REVISED January 7, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30963

DAVID J. RANDLE, 

 Plaintiff - Appellant

v.

CROSBY TUGS, L.L.C., 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before KING, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:

While working aboard the M/V DELTA FORCE, David J. Randle 

suffered a stroke. The nature of his injury was not immediately apparent, and 

the captain of the vessel called 911. The emergency responders took Randle to 

a nearby hospital, where physicians failed to diagnose his condition correctly. 

As a result, Randle did not receive medication that might have improved his 

post-stroke recovery. Randle sued the owner of the M/V DELTA FORCE,

arguing that it breached its duty under the Jones Act to provide Randle with 

prompt and adequate medical care. The district court granted the vessel

owner’s motion for summary judgment. We AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

December 19, 2018

Lyle W. Cayce

Clerk

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I.

Crosby Tugs, L.L.C. (“Crosby”), employed Randle as a seaman aboard 

the M/V DELTA FORCE. On the morning of Randle’s stroke, the vessel was 

temporarily docked in Amelia, Louisiana. Randle had been unloading a grocery 

delivery onto the boat when he began to feel fatigued and lightheaded. He 

retreated to his cabin to rest. Shortly thereafter, a fellow crewmember heard a 

banging coming from Randle’s cabin. The crewmember discovered Randle 

incapacitated on the cabin floor and unable to communicate. The crewmember

immediately notified the captain, who quickly called 911. 

Acadian Ambulance Services (“Acadian”) responded to the call. At the 

direction of the Louisiana Emergency Response Network (“LERN”), Acadian 

transported Randle to Teche Regional Medical Center (“TRMC”). Crosby did 

not instruct Acadian to take Randle to TRMC. Nor did Crosby hire, authorize, 

or otherwise contract with TRMC to administer medical care to its seamen.

Although the Acadian paramedics suspected that Randle was suffering 

from a stroke, the TRMC physicians failed to diagnose his condition as such. 

After performing a CT scan without contrast and consulting a telemedicine 

physician in New Orleans, the TRMC physicians diagnosed Randle with a 

brain mass and transferred him to another hospital for further treatment.

Randle’s medical expert testified that TRMC’s physicians could have “easily”

diagnosed the stroke if they had administered a CT scan with contrast.

Because the TRMC physicians failed to diagnose Randle’s stroke

correctly, they did not administer “tissue plasminogen activator,” a medication 

that could have improved Randle’s post-stroke recovery. To be effective, the 

medication must be administered within three hours of the stroke. By the time 

Randle’s stroke was correctly diagnosed, it was too late for the medication to 

be effective. 

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Randle is permanently disabled because of the stroke and needs constant 

custodial care. He brought suit against Crosby, arguing that Crosby 

negligently failed to provide prompt and adequate medical care; provided an 

unseaworthy vessel; and failed to provide maintenance-and-cure benefits. 

The district court granted Crosby’s motion for partial summary 

judgment on Randle’s negligence and unseaworthiness claims. The parties 

settled Randle’s maintenance-and-cure claim prior to this appeal. On Randle’s 

motion, the district court certified the partial summary judgment as a partial 

final judgment pursuant to Federal Rule of Civil Procedure 54(b), from which 

Randle could appeal. 

II.

“We review a district court’s grant of summary judgment de novo, 

applying the same standard on appeal as that applied below.” Rogers v. Bromac 

Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is 

appropriate when “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 dispute about a material fact is genuine “if the evidence 

is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

III.

Randle appeals only the district court’s entry of summary judgment on 

his negligence claims.1 Under the Jones Act, “[a] seaman injured in the course 

of employment . . . may elect to bring a civil action at law . . . against [his]

employer.” 46 U.S.C. § 30104. A Jones Act seaman’s rights parallel those of a 

 

1 Randle only discusses unseaworthiness claims generally, using such claims as an 

analogy to his negligence claim. Because he does not challenge the district court’s entry of 

summary judgment on his unseaworthiness claim, we consider this argument to be forfeited. 

See United States v. Scroggins, 599 F.3d 433, 447 (5th Cir. 2010) (finding argument not 

adequately presented where brief did not discuss the issue “in any depth”).

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railroad employee under the Federal Employers’ Liability Act (“FELA”). Id.

(making applicable all statutes “regulating recovery for personal injury to, or 

death of, a railway employee” to a seaman’s Jones Act action); Gautreaux v. 

Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997) (en banc). “A seaman 

is entitled to recovery under the Jones Act, therefore, if his employer’s 

negligence is the cause, in whole or in part, of his injury.” Gautreaux, 107 F.3d 

at 335 (citing 45 U.S.C. § 51 (imposing liability on railroads for the negligence 

of their officers, agents, or employees)).

Randle argues that Crosby, through its employees, acted negligently by 

merely calling 911 in response to his stroke. Randle also argues that Crosby is 

vicariously liable for the TRMC physicians’ alleged medical malpractice. We 

address each argument in turn.

A.

Randle contends that Crosby breached its duty to provide adequate 

medical care by merely calling 911 in response to his stroke. A shipowner has 

a nondelegable duty to provide prompt and adequate medical care to its 

seamen. De Zon v. Am. President Lines, 318 U.S. 660, 667 (1943); De Centeno 

v. Gulf Fleet Crews, Inc., 798 F.2d 138, 140 (5th Cir. 1986). Thus, a shipowner 

is directly liable to its seaman under the Jones Act when it fails to provide 

proper medical care. Cent. Gulf S.S. Corp. v. Sambula, 405 F.2d 291, 298 (5th 

Cir. 1968). 

The extent of the shipowner’s duty to provide medical care depends on 

“the circumstances of each case” and “varies with the nature of the injury and 

the relative availability of medical facilities.” Id. at 300. A shipowner breaches 

its duty to provide prompt and adequate medical care “when [it] fails to get a 

crewman to a doctor when it is reasonably necessary, and the ship is 

reasonably able to do so.” Olsen v. Am. S.S. Co., 176 F.3d 891, 896 (6th Cir. 

1999); see also De Centeno, 798 F.2d at 140. A shipowner also violates this duty 

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when it takes its seaman to a doctor it knows is not qualified to care for its 

seaman’s injury. See Sambula, 405 F.2d at 299-300.

Randle has not put forth evidence demonstrating a genuine issue of 

material fact as to whether Crosby fulfilled its duty to provide medical care

under these circumstances. Randle was suffering an unknown but clearly 

urgent medical emergency in the service of a ship away from its home port. By 

calling 911, Crosby’s employees selected the course of action reasonably

calculated to get Randle to a medical facility that would be able to treat him. 

Randle acknowledges that TRMC could have properly diagnosed and treated 

his stroke by administering a CT scan with contrast. That the TRMC 

physicians may be faulted does not mean that Crosby is directly liable for 

failing to procure adequate medical care. Under these circumstances, Crosby 

made reasonable efforts to secure appropriate medical treatment, and it was

not negligent in its provision of medical care to Randle.2 Cf. id. at 301 (noting, 

in considering shipowner’s treatment of seaman’s severe eye injury, “[t]he law 

does not require prognostic omniscience of the master, but it does impose upon 

him a duty to make reasonable efforts to secure the treatment leading most 

naturally to sight rather than blindness”). 

 

2 Randle also urges that he should have been taken to a stroke center, which would 

have been more likely to diagnose his stroke. But the test is not, with the benefit of hindsight, 

whether Randle received the best care, but instead, whether the care he received was 

reasonable under the circumstances. As discussed above, Randle’s medical expert testified 

that TRMC was capable of properly treating his stroke. Moreover, Randle has not 

demonstrated that Crosby could have reasonably taken other action. Randle has not shown

that there was a stroke center nearby, that Crosby was capable of extracting Randle from the 

vessel and taking him to a stroke center itself, or that Crosby could have instructed the 

ambulance to go to a specific hospital. In fact, Randle admitted that he did not believe there 

was anything else Crosby’s employees could have done to help him, and that his own 

“instinct” would have been to call 911. Thus, there is no genuine issue of material fact that 

Crosby procured prompt and adequate care under the circumstances.

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Randle analogizes his case to De Centeno and Sambula, arguing that 

Crosby failed to take him to a capable medical provider. But neither case alters 

our conclusion that Crosby acted reasonably under the circumstances. Unlike 

De Centeno, this is not a case where the shipowner procured initial treatment 

and then did nothing as the seaman’s condition continued to deteriorate. See

798 F.2d at 139-40. Nor is this case like Sambula, in which we concluded that 

the shipowner acted negligently by taking its seaman to a general practitioner, 

rather than an ophthalmologist. 405 F.2d at 300-01. In Sambula, the seaman’s 

eye injury was “such that even a layman could have recognized the possibility 

of internal eye damage.” Id. at 293. Here, Crosby’s employees did not know 

what was wrong with Randle, nor was it obvious. Thus, unlike the shipowner 

in Sambula who provided its seaman with the incorrect type of care, Crosby 

properly sought out emergency medical services given the nature of Randle’s 

illness.

Randle has not shown that there is a genuine issue of material fact as to 

whether Crosby acted negligently by calling 911. Therefore, we conclude that 

the district court properly granted summary judgment for Crosby on Randle’s 

direct liability claim.

B.

Randle argues that Crosby should also be held vicariously liable for the 

TRMC physicians’ alleged medical malpractice. A shipowner is liable “for the

injuries negligently inflicted on its employees by its ‘officers, agents, or 

employees.’” Hopson v. Texaco, Inc., 383 U.S. 262, 263 (1966) (per curiam)

(quoting 45 U.S.C. § 51). The word “agents” is given “an accommodating scope,” 

requiring only that the “employee’s injury [be] caused in whole or in part by 

the fault of others performing, under contract, operational activities of his 

employer.” Id. at 264 (quoting Sinkler v. Mo. Pac. R.R. Co., 356 U.S. 326, 329 

(1958)). Thus, a shipowner is vicariously liable for the negligence of an on-

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board physician in its employ. De Zon, 318 U.S. at 668. We have also held that 

a shipowner is vicariously liable for an on-shore physician “it chooses to treat 

its seaman.” De Centeno, 798 F.2d at 140; see also Sambula, 405 F.2d at 299 

(stating standard for vicarious liability for on-shore physician as “whether the 

ship was negligent in selecting and relying upon [the physician]”).3

But this “accommodating scope” is not boundless—even in the context of 

FELA, the Supreme Court has defined an agent as one “performing, under 

contract, operational activities of [the] employer.” Hopson, 383 U.S. at 264 

(emphasis added) (quoting Sinkler, 356 U.S. at 329). We are not aware of any 

case holding that FELA overrides agency principles such that an employer will 

be liable for the acts of an unrelated third party. Accordingly, we have 

recognized that a shipowner will not be held vicariously liable for the 

negligence of a physician that the seaman chooses himself. Joiner v. Diamond 

M. Drilling Co., 688 F.2d 256, 262 n.9 (5th Cir. 1982).

Therefore, although we must give the word “agent” an “accommodating 

scope,” we cannot forget the basic principles of agency law. Randle argues that 

a shipowner’s vicarious liability arises from its nondelegable duty to provide 

adequate medical care, regardless of whether the shipowner employs or 

affirmatively selects the medical provider. This reasoning misconstrues agency 

 

3 Our sister circuits have similarly noted that shipowners may be held vicariously 

liable for physicians they affirmatively select, hire, or with whom they have a contract. E.g.,

Dise v. Express Marine, Inc., 476 F. App’x 514, 521-22 (4th Cir. 2011) (unpublished) (holding 

tugboat owner not vicariously liable where it did not take an “affirmative act to select or 

otherwise engage the [physician]”); Greenwell v. Aztar Ind. Gaming Corp., 268 F.3d 486, 492 

(7th Cir. 2001), abrogated on other grounds by McCarter v. Ret. Plan for Dist. Managers of 

Am. Family Ins. Grp., 540 F.3d 649, 653 (7th Cir. 2008) (finding casino boat owner not 

vicariously liable where doctors were neither employees of the boat nor acting on its behalf ); 

Olsen v. Am. S.S. Co., 176 F.3d 891, 895-96 (6th Cir. 1999) (noting that “a shipowner is liable 

for the negligence of an on-shore physician that it hires to treat a crewman,” and may be 

vicariously liable “when the shipowner selects a doctor who acts negligently” (citing De 

Centeno, 798 F.2d at 140)); Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670, 680 (2d Cir. 

1971) (finding physician was shipowner’s agent where services were provided under 

contract).

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principles: a nondelegable duty cannot create an agency relationship because 

such a duty presupposes an agency relationship. Put otherwise, an agency 

relationship is only formed when the principal takes an affirmative act to select 

the agent—regardless of the principal’s duty to a third party. See Crist v. 

Dickson Welding, Inc., 957 F.2d 1281, 1286 (5th Cir. 1992) (“For the doctrine 

of apparent authority to apply, the principal must first act to manifest to an 

innocent third party the alleged agent’s authority.” (emphasis added)); 

Restatement (Third) of Agency § 3.01 (Am. Law Inst. 2006) (“Actual authority 

. . . is created by a principal’s manifestation to an agent that, as reasonably 

understood by the agent, expresses the principal’s assent that the agent take 

action on the principal’s behalf.” (emphasis added)); id. at § 3.03 cmt. b 

(apparent authority “originates with expressive conduct by the principal 

toward a third party”). Thus, “[a] principal is subject to liability [for failure to 

perform a nondelegable duty] when the principal owes a duty to protect a third 

party and an agent to whom the principal has delegated performance of the 

duty fails to fulfill it.” Id. at § 7.03 cmt. b (emphasis added).

As applied here, Crosby (the principal) had a nondelegable duty to 

provide adequate medical care to Randle; Crosby would be vicariously liable if 

it had “delegated performance of the duty” to an agent, and the agent acted 

negligently in carrying out the duty. But no such agency relationship was 

formed here because Crosby did not manifest authority to TRMC or its 

physicians, or otherwise express its assent that TRMC act on its behalf. Randle 

does not argue that Crosby directed the ambulance to go to TRMC, and it is 

not clear that Crosby had the power to do so. There is no evidence of a 

relationship between Crosby and TRMC. Thus, Randle has not demonstrated 

that Crosby, by calling 911, intended TRMC to act as its agent, and the district 

court properly granted summary judgment on this issue.

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Randle contends that the district court’s holding is inconsistent with the 

Supreme Court’s decision in Hopson and our decisions in De Centeno and 

Sambula. But these cases do not support Randle’s position. In Hopson, the 

Supreme Court held that a shipowner was liable for the negligence en route of 

a taxi it had hired to fulfill its statutory duty to take two ill seamen to the 

United States consulate. 383 U.S. at 264. Likewise, in De Centeno, we held a 

shipowner vicariously liable for its chosen physician’s negligence in 

misdiagnosing its seaman’s diabetes. 798 F.2d at 139-140. And in Sambula, we 

found a shipowner vicariously liable for the malpractice of a general 

practitioner it had negligently selected to treat its seaman’s eye injury. 405 

F.2d at 300-01. 

These cases support the proposition that medical providers that a 

shipowner selects “are deemed to be engaged in the ship’s business as ‘agents’

despite the fact that the practitioner may be an independent contractor or 

completely unrelated to the ship.” Dise v. Express Marine, Inc., 476 F. App’x 

514, 521 (4th Cir. 2011) (unpublished). But these cases do not override the 

basic principles of agency law requiring that an agency relationship arise from 

the principal’s act in selecting the agent, rather than its nondelegable duty. 

And because Crosby did not select TRMC as its agent or otherwise express its 

assent that TRMC would act on its behalf, there was no agency relationship 

here. Crosby called 911. The 911 dispatcher sent Acadian to respond to the call. 

After responding to the call, Acadian called LERN, the state’s emergency 

response network. LERN instructed Acadian to take Randle to TRMC. There 

is no evidence Crosby knew how this sequence of events would unfold, much 

less that it was aware that LERN would direct Acadian to take Randle to 

TRMC. Thus, TRMC was not Crosby’s agent.

Therefore, we find that there is no genuine issue of material fact as to 

whether Crosby is vicariously liable for the TRMC physicians’ alleged 

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malpractice, and we affirm the district court’s grant of summary judgment on 

this issue.4

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.

 

4 Randle also challenges the proper standard of care for his medical malpractice 

claims. Because we find that Crosby is not vicariously liable for TRMC’s alleged medical 

malpractice, we do not reach this issue.

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