Garay v. Carnival Cruise Line, Inc.

• Citation: 904 F.2d 1527
• Decision Date: 10 July 1990
• Docket Number: No. 89-5319,89-5319
• Parties: Balbino Jimenez GARAY, Plaintiff-Appellant, v. CARNIVAL CRUISE LINE, INC., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1527

904 F.2d 1527

1990 A.M.C. 2715

Balbino Jimenez GARAY, Plaintiff-Appellant, v. CARNIVAL CRUISE LINE, INC., et al., Defendants-Appellees.

No. 89-5319.

United States Court of Appeals Eleventh Circuit.

July 10, 1990.

Brett Rivkind, Miami, Fla., for plaintiff-appellant.

Rodney E. Walton, Kelley, Drye & Warren, Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and KRAVITCH, Circuit Judges, and KAUFMAN ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

Balbino Jimenez Garay ("Garay"), a seaman on board the vessel Tropicale, chartered by Carnival Cruise Lines, Inc. ("Carnival"), suffered severe head injuries when he fell down a flight of stairs on board the ship. Garay sued Carnival on the basis of maintenance and cure, and Jones Act negligence (including a claim for failure to provide adequate treatment) and unseaworthiness. Carnival asserted as a defense to maintenance and cure that the seaman had suffered injury as the result of his own willful misconduct, and the district court refused to grant Garay's motion for a directed verdict against Carnival on that defense. The jury found for the plaintiff only on his claim that the ship failed to provide him with prompt and adequate treatment. The district court, however, concluding that there was no evidence of Carnival's failure to treat promptly and adequately in accordance with its duties, granted Carnival's motion for judgment notwithstanding the verdict. 716 F.Supp. 1421. Garay appeals the grant of JNOV and the court's refusal to direct a verdict against Carnival on the willful misbehavior defense; he also challenges the admission of videotaped deposition testimony. We reverse the district court's failure to direct a verdict on the willful misconduct defense because, as a matter of law, the evidence was insufficient to establish any willful misconduct on the part of Garay. ¹

BACKGROUND

The accident occurred at approximately 7:30 in the evening. Garay had been ashore that afternoon, and between 2:30, when he went ashore, and 4:30, when he returned to the ship, he consumed four to six beers. On the way back to the ship he bought a bottle of vodka. Lazaro Ochoa, who saw Garay shortly before the accident, testified that he was intoxicated. The one crew member who saw the accident stated that Garay slipped on the third step, which was wet and waxy. ² Others stated that after Garay's fall he smelled strongly of alcohol. Garay was given emergency treatment on board the vessel, temporarily placed in the ship's hospital, and was then taken ashore in Puerto Vallarta, Mexico, where the ship was docked. Thereafter he was evacuated to San Pedro, California, where he received brain surgery and continued to receive treatment at the defendant's expense for three weeks, at which time he was repatriated to Honduras.

Garay alleged that his injuries were caused by the defendant's negligence or by the unseaworthy condition of the vessel. He further alleged that he was entitled to maintenance and cure to the point of maximum medical improvement ("MMI"). Finally, he alleged that Carnival failed to provide prompt and adequate medical attention, and that such failure had aggravated his injuries. The jury found against Garay on the negligence and unseaworthiness claims. Further, the jury found that his injuries were the result of his own willful misbehavior, thus disentitling him to maintenance and cure. Finally, however, the jury found for the plaintiff in the amount of $275,000 to compensate him for Carnival's negligent failure to provide Garay with prompt and adequate medical care, which failure caused him additional pain and disability, or prolonged his recovery. The district court granted the defendant's motion for JNOV on the failure to treat claim, on the ground that there was no support for the claim under the law or the evidence provided: insofar as Garay alleged negligent treatment, there was no evidence to support the claim; and insofar as he alleged that he was discharged before attaining maximum medical improvement, that allegation did not state a claim under the failure to treat doctrine as the shipowner had no duty to treat to the point of MMI. We reverse the district court's refusal to grant a directed verdict on the issue of willful misconduct because, given the ship's tacit policy of permitting drunkenness on board, intoxication could not constitute willful misconduct on board the Tropicale.

WILLFUL MISBEHAVIOR

A shipowner bears a large share of responsibility for the welfare of his crew. The seaman's life is hazardous--often requiring him to voyage far from shore, home, and medical help--and the shipowner must provide medical treatment and support for the seaman who becomes ill or is injured while in the service of the ship. Under maritime law, the seaman's right is called "maintenance and cure." Even if the seaman is injured through his own negligence, he does not forfeit his right to maintenance and cure.

Among the most pervasive incidents of the responsibility anciently imposed upon a shipowner for the health and security of sailors was liability for the maintenance and cure of seamen becoming ill or injured during the period of their service. In the United States this obligation has been recognized consistently as an implied provision in contracts of marine employment. Created thus with the contract of employment, the liability, unlike that for indemnity or that later created by the Jones Act, in no sense is predicated on the fault or negligence of the shipowner. Whether by traditional standards he is or is not responsible for the injury or sickness, he is liable for the expense of curing it as an incident of the marine employer-employee relationship.

Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63 S.Ct. 930, 933-34, 87 L.Ed. 1107 (1943) (footnotes and citations omitted).

In Warren v. United States, the Court declared that a seaman will not lose his right to maintenance and cure unless he engages in "positively vicious conduct--such as gross negligence or willful disobedience of orders." 340 U.S. 523, 528, 71 S.Ct. 432, 435, 95 L.Ed. 503 (1951) (citations omitted). In Farrell v. United States, the Court described the general right of the seaman to maintenance and cure while noting the almost paternalistic duty of the shipowner toward the crew:

Aside from gross misconduct or insubordination, what the seaman is doing and why and how he sustains injury does not affect his right to maintenance and cure, however decisive it may be as to claims for indemnity or for damages for negligence....

It has been the merit of the seaman's right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations. The seaman could forfeit the right only by conduct, whose wrongful quality even simple men of the calling would recognize--insubordination, disobedience to orders, and gross misconduct. On the other hand, the Master knew he must maintain and care for even the erring and careless seaman, much as a parent would a child.

336 U.S. 511, 516, 69 S.Ct. 707, 709-10, 93 L.Ed. 850 (1949). In Farrell, the injured seaman was returning late from shore leave in disobedience of his orders. Nonetheless, the Court held that he was "entitled to the usual measure of maintenance and cure at the ship's expense...." 336 U.S. at 517, 69 S.Ct. at 710.

So broad is the shipowner's obligation that negligence or acts short of culpable misconduct on the seaman's part will not relieve him of the responsibility. Conceptions of contributory negligence, the fellow-servant doctrine, and assumption of risk have no place in the liability or defense against it. Only some wilful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection. The traditional instances are venereal disease and injuries received as a result of intoxication, though on occasion the latter has been qualified in recognition of a classic predisposition of sailors ashore.

Aguilar, 318 U.S. at 731, 63 S.Ct. at 934.

The law also recognizes that seamen must relax in order to work effectively. Accordingly, a seaman injured during the pursuit of recreational activities should receive maintenance and cure, whether the injury was suffered ashore or aboard. Compare Warren, 340 U.S. at 529-30, 71 S.Ct. at 435-36 with Aguilar, 318 U.S. at 734-35, 63 S.Ct. at 935-36. In Warren for example, a seaman ashore, having had some wine, albeit an insufficient amount to cause intoxication, leaned from an unprotected dance hall balcony, grabbed hold of an iron rod, and fell with resultant injury when the rod gave way.

If, however, the seaman is injured through his willful misconduct, the shipowner is relieved of his duty of providing maintenance and cure, and Garay argues that the district court erred in refusing to grant his motion for a directed verdict on the defense of willful misconduct raised by

Carnival. Garay presses two grounds: first, that the evidence was insufficient to establish intoxication, and, second, that even if the evidence of intoxication is sufficient, mere intoxication in this case does not establish willful misconduct.

Evidence of Intoxication

According to Garay, there was insufficient evidence to support Carnival's claim that he was injured as the result of his intoxication. The facts, however, were as follows: Garay had been ashore drinking in the afternoon, imbibing four to six beers in the course of no more than two hours. ³ At the time of his accident, he was supposed to be in uniform and on duty as an assistant cabin steward, but according to Ochoa's testimony, Garay was out of uniform, "very intoxicated" and unable to perform his duties. Ochoa, however, provided no concrete basis for his opinion: he...