Case: 16-31072      Document: 00514524548         Page: 1     Date Filed: 06/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                      No. 16-31072
                                                                                 Fifth Circuit

                                                                               FILED
                                                                           June 22, 2018

JUSTIN SHAWLER,                                                           Lyle W. Cayce
                                                                               Clerk
              Plaintiff - Appellant

v.

BIG VALLEY, L.L.C.,

              Defendant - Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-2599


Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.
PER CURIAM:*
       Justin Shawler appeals the district court’s final judgment dismissing his
maritime negligence claim against Big Valley, L.L.C., following an adverse jury
verdict.    More specifically, he challenges a pretrial order that he claims
precluded him from presenting his negligence per se claim to the jury. For the
reasons explained below, we AFFIRM.
       Shawler was injured aboard Big Valley’s boat—the Big Valley (the
“BV”)—during       a   fishing    trip   in   which     everyone     aboard,         including



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 16-31072
crewmembers, had consumed alcohol. Big Valley was created to own and
operate the BV for business development and customer appreciation outings
for the various subsidiaries of Big Valley’s parent company, Ergon, Inc.
Shawler had been invited aboard the BV as part of a customer-appreciation
effort by Big Valley’s sister company, Ergon Asphalt & Emulsions, Inc.
(“Ergon”). On this particular trip, Ergon reimbursed Big Valley for the BV’s
operational expenses, including reimbursing Big Valley for the crew’s wages
(the “reimbursement payment”) but there is no indication of any payment
above such expenses.
      Shawler filed suit against Big Valley for negligence and negligence per
se. 1 The negligence per se claim was based on Coast Guard safety regulations
that bar alcohol consumption by crewmembers on “inspected” vessels. See 33
C.F.R. § 95.045. In response to the district court’s order for supplemental
briefing on the BV’s classification, Shawler suggested that the BV was
operating as a small passenger vessel, which is a type of inspected vessel. See
46 U.S.C. § 3301(8). The district court disagreed and concluded that the BV
was operating as an “uninspected vessel,” rendering the Coast Guard
regulations barring alcohol consumption inapplicable.             See 46 U.S.C.
§ 2101(43). Shawler asserts that this ruling precluded Shawler from litigating
his negligence per se claim.      Shawler proceeded to litigate his remaining
negligence claim; the evidence supported a conclusion that the alcohol
consumed by the relevant crewmembers did not impact their conduct, and the
jury returned a verdict finding that Big Valley was not negligent. The district
court entered judgment dismissing Shawler’s claims with prejudice, and
Shawler appealed.



      1 Shawler’s original complaint listed Ergon as a defendant. However, Ergon was
subsequently dismissed from the suit, leaving Big Valley as the sole defendant.
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                                      No. 16-31072
       On appeal, Shawler persists in his contention that the BV was operating
as a small passenger vessel during the fishing trip, and thus he should have
been permitted to pursue his negligence per se claim. The definition of “small
passenger vessel” is found in 46 U.S.C. § 2101(35). Shawler argues that the
BV was a small passenger vessel under subsections (35)(A) and (35)(B).
However, only subsection 35(A) is properly before us because Shawler did not
argue subsection 35(B) below. 2 See Webb v. Investacorp, Inc., 89 F.3d 252, 257
n.2 (5th Cir. 1996) (per curiam).
       As pertinent here, subsection 35(A) defines small passenger vessel as “a
vessel of less than 100 gross tons . . . carrying more than 6 passengers,
including at least one passenger for hire.” § 2101(35)(A). The only dispute is
whether any of the BV’s passengers qualified as a “passenger for hire.” The
term “passenger for hire” is defined, in relevant part, as “a passenger for whom
consideration is contributed as a condition of carriage on the vessel.” 46 U.S.C.
§ 2101(21a).      Shawler focuses on whether the reimbursement payment
qualified as “consideration.”         The statute defines “consideration” as “an
economic benefit, inducement, right, or profit including pecuniary payment
accruing to an individual, person, or entity, but not including a voluntary
sharing of the actual expenses of the voyage, by monetary contribution or
donation of fuel, food, beverage, or other supplies.” 46 U.S.C. § 2101(5a).
       Shawler argued below that the reimbursement payment qualified as
consideration because it was “an economic benefit” and a “pecuniary payment.”
Big Valley responded that the reimbursement payment fell within the scope of
§ 2101(5a)’s exclusionary clause. This clause stipulates that consideration does


       2 The district court stated that “[n]o party argues—nor could they—that subsection
(C), (B), (D), or (E) applies to the facts of this case.” Although the district court briefly
elaborated on subsection 35(B)’s applicability in a footnote, this was dicta and thus
immaterial to its determination that only subsection (A) was in dispute. See Schlesinger v.
Herzog, 2 F.3d 135, 142 (5th Cir. 1993).
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not include “a voluntary sharing of the actual expenses of the voyage, by
monetary contribution or donation of fuel, food, beverage, or other supplies.”
§ 2101(5a). Shawler did not take issue with this point in the district court,
mentioning the exclusionary clause only in passing when directly quoting
§ 2101(5a). The district court sided with Big Valley on this issue.
       On appeal, Shawler primarily reurges the same argument he made
before the district court. He adds only one argument about the exclusionary
clause, arguing that it does not apply to the reimbursement payment because
the term “expenses of the voyage” is limited to expenses for “fuel, food,
beverage, or other supplies.” We disagree. Given the clause’s use of the
disjunction “or,” the expenses of the voyage may take the form of either a
monetary contribution towards any expenses of the voyage (including wages)
or a donation of fuel, food, beverage, or other supplies.                  Because this is
Shawler’s only argument challenging the district court’s application of the
exclusionary clause, we leave for another day and for another case the question
of whether other arguments involving other language in the clause can be
made under similar circumstances that would result in a different outcome. 3
See Rainbow Gun Club, Inc. v. Denbury Onshore, L.L.C., 760 F.3d 405, 409 n.2
(5th Cir. 2014) (deeming unraised arguments about the application of a
statutory exclusion clause waived); Askanase v. Fatjo, 130 F.3d 657, 668 (5th
Cir. 1997) (“All issues not briefed are waived.”).
       AFFIRMED.



       3 Shawler can prevail only by convincing us that the exclusionary clause does not
apply. During oral argument, his counsel told us that the exclusionary clause’s applicability
turns on his interpretation of “expenses.” If we agree with his interpretation, the clause does
not apply, and vice versa. We disagree with his interpretation. Based on counsel’s all-or-
nothing framing, the exclusionary clause applies. We thus see no reason to interpret the
remainder of § 2101(5a), including whether Ergon’s relevant payments were a “voluntary
sharing” of the voyage’s actual expenses.
                                              4