                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT



                                    No. 01-40552



      CHADWICK STERLING MCGUIRE,

                                                    Plaintiff-Appellee,

                                       versus

      ENSCO INCORPORATED; ET AL.,

                                                    Defendants,

      ENSCO MARINE COMPANY,

                                                    Defendant-Appellant.


                  Appeal from the United States District Court for
                          the Southern District of Texas
                            (USDC No. G-99-CV-380)
          _______________________________________________________
                                  June 20, 2002


Before REAVLEY, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

      The judgment of the district court is reversed for the following reasons.


      *
        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should not be published and is not precedent except under the limited circumstances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.   While evidence points to harm suffered by McGuire to his back, and

that it originated on November 1, 1998, aboard the M/V Ensco Atlas, McGuire

failed to prove an injury caused by negligence of others or unseaworthiness of the

ship.

        2.   The harm is unexplained. There is no substantial evidence of a

particular injury. McGuire testified that he strained his back while pulling a shock

line with a J-hook. The district court rejected the claim that a shock line was pulled

but found that McGuire did pull a heavy line. There was no evidence that McGuire

or anyone manually pulled a heavy line across the deck. The emergency tow cable

was pulled to the winch from the jaws at the stern by the winch itself. Without

evidence to support the court’s finding, we must conclude that a mistake was made.

        3.   The district court attributed McGuire’s injury to negligence that caused

the loss of the tow cable (lack of chafing gear and release of the winch by the

engineer). Those remote but-for causes of the work to reconnect the tow were not

producing causes of injury to McGuire. As in Chisholm v. Sabine Towing &

Transp. Co., 679 F.2d 60 (5th Cir. 1982), where it was held that the loose metal –

though proof of negligence and unseaworthiness – was not a substantial factor of

plaintiff’s injury in throwing the metal overboard, so here the loose tow was no

more than a remote but-for factor and not a producing cause of any subsequent

                                          2
injury aboard ship.

      4.     The district court also found the failure to make and log a job safety

analysis to be negligence producing McGuire’s injury, but no evidence relates a

failed plan to reconnect the tow to an injury to McGuire.

      5.     The district court also found that the lack of non-skid paint on the

wooden deck and the worn metal surface constituted unseaworthiness producing

McGuire’s injury, but no evidence supports that finding. We are told by McGuire

that other ships paint wooden decks with non-skid paint. Nothing more. Not what

difference that made here. Not the condition of the deck where he said his foot

slipped – except that it was wet. The difference in painting the deck is not itself

proof of unseaworthiness, and it is not connected by proof to any harm to McGuire.

      6.     Therefore, for lack of proof of negligence or unseaworthiness attributed

to defendant producing an injury to McGuire, we must reverse the judgment and

render judgment for defendant.

      REVERSED AND RENDERED.




                                           3
DENNIS, Circuit Judge, dissenting.



      Based upon a review of the record for clear error, I respectfully dissent for the

following reasons.

      First, the majority opinion states that “McGuire failed to prove an injury caused

by negligence of others or unseaworthiness of the ship.” I disagree. We have held that,

“For a vessel to be found unseaworthy, the injured seaman must prove that the owner

failed to provide a vessel, including her equipment and crew, which is reasonably fit

and safe for the purposes for which it is to be used.”1 The seaman must establish a

causal connection between the injury and a breach of duty that rendered the vessel

unseaworthy.2

      The district court found that a series of negligent acts led to the plaintiff’s injury:

(1) There was no chafing gear; (2) Without chafing gear, the engineer had to

periodically adjust the tow line manually; (3) The engineer accidentally released the

tow line causing the entire tow line to fall into the sea; (4) The crew then had to attach

an emergency tow line; and finally (5) McGuire was injured during the emergency tow

line connection procedure. In my opinion, the record evidence supports the district


      1
          Jackson v. OMI Corp., 245 F.3d 525 (5th Cir. 2001) (emphasis added).
      2
          Id.

                                                     -4-
court’s finding that McGuire established a causal connection between his injury and a

breach of duty that rendered the vessel unseaworthy.

      Second, I do not believe that the record supports the statements: “There is no

substantial evidence of a particular injury;” and “There was no evidence that McGuire

or anyone manually pulled a heavy line across the deck. The emergency tow cable was

pulled to the winch from the jaws at the stern by the winch itself.”

      The district court judge heard several different versions of how the emergency

tow line was connected to the winch. However, the essential parts of the operation

were undisputed. After the tow cable was lost, the crew met in the wheelhouse to

discuss recovery of the tow. Captain Saunders decided that he would operate the

winch controls, Steve Yaun would pilot the boat, and McGuire was in charge on the

back deck giving signals and would be manually involved in connecting the emergency

tow line.   Because they could not recover the original tow line, one of the crew

members, Don Menefield, jumped over to the barge. He then released one end of the

emergency tow line attached along the side of the barge. This allowed the loose end

of the emergency tow line to go into the water. A buoy line was attached to the floating

emergency tow line. Menefield jumped back onto the boat and joined other members

of the crew on the back deck of the boat as they hooked the buoy line and pulled it onto

the deck. The buoy line was pulled up with the air tugger and then secured into the

                                          -5-
port shark’s jaws. They then pulled on the buoy line to bring the emergency tow line

up out of the water and onto the deck. Once the tow line was on the deck, it was

secured into the starboard shark’s jaws. The shark’s jaws are located about two feet

from the stern. The video and sketches of the back deck of the boat indicate that the

winch was at least 15 feet forward of the shark’s jaws. When the tow line was secure

in the shark’s jaws, the crew connected a “50-ton” shackle to it.3 The winch cable was

either directly connected to the emergency tow line, or connected to the shock line

which was in turn connected to the emergency tow line. The shark’s jaws were

released and the barge was towed to port by the cable and connecting line or lines.

Everyone agreed that, between the loss of the towing cable and the connection of the

emergency tow line, rain squalls dampened the back deck.

          The witnesses disagreed about whether or not a shock line was used in

connecting the emergency tow line. Captain Saunders, Don Menefield, and Steve Yaun

testified that the winch cable was connected directly to the emergency tow line with a

shackle. McGuire and Kenny Jones testified that a shock line was used between the

winch cable and the emergency tow line, which would have required two shackles.

Captain Saunders testified that he saw McGuire using a J-hook to move a shackle into


          3
              A 50-ton shackle is one capable of holding 50 tons. Its actual weight is somewhere between 75 and 90
pounds.


                                                          -6-
position during the tow line connection. Jones, one of the seamen on board, testified

that he saw McGuire grab his back as McGuire was using a J-hook to move a shock

line during the rigging up of the emergency tow gear. McGuire told the judge that he

didn’t remember moving the shackle. He said that he and Don Menefield “dragg[ed]

the eye of shock line to the cable that comes off the winch” and then hooked the

shackle at both ends. Menefield, on cross-examination, acknowledged that in his

deposition he had said that they used a J-hook to pull the emergency tow line onto the

boat. He testified that a shackle was used to connect the emergency tow line to the

boat’s winch cable.

      The district court’s finding that McGuire and Menefield “proceeded to move a

heavy line into position by using a J-hook to pull this line across the back deck of the

vessel” is not clearly erroneous. No one denies that a J-hook was used during the

emergency tow line connection. Captain Saunders said that he saw McGuire using a

J-hook to move a shackle that day. The video shows two crew members using a J-hook

to move a shock line before McGuire’s accident occurred and Captain Saunders

admitted that it was unsafe to do so. Both versions of the emergency tow connection

procedure (with or without shock line) required McGuire and Menefield to manually

pull a “heavy line” across the deck: the heavy emergency tow line had to be placed into

the shark’s jaws before the connection to the shackle could be made. Once that

                                          -7-
connection was made, the heavy winch cable was moved down the deck and attached

to a shackle. The winch cable, the shock line, and the emergency tow line were heavy

lines because they were capable of handling the weight of the tow. The majority’s

statement that the emergency tow line was “pulled to the winch from the jaws at the

stern by the winch itself” cannot be literally correct. Logic and the evidence show that

a cable or a cable and a shock line were used to make the connection between the

winch and the barge’s emergency tow line.          Regardless of how the tow was

reconnected, the record shows that McGuire injured his back on November 1, 1998,

during the connection of the emergency tow line to the M/V ENSCO.

      Third, the loss of the tow cable was m ore than a remote but-for factor. As

Captain Saunders explained during his testimony, if the engineer had not “inadvertently

hit the lever and released the clutch and we lost the cable, I see no reason for anybody

to be out on the deck doing what we had to do. We would have continued on with the

tow because as far as the tow function went, the tow went good except for the rough

weather with the hurricane.” The defendant’s negligence in allowing the tow to be lost

was a substantial factor in bringing about the harm. As shown in the video and as is

evident from the testimony at trial, a towing connection is ordinarily made at port in

calm waters, not in the open sea. Without the loss of the towing cable, there was no

reason for McGuire, a captain, to be on the boat’s back deck, pulling on heavy lines

                                          -8-
and shackles connecting a tow line in inclement weather.

        In reviewing the results of an action tried without a jury, the district court’s

findings of fact “shall not be set aside unless clearly erroneous.”4 We must give due

regard to the district court’s opportunity to judge the witnesses’ credibility.5 It seems

clear to me that the district court resolved the conflicting stories regarding how the tow

was reconnected in favor of McGuire. Because the district court’s findings of fact are

not clearly erroneous in light of the record viewed in its entirety, I believe we should

affirm. “Where there are two permissible views of the evidence, the fact finder’s

choice between them cannot be clearly erroneous.”6 For these reasons, I dissent.




        4
            Fed. R. Civ. P. 52(a).
        5
            Fed. R. Civ. P. 52(a).
        6
          Tokio Marine & Fire Ins. Co., Ltd. v. FLORA MV, 235 F.3d 963, 970 (5th Cir.2001) (citing Anderson v.
City of Bessemer City, 470 U.S. 564, 573-74 (1985).

                                                     -9-
