                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 07-1105



MCRAE B. SOUTHARD, III,

                                               Plaintiff - Appellant,

           versus


PAUL LESTER; OREGON     INLET   FISHING   CENTER,
INCORPORATED,

                                              Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Fox,
Senior District Judge. (2:05-cv-00047-F)


Argued:   December 7, 2007                  Decided:   January 7, 2008


Before WILKINSON and SHEDD, Circuit Judges, and John Preston
BAILEY, United States District Judge for the Northern District of
West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Jeffrey Franklin Brooke, HUFF, POOLE & MAHONEY, P.C.,
Virginia Beach, Virginia, for Appellant.       Bryan Karl Meals,
MCGUIREWOODS, L.L.P., Norfolk, Virginia; Neil Alvin Riemann,
TAYLOR, PENRY, RASH & RIEMANN, P.L.L.C., Raleigh, North Carolina,
for Appellees. ON BRIEF: Timothy M. Richardson, John R. Braley,
IV, HUFF, POOLE & MAHONEY, P.C., Virginia Beach, Virginia, for
Appellant. William H. Baxter, II, MCGUIREWOODS, L.L.P., Richmond,
Virginia, for Appellee Paul Lester.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      McRae B. Southard, III, a passenger on a charter fishing boat

who   was   injured   when   a   wave   struck   the   boat,   brought   this

negligence action against Paul Lester and Oregon Inlet Fishing

Center, Inc. (“OIFC”).       Southard now appeals the district court’s

orders granting Lester’s and OIFC’s summary judgment motions and

denying his subsequent motion to alter or amend the judgment.

Finding no error, we affirm.



                                        I

      On November 16, 2002, Southard took a charter fishing trip on

the F/V Osprey.       The Osprey was captained by Lester, who is an

experienced licensed charter boat captain.             At that time, Lester

averaged approximately 120 charter boat trips annually.

      The weather conditions that day were described as being

normal.     The Osprey left its dock at Oregon Inlet, North Carolina,

sometime after 5:30 that morning, and as it headed for the ocean,

Lester observed 3-4 foot waves and choppy waters.              Consequently,

Lester slowed his speed to 18 knots, which is 3-5 knots less than

the Osprey’s normal 21-23 knot cruising speed.           At least one other

charter fishing boat passed the Osprey as they headed out.1



      1
      Southard does not contend that Lester was negligent for
taking the Osprey out that day.    See Brief of Appellant, at 28
(stating that “going out on the day in question was not in and of
itself negligent”).

                                        3
     Before the Osprey reached the fishing grounds, Lester was

alone on the flying bridge, and his mate was in the cabin with the

passengers.      Lester saw a wave that he estimated to be 8-10 feet

high breaking approximately one boat length in front of the Osprey.

When Lester saw the wave, he immediately pulled the throttle back

to slow down as quickly as he could.            However, Lester could not

avoid the wave, and the Osprey struck it and came down hard off its

steep bank.      This caused Southard to be lifted out of his seat in

the boat’s cabin, and he was seriously injured when he fell back

down.

     Southard filed this action contending that Lester negligently

operated   the    Osprey   and   that   OIFC   is   vicariously   liable   for

Lester’s negligence.       In his complaint, Southard referred to the

wave that struck the Osprey as “rough seas and/or a ‘rogue wave,’”

see J.A. 9, and he contends that it was at least 15 feet high.

Lester testified during discovery that although he had seen (from

a distance) “very few” waves similar to the one that struck the

Osprey, he had never encountered such a wave that caused damage or

injury aboard his vessel.        J.A. 38.

     Lester and OIFC separately moved for summary judgment pursuant

to Fed. R. Civ. P. 56, arguing (inter alia) that Southard failed to

present sufficient evidence to establish that Lester was negligent.

In ruling on the motions, the district court noted the parties’

agreement that Southard was required to establish that (1) Lester


                                        4
and OIFC owed him a duty of care, (2) they breached that duty, (3)

he sustained an injury, and (4) a causal connection exists between

his injury and the breach of duty.   The district court then held

that Southard failed to establish his negligence claim:

     Plaintiff . . . contends that there is ample evidence
     demonstrating that Defendant Lester failed to keep a
     proper lookout and maintain a safe speed and thereby
     breached his duty of reasonable care.      Specifically,
     Plaintiff contends that if Defendant Lester had
     maintained a proper lookout and a safe speed, he would
     have seen the “rogue” wave in advance and would have had
     time to avoid it. Plaintiff’s entire theory, however,
     rests upon the premise that Defendant Lester could have
     seen the “rogue” wave in advance. The only evidence in
     the record with regard to the timing of the “rogue” wave
     comes from Defendant Lester himself, who testified that
     the wave was eight to ten feet in height when he first
     saw it and “was pretty much on top of me.”

     Although Plaintiff is free to attack Defendant Lester’s
     credibility, Plaintiff overlooks the fact that Defendant
     Lester’s testimony is the only evidence in the record
     with regard to the timing and formation of the “rogue”
     wave.   Even Plaintiff’s expert witness admits that he
     does not know where or when the “rogue” wave was formed.
     Consequently, Plaintiff is essentially asking the fact
     finder to rely upon sheer speculation and conjectural
     hypothesizing to conclude that Defendant Lester breached
     his duty of reasonable care when he failed to avoid the
     “rogue” wave. This cannot propel Plaintiff past summary
     judgment.

J.A. 491-92 (internal citations omitted).

     Continuing, the district court rejected Southard’s argument

that the “Pennsylvania Rule” is applicable in this case. That rule

holds that when “a ship at the time of a collision is in actual

violation of a statutory rule intended to prevent collisions, . .

. the burden rests upon the ship of showing not merely that her


                                5
fault might not have been one of the causes, or that it probably

was not, but that it could not have been.”                    The Pennsylvania, 86

U.S. (19 Wall.) 125, 136 (1873).                   Southard argued that this rule

applies because Lester allegedly violated various provisions of the

International Regulations for Preventing Collisions at Sea (1972)

(“International Regulations”), which are adopted by 33 U.S.C. §

1602. However, the district court concluded that the International

Regulations      -   and    consequently          the   Pennsylvania      Rule    –   are

inapplicable because no “collision” occurred in this case.

        For these reasons, the district court granted the summary

judgment motions.          Southard thereafter moved to alter or amend the

judgment pursuant to Fed. R. Civ. P. 59(e).                      The district court

denied this motion, holding that Southard merely disagreed with the

summary       judgment     order   and,       therefore,     had   not    established

sufficient grounds for relief under Rule 59(e).



                                           II

     Southard        now    appeals     the       district   court’s     orders.      In

challenging both orders, Southard argues that the district court

erred    by    failing     to   apply    the       International    Regulations       and

Pennsylvania Rule, and by concluding that he otherwise failed to

present sufficient evidence to withstand summary judgment.

        “We   review     the    district      court’s    order     granting      summary

judgment de novo, viewing the facts in the light most favorable to,


                                              6
and drawing all reasonable inferences in favor of, the nonmoving

party.”   Garofolo v. Donald B. Heslep Assocs., Inc., 405 F.3d 194,

198 (4th Cir. 2005). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.”              Fed. R. Civ. P.

56(c).    The relevant inquiry in a summary judgment analysis is

“whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.”         Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986).

     We   review   for   abuse   of   discretion    the    district   court’s

decision on the Rule 59(e) motion to alter or amend the judgment.

Pacific Ins. Co. v. American Nat’l Fire Ins. Co., 148 F.3d 396, 402

(4th Cir. 1998).    “Although Rule 59(e) does not itself provide a

standard under which a district court may grant a motion to alter

or amend a judgment, we have . . . recognized that there are three

grounds for amending an earlier judgment: (1) to accommodate an

intervening change in controlling law; (2) to account for new

evidence not available at trial; or (3) to correct a clear error of

law or prevent manifest injustice.”          Id. at 403.

     Having reviewed, de novo, the record and the applicable law,

and having had the benefit of oral argument, we affirm the grant of


                                      7
summary judgment substantially on the reasoning of the district

court.   Specifically, we hold that the International Regulations

and the Pennsylvania Rule are inapplicable in this case because the

Osprey was not involved in a “collision.”    See, e.g., Luckenbach

S.S. Co. v. The Thekla, 266 U.S. 328, 340 (1924) (“A collision

involves two vessels.”).   We further hold that in light of the

evidence in the record concerning the timing and formation of the

wave that struck the Osprey and Lester’s response to the wave,

Southard has failed to present sufficient evidence to establish a

genuine issue for trial on his negligence claim.

     Given our conclusions regarding the summary judgment motion,

we also hold that the district court did not abuse its discretion

in denying Southard’s Rule 59(e) motion.    Accordingly, we affirm

the order denying that motion as well.2

                                                          AFFIRMED




     2
      In light of our disposition, we need not address Lester and
OIFC’s argument that Southard assumed the risk of his injury, or
OIFC’s argument that it cannot be held vicariously liable for
Lester’s conduct.

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