Filed: Jan. 21, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D Revised January 21, 2004 December 9, 2003 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk 02-30441 SYLVIA MOORE, ET AL, Plaintiffs, SYLVIA MOORE, Plaintiff-Appellee, VERSUS ANGELA MV, Defendant, ANGELA MARITIME SHIPPING LTD., Claimant-Appellant. Appeal from the United States District Court For the Eastern District of Louisiana Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges. DUHÉ, Circuit Judge: Ap
Summary: United States Court of Appeals Fifth Circuit F I L E D Revised January 21, 2004 December 9, 2003 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk 02-30441 SYLVIA MOORE, ET AL, Plaintiffs, SYLVIA MOORE, Plaintiff-Appellee, VERSUS ANGELA MV, Defendant, ANGELA MARITIME SHIPPING LTD., Claimant-Appellant. Appeal from the United States District Court For the Eastern District of Louisiana Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges. DUHÉ, Circuit Judge: App..
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United States Court of Appeals
Fifth Circuit
F I L E D
Revised January 21, 2004
December 9, 2003
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
02-30441
SYLVIA MOORE, ET AL,
Plaintiffs,
SYLVIA MOORE,
Plaintiff-Appellee,
VERSUS
ANGELA MV,
Defendant,
ANGELA MARITIME SHIPPING LTD.,
Claimant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
DUHÉ, Circuit Judge:
Appellant Angela Maritime Shipping, Ltd. ("Angela"), claimant
of the in rem defendant, M/V ANGELA, appeals a judgment in a
§ 905(b) action by Sylvia Moore, the surviving spouse of
longshoreman Horace Moore ("Moore"). The district court held for
the Plaintiff, finding vessel negligence and finding the decedent
five percent at fault. We hold the award of nonpecuniary damages
to be excessive and hold that the court exceeded its authority in
increasing the security posted in lieu of the vessel. Accordingly,
we remand for a reduction in the total damage award.
I.
Sylvia Moore sued under the Longshore and Harbor Workers'
Compensation Act (LHWCA), 33 U.S.C. § 905(b), the M/V ANGELA in rem
for the wrongful death of her husband, who was struck by falling
cargo while working for Stevedores, Inc. in the M/V ANGELA.
Section 905(b) provides a negligence remedy to a longshoreman or
his family against the vessel.1 Plaintiff had the vessel arrested,
and Angela filed a claim of owner, reserving all rights and
defenses and requesting the court to set security for release of
the vessel. The court set security at $500,000, and ordered the
vessel released upon posting of a Letter of Undertaking in that
amount. The vessel then departed the jurisdiction.
The M/V ANGELA is a seven-hold bulk carrier equipped with four
cranes. The district court found that Moore’s death was caused in
part by vessel negligence relating to the vessel's no. 4 crane,
which was being used to offload T-bar ingots of aluminum from the
1
That section provides, “In the event of injury to a person
covered under this Act caused by the negligence of the vessel, then
such person . . . may bring an action against such a vessel as a
third party . . . and the employer shall not be liable to the
vessel for such damages directly or indirectly . . . . The
liability of the vessel under this subsection shall not be based
upon the warranty of seaworthiness or a breach thereof at the time
the injury occurred.” 33 U.S.C. § 905(b).
2
vessel's no. 7 hold. Moore was operating a forklift in the hold
when a T-bar fell from a load carried by the ship’s crane
approximately 75 feet above the floor of the hold, striking Moore
on his forklift. The district court found vessel liability under
section 905(b) and Scindia Steam Navigation Co. v. De Los Santos,
451 U.S. 156,
101 S. Ct. 1614,
68 L. Ed. 2d 1 (1981).
Scindia outlined three duties shipowners owe to longshoremen:
1) the "turnover duty," relating to the condition of the ship upon
the commencement of stevedoring operations; 2) the duty to prevent
injuries to longshoremen in areas remaining under the "active
control” of the vessel; and 3) the "duty to intervene." Howlett v.
Birkdale Shipping Co., 512 U.S. 92, 98 (1994) (citing
Scindia, 451
U.S. at 167, 175-76). Due largely to problems with the crane, the
district court found a violation of all three duties. First, the
district court found that the vessel owner failed to warn on
turnover of hidden defects of the crane. Second, the court found
that the injury was caused by a hazard under control of the ship.
Third, the court found that the vessel violated its duty to
intervene when it clearly knew of the crane's problems. The court
concluded that the defective crane caused Moore’s death, assessing
comparative fault 65% to Angela, 30% to Stevedores, and 5% to Moore
himself.
The total damage award was $907,469.11, including $750,000 in
non-pecuniary damages for loss of society. The court entered a
judgment for $862,095.66 and granted Plaintiff a post-trial
3
increase in security sufficient to cover the judgment.
Angela requested mandamus review of the district court's
ruling on the increase of security, which this Court denied without
opinion. Angela timely noticed this appeal.
II.
The district court had subject matter jurisdiction because
this is an admiralty action against the vessel. 28 U.S.C. 1333
(1); Fed. R. Civ. P., Supp. Admiralty & Maritime Claims Rule C.
Jurisdiction is in rem only.
III.
We must first determine whether the district court clearly
erred in finding Angela breached a Scindia duty owed to the
longshoreman. We review factual findings only for clear error.
McAllister v. United States, 348 U.S. 19, 20 (1954); see also
Theriot v. United States,
245 F.3d 388, 394 (5th Cir. 1998).
The "turnover duty" relates to the condition of the ship upon
the commencement of stevedoring operations. Scindia, 451 U.S. at
167. This duty requires a vessel to exercise
“ordinary care under the circumstances” to turn over the
ship and its equipment . . . “in such condition that an
expert and experienced stevedoring contractor, mindful of
the dangers he should reasonably expect to encounter
. . . will be able by the exercise of ordinary care” to
carry on cargo operations “with reasonable safety to
persons and property.”
Howlett, 512 U.S. at 98 (quoting Federal Marine Terminals, Inc. v.
Burnside Shipping Co.,
394 U.S. 404, 416-17, n.18 (1969)). The
4
duty extends to warning the stevedore of hazards with respect to
its equipment known to the vessel that would likely be encountered
by the stevedore and would not be obvious to him. Scindia, 451
U.S. at 167.
The court’s finding that the turnover duty was breached is
supported by the evidence. The court found that Angela was aware
that there were serious problems with the crane as a result of
complaints made to it by Coastal Cargo,2 a stevedoring company that
had used the crane for a few days just before Stevedores. After
multiple breakdowns and repairs, the crane had weight limitations
and restrictions on movement, and it moved erratically, jerking and
surging at times. The court found that the problems with the crane
were hydraulic, and that the crane had a poor maintenance record.3
The district court found that, had Stevedores known the problems
Coastal encountered with crane no. 4, this would have affected
2
The record reveals that the first day Coastal tried the crane,
it would not lift at all. After repairs, Coastal determined that
the crane could lift only 10 tons instead of its usual 25. Coastal
resumed using the crane to lift only 10 tons. The next morning,
the crane had the same problem, was again repaired, was used for an
hour before breaking down again. Over the next couple of days
Coastal again used the crane for 10-ton loads.
Coastal’s superintendent testified that the crane was not well
maintained and that he had to tell the crane operator to "try to do
one thing at a time with the crane, instead of trying to hoist up,
swing and boom," all of which a crane usually can do at the same
time.
3
A post-accident inspection indicated that the crane had
hydraulic leaks. The court believed from expert testimony and from
viewing photographs of the crane that there was a serious problem
with crane maintenance.
5
their operations. This finding is supported by the evidence.4
Angela argues that a vessel has no duty to warn of dangers
that would be obvious to a longshoreman of reasonable competence,
such as a jerking crane. This exception to the turnover duty
applies if the defect causing the injury is open and obvious and
one that the longshoreman should have seen. Scindia, 451 U.S. at
167; Pimental v. LTD Canadian Pacific BUL,
965 F.2d 13, 16 (5th
Cir. 1992). The exception does not apply, however, if the
longshoreman’s only alternatives to facing the hazard are unduly
impracticable or time-consuming or would force him to leave the
job.
Pimental, 965 F.2d at 16; Treadaway v. Societe Anonyme Louis-
Dreyfus,
894 F.2d 161, 167 (5th Cir. 1990); Teply v. Mobile Oil
Corp.,
859 F.2d 375, 378 (5th Cir. 1988).
The district court found both that the condition was not open
and obvious and that the longshoremen's only alternatives to facing
the hazards were unduly impractical, time consuming, and costly.
These findings, too, have support in the evidence. No one told
Stevedores’ crane operator, for example, of the problems Coastal
experienced, even after he complained of similar problems. Rather,
a vessel representative told him to "slam" the control stick when
4
When Stevedores began work, Stevedores was not informed by the
captain (nor by anyone else) of the problems Coastal encountered or
of the weight limitations or movement problems. Stevedores began
using crane no. 4 to lift substantially more than 10 tons at a time
discharging T-bars.
6
he had problems with the crane.5 One might conclude that the
vessel owner was suggesting mistakenly that any problem was
operational, hiding the real problem that was hydraulic. See,
e.g., Scindia, 451 U.S. at 167 (recognizing ship owner’s duty to
warn of “hidden danger” known to him).6
To the finding that alternatives to facing the hazard were
unduly impractical or time consuming, Angela contends that
switching cranes would have involved no additional time or expense.
Support for the court’s contrary finding lies in evidence that the
5
This fact distinguishes Greenwood v. Societe Francaise de
Transports Maritimes, 111 F.3d 1239, 1247 (5th Cir.), cert. denied,
522 U.S. 995 ,
118 S. Ct. 558,
139 L. Ed. 2d 400 (1997), in which the
court remarked that plaintiff “presented no evidence that the
[crane operator] was instructed to continue to use the crane
despite the defect.”
Greenwood, 111 F.3d at 1248.
6
The district court was faced with conflicting testimony about
whether the defective condition was open and obvious. Stevedores'
crane operator, Randall Faulk, whose testimony the court credited
in part, testified that after the vessel's chief engineer
instructed him to "slam" the control stick, he had no further
complaints with the crane and heard no complaints from the people
working in the hold. Finding the crane’s defect not to have been
open and obvious, the district court credited the fact that
Stevedore’s initial complaint about the crane was met with a
“superficial tip” suggesting operator error.
Other support for the finding lies in the testimony of marine
surveyor Webster, who stated that hydraulic problems worsen under
load and as the crane heats up. Confirmation of that phenomenon
was the discharge tally indicating that this accident occurred
after a series of 18-bar loads were discharged. Although Coastal
Cargo’s superintendent mollified the situation by lightening the
loads to less than the crane’s capacity, no one provided that
information to Stevedores. Finally, the court found the relevance
of Webster’s expert opinion “enhanced” by the captain’s adamancy
that there was nothing wrong with the crane. All told, the record
provides a sufficient foundation for finding that the crane’s
condition was not open and obvious.
7
other crane (no. 3) that could reach this hold was already in use
and had problems of its own; that the vessel owner had in the past
refused to accept responsibility for standby time of stevedores
refusing to unload cargo due to repairs; and that longshoremen
refusing to work might lose business because the trade is
competitive.
The district court's account of the evidence is plausible in
light of the entire record. “Where there are two permissible views
of the evidence, the factfinder's choice between them cannot be
clearly erroneous." Anderson v. City of Bessemer, N.C., 470 U.S.
564, 574 (1985). After reviewing the record, we are not left with
a “firm and definite conviction” that a mistake has been made.
Henderson v. Belknap (In re Henderson),
18 F.3d 1305, 1307 (5th
Cir.), cert. denied,
513 U.S. 1014,
115 S. Ct. 573,
130 L. Ed. 2d
490 (1994). Accordingly, we find no clear error in the findings
that the vessel owner violated the turnover duty and that the “open
and obvious” exception did not exempt the vessel from the turnover
duty.7
IV.
Appellant next questions whether vessel negligence was a legal
cause of the accident. Angela argues that the accident was caused
7
Because we sustain the court’s holding Angela liable for
breach of the turnover duty, we will not discuss the “active
control” duty or the duty to intervene. See Pimental v. LTD
Canadian Pacific Bulk, 965 F.2d 13, 15 -16 (5th Cir. 1992)
(evidence of liability under one of these Scindia duties sufficient
to defeat motion for directed verdict for vessel owner).
8
not by the malfunctioning crane but by Stevedore’s assembling the
T-bars into loads of 18, a configuration it asserts is inherently
dangerous. The district court found vessel fault “clearly
contributed” to the accident, citing the vessel’s failure to
revisit the hydraulic pressure issues with the crane and the
failure to inform Stevedores about the crane problems experienced
by Coastal.
The evidence supports the district court’s finding that
erratic motions such as jerking of the crane caused the T-bar to
fall from the load. Trial testimony also supports the inference
that, had Stevedores been duly warned about problems with the
crane, it would have conducted its operations differently. To be
a legal cause of a plaintiff’s injury, breach of a Scindia duty
must be a “‘substantial factor’ in the injury.” Donayhey v. ODECO,
974 F.2d 646, 649 (5th Cir. 1992). The evidence at trial amply
supports the finding that the vessel’s breach of the turnover duty
was a substantial factor in causing the accident and Moore’s death,
so that the district court did not clearly err in its finding.
V.
We must next determine whether the district court erred in
assessing only five percent of the fault to the decedent. The
district court determined that although Moore was under the T-bar
when it landed, he was not improperly driving the forklift under
the path of the load. A flagman and hatch workers saw the load
clear the hatch cover. When the flagman waved the load clear,
9
Moore and other workers resumed their duties in the hold. The
testimony of the longshoremen uniformly supports these findings.
The court also found that erratic motions of the crane probably
"launched" the T-bar toward the middle of the hatch where Moore had
just moved his forklift. The district court found that any fault
on the part of Moore “derives from the fact that he should have
seen the jerking of the crane and anticipated the worst from such
erratic crane movement.” We will not disturb the district court’s
choice to credit the foregoing testimony and assess very limited
fault to Moore for not “anticipat[ing] the worst.”
VI.
We are next asked to reverse the award of non-pecuniary
damages because they are not available in § 905(b) cases. Whether
damages for loss of consortium are recoverable is a legal question,
subject to de novo review. Michel v. Total Transp., Inc., 957 F.2d
186, 191 (5th Cir. 1992).
The loss of consortium award is permissible in this § 905(b)
case. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 585-91
(1974), and Nichols v. Petroleum Helicopters, Inc.,
17 F.3d 119,
122-23 (5th Cir. 1994), each allowed non-pecuniary damages for
longshoremen injured in territorial waters. Despite illogical
discrepancies between the law governing injuries to longshoremen in
territorial waters and persons governed by the Death on the High
Seas Act or the Jones Act, we must apply the law as it is.
Nichols, 17 F.3d at 123; United States v. Rayo-Valdez,
302 F.3d
10
314, 320 (5th Cir.) cert. denied,
123 S. Ct. 694 (2002).
VII.
Angela also contends that $750,000 for loss of consortium is
nevertheless subject to remittitur because it is excessive.
Indeed, the district court determined that the evidence warranted
“the highest award possible for non-economic damages,” and fixed
the amount based on awards for death in air crash cases. The
determination of the extent of damages is for the trier of fact,
and "in this area the appellate court should step lightly or not at
all." In re Air Crash Disaster, 767 F.2d 1151, 1155 (5th Cir.
1985).
We review a trial judge's assessment of damages for clear
error. Sosa v. M/V LAGO IZABAL, 736 F.2d 1028, 1035 (5th Cir.
1984); Fed. R. Civ. P.52(a). An award is excessive only if it is
greater than the maximum amount the trier of fact could properly
have awarded.
Sosa, 736 F.2d at 1035. An appellate court may not
determine excessiveness by comparing verdicts in similar cases, but
rather must review each case on its own facts. Winbourne v.
Eastern Airlines, Inc.,
758 F.2d 1016, 1018, (5th Cir.1984), cert.
denied,
474 U.S. 1036,
106 S. Ct. 603,
88 L. Ed. 2d 582 (1985);
Sosa, 736 F.3d at 1035.
Damage awards in analogous cases “provide an objective frame
of reference, but they do not control our assessment of individual
circumstances.“ Wheat v. United States, 860 F.2d 1256, 1259-60
11
(5th Cir. 1988).8 We measure the award under the "maximum recovery
rule," which "provides that we will decline to reduce damages where
the amount awarded is not disproportionate to at least one
factually similar case from the relevant jurisdiction." Lebron v.
United States, 279 F.3d 321, 326 (5th Cir. 2002)(internal citations
and quotations omitted, emphasis in original). To avoid
substituting our opinion for that of the fact finder, we apply a
multiplier or percentage enhancement to past similar awards, which
is 33% for bench trials. See Salinas v. O'Neill,
286 F.3d 827, 831
& n.6 (5th Cir. 2002) (noting 50% enhancement has been applied only
in jury trials and 33% multiplier has applied in both bench trials
and jury trials).
Here the Plaintiff and decedent had been married 6 months,
after having been together for seven years and, as the district
court found, had a truly loving relationship. They married when
they were approximately 50 years old and had no children together.
The award for loss of love and affection in this case is excessive
8
There is some tension between the principle that we consider
excessiveness based on the facts of the case before us and the
utility of considering precedent, in analogizing the facts at hand
to similar cases. As Wheat observed,
Although our determination is, by its nature, subjective, we
do conduct our analysis within an objective frame of
reference: damage awards in similar cases. We have stated that
comparing damage awards in similar cases is helpful in
determining whether a particular award is excessive. On the
other hand, we have also observed that we cannot determine
excessiveness by comparing damage awards and that each case
depends on its own facts.
Wheat, 860 F.2d at 1259 (citations omitted).
12
and constitutes an abuse of the trier of fact's discretion.
We agree with defendants that the air crash cases relied upon
by the district court are not factually similar, as in each case
the Court relied on the fact that other family members perished
along with the spouse; one relied on the additional fact that the
surviving spouse was left to raise a child without the decedent.
In re Air Crash Disaster, 767 F.2d at 1157 ($500,000 maximum for
wife lost along with three minor children); Caldarera v. Eastern
Air Lines, Inc.,
705 F.2d 778, 785 (5th Cir. 1983)($250,000 maximum
for plaintiff having lost his wife of more than 12 years as well as
their eight-year-old and plaintiffs’ mother, and being left to
raise his four-year-old by himself); Winbourne v. Eastern Airlines,
Inc.,
758 F.2d 1016, 1017 (5th Cir. 1984) (approving $500,000 for
a loss of wife, when plaintiff also lost two children), cert.
denied,
474 U.S. 1036,
106 S. Ct. 603,
88 L. Ed. 2d 582 (1985).
Poignant factual distinctions are that Plaintiff herein lost
no other family member from this accident, and that she and Moore
had no dependent children. Cf. Winbourne, 758 F.2d at 1018 (noting
that “[plaintiff’s] entire family is gone”);
Caldarera, 705 F.2d at
786 (noting “calamitous effect of the simultaneous bereavement”);
see also Dunn v. Consolidated Rail Corp.,
890 F. Supp. 1262, 1290
(M.D. La. 1995)(remarking “The loss of her husband's love, support
and companionship in raising their children is one of the most
profound effects on the life of [plaintiff].”).
The highest award in a factually similar Louisiana case we
13
have found is $300,000. See Fannin v. Louisiana Power & Light Co.,
594 So. 2d 1119, 1127 (La. App. 5th Cir.) ($300,000 for loss of
consortium not abuse of discretion for “‘Romeo and Juliette’
scenario” and “true love affair” wherein couple courted for years
and were married approximately 5 months, no children, when death
occurred, leaving spouse “devastated” and “lost and in a daze”),
writ denied,
600 So. 2d 694 (1992); see also Easton v. Chevron
Indus.,
602 So. 2d 1032, 1038 (La. App. 4th Cir.) (award of $100,000
to $300,000 was within the discretion of the trier of fact for
death after 10 years’ marriage, “very solid and loving,” no
children), writ denied,
604 So. 2d 1315, and writ denied,
604 So. 2d
1318 (1992).
We reach our conclusion primarily on the evidence in this
record, and secondarily on the rough guidance provided by awards
approved for similar injuries by the Louisiana appellate courts and
the decisions of this court applying Louisiana law. See Air Crash
Disaster, 767 F.2d at 1157. Applying the “maximum recovery rule”
to the award in this case requires remittitur of the non-pecuniary
award to 133% of $300,000, or $399,000 for non-pecuniary damages.
On the facts of this case, $399,000 is the maximum non-pecuniary
award that could be made, subject to the discussion in the next
section.
VIII.
Angela next asks us to hold that the court exceeded its
jurisdiction by awarding damages in excess of the security posted
14
to release the arrested vessel. The district court's in rem
jurisdiction was based on the $500,000 letter of undertaking posted
to release the arrest of the M/V ANGELA. The district court
rendered judgment in an amount exceeding the security, and
Plaintiff filed a post trial motion to increase security to cover
the judgment.
The district court granted plaintiff’s motion to increase
security. The court noted that the $500,000 security originally
ordered did represent “an amount sufficient to cover the amount of
the plaintiff’s claim fairly stated,”9 because “the plaintiff’s
counsel stated on the record that he ‘could live with $500,000.’”
Increasing the security post-judgment, the district court remarked,
The Court also recognizes that the vast majority of the
award is for non-economic damages, which may well be
unavailable to the plaintiff after the issue of its
recoverability is considered by the Fifth Circuit. Under
these circumstances, the Court finds that the defendant
shall increase the amount of security to equal the amount
of the judgment, plus accrued interest and costs. . . .
We find no legal support for a post-judgment increase in
security. While it is true a district court may require “further
security” at any time, 28 U.S.C. § 2464(b) & Supp. R. E(5)(b), we
interpret the phrase to mean substitute or replacement security
(e.g., when a surety has become insolvent) rather than additional
security, except where the vessel was released by fraud,
9
Fed. R. Civ. P., Supp. R. E(5)(a) (In rem security should be
fixed "at an amount sufficient to cover the amount of the
plaintiff's claim fairly stated.").
15
misrepresentation, or mistake of the court.10 Plaintiff does allege
that the district court “mistakenly” calculated Moore’s claim, but
the fixing of security was based in part on Plaintiff’s counsel’s
own declaration to the court. It was therefore not based on a
“mistake” of the court as discussed in the jurisprudence.11
We find no authority for the court to have required additional
10
See, e.g., The Wanata, 95 U.S. 600, 611 (1877) (Stipulation
taken for property “is deemed a mere substitute for the thing
itself” and “is binding on the Appellate Court, unless it appears
that the property was released by misrepresentation and fraud.”);
Mosher v. Tate,
182 F.2d 475, 479 (2d Cir. 1950) (If court erred in
ordering release of vessel without requiring sufficient bond from
owners, court had power to order personal decree against owners if
recovery was greater than security.); The Fred M. Lawrence,
94 F.
1017, 1018 (2d Cir. 1899)(If stipulation has become worthless by
insolvency of surety and claimant does not comply with order to
furnish additional security, court may strike answer and enter
default judgment.).
We express no opinion on the continued efficacy of the
principle allowing in personam liability without personal service
discussed in some of the cited cases which predate Admiralty Rule
E(8), under which Rule a vessel owner may now enter a restricted
appearance to defend an in rem action.
11
The district court did correct a mistake in the amount of the
award (undoing an unwarranted reduction of the plaintiff’s recovery
by the Stevedores’ percentage of fault, see Edmonds v. Compagnie
Gen. Transatlantique, 443 U.S. 256 (1979)), and noted that the
error was "strictly an oversight on the part of the Court." That
mistake was post-trial had no bearing on the court’s pre-trial
fixing of security.
We agree with J.K. Welding Co. v. Gotham Marine Corporation,
47 F.2d 332, 335 (D.C.N.Y. 1931), in its recognition that “a
unilateral mistake, such as a statement of the libelant's claim at
too small a figure,” is not good reason to compel the giving of
additional security. See also Industria Nacional Del Papel, CA. v.
M/V ALBERT F,
730 F.2d 622, 626 (11th Cir.) (recognizing that new
or additional security can be required if the original amount was
insufficient due to fraud, misrepresentation, or "’the mistake of
the court and not that of the claimant’"), cert. denied,
469 U.S.
1037 (1984) (quoting 7A Moore’s Federal Practice ¶ E.14 at E-711 n.
30 (2d ed. 1983)).
16
security. See United States v. Ames, 99 U.S. 35, 42 (1878) (“[T]he
remedy of the libelants . . . was transferred from the property to
the bond or stipulation accepted by the court as the substitute for
the property seized.”); The Steamer Webb,
81 U.S. 406, 418
(1871)(“[N]othing but the [amount of the security] is within the
control of the court.”); Incas & Monterey Printing & Packaging,
Ltd. v. M/V Sang Jin,
747 F.2d 958, 961 (5th Cir. 1984) (Release of
vessel in exchange for posting of security transfers lien from
vessel to fund representing security.), cert. denied,
471 U.S. 1117
(1985); J.K. Welding Co. v. Gotham Marine Corporation,
47 F.2d 332,
335 (D.C.N.Y. 1931) (“[T]he court can exercise as much authority
over [the bond that is a substitute for the res] as if the vessel
itself were in the custody of the court, but no more.”), cited with
approval in
Incas, 747 F.2d at 962 n. 10.
The security and amount of damage award are therefore limited
to the $500,000 sum in the original letter of undertaking. See The
Wanata, 95 U.S. 600, 611-12 (1877) (Where value of property held is
insufficient to pay the loss, “it is not competent for the court to
award damages against the sureties in the stipulation beyond the
proceeds or value.”); Cooper v. Reynolds,
77 U.S. 308, 319, 19 L.
Ed. 931 (1870) (One essential requisite to jurisdiction in rem is
seizure or attachment of property; “[w]ithout this the court can
proceed no further; with it the court can proceed to subject that
property to the demand of plaintiff.”)(emphasis added); The Ann
17
Caroline, 69 U.S. 538, 548-49 (1864) (stipulator who has filed a
bond or stipulation for definite sum in place of vessel cannot be
compelled to pay more than expressed amount); Overstreet v. Water
Vessel Norkong,
706 F.2d 641, 643 (5th Cir. 1983) (Bond that stands
in the place of the vessel is “the sole property that is within the
court's jurisdiction.”); J.K.
Welding, 47 F.2d at 335 (A
stipulation for value represents “a new security of unfluctuating
value in the place of the vessel.”); The Mutual,
78 F. 144, 144-45
(D. Conn. 1897) (If, by giving of bond or stipulation for value,
vessel is released and “freed forever,” court has no power to order
additional security.); but see Central Hudson Gas & Elec. Corp. v.
Empresa Naviera Santa S.A.,
56 F.3d 359, (2d Cir. 1995) (upholding
admiralty jurisdiction to enter judgment exceeding value of
arrested res, which was a letter of undertaking, even though the
owner filed a restricted appearance in the in rem action, for use
in a later in personam action, limited only by res
judicata/collateral estoppel principles).
The damage award in this case, to the extent that it exceeds
the amount of security, must be modified.
CONCLUSION
We find no clear error in the findings that Angela violated
its duty under Scindia in a manner that caused Moore’s death, that
Moore was five percent at fault, or that non-pecuniary damages are
recoverable. The quantum of non-pecuniary damages is not
sustainable on these facts, as discussed above. Because of the
18
amount of security posted, the total damage award may not exceed
$500,000. The matter is therefore
REMANDED for further proceedings in accordance with this
opinion.
19
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting
in part.
The majority opinion is improperly deferential to the district
court’s determination that Angela Maritime (“Angela”) was aware of
latent defects that were the cause of the accident and longshoremen
Moore’s death, and to its determination that the defects were not
open and obvious to Moore’s employer Stevedores, Inc.
(“Stevedores”). Although the majority opinion is correct that we
review the district court’s findings of fact for clear error, we
review the application of those facts to law de novo. Thus,
applying the less deferential standard, I believe the district
court improperly applied its own factual determinations to
controlling legal precedent in sustaining liability against Angela
under the “turnover duty.” However, as I believe the district
court properly found Angela liable under the “duty to intervene,”
I would affirm the judgment, vacate the district court’s allocation
of liability, and remand the case for a calculation of fault under
the “duty to intervene.” Therefore, I respectfully concur in part
and dissent in part.
I
The 1972 amendments to the Harbor Workers’ Compensation Act
fundamentally changed both the duties shipowners owe to
longshoremen and consequently the scope of the liability to which
they are subject. Two Supreme Court cases, Scindia Steam
20
Navigation v. De Los Santos, 451 U.S. 156,
101 S. Ct. 1614, 68 L.
Ed. 2d 1 (1981), and Howlett v. Birkdale Shipping Co.,
512 U.S. 82,
114 S. Ct. 2057,
129 L. Ed. 2d 78 (1994), have together outlined
the relative duties of shipowners and stevedores to longshoremen,
and the circumstances where liability against a shipowner can be
sustained under 33 U.S.C. § 905(b). The Scindia Court explained
that “[a]s a general matter, the shipowner may rely on the
stevedore to avoid exposing the longshoremen to unreasonable
hazards . . . . The ship is not the common employer of the
longshoremen and owes no such statutory duty to
them.” 451 U.S. at
170, 101 S. Ct. at 1623. The Howlett Court emphasized the point
explaining that “[t]he design of these changes was to shift more of
the responsibility for compensating injured longshoremen to the
party best able to prevent injuries: the stevedore
employer.” 512
U.S. at 97, 114 S. Ct. at 2063.
Nevertheless, a ship owes three duties to longshoremen: 1) the
turnover duty; 2) the active control duty; and 3) the duty to
intervene. Howlett, 512 U.S. at 98, 114 S. Ct. at 2063. The
majority opinion relies solely on the turnover duty to establish
liability. “The turnover duty requires the vessel to warn the
stevedore ‘of any hazards on the ship or with respect to its
equipment,’ so long as the hazards ‘are known to the vessel or
should be known to it in the exercise of reasonable care,’ . . .
and would not be obvious to or anticipated by [the stevedore] if
21
reasonably competent in the performance of his work.” Id. at 98-
99, 114 S. Ct. at 2063. Therefore the duty attaches only to latent
defects of which the vessel has or should have had knowledge. That
duty is extinguished, and in essence shifted to the stevedore, if
the stevedore either gains actual knowledge of the defect, or if
the stevedore should have anticipated its existence. See
id. at
99-100, 114 S. Ct. at 2064. That duty does not shift “if the
longshoremen’s only alternatives when facing an open and obvious
hazard are unduly impracticable or time consuming . . . .”
Pimental v. LTD Canadian Pacific Bulk,
965 F.2d 13, 16 (5th Cir.
1992).
In addition to establishing a duty owed by the vessel to the
deceased, the plaintiff must establish that the latent defect in
the crane was the “legal cause” of the accident such that it was a
“substantial factor” in the injury. Donayhey v. ODECO, 974 F.2d
646, 649 (5th Cir. 1992). Therefore, to sustain liability, Moore
must show that Angela had (or should have had) knowledge of a
latent defect in the crane which was not, and could not have been,
discovered by Stevedores and was a substantial factor in the
accident.
We review the district court’s factual findings for clear
error; however, we review both questions of law and mixed questions
of fact and law de novo. Theriot v. United States, 245 F.3d 388,
394 (5th Cir. 1998). The clearly erroneous standard of review
22
does not “apply to decisions made by district court judges when
they apply legal principles to essentially undisputed facts.”
Walker v. Braus, 995 F.2d 77, 80 (5th Cir. 1993).
The district court determined that “erratic motions such as
[the] jerking of the crane caused the T-bar to fall from the load.”
It additionally concluded the jerking was due to a latent
hydraulics problem of which Angela was aware, and of which
Stevedores was oblivious. It relied on the expert testimony of
Edward Webster to establish, as a general matter, “that a
hydraulics problem worsens as the hydraulics heat up, which can be
caused by the excessive weight of the loads lifted,” and on the
testimony of Coastal Cargo (“Coastal”) employee Rene Falgoust to
establish that the crane was experiencing hydraulics problems.
While Webster’s testimony is hypothetical and does not establish
that the crane was suffering from a hydraulics problem at the time
of the accident, Falgoust’s testimony only refers to hydraulics
problems the crane was experiencing while under Coastal’s control,
days before turnover, and not while it was under Stevedores’
employ when the accident occurred.12
Strangely, the district court also adopted the testimony of
12
Admittedly, while under Coastal control, the crane experienced
severe difficulties. The crane was described as “broke down” and
at one point it “would not hoist at all.” The problems with the
crane were so severe that Coastal twice stopped working and
demanded that Angela repair the crane. Angela did so both times.
23
marine surveyor Ben Haveman who testified that his post-accident
inspection of the crane “revealed evidence of hydraulic oil leakage
that did not affect the operation of the crane, but that old cranes
leak hydraulic fuel.” It also adopted the testimony of Edward Roy,
an expert in crane operations and inspections, who concluded, after
his post-accident inspection, that the crane had “no structural
deficiencies, only cosmetic problems.” Finally, it concluded that
“time was spent on repairs on April 27-28, 2000," days before
turnover to Stevedores, by Angela in an effort to fix whatever
problems the crane was experiencing while under Coastal’s control.
Cumulatively, these findings of fact suggest that the crane
had no latent hydraulics defect at the time of turnover, and that
its jerking at the time of the accident must have had an alternate
cause. It also establishes that, even if there were latent
defects, Angela had no knowledge of them, as it believed that it
had repaired whatever problems the crane was experiencing by the
time of turnover. Vessel liability cannot be sustained if either
there were no latent defects or the vessel did not have knowledge
of the defects. See Howlett, 512 U.S. at 98-
99, 114 S. Ct. at
2063. Thus the district court’s finding that Angela had knowledge
of a latent hydraulics defect at the time of turnover is
insupportable by its own factual conclusions.
Even if there was a hydraulics problem, the real cause of the
accident, as established by the district court, was the jerking of
24
the crane. The district court merely assumes the jerking was
caused by a hydraulics problem. This jerking, whatever its cause,
by Stevedores’ own admission, was quite apparent to them. The
district court in its factual findings determined that the
Stevedores’ crane operator had “a critical problem with the
operation of the crane when he first used it.” It also cited
additional testimony from Stevedores’ employees Henry Gaston, John
Dunham, and Willie Davis establishing that the crane was operating
erratically and was clearly malfunctioning. Thus, based on the
district court’s factual findings, it was clear to Stevedores that
the crane was malfunctioning, and more importantly that it was
jerking in a manner that eventually led to the accident.
The defect in the crane that is the stated cause of the
accident was open and obvious to Stevedores. Even assuming the
crane had a latent hydraulics defect, of which Stevedores was
unaware, it was certainly aware of the jerking and erratic
movements that were a clear manifestation, if not of a hydraulics
problem, of a malfunctioning crane. Any longshoremen there, “if
reasonably competent in the performance of his work,” should have
realized what would have been obvious to any laymen, that the crane
was malfunctioning and was a danger to everyone around it. See
Howlett, 512 U.S. at 98-
99, 114 S. Ct. at 2063.
The majority opinion affirms the district court’s conclusion
that, even if the defects were open and obvious, there were no
25
viable alternatives to using the malfunctioning crane because: 1)
using a different crane would have been unduly time consuming; 2)
in the past, Angela had not accepted responsibility for stand-by
time of stevedores refusing to unload cargo due to repair; and, 3)
Stevedores would lose future business. Applying the incorrect
standard of review, the majority opinion further concludes that
“when there are two permissible views of the evidence” there can be
no clear error.
The district court’s view of the evidence is impermissible
under our precedent. In Greenwood v. Societe Francaise De, 111
F.3d 1239, 1248 (5th Cir. 1997), we did not apply the ‘no viable
alternative’ exception when a stevedore used a crane despite its
open and obvious defects because “[the stevedore] presented no
evidence that [the crane operator] was instructed to continue to
use the crane despite the defect or that he would face trouble for
delaying the work.”
Id. (internal quotations omitted). We relied
on the fact that the vessel was never informed of the problem,
id.
at 1243, and that the crane operator knew immediately that the
crane was not operating properly,
id. at 1246-47, to absolve the
vessel of liability.
Applying Greenwood, I believe the ‘no viable alternative’
exception should not be applied in this case. There is no evidence
showing that Stevedores requested the crane be fixed or that
operations cease until repairs were made. According to the
26
district court, the crane operator knew immediately that the crane
was having problems. He complained to Angela about the crane’s
jerking and was advised to “slam the stick” to stop the jerking.
Either the crane operator found the advise satisfactory or he made
the decision not to inform Angela that the problem was more
substantial and required more thoughtful attention. Further, there
is no evidence Angela informed Stevedores that it would not make
needed repairs, or that there would be reprisals for requesting
repairs.
The only evidence suggesting that a dispute as to payment for
down time during repairs might ensue was Coastal’s records
evidencing its dispute with Angela over such payment. There,
however, is no evidence demonstrating Stevedores had access to
those documents or otherwise had knowledge of that dispute prior to
discovery in this case. Consequently, it could not have been
deterred by knowledge of that dispute at the time it decided to not
request repairs.
Coastal, in contrast, was not deterred by the potential for
dispute with Angela. It twice requested that the crane be
repaired, and both requests were honored by Angela. The purpose of
the ‘no viable alternative’ exception is to sustain liability
against the vessel when the shipowner creates conditions where the
stevedore feels compelled to face an open and obvious hazard. This
exception, however, should not be used to provide stevedores an
27
excuse for not demanding repairs in the face of open and obvious
dangers to their longshoremen. This would defeat the intent of the
1972 Amendments to shift responsibility for the safety of the
longshoremen from the vessel to the stevedore. See Howlett, 512
U.S. at 97, 114 S. Ct. at 2063.
These policy goals would similarly be defeated by excusing
Stevedores’ behavior due to the competitiveness of the industry.
Stevedores will be less likely to request repairs if they know they
will not be held liable for their failure to do so. OSHA
regulations have already recognized this concern and require:
“Cranes with a visible or known defect that affects safe operations
shall not be used. Defects shall be reported immediately to the
officer in charge of the vessel.” 29 C.F.R. § 1918.55(a).13
Shifting liability from the stevedore to the vessel would not only
defeat the purposes of the 1972 Amendments and OSHA regulations, it
would increase the likelihood of tragic accidents such as this one
by eliminating the stevedore’s incentive to demand repairs in the
face of apparent danger to its employees.
Nothing in the record suggests, and the district court did not
find, that Angela communicated to Stevedores that it would either
not make repairs, or not compensate the longshoremen if repairs
were requested. Nor does the record, or the district court’s
13
It is clear that Stevedores violated this regulation by not
refusing to operate the crane once it determined it was
malfunctioning.
28
findings, suggest that Stevedores requested repairs and was
refused. The district court’s conclusion that Stevedores’
alternatives to facing the hazard were unduly impracticable is
inconsistent with its own factual findings, the precedent of this
Court, and with the policies behind the 1972 Amendments of the
Harbor Workers Compensation Act as annunciated by the Supreme Court
in Scindia and Howlett.
Although sustaining liability under the “turnover duty” is
inappropriate, the Supreme Court has recognized two other duties
shipowners owe to longshoremen: the “active control duty” and the
“duty to intervene.” Howlett, 512 U.S. at 98, 114 S. Ct. at 2063.
The district court properly sustained liability under the “duty to
intervene.”14
The shipowner has a “duty to intervene and repair” if it knows
of the defect and knows the stevedore’s continued use of the
machine “present[s] an unreasonable risk of harm to the
longshoremen . . . .” Scindia, 451 U.S. at 175-76, 101 S. Ct. at
1626. This means that “a vessel has a duty to intervene when it
14
Liability cannot be sustained under the “active control duty.”
This duty requires the vessel “exercise due care to avoid exposing
longshoremen to harm from hazards they may encounter in areas or
from equipment under the active control of the vessel during the
stevedoring operation.” Scindia, 451 U.S. at 167,
101 S. Ct. 1622.
If the vessel relinquishes control over an area or a piece of
equipment to the stevedore the duty is extinguished. See
Pimental,
968 F.2d at 16. At the time of turnover, Angela relinquished
complete control over the crane to Stevedores. Therefore Angela
fully extinguished its “active control duty.”
29
has actual knowledge of a dangerous condition and actual knowledge
that the stevedore, in the exercise of “obviously improvident
judgment, has failed to remedy it.” Greenwood, 111 F.3d at 1248.
Additionally, the longshoreman must show that the shipowner: 1) had
actual knowledge that the defect posed unreasonable risk of harm;
and 2) actual knowledge that it could not rely on the stevedore to
protect its employees.
Id. As the shipowner defers to the
expertise of the stevedore in the operation of the equipment,
“[t]he shipowner’s obligation to intervene . . . is narrow and
requires something more than mere shipowner’s knowledge of a
dangerous condition.”
Id. at 1249 (internal quotations omitted).
Thus, “for the expert stevedore’s judgment to appear ‘obviously
improvident,’ that expert stevedore must use an object with a
defective condition that is so hazardous that anyone can tell that
its continued use creates an unreasonable risk of harm even when
the stevedore’s expertise is taken into account.”
Id.
The district court found that the crane’s “erratic motions
were clearly observable by ship personnel, who alone did or should
have recognized the mechanical problems reflected.” Angela argues
we should follow our holding in Greenwood where we did not apply
the duty to intervene in a similar situation where a longshoremen
was injured due to a crane’s erratic jerking, and where the
shipowner knew of the crane’s problems and allowed the stevedore to
continue to use the crane despite this knowledge. See
id.
30
However, in that case we relied on the vessel’s lack of
“specialized knowledge” to find that it did not know that the crane
“posed an unreasonable risk of harm.”
Id. That is not the case
here. Angela had specialized knowledge that the crane had recently
experienced severe hydraulics problems evidenced by jerking and
erratic motions. Those problems required shutting down the crane
and involved multiple days of repair work. Stevedores informed
Angela that the crane was jerking and moving erratically, thus
Angela affirmatively knew the crane was malfunctioning as it did
under Coastal’s control, and thus was likely a danger to the
longshoremen, as it had been the week before.
Angela knew that Coastal, based on its expertise as a
stevedore, had demanded the cessation of its use of the crane, at
least in part, due to fear of injury to its longshoremen from the
crane’s jerking. Thus, after Stevedores informed Angela of the
jerking and erratic motions, and did not cease operation of the
crane, based on its specialized knowledge, Angela should have known
that Stevedores’ decision to continue working was improvident, and
should have stopped use of the crane for inspection to determine
the cause of the jerking.15 Angela had specialized knowledge not
15
Although the crane may not have had a hydraulics problem,
something was clearly causing the jerking and erratic motions.
That something may, as Angela alleges, have been the way Stevedores
was operating the crane. However, knowing the obvious danger the
jerking, regardless of its source, posed to the longshoremen,
Angela should have stopped use of the crane to determine the
problem when Stevedores failed to do so.
31
only that the crane had recently malfunctioned, but also that due
to that malfunctioning the proceeding stevedore had demanded
repairs. This specialized knowledge, coupled with its knowledge
that the crane was malfunctioning as it did when Coastal demanded
repairs, in a manner that was blatantly dangerous to the
longshoremen, demonstrates that Angela was in a position to
determine that continued use of the crane “posed an unreasonable
risk of harm.”
This result is consistent with the purpose of the 1972
Amendments as it allocates a portion of the liability to the vessel
when it is in a unique position to prevent the relevant danger.
Due to both its specialized knowledge of the crane’s recent
maladies, and knowledge of the crane’s obvious malfunctioning while
under Stevedores’ control, Angela was in a position to veto
Stevedores’ improvident decision. This result, rather than
absolving the stevedore of its responsibility for the protection of
the longshoremen, as with the majority opinion’s result, simply
adds an additional layer of responsibility for their protection, in
this case, to the shipowner, when it has “specialized knowledge” of
an “unreasonable risk of harm” to the longshoremen.
II
The district court determined that Angela was 65% at fault for
the accident, Stevedores was 35% at fault, and that the decedent
was 5% at fault. The district court enjoys wide discretion in
32
awarding damages, and its determinations are reviewed for clear
error. Trico Marine Assets Inc. v. Diamond B Marine Services Inc.,
332 F.3d 779, 791 (5th Cir. 2003). Considering, under the “duty to
intervene,” the stevedore is primarily at fault for not ceasing use
of the machinery, and the shipowner is only secondarily at fault
for not vetoing that decision, the district court’s allocation of
liability is clearly erroneous because it does not apportion the
largest percentage of fault to the party most responsible for the
accident. Cf. McDermott, Inc. v. Clyde,
511 U.S. 202, 207, 114 S.
Ct. 1461, 1465,
128 L. Ed. 2d 148 (1994) (citing United States v.
Reliable Transfer Co., Inc.,
421 U.S. 397, 411,
95 S. Ct. 1708,
1715-16,
44 L. Ed. 2d 251 (1975) (“when two or more parties have
contributed by their fault to cause . . . damage . . . [liability]
is to be allocated among the parties proportionately to the
comparative degree of their fault”)).
While not explaining its reasoning as to its determination of
Angela’s particular percentage of fault, the district court appears
to have relied primarily on the turnover duty to establish the
vessel’s liability.16 As it further concluded that the latent
hydraulics defect was the primary cause of the accident, it
allocated the lion’s share of fault to Angela.
16
Although the district court established liability under each
of the vessel’s duties to longshoremen, it primarily relied on the
turnover duty to establish Angela’s fault and thus the vessel’s
allocation of fault.
33
As explained above, the true cause of the accident was the
jerking of the crane, a symptom of either problems with the crane
or with its operation by Stevedores. Either way, as the crane was
under the full active control of Stevedores, and the turnover duty
was not violated, the decision to operate the jerking crane rested
with Stevedores, and thus the primary responsibility for the
accident also lies with it. Angela did, of course, have both the
opportunity and the responsibility to veto Stevedores’ decision;
however, as established in Scindia and Howlett, the stevedore
retains the primary responsibility for the safety of the
longshoremen. Scindia, 451 U.S. at 170, 101 S. Ct. at 1623;
Howlett, 512 U.S. at
97, 114 S. Ct. at 2063. Thus, the district
court’s determination of fault cannot be sustained.
III
For the preceding reasons I would affirm the district court’s
judgment under the “duty to intervene” only. I would vacate the
district court’s allocation of liability and remand for calculation
of fault under the “duty to intervene” only. I would lastly affirm
both the reduction in the non-pecuniary damages award and the
district court’s holding that it lacked authority to increase the
security post-judgment. Accordingly, I concur in part and dissent
in part.
34
35
