Juan Ceja, Plaintiff-appellant, v. Mike Hooks, Inc., Defendant-appellee, 690 F.2d 1191 (5th Cir. 1978)

Plaintiff-appellant Ceja appeals the judgment entered by the district court below after a non-jury trial of his personal injury claims for unseaworthiness, and under the Jones Act, 46 U.S.C. § 688, for negligence.

FACTS

On June 24, 1978, appellant Ceja was engaged as a deckhand in towing operations aboard appellee's vessel. In the course of these operations, Ceja had secured his vessel's tow line to another, beached vessel. Ceja, although instructed to utilize a more secure combination knot, was unable to do so due to the inadequate length of the existing tow line. Instead, he employed a less secure half-hitch knot.

As the vessel began to maneuver, Ceja remained standing approximately three feet from the towing bit in the stern. A loud noise was heard and appellant was hit by the line, sustaining the injuries to his left arm and abdomen which are the subject of this appeal.

The more precise circumstances surrounding appellant's injury were disputed at trial, occasioning the following factual determinations by the district court. The court found that the line which struck Ceja had come loose from the tow bit, rather than, as appellant contended, having torn loose as a result of increased tension placed on the line. Additionally, the court found that Ceja had been repeatedly warned of the dangers of remaining close to the tow bit once towing operations began, including admonitions given to him just moments before the unfortunate accident to move away from the stern of the boat where the tow bit was contained.

Disposition Below

The district court found that the use of an inadequate line, which prevented appellant from tying a more secure knot, constituted at least "slight negligence" on defendant's part for Jones Act purposes, as well as an unseaworthy condition, citing Allen v. Seacoast Products, Inc., 623 F.2d 355 (5th Cir. 1980).

Although finding appellee liable, the court found appellant substantially negligent:

Ceja was aware of the necessity of tying a safer knot, yet did nothing to obtain adequate line; he was also aware of the increasing stress on the line. More importantly, however, he disregarded both past and immediate warnings of both the watch boatman and the mate on board to move away from the stern of the ship; instead, he remained in a precariously dangerous position within three feet of the tow bit.

These two factors-appellant's failure to seek or request a longer line and his failure to heed multiple warnings to remain further away from the bit during towing operations-led the trial court to reduce appellant's proven damages by a determination of 75% contributory negligence. Concomitantly, the court denied appellant prejudgment interest "(d)ue to the degree of contributory negligence found." The court also rejected appellant's claim for future lost wages, citing a failure to prove by a preponderance of the evidence that appellant suffered from an inability to work in the future. Finally, to prevent double recovery, the court deducted the maintenance paid from the award for past lost wages.

ISSUES ON APPEAL

Contributory Negligence

A vessel owner has an absolute duty to furnish a seaworthy vessel, that is a vessel and appurtenances which are reasonably safe and fit for their intended use. Ivy v. Security Barge Lines, Inc., 585 F.2d 732 (5th Cir. 1978), modified on other grounds en banc, 606 F.2d 524 (5th Cir. 1979), cert. denied, 446 U.S. 956, 100 S. Ct. 2927, 64 L. Ed. 2d 815 (1980). Additionally, under the Jones Act, a vessel owner will be deemed negligent if he fails to exercise reasonable care to maintain a reasonably safe work environment. See Allen v. Seacoast Products, Inc., supra, 623 F.2d at 361; Ivy v. Security Barge Lines, Inc., supra; Jones Act, 46 U.S.C. § 688. In the immediate case, the appellee's failure to provide an adequate tow line constituted both an unseaworthy condition and negligence so as to impart liability, as correctly found by the court below.

In contrast to the broad duty imposed upon a vessel owner to supply a safe work place, the seaman's duty to protect himself is slight. Bobb v. Modern Products, Inc., 648 F.2d 1051, 1056-57 (5th Cir. 1981). Although the seaman has a duty to use reasonable care, this duty is tempered by the realities of maritime employment "which have been deemed... to place large responsibility for his safety on the owner." Mahnich v. Southern S. S. Co., 321 U.S. 96, 103, 64 S. Ct. 455, 459, 88 L. Ed. 561 (1944). In Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 431, 59 S. Ct. 262, 266, 83 L. Ed. 265 (1939), the Supreme Court said "seamen are the wards of admiralty, whose traditional policy it has been to avoid, within reasonable limits, the application of rules of the common law which would affect them harshly because of the special circumstances attending their calling." See also Cox v. Esso Shipping Co., 247 F.2d 629, 635-36 (5th Cir. 1957). Accordingly, assumption of risk is not a defense to any claim for injuries which might befall a seaman engaged in his hazardous employ.¹  See Mahnich v. Southern S. S. Co., supra; Socony-Vacuum Oil Co. v. Smith, supra; Bobb v. Modern Products, Inc., supra. Contributory negligence is available to mitigate a vessel owner's liability according to comparative fault, when an injured seaman has been negligent in breaching a duty to act or refrain from acting.²  See Comeaux v. T. L. James & Co., 666 F.2d 294, 299 (5th Cir. 1982); Bobb v. Modern Products, Inc., supra; Allen v. Coast Products, Inc., supra, 623 F.2d at 362.

In the immediate case, the trial court based its finding of appellant's contributory negligence upon two factors: 1) his failure to seek or obtain a line of adequate length; and 2) his failure to move away from the dangerous position he maintained near the tow bit, in view of prior and immediate warnings. We hold that the trial court's reliance upon the former factor in this case reflects an impermissible expansion of the limited duties placed upon seamen in the safe performance of their duties.

Generally, a seaman has no duty to find the safest way to perform his work. Comeaux v. T. L. James & Co., supra, 666 F.2d at 300; Spinks v. Chevron Oil Co., 507 F.2d 216, 223 (5th Cir. 1975), clarified, 546 F.2d 675 (5th Cir. 1977) ("His duty is to do the work assigned, not to find the safest method of work"). Rather, the duty to provide for a safe course of conduct lies primarily with the vessel owner.³  A seaman, therefore, is not contributorily negligent merely because he uses an unsafe tool or appliance or proceeds in an unsafe area of the ship.⁴  Only where it is shown that there existed a safe alternative available to him of which he knew or should have known, can a seaman's choice of an unsafe course of action be properly considered in determining whether he was negligent. Accord Joyce v. Atlantic Richfield Co., 651 F.2d 676, 682-83 (10th Cir. 1981).

Further enlightenment on this issue is gained from Bobb v. Modern Products, Inc., supra, 648 F.2d at 1058 n.5 in which this Court said: "Although Mahnich v. S. S. Co. (321 U.S. 96, 103, 64 S. Ct. 455, 459, 88 L. Ed. 561 (1943)) has been cited for the proposition that a seaman has no duty to choose between good and bad equipment, we interpret the Supreme Court's language in that case to mean that providing good equipment in addition to poor equipment does not excuse the owner's failure to provide the safe equipment. That case involved the assumption of the risk defense rather than a contributory negligence defense, and we find that in mitigating damages a jury may consider the seaman's choice of equipment."⁵  Cf. Robinson v. Zapata Corp., 664 F.2d 45, 49 (5th Cir. 1981) (where seaman knew of "several simple ways"-well-known and readily available to him-to avoid the unsafe course created by a lack of proper equipment, he had the duty to follow the safe course of conduct); Hussein v. Isthmian Lines, Inc., 405 F.2d 946 (5th Cir. 1968) (where seaman has tools close at hand which could safely perform a task, the seaman has a duty to use them). Even then, factors such as the youth and inexperience of a seaman should be considered in determining whether a seaman may properly be charged with a duty to select a safe course of conduct from among safe and unsafe alternatives. See Spinks v. Chevron Oil Co., supra.

In the case sub judice, there was no showing that appellant had a safe alternative available to him. He had no duty to seek out or obtain a tow line of adequate length when the only one available to him prohibited the safe performance of his work. In holding to the contrary, the trial court erred.

On the other hand, the second factor relied upon by the district court in assessing appellant contributorily negligent, appellant's failure to heed multiple admonitions to move away from the dangerous position he maintained near the tow bit, was properly considered. Appellant's failure to act went beyond merely placing himself in a position of danger. Cf. Bobb v. Modern Products, Inc., supra, 648 F.2d at 1058-59 (cautioning trial court that the argument that plaintiff was contributorily negligent in placing himself in a position of danger is too closely akin to an impermissible assumption of risk argument); Williams v. Brasea, Inc., 497 F.2d 67 (5th Cir. 1974), reh'g denied, 513 F.2d 301 (5th Cir.), cert. denied, 423 U.S. 906, 96 S. Ct. 207, 46 L. Ed. 2d 136 (1975), upon remand, 549 F.2d 977 (5th Cir. 1977) (although seaman was contributorily negligent in placing himself in a dangerous position, this negligence was not the proximate cause of the injury because of an intervening unforeseeable negligent act). As found by the trial court, appellant had been warned repeatedly in the past and immediately before his accident that the position in which he remained was dangerous and that he should move further away from the tow bit. In light of the record before the court, we cannot say that the court erred in reaching these findings of fact and in concluding that appellant was negligent.⁶ 

Accordingly, we reverse the trial court's determination of 75% contributory negligence and remand for an assessment consistent with the principles enunciated herein. In so doing, we caution the court to set out its findings, including the factors it considers in reaching its determination of comparative fault.⁷ 

Prejudgment Interest

The district court denied plaintiff prejudgment interest because of the degree of contributory negligence found. Given our reversal of the trial court's finding on contributory negligence, we reverse and remand this derivative finding to the court below. Absent strong and persuasive findings by the district court, however, we doubt that prejudgment interest may properly be denied.

We have stated the law regarding prejudgment interest:

As a general rule, prejudgment interest should be awarded in admiralty cases-not as a penalty, but as compensation for the use of funds to which the claimant was rightfully entitled. Discretion to deny prejudgment interest is created only when there are "peculiar circumstances" that would make it inequitable for the losing party to be forced to pay prejudgment interest. See, e.g., Socony Mobil Oil Co. v. Texas Coastal & International, Inc., 559 F.2d 1008, 1014 (5th Cir. 1977); American Zinc Co. v. Foster, 441 F.2d 1100, 1101 (5th Cir.), cert. denied sub nom. Ingalls Shipbuilding Division of Litton Systems, Inc. v. American Zinc Co., 404 U.S. 855, 92 S. Ct. 99, 30 L. Ed. 2d 95 (1971)....

If the trial court explicitly denies prejudgment interest (rather than merely omitting any reference to it), then this is based on a factfinding that peculiar circumstances exist; the factfinding is sometimes explicitly set out, with the peculiar circumstances detailed in the court's findings of fact and conclusions of law, or it may be implicit in the denial of prejudgment interest without a listing of the circumstances. If the trial court was not clearly erroneous in finding that peculiar circumstances exist, then its denial of prejudgment interest was discretionary. In most instances, we have not found such a denial to be an abuse of discretion.... In a few instances, the appellant has convinced this court that an explicit denial of prejudgment interest was an abuse of discretion....

Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir. 1980) (footnotes and citations omitted). See also Todd Shipyards Corp. v. Turbine Service, Inc., 674 F.2d 401, 415 (5th Cir. 1982); Pluyer v. Mitsui O. S. K. Lines, Ltd., 664 F.2d 1243, 1248 (5th Cir. 1982); International Paint Co. v. M/V Mission Viking, 637 F.2d 382, 386 (5th Cir. 1981).

On remand, the issue for the trial court is whether the degree of contributory negligence it finds gives rise to a "peculiar circumstance" that would make it inequitable to apply the usual rule granting prejudgment interest. In the proper case, a high degree of contributory negligence might well be considered by the district court in invoking its discretion to deny prejudgment interest. We question, however, whether appellant's negligent action in this case, as discussed herein, is of a sufficient magnitude to be considered a "peculiar circumstance."⁸  Accordingly, we reverse and remand the trial court's denial of prejudgment interest for a reconsideration of that issue.

Maintenance Paid

Appellant argues that the trial court erred in using the motive of preventing double recovery⁹  to offset the award of past lost wages with the amount of maintenance¹⁰  paid. On the basis of our recent decision, in Morel v. Sabine Towing & Transportation Co., 669 F.2d 345 (5th Cir. 1982), we agree.

In Morel, appellant shipowner had appealed the district court's award of maintenance to an injured seaman during a period of compensated vacation. The Morel panel, viewing compensated vacation as a method of deferred wage payment and hence as "earned wages," held that the district court's award of both damage elements was proper as wages were "separate and distinct from maintenance." Id. at 347. The Court elaborated:

Maintenance is the equivalent of the food and lodging to which a seaman is entitled while at sea. Maintenance, and its necessary companion cure, are hallowed rights of seamen who are injured or become ill while in the service of a ship.... Maintenance is neither a substitute for wages nor is it to be considered in lieu of a seaman's wages, in whole or in part.

Id. at 346. We have concluded therefore, that absent an "explicit contractual provision specifying that ... wages (are) to be deemed a substitute for maintenance,¹¹  there is no basis for crediting such earned wages against the vessel owner's maintenance obligation." Id. (quoting Shaw v. Ohio River Co., 526 F.2d 193 (3d Cir. 1975)).

Finding the district court's deduction of maintenance paid from past lost wages erroneous, we reverse. The district court will need to recalculate appellant's damages without any deductions made for maintenance paid.Denial of Future Wage Losses

The district court denied appellant's claim for future wage losses "finding that plaintiff did not prove by a preponderance of the evidence that he suffers from an inability to work in the future." This factual determination is subject to review under the "clearly erroneous" standard. See Noritake v. M/V Hellenic Champion, supra. Upon our review of the record, we cannot say that the court below erred in its conclusion: appellant's partial injury to his non-dominant arm did not result in an inability to perform future work.

SUMMARY

The district court's judgment must be reversed and remanded as it pertains to contributory negligence and prejudgment interest. The court's determination of past wage losses is vacated with instructions to recalculate its award of compensatory damages without regard to any maintenance paid. The judgment in other respects stands.

AFFIRMED IN PART AND REVERSED IN PART.