479 F.2d 489 (6th Cir. 1973), 72-1667, Petition of United States Steel Corp.

Docket Nº:72-1667, 72-1668.
Citation:479 F.2d 489
Party Name:Petition of UNITED STATES STEEL CORPORATION, as Owner of the STEAMSHIP CEDARVILLE, and the Petition of Den Norske Amerikalinje A/S, as Owner of the M/V TOPDALSFJORD, for Exoneration From or Limitation of Liability. v. UNITED STATES STEEL CORPORATION and Den Norske Amerikalinje A/S, Petitioners-Appellees. Barbara J. FUHRMAN, Administratrix of the Es
Case Date:May 01, 1973
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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479 F.2d 489 (6th Cir. 1973)

Petition of UNITED STATES STEEL CORPORATION, as Owner of the STEAMSHIP CEDARVILLE, and the Petition of Den Norske Amerikalinje A/S, as Owner of the M/V TOPDALSFJORD, for Exoneration From or Limitation of Liability.

Barbara J. FUHRMAN, Administratrix of the Estate of Arthur J. Fuhrman, Deceased, et al., Claimants-Appellants,


UNITED STATES STEEL CORPORATION and Den Norske Amerikalinje A/S, Petitioners-Appellees.

UNITED STATES STEEL CORPORATION and Den Norske Amerikalinje A/S, Cross-Appellants,


Billy R. HOLLEY et al., Cross-Appellees.

Nos. 72-1667, 72-1668.

United States Court of Appeals, Sixth Circuit.

May 1, 1973

Argued Dec. 5, 1972.

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Joseph Keig, Jr., Chicago, Ill., Lucian Y. Ray, Cleveland, Ohio, for United States Steel Corp. & Den Norske Amerikalinje A/S; Roman T. Keenen, Lucian Y. Ray, Cleveland, Ohio, on brief for United States Steel Corp.; Ray, Robinson, Keenen & Hanninen, Cleveland, Ohio, of counsel; Thomas O. Murphy, Cleveland, Ohio, Edward S. Silber, Chicago, Ill., on brief for Den Norske Amerikalinje A/S; Price, Cushman, Keck & Mahin, Chicago, Ill., Johnson, Branand & Jaeger, Cleveland, Ohio, of counsel.

Abraham E. Freedman, Philadelphia, Pa., for Barbara J. Fuhrman, Billy R. Holley and others; Martin J. Vigderman, Freedman, Borowsky & Lorry, Philadelphia, Pa., J. Harold Traverse, Cleveland, Ohio, on brief.

Before PHILLIPS, Chief Judge, and WEICK and PECK, Circuit Judges.

JOHN W. PECK, Circuit Judge.

This admiralty case is making its third appearance before this Court. It arose out of a ship collision in the Straits of Mackinac in May 1965 between ships owned by United States Steel and Den Norske. 1 Claimants are the seven seamen who were allegedly injured and the widows and administratrices of the estates

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of the three seamen who lost their lives when the bulk steamship Cedarville, owned by United States Steel, sunk following its collision with the Norwegian ship Topdalsfjord, owned by Den Norske. All the decedents and surviving claimants were crewmembers of the Cedarville. The parties shall be referred to as claimants or shipowners, or by their proper names.

Both shipowners admitted liability to the seamen involved, leaving open the question of punitive damages against United States Steel and compensatory damages against both shipowners. The issues as to damages were then split. The District Court awarded punitive damages but we reversed on appeal. United States Steel v. Fuhrman, 407 F.2d 1143 (6th Cir. 1969). To resolve the issue of compensatory damages, the District Court appointed two Commissioners to receive evidence and make findings. Five of the wrongful death claims and seven of the personal injury claims were the subject of the District Court proceedings. The District Court confirmed the Commissioners' report and entered judgments in favor of all the claimants in the amounts determined by the Commissioners. On appeal, it was concluded, inter alia, that principles of maritime law governed and loss of consortium and loss of companionship to children were therefore not compensable. Certain psychiatric testimony was found to have been incompetent and the causes were remanded for a reevaluation and further findings on the basis of the record and the principles enunciated in that opinion. United States Steel Corporation v. Lamp, 436 F.2d 1256 (6th Cir. 1970). On remand, the District Court ordered that no further evidence be adduced, but allowed the proffer of the evidence into the record. A recomputation based upon this Court's opinion was prepared and all exceptions and objections thereto were overruled. This action followed and concerns three death claims (two were settled since the previous hearing by this Court) and the seven personal injury claims. The total award for the ten claimants upon this appeal is $763,317.70 as compared to the total award of $1,793,543.00 which was before this Court in the last appeal. 2 Both the shipowners and the claimants have appealed the decision of the District Court. The shipowners concede the propriety of the death awards but appeal the personal injury awards. The claimants appeal all the awards as being inadequate.

Since the District Court's implementation of our remand instructions is at issue on this appeal, we shall review at the outset some applicable principles. It is clear that when a case has been remanded, the trial court must upon the remand proceed in accordance with the mandate and law of the case as established by the appellate court. Ex parte Sibbald v. United States, 12 Pet. (37 U.S.) 488, 9 L.Ed. 1167 (1838); 1B Moore's Federal Practice § 0.404 [10] (2d ed. 1965). This is known as the "law of the case" doctrine and operates to preclude

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reconsideration of identical issues. 3 The basis of the doctrine is that:

". . . 'there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions or speculate of chances from changes in its members. [sic]' Roberts v. Cooper, 20 How. [61 U.S.] 467, 481, 15 L.Ed. 969; and it would be impossible for an appellate court to perform its duties satisfactorily and efficiently if a question once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal. Great Western Telegraph, 162 U.S. 339, 344, 16 S.Ct. 850, 40 L.Ed. 991." General American Life Insurance Co. v. Anderson, 156 F.2d 615, 618 (6th Cir. 1946).

This doctrine is not, however, recognized as an inexorable command. 4 Directed to a court's good sense so as to relieve a court of rigid adherence to its former decisions 5 the doctrine includes consideration of the sound public policy that litigation be decided and then put to an end. 6 Accordingly, we must find some cogent reason to show the prior ruling is no longer applicable. Lumbermen's Mutual Casualty Co. v. Wright, 322 F.2d 759, 762 (5th Cir. 1963). Such reasons may include substantially different evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling authority; or a clearly erroneous decision which would work a manifest injustice. White v. Murtha, 377 F.2d 428, 431-432 (5th Cir. 1968); cf. Trice v. Commercial Union Assurance Co., 397 F.2d 889, 890 (6th Cir. 1968). Appellants do not allege substantially different evidence nor do they claim our controlling authority has since issued contrary decisions. Thus, we consider as appropriate to our review only whether a clearly erroneous decision which would work a manifest injustice has been made.

I. CLAIMANTS' APPEAL (No. 72-1667)

The thrust of the claimants' appeal is that the District Court reduced the awards to "unconscionably inadequate" amounts. Each of the claimants' three alleged errors will be treated separately.

A. Loss of Earning Capacity

First, claimants complain the District Court confused the loss of future earning capacity with the deprivation of past earnings. They argue that, in fixing the loss of earning capacity, the District Court erroneously averaged the past four years' earnings and made this the basis for determining future earning capacity. They claim the District Court should have used the collective bargaining agreement, which covered the jobs held by the claimants, to ascertain the future earnings by projection. Their view is that past earnings should be considered only when there are no other factors to depict an economic horizon. We disagree.

We find that the claimants' arguments regarding future earning capacity were impliedly rejected by this Court earlier:

"The claimant must first establish his normal annual earning capacity, which, in the absence of evidence of special circumstances indicating an ability to rise beyond his prior level of employment, would consist of a projection of claimant's earnings history, taking into account all available data relevant to wage adjustment." 436 F.2d at 1270 (re personal injury claims).

"As we have hereinabove indicated in connection with the personal injury claims, however, the base should be the higher of the year immediately preceding the incident or the average of

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the four years preceding it." 436 F.2d at 1275 (re death claims).

In recomputing the personal injury and death claims, earnings history was selected as the base for determining lost earnings or earning capacity. This of course would be subject to change if the individuals had employment prospects other than their employment at the time of their death or injury. The record does not contain evidence of such prospects and claimants have not suggested otherwise.

As for the claimants' argument that the collective bargaining agreement should have been relied upon, this Court previously pointed out that ". . . the documentary evidence in the record in the form of the collective bargaining agreements under which the decedents would have continued to have been employed had they lived" 7 showed an annual wage increase of approximately 1 1/2% per annum. This rate was used by the District Court in their recomputation. Claimants have persistently argued the bargaining agreement reflects a 4-5% increase. This was rejected previously 8 and we must reject it again as unsupported by the agreement.

We can only conclude that the prior opinion clearly sets out the procedure to be followed by the District Court in determining the future earnings loss of both the death and the personal injury claims, and that these awards are not clearly erroneous.

B. Psychiatric Testimony

The claimants contend that the District Court erred in not granting a new trial in order for the claimants to...

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