Nelsen v. Research Corp. of University of Hawaii
| Decision Date | 22 October 1992 |
| Docket Number | Civ. No. 89-00738BMK. |
| Citation | 805 F. Supp. 837 |
| Parties | Robert NELSEN, Plaintiff, v. RESEARCH CORPORATION OF The UNIVERSITY OF HAWAII, Defendant. |
| Court | U.S. District Court — District of Hawaii |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Douglas M. Fryer, Newell D. Smith, Mikkelborg, Broz, Wells & Fryer, Seattle, Wash., Michael J. McGuigan, Reinwald, O'Connor, Marrack, Hoskins & Playdon, Honolulu, Hawaii, for plaintiff.
Samuel A. Keesal, Albert E. Peacock, Keesal, Young & Logan, Long Beach, Cal., David A. Nakashima, Alston, Hunt, Floyd & Ing, Honolulu, Hawaii, for defendant.
AMENDED FINDINGS OF FACT and CONCLUSIONS OF LAW
This is an action brought under the Jones Act, 46 U.S.C.App. § 688, and general maritime law to recover for psychological injuries sustained by plaintiff Robert Nelsen ("Nelsen") in 1986 and 1987 while Nelsen served as captain of an oceanographic research vessel, the Kila.
The jury-waived trial commenced on April 9, 1992, and continued thereafter until April 23, 1992. After having carefully considered the evidence and the applicable law, the court now files its decision embracing the findings of fact and conclusions of law required by Fed.R.Civ.P. 52.
Nelsen was employed in June 1984 by defendant Research Corporation of the University of Hawaii ("RCUH") to be master of the Kila. He continued in that capacity until discharged effective June 23, 1987.
Prior to his employment with RCUH, Nelsen had extensive experience as a commercial fisherman beginning when he was a teenager. He obtained his master's license in 1982, 1,000 ton limit.
RCUH is a Hawaii corporation. Its purpose is to operate several marine research vessels for the University of Hawaii. One of these vessels is the Kila. RCUH operated out of its Marine Center in Honolulu. Beginning in 1985, Captain James W. Coste ("Coste") was in charge of the Marine Center as marine superintendent. The Kila is a 103 foot, 192 gross ton research vessel built in 1977. The Kila was at all times material owned by the United States Navy and under bareboat charter to RCUH.
On September 27, 1986, the Kila left the port of Honolulu on a research cruise scheduled to take place in waters off the island of Hawaii. Prior to leaving port, the Kila had undergone repairs that included removal of the insulation, or lagging, surrounding its exhaust stacks. Before the lagging could be replaced, Coste ordered the Kila out on cruise, despite recommendations to the contrary by the port captain and the head machinist.
As the Kila proceeded through the harbor and out the harbor entrance, the heat from the exposed exhaust mufflers and exhaust stacks rapidly built up in the engine room. Within 15 minutes of leaving the dock, the engine room ladder and walls became too hot to touch, and the hydraulic lines, electrical wiring and engine control lines in close proximity to the exhaust stacks were in danger of melting. As a result, the engine room cable controls from the bridge and the aft control station were so damaged that controls to one engine completely jammed and controls to the other engine became very stiff. Within 20-30 minutes of leaving dock, Nelsen had to shut down one engine, turn the Kila around and return to port.
The aft control cables damaged during the overheating incident were replaced with controls that did not work effectively. The new controls had the effect of being very stiff and jamming in gear. There was also the problem that when the gear was put in neutral quite often the prop would still be turning.
Nelsen frequently complained orally and in writing that the replacement cables would stick and that they were dangerous to scuba divers who would be working in the water around the Kila in connection with certain research activities involving the Kila.
However, although problems with the replacement cables persisted, at no time while Nelsen was master of the Kila was there any personal injury or death to any scuba diver, crew member or anyone else as a result of the replacement control cables.
On January 27, 1987, the Kila departed for a 3-day cruise to deploy fish aggregation device buoys off the islands of Molokai, Maui and Hawaii. At approximately 8:00 p.m. on January 27, 1987, when the Kila was about three miles off the southeast coast of Maui, crew member Chip Millard ("Millard") was making his routine check of the engine room during his watch when he noticed water coming into the engine room bilge from an uncovered 8-inch stand pipe which was connected to the shaft alleys. The engine room had approximately 2-3 feet of water. Millard discovered that the reason that the water had come in that high was that an automatic switch in the stand pipe had failed to activate. Millard activated the switch which caused the main bilge pump, which had been valved over to pump out the shaft alleys, to come on line. The pump was not able to keep up with the inflow of water. Because of the lack of a bilge alarm, the crew had no prior warning of the problem. Soon after discovering the flooding, Millard notified Nelsen and the crew members of the problem.
Because the main bilge pump was not keeping up with the flooding, Nelsen and the crew attempted to get a portable emergency pump working. However, it was discovered that the pump was frozen, and it would not turn over. When it became apparent that the portable emergency pump was not going to work, a fire pump was jury-rigged to function as a bilge pump, but the intake screen kept clogging with debris from the bilges. Within forty minutes to an hour after the flooding was discovered, the water level in the engine room bilge began to decrease. Within an hour and twenty-five minutes after the flooding was discovered, the engine room bilge was nearly dry. Thereafter, the bilge pump was able to keep pace with the incoming water with only intermittent use of the emergency fire pump.
After being informed of the flooding, Nelsen came below and began directing emergency procedures. However, Nelsen also had to run the bridge at the same time. Because the vessel intercom was not functional, Nelsen had to make many trips between the bridge and engine room.
After the flooding was discovered, Nelsen changed course for Maalaea on the island of Maui. The Kila arrived at Maalaea and anchored off the Coast Guard station there at approximately 1:20 a.m. on January 28, 1987.
After anchoring at Maalaea Bay, Nelsen returned to his bunk. At that point in time, Nelsen experienced what he thought was a heart attack, including profuse sweating, nausea, a pounding heart and chest pain. The symptoms complained of started when Nelsen was under stress during the flooding incident and running up and down the stairs from the bridge to the engine room.
Between the flooding incident and Nelsen's employment termination in May 1987, none of the crew of the Kila or any of the personnel at the Marine Center noticed any change in Nelsen's character, personality or demeanor.
Between December 1986 and May 1987, Nelsen became involved in the sale of the research vessel Kana Keoki, which was owned by the University of Hawaii. Nelsen helped solicit bids for the Kana Keoki in Seattle, Washington. At the same time, he prepared a business plan under the name "First American Seafood" and began making plans to purchase the Kana Keoki himself. When Nelsen's dealings concerning the Kana Keoki were discovered by RCUH, Nelsen was suspended and later discharged.
In June 1987, Nelsen instituted a grievance proceeding seeking reinstatement as the master of the Kila. Throughout the grievance proceeding, Nelsen contended that he was a "whistle-blower" and had been harassed and ultimately fired for making complaints about the safety of the Kila, including, but not limited to the overheating, cable control and flooding problems.
On October 19, 1987, the grievance hearing officer, Stanley Ling ("Ling"), rendered a decision concerning the grievance proceeding. In his decision, Ling concluded that Nelsen's conduct with regard to the Kana Keoki constituted a conflict of interest because of Nelsen's employment with RCUH. Ling also found that discipline was warranted, including suspension with no back pay or other compensation. He further found that Nelsen should receive counselling concerning conflicts of interest. He also found that there was insufficient evidence to support Nelsen's contention that he was terminated because he was a "whistle-blower" or had complained about safety conditions aboard the Kila. Ling concluded, however, that discharge was too severe a punishment.
On October 30, 1987, the director of RCUH notified Nelsen and his attorney that the recommendations of the hearing officer with respect to reinstatement would not be followed and that Nelsen would not be rehired. Nelsen did not file a timely appeal of this decision.
During the course of the grievance proceeding, the State Ethics Commission also filed charges against Nelsen related to the sale of the Kana Keoki. There has been no determination made with respect to those charges.
Following the flooding incident, Nelsen visited a succession of cardiologists concerning the symptoms he experienced soon after the flooding incident. Prior to seeing his primary treating psychiatrists, Nelsen was diagnosed with single vessel coronary artery disease involving a 70% to 80% blockage and was found to be suffering from probable episodes of angina pectoris. Although Nelsen denied that he had any heart disease or heart symptoms similar to those experienced during the flooding incident, his medical records indicate a prior history of chest pain and symptoms upon exertion in 1982, 1985 and in early 1986.
Nelsen first sought psychiatric care...
To continue reading
Request your trial
-
Abordo v. State of Hawaii
...and outrageous conduct necessary to state a claim of intentional infliction of emotional distress. See Nelsen v. Research Corp. of the Univ. of Hawaii, 805 F.Supp. 837 (D.Haw. 1992). C. 42 U.S.C. § 1983 Plaintiff objects to the Magistrate Judge's finding that certain Defendants are not liab......
-
Guevara v. Maritime Overseas Corp.
...in the Ninth Circuit have held that punitive damages are available. See Ridenour, supra, 806 F.Supp. at 911-13; Nelsen v. Research Corp., 805 F.Supp. 837, 854 (D.Hawaii 1992) (dicta). Another district court, however, reached the opposite conclusion. See La Voie, supra, 797 F.Supp. at 831-32......
-
State Nat'l Ins. Co. v. Anzhela Explorer, L.L.C.
...voyage, the vessel would clearly have been unseaworthy without the fixed main pump installed. See, e.g., Nelsen v. Research Corp. of Univ. of Haw., 805 F.Supp. 837, 851 (D.Haw.1992) (vessel unseaworthy in part due to inadequate and defective bilge pumps and lack of bilge alarm). But with th......
-
Jones v. Csx Transp.
...zone of danger test under general maritime law and requiring objective physical manifestations); Nelsen v. Research Corp. of Univ. of Haw., 805 F.Supp. 837, 849 (D.Haw.1992) (requiring in Jones Act case that distress be "serious" and finding requirement satisfied because plaintiff suffered ......
-
Trauma & Post Traumatic Stress Disorder (PTSD): A Brief Primer for Civil Litigation
...(FELA) permits a railroad worker to recover for PTSD arising from a train collision. Nelsen v. Research Corp. of University of Hawaii, 805 F. Supp. 837 (D. Haw. 1992) Held that the captain of a government owned research vessel chartered by a university was entitled to recover $258,831 for p......