BECAUSE THE SEAMAN CHOSE TO MAKE A DELIVERY ALONE AT NIGHT, THEN KEPT WATCH OVERNIGHT AFTER RUNNING INTO A SAND BAR, AND NOTHING SHOWED THE EMPLOYER REQUESTED OR KNEW OF THE NIGHT RUN OR THE SAND BAR INCIDENT, THERE WAS NO VIOLATION OF 46 U.S.C.S. § 8104
JOHN E PARK, Plaintiff-Appellant, versus STOCKSTILL BOAT RENTALS INC, Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 16927
July 16, 2007, Filed
PROCEDURAL POSTURE: Plaintiff seaman appealed the United States District Court For the Western District of Louisiana's grant of summary judgment in favor of defendant employer on the seaman's action under 46 U.S.C.S. § 30104(a) of the Jones Act and general maritime law to recover for injuries suffered while working aboard the employer's vessel. The seaman argued violations of 46 U.S.C.S. §§ 3313(a), 8101(d), 8104(b), and that the vessel was unseaworthy.
OVERVIEW: There was no evidence the employer "required" the seaman to work more than 12 hours in violation of 46 U.S.C.S. § 8104(b). The seaman chose to make a delivery, alone and in the dark, then kept watch overnight after running into a sand bar. Nothing indicated the employer even requested the delivery be made at night or that it knew of the night run or the sand bar incident. There was no evidence the employer knew of a violation of the Certificate of Inspection's manning requirements for purposes of 46 U.S.C.S. § 8101(d), (e). The Certificate was not violated, two days before the seaman's fall, by transiting on the Intercoastal Waterway and a river, because the vessel was operating a "route of less severity" under 46 C.F.R. § 176.110(b) than specified in the Certificate. The seaman testified to only two reasons for his fall: fatigue due to the overnight watch, and faded, old deck paint on the deck. Thus, any violation of the 30-minute run limit in the Certificate had not caused the fall. As to the vessel being unseaworthy, there was no evidence the vessel was not reasonably suited its intended purpose, or that the deck paint was unsafe or not reasonably suited for the deck's purpose.
OUTCOME: The grant of summary judgment was affirmed.
