Garcia v. American Marine Corporation, 29640 Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 432 F.2d 6
• Parties: Clarence GARCIA, Plaintiff-Appellant, v. AMERICAN MARINE CORPORATION and Tidex, Inc., Defendants-Appellees.
• Docket Number: No. 29640 Summary Calendar.,29640 Summary Calendar.
• Decision Date: 29 September 1970

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.

432 F.2d 7

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

432 F.2d 8

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...