               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       ____________________

                           No. 97-30582
                         Summary Calendar
                       ____________________


     JESSE JEMISON,

                          Plaintiff-Appellee-Cross-Appellant,

     v.

     FALCON DRILLING COMPANY, INCORPORATED; FALRIG OFFSHORE,
     INCORPORATED,

                          Defendants,

     FALCON DRILLING COMPANY, INCORPORATED,

                          Defendant-Appellant-Cross-Appellee.

_________________________________________________________________

          Appeals from the United States District Court
              for the Western District of Louisiana
                            (96-CV-982)
_________________________________________________________________
                          March 27, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

     Jesse Jemison was injured while working on an oil rig

operated by Falcon Drilling Co., Inc.    The district court found

both Jemison and Falcon Drilling Co. negligent and allocated the


     *
        Pursuant to 5TH CIRCUIT 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that this opinion should not be published and is not precedent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 5TH CIRCUIT
RULE 47.5.4.

                                  1
damages for his injuries between the two of them.    The district

court also found that the oil rig was seaworthy.    Falcon Drilling

Co. appeals the district court’s negligence finding, its

allocation of fault, and its calculation of fringe benefits.

Jemison cross-appeals the district court’s negligence finding,

its allocation of fault, and its finding of seaworthiness.      We

affirm.

                          I.   BACKGROUND

     Plaintiff-appellee-cross-appellant Jesse Jemison injured his

back while working as a roustabout for defendant-appellant-cross-

appellee Falcon Drilling Co., Inc. (Falcon) on Falrig 77, an

offshore oil drilling rig located in the Gulf of Mexico.    His

crew was moving casing, large hollow pipe used in the drilling

operation, from the pipe rack to the drill floor.    Each piece of

casing is designed to screw into another piece, end to end, to

make one long, continuous piece of pipe.    The box end of the

casing has interior threading, and the pin end has exterior

threading.   The threads on the casing are protected from damage

by thread protectors that screw into place.

     Falcon’s standard practice is to loosen the thread

protectors when the casing is placed in the pipe rack in order to

accurately measure the length of each piece of casing.    The

thread protectors are then hand-tightened to allow them to be

removed by hand when moved to the drill floor.    Jemison was



                                 2
climbing on the stacked casing to renumber a piece of casing as

part of Falcon’s procedures.    While climbing onto the stacked

casing from the pin end, Jemison stepped on a loose thread

protector, which spun, causing him to fall and injure his back.

       In finding both Falcon and Jemison negligent, the district

court made the following underlying findings of fact:      The thread

protectors had been backed off to measure the casing and then

hand-tightened to facilitate quick removal later, following

Falcon’s chosen procedure.    In order to facilitate its tallying

system, Falcon specifically decided, after the thread protectors

had only been hand-tightened, to require that the pieces of

casing be renumbered, requiring a worker to climb onto the

stacked casing.    Knowing that thread protectors might be loose,

Falcon determined that renumbering would be done with chalk in

the middle of each piece of casing.      Visual inspection cannot

determine whether a thread protector is loose enough to spin when

stepped upon, and Jemison was aware that the thread protectors

were only hand-tightened and that they might be loose enough to

spin.    Jemison had to climb onto the casing in order to do his

job.    Falcon decided to use areas on the sides of the stacked

casing for storage, which made those sides unavailable to climb

onto the casing, and climbing the box end of the casing coming

from the pin end requires one to walk under a suspended load,

which is a greater known danger.       The safest manner to climb onto

the casing, given the configuration of the oil rig, was to climb

                                   3
the pin end.   In climbing the pin end of the casing, it is

expected and foreseeable that one will have to step upon a thread

protector at some point.    Falcon knew that its workers climbed

the pin end of the casing and never told anyone not to climb the

pin end or not to step upon a thread protector, nor were thread

protectors discussed at safety meetings.     Jemison made no effort

to avoid thread protectors when climbing onto the casing and did

not even look at them or check whether they were loose.      Jemison

had nineteen years experience working as a roustabout on offshore

oil rigs and is a big man, standing six feet eight inches tall

and weighing around 320 pounds at the time of the accident.

Jemison did not finish high school and cannot read or write.

Falcon considered Jemison a good employee.

     Jemison sued Falcon, and the claims on appeal are for

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

unseaworthiness under general maritime law.     After a bench trial,

the district court found both Falcon and Jemison negligent.        The

district court allocated 85% of the fault to Falcon and 15% to

Jemison.   The district court calculated Jemison’s damages to be

$426,543.28, which it decreased by 15% for Jemison’s negligence

to reach a total judgment of $362,561.79.     Jemison’s damages

included $83,153.20 for lost fringe benefits, which included

found--the benefit of free room and board on the oil rig.1

     1
         Ballentine’s defines found as “[r]oom and board.”
BALLENTINE’S LAW DICTIONARY 494 (William S. Anderson ed., 3d ed.

                                  4
Lastly, the district court concluded that the oil rig was

seaworthy because the loose thread protector was an “isolated

incident” which did not make the oil rig unseaworthy.       Both

Falcon and Jemison appeal.




1969); see also WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 897 (Philip
Babcock Gove ed., 1961) (defining found as “free food and lodging
in addition to wages”).

                                   5
                       II.    STANDARD OF REVIEW

       We review the district court's conclusions of law de novo

and its findings of fact for clear error.         Joslyn Mfg. Co. v.

Koppers Co., 40 F.3d 750, 753 (5th Cir. 1994).        “We must affirm

the district court's findings unless we are left with the firm

and definite conviction that a mistake has been made.”         Id. at

761.    In admiralty, negligence and causation are questions of

fact.    Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1352

(5th Cir. 1988).

                             III.   DISCUSSION

       The parties’ appeals boil down to the following issues: did

the district court err in (1) finding Falcon negligent, (2)

finding Jemison negligent, (3) allocating fault between the

parties, (4) calculating found, and (5) finding seaworthiness.

Each issue will be discussed in turn.

A.     Falcon’s Negligence

       In Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th

Cir. 1997) (en banc), this court has recently redefined the

negligence standard for both an employer and a seaman under the

Jones Act, 46 U.S.C. app. § 688.         Gautreaux overruled our prior

case law, which had placed “a greater-than-ordinary standard of

care towards its employees” upon employers and had placed “only a

slight duty to look after his own safety” upon a seaman.         Id. at

338.    Both an employer and a seaman are subject to an ordinary


                                     6
standard of care defined by the reasonable person under similar

circumstances.   Id. at 338-39.   Explicitly applying the Gautreaux

standard,2 the district court found Falcon negligent.

     In determining Falcon’s negligence, the district court found

     that the practice of loosening each and every thread
     protector in order to get an exact measurement of the
     casing and then choosing to have the thread protectors
     put back in only hand-tight so as to facilitate quick
     removal within the casing operation and yet having a
     system that requires renumbering such that a man had to
     climb back on top of the casing to renumber those
     pieces of casing and doing this in such a fashion that
     the company was aware and in fact anticipated and
     expected that its men would climb up the pin end of the
     casing to get to the top of the casing and as this
     Court finds that the evidence shows that no one at
     Falcon Drilling ever told Mr. Jemison not to climb on
     the pin end, and in fact they were aware he was doing
     so, never reprimanded him but rather saw him to be a
     good hand, that the defendant failed in providing Mr.
     Jemison a safe place to work and was negligent in the
     manner that it allowed the job to be performed and that
     it chose to have the job be performed; . . . .

     Relying upon Schlichter v. Port Arthur Towing Co., 288 F.2d

801 (5th Cir. 1961), Falcon argues that the district court should

not have found it negligent because its practices were the

customary and accepted practices in the industry.   The fact that

these practices were the accepted custom in the industry was

before the district court, but as stated in Schlichter,

“compliance with the customs and practices of an industry is not


     2
        In its oral findings and conclusions, the district court
cited the panel decision in Gautreaux, but it clearly stated the
holding on the proper standard from the en banc decision and
noted that the case was decided en banc, thus referencing the en
banc decision.

                                  7
in itself due care.”   Id. at 804.   Here, unlike in Schlichter,

evidence was presented and factual findings were made that

Falcon’s practices, while possibly in compliance with industry

customs and practices, did not constitute ordinary prudence under

the circumstances, which is the proper test.    See McCormack v.

Noble Drilling Corp., 608 F.2d 169, 174 n.8 (5th Cir. 1979)

(applying the reasonable seaman standard).   Additionally, Falcon

argues that the customary practice was ordinary prudence here

because Jemison was experienced and another method of numbering

would not be feasible because of the limited education of many of

its workers.   The district court had these arguments before it

and considered them in considering the circumstances, but it

still found Falcon negligent.

     Falcon also argues that the district court should not have

considered the availability of alternative methods in determining

whether it was negligent.   However, the available methods to do

an activity are relevant to what is reasonable under the

circumstances, making the district court’s consideration of the

alternatives proper.   Falcon never argues, below or on appeal,

that the alternative methods are particularly burdensome or

unfeasible, making their adoption unreasonable under the

circumstances.3

     3
        Falcon did note that one witness described one
alternative method as confusing, but the witness stated that he
did not know if using the original numbering would work. He then
went on to say, “We always back-numbered them. So it would

                                 8
     Falcon does not point to anything in the record or legal

authority which would cause us to find that the court committed

clear error in finding Falcon negligent.     Testimony was presented

that the most expeditious, and sometimes only feasible, way to

climb onto the casing is by the pin end; that thread protectors

were only hand-tight and could spin; that climbing on the pin end

inevitably led to stepping upon a thread protector; and that

Falcon knew this and chose to use a procedure which required

workers to climb onto the casing.      According to other testimony,

workers could avoid the thread protectors, but the district court

found that this testimony lacked credibility.      See Orduna S.A. v.

Zen-Noh Grain Corp., 913 F.2d 1149, 1154 (5th Cir. 1990) (“The

credibility determination of witnesses . . . is peculiarly within

the province of the district court.”).     Looking at the credible

evidence, the district court’s finding that Falcon was negligent

does not constitute clear error.

B.   Jemison’s Negligence

     In Gautreaux, we held that “[a] seaman . . . is obligated

under the Jones Act to act with ordinary prudence under the

circumstances.   The circumstances of a seaman’s employment



probably be confusing, you know, to try to use the original
number.” This testimony only suggests that the alternative
method would be more confusing than renumbering and not that it
would be so confusing that the workers could not do it or that
with familiarity any confusion would be alleviated. Change will
always cause some confusion. Additionally, the district court
expressly found that this witness’s testimony lacked credibility.

                                   9
include not only his reliance on his employer to provide a safe

work environment but also his own experience, training, or

education.”   107 F.3d at 339.   Applying this standard, the

district court found Jemison negligent.

     The district court based this negligence finding upon the

facts that Jemison was aware that the thread protectors can be

sufficiently loose to spin when stepped upon and “that Mr.

Jemison did not attempt to avoid the thread protectors, nor to

check the thread protectors, nor to deal with the thread

protectors in any fashion because he assumed they were tight.”

It found that a reasonable seaman would have exercised more care,

especially considering that Jemison weighed 320 pounds and that

such weight might cause a thread protector to spin when stepped

upon.

     Jemison argues that he was not negligent because he climbed

onto the casing in the safest, and only, manner available--by

climbing the pin end of the casing.    He does not challenge the

district court’s findings that he did not even attempt to avoid

thread protectors or pay attention to them in climbing the

casing.   The district court’s finding of negligence is based upon

the fact that, although Jemison climbed onto the casing from the

only feasible location, he paid no heed whatsoever to the

possibility, of which he was aware, that some thread protectors

were loose enough to spin, a danger that the reasonable seaman

would have taken some precaution against.    Based upon our review

                                 10
of the record, the district did not clearly err in finding

Jemison negligent.

C.   Allocation of Fault

     The district court allocated 85% of the fault for Jemison’s

injuries to Falcon and 15% to Jemison.    Jemison argues that the

allocation of fault was in error, claiming that he was not

negligent and that, even if he was negligent, the evidence does

not support assessing him 15% of the fault.    Falcon similarly

argues that the allocation of fault was in error, claiming that

it was not negligent and that the evidence does not support

assessing it 85% of the fault.   Additionally, Falcon argues that

it was incorrectly allocated 85% of the fault because the

district court held Jemison to a lower standard of care than our

recent decision in Gautreaux requires.

     Taking the last argument first, Falcon argues that the

district court failed to find that Jemison had a duty to use the

safest method to perform his work.    Noting that our prior case

law held that a seaman’s duty to protect himself was slight and

did not include a duty to find the safest way to perform his

work, see, e.g., Spinks v. Chevron Oil Co., 507 F.2d 216, 223 &

n.11 (5th Cir. 1975), amended on other grounds by 546 F.2d 675

(5th Cir. 1977), Falcon argues that, as a result of Gautreaux

overruling Spinks and imposing a duty of ordinary care, “a seaman

has a duty to find the safest method to perform his work and must



                                 11
utilize the known safe method if that is what a reasonable seaman

in like circumstances would do.”     Based upon this argument,

Falcon claims that the district court did not hold Jemison to

this safest method standard and therefore it made a legal error

in assessing 85% of the fault against it.

     The district court applied the standard of the reasonable

seaman under similar circumstances.     The availability of a known

safer method or a discoverable safer method only goes to the

circumstances against which we measure the conduct of the

plaintiff under the reasonable seaman standard.     Neither imposes

a greater duty upon a seaman.   The district court found that

Jemison could have acted in a safer manner and, therefore, took

these relevant circumstances into consideration in its decision.

Thus the district court committed no legal error, which would

allow us to give less than our usual deference to the district

court’s factual finding on the allocation of fault.     See Johnson

v. Hospital Corp. of Am., 95 F.3d 383, 395 (5th Cir. 1996)

(“[T]he ‘clearly erroneous’ standard of review does not insulate

factual findings premised upon an erroneous view of controlling

legal principles.”).

     As discussed above, the district court’s findings of

negligence by Jemison and Falcon are supported by the record.

Likewise, the district court’s allocation of fault is supported

by the record.   The district court found that Falcon’s negligence

played the major role in causing Jemison’s injury and stated, “It

                                12
is not reasonable that the company should be able to create a

situation that is going to place its employees at risk and then

say, ‘Take care of yourself,’ when there are alternative means by

which it could be done.”   In the district court’s view, Falcon’s

control of the work environment and its decision to use a system

that placed its workers at risk by requiring that they climb onto

the casing to renumber each piece made it more at fault than

Jemison.

     To support its argument that it should not bear 85% of the

fault, Falcon points to testimony from workers that the pin end

of the casing could be safely climbed if a worker was careful.

The district court’s findings support the fact that the pin end

of the casing could be successfully climbed, but it found that

the hand-tight thread protectors could not be avoided and that

hand-tight thread protectors may spin when stepped upon.   Because

Falcon’s decision to only hand-tighten thread protectors while

requiring workers to climb onto the casing created the dangerous

situation which could injure a seaman even without his negligence

contributing to the accident, the district court allocated 85% of

the fault to Falcon.

     Jemison argues that he performed his duties in the safest

manner possible under the circumstances and therefore should be

assessed less than 15% of the fault, if any.   This argument is

basically a challenge to the district court’s finding that he was

negligent, and we reject it as we did above.   The findings of

                                13
fact are clear that Jemison failed to exercise due care and that

he did not climb unto the casing in the safest manner possible

because he took no precautions against the known danger, as a

reasonable seaman would have.

     After a review of the record, we are not left with anything

resembling a “firm and definite conviction that a mistake has

been made.”    Johnson, 845 F.2d at 1352.   Therefore, the district

court’s factual findings on the allocation of fault between

Falcon and Jemison are not clearly erroneous.

D.   Calculation of Found

     The district court’s judgment included $83,153.20 for lost

fringe benefits, “which encompasses . . . the loss of meals while

on the rig.”   The parties stipulated in open court that “the

estimated value of the food is $3,500.00” in relation to the lost

fringe benefits.   Falcon now argues that the district court’s

reliance upon this number was error because it represents the

cost to Falcon to provide meals and found should be calculated

based upon the cost to the seaman to replace the lost meals.

     Falcon argues that it objected to the use of the $3500

amount in the following exchange between Falcon’s counsel and the

district court:

          MR. HYMEL:4 . . . I looked at the number
     [Jemison’s counsel] had for Falcon’s cost of food, and
     that number accurately reflects Falcon’s cost of food.


     4
         Falcon’s counsel.

                                 14
          THE COURT: Okay. That does not help me, however,
     if in fact you intend to argue that it is a fringe
     benefit and it should be calculated to the fringe
     benefit package and therefore should be extended out to
     give the value of his damages. If you in fact want to
     have that offset by the amount you argue it would have
     cost him to have provided that for himself onshore,
     then I would need to know those figures; and I would
     need that amount calculated and carried forward.
     Matters not to me. That’s what I understand from your
     argument, if you could not convince me that he
     shouldn’t get it at all.

          MR. HYMEL: That’s my point. I’m not saying
     that’s the appropriate calculation. I still think it’s
     the calculation that it cost him. You said that you
     weren’t going to buy that, which is fine. The reason I
     didn’t get the offset calculation was because we have
     not determined the maintenance rate yet; and if we get
     that number, I’m sure we can call [either expert] and
     have him plug that number in.

          THE COURT: You are saying you are not going to
     dispute plaintiff’s figures as to the costs that it
     actually cost Falcon to provide Mr. Jemison his room
     [and] board on board the rig?

          MR. HYMEL:   That’s correct.

          THE COURT: What happens with those figures
     remains to be seen.

          MR. HYMEL:   Based on your decisions, correct.

Despite Falcon’s counsel’s suggestion in the above exchange that

the district court had already ruled, this exchange shows that

the district court had yet to rule upon the method to calculate

found and that the issue was currently open.   A review of the

record finds no ruling by the district court upon the method of

calculating found.5

     5
        According to docket entry no. 70, the district court
expressly deferred ruling upon Falcon’s “Motion in Limine”

                                15
     The very next day in trial, Falcon’s counsel responded,

“That’s correct” to the district court’s direct question: “I

think the parties have agreed that the estimated value of the

food is $3,500.00.   Am I correct, gentlemen?”   The affirmative

response by Falcon’s counsel to the district court’s inquiry

indicates that the parties, or at least Falcon, were stipulating

to the “value of the food” without any reservation or

qualification.   “It is well settled that stipulations of fact

fairly entered into are controlling and conclusive, and courts

are bound to enforce them.”     A. Duda & Sons Coop. Ass’n v. United

States, 504 F.2d 970, 975 (5th Cir. 1974).    Falcon stipulated to

the value of food in relation to fringe benefits and cannot now

challenge this stipulation.6

                          IV.   CONCLUSION

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

judgment.




requesting the court to calculate found based upon Jemison’s and
not Falcon’s cost. The district court had ruled that Falcon’s
costs were discoverable, but this order did not make any ruling
as to the method of calculating found.
     6
        Having affirmed the district court’s judgment on the
issue of negligence, we need not reach the appeal of the
unseaworthiness claim.

                                  16
