Larue v. Joann M. , 73 F.3d 325 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-2782.
Eva F. LARUE, his wife, Plaintiff,
v.
JOANN M., a vessel Joann M., Inc., Defendants.
FLORIDA TOWING CORP., Claimant,
Joann M. Limited Partnership, a foreign partnership, the vessel's
owner, Defendant-Third-party Plaintiff-Counter-Defendant-Appellant,
v.
MORAN TOWING OF FLORIDA, INC., Third-party Defendant-Counter-
Claimant-Appellee.
Jan. 23, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 91-378-CIV-J-16), John H. Moore, II,
Chief Judge.
Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior
Circuit Judge.
GODBOLD, Senior Circuit Judge:
Plaintiff Edward H. Larue was a seaman employed as deckhand on
a tug owned and operated by Moran Towing. In the Port of
Jacksonville the tug provided towing service to the Joann M. and
assisted the Joann M. to her berth. When the tug's duties were
completed she commenced retrieving from the deck of the Joann M.
the 200 pound tow line that she had provided to the vessel. This
required crewmen of the Joann M. to lift the "eye" of the line off
the bitt on which it was secured on the deck of the Joann M., walk
it to an opening on the side of that vessel, and release it to the
deck of the tug, which lay alongside with its deck approximately 30
feet below the deck of the Joann M. Larue was stationed on the
deck of the tug coiling the tow line as it was released and came
downward. Before the line was completely lowered it was suddenly
released and fell downward from the Joann M., struck Larue on the
neck and shoulders, and injured him.
Larue sued Joann M. Limited Partnership, owner of the vessel,
in Florida state court, alleging negligence based on general
maritime law. JMLP filed a third-party complaint against Moran
claiming contribution and indemnity. Moran counterclaimed against
JMLP for contribution and indemnity, but its indemnity counterclaim
was dismissed by the court.
The case was tried to a jury. Although the third-party
contribution/indemnity claims were in admiralty the parties agreed
that the entire case should be submitted to the jury, which would
determine issues of comparative fault. The jury found that JMLP
was 100% negligent and rendered a verdict for plaintiff against
JMLP for $1,000,000.
JMLP's post-trial motions for judgment as a matter of law and
for a new trial were denied. The court entered judgment on the
verdict against JMLP for the $1,000,000 and a take-nothing judgment
against JMLP on its claims (contribution and indemnity) against
Moran. It granted Moran $19,000 against JMLP, the amount that
Moran had paid Larue in settlement of his potential claims against
Moran. The judgment also granted Moran recovery from JMLP of
maintenance and cure it had paid out.
JMLP appealed, and pending the appeal it settled with Larue.
This left in controversy JMLP's claim against Moran for indemnity
and contribution and Moran's counterclaim against JMLP for
contribution. JMLP does not question the $19,000 award or the
maintenance and cure award.
I. Argument to the jury
JMLP insists strenuously and at great length that Moran's
counsel deprived it of a fair trial by appealing to the jury to
render a verdict against JMLP because members of its crew involved
in releasing the tow line were foreigners. The initial deficiency
with this argument is that JMLP itself brought the issue of
national origin into the case by suggesting to the jury that the
seamen releasing the line were Filipinos who spoke the Tagalog
dialect of their native country and therefore might have
misunderstood English phrases spoken by the tug crew to mean "let
go the line." Counsel for Moran was entitled to respond that the
standard of care required of a seaman from another country did not
depend upon how well he understood the language of a particular
port that was foreign to him. But the overriding deficiency in
JMLP's argument is that its counsel did not object to any part of
Moran counsel's comments to the jury. Even if any part of those
comments was arguably improper it does not even approach plain
error.
II. Instructions to the jury
By agreement comparative fault was submitted to the jury.
Plaintiff Larue had made no Jones Act claim against his employer
Moran. JMLP, however, requested the following jury instruction:
In considering the allegation that Moran Towing of
Florida, Inc., or its employees were negligent, you should
take into account that Moran, as plaintiff's employer, owed a
higher duty to plaintiff than the duty of reasonable care owed
by Joann M. Limited Partnership. As plaintiff's employer,
Moran owed plaintiff a high degree of care in providing him a
safe work environment, and had a duty to properly supervise
and instruct plaintiff as to the safe methods by which he
could carry out his orders, or to warn plaintiff of the
potential dangers he faced in completing the task he had been
assigned to perform. Moran is liable for any negligence on
its part in carrying out these duties if that negligence
played any part, even the slightest, in producing any injury
to plaintiff.
R. 3, p. 109. This sought to measure by Jones Act standards JMLP's
third-party claim for contribution from Moran. The court rejected
the proposed instruction and instead instructed that JMLP's
third-party claim against Moran was governed by the same standards
of negligence and causation as governed Larue's negligence claim
against JMLP.
The Jones Act creates a cause of action for a seaman injured
in the course of his employment by his employer's negligence, and
the parameters of that cause of action are set by the statute. The
general maritime law does not provide for such a claim. The
difference between a general admiralty law claim and a Jones Act
claim is not a mere semantic difference between a suit in admiralty
and a suit at law; the difference is substantive and may determine
whether there is a right to recover at all. Powell v. Offshore
Navigation, Inc., 644 F.2d 1063 (5th Cir.1981). In this case
contribution and indemnity depend upon shared fault between the
seaman's employer and another vessel. In determining how to
ascertain or measure shared fault JMLP sought, as a third party,
the benefit to it of the Jones Act statutory standards that spring
from a relationship between Moran and its seamen that is governed
by a statute not otherwise involved in the case.
Neither party cites to us any case in which the theory raised
by JMLP has been adjudicated. The authorities are unclear in
comparing the underpinnings of Jones Act liability and general
maritime law liability for negligence. Some address the comparison
in terms of differing duties of care, with a higher duty or degree
of care upon the Jones Act employer. Others speak of differing
standards of reasonableness, still others of the Jones Act seaman's
lesser ("featherweight") burden of proving causation, and others of
"slight negligence" as compared with ordinary negligence. In this
case the differing views of the parties arise in the context of a
requested jury instruction and a jury verdict on an issue normally
decided by the court. We leave for another case and another day
the attempt to define with precision the levels—intellectual,
analytical and legal—at which Jones Act liability and general
maritime law liability differ, and their interplay in the
contribution/indemnity context. First, the proposed instruction is
confusing and misleading. If respective duties of care are to be
defined to a jury the definition should be cast for each in
respective but absolute terms. Defining the duty of one in terms
of being higher (or lower) than the duty of the other leads the
jury away from a proper determination for each. Second, in this
case the parties by agreement sent to the jury the task of
apportioning shared fault. Fairly read, the jury verdict is a
finding that JMLP committed one hundred percent of the fault.
Since Moran was determined to be wholly free from fault, the
comparative extent of any fault attributable to it and the
standards of causation relating to that comparative fault simply
have no application. The requested jury instruction issue,
directed to how to measure shared fault, dropped out of the case.
For the same reason the instruction actually given, if erroneous,
was not reversible error.
III. JMLP's claim for indemnity
The court entered a judgment denying recovery to JMLP for
indemnity based upon alleged breach by Moran of its duty of
workmanlike performance. The jury finding that one hundred percent
of the negligence was committed by JMLP precludes the possibility
that Moran engaged in conduct that "prevented or seriously hampered
[JMLP's] performance of its duty in accordance with the warranty of
workmanlike service." Oglebay Norton Co. v. CSX Corporation, 788
F.2d 361 (6th Cir.1986). This conclusion by the court was not
merely authorized but indeed required by the jury's verdict.
AFFIRMED. Moran's motion to dismiss the appeal and its motion
to award sanctions and costs (other than those normally assessed in
an appeal) are DENIED.