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this opinion should not be published and is not precedent except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.
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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).
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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
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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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