Unpublished Disposition, 940 F.2d 670 (9th Cir. 1991)

MEMORANDUM^* 

BACKGROUND

Appellant Johannes Weber injured his back and head while piling boxes of fish in the freezer of a vessel owned by Arctic Storm, Inc. (Arctic Storm). Weber sued Arctic Storm and the case proceeded to trial. A jury found that Arctic Storm was not negligent under the Jones Act, but the jury found the vessel was unseaworthy. The jury also concluded that Weber was 90% comparatively negligent and determined that $6,000 "fully and adequately compensate [d] him" for his injuries.

On appeal Weber challenges the district court's jury instructions regarding negligence under the Jones Act. Rather than give Weber's requested instructions, which highlighted this court's more liberal standard of causation under the Jones Act, the court used the negligence instruction found in the Manual of Model Jury Instructions for the Ninth Circuit. Finding the alleged error to be harmless, we affirm.

DISCUSSION

We will not reverse a judgment because of a mistake in jury instructions if the error is harmless. Coursen v. A.H. Robins Co., 764 F.2d 1329, 1337 (9th Cir. 1985). "An error in a civil trial need only be more probably than not harmless." Id.

A seaman "is not entitled to independent recoveries for his negligence and unseaworthiness claims." Kopczynski v. The Jacqueline, 742 F.2d 555, 560 (9th Cir. 1984) (citing 1B Benedict on Admiralty, Sec. 21 at 3-3 (1983)). The jury did not find Arctic Storm negligent, but it did find Arctic Storm liable under the doctrine of unseaworthiness and awarded Weber "the total amount [that] will fully and adequately compensate him for the injuries and damages he sustained." When a jury awards a plaintiff his or her full measure of recovery based on one theory of liability, it is harmless error if the court completely fails to instruct, much less erroneously instructs, the jury on an alternative theory of liability. Taylor v. Burlington N.R.R. Co., 787 F.2d 1309, 1314-15 (9th Cir. 1986). Accordingly, the error in the court's Jones Act instruction, if any, was harmless.

We reject Arctic Storm's request for attorneys' fees and double costs because Weber's appeal is not frivolous.

AFFIRMED.