Thezan v. Maritime Overseas Corp.

• Decision Date: 27 June 1983
• Docket Number: No. 82-3334,82-3334
• Citation: 1985 A.M.C. 1278,708 F.2d 175
• Parties: Eugene V. THEZAN, Plaintiff-Appellant, v. MARITIME OVERSEAS CORPORATION, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 175

708 F.2d 175

1985 A.M.C. 1278

Eugene V. THEZAN, Plaintiff-Appellant, v. MARITIME OVERSEAS CORPORATION, et al., Defendants-Appellees.

No. 82-3334

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

June 27, 1983.

Silvestri & Massicot, Frank A. Silvestri, New Orleans, La., for plaintiff-appellant.

Phelps, Dunbar, Marks, Claverie & Sims, Delos E. Flint, Jr., Clayton G. Ramsey, New Orleans, La., for Natalie Tankship.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, JOHNSON, and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

This action arises from injuries sustained by appellant, Eugene Thezan, while serving as an officer and second engineer aboard the S/T OVERSEAS NATALIE, a vessel operated by the Natalie Tankship Corporation. Thezan filed suit in district court against his employer under the Jones Act, 46 U.S.C. Sec. 688, on the grounds that his injuries were caused by the negligence of Natalie Tankship and the unseaworthiness of the S/T OVERSEAS NATALIE. Following a four-day trial, the jury returned a verdict finding the NATALIE a seaworthy vessel, but the Natalie Tankship Corp. negligent. The jury set Thezan's damages at $60,000, but found Thezan's own negligence made a 90% contribution to his injury, reducing his damage award to $6,000. The jury additionally awarded maintenance and cure in the amount of $10 per day for a period of 100 days. Thezan then filed motions for judgment notwithstanding the verdict, additur, and alternatively, for a new trial, all of which were denied. On appeal, Thezan argues (1) that the district court erred in failing to grant his motion for a judgment notwithstanding the verdict because the NATALIE was unseaworthy as a matter of law; (2) that the company's negligence was the sole cause of the accident and that Thezan could not have been contributorily negligent as a matter of law; (3) that the district court's response to written questions from the jury was improper; and (4) that the evidence did not support the amount of the jury's quantum and maintenance and cure awards. Finding no merits to any of these contentions, we affirm the judgment of the district court.

I. Facts

Eugene Thezan had served for eleven years as an officer and second engineer aboard the S/T OVERSEAS NATALIE, an oil tanker which transports oil through the Panama Canal to the Gulf Coast. Among his duties was to maintain the vessel's boiler system. This maintenance involves periodic cleaning which entails removing a number of bottom waterwall doors. Both parties agree that removal of these doors, which are made of steel and brick and weigh approximately 170 pounds, is an arduous job. On June 23, 1978, the NATALIE's chief engineer, Joseph Kapiko, ordered Thezan to shut down and clean the boilers. At the time of the order, four men were working overtime in the engine room who were available to assist Thezan with the removal of the waterwall door. The first assistant engineer, Jesse Sweet, who testified that he had helped Thezan in the past with the doors, was also available. The evidence also shows, however, that Thezan had alone removed the doors many times in the past. In any event, Thezan did not request assistance and proceeded to remove one of the doors alone. During the course of this work Thezan noticed an unusual sensation in his neck, and by the next morning was suffering severe pain in his neck and shoulder and had no feeling in his right leg. Medical examinations onshore in Panama City indicated that Thezan had sustained a herniated cervical disc. ¹ He was operated on on June 30, and flown back to the United States to recuperate. On October 10, 1978, Thezan returned to duty as second engineer aboard the NATALIE. Seven months later, he quit and began work with another shipping company.

II. Unseaworthiness

Thezan first argues that the trial court erred in its failure to grant his motion for a judgment notwithstanding the verdict with respect to the jury finding of the NATALIE's seaworthiness. ² Specifically, he argues that the jury's finding that the employer was negligent was "inconsistent" with its finding that the vessel was not unseaworthy. Implicit in this claim is Thezan's assertion that the jury's finding of negligence on the part of Natalie Steamship Company was necessarily predicated upon a finding that the company had failed to provide Thezan with the manpower required to remove the boiler door safely. Because an inadequate or improperly manned vessel is considered unseaworthy as a matter of law, Comeaux v. T.L. James & Co., Inc., 666 F.2d 294, 299 (5th Cir.1982), he asserts that judgment notwithstanding the verdict was proper.

A motion for a directed verdict or judgment notwithstanding the verdict on an unseaworthiness claim may be granted only where "reasonable minds could not differ" that the injuries received by the plaintiff were or were not caused by the vessel in question being unseaworthy. Robinson v. Zapata Corp., 664 F.2d 45, 47 (5th Cir.1981); Allen v. Seacoast Products, Inc., 623 F.2d 355, 359 (5th Cir.1980). If reasonable men could arrive at a contrary verdict, denial of the motion was proper. In considering the motion, the court must view the evidence in the light most favorable to the opposing party. ³

Neither side disputes that the machinery or equipment of the NATALIE was seaworthy. Thus, Thezan's conception of unseaworthiness is based solely upon his assertion that the vessel was improperly manned so that he received inadequate help. Uncontradicted evidence produced at trial indicated that the NATALIE satisfied the Coast Guard regulations with respect to crewing requirement aboard oil tankers. ⁴ The chief engineer Kapiko and the first assistant engineer Sweet testified that Thezan, as an officer and second engineer, had the authority to order men on his watch to assist him and that additional men, subject to his authority, were available at the time of the accident. ⁵ Thezan argues that it was the chief engineer's responsibility to provide him with adequate help in the form of a specifically assigned crewman at the time he ordered the work, and that Thezan himself did not have the authority to order men to assist him. He also disputes the appellee's assertion that adequate manpower was available.

Certainly the testimony presented at trial indicated that reasonable minds could arrive at a contrary verdict with respect to whether the NATALIE was improperly manned. In addition, we note that Thezan's argument--that the jury's finding that the defendant was negligent was based on the failure to provide Thezan with adequate assistance to remove the door--asks us to inquire into the "presumptions and inferences" that "flow from" the jury's finding of negligence. It is a cardinal principal of jurisprudence that we are not allowed to speculate as to the thought processes of the jury. Moreover, it is well-established that Jones Act negligence and unseaworthiness are two distinct claims, Usner v. Luckenback Overseas Corp., 400 U.S. 494, 500, 91 S.Ct. 514, 518, 27 L.Ed.2d 562 (1971), and individual acts of negligence do not always create conditions of unseaworthiness. See also Alverez v. J. Ray McDermott & Co., Inc., 674 F.2d 1037, 1041 (5th Cir.1982) (jury's findings of Jones Act negligence and no unseaworthiness were not inconsistent). ⁶ We cannot assume that the jury concluded that Thezan was ordered to do a job without assistance and that this constituted the negligence found by the jury. The jury could have found the negligence on the part of the employer for reasons other than lack of crew members to assist, since Thezan made other negligence claims not related to seaworthiness. There is no requirement that because the jury returned a verdict finding negligence that it should have also returned a verdict finding unseaworthiness.

III. Contributory Negligence

Thezan next complains that the district court improperly denied his motions for judgment notwithstanding the verdict or a new trial on the issue of contributory negligence. As discussed earlier, the jury awarded Thezan $60,000, but reduced this award by 90% under the comparative negligence doctrine because it found that Thezan was 90% contributorily negligent. Thezan argues that the appellee did not meet its burden of proof with respect to the affirmative defense of contributory negligence. Specifically, Thezan argues that he had no duty to request help in removing the boiler door, and that he cannot be held responsible for the chief officer's failure to assign personnel to assist him.

In Jones Act cases, directed verdicts are possible "only in the comparatively rare instance where there is a complete absence of probative facts" to support the non-movant's position. Robinson v. Zapata Corp., supra, 664 F.2d at 49. Accord, Robert v. Conti Carriers & Terminals, Inc., 692 F.2d 22, 27 n. 15 (5th Cir.1982); Comeaux v. T.L. James & Co., 666 F.2d 294, 298 n. 3 (5th Cir.1982). We cannot agree that there was a "complete absence of probative facts" to support the jury's conclusion that Mr. Thezan himself was negligent.

While the seaman's duty to protect himself is slight, the duty does exist. Bobb v. Modern Products, Inc., 648 F.2d 1051, 1056-57 (5th Cir.1981). Contributory negligence is available to mitigate a vessel owner's liability when an injured seaman has been negligent in breaching a duty to act or refrain from acting. Comeaux v. T.L. James & Co., supra, 666 F.2d at 299. A seaman generally has no duty to find the safest way to perform his work. But where it is shown that there existed a safe alternative available of which he knew or should have known, a seaman's course of action can be properly considered in determining whether he was negligent. Ceja v. Mike Hooks, Inc., 690 F.2d 1191, 1195 (5th Cir.1982); Joyce v. Atlantic Richfield Co., 651 F.2d 676, 682-83 (10th Cir.1981). See also Robinson v. Zapata Corp., supra, 664 F.2d...