Sauers v. Alaska Barge

• Decision Date: 09 July 1979
• Docket Number: Nos. 78-1446,78-1516,s. 78-1446
• Citation: 600 F.2d 238
• Parties: Theodore D. SAUERS, through his guardian, Irene G. Ellis, Plaintiff-Appellee, v. ALASKA BARGE and Transport, Inc., an Alaska Corp., and the United States of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 238

600 F.2d 238

Theodore D. SAUERS, through his guardian, Irene G. Ellis Plaintiff-Appellee, v. ALASKA BARGE and Transport, Inc., an Alaska Corp., and the United States of America, Defendants-Appellants.

Nos. 78-1446, 78-1516.

United States Court of Appeals Ninth Circuit.

July 9, 1979.

Thomas G. Wilson (argued), U.S. Dept. of Justice, Civil Division, Washington, D.C., for defendants-appellants.

Stephen R. Frank (argued), Tooze, Kerr, Peterson, Marshall & Shenker, Portland, Or., John F. Kovarik (argued), Casey, Pruzan, Kovarik & Shulkin, Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before KILKENNY and SNEED, Circuit Judges, and WATERS, ^* District Judge.

SNEED, Circuit Judge:

This is an appeal from a judgment in an admiralty action brought by plaintiff Sauers against defendants Alaska Barge & Transport, Inc. (AB & T) and the United States to recover for injuries plaintiff suffered while serving as a civilian seaman on an AB & T tugboat, the Shawnee, which was transporting munitions up the Mekong River to Phnom Penh, Cambodia, under contract with the United States. The district court found defendants jointly liable for plaintiff's injuries and awarded $685,113.79 in damages.

Pursuant to the contractual agreement between the defendants, the government has at all times defended this action on behalf of AB & T, and now prosecutes this appeal. It contends that: (1) the district court erred by holding AB & T liable to plaintiff on negligence, breach of contract, and unseaworthiness grounds; (2) the United States has not waived its sovereign immunity under the Suits in Admiralty Act, 46 U.S.C. §§ 741-52; (3) the district court erred by holding the United States liable to plaintiff on a negligence theory; and (4) the court erroneously refused to consider evidence of a criminal charge against plaintiff when determining his future loss of earning capacity. Plaintiff Sauers cross-appeals, contending that: (1) the district court erred by refusing to consider the effects of inflation when it computed plaintiff's damage award; and (2) the district court erred in its calculation of the impact of income taxes on the amount of plaintiff's damage award.

Our jurisdiction rests on 28 U.S.C. § 1291. We affirm the judgment of the district court on the issue of AB & T's liability, modify the judgment on the issue of damages, and remand with directions to enter a modified judgment in accordance with the views expressed herein.

I. The Facts.

The events from which this lawsuit arose occurred during the United States' military involvement in Vietnam. In January 1971 the United States, South Vietnamese and Cambodian military authorities decided to ship military supplies to Cambodia by sending convoys of civilian merchant vessels, tugs, and barges up the Mekong River from Vietnam to Phnom Penh, Cambodia. AB & T was under contract with the United States to provide a portion of such shipping services. ¹ Plaintiff was injured in Cambodia while serving as a civilian seaman on AB & T's tugboat, the Shawnee, which was Under the contract between AB & T and the United States, the U. S. Navy's Military Sealift Command (MSC), See note 1 Supra, designated both the type and number of vessels which AB & T was to provide for each convoy. The legal and political restrictions imposed upon the use of U. S. military forces in southeast Asia prevented such forces from actively providing adequate security for the civilian cargo vessels carrying supplies into Cambodia. ³ Instead, the U. S. Navy arranged for Vietnamese and Cambodian military escorts to provide security for the transports. ⁴ The district court concluded, however, that the U. S. armed forces were able to, and did, provide AB & T vessels and personnel in Vietnam greater protection from attack than the Cambodian and Vietnamese armed forces provided such vessels and personnel while in Cambodia. ⁵

transporting military supplies for the United States. ²

The Shawnee made three trips from Tan Chau, Vietnam to Phnom Penh, Cambodia prior to the trip on which the plaintiff was injured. On each of these three trips the convoy was attacked in a narrow part of the Mekong River located several miles downstream from Phnom Penh. On January 16, 1971, the Shawnee departed Tan Chau on its first trip in a convoy carrying military supplies up the Mekong River to Phnom Penh. The convoy arrived without incident in Phnom Penh on January 17. On the return leg of the trip, however, the lead ship in the convoy was attacked six to eight miles downstream from Phnom Penh, at a point referred to as kilometer (km) 198. On the January 23-24 trip, the second trip, the convoy was attacked at km 188 and km 197 enroute to Phnom Penh. On the January 29-30 trip, the convoy was attacked at km 198 both enroute to, and while returning from, Phnom Penh. The Shawnee sustained two rocket hits during the latter attack. Plaintiff Sauers served as Pilot/Advisor on the Shawnee during the first trip, but was not on board for either the January 23-24 or January 29-30 trip. ⁶ Sauers served as Chief Mate on the fourth trip, February 21-22, on which he was injured. At a pre-departure briefing conducted by an admiral in the U. S. Navy ⁷ and by the Vietnamese naval officer who was to command the mission, plaintiff was advised that the convoy would prove safer than any of the earlier convoys to Phnom Penh. ⁸ This prophecy proved to be false.

The Shawnee, pulling several bomb-laden barges, departed Tan Chau in convoy on the evening of February 21, 1971. The record indicates that the escort vessels accompanying the convoy either pulled ahead or lagged behind the Shawnee. This left it exposed and vulnerable to attack. ⁹ At 10:30 a. m. on February 22, 1971, the Shawnee was attacked with small arms fire near km 188, which caused no injury or damage. The next attack was different. At approximately 1:00 p. m. the Shawnee was raked with hostile gun fire from the right ascending bank of the river at km 198, the site of the previous attacks. The first round struck the galley area of the tug. A second round exploded in the passageway located aft of the wheelhouse and knocked out the tug's electrical system, including the vessel's power steering. A third round pierced the aft part of the pilothouse and seriously wounded Sauers. He received a penetrating shrapnel wound to the head which caused irreversible brain damage and left him permanently and totally disabled.

Almost two years later, on January 24, 1973, plaintiff commenced this admiralty action through his legal guardian. The court conducted a bifurcated trial concerning liability and damages. ¹⁰ On November 21, 1975, the court rendered its Findings of Fact and Conclusions of Law concerning liability, holding that: (1) AB & T was liable to plaintiff on negligence, breach of contract, and unseaworthiness grounds; and (2) the United States was liable to plaintiff based upon a negligence theory. ¹¹ Almost two years later, September 14, 1977, the court rendered its Findings of Fact and Conclusions of Law on the issue of damages and entered judgment in plaintiff's favor. ¹² The court subsequently amended its Findings of Fact and Conclusions of Law on December 9, 1977, and entered an amended judgment on December 22, 1977.

To facilitate our disposition of the issues raised by these appeals we will discuss the liability issues raised by the defendants initially

and then turn to the damages issues raised by both the plaintiff and defendants.

II. Defendants' Liability to Plaintiff.

A. Liability of AB & T.

The United States contends that the district court erred by finding AB & T liable to plaintiff on the basis of negligence, breach of contract, and unseaworthiness grounds. It argues that the district court based several of its findings on theories that were not stated either in the pleadings or in the pretrial order, and that, in any event, the evidence is not sufficient to support the court's findings and conclusions. We find no merit in the first contention. Facts supporting the court's findings and conclusions were before the court and were argued. Under these circumstances the court properly may consider the pleadings and pretrial order to have been amended to conform to the evidence presented. See Puget Sound Gillnetters Assoc. v. United States District Court, 573 F.2d 1123, 1131 (9th Cir.), Cert. granted, 439 U.S. 909, 99 S.Ct. 277, 58 L.Ed.2d 255 (1978) (Rule 15(b) Fed.R.Civ.P. standards applicable to modification of pleadings or pretrial order to conform to evidence presented); Dering v. Williams, 378 F.2d 417, 419 (9th Cir. 1967); American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640, 643 (9th Cir. 1961). The trial court did not err by treating the pleadings and pretrial order as if they had been amended. See Puget Sound Gillnetters, supra, 573 F.2d at 1131 n.12.

Turning to the issue of the sufficiency of the evidence to support the trial court's findings, Rule 52(a) provides our standard. In admiralty, as in other types of cases, this court will not overturn the trial court's findings unless we are left with the definite and firm conviction that a mistake has been committed. Rederi A/B Soya v. SS Grand Grace, 369 F.2d 159, 163 (9th Cir. 1966); See Stranahan v. A/S Atlantica & Tinfos Papirfabrik,471 F.2d 369, 372 n.2 (9th Cir. 1972), Cert. denied, 412 U.S. 906, 93 S.Ct. 2293, 36 L.Ed.2d 971 (1973); Sines v. United States, 430 F.2d 644, 645 (9th Cir. 1970) (per curiam); Waterman S.S. Corp. v. Gay Cottons, 414 F.2d 724, 735 n.27 (9th Cir. 1969). We have no such convictions; hence, we affirm the district court's findings of fact. Such findings support its conclusions of law.

B. Liability of the United States.

The United States asserts that it cannot be held directly liable for plaintiff's injuries. It asserts that not only has it not waived its immunity from suit under the Suits...