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

                                                                            FILED
                                                                          October 4, 2007

                                     No. 07-40390                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ROY MUDRICK; CAROL MUDRICK

                                                  Plaintiffs-Appellants
v.

CROSS EQUIPMENT LTD

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                   for the Southern District of Texas, Galveston
                                 No. 3:04-CV-593


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiffs-appellants Roy and Carol Mudrick appeal from the district
court’s March 12, 2007 order granting summary judgment for defendant-appellee
Cross Equipment, Ltd., determining that their decedent was a Jones Act seaman
and barring their recovery of non-pecuniary damages. For the following reasons,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 07-40390
            I. FACTUAL AND PROCEDURAL BACKGROUND
      This case comes to us on appeal for the second time. It arises out of a
tragic event that resulted in the death of Roy and Carol Mudrick’s (the
“Mudricks” or “Plaintiffs”) son, Jonathan Mudrick (the “Decedent”), on October
17, 2002.   The Decedent was employed by Cook Inlet Spill Prevention &
Response, Inc. (“CISPRI”) as an Oil Spill Technician (“OST”) aboard Barge 141
in Nikiski Bay, Alaska when he was struck in the head by a steel anchor cable
that came off of the winch, manufactured by Cross Equipment, Ltd. (“Cross” or
“Defendant”), that he was using to wind the cable and raise the anchor.
      As an OST, the Decedent was required to: conduct “and/or direct the
deployment, operation, and recovery of each of CISPRI’s oil spill response
systems . . . to effectively control, contain, and clean-up oil spills”; and to safely
“operate all CISPRI spill response and support equipment, vessels, vehicles, and
heavy equipment.”
      The education and experience required for the Decedent’s OST position
include: a “[m]arine background with thorough knowledge of marine conditions
which exist within the State of Alaska and specifically in the current CISPRI
response area”; vessel “operating skills including navigation, seamanship,
weather observations, operating in close proximity to other vessels and spill
response equipment”; and a “Merchant Marine Document with Barge
Tankerman . . . endorsement – includes barge firefighting training.”
      The physical demands of the Decedent’s job include: “walking, climbing
ladders, work on vessels and barges”; “driv[ing]/operat[ing] vehicles, vessels, and
heavy equipment (including cranes)”; “lifting small pumps and generators . . .
from vessel to vessel . . . or on the deck of a vessel moving both up and down and
side to side on iced or wet surfaces”; “climb[ing] up and down a dock ladder . . .
and mov[ing] to or from a moving vessel on to the ladder”; “maintain[ing]
balance while moving from dock to vessel across railings . . . onto a vessel that


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may be moving up and down as much as 4 feet”; possessing “unimpaired
judgment and physical ability to perform as the Operator of a small vessel . . .
in seas up to 6 feet . . . with up to 4 passengers or crew”; “pull[ing] . . . lines . . .
on a large vessel’s steel deck, which may be moving from side to side or up and
down and may be coated with water, snow, or ice”; assisting “in the rescue of a
co-worker from the water . . . solo on a two man response vessel”; and performing
“routine and emergency maintenance within the confines of a small vessel
engine room.”
      The Mudricks sued Cross, as well as other parties who were subsequently
dismissed, for negligence, strict liability, failure to warn, and breach of warranty
under the Texas Wrongful Death Act. On August 31, 2005, Cross filed its first
motion for summary judgment on the issues of the Decedent’s Jones Act seaman
status and the application of the general maritime law. The district court
granted Cross’s motion on December 9, 2005, based primarily on evidence in the
Decedent’s time sheets that he had spent thirty-two percent of his time working
on CISPRI vessels in navigation. The court determined that when combined
with his job duties, the evidence established that the Decedent qualified as a
seaman. On appeal, we vacated the summary judgment and remanded to the
district court for reconsideration under the proper summary judgment standard.
      On remand, the district court again granted summary judgement for Cross
on March 12, 2007, incorporating its first order into its second and determining
that the Decedent was a Jones Act seaman, and that the general maritime law
should apply, thus barring the Mudricks from recovering non-pecuniary
damages under Scarborough v. Clemco Industries, 391 F.3d 660 (5th Cir. 2004).
The Mudricks filed timely notice of appeal on April 9, 2007.
                          II. STANDARD OF REVIEW
      We review a grant of summary judgment de novo, viewing all evidence in
the light most favorable to the nonmoving party and drawing all reasonable


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inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234
F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence
reflects no genuine issues of material fact and the non-movant is entitled to
judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “A genuine issue
of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
      When, as here, the moving party bears the burden of proof on the relevant
issues at trial, the moving party “must establish beyond peradventure all of the
essential elements of the claim or defense to warrant judgment in his favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in
original); see also Bernard v. Binnings Constr. Co., 741 F.2d 824, 827 (5th Cir.
1984) (holding that the burden of proving seaman status is on the party claiming
benefits therefrom). Then, the nonmoving party must present “specific facts
showing there is a genuine issue for trial.” FED. R. CIV. P. 56(e); see also
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
“Conclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for trial.” TIG Ins. Co. v.
James, 276 F.3d 754, 759 (5th Cir. 2002). “If the evidence is merely colorable,
or is not significantly probative, summary judgment may be granted.” Anderson,
477 U.S. at 249-50 (internal citations omitted).
                               III. DISCUSSION
      The dispositive issue in this case is whether the Decedent was a seaman
under the Jones Act, 46 U.S.C. § 30104. The Supreme Court has given us a two-
pronged test to determine seaman status. First, “the worker’s duties must
contribute to the function of the vessel or to the accomplishment of its mission.”
Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). Second, “the worker must

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have a connection to a vessel in navigation (or to an identifiable group of such
vessels) that is substantial in terms of both its duration and its nature.” Id.
      The Supreme Court has endorsed the Fifth Circuit’s benchmark for
measuring whether a worker’s connection is of a substantial duration, declining
“to find seaman status where the employee spent less than 30 percent of his time
aboard ship.” Id. at 367 (citing Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067
(5th Cir. 1986) (en banc)) (listing Fifth Circuit cases applying the thirty percent
benchmark). The Court added, however, that this “figure . . . serves as no more
than a guideline established by years of experience, and departure from it will
certainly be justified in appropriate cases.” Id. at 371.
      Essentially, the “fundamental purpose of this substantial connection
requirement is to . . . separate the sea-based maritime employees who are
entitled to Jones Act protection from . . . land-based workers who have only a
transitory or sporadic connection to a vessel in navigation, and . . . whose
employment does not regularly expose them to the perils of the sea.” Id. at 368;
see also In re Endeavor Marine, Inc., 234 F.3d 287, 290 (5th Cir. 2000). In
general, seaman status under the Jones Act is a mixed question of law and fact,
usually determined by a jury. In re Endeavor Marine, Inc., 234 F.3d at 290.
“Nevertheless, summary judgment . . . is mandated where the facts and the law
will reasonably support only one conclusion.” Id. (internal quotation marks
omitted).
      On appeal, the Mudricks challenge the district court’s determination that
the Decedent had a connection “substantial in terms of both its duration and its
nature,” Chandris, 515 U.S. at 368, to a fleet of CISPRI vessels in navigation.
Cross argues that the Mudricks waived their specific arguments on appeal by
failing to raise them with equal specificity to the district court.




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                                    A. Waiver
      In its brief to this court, Cross, relying on Vogel v. Veneman, 276 F.3d 729,
733 (5th Cir. 2002), argues that the Mudricks waived their arguments
challenging the sufficiency of the evidence to support a finding that the
Decedent’s connection to a fleet of vessels in navigation was substantial because
they did not raise them before the district court. Comparing the Mudricks’
response to Cross’s motion for summary judgment with their brief on appeal, we
note that the Mudricks certainly parse the record with significantly more detail
in their brief than they did below. However, the Mudricks did argue to the
district court that the Decedent’s time sheets were not sufficiently specific to
establish that the Decedent spent at least thirty percent of his time working on
CISPRI vessels. Further, they argued that the references to “marine work” in
the time sheets were not made by the Decedent, but by his supervisor well after
the accident giving rise to this case occurred.
      Thus, although the Mudricks argue the facts much more meticulously on
appeal than in their response to Cross’s motion for summary judgment, their
arguments challenging the sufficiency of the record are not waived because they
“argued all along” that Cross could not establish the Decedent’s substantial
connection to a vessel or fleet of vessels based on the notations in his time
sheets. See Performance Autoplex II, Ltd. v. Mid-Continent Cas. Co., 322 F.3d
847, 855-56 n.11 (5th Cir. 2003).
                        B. Jones Act Seaman Status
      In this case, the Mudricks dispute only “that the summary judgment
evidence conclusively established the temporal requirement of seaman status.”
In order to meet its burden on summary judgment, Cross must present evidence
that establishes “beyond peradventure,” Fontenot, 780 F.2d at 1194, that the
Decedent had a connection to a vessel or fleet of vessels in navigation “that is
substantial in terms of both its duration and its nature.” Chandris, 515 U.S. at

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368. With respect to the duration inquiry, as a general rule, a “worker who
spends less than about 30 percent of his time in the service of a vessel in
navigation should not qualify as a seaman under the Jones Act.” Id. at 371.
      The nature and duration inquiries, while distinct, are not unrelated, see
id., especially in the context of a maritime job such as an oil spill technician,
which would inherently entail fluctuating time aboard a vessel in any given year
depending on the frequency and severity of oil spills in the relevant coverage
area. Just as a worker should not be permitted to “walk into and out of [Jones
Act] coverage in the course of his regular duties,” Barrett, 781 F.2d at 1075
(citing Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1347 n.6 (5th Cir. 1980)),
seaman status should not depend on the inherent irregularity of oil spills.
      The Supreme Court has noted that:
             the total circumstances of an individual’s employment
             must be weighed to determine whether he had a
             sufficient relation to the navigation of the vessels and
             the perils attendant thereon. The duration of the
             worker’s connection to a vessel and the nature of the
             worker’s activities taken together, determine whether a
             maritime employee is a seaman because the ultimate
             inquiry is whether the worker in question is a member
             of the vessel’s crew or simply a land-based employee
             who happens to be working on the vessel at any given
             time. Chandris, 515 U.S. at 370 (internal citations
             omitted) (emphasis added).

      To establish this substantial connection, Cross offered the mediation
position statements of the Decedent’s wife, his estate, and CISPRI conceding
that the Decedent was a Jones Act seaman. Cross also submitted the Decedent’s
job description, and his hand-written time sheets1 for the year2 leading up to his


      1
        The Mudricks argue that none of the hand-written notations on the Decedent’s time
sheets were made contemporaneously by the Decedent. They suggest that CISPRI Operations
Manager Dennis Rome, who did review the time sheets and compile an approximation of the
Decedent’s marine work for the mediation proceeding, made all the notations on the sheets.

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                                       No. 07-40390
accident. With the time sheets, Cross submitted a memorandum from a CISPRI
manager explaining that the Decedent’s supervisor had reviewed the time sheets
and, with special knowledge of the Decedent’s assignments and the hours
necessary to complete them, determined that the Decedent spent thirty-two
percent of his time performing marine work aboard CISPRI vessels in
navigation. This calculation is supported by the raw time and task data
provided by the Decedent.
       In response, to survive summary judgment, the Mudricks must present
“specific facts showing there is a genuine issue for trial.” FED. R. CIV. P. 56(e).
Their burden is not met by showing “some metaphysical doubt as to the material
facts,” Matsushita, 475 U.S. at 586, or by making “legalistic argumentation.”
TIG Ins. Co., 276 F.3d at 759. By this standard, even construing all inferences
in favor of the Mudricks, they failed to present any evidence to contradict Cross’s
proof. The Mudricks argued that the Decedent was not referring to work aboard
vessels in the time sheets, but his notations expressly mentioned traveling and
working aboard specific vessels in the CISPRI fleet. They also argued that many
of the hours included in calculating the thirty-two percent of his time that the
Decedent spent working on a CISPRI vessel in navigation, such as time spent
in barge firefighting training and working at Drift River, should not have been
counted. The Decedent’s direct supervisor, who has unique knowledge of what


The record makes clear that Rome made the “marine work” notations, but the Decedent wrote
out his daily activities in the right-hand column of the sheet corresponding to the hours he
logged.
       2
          The Mudricks further argue that one year’s worth of time sheets is not sufficient to
fulfill the requirement that the court determine seaman status based on the maritime worker’s
“entire employment history.” Barrett, 781 F.2d at 1075. Unlike the plaintiff in Barrett who
tried to establish seaman status based on a snapshot of eight days out of one year of
employment, id. at 1074-75, Cross proffered time sheets for one year of the Decedent’s twenty-
three-month employment history as an OST working exclusively for CISPRI with CISPRI
equipment and on CISPRI vessels. As opposed to eight days out of a year’s employment, one
year’s time sheets are sufficient to satisfy the flexible requirement that we examine the
Decedent’s entire employment history to determine his status as a Jones Act seaman. Id.

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his assignments entailed, included these hours, and the Mudricks offered no
substantiated reasons they should not be counted. We have held that hours
worked by a maritime employee aboard a vessel need not be hours spent at sea
for the employee to qualify as a Jones Act seaman. In re Endeavor Marine, Inc.,
234 F.3d at 292. Thus, while we resolve factual controversies in favor of the
nonmoving party, that is so “only when there is an actual controversy, . . . when
both parties have submitted evidence of contradictory facts. We do not, however,
in the absence of any proof, assume that the nonmoving party could or would
prove the necessary facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (emphasis in original).
      While the Mudricks correctly assert that the Decedent is not a Jones Act
seaman as a matter of law just because Cross made a showing that he spent
more than thirty percent of his time working aboard a CISPRI vessel in
navigation, when the evidence from the Decedent’s time sheets is viewed in
conjunction with his job description, the skills he was expected to perform in the
course of his employment as an OST, and the actual task he was performing
when this most tragic event occurred, “the total circumstances of” the Decedent’s
employment, Chandris, 515 U.S. at 370, lead to only one conclusion—that the
Decedent was a Jones Act seaman.
                                IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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