Thomas D. Joyce v. Atlantic Richfield Company, a Pennsylvania Corporation , 651 F.2d 676 ( 1981 )

Petition for Rehearing

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

BARRETT, Circuit Judge.

In its petition for rehearing, ARCO challenges the extent of our remand order. ARCO contends, inter alia, that the case should be remanded solely for determination of the parties’ comparative fault.

Preliminary Observations

If all questions surrounding the issues of liability and extent of damages were settled, a limited remand for comparison of the parties’ fault would be proper. Fed.Rules Civil Proc. Rule 59, 28 U.S.C.A. Cf. Trejo v. Denver & R.G.W. R. Co., 568 F.2d 181 (10th Cir. 1977) (remand for new trial on damages issue only). This is so because “the matter involved is entirely distinct and separable from other matters involved in the [lawsuit] ... and ... no possible injustice can be done to either party” by limiting the issues on retrial. Norfolk Southern Railroad Company v. Ferebee, 238 U.S. 269, 274, 35 S.Ct. 781, 782, 59 L.Ed.2d 1303 (1915); Trejo v. Denver & R.G.W. R. Co., Inc., supra. See also Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1931). Thus, the extent of the remand directly correlates with our disposition of the issues. If error is found on any issue affecting liability or the extent of damages, remand for a redetermination of those issues must be made. Rivera v. Farrell Lines, Inc., 474 F.2d 255, 259 (2d Cir. 1973), cert. denied, 414 U.S. 822, 94 S.Ct. 122, 38 L.Ed.2d 55 (1973).

In our opinion, filed March 26, 1981, we declined to reach certain issues raised by Joyce on appeal. Inasmuch as the extent of our remand order depends on our resolution of these issues, we now elect to treat them. These issues surround the remainder of the trial court’s charge, and its handling of the jury’s deliberative inquiries.

Failure to Provide Swift and Adequate Medical Care

At trial, Joyce maintained ARCO failed to make reasonable efforts to provide him with swift and adequate medical attention. The jury, he argues, was not properly instructed on the elements of this claim. We agree.¹

Generally, shipowners must provide maintenance and cure to seamen injured in service of the ship. Vella v. Ford Motor Co., 421 U.S. 1, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975); Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). On vessels lacking adequate medical facilities this duty requires the shipowner, if necessary, to promptly evacuate the injured to a hospital or put into the nearest port where treatment is available. The Iroquois, 194 U.S. 240, 24 S.Ct. 640, 48 L.Ed. 955 (1904); Central Gulf Steamship Corp. v. Sambula, 405 F.2d 291 (5th Cir. 1968). See Gilmore and Black, The Law of Admirality, § 6-13 (1975). If it is established that a breach of this duty has contributed in any manner to additional pain, disability or prolonged recovery, an action for damages may be brought under the Jones Act, 46 U.S. C.A. § 688. Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932), overruled on other grounds, Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), Picou v. American Offshore Fleet, Inc., 576 F.2d 585 (5th Cir. 1978); Stevens v. Seacoast Co., 414 F.2d 1032 (5th Cir. 1969); Central Gulf Steamship Corp. v. Sambula, supra; Bass v. Warren Fish Co., 245 F.2d 43 (5th Cir. 1957); Sims v. United States War Shipping Administration, 186 F.2d 972 (3d Cir. 1951), cert. denied, 342 U.S. 816, 72 S.Ct. 31, 96 L.Ed. 617 (1951). See Gilmore and Black, supra, at § 6-13. Whether a breach of this duty has occurred presents a question of fact. The Iroquois, supra.

Negligent failure to provide prompt medical attention to a seriously injured seaman gives rise to a separate claim for relief. See e. g. Jewell v. The Ohio River Co., 1967 A.M.C. 1724 (W.D.Pa.1966), aff’d per curiam, 431 F.2d 691 (3rd Cir. 1970) (plaintiff, who had recovered Jones Act damages for original injuries, allowed to bring second Jones Act claim for aggravation of original injuries); Ladjini v. Pacific Far East Line, Inc., 97 F.Supp. 174 (N.D.Cal.1951) (awarding separate damages for aggravation of original injuries). The charge to the jury in this case, however, combined the slip and fall claim with the alleged failure to provide prompt medical assistance. This was error. It is possible for a jury to find that the initial injury resulted entirely from the seaman’s own negligence, while at the same time assessing damages for aggravation of that injury based on the shipowner’s post-accident omissions. See e. g. Sims v. United States War Shipping Administration, supra, (non-shipowner caused illness aggravated by failure to provide post-termination care). Similarly, the extent of each party’s comparative fault may differ under each claim for relief.

In sum, we hold that the court erred in not submitting separate instructions and in not requiring separate findings as to each claim for relief. The instructions, on remand, should caution the jury that a double recovery is precluded.²

Causation Instructions

Joyce argues that the court erred in its causation instructions to the jury. Inasmuch as no objections were lodged to the challenged instructions, our review is limited to a determination of whether plain error occurred. Fed.Rules Civ.Proc. Rule 51, 28 U.S.C.A.

It is settled that in Jones Act cases causation may be found if the defendant’s acts or omissions played any part, no matter how small, in bringing about the injury. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957) (plurality opinion). The courts disagree, however, as to the proper test of causation in unseaworthiness actions. Some circuits apply a “substantial factor” standard of causation. Spinks v. Chevron Oil Company, 507 F.2d 216 (5th Cir. 1975), modified, 546 F.2d 675 (5th Cir. 1977); Shaw v. Lauritzen, 428 F.2d 247 (3d Cir. 1970). Others simply apply the Jones ActFELA standard to unseaworthiness claims. Milos v. Sea-Land Service, Inc., 478 F.Supp. 1019, 1023 (S.D.N.Y.1979), aff’d mem., 622 F.2d 574 (2d Cir. 1980); Peymann v. Perini Corp., 507 F.2d 1318, 1324 (1st Cir. 1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1974); Farnarjian v. American Export Isbrandtsen Lines, Inc., 474 F.2d 361 (2d Cir. 1973). See also: Devitt and Black-mar, supra, § 96.22.

We hold that plain error did not occur in connection with the challenged instructions. Fed.Rules Civil Proc. Rule 61, 28 U.S.C.A. The Jones Act causation instructions were correct. The use of the term proximate cause in the damage instruction, while inadvisable, was not clearly erroneous. Litherland v. Petrolane Offshore Const. Services, 546 F.2d 129 (5th Cir. 1977); Farnarjian v. American Export Isbrandtsen Lines, Inc., supra. The instructions on the Jones Act claim, combined with the special verdict form, adequately conveyed to the jury the proper standard of causation.

With regard to the unseaworthiness claim, the Court instructed the jury that “the ship owner or operator is liable for all injuries and consequent damages proximately caused or contributed to in whole or in part by an unseaworthy condition ...” [Emphasis supplied]. [R., Vol. VII, pp. 11,15]. This charge, of course, was more generous to Joyce than the already liberalized Spinks, supra, test of causation. Assuming that the Jones Act-FELA standard of causation applies, we hold that plain error did not occur. Cf. Farnarjian v. American Export Isbrandtsen Lines, Inc., supra, (harmless error found where jury charged that negligence, if proven, was a proximate cause “in whole or in part”).

In any event, we believe the Spinks, supra, line of cases represents the better view. Our adherence to Spinks, supra, is based on the narrow application FELA and Jones Act standards have been given in other areas. These statutes represent unique remedial legislation. See Matthews v. Ernst Russ S.S. Co., 603 F.2d 676 (7th Cir. 1979) (applying same standard to Longshoremen’s and Harbor Workers’ Compensation Act of 1977, 33 U.S.C.A. § 901 et seq.). At the same time we recognize that seamen are “wards of the Court” and developments in the maritime field have been skewed in their favor. By relaxing the common-law test of causation, Spinks, supra, recognized this trend.

Remaining Contentions

Joyce argues that the Court erred in refusing his proposed instruction detailing his contentions as to ARCO’s duty to furnish a reasonably safe place in which to work. [R., Vol. I, p. 96], It is not error for a court to refuse to adopt the precise terminology of a properly proposed instruction, providing the substance thereof is fully stated. Vesper Const. Co., Inc. v. Rain for Rent, Inc., 602 F.2d 238 (10th Cir. 1979). The Court’s instructions adequately covered Joyce’s contentions concerning the duty to furnish a reasonably safe place in which to work.

Joyce contends the Court erred in refusing to answer or clarify the jury’s deliberative inquiries concerning the calculation of comparative negligence and damages. Once the jury has been correctly charged, the extent of amplification, if any, rests within the sound discretion of the trial court. United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947). We recognize that the instructions and special verdict in the challenged areas were not clear in all regards. Even so, they were substantially correct. The Court did not abuse its discretion in refusing to reinstruct.

Similarly, we find no error in the Court’s instruction that Joyce’s theory of the case alone was not evidence. The questions surrounding the taxation of costs are not now properly before us in light of our mandate. Farmer v. Arabian American Oil Co., 379 U.S. 227, 233, 85 S.Ct. 411, 415, 13 L.Ed.2d 248 (1965); Wright & Miller, Fed. Prac. and Proc.: Civil § 2668.

Conclusion

We hold that the Court erred in failing to properly instruct regarding the claimed failure to provide swift and adequate medical care. This theory was inextricably intertwined with the primary Jones Act claim on both the liability and damage aspects. This, accordingly, necessitates retrial on all aspects of the Jones Act claims. Norfolk Southern Railroad Company v. Ferebee, supra. The liability determination under the unseaworthiness count, however, is affirmed.

Our opinion of March 26, 1981, is, upon rehearing, supplemented to the extent of our discussion hereinabove set forth. To the extent that this opinion denies specific relief requested upon rehearing, such relief is denied.³

1 . The motion for judgment notwithstanding the verdict as to this issue was properly denied.

2 . ARCO does not meet this argument directly. Instead, it urges affirmance on the grounds that the evidence does not support such a charge as a matter of law. We disagree.

3 . We do, however, observe that in Byrd v. Reederei, 638 F.2d 1300 (5th Cir. 1981), the court followed the rule announced in Rivera v. Farrell Lines, Inc., supra, concerning the assumption of the risk instructions. See also, Sessler v. Allied Towing Corp., 538 F.2d 630 (4th Cir. 1976). Recently in Scindia Steam Navigation Co., Ltd. v. De Los Santos,-U.S. -, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981) the Court, in an action under the LHWCA, stated:

We agree with the Court of Appeals that the shipowner may not defend on the ground that Santos [longshoreman] should have refused to continue working in the face of an obviously dangerous winch which its employer, Seattle [stevedore], was continuing to use. The District Court erred in ruling otherwise, since the defense of assumption of the risk is unavailable in § 905(b) [of the LHWCA] litigation.

Scindia Steam Navigation Co., Ltd. v. De Los Santos, supra, — U.S. at p. -n. 22, 101 S.Ct. at p. 1626 n. 22, 68 L.Ed.2d at p. 18 n. 22. This, of course, appears to call into serious question the text of instructions §§ 96.35 and 96.40 of Devitt and Blackmar. See panel opinion, supra 683 n. 3.