Unpublished Disposition, 880 F.2d 416 (9th Cir. 1988)

MEMORANDUM^* 

OVERVIEW

In this admiralty case filed pursuant to the Jones Act, 46 U.S.C. § 688, by an employee of a cruise ship injured while lifting a heavy object, American Hawaii Cruises and American Global Line Inc. (Collectively "AHC") appeal an award of prejudgment interest as allegedly based on damages for future pain and suffering. AHC also appeals an award of maintenance as beyond the date of maximum cure.¹  The record does not reveal with sufficient certainty that the court below awarded damages for future pain and suffering. We therefore affirm the award of prejudgment interest. We also find that a clerical error in the judgment misstated the date of maximum cure and affirm the maintenance award.

BACKGROUND

The district court awarded $21,825.00 in general and specific damages with a lump sum award for pain and suffering without any apportionment of past and future pain and suffering. Appellants challenge only (1) the award of $1,120.00 in prejudgment interest and (2) the additional maintenance award of $184.00. This appeal involves only a small portion of the total award.

The court expressly stated in its Memorandum of Decision that "Plaintiff reached maximum cure on May 3, 1988." The court awarded Settle maintenance from May 1, 1988 to the date of judgment (May 24, 1988) in its Memorandum of Decision, and in its Findings of Fact and Conclusions of Law memorandum. However, the court entered judgment with respect to maintenance until May 4, 1988 but specified an award of $184.00.

DISCUSSION

(1) Interest

In admiralty, the district court may, at its discretion, award prejudgment interest on general damages for personal injury. Vance v. American Hawaii Cruises, Inc., 789 F.2d 790, 794 (9th Cir. 1986). We review for an abuse of discretion. Columbia Brick Works, Inc. v. Royal Ins. Co. of Am., 768 F.2d 1066, 1068 (9th Cir. 1985); Alkmeon Naviera, S.A. v. M/V Marina L, 633 F.2d 789, 797 (9th Cir. 1980).

Discretion is abused if, as AHC argues here, prejudgment interest amounts to a penalty rather than compensation. Prejudgment interest is not allowable with respect to losses that will accrue subsequent to judgment. Columbia Brick Works, 768 F.2d at 1068.

AHC argues that the court awarded damages for future pain and suffering and prejudgment interest thereon. AHC relies on the fact that its Proposed Findings of Fact and Conclusions of Law submitted to the court which reads that "Settle is entitled to prejudgment interest on ... past pain and suffering" was amended by the court to read "Settle is entitled to prejudgment interest [on] ... pain and suffering." AHC argues that the court's deletion of the word "past" proves that the court awarded damages for future pain and suffering, and hence prejudgment interest thereon, contrary to our holding in Columbia Brick Works.

Although an award of prejudgment interest based on future damages is impermissible, AHC has not shown satisfactorily that prejudgment interest was awarded on the basis of future damages. The trial court's amendment to AHC's proposed conclusion of law, and the fact that Settle attempted to recover for future pain and suffering, do not prove necessarily that the court awarded damages for future pain and suffering. As the court also noted in its findings of fact, Settle failed to cooperate with rehabilitation and psychotherapy. Any future pain and suffering probably was not compensable because of Settle's failure to mitigate damages. On these facts, we will not question and require the district court to divide its pain and suffering damages into "past" or "future", but will accept the district court's calculation. The court's award of prejudgment interest is therefore affirmed.

(2) Maintenance

An award in admiralty of maintenance is subject to reversal if the findings of the trier of fact are clearly erroneous. Clinton v. Joshua Hendy Corp., 264 F.2d 329 (9th Cir. 1959).

Maintenance should not be awarded beyond the date of maximum cure because a vessel's obligation to furnish maintenance to a seaman who is injured during his service continues until the seaman achieves maximum recovery; that is, until the seaman is well or his condition is found to be incurable. Permanente Steamship Corp. v. Martinez, 369 F.2d 297, 298-99 (9th Cir. 1966).

The Memorandum of Decision, and Findings of Fact and Conclusions of Law both provide that Settle is entitled to maintenance at $8.00 a day beginning May 1, 1988 until the date of judgment, May 24, 1988. The judgment, however, provided that Settle is entitled specifically to maintenance until May 4, 1988, but in fact awarded maintenance in the total sum of $184.00.

The maintenance award is confusing. Maintenance from May 1, 1988 until May 4, 1988 at $8.00 a day should result in a maintenance award of $24.00 only. Maintenance from May 1, 1988 until May 24, 1988, the date the judgment was lodged and signed is $184.00. The judgment is thus internally inconsistent.

AHC argues that if the court intended to award maintenance beyond May 4, 1988 the date of maximum care, this is clearly erroneous since it defies all precedent in maritime law. Settle argues, on the other hand, that the May 4, 1988 maintenance cutoff date in the judgment is clearly a clerical mistake; that the maintenance award is based on the date of judgment. Thus, although the judgment awards the proper amount of maintenance, it erroneously lists May 4, 1988 as the maintenance cut off date instead of May 24, 1988. We agree.

The amount awarded in maintenance, $184.00, correlates with a maintenance period from May 1, 1988 to the judgment date, May 24, 1988. The Memorandum of Decision and Conclusions of Law support this formulation. Hence, we conclude that the court intended to award maintenance from May 1, 1988 until the date of judgment; that the May 4, 1988 date is merely a clerical error in the written form of the judgment which should have been changed to May 24.

AFFIRMED.