or from a moving vessel on to the ladder”; “maintain[ing]

balance while moving from dock to vessel across railings . . . onto a vessel that
No. 07-40390

3

may be moving up and down as much as 4 feet”; possessing “unimpaired

judgment and physical ability to perform as the Operator of a small vessel . . .

in seas up to 6 feet . . . with up to 4 passengers or crew”; “pull[ing] . . . lines . . .

on a large vessel’s steel deck, which may be moving from side to side or up and

down and may be coated with water, snow, or ice”; assisting “in the rescue of a

co-worker from the water . . . solo on a two man response vessel”; and performing

“routine and emergency maintenance within the confines of a small vessel

engine room.”

The Mudricks sued Cross, as well as other parties who were subsequently

dismissed,for negligence, strictliability, failure to warn, and breach of warranty

under the Texas Wrongful Death Act. On August 31, 2005, Cross filed its first

motion for summary judgment on the issues ofthe Decedent’s Jones Act seaman

status and the application of the general maritime law. The district court

granted Cross’s motion on December 9, 2005, based primarily on evidence in the

Decedent’s time sheets that he had spent thirty-two percent of his time working

on CISPRI vessels in navigation. The court determined that when combined

with his job duties, the evidence established that the Decedent qualified as a

seaman. On appeal, we vacated the summary judgment and remanded to the

district courtfor reconsideration under the proper summary judgment standard.

On remand,the district court again granted summary judgementfor Cross

on March 12, 2007, incorporating its first order into its second and determining

that the Decedent was a Jones Act seaman, and that the general maritime law

should apply, thus barring the Mudricks from recovering non-pecuniary

damages under Scarborough v. Clemco Industries, 391 F.3d 660 (5th Cir. 2004).

The Mudricks filed timely notice of appeal on April 9, 2007.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, viewing all evidence in

the light most favorable to the nonmoving party and drawing all reasonable
No. 07-40390

4

inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234

F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence

reflects no genuine issues of material fact and the non-movant is entitled to

judgment as a matter of law.” Id. (citing FED. R. CIV.P. 56(c)). “A genuine issue

of material fact exists ‘if the evidence is such that a reasonable jury could return

a verdict for the non-moving party.’” Id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).

When, as here, the moving party bears the burden of proof on the relevant

issues at trial, the moving party “must establish beyond peradventure all of the

essential elements of the claim or defense to warrant judgment in his favor.”

Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in

original); see also Bernard v. Binnings Constr. Co., 741 F.2d 824, 827 (5th Cir.

1984) (holding thatthe burden of proving seaman status is on the party claiming

benefits therefrom). Then, the nonmoving party must present “specific facts

showing there is a genuine issue for trial.” FED. R. CIV. P. 56(e); see also

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

“Conclusional allegations and denials, speculation, improbable inferences,

unsubstantiated assertions, and legalistic argumentation do not adequately

substitute for specific facts showing a genuine issue for trial.” TIG Ins. Co. v.

James, 276 F.3d 754, 759 (5th Cir. 2002). “If the evidence is merely colorable,

or is not significantly probative, summary judgment may be granted.” Anderson,

477 U.S. at 249-50 (internal citations omitted). 

III. DISCUSSION

The dispositive issue in this case is whether the Decedent was a seaman

under the Jones Act, 46 U.S.C. § 30104. The Supreme Court has given us a twopronged test to determine seaman status. First, “the worker’s duties must

contribute to the function of the vessel or to the accomplishment of its mission.”

Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). Second, “the worker must
No. 07-40390

5

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.” Id.

The Supreme Court has endorsed the Fifth Circuit’s benchmark for

measuring whether a worker’s connection is of a substantial duration, declining

“to find seaman status where the employee spentless than 30 percent of his time

aboard ship.” Id. at 367 (citing Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067

(5th Cir. 1986) (en banc)) (listing Fifth Circuit cases applying the thirty percent

benchmark). The Court added, however, that this “figure . . . serves as no more

than a guideline established by years of experience, and departure from it will

certainly be justified in appropriate cases.” Id. at 371. 

Essentially, the “fundamental purpose of this substantial connection

requirement is to . . . separate the sea-based maritime employees who are

entitled to Jones Act protection from . . . land-based workers who have only a

transitory or sporadic connection to a vessel in navigation, and . . . whose

employment does not regularly expose them to the perils of the sea.” Id. at 368;

see also In re Endeavor Marine, Inc., 234 F.3d 287, 290 (5th Cir. 2000). In

general, seaman status under the Jones Act is a mixed question of law and fact,

usually determined by a jury. In re Endeavor Marine, Inc., 234 F.3d at 290.

“Nevertheless, summary judgment . . . is mandated where the facts and the law

will reasonably support only one conclusion.” Id. (internal quotation marks

omitted).

On appeal, the Mudricks challenge the district court’s determination that

the Decedent had a connection “substantial in terms of both its duration and its

nature,” Chandris, 515 U.S. at 368, to a fleet of CISPRI vessels in navigation.

Cross argues that the Mudricks waived their specific arguments on appeal by

failing to raise them with equal specificity to the district court. 
No. 07-40390

6

A. Waiver

In its brief to this court, Cross, relying on Vogel v. Veneman, 276 F.3d 729,

733 (5th Cir. 2002), argues that the Mudricks waived their arguments

challenging the sufficiency of the evidence to support a finding that the

Decedent’s connection to a fleet of vessels in navigation was substantial because

they did not raise them before the district court. Comparing the Mudricks’

response to Cross’s motion for summary judgment with their brief on appeal, we

note that the Mudricks certainly parse the record with significantly more detail

in their brief than they did below. However, the Mudricks did argue to the

district court that the Decedent’s time sheets were not sufficiently specific to

establish that the Decedent spent at least thirty percent of his time working on

CISPRI vessels. Further, they argued that the references to “marine work” in

the time sheets were not made by the Decedent, but by his supervisor well after

the accident giving rise to this case occurred. 

Thus, although the Mudricks argue the facts much more meticulously on

appeal than in their response to Cross’s motion for summary judgment, their

arguments challenging the sufficiency ofthe record are not waived because they

“argued all along” that Cross could not establish the Decedent’s substantial

connection to a vessel or fleet of vessels based on the notations in his time

sheets. See Performance Autoplex II, Ltd. v. Mid-Continent Cas. Co., 322 F.3d

847, 855-56 n.11 (5th Cir. 2003). 

B. Jones Act Seaman Status

In this case, the Mudricks dispute only “that the summary judgment

evidence conclusively established the temporal requirement of seaman status.”

In order to meet its burden on summary judgment, Cross must present evidence

that establishes “beyond peradventure,” Fontenot, 780 F.2d at 1194, that the

Decedent had a connection to a vessel or fleet of vessels in navigation “that is

substantial in terms of both its duration and its nature.” Chandris, 515 U.S. at
No. 07-40390

1 The Mudricks argue that none of the hand-written notations on the Decedent’s time

sheets were made contemporaneously by the Decedent. They suggest that CISPRI Operations

Manager Dennis Rome, who did review the time sheets and compile an approximation of the

Decedent’s marine work for the mediation proceeding, made all the notations on the sheets.

7

368. With respect to the duration inquiry, as a general rule, 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 under the Jones Act.” Id. at 371. 

The nature and duration inquiries, while distinct, are not unrelated, see

id., especially in the context of a maritime job such as an oil spill technician,

which would inherently entail fluctuating time aboard a vessel in any given year

depending on the frequency and severity of oil spills in the relevant coverage

area. Just as a worker should not be permitted to “walk into and out of [Jones

Act] coverage in the course of his regular duties,” Barrett, 781 F.2d at 1075

(citing Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1347 n.6 (5th Cir. 1980)),

seaman status should not depend on the inherent irregularity of oil spills.

The Supreme Court has noted that:

the total circumstances of an individual’s employment

must be weighed to determine whether he had a

sufficient relation to the navigation of the vessels and

the perils attendant thereon. The duration of the

worker’s connection to a vessel and the nature of the

worker’s activities taken together, determine whether a

maritime employee is a seaman because the ultimate

inquiry is whether the worker in question is a member

of the vessel’s crew or simply a land-based employee

who happens to be working on the vessel at any given

time. Chandris, 515 U.S. at 370 (internal citations

omitted) (emphasis added).

To establish this substantial connection, Cross offered the mediation

position statements of the Decedent’s wife, his estate, and CISPRI conceding

thatthe Decedent was a Jones Act seaman. Cross also submitted the Decedent’s

job description, and his hand-written time sheets1for the year2leading up to his
No. 07-40390

The record makes clear that Rome made the “marine work” notations, but the Decedent wrote

out his daily activities in the right-hand column of the sheet corresponding to the hours he

logged.

2 The Mudricks further argue that one year’s worth of time sheets is not sufficient to

fulfillthe requirementthatthe court determine seaman status based on the maritime worker’s

“entire employment history.” Barrett, 781 F.2d at 1075. Unlike the plaintiff in Barrett who

tried to establish seaman status based on a snapshot of eight days out of one year of

employment, id. at 1074-75, Cross proffered time sheets for one year ofthe Decedent’s twentythree-month employment history as an OST working exclusively for CISPRI with CISPRI

equipment and on CISPRI vessels. As opposed to eight days out of a year’s employment, one

year’s time sheets are sufficient to satisfy the flexible requirement that we examine the

Decedent’s entire employment history to determine his status as a Jones Act seaman. Id.

8

accident. With the time sheets, Cross submitted a memorandum from a CISPRI

manager explaining thatthe Decedent’s supervisor had reviewed the time sheets

and, with special knowledge of the Decedent’s assignments and the hours

necessary to complete them, determined that the Decedent spent thirty-two

percent of his time performing marine work aboard CISPRI vessels in

navigation. This calculation is supported by the raw time and task data

provided by the Decedent. 

In response, to survive summary judgment, the Mudricks must present

“specific facts showing there is a genuine issue for trial.” FED. R. CIV. P. 56(e).

Their burden is not met by showing “some metaphysical doubt as to the material

facts,” Matsushita, 475 U.S. at 586, or by making “legalistic argumentation.”

TIG Ins. Co., 276 F.3d at 759. By this standard, even construing all inferences

in favor ofthe Mudricks,they failed to present any evidence to contradict Cross’s

proof. The Mudricks argued that the Decedent was not referring to work aboard

vessels in the time sheets, but his notations expressly mentioned traveling and

working aboard specific vessels in the CISPRI fleet. They also argued that many

of the hours included in calculating the thirty-two percent of his time that the

Decedent spent working on a CISPRI vessel in navigation, such as time spent

in barge firefighting training and working at Drift River, should not have been

counted. The Decedent’s direct supervisor, who has unique knowledge of what
No. 07-40390

9

his assignments entailed, included these hours, and the Mudricks offered no

substantiated reasons they should not be counted. We have held that hours

worked by a maritime employee aboard a vessel need not be hours spent at sea

for the employee to qualify as a Jones Act seaman. In re Endeavor Marine, Inc.,

234 F.3d at 292. Thus, while we resolve factual controversies in favor of the

nonmoving party, that is so “only when there is an actual controversy, . . . 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 v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (emphasis in original). 

While the Mudricks correctly assert that the Decedent is not a Jones Act

seaman as a matter of law just because Cross made a showing that he spent

more than thirty percent of his time working aboard a CISPRI vessel in

navigation, when the evidence from the Decedent’s time sheets is viewed in

conjunction with his job description, the skills he was expected to perform in the

course of his employment as an OST, and the actual task he was performing

when this mosttragic event occurred,“the total circumstances of”the Decedent’s

employment, Chandris, 515 U.S. at 370, lead to only one conclusion—that the

Decedent was a Jones Act seaman.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.