Hernandez v. M/V Rajaan
| Decision Date | 30 March 1988 |
| Docket Number | Nos. 85-2608,87-2044,s. 85-2608 |
| Citation | 841 F.2d 582 |
| Parties | Alejandro HERNANDEZ, Plaintiff-Appellee, v. M/V RAJAAN, Etc., and Dianella Shipping Corporation, Defendants-Third Party Plaintiff-Appellants, v. ISHIKAWAJIMA HARIMA HEAVY INDUSTRIES, LTD., Cargill, Inc., et al., Third Party Defendants-Appellees. Alejandro HERNANDEZ, Plaintiff-Appellee, v. M/V RAJAAN, Her Engines, Tackle, etc., in rem, and Dianella Shipping Corporation, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edward J. Hennessy, Helm, Pletcher, Hogan, Bowan & Saunders, Earl B. Austin, Baker & Botts, Houston, Tex., for Cargill, Inc.
David G. Matthiesen, Funderburk & Funderburk, Houston, Tex., for Langston Companies, Inc.
Stephen W. Hanks, Timothy H. Pletcher, Houston, Tex., for Hernandez.
Louis E. McCarter, Richard L. Lagarde, Houston, Tex., for Ishikawajima Harima Heavy Industries, Ltd.
Butler & Binion, Walker Beavers, Robert D. Arredondo, Houston, Tex., for Brazos River Harbor Navigation Dist.
Gray H. Miller, Fulbright & Jaworski, Houston, Tex., for Texas Employers' Ins. Ass'n.
John P. Forney, Jr., Houston, Tex., for Ohji Seiki-Kogyo Kabushiki.
Robert L. Adams, Houston, Tex., for Synthetic Industries, Inc.
Robert MacIntyre, Jr., Houston, Tex., for Euro Grain Trading, Ltd.
Edward J. Hennessy, Randall D. Wilkins, Houston, Tex., for Affiliated Rice Mills.
Appeals from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, BRIGHT * and POLITZ, Circuit Judges.
The district court held a vessel owner liable to a longshoreman injured while loading palletized bags of rice into the vessel's cargo hold. We affirm that court's judgment of liability and portions of the damages awarded. We also affirm the rejection of the vessel owner's limitation of liability defense. We vacate, reverse or modify certain portions of the damages award we find to be erroneous.
On September 21, 1983, Alejandro Hernandez was partially paralyzed while working as a longshoreman aboard the M/V RAJAAN, a vessel owned by the Dianella Shipping Corp. The RAJAAN had docked in Freeport, Texas en route to Jordan to take on a cargo of rice. Hernandez, a thirty-two year old Mexican citizen, was helping to unload pallets of rice in the cargo hold of the RAJAAN. One of the hydraulic winches used to lower the pallets of rice malfunctioned and a 110-pound sack of rice fell onto Hernandez. As a result, he was permanently paralyzed from the chest down and retained only limited use of his arms.
Hernandez filed suit against Dianella, in personam, and against the M/V RAJAAN in rem. Dianella and the RAJAAN impleaded several third-party defendants. 1
Hernandez settled with the third-party defendants for $410,000.00 before trial with the agreement that the settling defendants would be reimbursed if Hernandez's recovery exceeded $3,000,000.00. The Texas Employer's Insurance Association intervened and recovered $159,585.91 in compensation and medical benefits paid to Hernandez.
The district court sitting without a jury found Dianella and the M/V RAJAAN liable under 33 U.S.C. Sec. 905(b) (1986). It awarded Hernandez pecuniary and non-pecuniary damages in the following amounts:
Lost future wages $ 800,221.00
Lost household services $ 87,000.00
Past medical expenses $ 153,472.48
Future medical expenses $ 582,000.00
Attendant care $ 730,000.00
Future medical supplies $ 152,000.00
Transportation and non-medical
commodities $ 465,000.00
Pain and suffering $1,000,000.00
-------------
The court found Hernandez 5% negligent and reduced the recovery to $3,771,208.80. The court held a separate proceeding after trial on Dianella's petition to limit liability to the value of the vessel and pending freight under 46 U.S.C. Sec. 183(a) (1975). The court rejected the petition on grounds that Dianella had not met its burden of proving that it lacked privity or knowledge of the negligent conditions which caused Hernandez's injuries.
Dianella appeals the finding of negligence and disputes the calculation of damages. We affirm the district court's findings on liability however find several portions of the damage award to be in error.
The legal duty of a shipowner to an injured worker arises from 33 U.S.C. Sec. 905(b) (1986). It provides:
"In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title ..."
The Supreme Court clarified the duties imposed on shipowners and stevedores by Sec. 905(b) in Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). The Court held that under Sec. 905(b):
"a shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore."
Scindia, 101 S.Ct. at 1624. The shipowner is entitled to rely on the stevedore and in general owes no duty to a longshoreman injured in the course of cargo operations. Morris v. Compagnie Maritime des Chargeurs Reunis, S.A., 832 F.2d 67, 71 (5th Cir.1987). However, Scindia provides that if the shipowner had actual knowledge of a condition which presented an unreasonable danger to a longshoreman and actual knowledge that he could not rely on the stevedore to correct the condition, then the shipowner, not the stevedore, is liable to the longshoreman. Scindia, 101 S.Ct. at 1626. In Helaire v. Mobil Oil Co., 709 F.2d 1031 (5th Cir.1983) this Circuit held that:
"[o]nce loading operations have begun, the vessel owner can be held liable for injuries to employees of the stevedore resulting from open and obvious dangers only in the event of actual knowledge of the danger and actual knowledge that he cannot rely on the stevedore to remedy the situation."
Helaire, 709 F.2d at 1038-39. If the condition existed from the outset, the shipowner is charged with actual knowledge of the dangerous condition and has a duty to warn the stevedore and the longshoremen if the defect is hidden. Harris v. Flota Mercante Grancolombiana, S.A., 730 F.2d 296, 299 (5th Cir.1984).
The district court charged Dianella with actual knowledge of an unreasonably dangerous condition based on its finding that the winch had been malfunctioning since the outset of loading. The court relied on testimony that entries in the ship's log several days before the accident indicated that there was a "leaky winch" in the number one masthouse. No entry on the log indicates that a permanent repair was made. The vessel's second engineer testified that two days prior to the accident, the crew had pumped hydraulic fluid into the winch to purge air from the hydraulic system. The air pressure indicated that the system was leaking.
Next the court held that Dianella had actual knowledge that it could not rely on the stevedore to fix the winch. The stevedore testified that from the outset of loading, the winch would slow down or stop unexpectedly causing pallets holding sacks of rice to swing precariously above the cargo hold. On the day of the accident, each time the winch malfunctioned the stevedore notified the ship's crew. The crew halted loading and added hydraulic fluid to the winch. The stevedore would then resume loading. From this the district court concluded that Dianella had actual knowledge that the stevedore would continue to use the winch in its hazardous condition without remedying it and that the ship had a duty to intervene and repair the winch or take it out of service.
We uphold the district court's finding that Dianella was liable under Sec. 905(b). Dianella argues that the stevedore is liable because he did not stop loading and inform Dianella when the winch malfunctioned immediately before Hernandez's accident. However, the record is replete with evidence that the winch had malfunctioned on many occasions prior to the day of injury, had malfunctioned several times on the day of the accident and that the additions of hydraulic fluid by Dianella were clearly not preventing or correcting the malfunctions. From this the district court fairly charged Dianella with actual knowledge of the malfunctioning winch and with knowledge that the stevedore, who had been relying on Dianella to repair the winch, could not be expected to remedy the danger.
Dianella contends that several components of the damage award are excessive. The standards under which we review a damage award for excessiveness are well known. A trial judge's assessment of damages is a finding of fact which we review under the clearly erroneous standard. Sosa v. M/V LAGO IZABAL, 736 F.2d 1028, 1035 (5th Cir.1984), (citing, Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 783 (5th Cir.1983)). This court will not overturn a damage award unless the trier of fact abused its discretion. Bartholomew v. CNG Producing Co., 832 F.2d 326, 331 (5th Cir.1987) (citing, Hawkes v. Ayers, 537 F.2d 836, 837 (5th Cir.1976)). A verdict will be considered excessive only if it is greater than the maximum amount the trier of fact could properly have awarded. Sosa, supra, at 1035. An appellate court may not determine excessiveness by comparing verdicts in similar cases, but rather must review each case on its own facts. Winbourne v. Eastern Airlines, Inc., 758 F.2d 1016, 1018, (5th Cir.1984), cert. denied, 474 U.S. 1036, 106 S.Ct. 603, 88 L.Ed.2d 582 (1985); Sosa, supra, at 1035.
Having determined that an award is excessive, this court may either order a new trial on damages or may give the plaintiff the option of avoiding a new trial by agreeing to a remittitur of the excessive portion of the award. Osburn v. Anchor Laboratories, Inc., 825 F.2d 908, 919 (5th...
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