Gautreaux v. Scurlock Marine Inc

United States Court of Appeals,

Fifth Circuit.

Nos. 95-30250, 95-30272.

Charles D. GAUTREAUX, Plaintiff-Appellee,

v.

SCURLOCK MARINE, INC., Defendant-Appellant.

June 6, 1996.

Appeals from the United States District Court for the Eastern
District of Louisiana.

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER,1
District Judge.

DUHÉ, Circuit Judge:

Charles Gautreaux brought this Jones Act and general maritime

law action against his employer, Scurlock Marine, Inc.

("Scurlock"), seeking damages for work-related injuries. The

district court entered judgment on a jury verdict in Gautreaux's

favor and denied Scurlock's motion for judgment as a matter of law,

new trial, or to alter, amend or remit the judgment. Scurlock

appeals, complaining of the jury instructions, denial of its motion

for judgment as a matter of law, refusal to grant a new trial or to

alter, amend or remit the judgment, and denial of limitation of

liability. We affirm.

I. BACKGROUND

Archie Scurlock, as President and owner of Scurlock Marine,

purchased the BROOKE LYNN in May 1993, and retained as her

1
District Judge of the Northern District of California,
sitting by designation.

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permanent captain Lance Orgeron. In October 1993, Charles

Gautreaux applied for a position with Scurlock. Gautreaux had

worked as a tanker man since the early 1980's and had recently

earned a U.S. Coast Guard master's license. Scurlock hired

Gautreaux as the BROOKE LYNN's relief captain.

The BROOKE LYNN is a standard inland push boat, equipped with

two towing winches on her bow, which are used to secure lines

joining the BROOKE LYNN to the barges in her tow. The starboard

side winch is hydraulic, and the port side winch is electric. Upon

being hired, Gautreaux was taken to the BROOKE LYNN and instructed

on her operation by Archie Scurlock. Orgeron took Gautreaux on a

tour of the vessel, showing him the layout of the vessel and

familiarizing him with her equipment. Orgeron showed Gautreaux the

manual crank handle that accompanied the electric winch and told

him that it was to be used to override the electric switches on the

winch if they failed. Orgeron explained that, if the winch became

"bound up" and would not engage by use of the electric ignition

switch, the manual crank should be attached to the winch motor and

turned a few times to "unbind" the winch, and then the electric

ignition switch should be used to try to engage the winch. Neither

Scurlock nor Orgeron told Gautreaux that when using the manual

crank handle he should not leave the handle on the winch motor when

attempting to engage the winch by pressing the electric ignition

switch.

About four months after he was hired, Gautreaux, serving as

captain of the BROOKE LYNN, relieved the tanker man on duty and

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began off loading of the barge in tow. As the barge discharged its

cargo, it began to rise in the water, eventually causing the towing

wires to become taut. Noticing this, Gautreaux attempted to

relieve the tension in the wires by unwinding them from the

winches. He released the starboard wire first, which caused that

side of the BROOKE LYNN to drop and the port side towing wire to

become even tighter. Gautreaux then attempted to release the port

side wire, but the electric winch would not work. He attached the

manual crank to the winch motor, and began turning the crank while

simultaneously pressing the electric ignition switch. When the

motor started, the manual crank handle flew off and struck

Gautreaux on the right side of his face, crushing his right eye and

inflicting other severe fractures and lacerations.

Gautreaux sued Scurlock, alleging that his injuries were

caused by its negligence and the unseaworthiness of the BROOKE

LYNN. Gautreaux's primary complaint was that Scurlock failed to

properly train him in the use and operation of the electric towing

winch and its manual crank handle, thereby not providing him a safe

place to work. Scurlock answered and sought exoneration from or

limitation of its liability. After a two-day trial, the jury

returned a verdict in favor of Gautreaux on his Jones Act

negligence claim, but found the BROOKE LYNN seaworthy. The jury

apportioned fault 95% to Scurlock and 5% to Gautreaux and awarded

a total of $854,000 in damages.2

2
The jury's award was:

Past and future pain and suffering

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 The district court entered judgment for Gautreaux for

$811,300. By separate order, the district court denied Scurlock's

petition for limitation of liability. Scurlock moved in the

alternative for judgment as a matter of law, for new trial, or to

alter, amend or remit the judgment. The district court denied

these motions, conditioning denial of the motion for new trial on

the amount of lost future wages on Gautreaux's acceptance of a

remittitur.3 Gautreaux accepted the remittitur, and the district

court entered an amended judgment for $736,925 for Gautreaux.4

On appeal, Scurlock Marine argues that the district committed

the following errors: (1) improperly charging the jury on the

applicable law, (2) refusing to enter judgment as a matter of law

on the issues of entitlement to lost future wages and liability,

(3) failing to recognize that the awards for lost future wages and

and disability $300,000

Past lost wages 24,000

Future lost wages 500,000

Future medical expenses 30,000

Total $854,000
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3
The district court found the jury's award of $500,000 for
lost future wages excessive and against the great weight of the
evidence, insofar as the award was premised on Gautreaux's
inability to return to minimum-wage employment during the first
two years after the accident. Accordingly, the district court
conditioned denial of Scurlock's new trial motion on this element
of damages on Gautreaux's acceptance of an award of $400,625.
4
On June 7, 1995, the district court further amended its
judgment, discovering that it had failed to reduce the remitted
amount of lost future wages by Gautreaux's percentage of fault.

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pain and suffering were excessive and warranted a new trial, and

(4) denying its petition for limitation of liability.

II. DISCUSSION

A. Jury instructions

The district court has broad discretion in formulating the

jury charge, and so we review jury instructions with deference.

Stine v. Marathon Oil Co., 976 F.2d 254, 259 (5th Cir.1992);

Bradshaw v. Freightliner Corp., 937 F.2d 197, 200 (5th Cir.1991);

Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 167 (5th

Cir.1990). Accordingly, a jury charge is to be considered as a

whole, and so long as the jury is not misled, prejudiced, or

confused, and the charge is comprehensive and fundamentally

accurate, it will be deemed adequate. Davis v. Avondale Indus.,

Inc., 975 F.2d 169, 174-75 (5th Cir.1992); Bradshaw, 937 F.2d at

200. We reverse for error in charging the jury only when the

charge given, as a whole, leaves us with substantial and

ineradicable doubt whether the jury has been properly guided in its

deliberations. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216

(5th Cir.1995) (quoting FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th

Cir.1994)); Hall v. State Farm Fire & Casualty Co., 937 F.2d 210,

214 (5th Cir.1991) (quoting Treadaway, 894 F.2d at 167-68).

Scurlock contends the district court erred by failing to

instruct the jury that a Jones Act employer is entitled to rely on

the experience, training, license, or education of individual

seamen-employees in determining whether or to what extent to train

them. Further, Scurlock argues the district court's refusal to

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instruct the jury that it could consider these same qualities of a

seaman-employee when determining his contributory negligence was

also error.

As a threshold matter, the district court is not required to

give a requested jury instruction that is not a correct statement

of the law. Mooney, 54 F.3d at 1216; Treadaway, 894 F.2d at 167.

If the proposed instruction does accurately state the law, the

district court still has not committed reversible error by refusing

to give it, provided the substance of the requested instruction is

conveyed in the charge. Dawsey v. Olin Corp., 782 F.2d 1254 (5th

Cir.1986). See also Bank One, Texas, N.A. v. Taylor, 970 F.2d 16,

30 (5th Cir.1992), cert. denied, 508 U.S. 906, 113 S.Ct. 2331, 124

L.Ed.2d 243 (1993).

The district court charged:

Now in considering the experience of the plaintiff, you
may find the defendant negligent if you find from a
preponderance of the evidence that defendant assigned
plaintiff to perform a task which he was not adequately
trained to perform. The defendant was obliged to train all of
its employees, including the captain of the vessel, in the
proper and safe use of the vessel's equipment. However,
defendant was under no obligation to warn the plaintiff of
conditions of which he was aware.

This instruction clearly invited the jury to assess the impact of

Gautreaux's training and experience on Scurlock's duty to train him

in the operation of the winch.5 The district court need not adopt

5
We do not decide whether, generally, a Jones Act employer's
duty to train its seamen-employees is controlled by the amount or
lack of experience, training, licensing, education, or knowledge
the seaman-employee possesses, as such a conclusion is not
warranted by these facts. Instead, on this record, Gautreaux's
uncontroverted testimony that he had never seen a manual crank
handle for use on an electric winch was sufficient to establish

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verbatim the wording of an instruction suggested by a party. See,

e.g., Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1075

(5th Cir.1986). Instead, its task merely is to fully and correctly

charge the jury on the applicable law. Bender v. Brumley, 1 F.3d

271, 276 (5th Cir.1993) (quoting 9 Wright & Miller, Federal

Practice and Procedure § 2556 (1917)). On this record, we find no

reversible error in the district court's refusal to give Scurlock's

proposed instructions.

As to the instructions on Gautreaux's contributory

negligence, the district court was not as precise, but was equally

as effective. The district court instructed:

If a seaman is provided with a safe way to work and he
chooses to do something in a way that he knows or should know
is unsafe and dangerous, his employer is not responsible for
the results of a choice made knowingly by the seaman.

... [I]f you find that the plaintiff chose to use an
unsafe method that he knew or should have known was unsafe, or
in violation of instructions, you may find he was wholly or
partly responsible for what happened.

Again, it is not error for the district court to refuse to give a

requested instruction that accurately states applicable law if the

substance of that instruction is embraced in the charge. We

conclude that, albeit without the exactitude Scurlock sought, this

instruction sufficiently conveyed that Gautreaux's training,

knowledge, and experience were factors the jurors could consider in

determining whether his own conduct was negligent and contributed

to his injuries.

that Scurlock was required to train him as to the proper use of
this appliance.

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 Finally, Scurlock argues it was error to instruct the jury

with respect to determining contributory negligence that Gautreaux

was only required to exercise slight care for his own safety under

the circumstances. Instead, Scurlock contends, the standard to

which Gautreaux, and all seamen, should be held is that of a

reasonably prudent person exercising ordinary or due care under

like circumstances. The slight care standard, however, is the

settled law of this Circuit, see, e.g., Johnson v. Offshore

Express, Inc., 845 F.2d 1347, 1355 (5th Cir.), cert. denied, 488

U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988); Pickle v.

International Oilfield Divers, Inc., 791 F.2d 1237, 1240 (5th

Cir.1986), cert. denied, 479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d

989 (1987); Brooks v. Great Lakes Dredge-Dock Co., 754 F.2d 536,

538 (5th Cir.1984), and as modified, 754 F.2d 539, 540 (5th

Cir.1985), and the district court must instruct the jury fully and

correctly on the applicable law.6 Thus, that the district court

declined to give Scurlock's proposed instruction that the seaman's

duty is one of ordinary or due care, in favor of the slight care

instruction, was not error.7

6
The contributory negligence instructions given by the
district court conform to the Fifth Circuit Pattern Jury
Instructions on this issue. See Pattern Jury Instructions, Civil
Cases, U.S. Fifth Circuit District Judges Association No. 4.7
(West 1995).
7
In its brief and at oral argument, Scurlock urged this
court to abandon the slight care standard in Jones Act cases,
contending that the standard has evolved from this court's blind
adherence to an incorrect statement of the law. In support of
its position, Scurlock cites an article by the admiralty scholar,
Professor Robert Force of Tulane Law School, Allocation of Risk
and Standard of Care Under the Jones Act: "Slight Negligence,'

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B. Judgment as a matter of law

1. Lost future wages

Scurlock argues the district court erred in denying its motion

for judgment as a matter of law on Gautreaux's claim for lost

future wages, because Gautreaux failed to introduce any expert

testimony or other vocational disability evidence demonstrating

that he suffered diminished future earning capacity beyond the two

years medical experts testified it would take him to adjust to

monoscopic vision. Instead, the only evidence of disability was

Gautreaux's own testimony that he did not feel comfortable

returning to his pre-injury employment. Scurlock contends the

record is, therefore, devoid of competent evidence supporting a

claim for lost future wages for any period beyond the two-year

period of adjustment.

Judgment as a matter of law in a Jones Act case is

appropriate only when there is a complete absence of probative

facts supporting the nonmovant's position. See, e.g., Hughes v.

International Diving & Consulting Servs., Inc., 68 F.3d 90, 93 (5th

Cir.1995). As this standard is highly favorable to the plaintiff,

"Slight Care"?, 25 J.Mar.L. & Com. 1 (1994), and the recent
opinion of the Third Circuit Court of Appeals in Fashauer v. New
Jersey Transit Rail Operations, Inc., 57 F.3d 1269 (3d Cir.1995).
While we recognize the fine work of Professor Force and the
astute observations of our sister circuit, settled law of this
Circuit, such as the slight care standard in a Jones Act case,
can only be changed, absent action by the United States Supreme
Court, by this court sitting en banc. See, e.g., FDIC v. Dawson,
4 F.3d 1303, 1307 (5th Cir.1993), cert. denied, --- U.S. ----,
114 S.Ct. 2673, 129 L.Ed.2d 809 (1994); Burlington Northern R.R.
v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89
(5th Cir.1992), cert. denied, 506 U.S. 1071, 113 S.Ct. 1028, 122
L.Ed.2d 173 (1993).

9
we must validate the jury verdict if at all possible. Id. As

there was more than adequate evidence upon which to submit to the

jury the question of Gautreaux's lost future wages, validation of

the verdict in this case is appropriate.

Dr. J. Bruce Steigner, the ophthalmologist who surgically

removed Gautreaux's crushed right eye and monitored his recovery

from the injury, testified that Gautreaux's loss of one eye equated

to a 50% disability of his visual system and a 25% disability of

his total anatomy according to guidelines of the American Medical

Association. Dr. Steigner further stated that loss of an eye

greatly impairs one's depth perception and peripheral vision,

impairments which he believed would make piloting a tug difficult.

Scurlock's psychiatric expert testified that Gautreaux suffered

from an adjustment disorder accompanied by depression, a condition

not uncommon following such an injury. He indicated that, while he

did not think Gautreaux was disabled by this condition, he did

believe Gautreaux harbored legitimate fears about his post-injury

condition and recommended that Gautreaux not put himself in

positions that could threaten the safety of his other eye.

Finally, expert economic testimony quantified Gautreaux's alleged

loss. This evidence, combined with Gautreaux's testimony that he

fears returning to his former position and losing his other eye,

that he has only a tenth grade education, and that he has been

trained on and worked on boats most of his work life, sufficiently

supports the district court's decision to submit the issue of lost

future wages to the jury.

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2. The Walker "primary duty" doctrine

Scurlock argues Gautreaux's claim is barred by the doctrine

enunciated in Walker v. Lykes Bros. S.S. Co., 193 F.2d 772 (2d

Cir.1952), such that it was entitled to judgment as a matter of law

on the issue of liability. Walker's holding has been construed to

mean that a seaman who breaches a duty owed his employer, which he

assumed by accepting employment, may not recover from his employer

if such breach is the sole cause of the seaman's injury. Peymann

v. Perini Corp., 507 F.2d 1318 (1st Cir.1974), cert. denied, 421

U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975). Accordingly,

Scurlock argues Gautreaux's recovery is barred because the master

or ship's officer is responsible for the safe operation of the

vessel. Gautreaux breached this duty because he forgot to release

the towing wires during unloading operations, thereby creating

excessive strain on the wires and causing the failure of the

electric towing winch, in response to which he negligently operated

the winch in such a manner as to cause himself injury.

Scurlock attempts to distinguish Kelley v. Sun Transp. Co.,

900 F.2d 1027 (7th Cir.1990), and Kendrick v. Illinois Cent. Gulf

R.R., 669 F.2d 341 (5th Cir.1982), both of which denounced Walker's

complete bar rule in favor of proportionate fault reduction, as not

embracing the scenario in which the captain creates the

unreasonably unsafe condition and then negligently proceeds to

encounter it, thereby injuring himself.

Our jurisprudence may lend some support to Scurlock's

contention that Gautreaux should be barred from recovery if his

11
negligent conduct alone caused his injury, and his employer was

completely free from fault. See, e.g., Kendrick, 669 F.2d at 344

("[The employee's] negligence would only reduce, not bar, recovery

unless the employer were not negligent at all and the employee's

negligence was the sole cause of his injury."); Boudreaux v. Sea

Drilling Corp., 427 F.2d 1160 (5th Cir.1970). Nonetheless, a Jones

Act employer is liable for even the slightest negligence, and the

seaman-plaintiff's burden of proving causation is "featherweight."

River Transp. Assocs. v. Wall, 5 F.3d 97, 100 n. 4 (5th Cir.1993);

Zapata Haynie Corp. v. Arthur, 980 F.2d 287, 289 (5th Cir.1992),

cert. denied, 509 U.S. 906, 113 S.Ct. 2999, 125 L.Ed.2d 692 (1993).

As indicated earlier, when confronted with the Jones Act

plaintiff's "featherweight" burden, judgment as a matter of law is

appropriate only when there is a complete absence of probative

facts supporting the nonmovant's position. Hughes, 68 F.3d at 93;

Bommarito v. Penrod Drilling Corp., 929 F.2d 186, 188 (5th

Cir.1991). Thus, because the record contains evidence that

Scurlock Marine was at least slightly negligent and that its

negligence contributed to Gautreaux's injuries, the district

court's refusal to take the question of liability from the jury was

proper.

C. Damages

Like other factual findings, we review a jury's finding of

damages for clear error. Myers v. Griffin-Alexander Drilling Co.,

910 F.2d 1252, 1255 (5th Cir.1990) (quoting Wood v. Diamond M

Drilling Co., 691 F.2d 1165, 1168 (5th Cir.1982), cert. denied, 460

12
U.S. 1069, 103 S.Ct. 1523, 75 L.Ed.2d 947 (1983)). If, however, "a

jury award is reviewed indirectly through the conduit of the trial

court's response to a motion for new trial on damages, it is the

propriety of the judge's action rather than the jury's decision

that is reviewed. Thus the abuse of discretion standard of review

applies." Stokes v. Georgia-Pacific Corp., 894 F.2d 764, 769 (5th

Cir.1990). See also Esposito v. Davis, 47 F.3d 164, 167 (5th

Cir.1995).

Scurlock attacks the jury's damages award on two fronts,

seeking reversal of the district court's denial of its motion for

new trial on these issues. Initially, Scurlock argues that, if it

was proper for the jury to decide the issue, the jury's verdict on

lost future wages was excessive in light of the lack of evidence as

to Gautreaux's future employability. Additionally, Scurlock

complains that the amount returned by the jury, $500,000, was

unsupported by the evidence, as Gautreaux's economist put the

figure at just over $400,000 and his counsel suggested $300,000 to

$325,000 was sufficient. Accordingly, because the jury's verdict

was in excess of that offered into evidence, it was based on

speculation and a new trial should have been granted. Finally,

Scurlock believes that the final award after the district court

granted a remittitur to $400,625, the economist's figure, is still

excessive, and that the granting of the remittitur was an admission

by the district court that the jury verdict was unfounded, such

that the award should have been reversed or further reduced.

Gautreaux defends the award on the grounds that he has only a

13
tenth grade education and his only job training is as a vessel

employee, that his fear of injuring himself or others is real

enough to justify his not returning to his previous employment,

that the medical experts testified he would have difficulty docking

vessels due to his monoscopic vision and loss of peripheral vision

and depth perception, that the award after remittitur equaled that

suggested by his economist, and that the jury reached its verdict

after viewing all the evidence. Having reviewed the record, we

cannot say that the district court abused its discretion in denying

Scurlock's new trial motion, especially considering it conditioned

its denial on Gautreaux's acceptance of a remittitur of almost

$100,000.

Second, Scurlock argues that the $300,000 award for pain and

suffering was also excessive, and that the entire award was driven

by improper comments by Gautreaux's counsel aimed at inciting the

passion and prejudice of the jury. Scurlock asserts that

Gautreaux's pain and suffering was brief and never excessive or

excruciating, as he received prompt medical care, had surgery on an

out-patient basis, never sought hospitalization for pain or

discomfort, and reached full medical cure in only four months.

Further, Scurlock contends the award was influenced by a groundless

question posed by Gautreaux's counsel to Archie Scurlock concerning

threats of "blackballing" Gautreaux if he proceeded with this

lawsuit—an accusation to which Scurlock claims it was not allowed

to respond.

In fact, Gautreaux has undergone three surgeries, had his

14
eyeball scooped out, is forced to wear a prosthetic eye which must

be removed for cleaning frequently, and must endure both functional

and cosmetic disabilities for the rest of his life. Also, while

recuperating from his second surgery, Gautreaux was placed on

extraordinarily strong medication to combat painful headaches and

other discomfort associated with his injury. Further, Gautreaux

suffers from moderate depression as a result of the loss of his

eye. Finally, the allegedly improper comments of Gautreaux's

counsel consist of a single question asked to Archie Scurlock about

whether he threatened to blackball Gautreaux. The matter rested

with Archie Scurlock's answer that he did not; no further inquiry

or argument on the matter followed.

Awards of pain and suffering are fact-specific and depend to

a great extent on the fact-finder's observation of the plaintiff

and its subjective determination of the amount needed to achieve

full compensation. Johnson, 845 F.2d at 1357. As such, the

district court is accorded great latitude in assessing damages.

Parks v. Dowell Div. of Dow Chemical Corp., 712 F.2d 154, 160 (5th

Cir.1983). Considering the record in this case, a jury award of

$300,000 for past and future pain and suffering does not seem

clearly erroneous, nor did the district court abuse its discretion

in denying Scurlock Marine a new trial. See Stokes, 894 F.2d at

769. Additionally, because the district court is in a better

position to evaluate the prejudice flowing from counsel's improper

comments during trial and to determine the most effective response

to ensure a fair trial, a new trial will not be granted, even if

15
counsel's remarks are improper, unless after considering the record

as a whole the court concludes that manifest injustice would result

from letting the verdict stand. Johnson v. Ford Motor Co., 988

F.2d 573, 582 (5th Cir.1993). Because Gautreaux's counsel asked

only a single question, to which Archie Scurlock responded in the

negative and about which no further comment was made, substantial

prejudice was not caused Scurlock and a new trial was not

necessary.

D. Limitation of liability

The district court denied Scurlock limitation, finding that

the evidence established that Scurlock, the vessel owner,

negligently failed to train Gautreaux in the proper operation of

the electric winch and that this failure in part caused Gautreaux's

injuries. Further, the district court indicated that Scurlock was

accountable for the actions of its managing officer and owner,

Archie Scurlock, who failed to properly train Gautreaux.

The liability of the owner of a vessel for any loss or injury

involving the vessel can be limited to the value of the vessel and

its freight, provided the loss occurred without the vessel owner's

"privity or knowledge." 46 U.S.C.App. § 183(a). The vessel owner

seeking limitation bears the burden of proving its lack of privity

or knowledge of the injury-causing conduct or condition. Cupit v.

McClanahan Contractors, Inc., 1 F.3d 346, 348 (5th Cir.1993), cert.

denied, --- U.S. ----, 114 S.Ct. 1058, 127 L.Ed.2d 378 (1994);

Verdin v. C & B Boat Co., 860 F.2d 150, 156 (5th Cir.1988). For

the purposes of limitation, a vessel owner's privity may arise if

16
it personally participates in the negligent conduct that produces

the injury, Pennzoil Producing Co. v. Offshore Express, Inc., 943

F.2d 1465, 1473 (5th Cir.1991), and a corporate vessel owner is

charged with the privity or knowledge of its managing officers

whose scope of authority includes supervision of that part of the

business out of which the loss occurred, Brunet v. United Gas

Pipeline Co., 15 F.3d 500, 504 (5th Cir.1994); Cupit, 1 F.3d at

348; Patton-Tully Transp. Co. v. Ratliff (In re Complaint of

Patton-Tully Transp. Co.), 797 F.2d 206, 211 (5th Cir.1986). "In

the limitation of liability context, the district court's findings

about negligence, unseaworthiness, privity, and knowledge are

considered on appeal to be factual findings subject to review under

the clearly erroneous standard." Self v. Great Lakes Dredge & Dock

Co., 832 F.2d 1540, 1557 (11th Cir.1987), cert. denied, 486 U.S.

1033, 108 S.Ct. 2017, 100 L.Ed.2d 604 (1988). See also Farrell

Lines Inc. v. Jones, 530 F.2d 7 (5th Cir.1976). The district court

did not err in finding that Scurlock was not entitled to limit its

liability.

III. CONCLUSION

Based on the foregoing discussion, the district court's

judgment is, in all aspects, AFFIRMED.

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