         Case: 14-60066   Document: 00512788527       Page: 1     Date Filed: 10/01/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                    No. 14-60066
                                  Summary Calendar
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                         October 1, 2014
KENNETH W. BARRON,
                                                                          Lyle W. Cayce
                                                                               Clerk
                 Plaintiff - Appellant

v.

BP AMERICA PRODUCTION COMPANY,

                 Defendant – Appellee


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 1:12-CV-177


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
          Kenneth W. Barron appeals the district court’s grant of summary
judgment in favor of BP America Production Company (“BP”) and dismissal of
Barron’s claims under the Jones Act, 46 U.S.C. § 30104, and general maritime
law for unseaworthiness and negligence.              For the following reasons, we
AFFIRM the district court’s rulings.




     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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                                            I.
        On July 12, 2010, Barron was injured while working on the Big Wave, a
vessel owned by John Fraleigh. The Big Wave was performing monitoring and
cleanup work as part of BP’s Vessels of Opportunity (“VoO”) Program when
Barron suffered his injuries. 1 Specifically, Barron alleges that the vessel was
transiting the Mississippi Sound from Cat Island, where it was inspecting
beaches, to Bayou Caddy when he was thrown from his seat due to the Big
Wave’s excessive speed. Barron suffered vertebral burst fractures in his spine.
        Barron filed suit in federal district court on June 7, 2012, bringing claims
under the Jones Act and general maritime law against BP, which his complaint
identified “as the owner pro hac vice of the Big Wave” and his “Jones Act
employer on the date of the accident.” On December 30, 2013, the district court
granted BP’s motion for summary judgment, dismissing the action with
prejudice.    It held that the charter party between BP and Fraleigh was
unambiguously a non-demise time charter, and “[b]ecause BP was a non-
demise charterer of Big Wave, it is not liable for Plaintiff’s claims under the
Jones Act or for the unseaworthiness of the vessel.” As for Barron’s negligence
claim under general maritime law, the court held that Barron did not present
any competent summary judgment evidence or testimony that supported his
claim that BP was negligent in its capacity as Big Wave’s time charterer.
Barron appeals.
                                            II.
        We review a district court’s grant of summary judgment de novo,
applying the same standard on appeal as that applied below. Tiblier v. Dlabal,
743 F.3d 1004, 1007 (5th Cir. 2014). Summary judgment is proper “if the



   1 Following the April 20, 2010 explosion on Deepwater Horizon, BP designed this program
to provide local boat operators the opportunity to assist with various response activities.


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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).
       “We review a district court’s evidentiary rulings for abuse of discretion.”
United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003). “With respect to
expert testimony offered in the summary judgment context, the trial court has
broad discretion to rule on the admissibility of the expert’s evidence and its
ruling must be sustained unless manifestly erroneous.” Boyd v. State Farm
Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998).
                                       III.
       Barron argues that the district court erred in its interpretation of the
charter party between BP and Fraleigh as a non-demise charter. This is
relevant because this court has held that “the bareboat charterer as a demise
charterer is the owner pro hac vice of the vessel for the duration of the contract”
and “therefore responsible in personam for the negligence of the crew and the
unseaworthiness of the vessel.” Forrester v. Ocean Marine Indem. Co., 11 F.3d
1213, 1215 (5th Cir. 1993). But a “non-demise charterer . . . is . . . not liable
for claims of negligence of the crew or of the unseaworthiness of the vessel.”
Id.
       “[A] time charterer ‘who has no control over the vessel, assumes no
liability for negligence of the crew or unseaworthiness of the vessel absent a
showing that the parties to the charter intended otherwise.’” In re P & E Boat
Rentals, Inc., 872 F.2d 642, 647 (5th Cir. 1989) (quoting Mallard v. Aluminum
Co. of Canada, Ltd., 634 F.2d 236, 242 n.5 (5th Cir. 1981)). Barron argues that
BP actually “controlled” the Big Wave and that, under a proper interpretation
of the charter party, BP assumed liability for crew negligence and the vessel’s
unseaworthiness. We reject both contentions.




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        Article 15 of the charter party, entitled “CHARTER NOT A DEMISE,”
provides that “[n]othing stated in this CHARTER is to be construed as demise
of the VESSEL to CHARTERER. VESSEL OWNER shall at all times remain
responsible for the navigation of the VESSEL, acts of pilots, tug vessels, crew,
and all other similar matters as if trading for its own account.” Relevant to
BP’s alleged control at the time of Barron’s injury, Article 3 provides that “[t]he
decision to proceed on a trip in the face of adverse or changing weather or sea
conditions shall be the sole decision of the VESSEL OWNER or the designated
master.” Finally, Article 24 serves as a merger clause, stating that “[t]his
CHARTER cancels and supersedes all prior negotiations, representations or
agreements, both written and oral.” Because the charter party unambiguously
establishes BP as a non-demise time charterer, the district court correctly
rejected Barron’s attempts to introduce parol evidence to the contrary. 2
        We hold that the Master Vessel Charter Agreement unambiguously
establishes that BP was not a demise and that the vessel owner maintained
responsibility for the vessel.        We thus affirm the district court’s grant of
summary judgment in favor of BP on Barron’s claims under the Jones Act and
for unseaworthiness.
        Barron also appeals the district court’s grant of summary judgment
against him on his negligence claim under general maritime law. Pleaded in
the alternative to his Jones Act and unseaworthiness claims, Barron alleged
that BP “breached its duty of reasonable care to [Barron] and was willful[ly]
and grossly negligent” by (1) “operating [the Big Wave] at excessive speed in
the face of dangerous and closely spaced waves;” (2) “placing [Barron] in a

   2  Even accepting Barron’s evidence that (1) BP “directed” the oil spill response and
containment efforts, (2) required vessel owners to maintain radio contact, (3) required
training prior to participation in the VoO Program, and (4) directed the fleet back to port on
the day of Barron’s injury, this at most establishes that BP coordinated response activities
and does not raise a genuine factual dispute that BP was the Big Wave’s owner pro hac vice.


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position of peril given unfavorably dangerous sea conditions;” and (3)
“encountering steep closely spaced waves at a high rate of speed.” As explained
above, any negligence resulting from the Big Wave being driven at excessive
speeds cannot be attributed to BP. We thus ask only whether, in directing the
vessel back from Cat Island, BP breached its duty of reasonable care by
“placing Barron in a position of peril given” the weather and the Big Wave’s
size.
        In granting BP’s motion for summary judgment on this claim, the district
court held that Barron “ha[d] not presented any competent summary judgment
evidence or testimony tending to demonstrate that BP acted negligently by
purportedly utilizing an undersized vessel.” We agree.
        On July 29, 2013, Barron filed his response in opposition to BP’s motion
for summary judgment, attaching an affidavit by Fraleigh that was executed
on July 16, 2013. In relevant part, the affidavit states that he “was told by BP
representatives that because of its size [the Big Wave] would be used close to
shore because its size made it unsuitable for open Gulf waters” and that “[t]o
access Cat Island . . . [he] had to run across open, unprotected waters of the
Mississippi Sound.” The affidavit later opined that the Big Wave “should not
have been directed to run over 20 miles of open seas to an island 8 miles off
shore in the shallow, open waters of the Mississippi Sound, which are prone to
produce such changed conditions in a very short time interval.”
        Based on the content of his affidavit, we hold that the district court
correctly excluded Fraleigh’s testimony as an inadmissible lay opinion. Under
Federal Rule of Evidence 701, which governs opinion testimony by lay
witnesses, “testimony in the form of an opinion is limited to one that is: (a)
rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and



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(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Determining whether the Big Wave should have operated
in the Mississippi Sound when Barron was injured requires “scientific,
technical, or other specialized knowledge” of boats, the Mississippi Sound, and
the weather conditions of the Gulf of Mexico beyond what is known by the
average person.
      Barron never designated Fraleigh as an expert or attempted to show that
he was qualified to testify in such a capacity. The district court did not commit
manifest error in excluding his testimony. Fraleigh’s affidavit was executed
after the discovery and expert designation deadlines had passed. And Barron
does not explain his failure to identify Fraleigh as an expert witness. We thus
hold that the district court did not manifestly err in excluding Fraleigh’s
affidavit, and affirm the district court’s grant of summary judgment in favor of
BP on Barron’s negligence claim under general maritime law. See Betzel v.
State Farm Lloyds, 480 F.3d 704, 707 (5th Cir. 2007) (“[The] exclusion of expert
witnesses ‘is particularly appropriate’ where the party has ‘failed to provide an
adequate explanation for their failure to identify their expert within the
designated timetable.’”).
                                      IV.
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of BP and its dismissal of Barron’s action with
prejudice.




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