     Case: 10-40434 Document: 00511420141 Page: 1 Date Filed: 03/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 22, 2011

                                       No. 10-40434                         Lyle W. Cayce
                                                                                 Clerk

FRANK DRAPELA,

                                                   Plaintiff-Appellee
v.

UNITED STATES OF AMERICA,

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                         for the Eastern District of Texas
                               USDC No. 1:08-CV-44


Before KING, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-appellant the United States (the government) appeals the
district court’s judgment in favor of plaintiff-appellee Frank Drapela based on
the court’s finding that the M/V CAPE VICTORY, a government-owned vessel,
was unseaworthy, which condition proximately caused Drapela’s injuries. We
affirm the judgment of the district court.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 10-40434

                                        I.
      Drapela was injured while working on the M/V CAPE VICTORY, a vessel
assigned to the Ready Reserve Force, a component of the National Defense
Reserve Fleet. The vessel is under the control of the Maritime Administration
and is managed and operated by Keystone Shipping Services, Inc. Vessels under
this program are kept in ready reserve and must be ready to sail within three
to four days of activation in times of need. At the time of the incident the vessel
was moored in Beaumont, Texas.
      Drapela had been the permanent bosun of the M/V CAPE VICTORY since
1998. As bosun Drapela was the senior unlicensed member of the ship’s deck
crew. While the vessel was on reserve status, Drapela’s job was to maintain
everything outside of the engine room and oversee one crew member. Chief
Mate Kevin Brooks was in charge of the entire vessel, including maintenance,
while it was in port, and he sails as captain when the vessel goes to sea.
      In order to facilitate the carriage of cargo on the decks, 165 D-rings were
installed on the vessel. The D-rings did not have grease fittings, and over time
they rusted and became frozen or immobile and nonfunctional.
      In February 2007, a rumor circulated around the port that the ship was
about to be activated. Drapela and Brooks gave some credence to the rumor and
proceeded on the premise that the vessel would sail within a few days. Drapela
told Brooks that the D-rings were frozen. Brooks told Drapela that he “knew
what to do,” which Drapela understood to mean that he should start loosening
the D-rings through physical force as he had been taught on a prior occasion.
Drapela used a sledgehammer, a welding rod, and a crowbar to loosen the
D-rings because these were the only tools made available to him for the job. To
loosen each D-ring, Drapela would pound it on different sides with the
sledgehammer. Once the ring began to loosen, he would use the crowbar to pry
the ring up to a thirty degree angle and then continue with the sledgehammer

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                                  No. 10-40434

until the ring was loose.    He would sporadically blast the rust and use a
sharpened welding rod to pry some of the rust loose. Because of the belief that
the ship would sail within days, Brooks led Drapela to believe there was some
urgency to complete this task. According to Drapela, his assistant was a small
man and physically unable to assist him.
      Drapela worked on this project a full day on Monday, February 5, 2007, a
half-day on Tuesday, February 6, 2007, and another full day on Wednesday,
February 7, 2007. Although he felt no discomfort while he was working, Drapela
woke up on Thursday, February 8 with severe pain in his forearm, head, and
neck and could not move two fingers on his right hand.
      Dr. Esses, Drapela’s treating physician, testified that there is a medical
connection between Drapela’s work loosening the D-rings and the injuries to his
spine. Repeated activity that stresses the neck, like pounding something with
a sledgehammer, can cause or exacerbate problems in the spine.
      Drapela filed suit alleging negligence under the Jones Act and
unseaworthiness under general maritime law. After a two-day bench trial, the
district court rejected the Jones Act negligence claims because the employer had
no notice that the method being used to loosen the D-rings (including tool
selection) was unsafe. Drapela had previously used a sledgehammer in his work
without incident. Therefore, the district court concluded that his injuries were
not foreseeable to the shipowner. The district court similarly rejected claims of
negligence based on failure to properly maintain the D-rings, failure to install
grease fittings, and failure to supervise. Drapela does not appeal those findings.
      On the issue of unseaworthiness, the district court found that the
government did not provide an adequate crew of sufficient manpower to perform
the tasks required and that the vessel was unfit because inadequate tools were
made available to Drapela to free the 165 frozen D-rings within the time he
thought he had to complete the work. Because the purpose of the vessel was to

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                                  No. 10-40434

carry cargo for the military, the court found that the D-rings were necessary for
that mission and were unfit for that purpose in their rusted state. In sum, the
district court concluded that “the enormity of the task and the inadequacy of the
tools caused Drapela's spine injuries.” The government appeals.
                                        II.
      Findings of the district court on the issues of negligence and causation are
findings of fact, subject to review for clear error. Johnson v. Cenac Towing, Inc.,
544 F.3d 296, 303 (5th Cir. 2008). Findings regarding seaworthiness are also
findings of fact, subject to the same standard. Jackson v. OMI Corp., 245 F.3d
525, 528 (5th Cir. 2001) (citing McAllister v. United States, 348 U.S. 19, 20
(1954)).   “A finding is clearly erroneous when, after studying the record, the
reviewing court is left with the ‘definite and firm conviction that a mistake has
been committed.’” Id.
                                       III.
      The plaintiff bears the burden of establishing that a vessel is unseaworthy
and that the unseaworthy condition caused his injuries. Garcia v. Murphy Pac.
Marine Salvaging Co., 476 F.2d 303, 305 (5th Cir. 1973). To be seaworthy, a
vessel and its appurtenances must be reasonably fit for their intended uses.
Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960).
      The government’s principal argument is that the condition of the D-rings
frozen to the deck was not an unseaworthy condition that caused Drapela’s
injury. The government argues that to find legal causation based on the frozen
D-rings is tantamount to holding that whenever a shipboard component is
unseaworthy and requires repair to make it functional, liability results if a
seaman is injured in the course of repair. We pretermit any consideration of
whether the record supports a holding that the D-rings were a proximate cause
of Drapela’s injury.



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                                  No. 10-40434

      As the Supreme Court stated in Usner v. Luckenback Overseas Corp., 400
U.S. 494, 499 (1971), an unseaworthy vessel may result from any number of
causes:
       A vessel's condition of unseaworthiness might arise from any
      number of circumstances. Her gear might be defective, her
      appurtenances in disrepair, her crew unfit. The number of men
      assigned to perform a shipboard task might be insufficient. The
      method of loading her cargo or the manner of its stowage might be
      improper. For any of these reasons, or others, a vessel might not be
      reasonably fit for her intended purpose.

(internal citations omitted). It is well established and the government concedes
that an unsafe method of work is one of the conditions that may render a vessel
unseaworthy. Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354-55 (5th
Cir. 1988) (citing Vargas v. McNamara, 608 F.2d 15, 18 (1st Cir.1979)); Rogers
v. Eagle Offshore Drilling Services, Inc., 764 F.2d 300, 303 (5th Cir. 1985) (“[A]n
unsafe method of work may render a vessel unseaworthy . . . .”); Aubey v. Noble
Drilling (U.S.), Inc., 24 F.3d 240, *2 (5th Cir. 1994) (per curiam)
(“[U]nseaworthiness may be manifested by an unsafe method of work . . . .”).
The district court expressly found the vessel unseaworthy because of an
inadequate crew and inadequate tools to perform the task. It also found that
“the enormity of the task and the inadequacy of the tools caused Drapela’s spine
injuries.” We read this as a more general conclusion that Chief Mate Brooks
chose an unsafe method of work to free the D-rings, which rendered the vessel
unseaworthy and caused Drapela’s injuries.
      The issue for decision then narrows to whether these findings are
supported by the record and are not clearly erroneous. The record is sufficient
to support the district court’s finding that the assignment to Drapela to
physically free up 165 D-rings in a limited period of time was unreasonably
difficult for one person to perform. The record also supports the findings that



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                                     No. 10-40434

the tools provided to Drapela to perform this task were inadequate 1 and that the
method chosen to perform this task was unsafe. Each of these findings supports
the district court’s conclusion that the vessel was unseaworthy and the
unseaworthy condition caused the plaintiff’s injury.
                                           IV.
      Accordingly, the district court’s judgment is AFFIRMED.




      1
        Chief Mate Brooks testified that “In retrospect we thought we probably could have
used the forklift. . . . [Y]ou put a tongue or fork underneath the D-ring and pick it up.”

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