Garcia v. American Marine Corporation

• Decision Date: 29 September 1970
• Docket Number: No. 29640 Summary Calendar.,29640 Summary Calendar.
• Parties: Clarence GARCIA, Plaintiff-Appellant, v. AMERICAN MARINE CORPORATION and Tidex, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

432 F.2d 6 (1970)

Clarence GARCIA, Plaintiff-Appellant, v. AMERICAN MARINE CORPORATION and Tidex, Inc., Defendants-Appellees.

No. 29640 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 29, 1970.

Roy F. Amedee, Jr., New Orleans, La., for plaintiff-appellant.

David R. Normann, Normann & Normann, New Orleans, La., for Tidex, Inc.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

In this personal injury action based upon alleged negligence and unseaworthiness, plaintiff-appellant Clarence Garcia appeals from an order granting summary judgment in favor of defendants-appellees, American Marine Corporation (herein after AMC) and Tidex, Inc. He contests the determination of the court below that there was no material issue of fact as to the status of the M/V WARRIE TIDE.¹ We affirm.

The essential facts are these: appellant Garcia was employed by appellee AMC as a shipyard worker and was engaged in the construction of the M/V WARRIE TIDE for appellee Tidex. In the course of his work on the WARRIE TIDE, appellant claimed that he suffered acoustic trauma resulting in partial loss of hearing. After due consideration the court granted appellees' motion for summary judgment dismissing appellant's cause of action. At the hearing appellees submitted a thorough brief supported by three affidavits. Counsel for appellant submitted no controverting affidavits, and the record reveals no answering brief.

Appellees' uncontroverted affidavits clearly show that a master carpenter's certificate was not issued until more than three weeks after the date of the alleged injury;² and that at the time of the alleged injury the vessel was by no means completed.³ Appellees' motion for summary judgment was based on the grounds that on the date of the accident the WARRIE TIDE was neither a "vessel" nor a completed ship in that it had no means of self-propulsion or navigation and was still under construction. These facts are undisputed in the record. The action by the trial court granting the motion for summary judgment was entirely correct.⁴ To controvert a proper motion for summary judgment, a party may not rest upon allegations and denials in his pleadings; he must set forth specific facts showing a genuine issue for trial.⁵ Garcia did not do so and therefore may not complain on appeal of the trial court's action.⁶

Counsel for appellant attempts to rectify his manifest failure to controvert the facts at the proper time by affixing to his brief⁷ a "supplemental and amending affidavit" executed by Garcia, and stating that, "to the best of his knowledge the engines, propellers, and shafts were installed on this boat and it was capable of moving under its own power and as a matter of fact it was taken to the Yacht harbor for final inspection just a day or two after he was injured." It is fundamental that facts not presented at trial may not be asserted on appeal. Any action on appeal can be properly based only on matters considered at trial; this court may not therefore, reverse a trial court on the basis of facts not in the record.⁸ Garcia's belated submission of an affidavit is nothing more than an improper attempt to have this court consider matters dehors the record.⁹

Affirmed.

*

1 Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I.

1 Appellant's sole specification of error is as follows:

The Court erred in decreeing that there was no genuine issue and no question of fact as to whether or not the M/V WARRIE TIDE was a vessel in navigation.

2 Affidavit of Leslie B. Durant, President of AMC. A master carpenter's certificate is a prerequisite to the enrollment and registry of a vessel; it is executed only upon completion of a vessel.

3 We quote from the affidavit of William P. Trammel, Chief Estimator of AMC:

On January 12, 1968 the date of injury, the M/V WARRIE TIDE * * was not a completed vessel, had no crew, was not capable of self-locomotion, and could not have sailed. The engines on the WARRIE TIDE were installed but were not connected and could not have been activated. No crew was aboard or assigned to her. Installation of piping, electric cables, and wiring for power had not been completed and substantial work was required before the WARRIE TIDE could be inspected and enrolled. * * * On January 12, 1968, work in progress on the WARRIE TIDE included: Installation of engine room floor supports, engine control lines, rudder angle indicator, and pumps, alignment of the main engine; installation and work on pipe hangers, ballast piping, air piping and engine cooling and lube oil piping; installation and work on electric cable hangers, electric cables and wiring for power; welding of steering, steering gear sheaves, mud piping, ballast piping, air tanks, tank vents, and bilge piping; work on engine expansion...