* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-40810

_____________________

MARK J. DESLATTE,

Plaintiff-Appellee,

versus

TIDEX, INC.,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

(93-CV-546)

_________________________________________________________________ March 18, 1996

ON PETITION FOR REHEARING

Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge: *

On petition for rehearing, Tidex takes the panel to task for

deciding the case on a basis different from the rationale and the

specific findings of the district court. Notwithstanding the

petitioner's protestations, however, and to the extent that his-2-

point has support, appellate courts may comprehensively canvas the

record and are free to affirm a district court on any basis that

the record supports. Ferguson v. Hill , 846 F.2d 20, 21 (5th Cir.

1988); Brock v. Mr. W Fireworks, Inc. , 814 F.2d 1042, 1044 (5th

C ir), c ert. denied

, 484 U.S. 924, 108 S.Ct. 286 (1987). In

comparing the district court' s formal findings with other

information in the record, we can also make assumptions regarding

what the district court properly could have concluded in reaching

its decision. F erguson

, 846 F.2d at 2 1; Thomas v. Express Boat

Co., Inc. , 759 F.2d 444, 448 (5th Cir. 1985).

Tidex further arg ues in its petition for rehearing that we

engaged in factfinding, which, of course, an appellate court is not

permitted to do. Although we did not engage in factfinding, the

petitioner has pointed out that in certain instances we failed to

state with accuracy the precise record facts. We regret each

error. Nevertheless, each error ultimately is inconsequential to

our finding that, on this record, the district court's findings of

liability and damages are supportable and must be affirmed. In

order to correct any mistakes in our reading o f the record as

reflected in our earlier opinion, the panel withdraws the opinion

that was filed in this appeal on June 23, 1995, and substitutes the

following. In all other respects, the petition for rehearing is

denied.-3- I

Tidex, Inc. ("Tidex") appeals the dis trict court's entry of

judgment against it on Mark Deslatte's ("Deslatte") claims of

negligence under the Jones Act, 46 U.S.C. § 688, and

unseaworthiness under general maritime law, the district court's

apportionment of damages, and the district court's denial of its

motion for a new trial. We carefully have reviewed the record and

the briefs in this case and conclude th at the judgment of the

district court must be affirmed in all respects, save its award for

"found" damages.

II

Because an explanation of the facts will facilitate a better

understanding of this case, we present them in detail.

Deslatte was inju red during a mooring operation on

December 15, 1990, while he was working for Tidex on its supply

vessel, the M/V O'NEIL TIDE. Deslatte, age twenty-six at the time,

was serving as the chief engineer on the vessel and had been

working for Tidex almost four years when the accident occurred.

The accident occurred when the O'NEIL T IDE was delivering

supplies to a drilling rig in the Gulf of Mexico. The supply

vessel’s captain, Ernest LeBouef, had never been to this drilling

rig. Because the currents were strong that day, Captain LeBouef

decided to tie the O'NEIL TIDE's bow to a mooring buoy, which was-4-

approximately one-fourth mile from the drilling platform, and back

the stern of the supply vessel to the rig. Once on location, the

drilling ri g was to lower mooring lines to be secured to the

vessel's stern bitts.

Before commencing the operation, the captain met with Deslatte

and part of the crew to discuss the method of securing the vessel

to the buoy. Captain LeBouef ordered Deslatte to man the bow line

and three other crew members to handle the stern lines, while the

captain would a ttempt to execute the backdown maneuver using the

stern controls of the vessel. Positioned at the stern controls,

the captain would have no means of seeing Deslatte or of

communicating with him during the procedu re. The one remaining

crew member was permitted to sleep through the procedure.

Captain LeBouef decided to use a bridle setup to secure the

O'NEIL TIDE to the anchor buoy because it provided more stability

than the alternative single line setup. Under the bridle setup,

one end of the line is tied to the portside bitt on the bow. The

other end is then placed through a shackle attached to the anchor

buoy line and then tied to the starboard side bitt on the bow.

With only 300 feet of bow lin e available, the use of this method

effecti vely reduced the available bow line by one-half. Captain

LeBouef chose this procedure even though he was uncertain of the

length of the buoy line.-5-

Deslatte's job was to monitor the bow line at the starboard

side bitt as the vessel backed toward the rig. When more line was

needed, Deslatte was to take a wrap off the b itt. If the line

began to surge, Deslatte was to put the wrap back on the bitt. If

the line began to surge uncontrollably, the captain instructed

Deslatte to drop the rope and try to get away.

As the operation proceeded, Deslatte paid out the bow line on

two different occasions, without incident. The operation proceeded

uneventfully un til the vessel moved into position to receive the

mooring lines from the rig. When the vessel reached the rig,

Deslatte decided to let out the line a third time, without looking

to see whether enough rope remained on deck. As he was doing this,

the line surged suddenly and uncontrollably through his hands.

Deslatte dropped the line and att empted to step back, but as the

line surged, the end of it whipped around the bitt and struck his

right leg just below the knee. Deslatte sustained a fractured leg

and severe damage to his right knee. Deslatte admitted that had he

checked, he would have seen that the end of the line was at his

feet, and he would not have let out more line. Despite three

surgical procedures, including reconstructive surgery, the injury

to his right knee remains disabling.

III-6-

D eslatte brought a seaman's action for damages against his

employer, Tidex, under the Jones Act, 46 U.S.C. § 688, and general

maritime law. Following a two-day bench trial, during which the

parties presented neither expert witnesses nor evidence of industry

standards, the court found the defendant negligent and its vessel

unseaworthy. The judge predicated a finding of negligence on the

captain's failure to insure proper communication and visual contact

with crew members, and found that the accident might have been

avoided had the defendant awakened a sleeping crew member to serve

as lookout for Deslatte. The court further found inadequate

communication between the stern controls and th e bow, thus,

constituting an unseaworthy condition that caused Deslatte's

injuries. From the facts presented, the judge found that Deslatte

was 15% contributorily negligent. The court awarded Deslatte

$100,000 in general damages and $270,083.42 for economic losses,

subject to a reduction for his contributory negligence.

Tidex filed a motion for a new trial, which the district court

denied without a hearin g. Tidex timely filed its appeal. The

defendant asks this court to reverse the district court's judgment,

or, in the alternative, to remand for further articulation of the

legal and factual basis for apportionment of fault. The defendant

also requests a modification of the found award.

IV1 Found refers to damages awarded as recovery for offshore

living expenses, including lost offshore meals.

-7- Tidex presents several arguments on appeal. The company first

argues that the trial judge erred by imposing liability on it for

the claims of negligence and unseaworthiness because there was

insufficient evidence on which to base this determination. In the

alternative, Tidex argues that the trial co urt's findings on

Deslatte's contributory negligence are insufficient to permit

meaningful review, thus, requiring the case to be remanded for

further findings. Finally, Tidex argues that the trial court

erroneously calculated the damage award by giving Deslatte double

recovery in the form of damages for both maintenance and found. 1

We now direct our attenti on to these issues, and hold that the

district court's judgment should be affirmed, with the exception of

the award for found.

Very important to the conclusion we reach today is the

standard of review under which this case is judged. We review a

trial judge's findings of fact under the clearly erroneous

standard, whereas we review his conclusions of law de novo

.

Brister v. A.W.I., Inc.

, 946 F.2d 350, 354 (5th Cir. 1991). Under

the Jones Act, the defendant "'must bear the responsibility for any

negligence, however slight, that played a part in producing'"

Deslatte's injury. Z apata Haynie Corp. v. Arthur

, 980 F.2d 287,-8-

289 (5th Cir. 1992), cert. denied

, 113 S.Ct. 2999 (1993)(quoting In

re Cooper/T. Smith

, 929 F .2d 1073, 1076-77 (5th Cir.), c ert.

denied

, 112 S.Ct. 1 90 (1991)). Indeed, under the Jones Act, the

burden of proving causation between the negligent conduct and the

injury is "featherweight." Id.

We must k eep in mind, furthermore, that in admiralty cases

questions of negligence are considered as factual issues and,

therefore, are examined under the clear l y erroneous standard.

Zapata Haynie , 980 F.2d at 289. As we have stated,

[a] factual finding is clea rly erroneous when although

there is evidence to support it, the reviewing court on

the entire ev idence is left with the definite and firm

c onviction that a mistake has been committed. If the

district court's account of the evidence is plausible in

light of the record viewed in its entirety

, the court of

appeals may not reverse it even though convinced that had

it been sitting as the trier of fact, it would have

weighed the evidence differently. Where there are two

permissible views of the evidence, the factfinder's

choice between them cannot be clearly erroneous.

Id. (citations omitted)(quotations omitted) (emphasis added). The

clea rly erroneous standard also applies to the district court's

apportionment of the blame, which this court will not overturn if

it ap pears at least roughly correct. T homas

, 759 F.2d at 447;

Flowers Transp., Inc. v. M/V PEANUT HOLLINGER

, 664 F.2d 112, 114

(5th Cir. 1981). With these standards in mind, we turn to the2 Because of our disposition of Deslatte's Jones Act claim,

there is no need for us to reach his unseaworthiness arguments

under general maritime law.

-9- evidence to determine whether the record, viewed in its entirety,

supports Deslatte's Jones Act claim. 2

After a thorough review of the record in its entirety, we

cannot say that the district court was clearly erroneous in its

determination that Tidex was liable for Deslatte's injuries under

the Jones Act. The record that supports the district court's

finding of liab ility under the Jones Act includes the following

circumstances and evidence. This was Captain LeBouef's first time

to unload at this drilling rig, and he did not know the length of

the buoy line. The captain testified at trial that, nonetheless,

he had knowledge that this particular buoy line was shorter than

normal. Yet, the captain used a bow line, 300 feet in length, with

a bridle configuration that effectively halved the leng th of the

line. Admitting his ignorance of the length of the buoy line, the

captain testified that he did not really know whether there was

enough line to use the bridle setup and whether it would suffice to

reac h the rig. The captain further testified that he knew that

there was a chance that they might run out of line before reaching

the rig and that the line, under pressure, might shoot out rapidly

from th e side of the vessel. He admitted never discussing this

danger with Deslatte.-10-

In comparing the district court's finding of liab ility with

the record as a whole, the record clearly supports a conclusion

that the danger facing Deslatte under these circumstances was

foreseeable to the captain. As chief engineer, Deslatte's primary

responsib ility aboard the vessel was to maintain the efficient

working condition of the machinery and engineering plant, although

he assisted sometimes with mooring duties. The captain testified

at trial that he knew that most of Deslatte's experience had been

as an oiler or an engineer and that he did not know whether

Deslatte had ever paid out a line under pressure. Regarding his

difficulty with paying out the line, Deslatte testified that,

because of the tension in the rope and its unpredictability, it

would have been dangerous to take his eyes off it to lo ok at the

r emaining rope. Captain LeBouef's trial testimony indicates an

awareness of this potential dilemma because the captain confirmed

that, in mooring operations, a crew member is supposed to keep his

eye on the rope as it is going around the bitt. From this

evidence, coupled with the captain's failure to discuss potential

dangers with Deslatte and his failure to ascertain the engineer's

inexperience in paying out li ne, the factfinder could infer that

Deslatte's inattention to the r emaining rope and the resulting

injury were reasonably foreseeable to the captain.3 Tidex suggests that the effect of our affirming the district

court is to require two persons to perform the task at hand--one to

perform the primary task and the second to serve as a lookout--when

-11- Notwithstanding these risks, the captain directed Deslatte to

man the bow line and three other crew members to handle the stern

lines, while he att empted to execute the backdown maneuver using

the vessel's stern controls. The defendant permitted one crew

member to sleep through this procedure. While at the stern

controls, the captain had no means of seeing Deslatte or of

communicating with him. Once the situation got out of hand,

D eslatte's calls for help went unanswered simply because the

captain could not see or hear him. The captain, in performing this

task under procedures that he had established, had allowed himself

to be so out-of-communication with a crucial operati on on his

vessel, that he was not aware of Deslatte's injuries until Deslatte

managed to climb up to the wheelhouse and alert the cap tain. In

short, the defendant was fully apprised of conditions that should

have heightened its concerns for safety in this situation, yet the

defendant took inadequate steps to establish a readil y available

mean s of communication for which there was an evident need. In

other words, the record supports a finding of some negligence in

executing the task of backi ng down to the drilling rig and this

negligence has a causal connection to the accident that resulted in

Deslatte's injuries. 3 For these reasons, we hold that the districtthere is neither testimony regarding industry standards nor expert

testimony indicating that this job required more than one person.

Our ruling today h as no such effect because we are deciding this

case and this case only. We are affirming on the totality of the

conduct under the circumstances and not on any single failing of

the defendant.

-12- court was not clearly erroneous in its ruling in favor of Deslatte,

and its judgment of liability is affirmed.

With respect to the allocation of contributory negligence,

Tidex challenges the sufficiency of th e evidence to support the

district court's finding of 15% negligence on the part of Deslatte.

As explained above, we will not overturn the district court's

apportionment of the blame so long as it appears at least roughly

correct. T homas

, 759 F.2d at 447. Our review of the whole record

leads us to conclude that sufficient evidence supports the district

court's allocation of fault. We are guided in our conclusion by

the clear law in this circuit that, although the seaman has a duty

to use reasonable care, the duty to provi de for a safe course of

conduct lies primarily with the vessel owner. E.g.

, Ceja v. Mike

Hooks, Inc.

, 690 F.2d 1191, 1193-94 (5th Cir. 1982). We note that

the district court expressly considered Des latte's degree of

responsibility for h is injuries and attempted to quantify

Deslatte's fault based on the evidence presented at trial. In

accord with our controlling standard of review, we find the

allocation of fault by the district court adequately supported by

the record evidence and thus not clearly erroneous.4 A recovery of "found" should preclude recovery of maintenance

for the same period of time in a subsequent maintenance and cure

action, and vice versa. S ee Alexandervich v. Gallagher Bros. Sand

& Gravel Corp.

, 298 F. 2 d 918, 920 (2d Cir. 1961); see also

Richardson v. St. Charle s-St. John the Baptist Bridge and Ferry

Auth. , 284 F.Supp. 709, 713 (E.D. La. 1968).

5 No member of this panel nor judge in regular active service

on the court having requested that the court be polled on rehearing

en banc, (FRAP and Local Rule 35) the suggestion for rehearing en

banc is also DENIED.

-13- Consequently, the district court's judgment is AFFIRMED in all

respe cts, save one. Tidex argues that the damages for found, or

lost offshore meals, must be recalculated so that Deslatte is not

awarded a double recovery. The record is unclear whether the

district court's award for found was double recovery. Thus, we

REMAND this issue to the district court to ensure that Deslatte has

not been awarded both maintenance and found for the same time

period. 4

V

For the foregoing reasons, we hold that in the light of the

totality of the circumstances, the dist rict court's judgment

finding Tidex 85% negligent and Deslatte 15% contribu torily

negligent is not clearly erroneous. We remand on the issue of the

found award, however, so that the district court can ensure that

Deslatte does not receive double recovery for lost offshore meals.

The district court's judgment is therefore

AFFIRMED and REMANDED. 5