UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GREGORY PAPPAS,
Plaintiff-Appellant,

v.
                                                                No. 98-2212
POTOMAC PARTY CRUISES,
INCORPORATED, d/b/a the Dandy,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-97-1185-A)

Argued: March 2, 2000

Decided: June 6, 2000

Before MOTZ and KING, Circuit Judges, and
Jackson L. KISER, Senior United States District Judge
for the Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: F. David Famulari, UNDERWOOD, KARCHER &
KARCHER, P.A., Miami, Florida, for Appellant. Melissa Hogue
Katz, TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUD-
KINS, P.C., Fairfax, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Plaintiff-Appellant Gregory Pappas appeals the district court's
finding that Pappas failed to show, by a preponderance of the evi-
dence, that Defendant-Appellee Potomac Party Cruises ("PPC") was
negligent under the Jones Act, 46 U.S.C. § 688, or that PPC's dinner
cruise vessel was unseaworthy. Finding no error in the district court's
decisions, we affirm.

I.

PPC operates a small passenger vessel known as The Dandy. The
Dandy provides dinner and dancing to its customers while it navigates
the Potomac River. Pappas was a waiter on The Dandy whose duties
included setting and bussing tables, taking customer orders, serving
customers, and cleaning. To perform these duties, Pappas had to use
one of two sets of steps that led from the deck/dining area to the gal-
ley/kitchen area. There were steps at the stern and bow of the vessel.

Nine round-nose steel steps led from the carpeted deck to the galley.1
Each step was thirty-six inches wide with a twelve-inch tread and had
vinyl skid-resistant material affixed, by an adhesive, to its surface. In
January 1993 The Dandy's maintenance engineer purchased and
installed black round nose treads for each step. In January 1994 the
maintenance engineer purchased replacement treads from Rawlings
Floor Coverings and, prior to Pappas' incident, replaced the worn
treads.

On July 31, 1994, Pappas was working as a waiter on The Dandy's
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1 A hand rail ran from the second tread beyond the last tread at the bot-
tom of the stairs. Whether the hand rail's configuration contributed to
Pappas' alleged injury is not raised in his appeal.

                     2
lunch cruise. While walking down the stern steps Pappas slipped and
fell to the galley floor, injuring his lower back and scraping his elbow.
The elbow abrasion healed quickly. Pappas did not miss work due to
the injuries. About three weeks after the accident, Pappas left the
employment of PPC following a disagreement with a manager. After
leaving, Pappas began to see a chiropractor at PPC's expense regard-
ing the alleged lower back injury caused by his fall.

The district court found that Pappas and other waiters had "gotten
water on the steps by bring[ing] bus pans which were still wet up
from the galley to the deck" and that Pappas knew that the stern steps
were wet prior to slipping. Several times during the day of the acci-
dent, and throughout Pappas' fourteen-month employment with PPC,
Pappas safely used the stern stairs.

The district court found that at the time of the fall, the treads
affixed to the steps "were in good condition, were skid-resistant, and
were appropriate and sufficient for the use to which they were put."
Adding that the safety treads fell within industry standards for small
passenger vessels, the district court entered judgment in favor of PPC.
This appeal followed.

II.

Seaworthiness and negligence are questions of fact and are, there-
fore, governed by the clearly erroneous standard. See McCallister v.
United States, 348 U.S. 19, 20 (1954); Columbus-America Discovery
Group v. Atlantic Mutual Ins. Co., 56 F.3d 556, 565-66 (4th Cir.
1995); Fed. R. Civ. P. 52(a). "A finding is clearly erroneous when
`although there is evidence to support it, the reviewing court on the
entire evidence is left with a definite and firm conviction that a mis-
take has been committed.'" McCallister, 348 U.S. at 20 (citations
omitted). This court may not set aside findings of fact by a trial court
in a non-jury case unless "there is no substantial evidence to sustain
it, unless it is against the clear weight of the evidence, or unless it was
induced by an erroneous view of the law." Tucker v. Calmar Steam-
ship Corp., 457 F.2d 440, 445 (4th Cir. 1972). In evaluating the dis-
trict court's findings, this court must construe the evidence in the light
most favorable to the appellee. See Ente Nazionale Per L'Energia

                     3
Electtrica v. Baliwag Navigation, Inc., 774 F.2d 648, 654 (4th Cir.
1985).

A.

Pappas argues that the water resistance of the tread affixed to the
steps, in light of the water expected to be on the steps, is negligence
under the Jones Act and, accordingly, the district court's finding is
clearly erroneous. We disagree.

The Jones Act allows a seaman to recover for injury or death:

          Any seaman who shall suffer personal injury in the course
          of his employment may, at his election, maintain an action
          for damages at law, with the right of trial by jury, and in
          such action all statutes of the United States modifying or
          extending the common-law right or remedy in cases of per-
          sonal injury to railway employees shall apply . . . .

46 U.S.C. § 688(a) (West Supp. 1998).2

To prevail on a Jones Act negligence claim, a seaman must show
that he suffered personal injury during the course of his employment,
negligence by his employer (or the employer's agents), and "causa-
tion to the extent that his employer's negligence was the cause `in
whole or in part' of [the] injury." Hernandez v. Trawler Miss Vertie
Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999) (citations omitted). The
standard of causation is relaxed in that a Jones Act employer is liable
whenever that employer's "negligence played any part, even the
slightest, in producing the injury or death for which damages are
sought." Id. (citations omitted); see Ribitzki v. Canmar Reading &
Bates, Ltd., 111 F.3d 658, 662, n.3 (9th Cir. 1997) (citation omitted).
Like common-law negligence, a Jones Act plaintiff must show a
"breach of a duty to protect against foreseeable risks of harm." Her-
nandez, 187 F.3d at 437. "Under the Jones Act, a shipowner's duty
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2 The application of the railway statutes, in effect, gives "seamen rights
that parallel those given to railway employees" under the Federal
Employers' Liability Act, 45 U.S.C. §§ 51 et seq. Hernandez v. Trawler
Miss Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999).

                     4
is to provide seamen with a safe place to work." Larkins v. Farrell
Lines, Inc., 806 F.2d 510, 513-14 (4th Cir. 1985) (citing Michalic v.
Cleveland Tankers, 364 U.S. 325, 327-28 (1960). The plaintiff, of
course, bears the burden of proving the employer's negligence by a
preponderance of the evidence.3

Without reaching causation, the district court found that Pappas
failed to show that PPC violated its duty to provide a reasonably safe
place to work. The district court's credibility determination favoring
PPC's expert witness was pivotal. Specifically, the district court
resolved competing testimony involving the tread on the nose and flat
portion of The Dandy's steps in PPC's favor.

The testimony of two expert witnesses, like two ships passing in
the night, created a factual dispute with respect to the stairs' tread.
Captain George Greiner, a retired U.S. Coast Guard officer and grad-
uate of the Coast Guard Academy, offered expert testimony for Pap-
pas. Greiner described the flat part of the stair tread as skid-resistant
and the nose of the tread as neither slip-resistant nor skid-proof.
Greiner testified that the tread was unacceptable because its nose was
not "nonskid" as called for by many government standards.4 Given the
nose tread, Greiner continued, PPC is negligent because water and
other substances get on the steps and will continue to do so because
there are no perforated mats on the galley floor.

Captain Decatur Austin offered expert testimony for PPC. Austin
served in the U.S. Coast Guard for nearly twenty-one years, has been
a marine surveyor for the last twelve-to-thirteen years, and regularly
inspects small passenger vessels. Austin said The Dandy had been
inspected annually by the U.S. Coast Guard since 1972 and that there
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3 A Jones Act employee's contributory negligence (if any) "does not
automatically defeat [the employee's] claim of liability . . . for injuries
resulting from unseaworthiness or negligence." Mason v. Mathiasen
Tanker Industries, Inc., 298 F.2d 28, 32 (4th Cir. 1962); see Hernandez,
187 F.3d at 436.
4 According to Greiner, nonskid material more effectively prevents
water-related slipping than slip- or skid-resistant material. Greiner clari-
fied that the skid-resistant flat part of the tread, exclusive of the nose, is
an acceptable surface.

                    5
was no evidence that the steps were non-compliant. Austin referred
to The Dandy's tread as "standard, nonskid type," but he did not dis-
tinguish between nonskid and slip- or skid-resistant materials. Austin
testified that because the tread width of 12 inches far exceeded the 5-
inch minimum required by the American Boat and Yacht Council
("ABYC") the lack of nose tread was irrelevant. Austin commented
that "if you are going to step on the stair on the edge of the step, it
doesn't matter whether it's round nosed or square nosed, if you
haven't got your foot placed properly, you are going to slide down."
Austin concluded that the resistance of the tread and nosing is appro-
priate given the width of the steps.5

Both Greiner and Austin admit that the standards they used in
forming their testimony are not applicable as a matter of law. Greiner
says, for instance, that building code standards apply to buildings
rather than ships; OSHA standards are preempted by an interagency
agreement; MARAD (Maritime Administration) guideline specifica-
tions for merchant ship construction are inapplicable because The
Dandy was not built under a maritime subsidy; and SNAME (Society
of Naval Architects and Marine Engineers) standards are published
guidelines regarding the proper construction of vessels. The ABYC
standards used by Austin, though voluntary, provide"the standard
that would generally be used [by the Coast Guard] for seeing that the
vessel is in compliance." As a Coast Guard inspector, Austin used
these standards to review small passenger vessels. 6

With this full range of testimony, the district court found Austin's
opinion and his reliance on ABYC standards more persuasive because
Greiner relied "on standards not applicable to vessels such as The
Dandy." The district court, accordingly, ruled that "the treads, even
without skid-resistant material on the nose of the ship [sic], and that
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5 Pappas says Austin admitted that nosing in areas with exterior steps
or places susceptible to water would normally have"more involved non-
skid" materials than that used by PPC. This testimony by Austin, how-
ever, pertains to large ships whereas The Dandy is a small-passenger
vessel. The stairs in Pappas' action, moreover, are interior.
6 Austin agreed that the building code, OSHA, and MARAD standards
are wholly inapplicable to The Dandy and stated that SNAME is just
information, not standards, designed to improve the industry.

                    6
the height to which the stair railing extended, did not amount to negli-
gence nor render the steps and railing unfit for the purpose for which
they were intended."

Although Austin does not distinguish between the two tread sur-
faces, his experience, his use of the more appropriate ABYC stan-
dards, and his clear opinion that the stairs were reasonably fit for their
purpose provide a sufficient basis for the district court's decision.7
Because we believe that "evaluating the credibility of experts . . . is
a function best committed to the district courts, and one to which the
appellate courts must defer[, a]n appellate court should be especially
reluctant to set aside a finding based on the trial court's evaluation of
conflicting expert testimony . . . ." Hendricks v. Central Reserve Life
Ins. Co., 39 F.3d 507, 513 (4th Cir. 1994) (citations omitted). The dis-
trict court's findings with respect to the Jones Act negligence claim
is, accordingly, affirmed.

B.

A ship owner has an absolute duty to furnish a seaworthy ship. See
Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-50 (1960). The
ship does not have to be "accident-free," but must be reasonably fit
for its intended use. Id. Actual or constructive knowledge of the
unseaworthy condition is not required for liability. Id. The condition
of unseaworthiness may arise from the "existence of a defective con-
dition, however temporary, on a physical part of the ship." Ribitzki,
111 F.3d at 664. To succeed in a claim for unseaworthiness, a plain-
tiff must show that "the unseaworthy condition of the vessel was the
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7 Testimony by the owner of Rawlings Floor Coverings, maker of the
replacement treads installed by PPC in January 1994, was significantly
similar to Greiner's opinion inasmuch as they both say that the flat part
of the tread is slip-resistant and that the tread's one-inch nose part is nei-
ther slip-resistant nor skid-proof. The owner's testimony does not, there-
fore, alter the character of the evidence before the district court or,
accordingly, our decision. The owner did add, however, that instructions
accompanying the Rawlings tread warned not to use the tread in a
kitchen environment. The district court was not persuaded by this evi-
dence because Pappas did not prove that food or another substance
caused his fall. This conclusion, we find, is not clearly erroneous.

                     7
proximate or direct and substantial cause of the seaman's injuries."
Hernandez, 187 F.3d at 439 (citing Gosnell v. Sea-Land Serv., Inc.,
782 F.2d 464, 467 (4th Cir. 1986)).8

The district court found that the stairs were reasonably fit for their
intended use and were not, accordingly, an unseaworthy condition.
This finding is clearly erroneous, Pappas urges, for the same reasons
Pappas advances regarding his Jones Act negligence claim. Pappas
also notes that governmental regulations do not necessarily define the
scope of duty and that they occasionally reflect a minimum standard.
See Schlichter v. Port Arthur Towing, Co., 288 F.2d 801, 804 (5th
Cir. 1961).

We do not find the district court's decision to be clearly erroneous.
Our reasoning affirming the district court's Jones Act findings, supra,
also support its unseaworthiness ruling. Judgment in favor of PPC on
Pappas' unseaworthiness claim is affirmed.

AFFIRMED
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8 The plaintiff's causation burden for an unseaworthiness claim is
"more demanding" than that of a Jones Act negligence claim. See Her-
nandez, 187 F.3d at 439 (citations omitted).

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