     Case: 12-30577       Document: 00512127623         Page: 1     Date Filed: 01/29/2013




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

                                                                            FILED
                                                                         January 29, 2013

                                     No. 12-30577                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



PATRICK OLIVER,

                                                  Plaintiff-Appellant

v.

WEEKS MARINE, INCORPORATED,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-00796


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Patrick Oliver brought claims of unseaworthiness and negligence against
his employer Weeks Marine, Inc., following injuries sustained when a portable
ladder used to access Oliver’s bunk-bed fell during his use. Following a two-day
bench trial, the district court found that Oliver established neither claim and
dismissed the suit with prejudice. Oliver appeals, and we AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30577

      The heart of Oliver’s appeal is that the district court did not give proper
weight to two safety documents. The first document was the Weeks Marine
Employee Safety Handbook (“Handbook”), a document published by the
defendant-employer.     The second document was the U.S. Army Corps of
Engineers Safety and Health Requirements Manual (“Manual”), a document
incorporated into the contract between Weeks Marine and the Corps of
Engineers for the project on which Oliver was injured.
      Both documents contain sections on portable ladders. The Corps’ Manual
provides that portable ladders “shall extend at least 3 ft (0.9 m) above the upper
landing surface” or, when not possible, “a grasping device (such as a grab rail)
shall be provided to assist workers in mounting and dismounting the ladder.”
The Handbook contains this same provision and other provisions similar to those
in the Manual but in a less comprehensive manner. Oliver asserts that the
ladder on which he was injured violated these standards, establishing
unseaworthiness and negligence as a matter of law.
      The district court determined that the provisions of neither document
applied to ladders used in sleeping quarters. We review the district court’s legal
conclusion that neither document applies de novo. Mendes Jr. Int’l Co. v. M/V
Sokai Maru, 43 F.3d 153, 155 (5th Cir. 1995). If we agree with that conclusion,
we need not decide whether either document creates liability when its standards
are not followed. The applicability of regulations is a legal question that sets the
stage for the fact questions to be answered by the trier of fact. See Marshall v.
Isthmian Lines, Inc., 334 F.2d 131, 134 (5th Cir. 1964).
      The scope of topics addressed by the Manual, including subjects such as
conveyers, cranes, scaffolding, and excavations, suggests that the document
governs work locations and not sleeping quarters. Section 24.B on ladders refers
repeatedly to “work” using the terms “work location” and “work area.” In the

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                                  No. 12-30577

Handbook, a section devoted to “housing” is separate from the section covering
ladders. Although Oliver is correct that nothing in the documents specifically
limits the applicability of the ladder requirements to work areas as opposed to
sleeping quarters, the context and language of those requirements demonstrate
that the requirements are not applicable to portable ladders used in sleeping
quarters.
      We therefore agree with the district court that the Manual and Handbook
do not set forth standards governing the ladder at issue here.
      Oliver also challenges the district court’s application of the law of
unseaworthiness and that court’s factual determinations on both the
unseaworthiness and negligence claims.
      The district court correctly stated the law of unseaworthiness liability as
requiring 1) a vessel, equipment, or crew not reasonably fit and safe for the
purposes required (i.e., an unseaworthy condition), 2) that unseaworthiness
actually caused or played a substantial role in causing injury, and 3) that the
injury was “the direct result or reasonably probable consequence of that
unseaworthiness.” Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373,
380 (5th Cir. 2012). The district court’s factual analysis considered elements of
negligence alongside those of unseaworthiness, but we disagree with Oliver that
such grouping in the analysis caused an erroneous application of the law.
      After a bench trial, a district court’s findings of fact on unseaworthiness
are reviewed for clear error. Id. at 376. Similarly “the district court’s findings
of negligence, cause-in-fact, and proximate cause are treated as factual findings
subject to the clearly erroneous standard.” Bertucci Contracting Corp. v. M/V
ANTWERPEN, 465 F.3d 254, 259 (5th Cir. 2006). Our clear error review looks
beyond the factual findings and considers “the record viewed as a whole.” Id. at
258. The district court relied on Oliver’s prior, safe use of the ladder over 100

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                                  No. 12-30577

times, his admission that he did not check the ladder prior to use, and his
inability to explain how the ladder detached.        Also relevant was defense
testimony regarding the absence of other accidents and the widespread usage of
the type of ladder in question in the industry. The district court found that the
ladder at issue was “reasonably fit for its intended use,” “common in the
maritime industry,” and not defective.
      There was no clear error in the district court’s determination that the facts
did not support Oliver’s claims for unseaworthiness or negligence.
      AFFIRMED.




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