882 F.2d 976 (5th Cir. 1989), 88-3325, Miles v. Melrose

Docket Nº:88-3325.
Citation:882 F.2d 976
Party Name:Mercedel W. MILES, Individually and as Administratrix of the Succession of Ludwick Adam Torregano, Plaintiff-Appellant, Cross-Appellee, v. Clifford A. MELROSE, et al., Defendants, Apex Marine Corp., Westchester Marine Shipping Co., Inc., and Archon Marine Co., Defendants-Third Party Plaintiffs-Appellees, Cross-Appellants. AERON MARINE COMPANY, Defe
Case Date:September 11, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 976

882 F.2d 976 (5th Cir. 1989)

Mercedel W. MILES, Individually and as Administratrix of the

Succession of Ludwick Adam Torregano,

Plaintiff-Appellant, Cross-Appellee,

v.

Clifford A. MELROSE, et al., Defendants,

Apex Marine Corp., Westchester Marine Shipping Co., Inc.,

and Archon Marine Co., Defendants-Third Party

Plaintiffs-Appellees, Cross-Appellants.

AERON MARINE COMPANY, Defendant-Appellee,

v.

SEAFARERS INTERNATIONAL UNION, ATLANTIC, GULF, LAKES, AND

INLAND WATERS DISTRICT, AFL-CIO, Defendant-Third

Party Defendant-Appellee.

No. 88-3325.

United States Court of Appeals, Fifth Circuit

September 11, 1989

Rehearing and Rehearing En Banc Denied Oct. 11, 1989.

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[Copyrighted Material Omitted]

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Allain F. Hardin, New Orleans, La., for Mercedel W. Miles.

Gerard T. Gelpi and Randall C. Coleman, III, New Orleans, La., for Apex Marine Corp., et al.

William Lurve and Louis L. Robein, Jr., Metaririe, La., for Seafarers Intern. Union.

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

Page 980

Before RUBIN, POLITZ and JOHNSON, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A mother seeks to recover for the death of her son, a steward's assistant on the defendants' vessel, who was stabbed to death by another crewmember. She contends she is entitled to damages for negligence under the Jones Act 1 and for unseaworthiness under the general maritime law. The defendants seek indemnity from the union, whose hiring hall had referred the assailant to the vessel, for its failure to warn the shipowner of the assailant's violent propensities. The district court dismissed the suit against the union for failure to state a claim. The jury found for the defendants on the unseaworthiness claim and for the plaintiff on the Jones Act claim.

Finding that the plaintiff has demonstrated unseaworthiness of the vessel as a matter of law, we reverse. We affirm the judgment finding the defendant negligent under the Jones Act, but find a complete absence of probative facts to support the jury's verdict that the victim contributed to his death, and therefore reverse the judgment on contributory negligence. In affirming the district court's determinations on the damages issues, we hold that under the general maritime law a seaman's estate may not recover for lost future earnings and nondependent parents may not recover for loss of society, even if the seaman was not survived by spouse or child. Finally, we reverse the dismissal of the duty-to-warn claim against the union and remand for its factual development.

I.

In June 1984, Ludwick Torregano, a twenty-four year old seaman, was employed as a steward's assistant on board the vessel M/V ARCHON on its maiden voyage from Korea to Portland, Oregon. The vessel was owned by the Aeron Marine Company, bare-boat chartered to Archon Marine Corporation, and operated by Apex Marine Corporation and Westchester Marine Shipping Company, Inc. (collectively "the defendants" or "Apex"). The seamen were hired pursuant to a collective bargaining agreement between Apex and the Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO ("the union").

Torregano was the lowest-ranking member in a three-person galley department, along with James Jackson, the chief steward/baker, and the chief cook, who left the vessel in Portland and was replaced by Clifford Melrose on July 5. Joseph A. Acquarone, the captain of the vessel, testified that soon after Melrose signed on he expressed his dissatisfaction with the working conditions aboard the vessel and repeatedly asked to be released. On July 18 at 5:20 in the afternoon, the captain told Melrose that he had been replaced and would be put off at the next port of call. Jackson stated that around 6:30 that same day, Melrose provoked an argument with him, in which Melrose accused him of being a weak steward, being too permissive with Torregano, and complained about Torregano's and Jackson's work. Jackson thought Melrose was hostile, argumentative, angry, and under the influence of alcohol.

Less than a hour later, Jackson went to Torregano's room and found him on the floor lying in a pool of blood. Blood was spattered on the walls and furniture. Jackson went to inform the Captain that Torregano had been killed, and both men returned to the room. Outside in the hallway, Jackson saw Melrose standing naked and wet, with a blood-stained towel wrapped around his arm.

The coroner's report established that Torregano had been stabbed or cut at least 62 times and had died of stab wounds to the chest and heart. Tests showed a negligible amount of alcohol in his system and no trace of drugs. The night of the murder, Melrose had a .19gm% level of blood alcohol. A jury in Clark County, Washington, convicted Melrose of second degree murder.

Page 981

Mercedel Miles, Torregano's mother and administratrix of his estate, sued the defendants under the Jones Act and the general maritime law. She also sued Melrose, but he was outside the jurisdiction of the district court and could not be served. Miles amended her complaint to add a claim against the union and the defendants filed a third party complaint against the union. The district court dismissed those actions for failure to state a claim. Joseph O. Torregano, the victim's father, sued the defendants for loss of society under the general maritime law.

At the close of the plaintiffs' case at trial, the court granted the defendants' motion to strike the claim for punitive damages and the claim of Joseph O. Torregano for loss of society. At the end of defendants' case, the court denied plaintiffs' motion for a directed verdict on the unseaworthiness and Jones Act negligence claims.

The jury found that (1) the defendants were negligent and Torregano was 7% contributorily negligent in causing Torregano's death; (2) the M/V ARCHON was not unseaworthy; (3) the estate should be compensated $140,000 for the pain and suffering of Torregano prior to his death; (4) Miles should be compensated $7,800 for the loss of support and services of her son; (5) Joseph Torregano is not entitled to recover damages for his loss of services from his son; and (6) Miles was not financially dependent upon Torregano and accordingly not entitled to damages for loss of society. The court denied both parties' motions for judgment notwithstanding the verdict.

II.

Miles contends that the district court should have entered a judgment that the vessel was unseaworthy as a matter of law notwithstanding the jury's contrary verdict. A ship is unseaworthy unless it and all of its appurtenances and crew are reasonably fit and safe for their intended purpose. 2 The shipowner has an absolute duty to provide the members of his crew with such a seaworthy vessel, an obligation not dependent on fault. 3 Just as a dangerous mast, a defective line, or a damaged hull may render a vessel unseaworthy, so may a seaman who is not reasonably fit. 4 To establish such unseaworthiness, a plaintiff must prove that the crewmember was not "equal in disposition and seamanship to the ordinary men in the calling." 5 Under this standard a crew member who participates in an "ordinary sailors' brawl" is not per se unfit; 6 the rigors of work at sea for long periods of time in the close confines of a vessel may lead not only to quarrels but to physical challenges. As Judge Learned Hand explained, "Sailors lead a rough life and are more apt to use their fists than office employees; what will seem to sedentary and protected persons an insufficient provocation for a personal encounter, is not the measure of the 'disposition' of 'the ordinary men in the calling.' " 7 A seaman is not unfit merely because he is irascible; he fails to meet the seaworthy standard only if he posseses a savage and vicious nature. 8

A crew member's malevolence may be proved by independent evidence with regard to his disposition or by direct evidence showing that he launched a vicious and unprovoked attack. 9 Because what

Page 982

constitutes fitness is largely a fact-specific inquiry, courts rarely determine whether as a matter of law the temperament of a seaman renders a vessel unseaworthy. This court, however, has done so in cases involving an extremely violent assault. In Clevenger v. Star Fish & Oyster Company, 10 the first mate stabbed a fellow seaman in the back with a four-foot-long ice chisel following an exchange of "unpleasantries." The court reasoned,

We extract from the cases the principle that in itself a savage assault with a meat cleaver or similarly dangerous weapon can be sufficient proof that the attacker is "not equal in disposition and seamanship to the ordinary men in the calling." Drunkenness and bellicosity are additional factors to consider when the nature of the assault is inconclusive evidence of the attacker's fitness in terms of his calling. 11

Similarly, in Claborn v. Star Fish & Oyster Company, 12 we found unseaworthiness as a matter of law when one crewmember stabbed another to death in an assault that was "unprovoked, sudden, extraordinarily savage, and fatal." 13

The evidence of the nature of the assault here leaves no doubt that Melrose had an extraordinarily violent disposition. He did not merely exchange blows with Torregano or fail to follow the Marquis of Queensberry's rules. Melrose inflicted 62 knife wounds on Torregano: 12 cutting and stabbing wounds to the face, neck, and scalp; 29 stab wounds to the front and back of his chest and abdomen; and 21 wounds to his extremities. The coroner testified that the wounds on Torregano's arms were defense wounds, caused by an instinctive reaction to escape injury, characteristic of an effort to put up his hands to ward off the knife. Because some of the wounds were concentrated in one area on Torregano's back,...

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