                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 8, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk

                             04-40949



                         EDDIE PATTERSON,

                             Plaintiff-Counter-Defendant-Appellee,

                              Versus

                     ALLSEAS USA, INC., ET AL,
                                              Defendants,
                  ALLSEAS MARINE CONTRACTORS SA,

                             Defendant-Counter Claimant-Appellant.



  Appeal from the United States District Court for the Eastern
               District of Texas, Lufkin Division
                         No. 9:02-CV-175


Before DAVIS, STEWART, and DENNIS Circuit Judges.

PER CURIAM:1

     Defendant Allseas Marine Contractors SA (“AMC”) appeals the

judgment of the district court awarding the plaintiff Eddie

Patterson (“Patterson”) damages for injuries he sustained while

working for AMC as a superintendent aboard the pipe-laying vessel

LORELAY.   After a bench trial, the district court found that one



     1
      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this opinion should not be published and is not precedent except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.

                                -1-
of Patterson’s subordinates was negligent for failing to warn

Patterson of the dangers of traversing a stairway with wet boots.

Because we find that AMC’s employee had no duty to warn Patterson

under the facts of this case, we REVERSE the judgment of the

district court and render judgment for AMC.

                                 I.

     Patterson began working for AMC in September 1997 as a

superintendent aboard the SOLITAIRE, the largest pipe-laying

vessel in the world.   In October 1999, Patterson was transferred

to the LORELAY.2   As superintendent aboard the LORELAY, Patterson

was one of the highest ranking members of the ship’s crew,

answering only to the captain.   He controlled all aspects of pipe

construction and pipe-laying aboard the LORELAY, and supervised

approximately 75% of the vessel’s four hundred crew members.3

Patterson was also a member of the Vessel Management Team, which

is responsible for the safety of the ship, as well as the

LORELAY’s Safety, Health, and Environmental Committee (“SHEC”),

whose duties include touring the ship to look for potential

safety hazards.

     On July 12, 2000, pursuant to his duties as a member of the

     2
      The LORELAY is a “Panamanian flagged pipe-laying vessel”
constructed in 1974 as a bulk cargo vessel and converted into a
pipe-laying vessel in 1986. R. 579.
     3
      The district court further explained that the position of
superintendent is “highly specialized,” and that the “degree of
experience required for this position qualifies approximately
fifty people in the world for this position.” R. 580.

                                 -2-
SHEC, Patterson, along with the captain and safety

representatives from the contracting oil company, conducted a

safety tour of the LORELAY.   The group inspected the vessel’s

stern deck, which required the group to ascend the starboard

crossover stairway.   According to the district court, this

stairway is identical to the port crossover stairway, the

location of the accident giving rise to this lawsuit.   During the

inspection, Patterson noticed standing water on the port

crossover deck, and made a note to check it out later that day.

     Shortly after the tour concluded, Patterson and one of his

subordinates, Jerry Williamson(“Williamson”), a barge foreman,

decided to inspect the standing water on the port crossover deck.

To access the crossover deck, the pair used the port stairway.

The port stairway on the LORELAY goes from the main deck up 6.19

meters to the crossover deck at an angle of approximately 60-65

degrees.   The stairway is 0.6 meters wide, and was originally

constructed with uninterrupted handrails on both sides.    Some

time after the crossover structure was installed in 1999,

however, and before the date of the accident, a portion of the

outboard handrail was removed to allow access from the stairway

to the outrigger deck.4   The entrance to the outrigger deck is

located approximately 2.7 meters above the main deck.   The

inboard handrail was not altered and extends uninterrupted from

     4
      The outrigger deck is a “storage deck located forward of
the crossover structure.” R. 593.

                                -3-
the bottom to the top of the stairway.

     Patterson and Williamson ascended the stairway without

incident and arrived at the standing water on the crossover deck.

Patterson instructed Williamson to drill drainage holes in the

steel deck so the water would drain and thereby avoid a safety

hazard.   Both men walked into the standing water to determine

exactly where to drill the drainage holes.

     Without drying their dripping wet boots, Patterson and

Williamson began descending the port   stairway with Williamson in

the lead and Patterson following, both facing away from the

stairway.   Patterson did not use either handrail to aid his

descent; Williamson used the inboard handrail.   About halfway

down, Patterson slipped and fell into Williamson.   Williamson

kept hold of the handrail, remained on the stairway, and

prevented the pair from falling down the stairs.

     After the fall, Patterson went to see the ship’s medic and

complained of back pain.   He soon left the LORELAY and sought

treatment from Dr. John P. Sikors, a chiropractor who had treated

him in the past.   Dr. Sikors testified that, although Patterson

had experienced significant back problems in the past, his back

pain following the July 2000 fall was significantly worse than

before.   Dr. Sikors referred Patterson to Dr. Andrew Dosset, an

orthopedic surgeon, who performed surgery on Patterson.    Dr.

Charles Gordon, Patterson’s neurosurgeon, also performed three

back surgeries on Patterson after his July 2000 fall.

                                -4-
       Patterson filed suit against Allseas USA, Inc., Allseas

Marine Services, NV, and AMC, under the Jones Act (46 U.S.C. §

688) and general maritime law.       He also asserted an in rem action

against the LORELAY.

       At trial, Patterson argued that his injuries were caused by

AMC’s negligence in the construction and maintenance of the port

crossover deck and stairway of the LORELAY, where he sustained

his injuries.       He also argued that the dangerous condition of the

port       crossover deck and stairway rendered the LORELAY

unseaworthy.

       After a three day bench trial, the district court held that

Patterson’s claims of unseaworthiness and Jones Act negligence

were properly asserted against only AMC and the LORELAY.5      The

court dismissed Patterson’s unseaworthiness claim entirely.      The

court found that the water on the crossover deck was not

unusually slippery or dangerous and not unusual for a vessel on

the high seas.

       The court also found that the condition of the port stairway


       5
      Allseas Marine Services NV is an agent of AMC and provides
personnel services for AMC. Allseas Services USA is also an
agent of AMC and contracts with AMC to provide written procedures
and conducts safety briefings for the LORELAY. The district
court held that Patterson could only assert a claim under the
Jones Act against his employer, AMC. The court also held that
Patterson’s claim that the LORELAY was unseaworthy was only
properly brought against the ship and the shipowner, which was
also AMC. Therefore, the court dismissed all parties except AMC
and the LORELAY. Neither party challenges this aspect of the
judgment on appeal.

                                    -5-
did not render the LORELAY unseaworthy.    Even assuming that

Patterson fell in the vicinity of where the stairway was missing

a handrail on the outboard side, the court found, the stairway

was narrow enough for him to support his descent with his other

hand.    The court acknowledged that it was common practice for

seamen to use one hand to support their descent and the other to

carry supplies, making the presence of an interrupted handrail on

both sides of the stairway unnecessary for safe passage.

     In addition, the court found that the tread on the steps of

the port stairway were not excessively worn at the time of the

accident.    The court found that although the stairway treads

reflected use and some wear and tear they were not so worn as to

create a dangerous condition.    The court found it significant

that Williamson kept his footing on the stairway despite

Patterson falling into him.6

     The district court next addressed whether Patterson could

recover under the Jones Act.    The court found that, essentially

for the reasons stated in denying recovery predicated on

unseaworthiness, AMC was not negligent in designing,

constructing, or maintaining the port crossover deck and

stairway.    The court found that workmen frequently traveled from

the port crossover deck down the port stairway without incident,

     6
      The district court also credited the testimony of Hank van
Hemmen, AMC’s expert, who testified that the wear on the stairway
tread was not excessive and still capable of providing adequate
traction.

                                 -6-
which supported its conclusion that AMC exercised ordinary

prudence in maintaining these areas.

     The court, after rejecting plaintiff’s claim against AMC on

the predicates of liability discussed above, imposed liability

against AMC on a single ground: failure to warn.   The court found

that Williamson, as the LORELAY’s barge foreman, had   a “very

high duty with regard to safety,” frequently worked on the port

side of the LORELAY, and should have warned Patterson of the

dangers associated with descending the port stairway with wet

boots.   The court held that, as Williamson’s employer, AMC was

vicariously liable for Williamson’s negligence.

     The court also found that Patterson had satisfied his burden

of showing that Williamson’s failure to warn caused his injuries.

Although Patterson’s evidence regarding causation was weakened by

the fact that he misled his treating physicians regarding his

medical history, the court stated, it was sufficient to satisfy

the “featherweight” standard for causation under the Jones Act.

     The district court reduced its judgment against AMC by 65%

for Patterson’s comparative fault.    The court found that seamen

should understand the dangers associated with working in wet

boots, and that Patterson admitted that “standing water presents

a hazard.”7 Despite knowing this, the court stated, Patterson

needlessly and intentionally walked into the puddle, and, without


     7
      R. 604.

                                -7-
drying his boots, attempted to descend the stairway without

holding onto the handrail.     In doing so, the court found that

“Patterson descended the stairway with less caution than a

reasonably prudent seaman.”8     The district court assessed damages

against AMC in the amount of $1,051,457.80, which resulted in

Patterson recovering $368,010.23 after accounting for his

comparative fault.    AMC timely appealed.



                                  II.

     AMC’s principal argument on appeal is that the district

court erred in concluding that Williamson had a duty to warn

Patterson of the dangers associated with descending the port

stairway with wet boots.    AMC argues that, under the Jones Act, a

shipowner only has a duty to warn seamen of “dangers not

reasonably known” and cannot be liable for failing to warn of an

“open and obvious danger.”

     Patterson does not argue that AMC misstates the standard for

determining whether a duty to warn arose under the facts of this

case.    Rather, he argues that, because of the condition of the

port stairway, the perils associated with descending the stairway

with wet boots were neither open nor obvious.     AMC contends that

Patterson’s argument and the district court’s conclusion that

Williamson had a duty to warn contradict the court’s finding that


     8
        R. 604.

                                  -8-
(1) the port stairway was not unreasonably dangerous; and (2) the

dangers associated with descending the port stairway with wet

boots were “reasonably known” to Patterson.

     A shipowner in a Jones Act case has a duty to warn his

employees “in an effective way of dangers not reasonably known.”9

In other words, shipowners need not warn seamen of dangers that

are “open and obvious.”10

     Based on the district court’s finding that the dangers

associated with descending the port stairway with wet boots were

“reasonably known” to Patterson, Williamson had no duty to warn

Patterson in this case.     The record fully supports the district

court’s finding that Patterson should have known of the dangers

associated with descending a stairway in wet boots.     Patterson,

who was Williamson’s superior, was the main safety official under

the captain and was intimately familiar with the LORELAY.

Earlier that day Patterson led a safety team up and down a

stairway that the court found was identical to the port stairway.

Therefore, based on the district court’s findings, the only

difference between Patterson’s descent of the port stairway on

the date of the accident and his routine use of stairways on the

LORELAY was that he descended the port stairway with wet boots.

     9
      Davis v. Parkhill-Goodloe Co., Inc., 302 F.2d 489, 494 (5th
Cir. 1962); Verrett v. McDonough Marine Service, 705 F.2d 1437
(5th Cir. 1983)(shipowner’s duty to warn seaman arises from
shipowner’s being charged with his employee’s lack of knowledge).
     10
          Farrel v. United States, 167 F.2d 781, 783 (2d Cir. 1948).

                                  -9-
     As the court found, however, Patterson should have known

that wet boots presented a potential hazard. Nothing Williamson

knew or could have told Patterson regarding the dangers of

descending the stairway in wet boots would have armed Patterson

with any more knowledge than he had when he walked out of the

standing water toward the stairway.   Therefore, the district

court erred in concluding that Williamson owed a duty to

Patterson to warn him of this known danger and consequently erred

in finding Williamson negligent.

                              III.

     For the reasons stated above, the district court erred as a

matter of law in finding that Williamson was negligent and that

AMC was vicariously liable for Williamson’s negligence.    We

therefore REVERSE the judgment of the district court in favor of

Patterson and render judgment in favor of AMC.

REVERSED.

RENDERED.




                              -10-
