Sylvia Moore, Sylvia Moore v. Angela Mv, Angela Maritime Shipping Ltd., Claimant-Appellant

mary to Edwards and remand judgment hock.” 287. In Microbac’s sec- ham J.A. samples, for trial. analysis of seventeen sixteen case ond range that had ammonia levels within 247-49, in nature. J.A.

typically occurs higher sample had a than

381-83. One content, an expert

normal ammonia but age that the ham’s could have

explained heightened

caused the ammonia level. Starks, a Barbara Microbac

J.A. 382-83. al., Plaintiffs, Sylvia MOORE, et visual employee, performed smell and tests samples. did de- ham Starks not Moore, Sylvia Plaintiff-Appellee, tect the of ammonia about the ham. smell did J.A. 281. note the ham Starks is, places,

was it had discolored MV, Defendant, ANGELA acknowledged Id Starks brown areas. expo- that she not know ammonia did how Shipping Ltd., Maritime ham, appearance but sure affected Claimant-Appellant. she said that the “brown areas were simi- No. 02-30441. product lar to that had appearance Id been frozen for some time.” Appeals, United States Court Fifth Circuit. Microbac, laboratory chosen by Ed- ham, consistently wards con- to test Dec. cluded that the ham was not tainted exposure. ammonia Microbac’s initial re-

port “testing Edwards stated veri- present”

fied that ammonia was residue meat falls

and that “the evaluated within

acceptable guidelines ammonia food 252. A

products.” J.A. second version of report, claims pro- which Microbac response pressure

duced in from an employee, J.A.

Edwards stated

Microbac could determine cause areas, but it still concluded that brown acceptable

the ham “within ammonia products.”

guidelines for food J.A. 253. reports

Both stated that ana- Microbac’s

lyst an did not detect ammonia odor about

the ham. 252-53. J.A. proffered summary

The evidence

judgment makes clear that a proceedings summary judgment

court cannot decide on right

which side is this case. There is a dispute

genuine factual about whether the damaged by

ham the ammonia I leak. the award of

would therefore vacate sum- Sloss,

Murphy, Rogers Orleans, & New LA, Claimant-Appellant. DUHÉ,

Before M. EMILIO GARZA DeMOSS, Judges. Circuit DUHÉ, Judge: Circuit Appellant Angela Maritime Shipping, claimant of the in rem (“Angela”), Ltd. defendant, ANGELA, appeals judg- a MW 905(b) Moore, § ment in a by Sylvia action the surviving spouse longshoreman Hor- (“Moore”). ace Moore The district court Plaintiff, for finding held negli- vessel gence finding the decedent per- five cent at fault. We hold the award of non- pecuniary damages to be excessive and hold that the court authority exceeded its in increasing security posted in lieu of Accordingly, the vessel. we remand for a in damage reduction the total award. I.

Sylvia Longshore Moore sued under the Compensation and Harbor Act Workers’ (LHWCA), 905(b), § 33 U.S.C. the MTV in rem for the wrongful death ANGELA husband, by falling of her who was struck Stevedores, cargo working while for Inc. 905(b) pro- ANGELA. Section MTV negligence remedy longshore- a to a vides family against man or his the vessel.1 arrested, Plaintiff had the vessel Reginald (argued), James Laurent Sli- owner, reserving filed a claim of all dell, LA, Plaintiff-Appellee. rights and requesting and defenses Murphy security Robert H. (argued), Peter court to set for release of the Sloss, $500,000, security Brooks Oliphant, Scott Edward vessel. The court set provides, inju- ages directly indirectly.... 1. That section "In the event The ry person to a covered under Act caused this the vessel under this subsection shall not be vessel, by negligence then such upon warranty based of seaworthiness or person may bring against ... an action such a injury a breach thereof at the time the oc- party employer vessel as a third ... and the 905(b). § curred." 33 U.S.C. shall not be liable to the vessel for such dam- was damage The total award upon post- and ordered the vessel released $907,469.11, $750,000 including non-pe- Undertaking ing of Letter of euniary society. for loss of departed damages amount. The vessel then $862,095.66 judgment entered jurisdiction. granted post-trial Plaintiff a increase is a seven-hold bulk ANGELA M/V judg- in security sufficient to cover the equipped four carrier cranes. The ment. court found that death Moore’s Angela requested review of mandamus caused in part negligence ruling the district court’s on the increase crane, relating to the vessel’s no. which this with- security, which Court denied being T-bar ingots used to offload opinion. Angela this timely out noticed aluminum from vessel’s no. 7 hold. appeal. operating Moore was a forklift the hold a T-bar from a load when fell carried II. ship’s approximately feet subject matter district court hold, striking above the floor of the Moore jurisdiction admiralty this because is an his forklift. The district court found action the vessel. against 28 U.S.C. 905(b) vessel under section and 1333(1); Fed.R.Civ.P., Steam, Admiralty & Supp. Navigation Co. v. De Los Scindia Rule C. is Maritime Claims Jurisdiction Santos, 156, 1614, 451 101 S.Ct. U.S. 68 only. in rem (1981). 1 L.Ed.2d shipown Scindia outlined three duties III. 1) longshoremen: ers owe to the “turnover must first determine whether We duty,” relating the condition of ship to the clearly finding the district court erred upon stevedoring commencement Angela duty a Scindia owed to breached 2) operations; duty prevent injuries to longshoreman. We review factual longshoremen to in areas remaining under findings only for clear error. McAllister 3) vessel; “active control” and States, 19, 20, v. 348 U.S. 75 United S.Ct. “duty to intervene.” Rowlett v. Birk 6, (1954); 99 see v. L.Ed. 20 also Theriot 92, Co., 98, Shipping dale 114 512 U.S. (5th States, 388, United 245 F.3d 394 Cir. (1994) 2057, (citing S.Ct. 129 L.Ed.2d 78 1998). Scindia, 167, 175-76, 451 at 101 U.S. S.Ct. 1614). duty” Due The “turnover largely with the relates crane, ship upon a the condition of the the com the district court found violation First, stevedoring operations. mencement of of all three the district court duties. Scindia, 167, at 1614. 451 U.S. 101 S.Ct. that the failed found vessel owner to warn duty requires This a vessel to exercise on turnover of hidden defects the crane. Second, injury the court found that “ordinary care under the circumstances” by was caused a hazard under control ship equipment to turn over the and its Third, ship. found the court that the ... expert “in such condition that an duty contractor, violated intervene when and experienced stevedoring problems. crane’s knew of the dangers mindful of the he reason should The court concluded that ably defective to encounter ... able expect will be death, caused assessing ordinary Moore’s to car the exercise care” comparative Angela, ry cargo operations fault 65% to 30% to on “with reasonable Stevedores, safety and persons property.” and 5% to Moore himself.

381 98, argues that a Howlett, vessel has no at S.Ct. Terminals, duty dangers to warn of that would be Inc. Marine Federal (quoting longshoreman to a of reasonable obvious 404, Co., 394 U.S. Shipping Burnside v. a competence, jerking such as crane. This 22 L.Ed.2d 416-17, n. 89 S.Ct. if exception duty applies to the turnover (1969)). warning duty extends to The injury open and causing the defect respect to its of hazards the stevedore longshoreman and one that obvious the vessel that would known to equipment Scindia, 451 should have seen. U.S. and by the stevedore likely be encountered 1614; Pimental Ltd Ca Scindia, him. not be obvious to would Bul, 965 F.2d nadian Pacific 167,101 Cir.1992). apply, does not exception The turn finding court’s that the however, only longshoreman’s if the alter supported by breached is over unduly hazard are facing natives to found that The court the evidence. impracticable time-consuming or would prob were serious Pimental, was aware that there job. him force to leave 16; of com Treadaway the crane as result lems with F.2d at v. Societe Ano Cargo,2 nyme Louis-Dreyfus, 894 F.2d made to Coastal plaints (5th Cir.1990); Teply Corp., v. Mobil Oil had used the stevedoring company that (5th Cir.1988). days just before Steve crane for a few breakdowns and re multiple dores. After both that court found weight crane had limitations pairs, the open condition was not and obvious and movement, and it moved restrictions longshoremen’s alternatives erratically, jerking surging at times. unduly imprac- facing the hazards were problems with court found that tical, consuming, costly. These time that the hydraulic, crane were too, support in the evidence. findings, a maintenance record.3 poor crane had operator, one told Stevedores’ crane No that, had Steve The district court found problems expe- Coastal example, encoun problems rienced, known the Coastal complained dores even after he of simi- 4, Rather, represen- no. this would have a problems. tered with crane lar vessel finding This to “slam” the control stick operations. their tative told him affected the crane.5 problems when he had by the evidence.4 supported inspection day post-accident indicated that the that the first Coastal 3. A 2.The record reveals crane, hydraulic court be- crane had leaks. The would not lift all. After tried the expert testimony and from view- lieved from repairs, that the crane Coastal determined ing photographs of the crane that there was a only instead of its usual 25. could lift 10 tons problem with crane maintenance. serious using crane to lift Coastal resumed morning, crane had the 10 tons. The next work, began Stevedores 4. When Stevedores problem, again repaired, was used same was (nor by captain by any- informed was not again. breaking hour before down for an else) problems Coastal encountered one again couple days Coastal Over the next weight or movement or of the limitations for 10-ton loads. used began using problems. Stevedores crane no. superintendent testified that the Coastal’s substantially at a 4 more than 10 tons to lift and that he crane was not well maintained discharging time T-bars. "try operator to to do had to tell the crane crane, thing instead of distinguishes one at a time with v. Societe 5. This fact Greenwood boom," 1239, Cir.), De, (5th trying up, swing and all of to hoist 1247 Francaise 111 558, denied, 995, usually 118 S.Ct. 139 which a crane can do at the same cert. 522 U.S. (1997), the court re- in which L.Ed.2d time. Bessemer, City Anderson v. might conclude that the vessel owner roneous.” One N.C., 574, 1504, mistakenly any prob- that suggesting (1985). hiding prob- the real operational, reviewing lem was L.Ed.2d 518 After See, Scindia, hydraulic. e.g., record, lem that was with a “firm and we are not left (recogniz- 451 U.S. S.Ct. definite conviction” that a mistake has duty “hidden ing ship owner’s to warn of (In Belknap re been made. Henderson him).6 known to danger” Henderson), Cir.), denied, cert. facing that finding To the alternatives (1994). Accordingly, we 130 L.Ed.2d 490 unduly impractical or the hazard were that the findings find no clear error consuming, Angela time contends vessel owner violated the turnover switching cranes would have involved “open exception and that the and obvious” expense. Support additional time or turn exempt did not the vessel from the contrary lies in evidence finding the court’s (no. 3) duty.7 over the other crane that could already in use and had reach this hold was IV. own; owner vessel past accept responsi- refused to Appellant questions next whether standby refus-

bility for time stevedores negligence legal cause of the ing cargo repairs; to unload due to argues that accident accident. longshoremen refusing might to work malfunctioning was caused not competi- lose business because the trade is assembling the crane but Stevedore’s tive. configuration T-bars into loads of inherently dangerous. asserts is The dis

The district court’s account of the evi- “clearly trict court found vessel fault con light of the entire plausible dence is accident, citing tributed” to the the vessel’s permissible record. “Where there are two evidence, hydraulic pressure views of the the factfinder’s failure to revisit and the failure to choice between them cannot be er- issues with the crane plaintiff "presented up. marked that no evidence load and as the crane heats Confirmation phenomenon discharge tally operator] was instructed of that was the [crane indicating a despite this accident occurred after continue to use the crane the defect.” Greenwood, discharged. were series of 18-bar loads Al- 111 F.3d at 1248. though Cargo’s superintendent Coastal molli- by lightening fied the situation the loads to conflicting 6. The court was with faced capacity, provid- than the crane's no one less testimony about whether the defective condi- Finally, ed that information to Stevedores. open tion was and obvious. Stevedores’ the court found the relevance of Webster's Faulk, operator, Randall testi- whose expert opinion captain's "enhanced” mony part, the court credited in testified that adamancy nothing wrong that there was engineer after the vessel’s chief instructed told, provides the crane. All the record stick, him to "slam” control he had no finding sufficient foundation for complaints further with the crane and heard open crane’s condition was obvious. working complaints people from Finding hold. the crane’s defect not to have holding we court's Because sustain obvious, open been the district duty, liable for breach of the turnover credited fact Stevedore’s initial com- duty we will not discuss the "active control” "super- plaint about the crane was met with a Pimental v. LTD to intervene. See duty tip” suggesting operator ficial error. Bulk, 13, Canadian 965 F.2d 15-16 Pacific (5th 1992) (evidence finding support in the Other lies Cir. under one Webster, testimony surveyor of these Scindia duties marine who defeat sufficient owner). hydraulic problems stated that worsen under motion for directed verdict for vessel

383 “anticipating] fault to Moore for not prob- about the crane ed inform Stevedores the worst.” by Coastal. experienced lems supports the district The evidence VI. such as finding that erratic motions court’s are next asked to We reverse the crane caused the T-bar jerking of non-pecuniary damages award of because testimony the load. Trial also fall from 905(b) they §in are not available cases. that, inference had Steve supports the damages Whether for loss of consortium duly dores been warned about legal question, subject are recoverable is a crane, conducted its it would have with the novo review. Michel v. Total de differently. legal To be cause operations Inc., (5th 186, Transp., 957 F.2d Cir. injury, breach of a Scindia plaintiffs of a “ 1992). factor’ in the duty must be a ‘substantial ODECO, 974 F.2d injury.” Donaghey The loss consortium award is (5th Cir.1992). The evidence 905(b) § permissible this case. Sea- finding amply supports trial Services, Gaudet, Land Inc. v. the turnover was a breach of vessel’s 573, 585-91, L.Ed.2d 9 S.Ct. the accident causing factor substantial (1974), Helicop and Nichols v. Petroleum death, so that the district and Moore’s Inc., ters, 122-23 Cir. finding. err in its court did not 1994), non-pecuniary each allowed dam injured in

ages longshoremen territori Despite illogical discrepancies al waters. V. injuries governing between the law must next determine whether We in territorial longshoremen waters in assessing court erred the district governed by the Death on the persons fault to the decedent. percent five of the Act, High Seas Act or the Jones we must that al court determined The district Nichols, 17 apply the law as it is. F.3d T-bar when it though Moore was under the 123; Rayo-Valdez, United States v. landed, improperly driving the he was not (5th Cir.) denied, cert. path of the load. A forklift under the 154 L.Ed.2d 645 and hatch workers saw the load flagman (2002). flagman the hatch cover. When the clear clear, Moore and other waved the load VII. their duties the hold. workers resumed uni also contends testimony longshoremen $750,000 neverthe for loss of consortium is formly supports findings. these The court it is ex subject less to remittitur because that erratic motions of the also found Indeed, court deter cessive. the district probably “launched” the T-bar to crane “the mined that the evidence warranted the middle of the hatch where Moore ward non-eeonomic highest possible award for just moved his forklift. The district damages,” and fixed the amount based any part fault on the court found in air crash cases. The fact that he awards for death Moore “derives from the damages determination of the extent jerking have seen the should fact, “in area the the trier of and this anticipated the worst from such errat and lightly or not appellate step court should ic crane movement.” We will not disturb Disaster, 767 at all.” In re Air Crash court’s choice to credit the district (5th Cir.1985). 1151, 1155 F.2d testimony very and assess limit- foregoing judge’s multiplier We review trial as and 33% in applied has both trials). damages jury sessment of for clear error. bench trials and IZABAL, Sosa v. LAGO 736 F.2d M/V Here the Plaintiff and decedent (5th 1028, Cir.1984); Fed.R.Civ. months, had been married 6 having after P.52(a). An award is excessive if it is and, together years been for seven as the greater than the maximum amount found, truly loving had a properly trier of fact could have awarded. relationship. They they married when Sosa, 736 F.2d at 1035. An appellate court approximately years were old and had may not determine excessiveness com together. no children The award for loss cases, paring verdicts in similar but rather love and affection this case is exces must review each case on its own facts. sive and constitutes an abuse of the trier Airlines, Inc., Winbourne v. Eastern of fact’s discretion. (5th 1016, 1018, Cir.1984), F.2d cert. de agree We defendants the air nied, 1036, 603, 474 U.S. 106 S.Ct. crash cases relied upon the district (1985); Sosa, L.Ed.2d 582 736 F.2d at similar, factually court are not inas each 1035. case the Court relied on the fact that other family perished along members with the Damage awards in analogous spouse; one relied on the additional fact objective “provide cases an frame of refer surviving spouse was left to raise ence, they but do not control our assess a child without the decedent. In re Air ment of individual circumstances.” Wheat Disaster, ($500,000 Crash at 1157 States, v. United 860 F.2d 1259-60 maximum along for wife lost with three (5th Cir.1988).8 We measure the award children); minor Caldarera v. Eastern rule,” under “maximum recovery which Airlines, (5th Inc., 705 F.2d Cir. “provides that we will decline to reduce 1983)($250,000 plaintiff maximum for hav damages where the amount awarded is not ing lost years his wife of more than 12 as disproportionate factually to at least one well as their eight-year-old plaintiffs’ similar jurisdiction.” case from the relevant mother, being left to raise his four- States, Leb v. ron United 279 F.3d himself); year-old by v. Winbourne East (5th Cir.2002)(internal 321, 326 citations Airlines, Inc., ern 758 F.2d omitted, quotations emphasis origi Cir.1984) $500,000 (approving for a loss of nal). substituting To avoid our opinion wife, plaintiff children), when also lost two finder, that of the fact apply multipli we denied, cert. percentage er or past enhancement to sim (1985). 88 L.Ed.2d 582 awards, ilar which is 33% for bench trials. O’Neill, See Salinas 831 & Poignant factual distinctions are that (5th Cir.2002) n. 6 (noting 50% enhance Plaintiff family herein lost no other mem- applied only ment has been in jury accident, trials ber from this and that she and principle There is some tension damage between the awards in similar cases. We have that we consider excessiveness based on the comparing damage stated that awards in utility facts of the case before us and the helpful determining similar cases is considering precedent, analogizing particular whether a award is excessive. facts at hand to similar cases. As Wheat hand, On the other we have also observed observed, that we by cannot determine excessiveness is, Although by comparing damage our determination its na- awards and that each ture, subjective, analysis depends we do conduct our case on its own facts. Wheat, objective (citations omitted). within an frame of reference: 860 F.2d at 1259 made, subject that could be ary children. award dependent had no Moore Cf. in the next section. Winboume, the discussion (noting at 1018 758 F.2d gone”); Calda family is “[plaintiffs] entire VIII.

rera, “calamitous (noting F.2d at 786 bereavement”); effect of the simultaneous Angela next asks us to hold that Corp., Rail see also Dunn v. Consolidated jurisdiction by the court exceeded its (M.D.La.1995)(re- 1262, 1290 F.Supp. awarding damages excess of the securi love, of her husband’s marking “The loss ty to release the arrested vessel. posted raising their companionship support jurisdiction in rem The district court’s profound ef one of the most children is $500,000 of undertak based on the letter [plaintiff].”). fects on the life ing posted to release the arrest of the MW court rendered ANGELA. factually in a similar highest award exceeding in an the se judgment amount $800,000. have found is Louisiana case we post Plaintiff trial mo curity, and filed Light Power & Fannin v. Louisiana See security judg cover the tion to increase Co., (La.App. 5th 594 So.2d ment. Cir.) ($300,000 of consortium not for loss “ ‘Romeo and Ju- plaintiffs abuse discretion mo- granted The district love affair” and “true security. liette’ scenario” The court noted tion to increase and were years $500,000 courted for couple security originally wherein or- months, no chil- approximately married represent dered did “an amount sufficient occurred, dren, leaving spouse when death claim plaintiffs to cover the amount of the daze”), stated,”9 “lost and plaintiffs “devastated” and fairly because “the denied, (1992); see also 600 So.2d 644 ‘could mit on the record that he counsel stated ” Indus., $500,000.’ 602 So.2d Increasing Easton Chevron the secu- live with Cir.) (award $100,000 4th (La.App. district court re- rity post-judgment, $300,000 of the within the discretion marked, years’ mar- after 10 trier of fact death recognizes that the vast also Court children), “very loving,” riage, solid for non-econom- majority of the award is denied, 1315, and writ de- 604 So.2d writ unavail- damages, may well be ic which (1992). nied, 604 So.2d 1318 after the issue of its plaintiff able to the Fifth recoverability is considered primarily our conclusion We reach circumstances, the these Circuit. Under record, in this and secondari- the evidence in- shall finds that the defendant Court rough guidance provided ly on the security equal the amount of crease injuries by approved awards for similar ac- plus judgment, the amount of the the de- appellate courts and the Louisiana crued interest and costs.... Louisiana applying of this court cisions Disaster, legal support for a find no We law. See Air Crash security. While recovery post-judgment increase the “maximum Applying 1157. may require is true a district court requires award in this case rule” to the time, any 28 U.S.C. security” “further non-peeuniary award remittitur 2464(b) E(5)(b), $399,000 interpret R. we $300,000, Supp. § & or for non- 133% of replace phrase to mean substitute the facts of this pecuniary damages. On has surety when a case, $399,000 security (e.g., ment non-pecuni- the maximum Fed.R.Civ.P., E(5)(a) (In plaintiff's claim Supp. secu- to cover the amount R. rem stated.”). fairly rity "at an amount sufficient should be fixed 386 insolvent) representing vessel to fund

become rather than additional fers lien from security, except denied, was re- 1117, where the vessel 471 105 security.), cert. U.S. fraud, or misrepresentation, mis- leased 2361, (1985); 86 L.Ed.2d 261 J.K. allege take of the court.10 Plaintiff does v. Welding Corpora Co. Gotham Marine “mistakenly” calcu- that the district court (D.C.N.Y.1931) tion, 332, 47 F.2d 335 claim, fixing of Moore’s but the secu- lated (“[T]he can much author court exercise as rity part based in Plaintiffs coun- was on bond that ity over is a substitute [the declaration It sel’s own to the court. was if the vessel in the as itself were res] of therefore not based on a “mistake” court, more.”), custody of the but no cited jurisprudence.11 as in court discussed Incas, in I4R n. approval with F.2d at 962 court authority find no for the We 10. security. required additional See security damage and amount of The Ames, 35, 42, United States v. 99 25 U.S. $500,000 limited to award are therefore (1878) (“[T]he remedy L.Ed. 295 of the original undertaking. sum in the letter of ... was from the libelants transferred Wanata, 600, 611-12, 24 95 See U.S. to the or property stipulation accept- bond (Where (1877) property L.Ed. 461 value of by the ed court as the substitute for the loss, pay held is “it not insufficient is Webb, seized.”); 14 property Wall. damages the court competent for to award 406, 406, 418, 81 U.S. 20 L.Ed. 774 against stipulation sureties be- (1871)(“[N]othing but the of the [amount value.”); yond or v. proceeds Cooper security] within of is the control 308, 308, 319, Reynolds, 10 77 Wall. U.S. court.”); Monterey Printing Incas & & (1870) (One Jin, requi- 19 L.Ed. 931 essential Packaging, Ltd. v. 747 Sang F.2d M/V (5th Cir.1984) (Release jurisdiction in 958, 961 of site to rem is seizure vessel security exchange posting property; of trans- of this attachment “[w]ithout See, Wanata, 600, 611, e.g., plaintiff's recovery 95 U.S. ranted reduction of the (1877) (Stipulation prop fault, L.Ed. 461 taken for percentage Ed Stevedores' see erty "is deemed a mere for the substitute Transatlantique, Compagnie monds v. Gen. thing binding Appellate itself” and "is on 256, 61 L.Ed.2d 521 Court, appears property unless it (1979)), "strictly noted that the and error was fraud.”); by misrepresentation released oversight part on the an of the Court.” That Tate, (2d Cir. Mosher post-trial bearing mistake was no 1950) (If ordering court erred in release of fixing pre-trial security. court's requiring vessel without sufficient bond from owners, Welding agree We with J.K. Co. v. Gotham power personal court had to order against Corporation, recovery greater Marine decree owners if Lawrence, (D.C.N.Y.1931), security.); than The Fred. M. 94 F. recognition in its uni that “a (2d Cir.1899)(If stipulation mistake, has lateral such as a statement by insolvency surety become worthless figure,” at too small a libelant's claim comply claimant does not order to fur good compel giving reason of addition may security, nish additional court strike an security. al See also Del Industria Nacional judgment.). and enter swer default F, Papel, CA. v. ALBERT 730 F.2d M/V express opinion We on the continued Cir.) (recognizing that new or addi efficacy personam principle allowing security required original tional can be if the personal without discussed in service fraud, misrep insufficient due amount was " predate some of the cited cases Admi- which resentation, or 'the mistake of the E(8), ralty Rule under which Rule denied, "), not that the claimant’ cert. may appearance now owner enter restricted 1037, 105 S.Ct. 83 L.Ed.2d defend an in rem action. (1984) (quoting 7A Moore's Federal Practice (2d ed.1983)). VE.14 at E-711 n. 30 11. The district court a mistake did correct (undoing the amount of the award an unwar-

387 in further; proceedings REMANDED for further no proceed can the court opinion. with this subject prop accordance proceed can the court ”)(emphasis plaintiff. of the demand erty to GARZA, Judge, M. Circuit EMILIO Caroline, 538, 2 69

added); Wall. The Ann in part dissenting part: and concurring (1864) (stip- 538, 548-49,17 L.Ed. stipulation filed a bond ulator who has majority improperly def- opinion is of vessel cannot place for definite sum erential to the district court’s determina- expressed more than compelled pay be (“Angela”) Maritime tion amount); Nor v. Water Vessel Overstreet that were the cause aware of latent defects (5th Cir.1983) 641, F.2d kong, 706 longshoremen Moore’s of the accident (Bond of the vessel place in the that stands death, and to its determination within the property that is “the sole is obvious to open defects were not Welding, 47 J.K. jurisdiction.”); court’s (“Ste- Stevedores, Inc. employer Moore’s (A repre for value stipulation at 335 vedores”). Although majority opinion unfluctuating val security new sents “a the district is correct that we review vessel.”); The Mutu place ue in the error, fact for clear we findings court’s (D.Conn.1897) (If, al, 144-45 F. application of those facts to law review the value, stipulation for bond or giving of Thus, applying the less deferen- de novo. forever,” “freed released and is standard, I the district court tial believe additional power to order court has its own factual deter- improperly applied & Central Hudson Gas security.); but see legal precedent in controlling minations to Empresa Naviera Santa Corp. Elec. Angela under sustaining liability against (2d Cir.1995) S.A., (upholding However, as I duty.” be- the “turnover jurisdiction judgment to enter admiralty properly found lieve the district res, which was exceeding value of arrested “duty to inter- Angela liable under though the undertaking, even a letter of vene,” judgment, vacate I would affirm in the appearance a restricted owner filed liability, allocation of court’s the district action, person- in a later in for use rem case for a calculation of and remand the action, judicata/col- only by res am limited “duty to intervene.” fault under estoppel principles). lateral Therefore, part I concur respectfully in part. and dissent case, in this to the damage award the amount of secu- extent that exceeds I

rity, must be modified. Harbor amendments to the The 1972 CONCLUSION fundamentally Act Compensation Workers’ shipowners owe to both the duties findings changed in the find no clear error We scope consequently longshoremen duty under Scin- violated subject. they are which that caused Moore’s in a manner dia cases, Steam Supreme Court Scindia death, at Two percent that Moore was five Santos, 451 U.S. v. De Los Navigation fault, non-pecuniary damages are or that (1981), L.Ed.2d quantum non-pecuni- recoverable. The Co., 512 Shipping v. Birkdale and Howlett not sustainable on these ary damages L.Ed.2d 78 facts, above. Because of the U.S. as discussed (1994), outlined the relative together total dam- security posted, amount $500,000. and stevedores shipowners duties of exceed age may award circumstances and the longshoremen, therefore matter is liability against shipowner where can be In establishing addition to owed 905(b). by deceased, § under plaintiff sustained 33 U.S.C. The the vessel to the the explained gen- Scindia Court a must establish that in “[a]s the latent defect matter, shipowner may rely eral on “legal crane was the cause” of the accident exposing stevedore to avoid that it longshore- such was a “substantial factor” in ODECO, injury. men to Donaghey unreasonable hazards.... 974 (5th Cir.1992). ship employer Therefore, is not the common of the 649 to longshoremen and statutory liability, owes no such sustain Moore must show (or had) duty to them.” 451 at U.S. should have knowl- emphasized edge at 1623. The Howlett Court of a latent defect the crane which not, point explaining been, design of was and could not have “[t]he discover- changes by these was to shift more of the ed Stevedores and a substantial was responsibility compensating injured factor the accident.

longshoremen party to the best able to We review the district court’s factual prevent injuries: the employer.” stevedore error; however, findings for clear we re 97,114 at U.S. S.Ct. at 2063. questions view both of law and mixed questions of fact and law de novo. Theriot Nevertheless, ship owes three duties (5th States, v. United 245 F.3d 1) 2) longshoremen: duty; to the turnover Cir.1998). erroneous standard 3) duty; duty the active control of review does not “apply to decisions Howlett, intervene. at by judges they made district court when majority opinion S.Ct. at 2063. The relies apply legal principles essentially undis solely duty on the turnover to establish Braus, puted facts.” Walker v. 995 F.2d liability. duty requires “The turnover Cir.1993). to warn any the stevedore ‘of haz- ship respect ards on the or with to its The district court determined that “er- equipment,’ long so as the ‘are ratic hazards motions such as jerking [the] of the known to the vessel or should be known to crane caused the T-bar to fall from the care,’ it in the exercise of reasonable ... It additionally jerk- load.” concluded the and would not be obvious to or anticipated ing hydraulics was due to a latent problem by if reasonably competent aware, [the stevedore] of which was and of which performance in the of his work.” Id. at Stevedores was oblivious. It relied 98-99, 114 expert testimony S.Ct. 2063. Therefore the of Edward Webster duty establish, matter, attaches general latent defects of as a hy- “that a which the vessel has or should problem have had draulics hydraulics worsens as the knowledge. duty That extinguished, is up, by heat which can be caused the exces- stevedore, lifted,” essence weight shifted to the if sive the loads and on the gains (“Coastal”) the stevedore either testimony actual knowl- Cargo Coastal defect, edge of the if employee or the stevedore Falgoust Rene to establish that anticipated should have its existence. See the crane experiencing hydraulics was 99-100, id. at problems. 2064. That testimony While Webster’s “if longshoremen’s does not shift only hypothetical and does not establish that facing alternatives when an open and obvi- the crane suffering hydraulics from a ous hazard are unduly impracticable problem accident, at the time of the Fal- ” consuming.... time Pimental v. LTD goust’s testimony only hydraulics refers to Bulk, Canadian experiencing the crane was while Pacific (5th Cir.1992). control, days under Coastal’s turn- before over, jerking hy- not it was under Steve- assumes the was caused while This problem. jerking, accident draulics whatever when the occurred.1 employ dores’ cause, admission, its Stevedores’ own court also district Strangely, quite apparent them. testimony surveyor of marine adopted the factual findings determined post- who that his Ben Haveman testified operator Stevedores’ crane had “a inspection of the crane “revealed accident problem operation critical that did hydraulic leakage oil evidence of crane when he first it.” It used also cited crane, operation of the but affect testimony from additional Stevedores’ em- It hydraulic fuel.” that old cranes leak Gaston, Dunham, ployees Henry John testimony the Edward adopted also of the crane establishing Willie Davis operations Roy, expert an crane operating erratically was and was concluded, post- his inspections, who after Thus, malfunctioning. based on the dis- that the had “no inspection, accident crane findings, trict factual it was to court’s clear deficiencies, only prob- cosmetic structural the crane was malfunc- Stevedores “time Finally, it concluded that lems.” importantly that tioning, and more it was 27-28, 2000,” spent repairs April was on eventually jerking a manner that led to Stevedores, by to days turnover before the accident. prob- in an effort to fix whatever Angela un- experiencing crane while lems the was The in the that is the defect crane stated der Coastal’s control. of accident open cause was and obvi- Even assuming ous Stevedores.

Cumulatively, findings sug- of fact these hydraulics defect, crane had a latent of hydrau- no gest that the crane had latent unaware, was cer- which Stevedores was turnover, at the of and that lics defect time tainly jerking aware of the and erratic must jerking its at the time of the accident that were a clear movements manifesta- es- have an alternate cause. It also had tion, hydraulics if a problem, not of a of that, if there latent even were tablishes malfunctioning Any longshoremen crane. them, defects, Angela knowledge had no there, reasonably “if competent per- repaired as it that it had whatever believed work,” formance of his should have real- experiencing by problems the crane was any ized what would been obvious to liability can- the time of turnover. Vessel malfunctioning crane laymen, no not if either there were be sustained everyone a it. danger not have and was around latent defects did 98-99, Howlett, Howlett, 512 U.S. at S.Ct. knowledge of defects. See See 98-99, at at 2063. Thus at 2063. finding that had Angela the district court’s majority opinion The affirms hydraulics of a defect knowledge latent that, if the court’s conclusion even defects insupportable by its of turnover is time obvious, open and there were were own factual conclusions. using alternatives to the malfunc- viable 1) using a different hydraulics tioning if crane because: problem, Even there was unduly con- accident, have been time cause of the as estab- crane would real 2) court, past, jerking suming; Angela in the had by lished the district time merely accepted responsibility stand-by crane. The district court control, Admittedly, with the crane were so severe that while under Coastal stopped working and experienced Coastal twice demanded crane severe difficulties. Angela repair the crane. did so was described as "broke down" and crane hoist both point one it "would not at all.” times. refusing cargo suggesting stevedores unload due evidence that a dis- 3) and, repair; pute Stevedores would lose as to for down payment during time future business. Applying incorrect repairs might was Coastal’s ensue records review, majority opinion standard evidencing with dispute its over further concludes that “when there are two There, however, such payment. is no evi- the evidence” permissible views of there dence demonstrating Stevedores had ac- can be no clear error. cess those or otherwise documents knowledge dispute prior of that to discov-

The district view of the court’s evidence ery in Consequently, this case. it could impermissible precedent. our under In not have De, knowledge been deterred Greenwood v. Societe Franchise Cir.1997), dispute at the time decided to not we did not apply request exception repairs. the “no viable alternative” when a despite stevedore used contrast, Coastal, in was not deterred open and obvious defects because “[the potential dispute Angela. It presented stevedore] no evidence that [the requested twice crane repaired, that the be operator] crane was instructed to continue requests and both honored Ange- were to use the despite the defect or that la. The purpose of the “no viable alterna- he would for delaying face trouble the exception tive” to sustain liability (internal omitted). quotations work.” Id. against shipowner the vessel when the cre- We relied on the fact that the vessel was ates conditions the where stevedore feels never problem, informed of the id. at compelled open to face an and obvious that operator the crane knew immedi- however, hazard. exception, This should ately that the crane was not operating not be provide used to stevedores an ex- 1246-47, id. at to properly, absolve the demanding repairs cuse for not in the face liability. vessel of open dangers of long- and obvious to their Greenwood, Applying I believe the “no shoremen. This would defeat the intent of exception viable alternative” should not be responsibili- the 1972 to shift Amendments applied in this There case. is no evidence ty for safety longshoremen the from showing requested that Stevedores the Rowlett, the vessel to the stevedore. See operations crane be fixed or that cease 97,114 at 2063. repairs until According were made. to the policy These goals similarly would be court, operator district the crane knew by excusing defeated Stevedores’ behavior immediately that having the crane was competitiveness due to the of industry. problems. complained Angela He to about likely Stevedores will be to request less the crane’s jerking and was advised to repairs they if they know will not be held “slam stop the stick” to Ei- jerking. liable for to do their failure so. OSHA operator ther the crane found the advise regulations already recognized this satisfactory or he made decision not to require: concern and “Cranes with a visi- Angela problem inform that the was more ble or known oper- defect that affects safe required thoughtful substantial and more ations shall not be used. Defects shall Further, be attention. there is no evidence reported to immediately that the officer in informed Stevedores it would charge not make needed or that of repairs, there the vessel.” 29 C.F.R. 1918.55(a).2 § reprisals requesting repairs. Shifting liability would be from the It regu- is clear that malfunctioning. Stevedores violated this once it determined was it operate lation refusing not the crane knowledge it not when has actual would intervene to the vessel stevedore Amend- dangerous of the 1972 condition and actual knowl- purposes defeat in- regulations, would stevedore, and OSHA ments the exercise of edge accidents tragic likelihood of crease ‘obviously improvident judgment, has ” the steve- by eliminating this one such as Greenwood, remedy failed to it.’ in the repairs to demand incentive dore’s Additionally, longshore- at 1248. employees. danger to its apparent face of 1) shipowner: man must show that the posed knowledge that the defect and the actual suggests, in the Nothing record 2) find, harm; not risk of actual court did unreasonable it would rely communicated Stevedores could not on the knowledge repairs, compensate not make either protect Id. employees. stevedore to As request- if were longshoremen repairs expertise shipowner defers to the record, or the district ed. Nor does operation the stevedore suggest findings, that Stevedores court’s obligation equipment, shipowner’s “[t]he repairs and was refused. requested requires ... is narrow and intervene that Stevedores’ district court’s conclusion shipowner’s more something than mere un- facing hazard were alternatives condition.” knowledge dangerous Id. with its is inconsistent duly impracticable (internal omitted). quotations at 1249 of this findings, precedent own factual Thus, expert judgment “for the stevedore’s Court, with the behind policies ‘obviously ex- appear improvident,’ Workers Amendments the Harbor object an with a pert stevedore must use as Act annunciated Compensation condition that is so hazardous defective Rowlett. Scindia and Supreme Court can continued anyone tell that its use sustaining liability under the Although of harm an unreasonable risk even creates the Su- duty” inappropriate, is “turnover expertise is taken when the stevedore’s other has two preme recognized Court Id. into account.” longshoremen: shipowners owe to duties that the crane’s district court found duty” “duty to control and the the “active motions were observable Rowlett, “erratic at U.S. intervene.” or should by ship personnel, who alone did properly at 2063. The district court problems to inter- liability “duty recognized under the the mechanical sustained Angela vene.” we should fol- argues reflected.” holding in where we low our Greenwood intervene shipowner “duty has a duty to intervene apply did not and if it of the defect repair” knows and longshoremen situation where a similar of the continued use knows the stevedore’s jerk- injured due to a crane’s erratic risk “presentís] an unreasonable machine ” knew of shipowner ing, and where longshoremen.... Scin- of to the harm allowed steve- 175-76, problems crane’s dia, at at 1626. duty despite continue to use the crane “a has a dore to means that vessel This piece area or a of relinquishes "ac- control over an Liability cannot be under the sustained duty.” duly requires This is extin- equipment tive control to the stevedore exposing Pimental, “exercise due care to avoid at 16. At guished. See they hazards longshoremen harm from turnover, relinquished Angela the time equipment from may encounter areas or crane Steve- complete control over the during active of the vessel under the control extinguished Angela fully its dores. Therefore Scindia, stevedoring operation.” duty.” "active control the vessel 101 S.Ct. at 1622. If knowledge. However, this See id. in that ued “posed use the crane an unreason- case we relied on the vessel’s lack of “spe- able risk of harm.” cialized knowledge” to find that it did not This result is pur- consistent with the know that the “posed an unreason- pose of the 1972 Amendments as it allo- able risk of harm.” Id. That is not the portion cates a to the ves- Angela case here. specialized knowl- sel unique when position to edge that the crane had recently experi- prevent the relevant danger. Due to hydraulics enced severe problems evi- both specialized its knowledge of the denced jerking and emtic motions. maladies, crane’s recent knowledge Those required shutting down the crane’s malfunctioning obvious the crane and multiple involved days of control, while under Stevedores’ Angela repair work. Stevedores Angela informed was in a position to veto Stevedores’ im- the crane was jerking moving provident result, decision. This rather erratically, Angela thus affirmatively knew than absolving the stevedore of its re- the crane was malfunctioning as it did sponsibility for the protection of the control, under Coastal’s and thus was like- longshoremen, majority as with the opin- ly a danger to the longshoremen, as it had result, ion’s simply an adds additional been the week before. layer of responsibility for protec- their Coastal, knew that based on its tion, case, in this shipowner, when expertise stevedore, as a had demanded “specialized has knowledge” of an “un- crane, cessation of its use of the reasonable risk of harm” to long- least in part, due to injury fear of to its shoremen. longshoremen from the jerking. crane’s Thus, after Stevedores informed II jerking motions, and erratic and did The district court determined that Ange- operation crane, not cease based on la accident, was 65% at fault for the Steve- specialized knowledge, Angela should fault, dores was 35% at and that the dece- have known that Stevedores’ decision to dent was 5% at fault. The district court continue working was improvident, and enjoys wide discretion in awarding dam- should have stopped use of the crane for ages, and its determinations are reviewed inspection to determine the cause of the for clear error. Trico Marine Assets Inc. jerking.4 Angela specialized had knowl- v. B Inc., Diamond Marine Services edge not recently crane had Cir.2003). malfunctioned, Considering, but also that due to that “duty intervene,” under the to malfunctioning the steve- the proceeding stevedore primarily dore is at fault for repairs. ceasing demanded not specialized This use of the knowledge, coupled machinery, with and shipowner its the is knowledge only secondarily the crane was it at fault malfunctioning vetoing as did for not when decision, Coastal repairs, demanded in a man- the district court’s allocation ner that blatantly dangerous of clearly the is erroneous because longshoremen, demonstrates that Angela does not apportion largest the percentage position was in a determine contin- of party fault to the responsible most Although However, 4. may the crane not have had a knowing danger the obvious the hydraulics problem, something source, jerking, regardless posed of its to the causing jerking the and erratic longshoremen, motions. That stopped should have something may, Angela alleges, as have been use of the problem crane to determine the way the operating Stevedores was the crane. when Stevedores failed to do so. McDermott, only. I would “duty to intervene” Inc. v. Am- the accident. Cf. lia- court’s allocation of 511 U.S. vacate the district Clyde, (1994) (citing Unit- L.Ed.2d 148 of fault bility remand for calculation and Inc., Co., v. Reliable ed States I only. “duty under the intervene” Transfer 1708, 1715-16, 397, 411, 95 S.Ct. both reduction lastly would affirm (1975) (“when two more 44 L.Ed.2d damages and the non-pecuniary award by their fault to contributed parties holding lacked au- district court’s that it [liability] to be ... ... damage cause thority security post-judg- increase the proportionate- among parties allocated Accordingly, part I concur in ment. ly comparative degree their of to the part. dissent fault”)). as to explaining reasoning its While particular Angela’s of

its determination fault, ap- of the district court

percentage turn- on the primarily to have relied

pears liability.5 vessel’s duty to

over establish latent it further concluded

As cause of primary defect was the

hydraulics accident, the lion’s share allocated Plaintiffs, MALACARA, al., et Ovidio Angela. fault to Rincones, Malacara; David Ovidio above, true cause explained As Plaintiffs-Appellants, crane, a jerking of the was the the accident crane symptom of either Ei- operation by Stevedores. or with full was under the way, as the crane

ther GARBER, doing as Russell business Stevedores, and turn- active control Farms, Defendant- Garber violated, the decision duty was not over Appellee. rested with Ste- jerking operate No. 03-40144.

vedores, responsibili- primary thus Ange- lies with it. ty for the accident also Appeals, United States Court course, did, opportunity have both la Fifth Circuit. responsibility to veto Stevedores’ and the decision; however, as established Scin- Dec. Howlett, retains the stevedore dia responsibility safety primary Scindia, 451 U.S. at

longshoremen. Howlett, 1623; Thus, at 2063. fault cannot be determination of

court’s

sustained.

Ill I af- preceding

For the reasons would judgment under

firm the district court’s thus Angela's fault and over to establish Although lia- the district court established bility the vessel’s duties of fault. under each of the vessel’s allocation longshoremen, primarily relied on the turn-

Case Details

Case Name: Sylvia Moore, Sylvia Moore v. Angela Mv, Angela Maritime Shipping Ltd., Claimant-Appellant

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 9, 2003

Citation: 353 F.3d 376

Docket Number: 02-30441

Court Abbreviation: 5th Cir.