Latsis v. Chandris, Inc.

• Decision Date: 24 March 1994
• Docket Number: No. 735,735
• Citation: 20 F.3d 45
• Parties: Antonios LATSIS, Plaintiff-Appellant, v. CHANDRIS, INC., Chandris, S.A., Trans Oceanic Shipping Co., Ltd., Defendants-Appellees. ; Docket 93-7704.
• Court: U.S. Court of Appeals — Second Circuit

Page 45

20 F.3d 45

62 USLW 2618

Antonios LATSIS, Plaintiff-Appellant, v. CHANDRIS, INC., Chandris, S.A., Trans Oceanic Shipping Co Ltd., Defendants-Appellees.

No. 735; Docket 93-7704.

United States Court of Appeals Second Circuit.

Argued Dec. 6, 1993.

Decided March 24, 1994.

Lewis Rosenberg, New York City (Barry I. Levy, Shapiro, Shiff, Reilly, Rosenberg & Fox, of counsel), for plaintiff-appellant.

William J. Brady, III, New York City (Christ Stratakis, Poles, Tublin, Patestides & Stratakis, of counsel), for defendants-appellees.

Before: OAKES, KEARSE and CARDAMONE, Circuit Judges.

OAKES, Senior Circuit Judge:

This case causes us to re-examine the definition of seaman as charged in Jones Act cases in light of two recent opinions of the Supreme Court: McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991), and Southwest Marine, Inc. v. Gizoni, --- U.S. ----, 112 S.Ct. 486, 116 L.Ed.2d 405 (1991) (explicating Wilander ). Specifically, we must determine whether an "employment related connection to a vessel in navigation" must be substantial either in terms of the plaintiff's "permanent assignment to the vessel" or "performance of a substantial part of his work on the vessel." A subsidiary question is whether the district court properly instructed the jury that it could not consider the period of time a vessel was in drydock in determining whether the plaintiff performed "a substantial part of his work on the vessel." We find that, although Wilander overrules the "aid to navigation" element of Salgado v. M.J. Rudolph Corp., 514 F.2d 750, 755 (2d Cir.1975), the "more or less permanent connection" requirement articulated in Salgado remains the law of this circuit. In ignoring this formulation and adopting an alternative formulation, the district court misapplied the law and committed plain error. This error resulted in substantial prejudice to Latsis because the jury was effectively instructed to determine the substantiality of Latsis's connection to the vessel solely on the basis of Latsis's temporal relationship with the vessel. This prejudice was compounded by the district court's further instruction that the time the vessel was in drydock could not be considered--an instruction that improperly served to limit the substantiality of Latsis's connection to the vessel in terms of Latsis's temporal relationship with the vessel. We vacate the judgment of the United States District Court for the Southern District of New York, Loretta Preska, Judge, and remand for a new trial.

I. Background

A. Facts

Antonios Latsis brought this action under the Jones Act for compensatory damages for personal injuries sustained by Latsis culminating in the loss of sight to his right eye. These injuries allegedly resulted from the negligence of the ship's doctor who failed to treat promptly Latsis's detached retina. Latsis alleges that he sustained these injuries while employed as a "seaman" aboard a cruise ship then known as the S.S. Galileo, one of a fleet of cruise ships owned and operated by appellees Chandris, Inc., Chandris, S.A. and Trans Oceanic Shipping Co., Ltd. (hereinafter "Chandris").

The injuries are said to have resulted from medical malpractice by the ship's doctor on May 14, 1989, a Sunday on which the Galileo took on passengers at Baltimore, Maryland, for a regularly-scheduled, round trip cruise of five days to Bermuda. Around noon of that Sunday, while the vessel was still in port, Latsis, on board and assigned to the Galileo in his capacity as a supervising engineer for Chandris, began experiencing a central visual disturbance which seemed to originate in the bottom portion of his eye. As the day progressed the obstruction to his vision expanded. Latsis did not appreciate the significance of the problem until the time approached to sail in the late afternoon, when he sought medical guidance from an on board nurse who advised him to see the ship's doctor at once. He did so as the ship pulled from the dock in the port of Baltimore. Once in the ship hospital, he consulted Dr. Gonzalez, the physician employed by Chandris for this vessel. Dr. Gonzalez looked at Latsis's eye through an ophthalmoscope and said it appeared to him to be a detached retina. Gonzalez recommended that Latsis relax until he could see an eye specialist when they arrived two days later in Bermuda. Latsis received no further medical care until after the ship arrived in Bermuda, and no attempt was made to transport him ashore for prompt medical care by means of a pilot vessel, helicopter, or otherwise. During this interval, the impairment of his vision continued to intensify until all central vision in the eye was lost.

The malpractice allegations relate to the fact that Dr. Gonzalez, unlicensed in any state in the United States, neglected to follow the advice of a standard medical textbook which he had on board the vessel which read that "... any patient with a suspected or established retinal detachment should be seen on an emergency basis by an ophthalmologist." When the vessel reached Bermuda, a doctor diagnosed his eye as having a massive detachment of the retina. The doctor recommended immediate hospitalization. After a consultation with Latsis's regular eye doctor in New York and another New York eye specialist, the doctors recommended surgical reattachment of the retina. Although Latsis underwent surgery, the end result was that he lost 75 percent of his central vision and can only see light on the sides of his right eye.

At the time Latsis presented himself for treatment in Bermuda, he was given a Chandris form signed by the ship's captain, chief purser, and Dr. Gonzalez, requesting medical attention be provided to Latsis for his "detected [sic, detached] retina" and describing Latsis as a "crew member" holding the "position" of "supt. engineer."

Evidence in the case indicated that Latsis, a naturalized American citizen of Greek ancestry, has had a lifelong involvement with the sea and shipping beginning with his entry into the Merchant Marine as a cadet in Germany following his graduation from high school, his sailing aboard a merchant ship as a second mate following successful completion of his studies and examinations, and finally with his being appointed captain of a small Mediterranean vessel. Thereafter, he became chief mate on a larger vessel. He came to the United States in 1967 and promptly became a United States citizen. He was employed in San Francisco with a firm of ship surveyors while continuing his education at the University of California at Berkeley. In 1973 he was awarded a Bachelor's Degree of Science and Mechanical Engineering from Berkeley and a year later received a Master's Degree in Naval Architecture, working in the Maritime Industry during this time for the Pacific Marine Association in the ports of San Francisco and Oakland. After graduation he went to New York to work for the American Bureau of Shipping, and later for Southern Star Shipping Company as a superintendent and engineer. He supervised Southern Star's vessels' operations and maintenance for 11 years before becoming employed in 1989 by Chandris out of its Miami, Florida office.

Chandris operated a large fleet of merchant vessels, five of which sailed from Atlantic ports in the United States to the Caribbean, Bermuda, and Puerto Rico. For the first three months, Latsis was employed as a consultant and thereafter became a salaried employee. His duties were not confined to any single vessel but ran to the whole fleet. Latsis's duties included not only overseeing the vessels' engineers aboard ship and, hence, involved a number of voyages, but also planning and directing the maintenance at sea from the shore. While he necessarily familiarized himself with all of the vessels' power plants and engineering functions, he attended several hands-on repairs in a supervising capacity and monitored problems that the ships had or could develop. He was particularly in charge of the electronic equipment, both retrofit and existing equipment.

Latsis's work required him to travel with various ships in the fleet from time to time. The evidence here was conflicting as to how much time he was actually on board ship, Latsis himself testifying that he was on voyages 72 percent of his time and his immediate boss testifying it was more like 10 percent. Latsis maintained his family and residence in Rye, New York, although the company provided him with housing and the use of a rental car in Miami because his office work was regularly there. The vessel on which he was sailing and with which he had more connection than any other vessel in the fleet was the 27-year-old S.S. Galileo, as it was then known, aboard which he had sailed from Miami to Mexico with specialists from Germany to plan for a conversion and upgrading scheduled to take place in Germany in the following year. He helped draw specifications to keep the older ship in repair while sailing on its cruise routes to Mexico and Nassau in the Bahamas. In fact, he had been on board the Galileo at the conclusion of a regular two-day cruise originating from and returning to Baltimore, having joined the ship there on Friday, March 12, two days before the scheduled trip to Bermuda during which his eye injury occurred as above stated. On the Baltimore-Bermuda trip, Latsis was responsible for escorting various shipyard personnel around the ship in connection with the upcoming conversion of the vessel. In fact, he was busy with these people after he first noticed the problem with the vision in his right eye at about noon on Sunday, May 14, up until the time of sailing when he finally went to see the ship's nurse who sent him to Dr. Gonzalez.

According to Demetrius Kaparis, who was a senior vice president of Chandris, Inc. and head of its technical department and technical operations before it was taken over by Celebrity Cruises, Inc., Latsis was hired on a regular basis as a...