United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 9, 2002
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 01-40100
DUDLEY FOUSSELL
Plaintiff - Appellant
v.
MALLARD BAY DRILLING, INC, LLC; ET AL
Defendants
MALLARD BAY DRILLING, LLC;
PARKER DRILLING OFFSHORE USA, LLC;
Defendants - Appellees
v.
C&F OFFSHORE SERVICES, INCORPORATED
Defendant - Appellee - Appellant
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Appeals from the United States District Court
for the Southern District of Texas, Galveston
USDC No. G-99-CV-399
--------------------
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff Dudley Foussell sued defendant Parker Drilling
Offshore USA, L.L.C. (Parker) for negligence under the Jones Act,
46 App. U.S.C. § 688 (Supp. 2001), and unseaworthiness of the
vessel on which he was employed, as well as for recovery of
*
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this opinion should not be published and is not precedent except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. 01-40100
-2-
unpaid maintenance and cure. Foussell also asserted a general
maritime negligence claim against defendant C&F Offshore
Services, Incorporated (C&F). Parker cross-claimed against C&F
for indemnity with respect to Parker’s payment of maintenance and
cure to the plaintiff. After a bench trial, the district court
determined that the accident that precipitated the suit was
caused by the concurrent negligence of Foussell and Gary Reeves,
an employee of C&F, and assessed comparative fault at seventy-
five percent to Foussell and twenty-five percent to Reeves. The
court found that no negligence or vessel unseaworthiness for
which Parker was responsible contributed to cause Foussell’s
injuries. The court awarded damages against C&F, reduced
seventy-five percent for Foussell’s fault. The court also
awarded Foussell certain maintenance and cure owed by Parker and
allowed Parker recovery of maintenance and cure against C&F by
way of indemnity.
On appeal, Foussell argues that the district court clearly
erred in finding him negligent. Alternatively, he argues that
the district court clearly erred in assessing his comparative
fault at seventy-five percent. On brief and at oral argument,
Foussell essentially reargued his view of the facts. But the
evidence supports the district court’s conclusion that he created
a dangerous condition aboard the vessel that he captained by the
unstable method that he chose to stow the pipe. Had we been the
trier of fact, we might or might not have chosen to allocate
seventy-five percent of the fault to Foussell, but there is
simply no way for an appellate court to conclude that the
No. 01-40100
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district court clearly erred in so doing.
Foussell also argues that the district court erred in
finding the vessel seaworthy. He claims that because the vessel
lacked side cleats and because of the relative size of the vessel
and the pipe, he could not have taken the pipe aboard other than
how he did. There was ample testimony, however, that there were
safe (if not ideal) ways to stow the pipe, and the district court
could certainly have correctly concluded (as it did) that any
temporary unseaworthiness of the vessel resulted from the way
that Foussell, the master of the vessel, chose to stow the pipe.
Foussell claims that the district court deprived him of a
fair trial and was biased against him. We have reviewed the
portions of the record that Foussell points to, and what we see
is a very engaged and knowledgeable district judge doing her job
well. There is no evidence of bias, and the trial was entirely
fair.
Finally, the damage award was handled by the district court
with the same care as the other aspects of the trial and we find
no error.
The judgment of the district court is AFFIRMED.