[29ASR2d80]
v.
VOYAGER INC., CAPTAIN FRANK
GARGAS, IN PERSONAM, DOES I-V AND THE M/V VOYAGER, HER ENGINES, BOILERS, NETS
AND FISH CARGO IN REM, Defendants
High Court of
Trial Division
CA No. 4-92
[1]
In addition to the power to exercise jurisdiction over the general
maritime claims of unseaworthiness and maintenance and cure, the High Court of
American Samoa can exercise jurisdiction over a plaintiff’s Jones Act claim.
[2]
Under general maritime law, an owner or operator of a vessel has an
absolute duty to ensure that the vessel is seaworthy. This is a no-fault duty, and no showing of
negligence or knowledge is required.
[3]
A seaworthy vessel is one that is reasonably fit and suitable for its
intended use.
[4] To prevail on a claim for unseaworthiness, a
plaintiff must show both unseaworthiness and proximate causation.
[5]
The condition of seaworthiness is a relative one. A ship can be unseaworthy as to only one seaman. A condition of unseaworthiness can arise once
the ship has set out to sea or from a transitory condition.
[6] The factfinder determines the question of
seaworthiness.
[7]
Where a plaintiff pleads both Jones Act negligence and unseaworthiness,
a showing of negligence also establishes unseaworthiness.
[8]
To prove that an injury was proximately caused by the unseaworthy
condition, the unseaworthy condition must have played a substantial part in
bringing about or actually causing the injury, and the injury must be either a
direct result or a reasonably probable consequence of the unseaworthy
condition.
[9]
There are two elements which a plaintiff must prove in a Jones Act
negligence claim: (1) that there was a
negligent act by the defendant, and (2) that there is a but-for causal
connection between the act and the injury.
[10]
The Jones Act is to be
liberally construed in favor of plaintiffs.
The "slight negligence" necessary to support an action under
FELA or the Jones Act is defined as a failure to exercise great care, and that
burden of proof is much less than the burden required to sustain recovery
[29ASR2d82] in ordinary negligence actions.
Evidence of even slight negligence is sufficient to find liability under
the Jones Act.
[11] The plaintiff’s burden to prove the but-for
causation element of a Jones Act negligence claim is minimal. If the employer's negligent act or omission
played any part, however slight, in bringing about the injury, the employer is
liable.
[12]
A plaintiff, injured from disentangling a net from a vessel’s
propeller, establishes but-for causation, in that but-for the negligent
entanglement of the net in the vessel's propeller, and the plaintiff’s cutting
of the net away, the plaintiff would not have received his injuries.
[13]
The assumption of risk defense is not a defense to either an
unseaworthiness claim or a Jones Act claim.
[14]
The doctrine that a defendant takes the plaintiff as he finds him
applies to Jones Act claims.
[15]
Lost future wages, also called impaired earning capacity, are
determined by considering what the plaintiff's income would probably have been,
how long it would have lasted, and all the contingencies to which it was
liable. To ascertain the amount of lost
future wages to be awarded, the court must take four steps: (1) determine
whether the worker’s earning capacity has been diminished; (2) determine the
duration of the loss; (3) determine the value of the worker’s loss over this
period; and (4) consider reducing the award to present value.
[16]
A defendant has the burden of production and proof on the issue of
reducing a plaintiff’s award for lost future wages, or impaired earning.
[17]
Pre-judgment interest is not allowed on either Jones Act or
unseaworthiness claims. However,
post-judgment interest under the Jones Act is allowed from the date of a
court's final decree. Interest may also
be awarded in general maritime cases at the court's discretion.
[18]
Under general maritime law, a shipowner has an obligation to care
for a seaman injured during the course of maritime employment. The obligation includes payment for any
injury or illness, which manifests itself during employment, regardless of the
source of the injury or whether it preexisted the journey.
[19]
To be eligible to claim maintenance and cure against a shipowner, a
seaman must be "in the service of his ship" at the time of the
injury. [29ASR2d83]
[20]
Under maintenance and cure a seaman is entitled to receive food and
lodging of a kind and quality received aboard ship, as well as necessary
medical services to the point of maximum cure.
[21]
The point of maximum cure is reached on the date that a seaman's
physician determines that further treatment is unlikely to result in the betterment
of the seaman's condition. This can
include a determination that the incapacity is permanent. Doubts are to be resolved in the seaman's
favor.
[22]
The court has discretion whether to award interest on unpaid
maintenance and cure.
[23]
In a normal case of unpaid maintenance and cure, pre-judgment interest
is payable from the date the payment was initially due the plaintiff.
[24]
Attorney's fees are allowed for a bad-faith refusal to pay
maintenance and cure.
[25]
A claim of unseaworthiness lies against a vessel's owner. A Jones Act negligence claim, on the other
hand, lies against a seaman's employer.
A seaman’s employer is vicariously liable for the negligence of the
vessel's captain and any other employee.
[26]
A Jones Act claim cannot be maintained in rem.
Before
Counsel: For Plaintiff, Roy J.D. Hall, Jr.
For Defendants, William H.
Reardon
Opinion
and Order:
I. INTRODUCTION
This action is brought under the Jones
Act, 46 U.S.C. App. § 688, and general maritime law to recover for
injuries sustained by plaintiff Everett Clifton ("Clifton") during
his tenure on the defendant M/V Voyager ("the vessel") in
1991. The trial began on
II. FACTS[29ASR2d84]
During the last week of July 1991,
About two weeks after the vessel had
begun its journey, its fishing net became entangled around its propeller. Either the captain or his son, Steven Gargas
("the navigator"), was piloting the vessel, while the other was
spotting for fish in the vessel's helicopter.2 The vessel routinely deployed its net by
having a skiff pull the net while the vessel circled about. When the vessel reversed its engines, the net
contacted the propeller and became severely entangled about and fused to
it.
Because
of his experience as a diver,
The work fatigued the men and they felt
beat up. Most of their pain went away in
a matter of days, except for pain which
Upon arriving back in
All doctors who examined
Although
the release surgery was effective in reducing
III. JURISDICTION
A.
Sua Sponte Consideration of Subject Matter Jurisdiction
Neither party has raised an issue with
regard to jurisdiction. However,
T.C.R.C.P. 12(h)(3) mandates that "[w]henever it appears by suggestion of
the parties or otherwise that the court lacks jurisdiction of the
subject matter, the court shall dismiss the action." (emphasis
added). This rule, like the rest of our
rules of civil procedure, parallels the federal rule. Compare T.C.R.C.P. 12(h)(3) with
F.R.C.P. 12(h)(3). Under the Federal
Rules, the court, whether trial or appellate, is obliged to notice want of
subject matter jurisdiction upon its own motion. Sumner v. Mata, 449
Rule 12(h)(3) is important in the
federal context because federal courts are courts of limited jurisdiction. The High Court, on the other hand, is a court
of general jurisdiction, see A.S.C.A. § 30208(a) (1992), and Rule
12(h)(3) plays a less significant role.
Nevertheless, there are areas of jurisdiction which are denied this
court by federal statute. See, e.g.,
Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64, 69-70 (1987)
(finding that the High Court lacks jurisdiction to enforce Ship Mortgage
Act). Our civil practice must conform as
closely as practicable to the practice provided for in the Federal Rules. A.S.C.A. § 43.0201 (1992). Therefore, we must, as the federal courts
must, raise sua sponte the question of subject matter jurisdiction where
it may result in dismissal of all or part of a suit.
B.
Maritime Jurisdiction
This court has general maritime
jurisdiction under A.S.C.A. § 30208(a)(3).
Gray, 6 A.S.R.2d at 70.
This includes both in rem and in personam jurisdiction in
matters of maritime common law. A.S.C.A.
§ 30208(a)(3) (1992); Gray, 6 A.S.R.2d at 70; In re Complaint of
Interocean Ships, 2 A.S.R.2d 76, 80 (1985).
This jurisdiction, however, does not
automatically extend to all federally created causes of action. For instance, in Gray, we held that
"vessel owners cannot take advantage of the Ship Mortgage Act
here." Gray, 6 A.S.R.2d at
69. The Ship Mortgage Act granted
subject matter jurisdiction "to the district courts of the
The Jones Act, in contrast, does not
grant exclusive jurisdiction to the district courts. It provides only that "[j]urisdiction in
such actions shall be under the court of the district in which the defendant
employer resides or in which his principal office is located." 46 U.S.C.S. § 688(a) (Law. [29ASR2d87]
Co-op 1987). Although § 688 reads
in terms of jurisdiction, it is really a venue statute. See Pure Oil Co. v. Suarez, 384 U.S.
202 (1966); Penrod Drilling Co. v. Johnson, 414 F.2d 1217 (5th Cir.), cert.
denied, 396
In addition, the United States Congress
has recently condoned the High Court's jurisdiction over maritime matters. For instance, in repealing and replacing the
Ship Mortgage Act, the very statute under which this court held it had no
jurisdiction in Gray, Congress defined the courts having original
jurisdiction to include this court. See
46 U.S.C.S. §§ 31301, 31304 (Law. Co-op 1987 & Supp. 1994).
[1]
We hold, therefore, that in addition to the power to exercise
jurisdiction over the general maritime claims of unseaworthiness and
maintenance and cure, this court can exercise jurisdiction over
IV. DISCUSSION
A.
Unseaworthiness
[2-4]
[5]
The condition of seaworthiness is a relative one. "Unseaworthiness, in personal injury
matters, does not necessarily mean that the defective condition be of such a
quality as to render the entire vessel unfit for the purpose for which it was
intended." 2 Martin J. Norris, The Law of Seamen
§ 27:2 (4th ed. 1985) [hereinafter Norris,
Seamen] . A ship can be
unseaworthy as to only one seaman.
[6-7]
The factfinder determines the question of seaworthiness. See Nelsen, 805 F. Supp. at
850. Where a plaintiff pleads both Jones
Act negligence and unseaworthiness, a showing of negligence also establishes
unseaworthiness. Lee v. Pacific
We have no doubt that a vessel with a
disabled motor and no other means of propulsion is unseaworthy. This is particularly true when a vessel's
disability arises from its own fishing net becoming entangled about and fused
to its propeller. Defendants' own expert
referred to a vessel in such condition as "dead in the water." Thus, we find, as a matter of fact, that the
vessel was unseaworthy during the entire time
[8]
Defendants have offered no evidence to
counter the doctors, other than an unsupported assertion in their brief that
"[i]t is well-established in the medical field that carpal tunnel syndrome
cannot result from work lasting only a few hours." Def.'s Trial Br. at 9. The testimony by
Thus,
B.
The Jones Act
[9]
There are two elements which a plaintiff must prove in a Jones Act
negligence claim: (1) that there was a
negligent act by the defendant, and (2) that there is a but-for causal
connection between the act and the injury.
See 2 Norris, Seamen
§ 30:34.
We are unable to understand how a
fishing net becomes severely entangled around a vessel's propeller in the
absence of negligence. Defendants tell
us in their trial brief that "[i]t is not unusual for the net on a purse
seiner to become caught in such a manner."
Def.'s Trial Br. at 2. Yet the
captain testified that in his nearly 50-year career, a net had only become
entangled four or five times. This
hardly seems common to us.
[10]
Additionally, the Jones Act is to be liberally construed in favor
of plaintiffs. Arizona v. Anelich,
298
As we stated above, we find it
impossible to understand how a fishing net becomes entangled around a vessel's
propeller in the absence of negligence.
Defendants have given us no evidence which persuades us otherwise. This case approaches one of res ipsa
loquitur. Defendants exercised
exclusive control over the placement of the nets and the piloting of the
ship. If the currents were too strong or
other factors weighed against deploying the net, the captain should have waited
until a later time. We find that the net
became entangled in the propeller due to the captain's negligence.4
[11]
[12]
Given this "feather-weight" burden, see Yelverston
v. Mobile Laboratories, Inc., 782 F.2d 555 (5th Cir. 1986),
Thus, we hold that
C.
Affirmative Defenses to Unseaworthiness and Jones Act Claims
Defendants have presented a number of
affirmative defenses to the unseaworthiness and Jones Act claims. We deal with each in turn.
1.
The Primary Duty Rule
Defendants have asserted the primary
duty doctrine as a contributory negligence defense, claiming that it bars
Defendants rely upon Reinhart v.
United States, 457 F.2d 151 (9th Cir. 1972), and Bernard v. Maersk
Lines, Ltd., 22 F.2d 903 (9th Cir. 1994).
These cases are apposite to defendants' case, however. In Reinhart, the court held that the
injured seaman was contributorily negligent for the injuries he received from
defective equipment that he knew about and had an affirmative duty and
opportunity to repair. The court also
held, however, that where there is no proof that the libelant had assumed a
duty and responsibility to maintain and repair, there is no contributory
negligence. Reinhart, 457 F.2d at
155, citing Hudson Waterways Corp. v. Schneider, 365 F.2d 1012,
1016 (9th Cir. 1966); Nelsen, 805 F. Supp. at 851.
The more recent Bernard case
limits the doctrine even further, a course most courts have recently
followed. See 1B Ellen M. Flynn et al., Benedict on
Admiralty § 25, at 3-114 n.28 (7th ed. 1993) and cases cited. The Bernard court clearly stated the
limiting principles of the primary duty rule:
From these
cases, three limiting principles can be discerned. First the "primary duty" rule will
not bar a claim of injury arising from the breach of a duty that the plaintiff
did not consciously assume as a term of his employment. Second, the rule does not apply where a
seaman is injured by a dangerous condition that he did not create and, in the
proper exercise of his employment duties, could not have controlled or
eliminated. Third, the rule applies only
to a knowing [29ASR2d92] violation of a duty consciously assumed as a term of
employment.
Bernard, 22 F.2d at
907. The argument that
First, defendants presented no evidence
that
This theory offers defendants absolutely
no respite.
2.
Assumption of Risk
[13]
Defendants spend a great deal of their brief informing the court
of "certain inevitable hazards" of being a fisherman, which are to be
borne solely by the fisherman. See,
e.g., Def.'s Trial Br. at 6. The
most we can make of this argument is that defendants apparently believe they
have an assumption of risk defense. It
is well settled, however, that assumption of risk is not a defense to either an
unseaworthiness claim or a Jones Act claim.
See 2 Norris, Seamen §§ 27:12,
30:33. We see no need to further
elaborate on this settled rule.
3.
"Warranty Of Being Fit For The Voyage And Of Being Of
Defendants next assert that
"[p]laintiff breached the warranty owed by a seaman that he was fit to
work aboard the [vessel] on the particular voyage in question and that he had
the normal agility and coordination of a seaman to do the ship's
work." Def.'s Trial Br. at 7. In making this argument, defendants have
manufactured law in their favor.5
Defendants cite Gibson v.
International Freighting Corp. for the proposition that "[a] seaman
owes a warranty . . . that he is fit for work [29ASR2d93] upon a
vessel." Def.'s Trial Br. at
7. Defense counsel, however, cites us to
no portion of the case which stands for this proposition. Having carefully read the case numerous
times, we can find none. Nor do we know
of any other case which stands for this proposition.
Defendants also appear to be under a
mistaken assumption that
Thus,
defendants' contentions regarding
4.
Preexisting Condition or Injury
Defendants have also contended that
[14]
Second, even if they had, every first-year law student knows that
when a defendant's wrongful act causes a plaintiff to suffer injury, the
[29ASR2d94] defendant is fully liable for the injury, even though the plaintiff
had a preexisting condition making him more susceptible to injury or making his
injury more severe. See, e.g., Jordan
v. Atchison, Topeka & Santa Fe Ry. Co., 934 F.2d 225, 229 (9th Cir.
1991); Maurer v. United States, 668 F.2d 98, 99-100 (2d Cir. 1981). In other words, a defendant takes the
plaintiff as he finds him.
Because seaworthiness is a no-fault
obligation placed upon a ship's owner, we see no reason why a plaintiff's
preexisting condition would excuse the shipowner from that obligation. The fact that
D.
Damages Under the Jones Act and Unseaworthiness Claims
We have had great difficulty working
with the numbers presented us.
1.
Lost Future Wages
[15]
Neither party has briefed the court on the specific issue of loss
of future wages, yet we must resolve it.
Lost future wages, also called impaired earning capacity, are determined
by considering "what the plaintiff's income would probably have been, how
long it would have lasted, and all the contingencies to which it was
liable." 22 Am. Jur. 2d Damages § 157 (1988). To ascertain the amount to be awarded, we
must take four steps: (1) determine whether
a.
Diminution of earning capacity
b.
Duration of Loss
c.
Value of Loss
Although
Calculating total earnings from these
numbers, we achieve the following:
Fisherman: $4/ton x 5,000 tons/year x 10 years =
$200,000
Assistant
Engineer: $11/ton x 5,000 tons/year x 29
years = $1,595,000
Thus, at the time of
This amount is not
In 1992, the year after Clifton suffered
his injury, people working in the shipping industry earned higher wages than
all other employment sectors, except a few "skilled" sectors.10
See American Samoa Statistical Digest[29ASR2d97] 1992, at
142 (1992 Economic Development Planning Office). In 1992, the average hourly income for
shipping was $4.22. Id. The average income for other
"nonskilled" sectors was $3.44.
Id. In other words, those
working in the shipping industry were making almost 20% more than those working
in other unskilled sectors.
Clifton's earning capacity has been
diminished not only by his forced change in employment sector, but also by the
injuries which limit the positions he can assume in each sector. For instance, after the shipping industry,
the highest paid sector is construction.
See Id. Clifton, however,
would be unable to take a position in construction due to the disability in his
wrists and hands. Thus, we find that
Clifton's earning capacity has been reduced an additional 25% due to his
ongoing disability.11
This gives us a total reduction in
earning capacity of 45%. Multiplying
this factor by Clifton's expected future wages of $1,795,000 gives a diminished
earning capacity of $807,750. We award
this amount to Clifton.
d.
Accord with Other Cases
The award given above is comparable to
awards given in similar cases. In Milos
v. Sea-Land Serv., Inc., 478 F. Supp. 1019 (S.D.N.Y. 1979), a seaman with a
14-year career-life was awarded $360,000 after developing CTS. Similarly, in Fanoli v. Sealand Servs.,
Inc., Case No. L-02810-81 (N.J. Super. 1990), a 65-year old seaman was
awarded $1,300,000 for injuries which developed into CTS.
Taking into account the relative
career-lives of Clifton and the plaintiffs in those cases, as well as the
nature of their injuries, our award is consistent with those in other
jurisdictions.
e.
Reduction to Present Worth
The parties have failed to brief us on
the issue of whether Clifton's award for impairment of earning capacity should
be reduced to present value. Thus, we
are left, once again, to our own devices.
We quickly review what the relative positions of other courts on the
issue have been.[29ASR2d98]
The amount of money awarded a plaintiff
for loss of future earning capacity is a lump-sum payment to compensate him for
money he would have received over the course of his working years. Offering a plaintiff the full value of this
award at the time of judgment overcompensates the plaintiff by ignoring the
fact that money itself has an earning capacity.
See Am. Jur. 2d Damages
§ 174. For this reason, numerous
jurisdictions have adopted the practice of reducing impairment of earning
capacity awards to present value. Id.
§ 174.
Other courts, however, have chosen to
adopt a "total offset" regarding present value. Id. § 145; see also Barnes
v. United States, 685 F.2d 66 (3d Cir. 1982) (applying Pennsylvania law); Yodice
v. Koninklijke Nederlandsche Stoomboot Maatschappij, 443 F.2d 76 (2d Cir.
1971) (applying New York law), cert. denied 411 U.S. 933 (1973); State
v. Guinn, 555 P.2d 530 (Alaska 1976); Paducah Area Public Library v.
Terry, 655 S.W.2d 19 (Ky. 1983).
Under this theory, the earning power of the money is offset against
(eliminated by) inflation and the reduced purchasing power of money over
time. Thus, reducing the award to
present value undercompensates a plaintiff.
We know of only one case in this court
in which discounting to present value was discussed. In Fa'avae v. American Samoa Power Auth.,
5 A.S.R.2d 53 (1987), this court assumed an interest rate and inflation rate in
determining the discounted present value of a torts award. See Id. at 57. The court, however, seemed very dissatisfied
with this conclusion, and explicitly invited the parties to move for
reconsideration or new trial based upon its ambivalence. See id. Today, we do not feel even the meager
confidence that the court felt in making that ruling.
[16]
Normally, we must consider a good deal of evidence about interest
rates, rates of inflation, proper investments, etc. in reducing an award. Defendants have the burden of production and
proof on this issue. While we could take
judicial notice of such things sua sponte, we feel this would be not
only unwise and possibly unfair to Clifton, but would also allow defense
attorneys to shirk their responsibility in presenting appropriate facts and
arguments to this court. The wiser
course is to hold that, where defense counsel has neither asked for reduction
nor presented the relevant facts for such a reduction, we will not reduce an
award to present value.
This should not be read to imply that we
will not reduce an award upon proper presentation of the issue by a
defendant. In fact, we may be bound to
do so by the precedent in Fa'avae.
This should also not be read as an invitation to defense counsel in this
case to move for reconsideration or new trial, as we extended in Fa'avae. As far as we are [29ASR2d99] concerned,
defendants have failed in carrying the burden on this issue and will not be
given "a second bite at the apple."
Thus, Clifton is entitled to the full $807,750 for lost future wages.
2.
Pain and Suffering
Clifton has suffered significant pain
and suffering arising from his injuries.
Before his carpal tunnel release surgery, the pain was so great that he
could not sleep at night. Following the
surgery, he was able to sleep, but still suffered pain and numbness in his
wrists and hands at the time of trial, some four years later. Of course, as defendants have urged upon us
repeatedly, Clifton is not so impaired as to prevent him from embarking on
endeavors such as walking on his hands at a New Year's Eve party.
We find that Clifton's pain is real,
substantial and ongoing. However, the
pain apparently has not affected him to the same extent as the disability and
loss of future earning capacity. For
these reasons, we award Clifton $50,000 for pain and suffering.
3.
Disability
Clifton seeks a separate award for his
disability. However, we feel we have
already taken Clifton's disability into account in awarding impaired earning capacity. Clifton has presented no evidence that his
disability has caused him damage, compensatory or otherwise, beyond his loss of
earning capacity. Therefore, no separate
award will be given, having already been included above.
4.
Interest
[17]
Pre-judgment interest is not allowed on either Jones Act or
unseaworthiness claims. Cleveland
Tankers, Inc. v. Tierney, 169 F.2d 622 (6th Cir. 1948); see also 2 Norris, Seamen § 30:43. Post-judgment interest under the Jones Act is
allowed from the date of a court's final decree. Cleveland Tankers, supra at 626; see
also 2 Norris, Seamen
§ 30:43. Interest may also be
awarded in general maritime cases at the court's discretion. Sabine Towing Co. v. Brennan, 85 F.2d
478 (5th Cir. 1936); see also 2 Norris,
Seamen § 30:43. We find this to
be an appropriate case for the award of post-judgment interest, which we set at
6%.
E.
Maintenance and Cure
1.
Maintenance and Cure Owed[29ASR2d100]
[18]
A shipowner has an ancient obligation to care for a seaman injured
during the course of maritime employment.
See Vaughan v. Atkinson, 369 U.S. 527, 531-32 (1962). The obligation continues to exist under
general maritime law. The obligation
includes payment for any injury or illness which manifests itself during employment,
regardless of the source of the injury or whether it preexisted the journey.
[19]
To be eligible, a seaman must be "in the service of his
ship" at the time of the injury. See
Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724 (1943). As discussed above, the medical experts have
drawn a causal connection between Clifton's effort in freeing the vessel from
its net and his development of CTS.
Thus, Clifton's injuries arose while he was acting in the service of the
vessel.
[20-21]
Under maintenance and cure a seaman is entitled to receive food
and lodging of a kind and quality received aboard ship, as well as necessary
medical services to the point of maximum cure.
The point of maximum cure is reached on the date that a seaman's
physician determines that further treatment is unlikely to result in the
betterment of the seaman's condition. Gilliken
v. United States, 764 F. Supp. 261, 269 (E.D.N.Y. 1991). This can include a determination that the
incapacity is permanent. Id. Doubts are to be resolved in the seaman's
favor. Breese v. AWI, Inc., 823
F.2d 100 (5th Cir. 1987).
The parties apparently agree that $12
per day is the appropriate rate for Clifton's maintenance. We adopt this amount. The exhibits show that the owner paid Clifton
maintenance for 90 days, but has not paid any of his medical bills.
Clifton left the vessel when it docked
on September 4, 1991. He became entitled
to collect maintenance beginning on that day.
He sought medical attention the next day and underwent surgery on
September 12 and 26, 1991. Clifton has
presented almost no evidence of medical treatment after this date. At one point in an exhibit, it is noted that
he continued visiting the doctor until April 1992.
Clifton offered no evidence that he
continued to receive physical therapy or other medical treatment following that
date. The only medical
"treatment" he has shown at all after April 1992 is two trips to the
Straub Clinic and one to Dr. Tuato`o.
However, all of these trips appear from Clifton's exhibits and testimony
to have been diagnostic in nature not rehabilitative. In fact, the visits seem to have been more
helpful to Clifton in preparing for trial than in treating his condition. We will not award Clifton maintenance and
cure for these visits.[29ASR2d101]
The Straub documents do not indicate
that any improvement in Clifton's condition is expected. As we stated above, we believe that Clifton
has suffered a permanent disability. As
he has not found it necessary to seek regular physical therapy over the past
four years, we must assume that he agrees with us. Thus, we hold that Clifton reached maximum
cure on or about April 2, 1992.12 The maintenance payments made by defendants
would cover the period from September 4, 1991 to December 2, 1991. Thus, defendants still owe maintenance and
cure from December 2, 1991, to April 2, 1992, a total of 124 days. At $12 per day, unpaid maintenance comes to
$1,464.
2.
Interest
[22]
The court has discretion whether to award interest on unpaid
maintenance and cure. See 2 Norris, Seamen § 26:71. Interest has been awarded from the time
payment was due, Great Lakes S.S. Co. v. Geiger, 261 F. 275 (6th Cir.
1919), from the date of filing, Perez v. Suwanee S.S. Co., 239 F.2d 180
(2d Cir. 1956), and from the date of decree, Hazelton v. Luckenbach S.S. Co.,
134 F. Supp. 525 (D. Mass. 1955). The
preferred method seems to be the awarding of interest from the date payment was
due. 2 Norris,
Seamen at 182 n.71.
[23]
In a case of unpaid maintenance and cure, the defendant will have
enjoyed the benefit of money properly belonging to the plaintiff. As a court, we must particularly protect the
right of injured seamen who are like wards before us. Cf. 2 Norris, Seamen § 26:71.
Thus, we hold that in a normal case13
of unpaid maintenance and cure, pre-judgment interest is payable from the date
the payment was initially due the plaintiff.
We will determine interest by
calculating 6% simple interest on the unpaid balance of maintenance and cure
beginning January 2, 1992.14 [29ASR2d102] Thus, it is
easier to figure the period monthly (1/12) than in 30-day increments
(30/365 or 30/366). The difference in
the ultimate results is minuscule and does not compound since we are figuring
only simple interest.
The interest due on the unpaid principle from that date until November
28, 1995 is $331.99. This amount will be
added to the unpaid maintenance and cure already awarded for a total
maintenance and cure judgment of $1,795.99.
Post-judgment interest is also available
on a maintenance and cure award. We will
award 6% post-judgment interest on the entire maintenance and cure award above,
including pre-judgment interest.15
F.
Attorney's Fees and Costs
Clifton has also brought a claim for
attorney's fees and costs for this action.
The granting of costs is within the discretion of the admiralty court,
and wide discretion is often exercised.
2 Norris, Seamen § 30:43.
We feel that an award of costs beyond filing and service fees in this
case is appropriate. Such an award should
include Clifton's visits to the Straub Clinic and Dr. Tuato`o, which we
excluded under maintenance and cure.
Plaintiff's exhibits establish this amount as $2,330.39. We award this amount plus court costs to
Clifton.
[24]
We have found no case awarding attorney's fees under either the
Jones Act or the general maritime claim of unseaworthiness. Attorney's fees have, however, been allowed
for a bad-faith refusal to pay maintenance and cure. See, e.g., Vaughan v. Atkinson,
369 U.S. 527 (1962); Kopczynski v. The Jacqueline, 742 F.2d 555, 559
(9th Cir. 1984). Clifton has not
convinced us that the owner's failure to pay maintenance and cure was in bad
faith. As we stated above, he has
presented us with almost no evidence of medical treatment after his surgery in
1991. We also have no idea what
information he gave to or claims he made of the owner. We simply cannot rule that the owner acted in
bad faith.
Thus, Clifton's claim for attorney's
fees is denied.[29ASR2d103]
G.
Punitive Damages
Clifton has also claimed punitive
damages for bad faith failure to pay maintenance and cure. He is not entitled to punitive damages since,
as we stated above, we do not believe defendants acted in bad faith.
In arguing for punitive damages, Clifton
relied primarily upon Kopczynski v. The Jacqueline, 742 F.2d 555 (9th
Cir. 1984). Since the trial of this
case, however, the Ninth Circuit has explicitly limited the scope of Kopczynski
to not allow for punitive damages. See
Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495 (9th Cir. 1995). Almost every court to consider the issue thus
far has agreed with the Ninth Circuit. See
id. Having decided the factual issue
against Clifton, we need not consider the legal issue at this time, but it
would be difficult for us to go against the rising tide of federal courts
holding that punitive damages will not attach to a maintenance and cure claim.
Clifton's request for punitive damages
is denied.
H.
Liability of Defendants
Clifton has requested joint and several
liability amongst the defendants.
However, he has not made out claims against all of the defendants. We must determine who is liable to pay
Clifton's damages.
1.
The Owner and Employer--Voyager, Inc.
[25]
A claim of unseaworthiness lies against a vessel's owner. A Jones Act negligence claim, on the other
hand, lies against a seaman's employer.
By incorporating the provisions of FELA into the Jones Act, Congress
made the employer liable for the negligence of its "officers, agents, or
employees." See 45 U.S.C.S.
§ 51 (West 1981 & Supp. 1994); see also 2 Norris, Seamen § 30:6 ("The
shipowner is vicariously liable [under the Jones Act] for the negligence of the
master which results in injury to the seaman . . . .").
Thus, Clifton's employer is liable for the negligence of the vessel's
captain and any other employee. The
vessel's owner in this case is Voyager, Inc.
Clifton's employer is also, presumably, Voyager, Inc.16
Thus, the liability for both the unseaworthiness and Jones Act claims
lies against Voyager, Inc.
Maintenance and cure also lies against a
ship's owner. Thus, Voyager, Inc. is
also liable for the maintenance and cure judgment.[29ASR2d104]
2.
The Vessel--M/V Voyager
[26]
As near as we can tell, the only action lying against a vessel in
rem is that for maintenance and cure.
A Jones Act case cannot be maintained in rem. Plamals v. S.S. Pinar Del Rio, 277
U.S. 151 (1928), overruled on other grounds, Mahnich v. Southern S.S.
Co., 321 U.S. 96 (1944); see also 2 Norris, Seamen § 30:25.
With the scope of general maritime damages being limited to that of the
Jones Act, an in rem action presumably cannot be brought for
unseaworthiness either.
3.
The Captain--Captain Frank Gargas
As Clifton has pled and tried his case,
no liability will lie against the captain.
A Jones Act negligence recovery does not preclude an injured seaman from
bringing an action against a third party whom he alleges to have negligently
caused his injury. Schaeffer v.
Michigan-Ohio Navigation Co., 416 F.2d 217, 221 (6th Cir. 1969); see 2
Norris, Seamen §§ 30:6,
30:34; cf. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350
U.S. 124 (1955) (recovery for injury under the Longshoremen's and Harbor
Worker's Compensation Act, 33 U.S.C.S. §§ 901 et seq., does not bar
recovery against a third party alleged to have caused plaintiff's injury); Seas
Shipping Co. v. Sieracki, 328 U.S. 85 (1946) (same).
However, Clifton has not brought a
separate negligence claim against the captain.
The two-year statute of limitations for such an action, see
A.S.C.A. § 43.0120, has long since passed.
Neither unseaworthiness, Jones Act negligence, nor a claim for
maintenance and cure lies against a ship's employee, even the ship's captain. Thus, Clifton cannot directly recover against
the captain.
Although the captain and his wife are
the sole shareholders in the owner, Clifton has made no effort to pierce the
corporate veil. Thus, the captain cannot
be held liable as a shareholder in the owner.
Therefore, there is no grounds for holding the captain liable for any of
the awards.
4.
Costs
Because the owner and the vessel are the
only defendants liable for Clifton's damages, they shall also be solely liable
for the award of costs.
III. Conclusion
In
conclusion, we award Clifton $807,750 for his lost earning capacity and for his
disability. We award him an additional
$50,000 for pain and suffering. We also
hold that he is entitled to 122 days of unpaid [29ASR2d105] maintenance and
cure plus 6% interest in a total amount of $1,795.99. We further award costs in the amount of
$2,330.39 plus court costs. Clifton is not entitled to attorney's fees.
Therefore, a total judgment of
$861,876.38 plus court costs shall enter for Clifton, with 6% interest to
accrue from today.
It is so ordered.
********
1 Apparently, Voyager Inc. was both the vessel's owner and Clifton's employer. Although we refer to it, for simplicity's sake, merely as "the owner," it is still fully liable as Clifton's employer. See infra § IV(H)(1).
2 The testimony was unclear as to who was piloting the vessel and who was in the helicopter. However, it is irrelevant to our analysis whether the captain or the navigator was piloting the vessel.[29ASR2d85]
3 According to the explicit terms of the Jones Act, it is to be interpreted in accordance with the interpretation of FELA. See 46 U.S.C.S. App. § 688 (1987).[29ASR2d90]
4 Although the captain may not have been the sole negligent actor, it is unnecessary for us to determine this issue to dispose of this case. Clifton has alleged that the navigator may also have been negligent in piloting the ship when the net became entangled in the propeller. However, Clifton has not brought a separate negligence claim against either the captain or the navigator. His only claims are for unseaworthiness, Jones Act negligence, and maintenance and cure, all of which lie against the owner and the vessel. See infra § II(G)(1)-(2). None of these causes allows Clifton to recover against either the captain or the navigator. See infra § II(G)(3). Furthermore, the owner, as Clifton's employer, is vicariously liable to the same extent for the negligent acts of either the captain or the navigator. See infra § II(G)(1). Thus, it is unnecessary for us to determine whether the navigator or any other actor was liable in addition to the captain.
5 While we are fully supportive of good faith arguments to extend a principle of law, this is not what we have before us. Defendants' counsel cites cases as if they stand for propositions which they do not, and argues his point as if there were settled doctrine in his favor. We see nothing in the cases which supports his arguments. Counsel's avoidable misrepresentations border on sanctionable conduct.
6 We note the imprecision with which Clifton's counsel has pled damages. Counsel gives us no guidance on the breakdown of the $1,500,000 minimum claim between lost present and future wages, disability, or pain and suffering. However, we believe that we have made appropriate awards for each below.
7 Clifton has informed us that on average 10 fishing trips would be made per year with an average catch of 500 tons per trip. Defendants tells us that 4-5 trips would be made each year, with an average catch of 1,100-1,200 tons. Each of these estimates provides us with an annual catch of around 5,000 tons per year.
8 Clifton informs us that an assistant engineer makes from $9-$11 per ton. Defendants inform us that an assistant engineer makes from $10-$14 per ton. Although $11 is at the high end of Clifton's range, it is at the low end of defendants' range.
9 Because defendants have the burden on this issue, we are reticent to offset Clifton's expected earnings after the accident against his expected earnings before the accident at all. However, to ignore such an issue would grossly overcompensate Clifton, and so we must undertake the analysis. However, we shall do so by giving strong favor to Clifton's claims.
10 We call these "skilled" sectors because they generally require either advanced education or special skills of some sort. They include finance and insurance, petroleum marketing, printing and publishing, private hospitals and educational institutions, and ship maintenance.
11 The 25% figure is based partly on the nature of the work and the average salaries in the job sectors into which Clifton might move. It is also based partly upon the amount of disability Clifton has received, which medical experts have placed at 25% in each hand and 23% in each arm.
12 Because we do not have an exact date when Clifton stopped seeing the doctor, we have chosen April 2, 1992. This date is near the beginning of the month, and probably does not overaward Clifton. It is convenient because it makes the total unpaid maintenance period exactly four months. It also makes the calculation of interest simpler, see infra.
13 We do not address the issue of what exceptional factual circumstances might be presented by defendants to relieve them of the duty to pay interest. Defendants made no attempt to show such exceptional circumstances in this case.
14 We begin calculating interest on January 2, 1992, because this appears to be a close approximation of when the payment would have been due Clifton. Although the owner normally paid in 30-day increments, we have a substantially easier time calculating interest by assuming that payments were due monthly. The formula we have used is: unpaid balance x 6% x period .
15 We award post-judgment interest on the pre-judgment interest as well as the principle maintenance and cure owed for two reasons. First, because this amount has now been rightfully adjudged as damages owed by the defendant to the plaintiff. Second, it is both more logical and mathematically simpler to award interest on the entire judgment.
16 Clifton can move this court to modify its order if it has information showing that Clifton's employer was other than Voyager, Inc.