Red Star Towing & Transp. Co. v. " MING GIANT"

• Decision Date: 04 March 1983
• Docket Number: 78 Civ. 5448 and 78 Civ. 5537 (PNL).,No. 78 Civ. 2442,78 Civ. 2442
• Citation: 552 F. Supp. 367
• Parties: RED STAR TOWING & TRANSPORTATION COMPANY, INC., Plaintiff, v. The Cargo Ship "MING GIANT", Yangming Marine Transport Corp., Defendant. In the matter of Complaint of RED STAR TOWING & TRANSPORTATION COMPANY, INC. as owner of the TUG OCEAN KING for exoneration from or Limitation of Liability. Lorraine MOWEN as Administratrix of the Estate of Dennis Mowen, Plaintiff, v. YANGMING MARINE TRANSPORT CORP., and Red Star Towing & Transportation Company, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

552 F. Supp. 367

RED STAR TOWING & TRANSPORTATION COMPANY, INC., Plaintiff, v. The Cargo Ship "MING GIANT", Yangming Marine Transport Corp., Defendant.

In the matter of Complaint of RED STAR TOWING & TRANSPORTATION COMPANY, INC. as owner of the TUG OCEAN KING for exoneration from or Limitation of Liability.

Lorraine MOWEN as Administratrix of the Estate of Dennis Mowen, Plaintiff, v. YANGMING MARINE TRANSPORT CORP., and Red Star Towing & Transportation Company, Inc., Defendants.

Nos. 78 Civ. 2442, 78 Civ. 5448 and 78 Civ. 5537 (PNL).

United States District Court, S.D. New York.

December 3, 1982.

As Modified March 4, 1983.

COPYRIGHT MATERIAL OMITTED

Theodore Friedman, Jethro M. Eisenstein, Friedman & Eisenstein, New York City, for Lorraine Mowen.

Fred J. Cuccia, Cuccia & Oster, New York City, for Lorraine Mowen.

James M. Leonard, Stephen J. Buckley, McHugh, Leonard & O'Connor, New York City, for Red Star Towing & Transp. Co.

Richard H. Brown, Jr., Harry A. Gotimer, Kirlin, Campbell & Keating, New York City, for Yangming Marine Transport Corp.

OPINION

LEVAL, District Judge.

Red Star Towing and Transportation Co. and Yangming Marine Transportation Corp. move for post-verdict relief from an award of damages in favor of claimant Lorraine Mowen. The jury found damages in the amount of $1,964,000 for the death of Dennis Mowen, plaintiff's decedent, assessing 35% against Red Star, 60% against Yangming, and charging 5% responsibility to Mowen for his own death. Defendants¹ Red Star and Yangming renew their pre-trial motions to strike Mowen's demand for a jury trial; they also move for judgment notwithstanding the verdict, and to set aside or reduce the verdict.

The motions to set aside or reduce the verdict are granted by reason of the excessiveness of the jury's award and the willful misconduct of plaintiff's counsel in tampering with the evidence transmitted to the deliberating jury. Unless plaintiff agrees to remit $665,000, the verdict will be set aside.

The motions opposing jury trial are denied, as are the motions for judgment n.o.v.

Facts

The trial lasted over three and a half months and involved proof of over 40 separate contentions of fault on the part of the various actors. A brief sketch of the facts here suffices.

At about 04:44 hours on May 20, 1978, Red Star's tug, the Ocean King, under the command for that watch of the mate, Dennis Mowen, was towing a barge in an easterly direction across the shipping lanes leading toward New York harbor about 4 miles south of Ambrose Light. Yangming's steamship Ming Giant was sailing northward toward New York harbor. The two ships were in a crossing situation. Under the International Regulations for Preventing Collisions at Sea (the Rules of the Road), 33 U.S.C. foll. § 1602 (1976), the Ocean King was the give-way vessel as she had the Ming Giant on her starboard side. Rule 15. It was the Ocean King's obligation to keep clear, Rule 16, ordinarily by making a timely starboard turn so that the vessels would pass each other port-to-port.

Mowen put the Ocean King into a starboard turn. There was some evidence that he was late in making the turn so that he crowded close to the Ming Giant's course.

As the standby vessel, the Ming Giant would ordinarily maintain her course and speed, leaving it to the give-way vessel to keep clear. Rule 17(a)(i). Ming Giant had the option under Rule 17(a)(ii), (c) to alter course to starboard to avoid close calls. She was also permitted, but only under the demands of an emergency, to turn to port. Rule 17(b), (c).

The captain of the Ming Giant mistakenly believed the Ocean King was crossing his bow. He testified he believed she was sufficiently far ahead that if he maintained course, he would collide with the tow, and if he turned right, he would hit the tug. He therefore chose the in extremis course of turning to port, which he did while the tug was making her turn to starboard. There was evidence that both vessels had failed to sound the required whistle signals until it was too late. The vessels collided. After the collision, Mowen was found to be missing. Two other seamen on the tug suffered minor injuries and both vessels were damaged. There was evidence of fault on the part of both vessels in their failure to take appropriate action to save Mowen.

Red Star first instituted an action in this court against Yangming for collision damages and indemnification for potential liability. Lorraine Mowen instituted an action in Supreme Court, New York County, for herself and her children, against both Red Star and Yangming. Red Star then petitioned in admiralty for exoneration from or limitation of liability. Mowen's state court action was removed to federal court. I issued the usual injunction under Fed.R. Civ.P. Supplemental Rule F(3) staying the prosecution of suits against Red Star outside the limitation proceeding until its resolution. Mowen, Yangming and the two other injured seamen filed claims against Red Star in the limitation proceeding. Mowen also filed a cross-claim against Yangming. The two injured seamen filed a separate action against Yangming. These seamen settled their claims against Yangming and Red Star before trial in this action.

Prior to trial, Red Star and Yangming moved to strike Mowen's demand for a jury trial. I reserved decision on the motion until after trial, empaneling a jury whose verdict could be treated as binding, advisory, or surplusage, depending on the eventual resolution of the issue.

In rendering its verdict the jury answered a number of interrogatories. It found total damages as follows:

                 loss of support             $1,414,000
                 loss of nurture                550,000
                 pain and suffering                   0
                                             __________
                 Total                        1,964,000
                

As noted above, the jury allocated responsibility to:

                           Yangming            60%
                           Red Star            35%
                           Mowen                5%
                

All of Red Star's liability and 20% of Yangming's share were attributed to the failure to rescue Dennis Mowen after the collision. The jury thus attributed 55% of responsibility for Mowen's death to the failure to rescue and 45% to the collision. Finally, the jury found Red Star management to have had privity or knowledge of the deficiencies on which it had based Red Star's liability.

Discussion

I. Motion to Strike Demand for Jury Trial

Yangming and Red Star, having preserved their position before trial, now move to strike the jury verdict in favor of a court-rendered decision. The motions are denied.

A. Contentions Based on Red Star's Limitation Action

Defendants contend that, whatever Mowen's right to a jury trial might be if her claims were litigated apart from Red Star's limitation action, she is not entitled to a jury for this claim since it was tried as a part of a limitation petition in admiralty. They point out that the total claims made in the limitation proceeding far exceed the limitation fund of roughly $35,000. In such a situation, they contend, the issue of the petitioner's right to limitation is for the judge. If limitation is granted, the judge should go on to allocate liability and determine the claimants' pro rata shares of the fund. Red Star Memorandum of July 11, 1980 at 12; Yangming Memorandum of July 11, 1980 at 25. Defendants concede that if the judge determined Red Star was not entitled to limitation of liability, the court would have discretion to dissolve the injunction against other proceedings and permit claimants to pursue their claims outside the limitation proceedings, with jury trials where appropriate. Red Star Memorandum of July 11, 1980 at 12-13; Yangming Memorandum of July 11, 1980 at 26. Plaintiff argues that under Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), the right to a jury overrides competing interests in adjudication without a jury. See Doughty v. Nebel Towing Co., 270 F.Supp. 957 (E.D.La.1967).

Both sides, accordingly, contend that the court has no discretion in the matter but must, according to defendants' view, conduct the proceedings without a jury, and according to plaintiff's view, with a jury.

I cannot accept the defendants' contention. There is no right, as opposed to a likely expectation, to a non-jury trial in admiralty. Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963), established that a litigant in admiralty is not entitled as a matter of right to a non-jury trial (admiralty action for maintenance and cure heard by jury when joined with Jones Act claim).

And I need not decide whether Dairy Queen establishes a right to jury trial in this case. Where claims with independent jurisdictional basis normally carrying a jury right, such as plaintiff's Jones Act claim, are joined with admiralty claims arising out of the same transaction or occurrence, all claims may be tried to a jury. See Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 443-47 (2d Cir.1959) (Jones Act claim), cert. denied, 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030 (1959); Best v. Honeywell, Inc., 491 F.Supp. 269 (D.Conn.1979) (D.O.H.S.A. and general maritime claims, diversity jurisdiction), aff'd without opinion sub nom. Sikorsky Aircraft Division, United Aircraft Corp. v. Honeywell, Inc., 679 F.2d 874 (2d Cir.1981); Mattes v. National Hellenic American Line, S.A., 427 F.Supp. 619, 628 (S.D.N.Y.1977) (Jones Act claim); Parsell v. Shell Oil Co., 421 F.Supp. 1275, 1276 (D.Conn.1976) (federal question jurisdiction), aff'd sub nom. East End Yacht Club v. Shell Oil Co., 573 F.2d 1289 (2d Cir.1977); Oroco Marine, Inc. v. National Marine Service, Inc., 71 F.R.D. 220 (S.D.Tex.1976) (diversity jurisdiction). I have concluded, assuming the trial judge has discretion in the matter, that the proper exercise of discretion favors jury trial.

It is beyond dispute and conceded here that, if limitation is denied, the judge is authorized to dissolve the...