Richards v. Skipper & Wayne, Inc ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CLINTON M. RICHARDS,
Plaintiff-Appellant,
v.
SKIPPER & WAYNE, INCORPORATED;
F/V SKIPPER & WAYNE, IN REM,
No. 95-2082
Defendants-Appellees,
and
C. A. MAGWOOD & SONS,
INCORPORATED; C. A. MAGWOOD, JR.,
Defendants.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-94-262-18-2)
Submitted: April 9, 1996
Decided: April 23, 1996
Before WIDENER and WILKINS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
E. Paul Gibson, RIESEN LAW OFFICES, Charleston, South Caro-
lina, for Appellant. Edward K. Pritchard, III, SINKLER & BOYD,
Charleston, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Clinton M. Richards filed this admiralty action for maintenance
and cure, alleging that he was injured while working aboard the F/V
SKIPPER & WAYNE. After a trial to the district court, sitting with-
out a jury, the court found that Richards had not carried his burden
of proof and dismissed the claim. Richards appeals.
I.
The F/V SKIPPER AND WAYNE is a sixty-five-foot, ocean-going
vessel primarily used for shrimping. Skipper & Wayne, Inc., is a
South Carolina corporation whose sole asset is the F/V SKIPPER &
WAYNE. On the morning of November 29, 1993, Richards
approached C. A. Magwood, Jr., president and sole shareholder of
Skipper & Wayne, Inc., and asked if the vessel needed any crewmen
for the day. Magwood stated that Richards could work that day on a
trial basis; Richards accepted. The crew consisted of Magwood, Rich-
ards, and Kenneth Goodson, who had often worked with Magwood.
Magwood asked Goodson to keep an eye on Richards.
Richards testified that he fell after the last haul of the day, slipping
on some "fish slime" while he was alone cleaning the deck. Richards
asserted that rough seas contributed to his fall. He testified that he got
up and continued working; that pain began later in the day and
became unbearable that night. Richards performed his duties all day.
Many of these duties required physical strength and others required
Richards to reach above his head. When the F/V SKIPPER &
WAYNE returned to port about 3:30 p.m., Richards helped pull in the
outriggers, which required him to reach over his head and exert physi-
cal strength. Richards never complained of pain or told Magwood or
Goodson that he had fallen and was injured. Neither Magwood nor
Goodson saw Richards fall, although he was in their sight for most
2
of the day. On leaving the vessel, Richards asked Magwood what
time he would leave the next day, and Magwood told him to be at the
dock at 4:00 a.m. Richards did not show up at the appointed time.
Richards went to the emergency room on the morning of December
1, 1993, two days after his work on the F/V SKIPPER & WAYNE.
He was referred to an orthopedic surgeon. Appellees do not dispute
that Richards suffered a herniated disc for which he underwent sur-
gery.
Magwood testified that there was virtually no wind on November
29, 1993, particularly in the middle of the day. He stated that the
ocean was calm and that the vessel was rolling very little. He intro-
duced a copy of the weather log maintained at the Charleston Airport
which supported his testimony. Richards introduced a copy of the
weather forecast map from the Charleston newspaper in support of his
claim. But the map did not contradict Magwood's evidence.
II.
The district court ruled that Richards failed to support his burden
of proof that he was in the service or employ of the SKIPPER &
WAYNE or aboard the vessel at the time he suffered the injury. The
court found several credibility problems with Richards' testimony
which led him to discredit it, including the objective weather informa-
tion and Richards' behavior following the alleged injury. Richards
argues on appeal that the district court applied the wrong standard and
burden of proof in assessing the evidence. We conclude that the dis-
trict court made no such error.
Maintenance and cure provides a seaman who becomes ill or
injured in the service of his ship lodging, board, and medical expenses
until he reaches maximum recovery. Williams v. Kingston Shipping
Co., 925 F.2d 721, 723 (4th Cir. 1991). In this case, the district court
found as a fact that Richards' injury did not occur while in the service
of the F/V SKIPPER & WAYNE. We review the district court's fac-
tual findings to determine whether they are clearly erroneous. Jiminez
v. Mary Washington College, 57 F.3d 369, 378 (4th Cir.), cert.
denied, ___ U.S. ___, 64 U.S.L.W. 3311 (U.S. Oct. 30, 1995) (No.
95-396).
3
Our review of the record convinces us that the district court's find-
ings of fact are not clearly erroneous. The district court detailed the
inconsistencies within Richards' testimony and the conflicting objec-
tive facts which caused the court to reach its decision. Therefore,
Richards failed to prove an element of his claim and the district court
correctly dismissed it. We affirm the judgment against Richards. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
4