                  UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT


                           No. 98-30094
                         Summary Calendar



                          KEVIN ROGERS,

                                              Plaintiff-Appellant,


                              VERSUS

               TRICO MARINE OPERATORS, INC., ET AL,

                                              Defendant,


                  GILBERT CHERAMIE BOATS, INC.,

                                              Defendant-Appellee.




          Appeal from the United States District Court
              for the Eastern District of Louisiana
            (96-CV-2056-L, 96-CV-2930 & 97-CV-754-L)


                         December 2, 1998

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:*

     Appellant (“Rogers”) seeks to have summary judgment in favor

of appellees (“Cheramie”) reversed on the basis that release

entered into by the parties should have been set aside on grounds


 *
  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opinion should not be published and is not precedent except under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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of mutual mistake.

               I.    Background and Procedural History

     Kevin Rogers, a longshoreman, filed suit against various

defendants seeking recovery for injuries sustained when the crew

boat he was traveling aboard collided with a vessel owned by

Gilbert Cheramie Boats, Inc. (“Cheramie”).       Cheramie moved for

summary judgment on the basis that Rogers’s suit was barred by a

release he had signed settling his claims against Cheramie for

$10,000.    The district court granted Cheramie’s summary judgment

motion, finding that Rogers had “failed to demonstrate a genuine

issue as to any material fact regarding the validity of the

release.”   The court entered partial final judgment under FED. R.

CIV. P. 54(b) dismissing Rogers’s complaint with prejudice as to

Cheramie.   Rogers filed a timely notice of appeal.

     The district court summarized the undisputed facts relative to

Rogers’s injury.     On the evening of February 19, 1996, in foggy

conditions, a crew boat Rogers was traveling aboard collided with

a vessel owned by Cheramie.    At the time of the collision, Rogers

was being ferried to an offshore platform where he served as a

field supervisor.     Rogers had been asleep on a bench inside the

crewboat and was thrown to the floor when the two vessels collided.

As a result of being thrown to the floor, Rogers suffered injuries

to his lower back.

        On March 13, 1996, Rogers visited Ky’s Chiropractic Clinic

complaining of neck and back pain due to the accident.   An initial

evaluation found a cervical and lumbar sprain/strain after which


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Rogers returned to Ky’s for chiropractic treatment on March 25,

1996.   On March 29, 1996, Rogers visited Dr. David Reiss, his

employer’s physician, complaining of low back pain extending down

his leg.   Rogers underwent an MRI of the spine, which revealed a

degenerative L4-5 disc and a bulging L5-S1 disc.      Following the

MRI, Rogers was referred to Dr. Gregor Hoffman, for orthopedic

evaluation.   Dr. Hoffman diagnosed Rogers as having a thoracic

sprain/strain and lumbar sprain/strain with a degenerative disc.

     Several days later, Rogers, unrepresented by counsel and

without written approval of his employer, engaged in settlement

discussions with Cheramie.       On April 18, 1996, Rogers signed a

release before a notary public and settled his claim against

Cheramie for $10,000.

     Notwithstanding the settlement, on June 17, 1996, Rogers filed

the instant suit.       Rogers was subsequently seen by Dr. Stuart

Phillips, who diagnosed Rogers as having a central disc herniation,

rather than just a sprain/strain, at the L4-5 intervertebral disc.

In order to maintain his suit, Rogers has challenged the validity

of the release on the basis of mutual mistakes made by the parties.

                           II.   Discussion

     “This court reviews the grant of a summary judgment motion de

novo, using the same criteria used by the district court in the

first instance.”    Fraire v. City of Arlington, 957 F.2d 1268, 1273

(5th Cir.1992).    Summary judgment is proper if the evidence shows

that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.    See FED.


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R. CIV. P. 56(c).

      The parties agree that Rogers’s claim against Cheramie arises

under general maritime law and that therefore federal law governs

the validity of the release.           See Mid-South Towing Co. v. Har-Win,

Inc., 733 F.2d 386, 389 (5th Cir.1984).                      They do not agree as to

which party has the burden of proof regarding validity of the

release. The district court concluded that Rogers “must be treated

as an ordinary employee and, since he is the one attacking the

release, he must bear the burden of proving that the release is

invalid.”     In arguing that the district court correctly decided

this issue, Cheramie cites to Mid-South Towing, 733 F.2d at 392,

which states that “[o]ne who attacks a settlement must bear the

burden of showing that the contract he has made is tainted with

invalidity, either by fraud practiced upon him or by mutual mistake

under which both parties acted.”                 Rogers however, argues that the

burden is on Cheramie to prove the validity of the release.                            He

relies on Robertson v. Douglas Steamship Co., 510 F.2d 829, 835

(5th Cir.1975), in which this court stated that “[f]or purposes of

determining      the    applicability            of     general     maritime   law,    a

longshoreman injured in the course of his duties stands in the same

position as a seaman with respect to 'the traditional remedies of

the sea.'”       The party that sets up a seaman’s release has the

burden of showing “that it was executed freely, without deception

or   coercion,    and   that      it   was       made   by    the   seaman   with   full

understanding of his rights.” Charpeniter v. Fluor Ocean Services,

Inc.,   613   F.2d     81,   84   (5th   Cir.1980)(internal            quotation      and


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citation omitted); see also Robertson, 510 F.2d at 835 n.4 (“the

party who attempts to rely on a maritime release has the burden of

proving its validity”).        Here, the mere fact that Rogers was a

passenger on a crew boat when his injuries occurred does not

convince us that he should be entitled to the special status of a

seaman.    See Ketnor v. Automatic Power, Inc., 850 F.2d 236, 238

(5th Cir.1988)(holding that plaintiff that utilized boat merely for

transportation to and from various rigs on which he worked, was

“merely a passenger,” and thus not entitled to seaman status).           We

likewise   “see    no   compelling   reason   to   apply   more   stringent

standards to longshoremen’s releases for injuries sustained aboard

ship than to those entered into by longshoremen and other workers

for   injuries    sustained   ashore.”    Capotorto    v.   Compania    Sud

Americana de Vapores, Chilean Line, Inc., 541 F.2d 985, 987 (2nd

Cir.1976).       However, regardless of which party here bears the

burden of proving the validity/invalidity of this release, Rogers’s

claims fail for other reasons.

      Rogers ultimately seeks to have his release set aside for two

separate reasons.       First, he contends that the parties were under

a mutual mistake as to the nature of his injuries when he signed

the release. Thus, Rogers asserts, the release should be set aside

because both parties based the settlement on the diagnosis of a

cervical strain/sprain and not the later diagnosis of a herniated

disc.

      Roger's assertion is controlled by this court's decision in

Robertson v. Douglas Steamship Co., 510 F.2d 829 (5th Cir.1975), in


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which we held:

          While it is true that a release should not be set
     aside for mutual mistake concerning the extent and
     outcome of injuries, which are necessarily future rather
     than present facts, it does not follow that a release
     should not be set aside for mutual mistake concerning the
     nature of the injuries, which is a present fact. The
     legal distinction must rest on the medical difference
     between diagnosis and prognosis.

Id. at 836.   Here, we must therefore determine if the parties made

a mutual mistake concerning only the extent and outcome of Rogers’s

injuries, or whether there was a mistake concerning the very nature

of his injuries.    On this issue, the Robertson Court went on to

further hold:

          A longshoreman who signs a release may have to take
     his chances that a properly diagnosed condition was the
     subject of an overly optimistic prognosis and that his
     injuries may be more serious and extensive than
     originally thought. However, the law does not require
     him to take his chances when the diagnosis is itself
     erroneous and he is suffering from a disease entirely
     different in nature than that diagnosed.

Id. (emphasis added).     In the case at bar, Rogers settled his

claims fully aware that he was suffering from a spine injury.    More

precisely, he settled fully aware that he had an injured L4-5 disc.

We find that any mistake made in this case was only to the extent

and eventual outcome of Rogers’s injuries.   We do not believe that

Rogers settled his claims on the basis of a condition entirely

different in nature than that of which he was diagnosed.   He took

his chances that his injuries would not be more serious and

extensive than originally thought.   See id.;   Strange v. Gulf and

South American Steamship Co., Inc., 495 F.2d 1235, 1237 (5th

Cir.1974)(noting that the uncertainty of the eventual extent and


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outcome of the injuries involved in a personal injury claim is the

very thing that parties seek to foreclose by settling). Therefore,

we hold that there was no mutual mistake in Rogers’s diagnosis that

would justify setting aside his release.

     Second, Rogers contends that the parties' failure to obtain

the approval of his employer prior to the settlement of his claim

was a second mutual mistake which operated to void the release.

For this assertion, Rogers relies on 33 U.S.C. 933(g)(1) of the

Longshoremen’s and Harbor Workers’ Compensation Act (“the LHWCA”),

which states that a worker must have the written approval of his

employer if he desires to settle a claim with a third-party

tortfeasor   for   less   than   the   total   compensation   owed   by   the

employer.    See also Peters v. North River Ins. Co. of Morristown,

N.J., 764 F.2d 306, 311 (5th Cir.1985).          The record reflects that

Rogers’s employer paid $11,083.86 in benefits to Rogers.             Because

the settlement with Cheramie was less than the compensation paid by

Rogers’s employer, Rogers argues that the release violated §

933(g)(1). A release executed in violation of § 933(g)(1) triggers

the forfeiture mechanism of 933(g)(2).             Consequently, Rogers’s

failure to notify his employer would result in the forfeiture of

any future benefits, including medical benefits that he might have

been entitled to under the LHWCA.          See Estate of Cowart v. Nicklos

Drilling Co., 505 U.S. 469, 470 (1992). Accordingly, the very fact

that this forfeiture mechanism exists defeats Rogers’s contention

that a release in violation of § 933(g) is void ab initio.                We

agree with the district court’s reasoning that this section


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“clearly    contemplates   the   possibility    of   a   valid   third-party

settlement without employer consent.”           Rogers v. Trico Marine

Assets, Inc., 969 F.Supp. 384, 389 (E.D. La.1997).                Therefore,

Rogers fails to persuade that the failure to obtain such approval

constituted a mutual mistake that would void the release.



                            III.   Conclusion

     For the foregoing reasons, we find that the district court

was correct in granting summary judgment on behalf of appellee

Cheramie.    After a de novo review, we conclude that Rogers has

failed to demonstrate any genuine issue of material fact on

whether or not his release should be set aside on the basis of

mutual mistake.    Because appellee Cheramie was therefore entitled

to judgment as a matter of law, we AFFIRM.




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