Albertine Madge Van Amersfoorth Van Nijenhoff, on Her Ownbehalf, As Executrix and on Behalf of the Estate of Johanneschristiaan Van Amersfoorth and As Mother/guardian of Marjorirenate Van Amersfoorth, Stella Patricia Van Amersfoorth,claudia Jean Van Amersfoorth, Kenneth Martin Vanamersfoorth, Alexander Jimmy-john Van Amersfoorth and Davidwayne Van Amersfoorth and As an Attorney-in-fact Andrepresentative of Richard Melvin Van Amersfoorth, Plaintiff-appellant, v. Bantry Transportation Co., Universe Tankships (delaware)ltd., National Bulk Carriers, Inc., and Bantrytanker Agency, Ltd., Defendants-appellees, 791 F.2d 26 (2d Cir. 1986)

This appeal, brought on behalf of the widow and seven children of Captain Johannes Christiaan van Amersfoorth, the late master of the Universe Kuwait, raises questions concerning the propriety of the jury's $116,810 verdict for the plaintiff. We affirm with regard to the application of principles of comparative fault but reverse as to the proper discount rate.

At approximately 10:45 A.M. on November 25, 1977, the captain fell more than 17 feet from a beam in the ship's forepeak tank and sustained very serious head injuries, including a fractured skull. The ship did not head for the nearest port, Saigon, some 17 hours away, but rather sought medical help from other marine traffic. However, such help did not become available until approximately 10:10 P.M. when a doctor from a Soviet merchant ship arrived on board. During the course of treatment, the doctor injected the captain with morphine, which is contraindicated for a head injury to an unconscious patient. As a result, the captain died around midnight.

The widow, Albertine Madge van Amersfoorth van Nijenhoff, brought this wrongful death action on behalf of herself and her seven children. After a trial, the jury returned a verdict in the form of answers to specific questions appended to this opinion. The jury found that the ship was seaworthy and that the fall was not caused by the negligence of the defendants. However, it found that the defendants did not use due care to secure medical treatment after the captain had been injured. The jury found damages of $340,100, but reduced the award by 66 2/3% because of the captain's contributory negligence. In discounting to present value the amount awarded for future losses, the jury chose a discount rate of 20%. The district court found that the 20% figure had no support in the record and reduced the rate to 10%. The final amended judgment totaled $116,810. Plaintiff appeals from that judgment, claiming inter alia that the award should not have been reduced by the percentage of contributory negligence and that the 10% discount rate was not supported by the record.

Appellant argues that the captain's negligence in causing the fall cannot lessen the damages awarded for the shipowner's subsequent failure to secure adequate medical care. The jury found that the captain was solely responsible for his fall. Because he never regained consciousness thereafter, the failure to secure prompt and adequate medical care must be attributed entirely to the shipowner. Appellant argues, citing Restatement (Second) of Torts Sec. 433A, that where a plaintiff has suffered such distinct harms, damages must be apportioned according to the amount attributable to each cause. The captain's responsibility for the damages suffered in the fall, she concludes, cannot be used to reduce the damage suffered by reason of inadequate medical care. The shipowner argues, on the other hand, that the injuries here were causally related and must be viewed as a whole, fault being allocated proportionately. See Johannessen v. Gulf Trading & Transportation Co., 633 F.2d 653 (2d Cir. 1980).

We need not resolve this issue, however, because appellant never asked that the jury make the distinctions she now describes as imperative. Apportionment of damages requires separate findings as to the damage caused by each harm--here, the fall and subsequent failure to secure adequate medical attention. However, the special verdict form to which appellant consented in no way asked the jury to apportion harm. The jury was asked only to determine damages resulting from "the accident." The $340,100 verdict thus was the amount the captain would have contributed to the support of his family had he not had "the accident." Questions # 8-10, Appendix. Since the captain's injuries from the fall were quite severe, a jury asked to apportion damages might have found that he would have died or have been disabled no matter what medical care he received after the fall.¹  Entry of a judgment of $340,100, therefore, cannot be justified.

Nor can we allow appellant to try the case anew on a theory steadfastly avoided until after the verdict. Plaintiff lumped her claim for negligence in furnishing medical attention with her claims for the fall, thus opening the way for the application of principles of comparative negligence. This was by no means compelled by the available legal remedies since she could have fashioned a separate claim for maintenance and cure that would have insulated the damage award for inadequate medical care from reduction on grounds of the captain's negligence. G. Gilmore and C. Black, The Law of Admiralty 290-91 (2d ed. 1975). However, that strategy would have required apportionment of damages between the fall and inadequate medical care, a step her counsel might well have believed would weaken her claims for more fulsome damages. Having chosen to go for the brass ring at trial, appellant may not have a retrial on the size of the consolation prize.

We must reverse on the discount rate, however. The jury found the discount rate to be 20% for the contributions the captain would have made to his family had he lived. The district court found that the 20% figure had no support in the record, and reduced the discount rate to 10%. However, we find that the only evidence in the record as to the discount rate during the applicable period in Holland, where the widow and children live, is 6%. We hold that this latter figure is the maximum permitted by the record and that judgment should be entered in accord with the correct discount rate.

We have considered the other contentions made by appellant and find them to be without merit. Affirmed in part, reversed in part.

_____ APPENDIX

1: Was the forepeak tank of the Universe Kuwait seaworthy-- that is, was it

reasonably fit for its intended purpose or use?

Yes No

2: Was the captain caused to fall in the forepeak tank by reason of any

negligence of the ship owner--that is did the ship owner fail to do that

which a reasonable or prudent person would have done in a similar situation?

Yes No

3: Did the ship owner use due care after the fall and make all reasonable

efforts under the circumstances to secure appropriate medical treatment for

the captain?

Yes No

If your answer to one is yes, two is no and three is yes, you are to find for

the defendant and report that verdict.

4: If, on the other hand, you have found the vessel unseaworthy in answer to

one above, do you find that the unseaworthiness proximately caused the

captain's accident and injuries?

Yes No N/A

5: If you find the ship owner negligent in answer to two above, do you find

that such negligence played a part, even the slightest, in causing the

accident and the captain's injuries?

Yes No N/A

6: If you find the ship owner negligent in answer to three above, do you find

that such negligence played a part, even the slightest, in causing the

captain's injuries and/or death?

Yes No

Unless you find the answer is yes as to four or five or six above, you are to

report a verdict for the defendant and proceed no further.

If you have answered yes to four or five or six, then and only then do you

consider the following questions having to do with damages.

7: Under all the circumstances, how many years do you find the captain would

have lived after 1977 had he not suffered the accident?

18-20 years

8: How many years do you find he would have continued to work had he not had

the accident in 1977?

13 years

9: As to any period you find he would have worked before November, 1984, how

much do you find he would have contributed to his wife and any minor children

for their support in that period?

$170,000.00

10: If you find he would have worked after November, 1984, how much do you find

he would have contributed to the support of his wife and any minor children

in such of that period as you find he would have worked?

$170,100

11: Do you find he would have contributed services, nurture and guidance to the

family had he lived?

Yes No

12: If your answer to eleven is yes, for how many years do you find he would

have made such contribution?

0 years N/A

13: What do you find the value of the lost services to be for the period priorto November, 1984?

$0 N/A

14: What do you find the value of the lost services to be for any period you

find they would have been given subsequent to November, 1984?

$0 N/A

15: As to any sums stated in answer to questions ten or fourteen above, those

must be discounted to present value. By what amount do you find they should

be discounted?

20%

16: If you find the vessel unseaworthy or if you find the ship owner's

negligence caused the captain's fall and injuries and death, do you also find

that any negligence on the part of the captain contributed to that fall and

injuries and death?

Yes No

17: If your answer is yes to question sixteen above, what percentage do you

find the captain contributorily negligent?

66 2/3%