Smith v. U.S.

Decision Date13 May 1996
Docket NumberCA 93-0016ML.
Citation943 F.Supp. 159
PartiesStephen A. SMITH v. UNITED STATES of America.
CourtRhode Island Supreme Court

Kevin Donius, Michael B. Latti, Boston, MA, Robert T. Karns, Providence, RI, for Plaintiff.

Frank W. Hunger, Assistant Attorney General, Sheldon Whitehouse, United States Attorney, Providence, RI, R. Scott Blaze, Senior Admiralty Counsel, Torts Branch, Civil Division, U.S. Department of Justice, Washington, DC, for Defendant.

DECISION AND ORDER

LISI, District Judge.

Plaintiff Stephen A. Smith commenced this action on January 12, 1993 pursuant to the Suits in Admiralty Act, 46 App. U.S.C. §§ 741-52, and the Public Vessels Act, 46 App.U.S.C. §§ 781-90, for compensatory damages and maintenance and cure for injuries alleged to have occurred as a result of negligence on the part of the defendant, the United States of America.1 This matter was tried before the court without a jury on November 2, 3, and 6, 1995. For the reasons stated below, this court finds that plaintiff is entitled only to cure.

I. FACTS

The incident that gave rise to this case occurred during the March 1991 voyage of the TWR-841 ("841"), an ocean-going vessel owned by the United States Navy and operated pursuant to contract by MAR, Inc.2 At this time, plaintiff was employed as chief engineer on the 841. In this capacity, plaintiff essentially served as the 841's chief mechanic, and was responsible for maintaining the engines, pumps, and hydraulic and electrical systems on the vessel.

On March 14, 1991, the 841 departed Newport, Rhode Island for a rendezvous point in the Gulf of Maine, where it was to videotape the firing of a Tomahawk missile. The 841 traveled through Buzzard's Bay and into the Cape Cod Canal, entering Cape Cod Bay ("Bay") early that afternoon. The sea conditions in the Bay were a "little choppy" — that is, the seas were running between ten and twelve feet — although they lessened as the 841 moved away from the mouth of the Canal. Trial Transcript, II-252.

The weather outside of the Bay was more severe, however, and would have made the filming of the missile launch problematic at that time. As a result, the captain of the 841, Marcus Agrizones, ordered the 841 to station-steam in the lea of Cape Cod, off Provincetown Harbor, where the seas were minimal, until the weather conditions outside the Bay improved.3 The 841 continued in this pattern into the evening of March 15. During this time, the crew monitored various weather forecasts, all of which predicted that the weather would improve to conditions that would be suitable for filming the missile launch by the morning of March 16. Based on these reports, Agrizones decided that the 841 should attempt to reach the rendezvous point in the Gulf of Maine.

At approximately 11:30 p.m. on March 15, Agrizones ordered the helmsman to change course and to begin to proceed out of the Bay. Upon being relieved of his watch by Second Mate David Sousa at 11:45 p.m. that evening, Agrizones instructed Sousa to maintain that course until the 841 reached the "Morse A" buoy, which would occur around midnight, at which time he was to change course to one that would take the 841 to the "number two" buoy. Upon reaching the "number two," Sousa was to telephone Agrizones to inquire as to whether or not to proceed on to the rendezvous point.

Sousa did as instructed. He testified that things were "smooth going" after making the turn at the Morse A, although the seas gradually increased to 15 to 20 feet within one hour. When the 841 reached the "number two" some time after 1:00 a.m., Sousa telephoned Agrizones, and the decision was made, based on the sea conditions, to return to the Bay.4

Shortly before midnight, plaintiff had been conversing with John Lee Phillips on the Mess Deck, located one deck below the bridge and one deck above the engine and pump rooms. Phillips, the First Engineer/Electrician on the 841, was proceeding from the sleeping compartment to the Engine Room, where he was to relieve plaintiff of his watch at midnight. Plaintiff advised Phillips to be careful using the ladders on the ship because the weather conditions had been rough. Plaintiff then began to step through a bulkhead doorway to proceed down a ladder to the pump room, which adjoined the Engine Room, to make the final rounds of his watch.

What happened next forms the center of the controversy at hand. Plaintiff contends that the ship experienced a violent roll — that is, a side to side movement — when the 841 changed course and turned broadside to the seas. The majority of the other crew members on the 841 do not recall such a roll, but rather only the normal pitches and yaws that a boat would experience in heavy seas.5 Notwithstanding this discrepancy, this court finds that what happened to plaintiff at this time is beyond dispute: as plaintiff stepped through the doorway of the bulkhead to proceed to the engine room, he fell down the ladder to the pump room, striking it with his shoulder as he fell, and landed on the floor at the base of the ladder.

II. DISCUSSION

Plaintiff advances three grounds on which he asserts he is entitled to recover damages for the shoulder and back injuries he alleges to have sustained as a result of his fall. First, plaintiff contends that he is entitled to damages under the Jones Act because his injuries were proximately caused by the defendant's negligence. Second, plaintiff contends that the defendant is strictly liable for his injuries because the 841 was unseaworthy. Finally, plaintiff contends that he is entitled to maintenance and cure benefits because he sustained his injuries while in the service of the 841. Each of these claims will be addressed seriatim.

A. Negligence

Generally, anyone who is a victim of a maritime tort is entitled to bring an action in admiralty. See McAleer v. Smith, 57 F.3d 109, 116 (1st Cir.1995). Seamen, however, were once precluded from exercising this right "with respect to injuries caused by `the negligence of the master, or any member of the crew.'" Id. (quoting The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903)); see also Chandris, Inc. v. Latsis, ___ U.S. ___, ___, 115 S.Ct. 2172, 2183, 132 L.Ed.2d 314 (1995). In 1920, Congress enacted the Jones Act in an effort to "give seamen `the same rights to recover for negligence as other tort victims.'" McAleer v. Smith, 57 F.3d at 116 (quoting Gilmore & Black, THE LAW OF ADMIRALTY § 6-21, at 328-29). Indeed, "the Jones Act provides the exclusive recovery in negligence for claims by seamen against their employers," Ellenwood v. Exxon Shipping Co., 984 F.2d 1270, 1283 (1st Cir.), cert. denied, 508 U.S. 981, 113 S.Ct. 2987, 125 L.Ed.2d 682 (1993), and provides a remedy to a "seaman" injured in the course of his or her employment, McAleer v. Smith, 57 F.3d at 115.

The Jones Act imposes upon the employer the duty of paying damages when injury to the worker is proximately caused, in whole or in part, by the employer's fault. See Kernan v. American Dredging Co., 355 U.S. 426, 432, 78 S.Ct. 394, 398, 2 L.Ed.2d 382 (1958). "A plaintiff's burden of proving causation under the Jones Act is `featherweight.' Liability exists if the employer's negligence contributed even in the slightest to the plaintiff's injury." Toucet v. Maritime Overseas Corp., 991 F.2d 5, 10 (1st Cir.1993) (citations omitted).

"Negligence is ... a failure to observe for the protection of the rights of others that degree of care, precaution, and vigilance which the circumstances justly demand...." 1st Bank Southeast of Kenosha, Wis. v. M/V Kalidas, 670 F.Supp. 1421, 1431 (E.D.Wis.1987) (quoting Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 118 n. 6, 83 S.Ct. 659, 665 n. 6, 9 L.Ed.2d 618 (1963)). In other words, negligence is the failure to observe the degree of care which people of ordinary prudence and acumen use under the same or similar circumstances. See id.

The employer's fundamental duty under the Jones Act is to provide its seamen with a reasonably safe place to work — i.e., a safe vessel. See THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 6-21, at 313 (1994). In seeking damages based on the defendant's negligence, plaintiff cites to three instances in which he alleges that the captain and crew of the 841 breached this duty. With respect to each of these instances, however, plaintiff has failed to establish that the defendant breached its duty to provide plaintiff with a safe workplace.

1. Negligent Entrustment

The first instance in which plaintiff alleges that the defendant was negligent occurred when Agrizones turned over control of the ship to Sousa at 11:45 p.m. on March 15. Plaintiff contends that Agrizones, an experienced seaman who had previously spent twenty-three years in the United States Navy, should not have turned command of the ship over to Sousa, or the helm to Sean Corr, at a time when the vessel was about to venture into severe weather conditions and heavy seas. Plaintiff argues that the reasonable course of action would have been for Agrizones to have remained in command of the vessel and to have assigned a more experienced individual to the helm.

In so asserting, plaintiff points to the lack of experience on the part of Sousa and Corr in piloting ships in heavy seas. Indeed, plaintiff points to the fact that Sousa obtained the majority of his prior experience commanding vessels as the captain of ferry and dinner boats that sailed in Narragansett Bay, Rhode Island, where he did not have the opportunity to navigate a vessel in heavy weather or on the open ocean. Moreover, plaintiff cites to the fact that the extent of Corr's previous experience was gained in the two years he had been employed by MAR, Inc., during which time he had only made five or six voyages, and the fact that he had been prone to becoming seasick in the past.

Plaintiff's contention requires this court to address two issues:...

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