     Case: 18-31023      Document: 00514935845         Page: 1    Date Filed: 04/30/2019




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


                                      No. 18-31023
                                                                                 FILED
                                                                             April 30, 2019
                                                                            Lyle W. Cayce
JOHNNY DEAN, SR.,                                                                Clerk

              Plaintiff - Appellant

v.

SEA SUPPLY, INCORPORATED; SEA SUPPLY, INCORPORATED COB;
JESSICA ELIZABETH, in rem,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana


Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Vessel Captain Johnny Dean slipped and fell while trying to fix the
No. 4 engine on the M/V JESSICA ELIZABETH. He brought this action under
the Jones Act and general maritime law against Sea Supply, his employer and
the owner/operator of the vessel. (Dean also sued the vessel in rem). Dean
advanced several theories of liability. After a three-day bench trial, the district
court rejected all of them because Dean was solely at fault. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31023
      At the time of his fall, Dean was wearing a pair of Starter brand tennis
shoes. The vessel safety manual provides that “Safety toed shoes or boots with
slip-resistant soles shall be worn at all times while outside the living quarters.”
The district court found that Dean’s shoes were not in compliance with Sea
Supply’s safety requirements for working in the engine room. The court found
that Dean’s failure to wear proper footwear and his failure to clean either his
shoes or the walking surface in the engine room (which he knew were oily)
were the sole cause of the accident. The court found Dean 100% liable.
      Dean argued Sea Supply was at least partly at fault. He contended the
vessel was unseaworthy because the No. 4 engine was broken, and that Sea
Supply was negligent in failing to have it fixed sooner. The district court agreed
that the engine’s failure to work properly created an unseaworthy condition
but said the unseaworthiness did not matter because Dean was solely at fault
for the accident. The court further rejected Dean’s argument that Sea Supply
was negligent for failing to enforce its footwear policy. On appeal, Dean
maintains the court’s findings are against the weight of the evidence. He also
argues for the first time that the design of the JESSICA ELIZABETH—which
requires a worker to stand in the oily bilge while repairing the No. 4 engine—
rendered the vessel unseaworthy.
      Because Dean did not argue below that the vessel was unseaworthy
because of its design, he has waived that argument. See Texas Molecular Ltd.
P’ship v. Am. Int’l Specialty Lines Ins. Co., 424 F. App’x 354, 357 (5th Cir. 2011)
(arguments not made before the district court are waived and will not be
considered on appeal). But even if he had not waived it, we would reject his
new theory because Dean’s reliance on Rogers v. United States, 452 F.2d 1149,
1151 (5th Cir. 1971), is misguided. That case does not establish a general rule
that a vessel design which forces a seaman to stand in the bilge to work on an


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                                 No. 18-31023
engine always renders the vessel unseaworthy. Two years after Rogers, we
explained in Garcia v. Murphy Pacific Marine Salvaging Co. that the seamen
in Rogers were required to stand in the bilge “for several hours” and that
“[n]othing had been done to avoid or minimize the danger of slipping.” 476 F.2d
303, 306 (5th Cir. 1973).
      There is no evidence that Dean stood in the bilge for that long. And
Dean’s placement of absorbent pads in the bilge minimized the danger of
slipping while he worked. See id. (distinguishing Rogers because canvas,
burlap, and sawdust were used to reduce the chances of slipping). Most
importantly, however, the district court found that the sole cause of the
accident was Dean’s failure to take other, additional steps which would have
further reduced the danger of slipping. Dean v. Sea Supply, Inc., 2018 WL
3391578, at *5 (E.D. La. July 12, 2018). So even if the location of the No. 4
engine did render the JESSICA ELIZABETH unseaworthy, Dean is still
barred from recovery unless we reverse that factual finding. The same is true
for Dean’s other arguments for reversal.
      Questions of fault, including determinations of causation, are factual
issues that may not be set aside unless clearly erroneous. In re Mid-S. Towing
Co., 418 F.3d 526, 531 (5th Cir. 2005). “We entertain a strong presumption that
the court’s findings must be sustained even though this court might have
weighed the evidence differently.” Johnson v. Cenac Towing, Inc., 544 F.3d
296, 303 (5th Cir. 2008). Reviewing the record, we are not convinced that the
district court’s findings as to causation are clearly erroneous.
      The district court found that Dean’s accident was the result of his own
unreasonable failure to prepare for the oily conditions he knew he was likely
to encounter while fixing the engine. Dean, 2018 WL 3391578, at *5. Dean
ignored the footwear policy, failed to ask for help from a deckhand, failed to


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                                 No. 18-31023
clean a walkway that he knew was oily, and failed to clean his shoes when he
knew they were covered in oil despite the availability of rags and absorbent
pads. Id. at *2. Reviewing the district court’s application of the standard of
causation, we are not “left with the definite and firm conviction that a mistake
has been committed.” Gavagan v. United States, 955 F.2d 1016, 1019 (5th Cir.
1992). Accordingly, we affirm.




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