                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 26, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk

                             04-40949



                         EDDIE PATTERSON,

                             Plaintiff-Counter Defendant-Appellee,

                              Versus


                        ALLSEAS USA, ET AL.

                                                          Defendants,

                  ALLSEAS MARINE CONTRACTORS SA,

                             Defendant-Counter Claimant-Appellant.


  Appeal from the United States District Court for the Eastern
               District of Texas, Lufkin Division
                         No. 9:02-CV-175


                     ON PETITION FOR REHEARING

Before DAVIS, STEWART, and DENNIS Circuit Judges.

PER CURIAM:1

     In their petition for rehearing, Allseas Marine Contractors

points out that we did not rule on their argument that the district

court erred in denying their counterclaim against Patterson for



     1
      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this opinion should not be published and is not precedent except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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restitution of maintenance and cure payments it made to Patterson.

      We grant rehearing on that issue and affirm the district

court’s dismissal of Allseas Marine Contractors’ counterclaim.

                                      I.

      Eddie     Patterson   (“Patterson”)    filed   this   action     against

Allseas Marine Contractors, S.A. (“AMC”) under the Jones Act, for

injuries Patterson sustained when he fell down a stairway while

working as a superintendent on AMC’s vessel the LORELAY.               Shortly

after Patterson’s injury, Allseas began making maintenance and cure

payments   to    Patterson.       Through   discovery,   AMC    learned   that

Patterson had serious pre-existing back problems that AMC believed

were the cause of his medical problems that he claimed resulted

from his accident on the LORELAY.            AMC also alleged that, had

Patterson not concealed his medical history, AMC would not have

hired him.      Relying on McCorpen v. Central Gulf S.S. Corp., 396

F.2d 547 (5th Circ. 1968), AMC asserted a counterclaim against

Patterson to recover the maintenance and cure payments already

disbursed.

      The district court rendered judgment in favor of Patterson on

his   Jones   Act   suit    and   awarded   him   $368,010.23    in   damages,

concluding that AMC was vicariously liable for Patterson’s co-

employee’s failure to warn Patterson of the dangers associated with

descending the LORELAY stairway with wet boots.                The court also

dismissed AMC’s counterclaim to recover maintenance and cure.



                                      -2-
      We reversed the district court’s damage award.2                        We did not

consider the issue of whether the district court properly dismissed

AMC’s counterclaim, and AMC sought rehearing on this issue, urging

this court to find that a shipowner may recover amounts it pays to

a seaman for maintenance and cure if it establishes the elements of

McCorpen.

                                      II.

      Under McCorpen, a shipowner may deny maintenance and cure

payments to a seaman if the shipowner can prove (1) the seaman

intentionally misrepresented or concealed medical facts; (2) the

non-disclosed facts were material to the employer’s decision to

hire the seaman; and (3) a causal connection exists between the

withheld information and the injury complained of in the lawsuit.

Id.   at   548-549.     Thus,    McCorpen     allows     a    shipowner        to   deny

maintenance and cure payments to a seaman when the shipowner

discovers     the   seaman’s    fraudulent    conduct        and   the       connection

between the misrepresentations and the decision to hire the seaman

before maintenance and cure payments are disbursed.                  The issue of

whether a shipowner may affirmatively recover maintenance and cure

payments it makes to a seaman if the shipowner makes these payments

before learning of the seaman’s deceptive conduct was not before

the   court   in    McCorpen,   and   we    have   not   located         a    published

appellate court decision addressing this issue.

      2
      Patterson v. Allseas USA, Inc., 2005 WL 1350594 (5th Cir.
2005).

                                      -3-
       AMC argues that it makes no sense to limit McCorpen to

situations where the shipowner discovers the seaman’s wrongdoing

before beginning maintenance and cure payments.              According to AMC

this   would    reward    a   seaman     who   conceals   his   pre-employment

condition long enough to receive such payments, which the shipowner

is obliged to make shortly after the seaman is injured.              Patterson

contends that allowing a shipowner’s claim against a seaman for

restitution of maintenance and cure is inconsistent with the

overriding policy of maritime law to protect the seaman as a ward

of the court.

       In light of the district court’s finding that AMC failed to

prove the elements of McCorpen, we decline to decide this difficult

res nova issue on this record.             Regarding AMC’s proof that they

would not have hired Patterson if it had known of his medical

history, the court stated:

            In the first place that has not been proven by
       [AMC]. [Patterson] was one of only fifty people in the
       world who could fill the job of superintendent. There
       may be plenty of able seamen to choose from if one fails
       a physical. It seems more likely that greater leeway is
       allowed for such a skilled position which should not
       involved heavy lifting and which necessarily would be
       filled by older, more experienced applicants. R. 606.

       Later   in   its   ruling   the    district   court   indicates   it   is

rejecting AMC’s counterclaim as a matter of law rather than for

failure of proof.          In light of the district court’s factual

finding, however, that AMC failed to prove that they would not have

hired Patterson had they known of his condition, we decline to


                                         -4-
consider this res nova legal issue.       The record supports the

district court’s factual finding and we therefore affirm the

dismissal of AMC’s counterclaim based on this factual finding.

     We therefore grant AMC’s petition for panel rehearing solely

on AMC’s counterclaim against Patterson and affirm the district

court’s dismissal of that counterclaim.

     The Petition for Panel Rehearing filed by appellant is DENIED.

     No member of this panel nor judge in regular active service on

the court having requested that the court be polled on appellee’s

petition for Rehearing En Banc, the Petition for Rehearing En Banc

is also DENIED.




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