Hae Woo Youn v. Maritime Overseas Corp., 91-CA-407

• Citation: 605 So.2d 187
• Decision Date: 27 July 1992
• Docket Number: No. 91-CA-407,91-CA-407
• Parties: HAE WOO YOUN v. MARITIME OVERSEAS CORP., Atlantia Tanker Corp., and Assuranceforengen Gard.
• Court: Court of Appeal of Louisiana (US)

Page 187

605 So.2d 187 HAE WOO YOUN
v.
MARITIME OVERSEAS CORP., Atlantia Tanker Corp., and
Assuranceforengen Gard. No. 91-CA-407. Court of Appeal of Louisiana,
Fifth Circuit. July 27, 1992. Rehearing Denied Oct. 19, 1992.
Writ Granted on One Application;
Writ Denied on Another Application
Dec. 21, 1992.

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Paul Due, Due, Smith & Caballero, Baton Rouge, Gordon Crawford, Gonzales, Lewis Unglesby, Unglesby & Barrios, Baton Rouge, for plaintiff, appellee.

F. Scott Kaiser, Thomas Kiggins, Phelps, Dunbar, Marks, Claverie & Sims, Baton Rouge, M.D. Yaeger, Terriberry, Carroll, Yancey & Farrell, New Orleans, James B. Kemp, New Orleans, for defendants, appellants.

Before BOWES, GRISBAUM and WICKER, JJ.

BOWES, Judge.

Plaintiff, Hae Woo Youn, filed suit for damages, naming as defendants Maritime Overseas Corporation (MOC) and Atlantia Tanker Corporation (Atlantia) under the Jones Act, 46 U.S.C.App. Section 688 and also the general maritime law pursuant to the "savings to suitors" clause of 28 U.S.C. Section 1333. Youn subsequently amended his petition to also name, as a defendant, Assuranceforeningen GARD (GARD), the marine liability insurer for MOC and Atlantia. After trial on the merits, judgment was rendered in favor of plaintiff and against all defendants, in solido, for $1,703,864.00, plus interest and costs. After the denial of defendants' motions for new trial, this appeal was perfected. We amend and as amended, affirm in part and remand in part the judgment of the trial court.

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FACTS

Plaintiff, Hae Woo Youn, was the boatswain ("bosun") on the M/T Atlantia, a Liberia oil tanker owned by Atlantia. The M/T Atlantia was operated by and the crew furnished by MOC. On May 23, 1989, Youn, and two other crew members, working under Youn's instructions, were using the ship's port winch preparing to hoist the ship's gangway back on board in preparation for the ship's departure. The winch controls consist of a lever and a steam valve. A crew member, O/S Hae, locked the control lever into place (direction) and then opened the steam valve to start the rotation of the gypsy head drum, which pulls in the slack of the wire cable used to hoist heavy objects. The steam valve opened too quickly, causing the drum to spin too fast and out of control, which resulted in the cable coming off the gypsy head and whipping around uncontrollably on the deck floor. Plaintiff called to Quartermaster Choi to engage the stopper to keep the crane boom from falling, however, Choi became frightened and abandoned his post. Youn ran to the stopper and en route there, was hit by the cable, causing serious and permanent injury and deformity to his left leg.

ISSUES: MOC AND ATLANTIA

On appeal, MOC and Atlantia allege the following assignments of error:

1.

If the district court had subject matter jurisdiction, it erred in denying defendants the right to a jury trial.

2.

The trial court erred in assuming jurisdiction because Youn designated his suit as an "admiralty or general maritime claim" pursuant to La.Code Civ.P. art. 1732(6) thereby invoking the exclusive jurisdiction of the federal admiralty courts.

3.

The trial court erred in finding that the M/T ATLANTIA was unseaworthy and that such condition caused Youn's injuries.

4.

The trial court erred in finding that defendants were negligent and that such negligence caused Youn's injuries.

5.

The trial court erred in finding no comparative negligence on the part of Youn, who chose to use an unsafe procedure because it was "faster" and "easier."

6.

The trial court erred in denying defendants' Motion to Supplement the Record and Motion for New Trial whereas Youn was permitted to offer post-trial evidence to prove both liability and damages, and the evidence offered by defendants was intended to prevent the perpetration of a fraud on the court.

7.

The trial court erred in assessing liability against MOC because it was not the owner or operator of the M/T ATLANTIA, and was not Youn's employer.

8.

The trial court's award of general damages in the amount of $1,400,000.00 is excessive. The award should be substantially reduced or set aside and a new trial ordered.

9.

The trial court erred in awarding prejudgment interest as to the entire damage award since a substantial portion of the award represents future losses for which interest would not have accrued.

10.

The evidence does not support the trial court's award for future medical expenses in the amount of $40,000.00.

11.

The evidence does not support the trial court's award for past loss of earnings in the amount of $22,642.00.

12.

The evidence does not support the trial court's award of past and future loss of "found" in the amount of $41,222.00.

ISSUES: GARD

GARD alleges as error the following:

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1.

The trial court erred in not dismissing the petition, as amended, for want of subject matter jurisdiction, plaintiff having designated his claims as purely admiralty or maritime claims of which federal district courts have exclusive jurisdiction.

2.

The trial court erred in denying the defendants their substantive federal right to trial by jury of Jones Act and general maritime law claims.

3.

The trial court erred in not maintaining GARD's exception of no cause of action or no right of action against it under the Louisiana Direct Action Statute, La.R.S. 22:655, or otherwise.

4.

With plaintiff not having met his burden of proving any insurance coverage and the terms and provisions of any such coverage, the trial court erred in rendering judgment against GARD.

5.

The trial court erred in denying GARD's motion for continuance of the trial.

We shall consider GARD's assignments of error later in logical sequence, but first we shall consider the assignments of error by both Atlantia and MOC in convenient groups as follows:

TRIAL BY JURY/SUBJECT MATTER JURISDICTION

Defendants, Atlantia and MOC, as well as defendant GARD, first argue that the trial court action in striking MOC and Atlantia's request for a jury was error. They also agree and urge that a plaintiff's designation of his suit as admiralty or maritime under C.C.P. art. 1732(6) impermissibly usurps jurisdiction of admiralty cases from the federal courts. Finally, it is alleged that C.C.P. art. 1732(6) is unconstitutional in that it operates to deprive a defendant his right to trial by jury.

In response to plaintiff's original petition, Atlantia in its answer, requested trial by jury. Plaintiff then filed a first supplemental and amending petition, in which he clarified his position that he was filing suit both under the Jones Act and under General Maritime Law and further stated that "Plaintiff specifically designates this suit as an admiralty or general maritime claim for purposes of eliminating any right to trial by jury in accordance with 1732(6) of the Louisiana Code of Civil Procedure."

Plaintiff next filed a second amended petition which again stated that his claim was a general maritime claim and therefore defendants had no right to a jury trial under LSA-C.C.P. art. 1732(6).

MOC then filed its answer, and also requested a jury trial therein.

Plaintiff filed a motion to strike defendant's jury demands which was granted by the trial court. MOC and Atlantia applied for supervisory writs to this Court. Writs were refused.

Defendant's application for a review of our decision was quickly filed with the Louisiana Supreme Court who also refused writs. Hae Woo Youn v. Maritime Overseas Corporation, 559 So.2d 1367 (La.1990). Thus, our decision was, in effect, affirmed by the Supreme Court.

Immediately before trial, GARD filed a removal notice alleging that plaintiff's election to proceed under general maritime law operated to divest the trial court of jurisdiction. Federal District Judge Sear of the Eastern District of Louisiana found no merit to defendant's argument as it remanded the case back to state court before the state court trial began.

Youn asserts that the decisions of this court and the Louisiana Supreme Court, denying defendant's supervisory relief should be considered "law of the case," precluding further consideration of these issues.

The Louisiana Supreme Court explained the principle of "law of the case" in Day v. Campbell-Grosjean Roofing & Sh. Metal Corp., 260 La. 325, 256 So.2d 105, 107 (1971):

With regard to an appellate court, the 'law of the case' refers to a policy by which the court will not, on a subsequent appeal, reconsider prior rulings in the

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same case. This policy applies only against those who were parties to the case when the former appellate decision was rendered and who thus had their day in court. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both parties, of affording a single opportunity for the argument and decision of matter at issue. [Footnotes omitted].

The "law of the case" principle applies to all decisions of an appellate court, not merely those arising from the full appeal process. Mihalopoulos v. Westwind Africa Line, Ltd., 511 So.2d 771 (La.App. 5 Cir.1987); City of New Orleans v. Rasmussen, 542 So.2d 13 (La.App. 4 Cir.1989), writ denied, 548 So.2d 334 (La.1989).

Ordinarily, we would decline to reconsider this issue pursuant to the principle of "law of the case." However, in this instance, we note that GARD was not a party to the suit at the time the issue was raised by writs to this Court and the Louisiana Supreme Court. The principle of "law of the case" is to be applied only against those who were parties to the cases when the former appellate decision was rendered and who thus had their day in court. Gaudet v. G.D.C., Inc., 477 So.2d 731 (La.App. 1 Cir.1985); Day v. Campbell-Grosjean Roofing & Sh. Metal Corp., supra.

Accordingly, we will consider these issues again in this appeal.

LSA-C.C.P. art. 1732(6)...