Couch v. Cro-Marine Transport, Inc.

United States Court of Appeals,
Fifth Circuit.
No. 93-3902.
Ray COUCH, III, Plaintiff-Appellee,
v.
CRO-MARINE TRANSPORT, INC., et al., Defendants,
James J. Flanagan Shipping Corporation, Defendant-Appellant.
BERISFORD METALS CORPORATION, d/b/a Erlanger & Co., Third-Party
Plaintiff,
v.
CENTRAL ILLINOIS DOCK COMPANY, Third-Party Defendant Intervenor-
Appellee,
v.
JAMES J. FLANAGAN SHIPPING CORPORATION, Third-Party Defendant-
Appellant.
Feb. 13, 1995.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before GARWOOD, JOLLY and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellee longshoreman Ray Couch (Couch) filed this
suit against Cro-Marine-Transport (Cro-Marine), Berisford Metals
Corporation/Erlanger and Company (Erlanger), and James J. Flanagan
Shipping Corporation, d/b/a New Orleans Stevedoring Company (NOSC),
for injuries sustained while unloading steel cargo from a Cro-
Marine barge in Peoria, Illinois. Erlanger was the owner of the
steel cargo, and NOSC was the stevedore that loaded the steel into
the barges in the port of New Orleans. After the district court
1
dismissed the claims against Cro-Marine and Erlanger, Couch
proceeded with his suit against NOSC and recovered a $1,722,640
judgment in a bench trial. Defendant-appellant NOSC appeals,
raising several factual and legal issues. We affirm in part,
vacate in part, and remand.
Facts and Proceedings Below
Couch, a longshoreman employed by Central Illinois Dock
Company (CIDC), was injured while discharging steel cargo from Cro-
Marine barge VL-8141 in Peoria, Illinois, on December 14, 1987. As
a result of his injuries, Couch's leg was amputated above the knee.
The steel destined for Peoria had arrived in the port of New
Orleans aboard the M/V UCKA. Thereafter, the owners of the M/V
UCKA hired NOSC to discharge the M/V UCKA and transload the steel
cargo onto three Cro-Marine barges, including barge VL-8141, for
the trip upriver to Peoria. The steel cargo consisted of bundles
of steel billets of various sizes, steel coils, and steel bars.
Chander Gorowara, an independent marine surveyor hired by the
cargo owner Erlanger, inspected and photographed the steel cargo in
New Orleans while it was stacked in a wharf storage shed and again
after NOSC loaded it into the barges bound for Peoria. These
photographs, introduced into evidence at trial, show the condition
of the cargo and its stow in the barges bound for Peoria. As
depicted by the photographs of the stow in the storage shed, NOSC
neatly stacked the steel bundles in tiers with wood dunnage placed
between the layers. By contrast, the photographs of the stow in
the barges, particularly barge VL-8141, reveal that NOSC
2
haphazardly dumped irregular piles of steel into the barges.
Several of the piles were dropped in the barge at an angle instead
of being stacked to provide a walking surface for the discharging
stevedore. Moreover, NOSC used dunnage irregularly and as a bridge
to support the weight of the steel instead of its intended use as
a separation.1
Tugs accompanied the unmanned barges on the voyage upriver to
Peoria. Erlanger hired CIDC, a Peoria stevedoring company with
over thirty years' experience on the Illinois River, to discharge
the steel from the barges to trucks for shipment to the Caterpillar
Truck Company, also in Peoria. Ninety-five percent of CIDC's
business consists of discharging vessels, and steel accounts for
about ninety percent of the cargo it unloads. After personally
inspecting the barges, Daniel McNally (McNally), the owner and
president of CIDC, described the stow as one of the worst barge
loads he had ever seen. There were four or five distinct piles of
steel bundles jammed against each other with broken dunnage
throughout the barge. McNally noticed bundles not separated by
dunnage and overhanging bundles ready to fall over.
CIDC had more experience in discharging steel cargo than any
other stevedore in the area. McNally decided that CIDC would
proceed carefully to discharge the steel from the barges. McNally
assigned a crew consisting of a crane operator, two laborers, one
1
The district court observed that NOSC was paid to discharge
the M/V UCKA at a fixed price per metric ton rather than at an
hourly rate, thus providing an incentive to load the barges as
quickly as possible.
3
of whom was Couch, a superintendent, and a truck driver to unload
the barge. At the time of the accident, Couch had three months of
experience unloading barges. Cohenour, the laborer assisting
Couch, had one and one-half years of experience.
The unloading operation consisted of the crane operator
lowering a block with two attached choker chains into the cargo
area. Cohenour and Couch, positioned at either end of the piles of
steel, would wrap the choker chains around the ends of the bundle
of steel billets to be unloaded. At this point, Cohenour would
signal the crane operator to lift the bundles out of the barge and
onto the truck.
Due to the haphazard dump stow of the steel and the
insufficient and improper use of dunnage, Couch and Cohenour had
difficulty getting the chains around the bundles and needed to use
pry bars to lift up the bundles so that the chains could be placed
around the ends. Moreover, the crane operator occasionally had to
pick up one end of a bundle so that chains could be placed around
the other end. This operation proceeded for some twenty-one hours
until only eight bundles, located in the starboard bow of barge VL-
8141, remained to be unloaded. These bundles were leaning against
the rake of the bow and were arranged so that there were three
bundles on the bottom, two in the middle, and three on the top, the
weight of the top three bundles being supported by the two bundles
in the middle.
Couch and Cohenour then attempted to unload two of the top
bundles positioned closest to them. Because these bundles were
4
pressed against the rake of the bow, the crane operator lifted one
end of either one or two of these bundles and set them down.
Couch, who was closest to the bow, was trying to wrap the chains
around the ends of the two bundles when he heard a crack. A one
and one-half to four ton bundle of steel billets fell and crushed
Couch's left leg. At the time of the accident, the crane operator
was still awaiting a signal from Cohenour.
After five unsuccessful surgical procedures, Couch's
physicians amputated his leg above the knee. Since the initial
amputation, Couch has undergone additional surgery, including stump
revision, bringing the total number of surgeries to fourteen at the
time of the district court judgment. Couch now wears a prosthetic
device, which requires maintenance and regular part replacement due
to his active lifestyle. Couch suffers severe ghost pains in his
leg and has also endured back and knee pain due to the pressure his
activities place on those muscles. Couch was twenty-seven years
old at the time of his injury. Prior to the accident, he had led
a very active life, was a black belt in karate and an amateur boxer
aspiring to turn professional. Before the accident, Couch worked
approximately forty hours per week earning $9.25 per hour.
At his own initiative and expense, Couch enrolled in community
college after the accident to train for another career as a diesel
mechanic. In December 1992, he returned to work for CIDC as a
diesel mechanic, eventually working twenty-four hours each week at
$11.25 per hour, approximately the same hourly rate he would be
earning if he had not been injured. Shortly after starting work as
5
a diesel mechanic, Couch's condition forced him to take off
approximately one month. Couch still hopes to work five days a
week, but that will depend upon the strain such a schedule puts on
his body.
Couch originally filed suit in the United States District
Court for the Central District of Illinois against Cro-Marine, the
owner of the barge, and Erlanger, the owner of the steel cargo. He
subsequently amended his complaint to name NOSC as a defendant.
After NOSC objected to venue in the Central District of Illinois,
the entire proceeding was transferred to the Eastern District of
Louisiana. Prior to trial, the district court granted Cro-Marine
and Erlanger's motions for summary judgment and dismissed them from
the action. NOSC filed a third-party complaint against CIDC
seeking indemnity and contribution. CIDC also remained in the
litigation as an intervenor seeking to recover amounts paid to or
on behalf of Couch under the Illinois Workers' Compensation Act
(IWCA).
After a bench trial, the district court entered a judgment
against NOSC awarding Couch $1,722,640. This award included
$134,225 for past medical and prosthesis expenses, $150,000 for
future medical and prosthesis expenses, $88,415 for past wage
losses, $200,000 for future loss of earning capacity, and
$1,150,000 for physical pain and suffering, disability, impairment,
and mental anguish. Because Couch received IWCA benefits from his
employer CIDC, the district court held that CIDC was entitled to
recover from his award the amount spent on medical expenses
6
($134,225) and the compensation benefits paid ($71,105), subject to
a credit of 25% attorneys' fees in favor of Couch and his counsel.
Finally, the district court awarded interest from the date of the
entry of the judgment on the award of future medical expenses and
future loss of earning capacity. On the past medical expenses,
past lost wages and the $1,115,000 pain and suffering award, the
district court awarded interest from the date of the injury.
Discussion
I. Applicability of Scindia
The Longshore and Harbor Workers' Compensation Act (LHWCA)
establishes a comprehensive framework to provide a federal workers'
compensation program for longshoremen injured or killed in
job-related accidents. 33 U.S.C. §§ 901-950; Gilmore & Black, The
Law of Admiralty 408-412 (1975). The 1972 congressional amendments
to the LHWCA "were the first significant effort to reform the 1927
Act and the judicial gloss that had been attached to it."
Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261, 97
S.Ct. 2348, 2356, 53 L.Ed.2d 320 (1977). Prior to 1972, an injured
longshoreman could receive benefits from his stevedore-employer
under LHWCA and also recover damages from the shipowner for
injuries caused by the negligence or unseaworthiness of the vessel
being serviced. Gilmore & Black, The Law of Admiralty 411 (1975).
In order to prevail in an unseaworthiness cause of action, the
longshoreman did not have to prove fault on the part of the
shipowner but only needed to show an unsafe, injury-causing
condition on the vessel. Seas Shipping Co. v. Sieracki, 328 U.S.
7
85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Under the Sieracki
doctrine, a shipowner could be held liable even if the stevedore
created or caused the injury-causing condition. See, e.g., Crumady
v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3
L.Ed.2d 413 (1959).2 Moreover, the shipowner thus held liable to
the longshoreman could maintain an indemnity action against the
stevedore for breach of an implied or express warranty to handle
the cargo in a reasonably safe manner. Ryan Stevedoring Co. v.
Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133(1956).
The Supreme Court has described the 1972 amendments as a
legislative compromise between three groups: (1) shipowners
dissatisfied with decisions permitting longshoremen compensated
under LHWCA to recover in unseaworthiness actions; (2) stevedores
subject to indemnification suits by vessel owners; (3)
longshoremen seeking increased compensation benefits. Northeast
Marine Terminal Co., 432 U.S. at 263-65, 97 S.Ct. at 2357.
Discussing the 1972 amendments, the Supreme Court has stated, "The
design of these changes was to shift more of the responsibility for
compensating injured longshoremen to the party best able to prevent
injuries: the stevedore-employer." Howlett v. Birkdale Shipping
Co., S.A., --- U.S. ----, ----, 114 S.Ct. 2057, 2063, 129 L.Ed.2d
78 (1994).
2
In Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91
S.Ct. 514, 27 L.Ed.2d 562 (1971), the Supreme Court held that a
single act of operational negligence by the stevedore did not
render the vessel unseaworthy.
8
The legislative compromise incorporated in the 1972
amendments radically reformulated the triangular relationship
between vessel owners, stevedores, and longshoremen. First,
Congress substantially increased the benefits payable to
longshoremen under the LHWCA. Second, the amendments abolished the
longshoreman's right to recover from the shipowner for
unseaworthiness. Finally, Congress eliminated the stevedore's
obligation to indemnify the shipowner if it was held liable for
damages suffered by the longshoreman. Gilmore & Black, The Law of
Admiralty 411 (1975). The 1972 amendments, however, preserved a
longshoreman's right to recover from the vessel owner for
negligence. 33 U.S.C. § 905(b).3 Because Congress did not recite
the acts or omissions of a vessel that would amount to negligence,
the scope of the duty owed by a vessel to longshoremen was left to
"be resolved through the application of accepted principles of tort
law and the ordinary process of litigation." H.R.Rep. No. 92-1441,
92nd Cong., 2nd Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 4698,
4704. In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S.
333 U.S.C. § 905(b) provides:
"In the event of injury to a person covered under this
chapter caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages
by reason thereof, may bring an action against such
vessel as a third party in accordance with the
provisions of section 933 of this title, and the
employer shall not be liable to the vessel for such
damages directly or indirectly and any agreements or
warranties to the contrary shall be void.... The
liability of the vessel under this subsection shall not
be based upon the warranty of seaworthiness or a breach
thereof at the time the injury occurred."
9
156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Court articulated the
scope of a shipowner's duty to longshoremen under section 905(b)
and outlined three general duties shipowners owe to longshoremen.
This Court has summarized the three scenarios under which a vessel
owner may be liable under Scindia:
"1) if the vessel owner fails to warn on turning over the ship
of hidden defects of which he should have known.
2) for injury caused by hazards under the control of the ship.
3) if the vessel owner fails to intervene in the stevedore's
operations when he has actual knowledge both of the hazard and
that the stevedore, in the exercise of "obviously improvident'
judgment means to work on in the face of it and therefore
cannot be relied on to remedy it." Pimental v. LTD Canadian
Pacific BUL, 965 F.2d 13, 15 (5th Cir.1992) (citations
omitted).
NOSC argues that the duty a loading stevedore owes a
discharging longshoreman is equivalent to the duty a shipowner owes
a longshoreman under Scindia. NOSC asserts that it cannot be
liable under Scindia because its stow constituted an open and
obvious condition, therefore not triggering a breach of the first
Scindia duty to warn of hidden defects. Scindia does hold that in
a suit under section 905(b) by a longshoreman against a shipowner,
the vessel's duty does not extend to open and obvious conditions.
Scindia, 451 U.S. at 172-74, 101 S.Ct. at 1625. The district court
refused to apply Scindia, citing crucial differences between the
position of the vessel owner in relation to the discharging
longshoremen and the position of the loading stevedore in relation
to the discharging longshoremen. We hold that the district court
was correct for several reasons.
NOSC argues that Scindia applies to the facts of this case and
10
establishes that it owed no duty to protect Couch or any other
discharging longshoreman from open and obvious hazards. Scindia
involved a suit by an injured longshoreman against a shipowner
under section 905(b), the longshoreman's statutory right to recover
from the vessel owner for negligence as preserved in the 1972
amendments. The LHWCA defines the term "vessel" to mean "any
vessel upon which or in connection with which any person entitled
to benefits under this chapter suffers injury or death arising out
of or in the course of his employment, and said vessel's owner,
owner pro hac vice, agent, operator, charter or bare boat charter,
master, officer, or crew member." 33 U.S.C. § 902(21). Although
Couch originally asserted a section 905(b) claim against Cro-Marine
as the owner of the unmanned barges, the district court granted
Cro-Marine's motion for summary judgment on the grounds that it
breached no duty owed to Couch under Scindia, thereby eliminating
section 905(b) from the suit.4 NOSC, the onloading stevedore,
remained in the litigation as the sole defendant, and Couch
proceeded with his cause of action against NOSC under the general
maritime law as provided for in the pretrial order.
In its supplemental brief and at oral argument on appeal, NOSC
contends that Howlett v. Birkdale Shipping Co., --- U.S. ----, 114
S.Ct. 2057, 129 L.Ed.2d 78 (1994), strongly reinforces its argument
that the Scindia standard should govern the relationship between
4
In the same order, the district court granted defendant
Erlanger's motion for summary judgment on the ground that a cargo
owner owed no duty with respect to the cargo operations. Couch
did not appeal the district court's order dismissing Erlanger and
Cro-Marine.
11
the onloading stevedore and the discharging longshoremen. The
issue addressed by the Court in Howlett, a section 905(b) suit
against a shipowner, was the scope of a shipowner's duty to warn of
latent hazards in the cargo stow. Although Howlett elaborates the
scope of the first Scindia duty, it does not help NOSC overcome the
insurmountable hurdle of applying the Scindia standard to a case
involving a suit by an injured longshoreman against a loading
stevedore. Scindia and Howlett are section 905(b) cases brought
against shipowners and do not support NOSC's contention that the
Scindia standard should apply in this case, a negligence suit under
the general maritime law against a party other than the vessel
owner.
The facts in this case may be somewhat unusual because they
involve a domestic onloading stevedore (NOSC) loading a stow which
causes injury to a domestic discharging longshoreman (Couch).
Perhaps more typically, the vessel being unloaded by the injured
longshoreman will have been loaded by a foreign stevedore over whom
the discharging longshoreman is unable to obtain jurisdiction, and
the injured discharging longshoreman hence sues only the vessel
owner for negligence under section 905(b). See Howlett v. Birkdale
Shipping Co., S.A., --- U.S. ----, 114 S.Ct. 2057, 129 L.Ed.2d 78(1994) (section 905(b) suit by discharging longshoreman injured
when he slipped on a plastic sheet improperly placed in the stow by
the loading stevedore in Ecuador); Woods v. Sammisa Co., 873 F.2d
842 (5th Cir.1989), cert. denied, 493 U.S. 1050, 110 S.Ct. 853, 107
L.Ed.2d 847 (1990) (section 905(b) suit against shipowner by
12
longshoreman injured while unloading steel pipes improperly loaded
by stevedore in Brazil); Clay v. Lykes Bros. S.S. Co., 525 F.Supp.
306 (E.D.La.1981) (section 905(b) suit against vessel owner by two
longshoremen injured while unloading cargo negligently loaded by
stevedores in London).5
The facts of this case give rise to an important distinction
between vessel owners and stevedores. The Court in Scindia held
that a vessel owner has "no general duty by way of supervision or
inspection to exercise reasonable care to discover dangerous
conditions that develop within the confines of the cargo operations
that are assigned to the stevedore." Scindia, 451 U.S. at 172, 101
S.Ct. at 1624. As support for this rule, the Court discussed at
great length the fact that the stevedore is the expert in cargo
operations hired by the nonexpert shipowner. Id. at 168-74, 101
S.Ct. at 1623-1625. Accordingly, the Court in Scindia described
"the justifiable expectations of the vessel that the stevedore
would perform with reasonable competence and see to the safety of
the cargo operations." Id. at 172, 101 S.Ct. at 1624.6
5
The court in Clay stated "[t]here is no question but that
parties who are not before the court, the riggers in London who
tied the cable and the stevedores who placed the bundles of pipe
on top of the cable, were negligent and that this negligence was
a cause of the resultant accident and injuries to plaintiffs."
525 F.Supp. at 308.
6
The indemnity cases decided before the 1972 amendments
reason that "the stevedore was in the best position to avoid
accidents during cargo operations and that the shipowner could
rely on the stevedore's warranty to perform competently." Id.
Section 41 of the LHWCA mandates that the stevedore provide its
employees with a reasonably safe work place and implement
safeguards necessary to prevent injuries. Further, 33 U.S.C. §
941(a). 33 U.S.C. § 941(a) also authorizes the Secretary of
13
In Scindia and Howlett the Court considered the relationship
between and roles of the stevedore-employer and the vessel owner.
Emphasizing the role of the stevedore-employer as a specialist in
cargo operations on one side and the nonexpert vessel on the other
side, the Court reasoned that, as between these two parties, the
stevedore-employer was in the best position to prevent injuries to
longshoremen. Unlike the shipowner in Scindia, NOSC, as loading
stevedore, is indeed an expert in cargo operations, thus creating
a very different relationship, with experts in stevedoring on both
sides. Therefore, the reasoning of the Court in Scindia for
crafting a limited scope of liability for the nonexpert vessel
based on the justifiable expectations of the shipowner does not
logically apply to the facts of this case. Accordingly, based on
the facts of this case, the onloading stevedore was in the best
position to avoid creating a dangerous stow and therefore may be
held liable for any injuries suffered by discharging longshoremen
caused by its negligent stow.7
Labor to promulgate regulations to protect the life, health, and
safety of longshoremen. For example, an OSHA regulation
governing cargo stows provides:
"(a) When necessary, cargo shall be secured or blocked
to prevent its shifting or falling.
(b) In breaking down, precautions shall be taken, when
necessary, to prevent the remaining cargo from
falling." 29 C.F.R. § 1918.83(a)-(b).
7
By way of analogy, the district court observed that a
stevedore may be held liable for cargo damage due to its
negligence. Maurice Pincoffs Co. v. Dravo Mechling Corp., 697
F.Supp. 244, 249-50 (E.D.La.1987), aff'd without op., 880 F.2d
411 (5th Cir.1989) (holding that an unloading stevedore has a
duty to exercise reasonable care and may be liable for any damage
14
NOSC argues that the purpose of the 1972 amendments to the
LHWCA was to shift the responsibility for compensating injured
longshoremen to the party best able to prevent injuries, the
stevedore-employer. In order to further this congressional
purpose, NOSC contends that we should apply Scindia and Howlett to
place the responsibility for compensating Couch on his
stevedore-employer. The Scindia Court described the 1972
amendments abolishing a longshoreman's unseaworthiness cause of
action against a vessel owner as reflecting congressional intent
"to make the vessel answerable for its own negligence and to
terminate its automatic, faultless responsibility for conditions
caused by the negligence or other defaults of the stevedore."
Scindia, 451 U.S. at 168, 101 S.Ct. at 1622-23. Therefore, the
Court in Scindia reasoned that it would be inconsistent with the
LHWCA as amended in 1972 to hold that a shipowner has a continuing
duty to discover and remedy dangerous conditions that develop
during the loading or unloading of cargo. As the Court observed:
"Such an approach would repeatedly result in holding the
shipowner solely liable for conditions that are attributable
to the stevedore, rather than the ship. True, the liability
would be cast in terms of negligence rather than
unseaworthiness, but the result would be much the same.
"[C]reation of a shipowner's duty to oversee the stevedore's
activity and insure the safety of longshoremen would ...
saddle the shipowner with precisely the sort of nondelegable
duty that Congress sought to eliminate by amending section
905(b).' " Id. [at 169, 101 S.Ct.] at 1623 (citations
omitted).
When Congress enacted the 1972 amendments, it adjusted the
rights between shipowners, stevedore-employers, and longshoremen.
done to the cargo due to its negligence).
15
Applying the 1972 amendments to the facts of this case, the three
affected parties are Cro-Marine as the barge owner, CIDC as the
stevedore-employer, and Couch as the injured longshoreman. The
1972 amendments, however, did not purport to adjust the rights of
one stevedoring company versus another stevedoring company for
injuries sustained by longshoremen. Thus, the 1972 amendments and
Court decisions interpreting section 905(b) do not affect the
outcome of Couch's suit against NOSC under the general maritime
law.
We are not persuaded by NOSC's contention that Scindia 's
trilogy of duties should apply to the loading stevedore/discharging
stevedore or longshoreman relationship. A review of the Scindia
duties reinforces our conclusion that the Scindia duties were
formulated specifically to govern section 905(b) suits between
vessel owners and injured longshoremen. For example, under the
third Scindia duty, a shipowner has a duty to intervene in the
stevedore's operations when it knows of the hazard and knows that
the stevedore cannot be relied upon to remedy it. Scindia, 451
U.S. at 176-78, 101 S.Ct. at 1627. Because a loading stevedore
such as NOSC will never be present when the discharging stevedore
unloads the cargo, the loading stevedore could not be liable under
the third duty.8 As the facts of this case demonstrate, NOSC was
not present in Peoria, Illinois, when CIDC unloaded the cargo.
8
The only conceivable way a loading stevedore could be held
liable under the third Scindia duty would be if someone informed
it that the discharging stevedore could not be relied on to
remedy the situation.
16
Again, this distinction underscores the thrust of Scindia, which
was to prevent resuscitating, albeit under a negligence label, the
unseaworthiness cause of action abolished in 1972 and not to
reformulate the general maritime law governing negligence suits
brought against a party other than a vessel owner.
II. Standard of Care
Having determined that Scindia does not apply to the facts of
this case, we must turn to the issue of the duty owed by a loading
stevedore to a discharging longshoreman. We hold that a loading
stevedore must load the cargo so that an expert and experienced
stevedore will be able to discharge the cargo with reasonable
safety by exercising reasonable care. Federal Marine Terminals,
Inc. v. Burnside Shipping Co., 394 U.S. 404, 414-15, 89 S.Ct. 1144,
1150, 22 L.Ed.2d 371 (1969). We find that the district court
applied the correct standard of care under the general maritime law
and thus will not disturb the district court's finding that NOSC's
drop stow was such that an expert and experienced stevedore could
not, despite the exercise of reasonable care, safely unload the
steel cargo. Accordingly, we reject NOSC's argument that the
district court improperly applied a general layman's reasonableness
standard.9
9
In its brief, NOSC seizes upon the district court's phrase
"reasonable care under the circumstances" as evidence that the
district court improperly applied a general layman's
reasonableness standard. The phrase "reasonable care under the
circumstances" is merely a way of paraphrasing the applicable
standard of care. In fact, the Court in Scindia employed this
shorthand to describe the precedent upon which NOSC relies:
"We held in Marine Terminals v. Burnside Shipping
17
III. District Court Findings
NOSC contends that the district court's findings that it was
negligent and that CIDC was not contributorily negligent are
clearly erroneous. We disagree. We review a district court's
findings of fact for clear error and will not reverse a finding of
fact unless a review of the entire record leaves us "with the
definite and firm conviction that a mistake has been committed."
Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 121 (5th
Cir.1994) (citation omitted). We hold that the evidence taken as
a whole adequately supports the district court's findings.10
NOSC next argues that the district court erred in calculating
the damages for pain and suffering and future wage losses. We
disagree again. Based upon our review of the record as a whole, we
Co., that the vessel owes to the stevedore and his
longshoremen employees the duty of exercising due care
"under the circumstances.' This duty extends at least
to exercising ordinary care under the circumstances to
have the ship and its equipment in such condition that
an expert and experienced stevedore will be able by the
exercise of reasonable care to carry on its cargo
operations with reasonable safety to persons and
property...." Scindia, 451 U.S. at 166-67, 101 S.Ct.
at 1622 (citations omitted).
10
Because we uphold the district court's finding that CIDC
was not negligent, we need not reach NOSC's claim that the
district court improperly denied its contribution claim against
CIDC.
NOSC also argues that the district court applied the
improper causation standard. NOSC asserts that its
negligence, if any, was not the legal cause of Couch's
injuries, instead alleging CIDC was negligent in
repositioning the steel bundles during the offloading
process. Because we uphold the district court's findings
that NOSC was negligent and that CIDC was not negligent, we
reject NOSC's argument and hold that the district court
applied the correct causation standard.
18
are unable to conclude that the district court's damage awards are
clearly erroneous.
IV. Prejudgment Interest
NOSC also challenges the district court's award of
prejudgment interest on the entire $1,150,000 pain and suffering
award. The award of prejudgment interest in admiralty cases "is
the rule rather than the exception, and, in practice, is well-nigh
automatic." Reeled Tubing, Inc. v. M/V Chad G, 794 F.2d 1026, 1028
(5th Cir.1986) (citation omitted). Prejudgment interest, however,
may not be awarded with respect to future damages. Boyle v. Pool
Offshore Co., Div. of Enserch Corp., 893 F.2d 713, 719 (5th
Cir.1990); Pickle v. International Oilfield Divers, Inc., 791 F.2d
1237, 1241 (5th Cir.1986), cert. denied, 479 U.S. 1059, 107 S.Ct.
939, 93 L.Ed.2d 989 (1987).
In Boyle, this Court vacated the district court's award of
prejudgment interest on plaintiff's $195,910 recovery for general
pain and suffering and remanded it to the district court to
calculate what proportion of the damages, if any, represented
compensation for future pain and suffering. Boyle, 893 F.2d at
718. In this case, the judgment does not state what proportion of
the pain and suffering award is for future damages.11 Because it
appears to have included the award of prejudgment interest on
damages for future pain and suffering, we must vacate this portion
11
The district court described the pain and suffering award
as compensation for "[p]hysical pain and suffering, disability,
impairment, and mental anguish." The court's findings do not
divide the pain and suffering award as between that in the past
and that to be undergone in the future.
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of the judgment and remand it to the district court for a
determination of what proportion of the pain and suffering award
represents future damages.
Conclusion
For the foregoing reasons, the judgment of the district court
is
AFFIRMED in part; VACATED in part; and REMANDED.
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