Springborn v. American Commercial Barge Lines, Inc., 83-3692

Citation767 F.2d 89
Decision Date18 July 1985
Docket NumberNo. 83-3692,83-3692
PartiesBob SPRINGBORN, Plaintiff-Appellee, Cross-Appellant, v. AMERICAN COMMERCIAL BARGE LINES, INC., et al., Defendants-Appellees, Inland Tugs Company, Defendant-Appellant, Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Fred E. Salley, George R. Alvey, Jr., New Orleans, La., for defendant-appellant, cross-appellee.

R. Layne Royer, Baton Rouge, La., for appellees.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, WILLIAMS, and GARWOOD, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This is an appeal from a judgment awarding maintenance and cure to Bob Springborn and his cross-appeal from a judgment denying his claims under the Jones Act, 46 U.S.C. Sec. 688, and for unseaworthiness. We conclude that the jury's award for maintenance and cure was excessive, not supported by the evidence, and reverse and remand. We affirm the jury's determination that there was no negligence or unseaworthiness.

How it All Began

Bob Springborn was the lead deckhand aboard the tug, M/V TOM FRAZIER owned by American Commercial Lines, Inc. The tug was pushing a string of 15 barges 1 owned by American Commercial Barge Lines Co. (ACBL) 2 up the Mississippi River. The barges were placed three across and five deep.

Deckhands, Bob Springborn and Tracy Asher, came on watch at midnight, June 29, 1981. Springborn, as lead deckhand, was required to periodically check water pumps on some of the barges. 3 At 2:30 a.m. he was returning from an inspection and fell from hopper barge # 1819 onto another barge. Asher proceeded from the tug to the barge and helped Springborn back to the wheelhouse. Springborn testified that he did not know what caused him to fall. Asher testified that there was a puddle of oil in the area--although there were no skid marks in it--and no oil on Springborn's clothes or shoes. Asher also stated that he did not know whether there were water pumps at that particular site. Springborn, complaining of pain in his back and left knee, was discharged the following day at the next port. He was hospitalized for one week under the care of Dr. Charles Cannon in Philadelphia, Mississippi. 4 On July 27, 1981, Springborn saw Dr. Gernon Brown in New Orleans who recommended conservative treatment. He determined that there was a narrowing of the lumbosacral disc, indicative of degenerative disc disease, 5 a soft tissue injury, 6 but that there was no disc herniation. On November 2, 1981, Springborn saw Dr. Dabezies in New Orleans. 7 Dr. Dabezies found that Springborn suffered from a low back sprain superimposed on his degenerative disc, but that there was no indication for surgery. He instructed Springborn to be treated by Dr. Abangan who had operated on him for a herniated disc in 1976. 8 On February 2, 1982, Springborn saw Dr. Kenneth Vogel in New Orleans. On March 16, 1982, Dr. Vogel admitted Springborn to Mercy Hospital and performed a discogram on him on March 17. On March 19, Dr. Vogel performed a percutaneous discectomy on Springborn. Springborn was released from the hospital on March 23, 1982.

Springborn brought suit against ACBL for Jones Act negligence and for maintenance and cure under the general maritime law. ACBL answered denying that it was Springborn's employer; subsequently Springborn filed an amended complaint against Inland Tugs Co., Springborn's employer and operator of the tug M/V TOM FRAZIER, and against American Commercial Lines,Inc., owner of the tug M/V TOM FRAZIER. 9 Springborn sought damages for negligence, unseaworthiness, and maintenance and cure against Inland Tugs. He also alleged that barge # 1819 was unseaworthy.

Springborn asserted that his employer, Inland Tugs, was negligent in failing to provide: (i) a safe place to work, (ii) proper supervision, (iii) proper equipment, and (iv) a full crew. He claimed that the tug was unseaworthy because she did not have a full crew 10 to perform the work required, did not have proper equipment to prevent oil spillage, and was manned by an untrained crew. Springborn alleged that barge # 1819 was unseaworthy due to an oil spill that remained on its deck. Springborn sought maintenance from December 7, 1981, through March 22, 1982, and from June 1, 1982, to the date of the trial. Additionally, he claimed that Inland Tugs arbitrarily refused to pay maintenance and cure, thus entitling him to punitive damages and attorney's fees.

Trial was before a six member jury. In its answers to sixteen precise interrogatories, 11 the jury, as to claims for compensatory damages, held Inland Tugs not negligent, the tug M/V TOM FRAZIER seaworthy, barge # 1819 seaworthy, Springborn 50% contributorily negligent and awarded no compensatory damages. The jury did find, however, that Springborn was entitled to maintenance and cure, fixed the amount at $75,000. The jury also found that there was no willful, unreasonable failure to pay maintenance and cure. While it is the jury's maintenance and cure finding that is primarily in dispute before us, Springborn also challenges the failure to find unseaworthiness and negligence.

Food, Lodging, Candlelight, and a Woman 12

The jury awarded Springborn $75,000 for maintenance and cure. Although this finding necessarily contemplated an award for cure (approximately $13,000 including travel expenses) 13 we must determine whether the verdict for maintenance alone was adequately established.

In the trial court, Inland Tugs moved for a j.n.o.v., new trial, or remittitur contending that the $75,000 maintenance and cure award was excessive and unsupported by the evidence. Inland Tugs asserts that the district court erred as a matter of law in failing to grant the motion for j.n.o.v. and for remittitur because Springborn failed to prove an appropriate maintenance rate. Our standard of review for a j.n.o.v. was established in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc); see also Smith v. Shell Oil Co., 746 F.2d 1087, 1091 (5th Cir.1984); Maxey v. Freightliner Corp., 665 F.2d 1367, 1371 (5th Cir.1982) (en banc). In Boeing we made clear that a motion for j.n.o.v. should be granted only when the facts and inferences point so strongly and overwhelmingly in favor of a moving party that reasonable persons could not arrive at a contrary verdict.

The standard for reviewing such motions is the same in the trial court and on appeal. Harwood & Associates, Inc. v. Texas Bank & Trust, 654 F.2d 1073, 1076 (5th Cir.1981 Unit A). Ambiguities and doubts are to be resolved in favor of the seaman. Vaughn v. Atkinson, 369 U.S. 527, 532, 82 S.Ct. 997, 1000, 8 L.Ed.2d 88, 92, 1962 A.M.C. 1131 (1962); Wood v. Diamond M Drilling Co., 691 F.2d 1165, 1171, 1983 A.M.C. 2959, 967 (5th Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1523, 75 L.Ed.2d 947 (1983).

We affirm the district court's denial of the motion for j.n.o.v. on the issue of the rate of maintenance because the evidence was sufficient to create a question for the jury under the Boeing standard. There is an ancient duty of a vessel to provide maintenance and cure to a seaman who is injured or falls ill while in the service of the ship. The OSCEOLA, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760, 764 (1903); see generally, Ravkind, More on Maintenance, 24 S.Tex.L.J. 533 (1983). Maintenance is comparable to the value of food and lodging provided by the vessel. Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 653, 82 L.Ed. 993, 997, 1938 A.M.C. 341, 343 (1938); Morel v. Sabine Towing & Transp. Co., 669 F.2d 345, 346, 1984 A.M.C. 1318, 1319 (5th Cir.1982); Tate v. American Tugs, Inc., 634 F.2d 869, 870, 1981 A.M.C. 2826, 2827 (5th Cir.1981); see also Norris, The Law of Seamen, Sec. 572 at 90 (1970) (maintenance while being cured takes the place of the seaman's sustenance on the ship). A seaman's own testimony as to expenses is competent evidence of the amount of maintenance. Harper v. Zapata Off-shore Co., 741 F.2d 87, 91 (5th Cir.1984); Caulfield v. AC & D Marine, Inc., 633 F.2d 1129, 1132-33, 1982 A.M.C. 1033, 1037 (5th Cir.1981). Since the maintenance payment is for food and lodging similar to that aboard the vessel, the amount may vary depending on what was provided by the ship and the cost of the equivalent shoreside. Tate, 634 F.2d at 870, 1981 A.M.C. at 2827. Thus, it is a question of fact to be decided based upon the evidence presented. Id.

At trial, the only testimony provided by Springborn concerning maintenance was Springborn's statement that he borrowed $200 a week from his attorney. Springborn argues that this is competent evidence and supports the jury's award. Additional testimony came from Inland Tugs' claims adjuster who was examined by Springborn's attorney as a hostile witness. His testimony was that Springborn was receiving maintenance at the rate of $14 a day. We conclude that Springborn's mere assertion that he borrowed $200 a week from his attorney to live on is not enough. The seaman must present some evidence that he expended sums for food and lodging ashore which was the equivalent of that on the vessel. Maintenance is limited to seamen who actually incur expenses for their support. Thus, when maintenance is provided by parents or relatives or during hospitalization, no maintenance need be paid by the vessel. See, e.g., Johnson v. United States, 333 U.S. 46, 50, 68 S.Ct. 391, 394, 92 L.Ed. 468, 473, 1948 A.M.C. 218, 221 (1948); Calmar, 303 U.S. at 531, 58 S.Ct. at 654, 82 L.Ed. at 998, 1938 A.M.C. at 346 (1938). Without some indication of Springborn's expenses, an award is not appropriate. However, the testimony of the claims adjuster that $14 per day was paid for the maintenance of the seaman was some evidence to support a maintenance award. See Harper, 741 F.2d at 91. We conclude that under the Boeing standard, this testimony was sufficient to create a question for the jury.

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