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

                                                 FILED
                                                                        September 14, 2009

                                       No. 08-30942                    Charles R. Fulbruge III
                                                                               Clerk

TRACY COMMINGS,

                                                   Plaintiff - Appellant
v.

MIKE HOOKS INC,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-1099


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
                                              I.
       In October 2006, Tracy Commings started a job with Mike Hooks, Inc.
(“MHI”), a dredging operation engaged by the United States Army Corps of
Engineers to dredge the Ott Bayou Channel in Biloxi, Mississippi. Commings
was hired as a deckhand.
       During the dredging, certain pontoons drifted away from the worksite and
beached in shallow waters at a nearby barrier island. To retrieve the pontoons,

       *
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-30942

Commings, Warren Holton, and Jeffrey Harrison boarded an eighteen-foot
survey skiff. Holton was the Lead Engineer and the Designated Site Safety
Health Officer for the dredging operation. Harrison, a mate, was Commings’s
direct supervisor. The three intended to maneuver the skiff as close as possible
to the pontoons. Commings was then to enter the water, swim or walk to the
pontoons, and attach a line. The skiff would then pull the pontoons back to the
worksite.
      Once the skiff was in position, however, Commings grabbed the line and
dived head first into the shallow water, severely injuring his neck and back. He
was taken to the hospital and subsequently released.          Soon thereafter, a
neurosurgeon diagnosed him with a compression fracture, and Commings
underwent surgery.
                                       II.
      In February 2007, Commings, seeking compensation for his injuries, filed
this negligence suit under general maritime law and the Jones Act, 46 U.S.C. §§
30104-30105(b).    He subsequently moved for partial summary judgment,
attempting to prevent MHI from asserting the defense of contributory
negligence, on the grounds that his injury was caused in part by MHI’s violation
of an Occupation Safety and Health Administration (“OSHA”) regulation. The
district court denied that motion, and a bench trial followed.
      As the trier of fact, the court found Commings’s testimony regarding the
accident to be unreliable. Accepting the testimony of Harrison and Holt, the
court concluded that Harrison warned Commings that the water was only two
to three feet deep and instructed him to “scoot” off the bow of the skiff into the
water. The court further found Commings contributorily negligent and assigned
ninety percent liability to Commings and ten percent to MHI. After a damages
hearing, the court assessed $18,617 for lost wages and $200,000 for past pain



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and suffering. In the light of Commings’s own negligence, the court awarded
him ten percent of this amount. Commings now appeals.
                                              III.
                                               A.
       Commings builds his case on the Federal Employers Liability Act
(“FELA”), 45 U.S.C. § 51 et seq., which bars the defense of contributory
negligence where the plaintiff’s injury was caused, at least in part, by the
defendant’s violation of “any statute enacted for the safety of employees.” 45
U.S.C. § 54. FELA applies to railroads, but its substantive provisions, including
§ 54, are incorporated into the Jones Act. In re Roy Crook And Sons, Inc. v.
Allen, 778 F.2d 1037, 1038 (5th Cir. 1985).
       Commings argues that MHI cannot assert contributory negligence because
MHI, by not providing a ladder for him to exit the skiff, violated an OSHA
regulation requiring employers to provide a stairway or ladder at certain points
of access for personnel. Thus, whether MHI’s contributory negligence defense is
barred depends first on whether MHI did violate an OSHA regulation, and then
on whether an OSHA violation can ever bar a contributory negligence defense.
Because we hold that the regulation in question does not apply, we need not
consider whether an OSHA violation can ever bar an assertion of contributory
negligence.1



       1
         The Occupational Safety and Health Act itself provides that it may not be construed
to “enlarge or diminish or affect in any other manner the common law or statutory rights,
duties or liabilities of employers or employees.” 29 U.S.C. § 653(b)(4). The other circuits that
have considered the question of whether this language prevents an OSHA violation from
triggering FELA’s contributory negligence bar are split. Compare Jones v. Spentonbush-Red
Star Co., 155 F.3d 587, 596 (2d Cir. 1998) (concluding that an OSHA violation does not
preclude a defendant from asserting contributory negligence) and Ries v. Nat’l R.R. Passenger
Corp., 960 F.2d 1156, 1162 (3d Cir. 1992) (same) with Pratico v. Portland Terminal Co., 783
F.2d 255 (1st Cir. 1985) (holding that an OSHA violation can trigger FELA’s contributory
negligence bar); contra Elliot v. S.D. Warren Co., 134 F.3d 1, 4 (1st Cir. 1998) (questioning the
continuing validity of Pratico).

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      The parties agree that the skiff was required to comply with applicable
OSHA regulations but MHI disputes that 29 C.F.R. § 1926.1051 is such an
applicable regulation. Section 1926.1051 states that “[a] stairway or ladder shall
be provided at all personnel points of access where there is a break in elevation
of 19 inches (48 cm) or more, and no ramp, runway, sloped embankment, or
personnel hoist is provided.” However, the regulation is found in Part 1926 of
the code, which applies “to every employment and place of employment of every
employee engaged in construction work.” 29 C.F.R. § 1910.12(a) (emphasis
added). The regulations in turn define “construction work” as “work for
construction, alteration, and/or repair, including painting and decorating.” Id.
§ 1910.12(b). The district court found that the OSHA regulation did not apply
to Commings’s situation and we agree.
      Commings was hired as a deckhand and was retrieving a pontoon when
he was injured, and he does not present any convincing reasons for us to find
that his activities constitute “construction work” under the OSHA regulations.
Commings raises two cases in support of his argument that § 1926.1051 does not
apply only to construction work, but neither case directly addressed the
applicability of Part 1926 OSHA regulations to deckhands or other vessel
employees. In re Norfolk Dredging Co., 783 F.2d 1526 (11th Cir. 1986), involved
a jurisdictional dispute between the Coast Guard and OSHA over a dredging
barge.   The Eleventh Circuit held that OSHA had jurisdiction, citing a
regulation from Part 1926, but did not discuss the regulation’s applicability. In
a Louisiana case, Terrebonne v. B&J Martin, Inc., 906 So. 2d 431 (La. Ct. App.
2004), a Jones Act plaintiff argued that the defendant was liable in part because
it violated a Part 1926 OSHA regulation. The court, however, based its finding
of liability on Jones Act negligence and unseaworthiness and did not consider
the OSHA regulation’s applicability. Because the facts of Commings’s injury
simply do not suggest that he was engaged in “construction,” the OSHA

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regulation does not apply and any purported barrier to asserting contributory
negligence is also inapplicable.
                                        B.
      Commings raises two additional issues. First, he contends that the district
court erred in its apportionment of fault. Second, he argues that the district
court’s damages calculation is too low. Each of these issues is reviewed for clear
error. In re Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005); Sockwell
v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994). After considering the parties’ briefs
and reviewing the record, we can find no reversible error in the district court’s
determination of these issues.
      The fault apportionment was based primarily on the district court’s
conclusion that defendant’s witnesses were far more credible than Commings.
The district court concluded that Harrison warned Commings about the depth
of the water and instructed him to “scoot” off the bow.       This conclusion is
supported by the record.
      In calculating the damage award, the court reasonably relied upon doctor
reports and the video surveillance taken of Commings after his surgery. This
video, as the district court noted, shows Commings moving without restraint.
Accordingly, we find no clear error concerning the damages determination.
                                       IV.
      For the reasons stated above, the judgment of the district court is
                                                                    AFFIRMED.




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