Petition for Writ of Certiorari — Dianella Shipping Corp. v. Hernandez
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NO.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
DIANELLA SHIPPING CORPORATION,
IN PERSONAM, and M/V RAJAAN,
Her Engines, Tackle, Apparel, Etc.,
IN REM,
Petitioners
V.
ALEJANDRO HERNANDEZ,
Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
KENNETH D. KUYKENDALL
2200 Texas Commerce Tower
Houston, Texas 77002
(713) 224-8380
Attorney for Petitioners
Of Counsel:
ROYSTON, RAYZOR, VICKERY & WILLIAMS
2200 Texas Commerce Tower
Houston, Texas 77002
(713) 224-8380
PET LTT A IRD
Alpha Law Brief Co., Inc.— 8748 Westpark—Houston, Texas 77063 — 789-2000
I
QUESTIONS PRESENTED
1.
Whether the decision of this Court in Sure-Tan v.
N.L.R.B., 467 U.S. 883, 104 S. Ct. 2803, 81 L.Ed.2d
732 (1984) that an illegal alien must establish his legal
right to be present and employed in the United States
aS a prerequisite for the award of future United States
wages is limited to labor cases under 29 U.S.C. § 158
or whether this principle is applicable to other causes
of action pursued by an illegal alien under other federal
statutes, including the Longshore & Harbor Workers’
Compensation Act, 33 U.S.C. § 905(b), to insure con-
sistency in the application of the immigration laws of
the United States.
y &
Whether the District Court should have referred this
illegal alien to the Immigration and Naturalization Service
for a determination of his right to remain in the United
States legally because Congress has placed such deter-
mination within the primary jurisdiction of the executive
branch of the government.
II
LIST OF PARTIES
Pursuant to Rule 21.1(b), Rules of the Supreme Court,
counsel for Petitioner certifies that the filing of the
complete list of all parties to the proceedings below and,
additionally, all parties and persons believed to be in-
terested in the outcome of this Petition:
ee
— Pr FryVr -
—_
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Ps Perr r >
Alejandro Hernandez.
Dianella Shipping Corporation.
Ishikawajima Harima Heavy Industries, Ltd.
O.J.I. Seke-Kogyo Kabushinki Kaisha.
Cargill, Inc.
Brazos River Harbor Navigation District.
Affiliated Rice Mills.
Trans Ocean America, Inc.
Langston Companies, Inc.
Amoco Fabrics Company.
Patchogue Plymouth Division.
Euro Grain Trading, Ltd.
General Produce and Fibres, Ltd.
West Texas Rice Company.
Synthetic Industries Texas, Inc.
Texas Employers’ Insurance Association.
The West of England Ship Owners Insurance
Services Limited.
American International Underwriters.
KENNETH D. KUYKENDALL
Attorney for Petitioners,
M/V RAJAAN and Dianella
Shipping Corporation
Ill
SUBJECT INDEX
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FEDERAL STATUTES INVOLVED ..................
1. The opinion of the Court of Appeals should be
reviewed because it is in direct conflict with the
prior decision of this Court in Sure-Tan v. N.L.R.B.,
467 US. 883, 104 S. Ct. 2803, 81 L.Ed.2d 732
(1984) and the immigration laws of the United
DT CUUGh caw buveencbaséhuacstesedetwinacas
2. The opinion of the Court of Appeals should be
reviewed because it erroneously establishes the au-
thority of the District Court to determine an illegal
alien’s right to remain in the United States or to be
deported even though Congress has assigned such
determination exclusively to the executive branch
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APPENDIX A — District Court’s Findings of Fact and
BBA Peer rrr erereree
APPENDIX B— Fifth Circuit’s Opinion ..............
APPENDIX C — Fifth Circuit’s Substituted Opinion ...
APPENDIX D — Fifth Circuit’s Order Overruling Petition
for Rehearing and Suggestion for Rehear-
RE Sausbedwavecseeataenenss
APPENDIX E—Trial Record Volume 5, pp. 6-12, 25-30,
DTP CSUEGERE Seb GR dnesbénsseecdas<s
APPENDIX F —Letter From TIRR ..................
10
11
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IV
LIST OF AUTHORITIES
CASES Page
Carnation Co. v. Pacific Westbound Conference, 383 US.
213, 383 U.S. 932, 86 S. Ct. 781, 15 L.Ed.2d 709 (1966) 20
De Canas v. Bica, 424 U.S. 351, 96 S. Ct. 933, 47 L.Ed.
Oe Se RE No ck Kida bag tei hanes kee ieee se kanes 17
F.C.C. v. Shreiber, 381 U.S. 279, 85 S. Ct. 1458, 14 L.Ed.
a Se BREE | SA RGKsd ehkaednnedansuRanseonKkeuese 16
Jean v. Nelson, 711 F.2d 1455 (Sth Cir. 1983), aff'd, 472
US. 846, 105 S. Ct. 2992, 86 L.Ed.2d 664 (1985) ... 18
Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103
ete eek Boe. | errrroerrrre ree 12
Landon v. Plasencia, 459 U.S. 21, 103 S. Ct. 321, 74 L.Ed.
Se Be LEE oe ek ee eo ciabs dean ciseh sd cobieuwekaes 18
Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 96 S. Ct.
so) Ae Be ee, | rere rere 20
Parsons v. U.S., 670 F.2d 164, 229 Ct. Cl. 335 (1982) .. 16
Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 104 S. Ct. 2803,
eR ee a, irre rr re passim
United States v. Cantu, 557 F.2d 1173 (Sth Cir. 1977),
cert. denied, 434 U.S. 1063, 98 S. Ct. 1236, 55 L.Ed.2d
RO RE: esa din 8S knok ba N Oh hs Seta bs ca hendaees 21
United States v. Lopez, 521 F.2d 437 (Sth Cir.), cert.
denied, 423 U.S. 995, 96 S. Ct. 421, 46 L.Ed.2d 368
6, eRe er errr Ee per EP Pr. merry TE re re 21
United States v. Pereira-Pineda, 721 F.2d 137 (Sth Cir.
i) a rT Pe ere ere errr rr ere rr yy rrr 21
Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645,
03 S. Ct. 2688, 37 L.BG26 29S (1G7S) 2c cccsccccnnss 20
STATUTES
Bp be So ee Sree mA pr sre yy ree 9,17, 18
Re Fa GR ee a porn yae rere gr nr eed rey 17
is Eos oc oe ceeee save Ladasvesuesaboneas 3,18
De, ND Si teas cwadecketebecseparanseade 3,18
“Ee Tae 1S a eee Mis en oye ae 4
De LIED pdccetuencesedecueaeabsnda 20
Se ICR UCUDD (ci kcaksanndnaekeeceeswsen’s 21
Be a ir oe ay aa eae 5, 16, 19
ep to De orev e rr rrr trey Try eer ee 10
Be Wn SD oka cedawdcdenkecdGenceaskness 3,10, 11, 14,17
LEGISLATIVE HISTORY
H.R. Rep. No. 682(1}, 99th Cong., 2d Sess., reprinted in
1986 U.S. Code Cong. & Admin. News 5649, 5650 .... 13
NO.
IN THE
Supreme Court of the Wnited States
OCTOBER TERM, 1988
DIANELLA SHIPPING CORPORATION,
IN PERSONAM, and M/V RAJAAN,
Her Engines, Tackle, Apparel, Etc.,
IN REM,
Petitioners
V.
ALEJANDRO HERNANDEZ,
Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioner prays that a Writ of Certiorari issue to re-
view the judgment of the United States Court of Appeals
for the Fifth Circuit entered in the above entitled cause
on March 30, 1988, as modified by the per curiam opin-
ion dated June 20, 1988.
2
OPINIONS BELOW
The Findings of Fact and Conclusions of Law of the
District Court dated August 5, 1985, are unreported, but
are attached hereto as Appendix “A”. The original opin-
ion of the Court of Appeals for the Fifth Circuit affirm-
ing in part, vacating in part, and remanding to the Dis-
trict Court is reported at 841 F.2d 582 (Sth Cir. 1988),
and it is attached as Appendix “B”. The subsequent
per curiam opinion of the Court of Appeals for the
Fifth Circuit modifying the original opinion in response
to the Petition for Rehearing is reported at 848 F.2d
498 (Sth Cir. 1988), and it is attached as Appendix “C”.
JURISDICTION
The judgment of the Court of Appeals for the Fifth
Circuit was entered on March 30, 1988. A timely Peti-
tion for Rehearing and Suggestion for Rehearing En Banc
was filed, and the subsequent opinion modifying the orig-
inal opinion was entered on June 20, 1988. A timely
Petition for Rehearing and Suggestion for Rehearing
En Banc was filed, but it was denied on July 21, 1988.
The Order denying said Petition is attached hereto as
Appendix “D”. A Protective Motion for Extension of
Time to File Petition for Writ of Certiorari was filed,
and it was granted on September 12, 1988. This Order
granted Petitioner an extension of time for filing the
Petition for Writ of Certiorari up to and including
October 18, 1988. The District Court had jurisdiction
pursuant to 28 U.S.C. § 1333. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
3
FEDERAL STATUTES INVOLVED
The following United States Statutes are involved in
this case:
The Longshore and Harbor Workers’ Compensation
Act, in pertinent part:
33 US.C.A. § 905(b) (West 1986)
In the event of injury to a person covered under this
chapter caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages
by reason thereof, may bring an action against such ves-
sel as a third party in accordance with the provisions of
section 933 of this title. ...
The Immigration and Naturalization Act, in pertinent
part:
8 U.S.C.A. § 1105a (West Supp. 1988)
Judicial review of orders of deportation and exclusion
(a) Exclusiveness of procedure
The procedure prescribed by, and all the provisions of
Chapter 158 of Title 28 shall apply to, and shall be the
sole and exclusive procedure for, the judicial review of
all final orders of deportation heretofore or hereafter
made against aliens within the United States pursuant to
administrative proceedings under section 1252(b) of this
title or comparable provisions of any prior Act... ;
8 U.S.C.A. § 1252(b) (West 1970 & Supp. 1988)
Apprehension and deportation of aliens
(b) Proceedings to determine deportability; removal ex-
penses
A special inquiry officer shall conduct proceedings un-
der this section to determine the deportability of any
4
alien, and shall administer oaths, present and receive evi-
dence, interrogate, examine, and cross-examine the alien
or witnesses, and as authorized by the Attorney General,
shall make determinations, including orders of deporta-
tion. Determination of deportability in any case shall be
made only upon a record made in a proceeding before a
special inquiry officer, at which the alien shall have rea-
sonable opportunity to be present, unless by reason of
the alien’s mental incompetency it is impracticable for
him to be present, in which case the Attorney General
shall prescribe necessary and proper safeguards for the
rights and privileges of such alien... .
(4) no decision of deportability shall be valid
unless it is based upon reasonable, substantial, and
probative evidence.
The procedure so prescribed shall be the sole and ex-
clusive procedure for determining the deportability of an
alien under this section. .. .
8 U.S.C.A. § 1324(a) (West Supp. 1988)
Bringing in and harboring certain aliens
(a) Criminal Penalties
(1) Any person who—
(C) knowing or in reckless disregard of the fact
that an alien has come to, entered, or remains in the
United States in violation of law, conceals, harbors,
or shields from detection, or attempts to conceal,
harbor, or shield from detection, such alien in any
place, including any building or any means of trans-
portation; or
(D) encourages or induces an alien to come to,
enter, or reside in the United States, knowing or in
reckless disregard of the fact that such coming to,
entry, or residence is or will be in violation of law,
5
shall be fined in accordance with Title 18, imprisoned
not more than five years, or both, for each alien in re-
spect to whom any violation of this subsection occurs.
8 U.S.C.A. § 1361 (West Supp. 1988)
Burden of proof upon alien
Whenever any person makes application for a visa or
any other document required for entry, or makes applica-
tion for admission, or otherwise attempts to enter the
United States, the burden of proof shall be upon such
person to establish that he is eligible to receive such visa
or such document, or is not subject to exclusion under
any provision of this chapter, and, if an alien, that he
is entitled to the nonimmigrant, immigrant, special immi-
grant, immediate relative, or refugee status claimed, as
the case may be. If such person fails to establish to the
satisfaction of the consular officer that he is eligible to
receive a visa or other document required for entry, no
visa or other document required for entry shall be issued
to such person, nor shall such person be admitted to the
United States unless he establishes to the satisfaction of
the Attorney General that he is not subject to exclusion
under any provision of this chapter. In any deportation
proceeding under part V of this subchapter against any
person, the burden of proof shall be upon such person to
show the time, place, and manner of his entry into the
United States, but in presenting such proof he shall be
entitled to the production of his visa or other entry docu-
ment, if any, and of any other documents and records,
not considered by the Attorney General to be confidential,
pertaining to such entry in the custody of the Service.
If such burden of proof is not sustained, such person
shall be presumed to be in the United States in violation
of law.
6
STATEMENT OF THE CASE
This is a cause of action for personal injuries sustained
by longshoreman Alejandro Hernandez while working
onboard the M/V RAJAAN on September 21, 1983,
pursuant to $905(b) of the Longshore & Harbor
Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901,
et seq. The District Court found vessel owner Dianella
Shipping Corporation, (hereinafter “Dianella”) negligent,
and the District Court properly awarded damages for
Hernandez’ past medical expenses during Hernandez’
rehabilitation in Houston ($153,472). Nevertheless, al-
though Hernandez was an illegal alien without any basis
for remaining in the United States, the District Court
awarded Hernandez damages for future United States
wages and medical expenses in the amount of $2,234,-
221.00, and the District Court rejected Dianella’s con-
tention that Hernandez’ award for such future damages
should be based on Hernandez’ wages and medical ex-
penses in Mexico. The Court of Appeals required a
remittitur on the award for United States future wage loss,
but the Court of Appeals affirmed the award of future
damages on the basis of Hernandez’ anticipated wage
loss and medical expenses in the United States rather
than in Mexico. The difference between future medical
expenses in the United States and Mexico is $1,219,-
860.00."
1. The majority of such difference ($694,000) was the cost of
attendant care for paying Hernandez’ wife or a nurse’s aide in the
United States ($730,000) versus the cost of paying his wife or a
nurse in Mexico ($36,000). The evidence clearly established that
Hernandez’ wife provided the attendant care, but the District Court
and Court of Appeals found that she might not be able to continue
providing care. Hernandez’ wife and children always lived in Mexico
while he worked in the United States, and his wife was only granted
a visitor’s visa by the Immigration Service in January, 1984, until
7
The validity of the Court of Appeals’ decision to
award future United States wages and medical expenses
to an illegal alien depends upon the illegal alien’s right
to remain in the United States. The evidence established
that Hernandez was an illegal alien, and he was not
entitled to remain in the United States under the immi-
gration laws. Hernandez initially entered the United
States in 1970 as an illegal alien. He could not remember
all the times he had been deported, but the evidence
established that he had been apprehended and deported
by the Immigration Service on at least three occasions
from 1970 to September 21, 1983. (App. E, pp. 55a-
57a) Also Hernandez had returned to Mexico on several
occasions for visits; and his three daughters were born
in Mexico in 1973, 1980, and 1981, after he com-
menced work in the United States. Hernandez admitted
at trial that he had never tried to obtain legal entry
into the United States.’
After Hernandez’ injury and during his rehabilitation
in the hospital in Houston, Hernandez requested assist-
ance from his treating physician (Dr. Donovan) and the
social worker (Pena) to write letters to the Immigration
Service. These letters requested entry for his wife and
three children in the United States until his rehabilitation
Hernandez’ rehabilitation was completed and he could return to
Mexico. (App. E, pp. 58a-60a and App. F, pp. 62a-63a) Therefore,
since Hernandez’ wife could not remain in the United States after
his rehabilitation, he might need a nurse’s aide if he continued to
remain in the United States illegally.
2. Q. Have you made any application with the immigration
service to stay in the United States or taken any other
action to try to stay in the United States?
A. No. I haven’t done anything until this time. I haven’t
applied for my permits.
(App. E, p. 61a).
8
was complete and he was able to return to Mexico.
His wife was allowed to enter the United States in 1984
on a visitor’s visa, but the children were not permitted
to enter the United States. (App. E, pp. 59a-60a, and
App. F, pp. 62a-63a). In fact, the only evidence that
Hernandez could remain in the United States after his
rehabilitation was as follows:
THE COURT: “Do you have an intention to re-
turn to Mexico or do you plan to remain in
this country, if you can?”
THE WITNESS: “If it is possible, 1 would like
to stay here in the United States.”
(App. E, p. 60a).
On the basis of Hernandez’ intention to remain in the
United States as an illegal alien without any legal basis
to do so, the District Court awarded United States future
wages and medical expenses on the assumption that
Hernandez would continue to evade the immigration
laws of the United States. In addition, the District Court
refused Dianella’s position that Hernandez should be
referred to the Immigration Service for a determination
of Hernandez’ legal right to remain in the United States
before the District Court could award U. S. future wages
and medical expenses.
The Court of Appeals’ initial decision recognized that
the District Court merely assumed Hernandez would
remain in the United States on the basis of “the finding
that Hernandez intended to reside in the United States,”
and the opinion of the Court of Appeals dated March
30, 1988, rejected Dianella’s argument that an illegal
alien could not recover such damages unless he demon-
strated his legal right to remain in the United States.
9
(App. B, pp. 32a-33a). Nevertheless, although this
opinion recognized the validity of Dianella’s position that
future wages and medical expenses for an illegal alien
should be calculated on the basis of Mexican wages and
medical expenses in accordance with Sure-Tan, Inc. v.
N.L.R.B., 467 U.S. 883, 104 S. Ct. 2803, 81 L.Ed.2d
732 (1984) (herein “Sure-Tan”), the Court of Appeals
held that the passage of the “Immigration Reform and
Control Act of 1986, & U.S.C. §§ 1101 et seg. (1987),
has placed a belated stamp of legitimacy on the district
court’s assumption that Hernandez could remain in the
United States.” (App. B, p. 33a) .
Dianella’s Petition for Rehearing and Suggestion for
Rehearing En Banc challenged the Court of Appeals’
conclusion that the Immigration Reform and Control Act
of 1986, hereinafter “1986 Act”, validated the District
Court’s assumption regarding the award of future wages
and medical expenses. Dianella argued that the 1986
Act was not in effect at the time of the injury or trial
and that the provisions of the 1986 Act demonstrated
Hernandez could not be admitted legally into the United
States. Furthermore, Dianella argued that the Fifth Cir-
cuit’s decision violated constitutional due process. There-
after, the Fifth Circuit requested that Hernandez file a
Response to the Petition for Rehearing; and such Re-
sponse agreed that Hernandez’ immigration status should
be decided on the basis of the decision of the District
Court and not the 1986 Act.
The Court of Appeals’ per curiam opinion dated June
20, 1988, again affirmed the award of damages on the
basis of United States future wages and medical expenses,
but the Court of Appeals changed its legal analysis from
its opinion dated March 30, 1988. The Court of Appeals’
10
per curiam opinion dated June 20, 1988, determined
(1) that the principle in Sure-Tan, supra, was limited
to labor cases and did not apply to an action under
33 U.S.C. §905(b), and (2) that Dianella had the
burden of proof to show “that Hernandez was about
to be deported or would surely be deported” to sustain
its position that future damages should be based on
wages and medical expenses in Mexico.
REASONS FOR GRANTING WRIT
The opinion of the Court of Appeals should be re-
viewed because it is in direct conflict with the prior deci-
sion of this Court in Sure-Tan, supra, and the immigration
laws of the United States. The Court of Appeals refused
to apply the legal principle in Sure-Tan that an illegal
alien cannot recover United States future damages until
the illegal alien demonstrated his legal right to remain
in the United States because this was a longshore case
under 33 U.S.C. § 905(b), and not a labor case under
29 U.S.C. § 158, et seg. Nevertheless, the Court of
Appeals failed to recognize the legal and policy basis
of the Sure-Tan decision to insure consistency between
the application of the immigration laws and the labor
laws of the United States; and this same principle applies
in insuring consistency in the application of other Federal
statutes, including 33 U.S.C. § 905(b), with the immi-
gration laws of the United States. Furthermore, the
decision of the Court of Appeals to transfer the burden
of proof to Petitioner to show “that Hernandez was
about to be deported or would surely be deported” is
an error of law; and such legal determination is in-
consistent with the immigration laws and Sure-Tan.
11
The opinion of the Court of Appeals should be re-
viewed because such decision improperly authorized the
Federal Court to determine an illegal alien’s right to
remain in the United States or be deported when such
decision is in the exclusive province of the executive
branch of the government. The District Court should have
granted Petitioner’s motion and referred the illegal alien
to the Immigration Service if the District Court found
that Hernandez intended to remain in the United States
illegally after his rehabilitation. By this decision, the
District Court and the Court of Appeals have approved
the violation of the immigration laws by rewarding such
illegal alien for his illegal activity. Furthermore, the
decision of the Court of Appeals in refusing to refer
the illegal alien to the immigration service for a deter-
mination of his legal status permits encroachment by the
judiciary in an area committed to executive discretion.
Hence, the decision of the Court of Appeals has approved
the departure from the anticipated and usual judicial
and administrative proceedings so as to require the exer-
cise of this Court’s power of supervision in order to
insure consistency in the application of the immigration
laws and to remove the judiciary from the determination
of an illegal alien’s status under the immigration laws
of the United States.
1. The opinion of the Court of Appeals should be
reviewed because it is in direct conflict with the
prior decision of this Court in Sure-Tan v.
N.L.R.B., 467 U.S. 883, 104 S. Ct. 2803, 81 L.Ed.
2d 732 (1984) and the immigration laws of the
United States.
Increasingly, illegal aliens are pursuing legal remedies
in reliance upon the state and federal laws with regard
12
to personal injury, unfair labor practice, property dam-
age, etc. Thus, the judiciary is placed in the delicate posi-
tion of enforcing the rights of the illegal alien in accord-
ance with constitutional due process while at the same
time upholding the immigration laws of the United States
in its legal decisions. In this regard, Hernandez was en-
titled to pursue a cause of action against the vessel owner
in accordance with 33 U.S.C. §905(b) and recover
proper damages in accordance with Jones & Laughlin
Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S. Ct. 2541,
76 L.Ed.2d 768 (1983). Nevertheless, since Hernandez
was an illegal alien without any right to remain in the
United States, the award of damages for his continued
violation of the law of the United States in the decision
of the Court of Appeals cannot be sustained. Further-
more, the enforcement of the immigration laws in this
case will not lead to any hardship because Hernandez
secured a generous monetary recovery for his injuries;
and, if he cannot establish his legal right to remain in the
United States, then the award of future Mexican medical
expenses and wages will treat Hernandez fairly and in the
same manner as any other illegal alien. In addition, this
decision provides a vehicle for the Court to clarify the
obligation of the judiciary to enforce the immigration
laws of the United States and to require an illegal alien
to prove his legal right to remain in the United States
to obtain future damages in a cause of action governed
by Federal law in accordance with Sure-Tan.
Congress and the country have recognized for some
time that the enforcement authority provided by the Act
has been somewhat ineffective in stemming the tide of
rising illegal immigration into the southwest part of the
United States from Mexico because of the higher wages
available to Mexican citizens in the United States. In
13
fact, these are the very factors which led Congress to
pass the Immigration Reform and Control Act of 1986,
and the legislative history demonstrates that the primary
purpose of the legislation was “to close the back door
on illegal immigration so that the front door on legal
immigration may remain open” by curtailing further
illegal immigration through employer sanctions. H.R. Rep.
No. 682(1), 99th Cong., 2d Sess., reprinted in 1986
U.S. Code Cong. & Admin. News 5649, 5650. There-
fore, the decisions of the lower courts should demon-
strate a commitment to enforce the immigration laws of
the United States in the same manner as required by
Sure-Tan, but the decision of the Court of Appeals ap-
proves the District Court’s disregard for such laws in the
litigation of a federal cause of action.
The opinion of the Court of Appeals dated March 30,
1988, accepted Dianella’s position that Sure-Tan, supra,
required Hernandez, as an illegal alien, to prove his right
to remain in the United States legally before he could
recover future damages on the basis of wages and medical
expenses in the United States; however, the lower court
affirmed the award of the District Court because the Im-
migration Reform and Control Act of 1986 allowed
Hernandez to remain in the United States legally. Never-
theless, after consideration of Dianella’s Petition for Re-
hearing and Suggestion for Rehearing En Banc, the Court
modified the prior opinion in its per curiam opinion dated
June 20, 1988, as follows:
“Part B(ii) of this Court’s opinion of March 30,
1988, 841 F.2d 582, which concluded that Her-
nandez had demonstrated his eligibility for perma-
nent resident status under the Immigration Reform
and Control Act, was improper and that part of our
opinion is hereby withdrawn... .”
(App. C, p. 44a)
14
The basis of the per curiam opinion in awarding an
illegal alien future U. S. wages and medical expenses was
the determination by the Court of Appeals that Sure-Tan
did not apply to the cause of action by an illegal alien
under the LHWCA, 33 U.S.C. § 905(b), as follows:
“As a private citizen, Dianella’s relationship to Her-
nandez is not the same as the plaintiffs’ relationship
to their employer in Sure-Tan, in which a back-pay
remedy applied by the National Labor Relations
Board was found to implicate labor policy con-
siderations.”
(App. C, p. 46a)
Therefore, although the Court of Appeals agreed that an
illegal alien could not recover future United States wages
under the labor laws unless he established his legal
presence in the United States, the Court of Appeals held
that Dianella had the burden of proof to show the illegal
alien “was about to be deported or would surely be de-
ported” to deny recovery of future United States wages
and medical expenses in a cause of action under the
Longshore & Harbor Workers’ Compensation Act. (App.
C, p. 46a)
Although Dianella did not introduce evidence that
Hernandez would definitely be deported, Dianella clearly
established by the evidence and the case law that Her-
nandez was an illegai alien in violation of the laws of
the United States by his presence in the United States
at the time of the injury and at the time of trial; and
Hernandez could only remain in the United States if he
continued to evade detection by the Immigration Service.
The undisputed evidence demonstrated that he had been
deported on numerous occasions; that his wife and child-
ren resided permanently in Mexico; that Hernandez peri-
15
odically visited his family in Mexico; that all his children
in Mexico had been born while he worked in the United
States; and the Immigration Service allowed his wife to
enter the United States on a visitor’s visa until Hernandez
was rehabilitated and could return to Mexico. Neverthe-
less, the District Court relied only on Hernandez’ desire
to remain in the United States to award damages on the
basis of U. S. wages and medical expenses.
The Court of Appeals’ decision erroneously limited the
application of this Court’s decision in Sure-Tan to cases
involving the labor laws of the United States. Neverthe-
less, this Court’s opinion in Sure-Tan clearly shows that
the burden is on the illegal alien to prove his legal pres-
ence in the United States because of the immigration laws
of the United States. The pertinent part of the Sure-Tan
decision is as follows:
“Nonetheless, as the Court of Appeals recognized,
the implementation of the Board’s traditional reme-
dies at the compliance proceedings must be condi-
tioned upon the employees’ legal readmittance to the
United States. In devising remedies for unfair labor
practices, the Board is obliged to take into ac-
count another ‘equally important Congressional ob-
jective,’ Southern S.S. Co. v. N.L.R.B., 316 U.S. 31,
47, 86 L.Ed. 1246, 62 S. Ct. 886 (1942)—to-wit,
the objective of deterring unauthorized immigration
that is embodied in the INA. By conditioning the
offer of reinstatement on the employees’ legal re-
entry, a potential conflict with the INA is thus avoid-
ed. Similarly, in computing backpay, the employees
must be deemed ‘unavailable’ for work (and the ac-
crual of backpay therefore tolled) during any period
when they were not lawfully entitled to be present
and employed in the United States... .”
467 US. at 903, 81 L.Ed.2d at 750.
16
Sure-Tan is consistent with the immigration laws of
the United States in placing the burden on the illegal
alien to prove that he is entitled to be admitted into
the United States in order to obtain future damages.
8 U.S.C. § 1361. In contrast, the decision of the Court
of Appeals improperly shifted the burden of proof to
Petitioner to demonstrate “that Hernandez was about to
be deported or would surely be deported” contrary to
the burden of proof imposed on Hernandez by the Sure-
Tan decision and the immigration laws. 8 U.S.C. § 1361.
Hernandez’ intent to remain in the United States is ir-
relevant in determining his legal status, and such intent
is only relevant in determining that Hernandez would
continue his illegal activities in violation of the immigra-
tion laws. In fact, the decision of the lower courts and
this Court clearly establish that the law requires a pre-
sumption that public officials will properly enforce the
law. See F.C.C. v. Shreiber, 381 U.S. 279, 85 S. Ct.
1458, 14 L.Ed.2d 383 (1965); Parsons v. U.S., 670
F.2d 164, 229 Ct. Cl. 335 (1982). This presumption
is consistent with the burden of proof on Hernandez to
establish his legal right to remain in the United States
because the law presumes that the Immigration Service
will apprehend and deport Hernandez. Therefore, the
Court of Appeals erred as a matter of law in transferring
the burden of proof to Petitioner in affirming the incorrect
District Court’s determination that Hernandez was entitled
to recover future United States wages and medical ex-
penses.
In conclusion, in Sure-Tan, this Court ruled that an
illegal alien could not recover future United States wages
until he proved his legal right to remain in the United
States and the purpose of such decision was to avoid a
ieee aiiiiliNE
17
conflict between the immigration laws and another fed-
eral law. Although Sure-Tan is a labor case, Dianella
respectfully submits that Sure-Tan requires Hernandez
to bear the burde of proof to establish his legal status;
and the per curiam opinion of the Court requiring Dia-
nella to prove “that Hernandez was about to be deported
and would surely be deported” is inconsistent with Sure-
Tan and the Congressional objectives in the immigration
laws of the United States. Therefore, the decision of the
Court of Appeals destroys the consistency in the appli-
cation of the immigration laws with other federal laws,
such as the LHWCA, 33 U.S.C. § 905(b); and this
Court should review the decision of the Court of Appeals
to insure consistency in the application of the rights of
litigants under federal law.
2. The opinion of the Court of Appeals should be
reviewed because it erroneously establishes the
authority of the District Court to determine an
illegal alien’s right to remain in the United States
or to be deported even though Congress has
assigned such determination exclusively to the
executive branch of government.
The power to regulate the immigration of aliens into
the United States is unquestionably a federal power.
De Canas v. Bica, 424 U.S. 351, 96 S. Ct. 933, 47
L.Ed.2d 43 (1976). The Immigration and Nationality
Act, 8 U.S.C. §§ 1101, et seqg., provides for the legal
entry of aliens into the United States. The Attorney
General has the responsibility and authority to enforce
the immigration laws with regard to the legal admission
or deportation of aliens. 8 U.S.C. § 1103. The executive
branch of the government, through the Immigration
Service, has the power to fashion necessary policies to
tates
18
protect the borders and to insure the orderly entrance
or deportation of aliens. Jean v. Nelson, 711 F.2d 1455
(Sth Cir. 1983), aff'd, 472 U.S. 846, 105 S. Ct. 2992,
86 L.Ed.2d 664 (1985). In this connection, 8 U.S.C.
§ 1105a provides the judiciary a limited and exclusive
function to review orders of deportation and exclusion.
Nevertheless, the Immigration and Nationality Act, 8
U.S.C. §§ 1101, et seg., does not authorize the judiciary
to make any determination in the first instance of whether
an illegal alien is entitled to remain in the United States
or should be deported. Congress has invested this au-
thority exclusively in the executive branch and specifi-
cally in the Immigration Service. 8 U.S.C. § 1252(b)
provides that the procedure adopted by the Immigration
Service “shall be the sole and exclusive procedure for
determining the deportability of an alien.” Likewise, this
Court’s decision in Landon v. Plasencia, 459 U.S. 21,
103 S. Ct. 321, 74 L.Ed.2d 21 (1982) reaffirms the
authority of the Immigration Service for determining
deportability or exclusion of illegal aliens.
Since a determination with regard to Hernandez’ legal
right to remain in the United States was necessary to the
decision of the District Court, then the District Court
should have referred Hernandez to the Immigration
Service in accordance with Dianella’s request. The opinion
of the Court of Appeals affirmed the District Court’s
finding of damages on the basis of United States wages
and medical expenses because Petitioner failed to meet
its burden of proof to show “that Hernandez was about
to be deported or would surely be deported.” Neverthe-
less, Congressional enactments and previous decisions of
this Court establish that the question of Hernandez’ right
to remain in the United States or be deported to Mexico
19
is exclusively in the jurisdiction of the Immigration
Service and not the judiciary. Likewise, 8 U.S.C. § 1361
clearly provides that the illegal alien has the burden of
proof to establish his legal right to remain in the United
States.
Although the decision of the Court of Appeals might be
distinguished on the basis of a determination of the damage
issue, the decision of the Court of Appeals involves the judi-
ciary in determinations with regard to the immigration laws
of the United States, when such laws have been committed
to the discretion of the executive branch of the govern-
ment. Furthermore, the decisions of the District Court
and Court of Appeals raise serious questions concerning
the commitment of the judiciary to enforce the immigra-
tion laws of the United States. Although the District
Court may not agree with the immigration law, the
District Court had the legal duty to enforce the existing
law and to refer Hernandez to the Immigration Service
for a determination of his legal status if the District
Court accepted his testimony that he intended to remain
in the United States in violation of the immigration laws.
The opinion of the District Court and the Court of
Appeals has placed the judiciary in the position of con-
doning the alien’s illegal activity when the alien testified
live in a United States Court that he had violated the
law and intended to continue to violate the law until
the Immigration Service apprehended him and returned
him to Mexico.
This case was tried by the District Court sitting in the
Federal Building in Houston, Texas, and the Immigration
Service had its regional office in the same building. The
evidence was developed that Hernandez was an illegal
—
20
alien without any valid basis for remaining in the United
States. The District Court did not refer Hernandez to
the Immigration Service on its own initiative, and the
District Court refused Dianella’s request that the Court
refer Hernandez to the Immigration Service for deter-
mination of his status as a prerequisite to the award of
United States future wages and medical expenses. This
was clearly an error. The District Court in the first in-
stance and the Court of Appeals in the second instance
should have stayed their decisions as to damages pending
determination of Hernandez’ status by the Immigration
Service. Carnation Co. v. Pacific Westbound Conference,
383 US. 213, 383 U.S. 932, 86 S. Ct. 781, 15 L.Ed.2d
709 (1966); Nader v. Allegheny Airlines, Inc., 426
U.S. 290, 96 S. Ct. 1978, 48 L.Ed.2d 643 (1976);
Weinberger v. Bentex Pharmaceuticals, Inc., 412 US.
645, 93 S. Ct. 2888, 37 L.Ed.2d 235 (1973). In addi-
tion, the District Court rejected the legal argument that
Hernandez’ entitlement to remain in the United States
should be judged on the basis of the immigration laws
of the United States.
The obligation of the judiciary to uphold and enforce
the immigration laws of the United States in the circum-
stances of this case is illustrated by the duty of private
citizens under criminal laws regarding illegal immigration.
8 U.S.C. § 1324(a)(1)(C) makes it a criminal offense
if any person “knowingly or in reckless disregard of the
fact that an alien . . . remains in the United States in
violation of the law, conceals, harbors, or shields from
detection, or attempts to conceal, harbor, or shield from
detection any alien in any place... .” The term “shields”
has been interpreted to apply to activities by any person
who substantially assists or facilitates the alien in re-
21
maining in the United States illegally. United States v.
Cantu, 557 F.2d 1173 (Sth Cir. 1977), cert. denied,
434 U.S. 1063, 98 S. Ct. 1236, 55 L.Ed.2d 763 (1978).
See United States v. Pereira-Pineda, 721 F.2d 137 (Sth
Cir. 1983); United States v. Lopez, 521 F.2d 437 (Sth
Cir.), cert. denied, 423 U.S. 995, 96 S. Ct. 421, 46
L.Ed.2d 368 (1975). Furthermore, 8 U.S.C. § 1324
(a)(1)(D) makes it a criminal offense if any person
“encourages or induces an alien to reside in the United
States, knowingly or in reckless disregard of the fact
that such . . . resident is or will be in violation of the
law.”
Of course, Petitioner does not contend that the District
Court or the attorneys representing either party were in
violation of the criminal statutes of the United States
for not reporting Hernandez to the Immigration Service.
Nevertheless, Petitioner does contend that the judiciary
has an obligation to enforce the laws of the United States
and cannot disregard illegal activity when such illegal
activity is committed and continues in the courtrooms of
the United States in the litigation of any case. For ex-
ample, if a witness admits that he committed perjury
in a trial in the Federal Court, then the federal judge
should not refuse to refer the admitted perjurer to ap-
propriate authorities for possible criminal charges. There-
fore, this Court should grant the Petition for Writ of
Certiorari to correct the actions of the lower court in
refusing to apply the immigration laws of the United
States and to insure that the federal judiciary enforces
the immigration laws instead of condoning and rewarding
such violations with significantly increased damages on
the assumption that the illegal alien will be able to con-
tinue to violate the immigration laws of the United States.
22
CONCLUSION :
The decision of the Court of Appeals should be re-
viewed because such decision is inconsistent with the
decision of this Court in Sure-Tan v. N.L.R.B. Sure-
Tan establishes that the immigration law requires the
illegal alien to prove his legal right to remain in the
United States as a prerequisite for the award of future
United States damages in a cause of action under federal
law, and this Court’s decision in Sure-Tan is not limited
to labor cases. Therefore, the Court should grant this
Writ of Certiorari for the purpose of correcting the deci-
sion of the lower court, which refused to apply the policy
reasoning and principle in Sure-Tan because this case is
not a labor case. Furthermore, the decision of the District
Court in finding that Hernandez intended to remain in
the United States in violation of the immigration laws
and then awarding United States future wages and medical
expenses is inconsistent with the enforcement of the
immigration laws of the United States. The District Court
shouid have referred Hernandez to the Immigration
Service on its Own initiative or in response to Dianella’s
request for determination of Hernandez’ legal right to
remain in the United States as a prerequisite for awarding
future United States wages and medical expenses. Never-
theless, by the decision of the Court of Appeals in ap-
proving the action of the District Court, the Court of
Appeals “has so far departed from the accepted and
usual course of judicial proceedings, or so far sanctioned
such a departure by a lower court, as to call for an
exercise of the Court’s power of supervision” in accord-
ance with Supreme Court Rule 17. Therefore, for these
23
reasons, the Petition for Writ of Certiorari should be
granted.
Respectfully submitted,
By: nee ="
KENNETH D. KUYKENDALL
Attorney for Petitioner
Dianella Shipping Corporation
Of Counsel:
ROYSTON, RAYZOR, VICKERY & WILLIAMS
2200 Texas Commerce Tower
Houston, Texas 77002
(713) 224-8380
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Petition
for Writ of Certiorari has been mailed, certified mail,
return receipt requested to Appeilee’s attorney, Stephen
Hanks, Esq., Helm, Pletcher, Hogan, Bowen & Saunders,
America Tower, 2929 Allen Parkway, Suite 2700, Hous-
ton, Texas 77019-2120, and to Intervenor’s attorney,
Gray Miller, Esq., Fulbright & Jaworski, 1301 McKinney
Street, Houston, Texas 77010, on this \AYtW. day of
October, 1988.
eee es ON lt
OF RoysTON, RAYZOR, VICKERY
& WILLIAMS
APPENDIX
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APPENDIX A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CIVIL ACTION NO. H-83-5731
ALEJANDRO HERNANDEZ
Vv
M/V RAJAAN, her engines, tackle, etc., in rem,
and DIANELLA SHIPPING CORP:
v
ISHIKAWAJIMA-HARIMA HEAVY INDUSTRIES,
LTD.; CARGILL, INC.; BRAZOS RIVER HARBOR
NAVIGATION DISTRICT; AFFILIATED RICE
MILLS; TRANS OCEAN AMERICA, INC.;
LANGSTON COMPANIES, INC., CONTINENTAL
BAG DIVISION; AMOCO FABRICS CO.; EURO
GRAIN TRADING, LTD.; GENERAL PRODUCE
AND FIBRES, LTD; WEST TEXAS RICE CO.;
O.J.I. SEIKE-KOGYO KABASHIKI KAISHA; and
SYNTHETIC INDUSTRIES TEXAS, INC.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This cause having been tried upon the facts without a
jury, the Court hereby enters the following Findings of
Fact and Conclusions of Law, pursuant to Rule 52(a),
F. R. Civ. P.
FINDINGS OF FACT
1. Plaintiff Alejandro Hernandez is a thirty-two year
old Mexican citizen who was employed as a longshore-
man by Young & Company, a contracting stevedore,
when he was injured working aboard the M/V RAJAAN
on September 21, 1983, near Freeport, Texas.
2a
2. The M/V RAJAAN is a combination bulk carrier,
general cargo ship of Liberian registry which was owned
by Defendant (and Third-party Plaintiff) Dianella Ship-
ping Corporation (“Dianella”) on September 21, 1983.
The ship has six cargo holds, and it is equipped with
hydraulic winches which serve these holds. The winches
have a hydraulic remote control system to allow opera-
tion of both winches by a single worker. The winches
and remote control system are located atop the vessel’s
mast houses.
3. Third-party Defendant Ishikawajima-Harima Heavy
Industries Company, Ltd. (“IHI’) is the Japanese com-
pany which built the M/V RAJAAN and manufactured
the hydraulic winches.
4. Third-party Defendant O.J.I. Seiki-Kogyeo Kaba-
shiki Kaisha (“OJI’) is the Japanese corporation which
made the Marol Hydraulic Remote Control System (“the
remote control”) installed onboard the M/V RAJAAN.
IHI purchased the remote control from OJI for use on
the vessel.
5. Third-party Defendant Affiliated Rice Mills (“Af-
filiated”) is a successor in interest to Third-party De-
fendant West Texas Rice Company, for all purposes of
this lawsuit. Affiliated is a business located in Alvin,
Texas which mills and bags rice for shipment overseas.
6. Affiliated used polypropylene sacks for the ship-
ment of rice aboard the M/V RAJAAN during the time-
frame material to this lawsuit. At its plant, Affiliated
filled the polypropylene sacks with rice and stowed them
on wooden pallets in a cross-tiered, interlocking fashion.
The pallets were then placed aboard flatbed trucks by
—
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forklift machines for transport to the port of Freeport,
Texas. Each bag weighed 50 kilos (110 pounds). Each
pallet contained thirty bags, stacked six to a row by five
rows high.
7. Third-party Defendant Langston Companies, Inc.,
Continental Bag Division (“Langston”) is a manufactur-
ing business located in Crawley, Louisiana. Langston
manufactured the polypropylene bags in question and sold
them to Affiliated.
8. Third-party Defendant Cargill, Inc. (“Cargill”)
originally purchased the rice from Affiliated for resale
to the government of Iraq. The Iraqi government rou-
tinely issues “rice tenders” for specified quantities of rice
from American traders. These tenders specify that the
rice is to be packaged in single 50-kilo polypropylene
bags.
9. Cargill purchased the rice from Affiliated on an
F.A.S. basis. Cargill specified that the rice be packaged
in accordance with the Iraqi tenders.
10. Cargill subsequently sold the rice shipment to
Third-party Defendant Euro Grain Trading, Ltd. (“Euro-
grain”), another rice trading company, in August, 1983.
Eurograin thereafter chartered the M/V RAJAAN from
Dianella. Eurograin owned the rice shipment at the time
of Plaintiff's injury.
11. Third-party Defendant Brazos River Harbor Navi-
gation District (“Brazos”) is a governmental authority
which provided the M/V RAJAAN with berthing, water
and other necessities from September 19 through Sep-
tember 23 of 1983. Defendant Dianells agreed to abide
by the rules and regulations promulgated by Brazos in
its tariff,
4a
12. The rice bags were palletized by Affiliated on
wooden pallets provided to it by Brazos. Affiliated then
shipped the rice by truck to warehouse facilities at the
port of Freeport for storage pending overseas shipment.
The warehouses were owned and operated by Brazos.
13. Third-party Defendant Trans Ocean America was
dismissed from the case by this Court on October 5,
1984 for failure to state a claim against it. Third-party
Defendant General Produce and Fibres, Inc. was simi-
larly dismissed on January 25, 1985. Dianella orally
moved to non-suit its claims against Third-party Defend-
ants Amoco Fabrics Company and Synthetic Industries
Texas, Inc. Accordingly, the claims against these De-
fendants will be dismissed by the Court.
14. Intervenor Texas Employers’ Insurance Associa-
tion was the insurance carrier for Plaintiff's employer at
the time of Plaintiffs injury. Intervenor has paid
(through the time of trial) at least $159,585.91 in com-
pensation and medical benefits on Plaintiff's behalf.
15. The M/V RAJAAN commenced its voyage in
Honduras and was en route to Aqaba, Jordan, with inter-
mediate calls at Freeport, Texas and Pensacola, Florida
to load rice cargo for delivery in Jordan. The vessel
docked in Freeport on September 19, 1983 with its star-
board side to the berth’s dock.
16. The ship began loading palletized sacks of rice
into various cargo holds, including the No. 2 hold, at
about 1:00 p.m. on September 20, 1983, using the ship’s
winches.
17. The cargo winch on the starboard side of the
forward end of the No. 2 hold began malfunctioning
i tearraeeeenneieieiel
Sa
near the outset of cargo loading operations. The winch
would slow down or stop unexpectedly while palletized
rice bags were being loaded onboard the vessel.
18. The cargo winches were rigged in a so-called
“union purchase” arrangement, meaning that both the
port and starboard winches at each hatch were attached
to the palletized loads. Each load would be hoisted up
from the dock and then moved horizontally to a position
over the hatch. This manuever was accomplished by let-
ting out (lowering) the starboard winch and raising
(heaving) the port winch. The port winch would prop-
erly continue to heave when the starboard winch oc-
casionally slowed or stopped, resulting in a jerking motion
or swing of the pallet as it was being moved over the
deck.
19. Two longshoremen operated the winches for the
No. 2 hold, each one of them operating it for an hour
at a time. In the middle of the afternoon on September
20, 1983, the operator notified his foreman that the No. 2
starboard winch was not working properly. The steve-
dore’s walking foreman, who supervised the loading
operation on board the vessel, in turn notified the ship’s
crew. The crew, supervised by the second engineer, added
hydraulic fluid to the wayward winch by means of a
hand pump. The ship’s crew then announced that the
winch had been repaired and that loading operations
should resume.
20. The problems with the No. 2 starboard winch
continued intermittently on September 21, 1983. Several
complaints were lodged with the ship’s crew by the
walking foreman pertaining to these difficulties. The crew,
on two occasions, again added hydraulic fluid by using
6a
a hand pump on September 21, 1983. On each of these |
occasions, the ship’s crew sent the longshoremen back
to work after pronouncing the winch to be sound.
21. The second occasion for the adding of the fluids
on September 21 occurred less than one hour before the
incident which caused Plaintiff's injury.
22. At about 4:00 p.m. on September 21, 1983, the
winch operator working the No. 2 hold was moving a
pallet of bagged rice over the cargo hold. The starboard
winch abruptly stopped, causing the pallet to jerk and
begin swinging just as it passed over the edge of the
hatch. The resultant force of this jerking motion dis-
lodged at least one 110-pound rice bag from the pallet.
The rice bag fell and struck Plaintiff on his upper back.
23. The Plaintiff was working as a longshoreman at
the time of the injury, and had been employed as a long-
shoreman for the three years immediately preceding his
injury.
24. The Plaintiff was rendered a permanent T-5 para-
plegic by the rice bag, which landed on his upper back
and fractured his spine. He is completely paralyzed from
the level of the nipple area of his chest downward. The
Plaintiff, now age thirty-two, is confined to a wheelchair
for life. Moreover, he sustained injuries to the left and
right brachial plexus, thereby suffering limited use of,
and diminished sensation in, his arms. He has been
recently diagnosed as having a spinal cyst, which may
or may not cause further medical complications in the
future. Plaintiff has lost both bladder and bowel control,
and he can no longer enjoy sexual relations with his wife.
His formal education is minimal, and the combination
of his severe injuries with his low level of schooling and
a TT
ee ee Se
Ta
training leaves him unemployable. Moreover, his limited
intellectual skills make it difficult for him to compensate
for the loss of his physical abilities.
25. There is some evidence that the operators were
operating the winches in a rough manner when they
began loading operations on September 20. This problem
was apparently resolved, however, during the early after-
noon of the 20th, after the operators’ supervisor ad-
monished them at the request of the ship’s officers.
Further, a member of the ship’s crew stated that he
observed the winch operators for the No. 2 hold during
the day of the accident (the 21st) and that they were
operating the winch in a proper manner. Based on the
foregoing, and on the other evidence heard at trial, the
Court finds that Plaintiff's injury was not caused by any
negligence or fault on the part of the winch operators.
26. The Court finds that the Plaintiffs injury was
caused by the malfunction of the starboard winch control
discussed earlier. This malfunction was the same problem
brought to the attention of the vessel’s crew and officers
on several prior occasions.
27. The crew and officers of the M/V RAJAAN, in-
cluding the second engineer (who was primarily respon-
sible for maintenance and repair of the ship’s winches),
had actual knowledge, prior to the incident which caused
Plaintiff's injuries, that the winch was malfunctioning.
Further, as noted above, the crew and officers not only
had actual knowledge that the longshoremen would con-
tinue to load cargo and to use the malfunctioning winch,
they told the longshoremen on three occasions that the
winch had been repaired and that loading operations
should resume.
8a
28. Based on the foregoing, the Court finds that the
ship’s officers and crew breached the duty owed to the
longshoremen to remedy the hazard. By failing to either
fully and competently repair and maintain the winch
or else take it out of service, the officers and crew negli-
gently breached their duty, and such negligence caused
the Plaintiffs injury.
29. Plaintiff was an experienced longshoreman. He
knew, or reasonably should have known, that he should
not have remained in the area of the open hatch square
as palletized cargo was being moved over it. A warning
shout was given by the winch operator as the load
neared the hatch square, as was usually done, and Plain-
tiff failed to move quite as quickly in response to the
warning as he reasonably should have. This failure is
mitigated by the fact that he was still in the process of
unloading the previous pallet when the warning came
and by the fact that his path to safety was somewhat
impeded by the presence of that pallet.
30. The winches onboard the vessel did not have any
design, manufacturing or marketing defects. The winches
were not unreasonably dangerous.
31. The remote control had no defects in marketing,
design or manufacture. It was not unreasonably dan-
gerous.
32. IHI and OJI provided adequate warnings and
instructions to the vessel’s crewmembers and the steve-
dore’s employees concerning appropriate methods for
maintaining the winches and remote control and for
correcting such operational or mechanical problems as
were reasonably foreseeable under the relevant circum-
stances.
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33. The Court finds that neither [HI nor OJI com-
mitted any acts or omissions which constitute negligence.
Further, no facts have been shown to establish liability
for the design, manufacture, or marketing of defective
or unreasonably dangerous products. Finally, neither OJ]
nor IHI breached either express or implied warranties
of any sort.
34. Affiliated (the successor to West Texas Rice
Company) palletized the rice bags using practices which
are customary in the pertinent industry. Dianella con-
tends that Affiliated was negligent, in that the bags were
not secured to the pallet by means of slings, stretch-
wrapping or shrink-wrapping. The Court does not concur
with this contention. Approximately 98% of all rice
cargoes are shipped within and from the United States
in, precisely the manner used by Affiliated. Further, the
additional methods of pre-slinging and the like are not
economically feasible or functionally practicable for the
handling of such cargoes. The Court finds that Affiliated
palletized the rice bags in a manner consistent with ordi-
nary prudence. Affiliated’s conduct was reasonable and
non-negligent in light of the relevant circumstances.
35. Dianella contends that the polypropylene bags
were defective or were negligently manufactured by
Langston. The gist of this argument is that the bags
were too slippery to be safe. The argument is without
merit. There is no evidence that the bags failed to meet
applicable governmental standards or failed to comply
with the specifications of the party (or parties) re-
sponsible for ordering the bags. Dianella has shown no
defect in the design, manufacture or marketing of the
polypropylene sacks, nor is there sufficient evidence to
support a finding of any negligence on the part of Langs-
10a
ton. Langston breached no warranty, either express or
implied.
36. The decision to use polypropylene bags for the
cargo of rice was reasonable and non-negligent. Further,
the decision comported with established industry prac-
tices. The Court can discern no facts upon which it could
find that the Third-party Defendants Cargill, Eurograin,
or Brazos either acted negligently or negligently failed
to do some act required of them by any cognizable duty.
Similarly, these Defendants breached no warranty of any
sort, and they committed no acts upon which a theory
of strict liability could be sustained.
37. The Court finds that Plaintiffs injuries were proxi-
mately caused by the concurrent negligence of Defendant
Dianella and the Plaintiff. This negligence must be ap-
portioned.
38. The Plaintiff's negligence essentially consists of
a split-second of ill-timing. Another step or two toward
the safety area of the cargo hold would have prevented
the accident. When the rather slight magnitude of this
factor is combined with the mitigating circumstances sur-
rounding Plaintiff's negligence (discussed earlier), it is
reasonable to find that the percentage of fault attributable
to the Plaintiff is 5%. The remaining 95% must be
assessed against Dianella. The Court therefore finds that
Plaintiff was 5% at fault and that Defendant Dianella
was 95% at fault.
39. The Court finds that Plaintiff is permanently and
totally disabled, and he will not obtain gainful employ-
ment during the remainder of his natural life.
40. The Court finds that, in all reasonable prob-
ability, the Plaintiff will be permitted to continue re-
lla
siding in the United States for an indefinite period;
and, he will receive medical and attendant care here
for the foreseeable future. He intends to reside here
permanently.
41. We must determine the present value of Plaintiff's
future economic losses by use of the below-market dis-
count rate method. This method represents the real rate
of after-tax dollars with adjustments for future inflation.
The below-market discount rate is applied to the projected
income stream of the Plaintiff. The income stream is
based on a consideration of past wages, productivity,
fringe benefits, and the reasonably anticipated wage in-
creases which will result from all factors other than
inflation. In the instant case, we begin by considering
Plaintiff's past wages. Plaintiff was earning $14.00 per
hour at the time of his injury. He was a “casual” worker
on the docks, meaning that his employment was not
as steady as those longshoremen who had more seniority
than Plaintiff. As a result of this “casual” status, his
gross income for the years preceding the incident causing
his injury was somewhat less than might be expected
for a worker making $14.00 per hour. Specifically, his
income in 1980 was $8,341.00; in 1981, it was $8,634.00;
and in 1982, it was $6,500.00. (The injuries occurred
in 1983.)
42. If Plaintiff had not been injured, it is more likely
than not that he would have continued working as a
longshoreman. He would have gained seniority and thus
would have enjoyed increased work-hours. Further, his
increased experience would have resulted in increased
job productivity.
43. Based on a consideration of the testimony of Dr.
Everett Dillman, an economist, concerning the relevant
12a
factors which should produce a reasonable below-market
discount rate, the Court finds that the applicable dis-
count rate lies between 1% and 1%%.
44. Dr. Dillman presented competent and reliable
evidence on the wage increases Plaintiff would have re-
ceived due to non-inflationary factors, including produc-
tivity. He compared wage increases in the general work
force to yearly earnings on tax-free municipal securities
for the years 1947 through 1983. Since inflation gene-
erally has an equal impact on wages and interest rates,
this comparison shows the difference between non-in-
flationary wage increases and the below-market discount
rate. Based on the foregoing analysis, Dr. Dillman con-
cluded that the average increase in wages has been 0.85%
higher than the average yields on tax-free municipal
securities. Hence, subtracting inflation from both sides
of the equation yields a non-inflationary wage increase
which has been 0.85% higher than the “real” interest
(i.e., non-inflationary market interest) which could have
been earned on tax-free municipal securities.
45. The Court finds Dr. Dillman’s historical and eco-
nomic analysis concerning future wage increases and the
application of the discount rate to be highly persuasive.
The result of his analysis is that wages can be expected
to increase in the future by a factor of 0.85% more than
the below-market discount rate. Hence, the Court must
discount future income losses by a factor of negative
0.85% to compute the present value of his lost future
wages.
46. Plaintiff had a work-life expectancy through age
60. Using generally-accepted labor statistics for long-
shoremen, and applying the average annual wage in-
13a
creases as adjusted by proper discount factors, the Court
finds that the present value of Plaintiffs lost future wages
is $800,221.00, including fringe benefits.
47. The next item of pecuniary losses suffered by
Plaintiff concerns household services. The Plaintiff, in all
likelihood, would have performed household services at
an average of ten hours per week through age 72 (his
life expectancy). Multiplying those hours by the federal
minimum wage, and then adjusting the resultant figure
by a discount rate of negative 0.85% yields a present
value for those services of $87,471.00. Plaintiff will be
unable to perform these services and therefore he should
recover reasonable compensation for this loss. The Court
finds that $87,471.00 constitutes a reasonable recovery
for lost household services.
48. Plaintiff incurred reasonable and necessary medi-
cal expenses of $153,472.48 from the date of his injury
through December 1984. (The case was tried in late
January of 1985.) The Court finds that Plaintiff should
recover that amount for his past medical expenses.
49. Based on the testimony of various medical per-
sonnel, including Plaintiff's treating physician, the Court
finds that Plaintiff will incur $10,000.00 per year in
future medical and hospital expenses (exclusive of at-
tendant care and medical commodities) for the rest of his
life. Discounting this amount to present value, and con-
sidering the impact of a 1.67% non-inflationary rate of
annual increases for medical care, the Court finds that
Plaintiff will incur $582,000.00 in future medical and
hospital expenses.
50. The Court heard evidence concerning the exten-
sive degree of attendant care Plaintiff will need in the
l4a
future. Based thereon, and assuming that Plaintiffs physi-
cal condition will not significantly deteriorate over the
years, the Court finds that the cost of Plaintiff's neces-
sary attendant care will be $12,547.60 per year. Using
the same methodologies discussed above, the Court finds
the present value of Plaintiffs attendant care to be $730,-
000.00.
51. Plaintiff will need a number of medical com-
modities throughout the remainder of his life, including
prescription drugs, suppositories, catheters, lotions, plastic
gloves, a wheelchair, a hospital bed, and related items.
The Court finds the present value of these items to be
$152,000.00.
52. A person suffering from paraplegia generally in-
curs utility bills which are as much as 20% above the
normal consumption rate for healthy persons living in
dwellings of similar size. This is so because there is a
greater need to control a paraplegic’s environment so as
to minimize the risks of various medical illnesses which
flow from placing a paraplegic in an uncontrolled envir-
onment. Further, due to bowel and bladder accidents
(for example, catheters frequently loose their proper posi-
tion when used by paraplegics), cleaning and laundering
costs are higher than those found in the general popula-
tion. In order to have any significant mobility outside the
home, a paraplegic needs to use a modified van, a wheel-
chair lift, and other related equipment. The Court finds
that the reasonable costs of the foregoing non-medical
commodities, discounted to present value, to be $465,-
000.00.
53. The total amount of the Plaintiff's pecuniary
losses, discussed in Findings 39 through 52, is $2,969,-
15a
693.48. This amount will adequately compensate the
Plaintiff for his pecuniary damages.
54. Plaintiff has suffered, and will continue to suffer,
physical pain and enormous mental anguish. The Court
has earlier noted the catastrophic nature of Plaintiff's
injuries in Finding 24. After carefully considering the
nature and effects of these injuries, and after having ob-
served the Plaintiff at length in court, this Court has de-
termined that Plaintiff's non-pecuniary losses (i.e., his
pain and suffering) will be adequately compensated by
the award of $1,000,000.00.
55. Plaintiff contends that the evidence would sup-
port the imposition of punitive damages. The Court does
not agree. The crew and officers of the vessel had actual
knowledge of the malfunction in the winch. They tried
to repair it and failed to do so on several occasions. By
failing either to competently repair the winch or else to
take it out of service, they were certainly negligent. Fur-
ther, they knew that the Stevedore relied upon their as-
surances that the winch was fixed and that loading opera-
tions should resume. It is not clear, however, that either
the ship’s engineer or the crew actually knew that their
attempts to repair the winch would not solve the prob-
lem. Further, Plaintiff's contention that the crew merely
“put on a show” when attempting to repair the winch
is not supported by a preponderance of the credible evi-
dence. The fact that, after the incident in question, the
chief engineer may have prevented certain matters con-
cerning the malfunctioning winch from being entered in
the ship’s log does not call for the imposition of punitive
damages. While such behavior is reprehensible, it does
not show reckless, wanton or egregious actions which
16a
proximately caused Plaintiff's injuries. Moreover, Plain-
tiff has not established that the shipowner actually rati-
fied or authorized the negligent conduct of his officers
and crew. The evidence is simply insufficient to support
an award of punitive damages, especially in light of the
pertinent legal standards which will be discussed below.
56. The total amount of Plaintiffs damages is $3,-
969,693.48. When this is reduced by 5% (to account for
Plaintiff's percentage of fault), the result is $3,771,208.-
80. The Court therefore finds that Plaintiff's recoverable
damages amount to $3,771,208.80, together with an
award of prejudgment interest.
CONCLUSIONS OF LAW
1. This is a Rule 9(h) maritime proceeding. The
cause of action is based on 33 U.S.C. § 905(b). The
Court has jurisdiction of the case pursuant to 28 U.S.C.
§ 1333.
2. Generally, a shipowner may rely on the stevedore
to avoid exposing longshoremen to unreasonable hazards.
33 U.S.C. §§ 905(b) and 941; Scindia Steam Navigation
Co. v. De Los Santos, 451 U.S. 156, 170 (1981). The
shipowner is not liable for injuries caused by dangers un-
known to him and about which he had no duty to inform
himself. Scindia, at 172. However, there are circum-
stances in which the shipowner does have a duty to act
where the danger to longshoremen arises from some mal-
functioning of the ship’s gear which is being used in
cargo operations. These circumstances include a situa-
tion where the shipowner should anticipate that the
stevedore will not or cannot correct the danger. /d., at
174-175.
17a
3. A shipowner who has actual knowledge that a
hazardous condition exists due to a malfunction in one
of the ship’s winches which arises during cargo-loading
operations, and who has actual knowledge that the steve-
dore will continue to use the winch in its hazardous con-
dition without remedying the situation, has a duty to the
longshoremen to intervene and either repair the winch
or take it out of service. Webster v. M/V MOOL-
CHAND, 730 F.2d 1035 (Sth Cir. 1984). Even if both
the stevedore and the shipowner are at fault in improp-
erly dealing with such a situation, an injured longshore-
man is entitled to recover the entire amount of his dam-
ages from the shipowner, limited only by the percentage
of any negligence directly attributable to the longshore-
man himself. Jd.; Lopez v. A/S D/S SVENDBORG, 581
F.2d 319 (2d Cir. 1978).
4. If the vessel owner is found to be negligent, the
question of whether the longshoremen-plaintiff was him-
self negligent must also be considered. E.g., Wiles v.
Delta Steamship Lines, Inc., 574 F.2d 1338, 1339 and
cases cited therein (Sth Cir. 1978). If the plaintiff was
also negligent, the admiralty rules of comparative negli-
gence apply. Jd.
5. When the facts of the case are applied to these
authorities, it is clear that Plaintiff may recover the full
amount of his damages from Defendant Dianella, limited
only by the percentage of fault attributable to his own
negligence.
6. The Plaintiff's pecuniary damages, as found by the
Court, comport with the requirements enunciated in Cul-
ver v. Slater Boat Co. (II), 722 F.2d 114 (Sth Cir.
1983) (en banc) concerning the computation of dam-
)
18a
ages for future pecuniary losses discounted to present
value by means of the below-market discount rate method.
7. The award of $1,000,000.00 for pain and suffering
is based on this Court’s observation of the Plaintiff and
our subjective determination of the amount needed to
achieve full compensation, taking into account both the
severity of his injuries and the finding that the award of
pecuniary damages will adequately and reasonably com-
pensate Plaintiff for his medical needs and lost future
earning capacity. See Sosa v. M/V LAGO IZABAL, 736
F.2d 1028, 1035 (Sth Cir. 1984).
8. Defendant Dianella argues that punitive damages
may not be awarded under Section 905(b) of the Long-
shoremen’s Act. There is authority to support this argu-
ment. First, the statutory language of Sec. 905(b) pro-
vides the “exclusive” remedy for injured longshoremen by
allowing recovery “in the event of injury . . . caused
by the negligence of the vessel (emphasis added).” A
strict construction of this language would arguably fore-
close the assertion of a recovery for gross negligence.
Second, at least two courts have held that an action by
a longshoreman against his employer under Sec. 905(a)
for gross negligence cannot lie. Houston v. Bechtel As-
sociates, 522 F.Supp. 1094 (D.D.C. 1981); Garibay v.
Decker, 331 F.Supp. 1093 (S.D. Tex. 1971). On the
other hand, the statutory language quoted above is not,
in and of itself, dispositive of the issue, and the juris-
prudential reasons for denying a cause of action for gross
negligence against an employer do not necessarily control
the issue of whether such a cause of action could lie
against a shipowner. We have found no cases squarely
on point. The question is apparently an unsettled one.
19a
9. We need not decide whether a claim for gross
negligence will lie against a shipowner under Sec. 905
(b). This is so because, in any event, the Plaintiff has
failed to show evidence which would satisfy established
principles of maritime law for the imposition of punitive
damages. For example, in Jn re Merry Shipping, Inc.,
650 F.2d 622, 625 (Sth Cir. 1981), the Court noted
that punitive damages are available under general mari-
time law where the facts show willful and wanton mis-
conduct by the shipowner himself in the creation or main-
tenance of unseaworthy conditions. Similarly, an award
of punitive damages for failure to pay maintenance and
cure must be grounded on some egergious conduct of the
shipowner exhibiting wanton and intentional disregard
of a seaman’s rights. Harper v. Zapata Off-Shore Co.,
741 F.2d 87, 88 (Sth Cir. 1984). At least one court has
held that “the better rule” is that punitive damages are
not recoverable against a shipowner for the acts of his
vessel’s master unless it can be shown that the owner
ratified or authorized the acts of the master. United
States Steel Corp. v. Fuhrman, 407 F.2d 1143, 1148
(6th Cir. 1959), cert. denied, 398 U.S. 958 (1970).
When the standards of either Merry Shipping, Harper, or
Fuhrman are applied to the facts of this case, it is ap-
parent that the Plaintiff has not established a right to re-
cover punitive damages, assuming arguendo that he may
even make such a claim under Sec. 905(b).
10. The allowance of prejudgment interest lies within
the discretion of the admiralty trial judge. Its allowance
in maritime cases is the rule, rather than the exception.
Webster, supra, at 1040-1041 and cases cited therein.
The Court therefore exercises its discretion to award
Plaintiff prejudgment interest at the rate of 9% per
20a
annum from September 21, 1983 (the date of the injury)
to the date judgment is entered herein.
11. The Court concludes that Plaintiff is entitled to
judgment against the M/V RAJAAN, in rem,’ and De-
fendant Dianella Shipping Corporation in the amount of
$3,771,208.80, together with post-judgment interest at the
rate of 9% per annum.
12. The Court concludes that Dianella is not en-
titled to any recovery from any of the Third-party De-
fendants. Third-party Defendants Amoco Fabrics Com-
pany and Synthetic Industries Texas, Inc. are hereby dis-
missed from the lawsuit. Judgment on the merits will be
entered for the remaining Third-party Defendants.
13. Intervenor Texas Employers’ Insurance Associ-
ated is subrogated to the rights of the Plaintiff, and is
entitled to recover the first $159,585.91 of any recovery
made by Plaintiff, plus any amounts subsequently paid
by the Intervenor to Plaintiff for compensation and medi-
cal benefits.
14. Finally, Defendant Dianella has raised the ques-
tion of whether it is entitled to limit its liability to the
value of the vessel plus pending freight, pursuant to the
Limitation of Vessel Owner’s Liability Act, 46 U.S.C.
§ 181 et seq. Dianella has submitted an affidavit to the
effect that the value of the vessel is approximately $2,-
400,000.00. No evidence has yet been tendered on the
value of pending freight. (Dianella seeks a separate pro-
ceeding on the Limitation issue.) While the Court has
1. A return of the writ of seizure issued for the vessel was made
herein on September 30, 1983. The Court therefore has in rem
jurisdiction over the ship.
2la
not determined whether Dianella is even entitled to claim
the benefit of the Limitation Act, a substantial question
has been presented which may well affect the validity of
any judgment herein exceeding $2,400,000.00. The issue
must be determined by a post-judgment hearing and rul-
ing thereon. The Court, therefore, deems it necessary to
stay enforcement of a portion of the judgment, pursuant
to Rule 62(b), F. R. Civ. P.
A Final Judgment will be entered in accordance here-
with.
DONE in Houston, Texas, this
1985.
day of August,
/s/ JAMES DeANDA
James DeAnda
United States District Judge
22a
APPENDIX B
Alejandro HERNANDEZ,
Plaintiff-Appellee,
V.
M/V RAJAAN, Etc., and Dianella Shipping Corporation,
Defendants-Third Party Plaintiff-Appellants,
We
ISHIKAWAJIMA HARIMA HEAVY INDUSTRIES,
LTD., Cargill, Inc., et al.,
Third Party Defendants-Appellees.
Alejandro HERNANDEZ,
Plaintiff-Appellee,
V.
M/V RAJAAN, Her Engines, Tackle, etc., in rem,
and Dianella Shipping Corporation,
Defendants-Appellants.
Nos. 85-2608, 87-2044.
United States Court of Appeals,
Fifth Circuit.
March 30, 1988.
Injured longshoreman brought action against ship-
owner and vessel to recover damages for personal in-
juries caused by falling sack of rice. Shipowner and vessel
impleaded third-party defendants, who settled with long-
shoreman. The United States District Court for the
Southern District of Texas, James DeAnda, J., found
shipowner and vessel liable. Shipowner appealed. The
Court of Appeals, Clark, Chief Judge, held that: (1)
23a
shipowner was liable to longshoreman for damages caused
by malfunctioning winch and falling bag of rice; (2)
part-time longshoreman was not entitled to recover lost
wages on basis of average wage rate, compensation for
lost future benefits and seniority, compensation for lost
ability to perform household services, and $446,400 for
transportation expenses but was entitled to $1 million for
pain and suffering; and (3) illegal alien longshoreman
was entitled to damage award based on United States
wage and medical rate.
Affirmed in part, vacated, and remanded.
Edward J. Hennessy, Helm, Pletcher, Hogan, Bowan
& Saunders, Earl B. Austin, Baker & Botts, Houston,
Tex., for Cargill, Inc.
David G. Matthiesen, Funderburk & Funderburk, Hous-
ton, Tex., for Langston Companies, Inc.
Stephen W. Hanks, Timothy H. Pletcher, Houston,
Tex., for Hernandez.
Louis E. McCarter, Richard L. Lagarde, Houston, Tex.,
for Ishikawajima Harima Heavy Industries, Ltd.
Butler & Binion, Walker Beavers, Robert D. Arre-
dondo, Houston, Tex., for Brazos River Harbor Navi-
gation Dist.
Gray H. Miller, Fulbright & Jaworski, Houston, Tex.,
for Texas Employers’ Ins. Ass’n.
John P. Forney, Jr., Houston, Tex., for Ohji Seiki-
Kogyo Kabushiki.
Robert L. Adams, Houston, Tex., for Synthetic In-
dustries, Inc.
24a
Robert MacIntyre, Jr., Houston, Tex., for Euro Grain
Trading, Ltd.
Edward J. Hennessy, Randall D. Wilkins, Houston,
Tex., for Affiliated Rice Mills.
Appeals from the United States District Court for the
Southern District of Texas.
Before CLARK, Chief Judge, BRIGHT* and POLITZ,
Circuit Judges.
CLARK, Chief Judge:
The district court held a vessel owner liable to a long-
shoreman injured while loading palletized bags of rice
into the vessel’s cargo hold. We affirm that court’s judg-
ment of liability and portions of the damages awarded.
We also affirm the rejection of the vessel owner’s limita-
tion of liability defense. We vacate, reverse or modify
certain portions of the damages award we find to be
erroneous.
On September 21, 1983, Alejandro Hernandez was
partially paralyzed while working as a longshoreman
aboard the M/V RAJAAN, a vessel owned by the Dia-
nella Shipping Corp. The RAJAAN had docked in Free-
port, Texas en route to Jordan to take on a cargo of rice.
Hernandez, a thirty-two year old Mexican citizen, was
helping to unload pallets of rice in the cargo hold of
the RAJAAN. One of the hydraulic winches used to lower
the pallets of rice malfunctioned and a 110-pound sack
of rice fell onto Hernandez. As a result, he was perma-
nently paralyzed from the chest down and retained only
limited use of his arms.
* Circuit Judge of the Eighth Circuit, sitting by designation.
25a
Hernandez filed suit against Dianella, in personam,
and against the M/V RAJAAN in rem. Dianella and
the RAJAAN impleaded several third-party defendants.’
Hernandez settled with the third-party defendanis for
$410,000.00 before trial with the agreement that the
settling defendants would be reimbursed if Hernandez’s
recovery exceeded $3,000,000.00. The Texas Employer’s
Insurance Association intervened and recovered $159,-
585.91 in compensation and medical benefits paid to
Hernandez.
The district court sitting without a jury found Dianella
and the M/V RAJAAN liable under 33 U.S.C. § 905(b)
(1986). It awarded Hernandez pecuniary and non-pe-
cuniary damages in the following amounts:
Lost future wages $ 800,221.00
Lost household services $ 87,000.00
Past medical expenses $ 153,472.48
Future medical expenses $ 582,000.00
Attendant care $ 730,000.00
Future medical supplies $ 152,000.00
Transportation and non-medical
commodities $ 465,000.00
Pain and suffering $1,000,000.00
$3,969,693.48
1. These defendants were Ishikawajima-Harima Heavy Industries,
Ltd. (the manufacturer of the winch); O.J.I. Seiki-Kogyo Kabshiki
Kaisha (the manufacturer of the winch’s remote control system) ;
Affiliated Rice Mills (a successor in interest to the company which
milled and bagged the rice); Langston Companies, Inc., Continental
Bag Division (the manufacturer of the polypropylene bags which
held the rice); Cargill, Inc. (which purchased the rice for resale to
the government of Iraq); Euro Grain Trading, Ltd. (which bought
the rice from Cargill and chartered the RAJAAN); and Brazos River
Harbor Navigation District (which provided the RAJAAN with
berthing, water and other necessities). The court dismissed for failure
to state a claim other third-party defendants impleaded by Dianella.
26a
The court found Hernandez 5% negligent and reduced
the recovery to $3,771.208.80. The court held a separate
proceeding after trial on Dianella’s petition to limit lia-
bility to the value of the vessel and pending freight under
46 U.S.C. § 183(a) (1975). The court rejected the
petition on grounds that Dianella had not met its burden
of proving that it lacked privity or knowledge of the
negligent conditions which caused Hernandez’s injuries.
Dianella appeals the finding of negligence and disputes
the calculation of damages. We affirm the district court’s
findings on liability however find several portions of the
damage award to be in error.
A) Liability
The legal duty of a shipowner to an injured worker
arises from 33 U.S.C. § 905(b) (1986). It provides:
“In the event of injury to a person covered under
this chapter caused by the negligence of a vessel,
then such person, or anyone otherwise entitled to
recover damages by reason thereof, may bring an
action against such vessel as a third party in ac-
cordance with the provisions of section 933 of this
Mi cca
[1,2] The Supreme Court clarified the duties imposed
on shipowners and stevedores by § 905(b) in Scindia
Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S.
156, 101 S. Ct. 1614, 68 L.Ed.2d 1 (1981). The Court
held that under § 905(b):
‘a shipowner has no general duty by way of super-
vision or inspection to exercise reasonable care to
discover dangerous conditions that develop within
27a
the confines of the cargo operations that are assigned
to the stevedore.”
Scindia, 101 S. Ct. at 1624. The shipowner is entitled
to rely on the stevedore and in general owes no duty
to a longshoreman injured in the course of cargo opera-
tions. Morris v. Compagnie Maritime des Chargeurs
Reunis, §.A., 832 F.2d 67, 71 (Sth Cir. 1987). How-
ever, Scindia provides that if the shipowner had actual
knowledge of a condition which presented an unreason-
able danger to a longshoreman and actual knowledge
that he could not rely on the stevedore to correct the
condition, then the shipowner, not the stevedore, is liable
to the jongshoreman. Scindia, 101 S. Ct. at 1626. In
Helaire v. Mobil Oil Co., 709 F.2d 1031 (Sth Cir. 1983)
this Circuit held that:
“[o]nce loading operations have begun, the vessel
owner can be held liable for injuries to employees
of the stevedore resulting from open and obvious
dangers only in the event of actual knowledge of
the danger and actual knowledge that he cannot
rely on the stevedore to remedy the situation.”
Helaire, 709 F.2d at 1038-39. If the condition existed
from the outset, the shipowner is charged with actual
knowledge of the dangerous condition and has a duty
to warn the stevedore and the longshoremen if the defect
is hidden. Harris v. Flota Mercante Grancolombiana, S.A..,
730 F.2d 296, 299 (Sth Cir. 1984).
[3] The district court charged Dianella with actual
knowledge of an unreasonably dangerous condition based
on its finding that the winch had been malfunctioning
since the outset of loading. The court relied on testimony
28a
that entries in the ship’s log several days before the
accident indicated that there was a “leaky winch” in the
number one masthouse. No entry on the log indicates that
a permanent repair was made. The vessel’s second engi-
neer testified that two days prior to the accident, the
crew had pumped hydraulic fluid into the winch to purge
air from the hydraulic system. The air pressure indicated
that the system was leaking.
Next the court held that Dianella had actual knowledge
that it could not rely on the stevedore to fix the winch.
The stevedore testified that from the outset of loading,
the winch would slow down or stop unexpectedly causing
pallets holding sacks of rice to swing precariously above
the cargo hold. On the day of the accident, each time
the winch malfunctioned the stevedore notified the ship’s
crew. The crew halted loading and added hydraulic fluid
to the winch. The stevedore would then resume loading.
From this the district court concluded that Dianella had
actual knowledge that the stevedore would continue to
use the winch in its hazardous condition without remedy-
ing it and that the ship had a duty to intervene and
repair the winch or take it out of service.
We uphold the district court’s finding that Dianella
was liable under § 905(b). Dianella argues that the
stevedore is liable because he did not stop loading and
inform Dianella when the winch malfunctioned immedi-
ately before Hernandez’s accident. However, the record
is replete with evidence that the winch had malfunctioned
on many occasions prior to the day of injury, had mal-
functioned several times on the day of the accident and
that the additions of hydraulic fluid by Dianella were
clearly not preventing or correcting the malfunctions.
From this the district court fairly charged Dianella with
oe ie ca at “
29a
actual knowledge of the malfunctioning winch and with
knowledge that the stevedore, who had been relying on
Dianella to repair the winch, could not be expected to
remedy the danger.
B) Damages
Dianella contends that several components of the dam-
age award are excessive. The standards under which we
review a damage award for excessiveness are well known.
A trial judge’s assessment of damages is a finding of fact
which we review under the clearly erroneous standard.
Sosa v. M/V LAGO IZABAL, 736 F.2d 1028, 1035
(Sth Cir. 1984), (citing, Caldarera v. Eastern Airlines,
Inc., 705 F.2d 778, 783 (Sth Cir. 1983)). This court
will not overturn a damage award unless the trier of fact
abused its discretion. Bartholomew v. CNG Producing
Co., 832 F.2d 326, 331 (Sth Cir. 1987) (citing, Hawkes
v. Ayers, 537 F.2d 836, 837 (Sth Cir. 1976) ). A verdict
will be considered excessive only if it is greater than the
maximum amount the trier of fact could properly have
awarded. Sosa, supra, at 1035. An appellate court may
not determine excessiveness by comparing verdicts in
similar cases, but rather must review each case on its
own facts. Winbourne v. Eastern Airlines, Inc., 758 F.2d
1016, 1018 (Sth Cir. 1984), cert. denied, 474 U.S. 1036,
106 S. Ct. 603, 88 L.Ed.2d 582 (1985); Sosa, supra,
at 1035.
Having determined that an award is excessive, this
court may either order a new trial on damages or may
give the plaintiff the option of avoiding a new trial by
agreeing to a remittitur of the excessive portion of the
award. Osburn v. Anchor Laboratories, Inc., 825 F.2d
908, 919 (Sth Cir. 1987) (citing, De Centeno v. Gulf
30a
Fleet Crews, Inc., 798 F.2d 138, 142 (5th Cir. 1986));
Wells v. Dallas Independent School District, 793 F.2d
679, 683-84 (Sth Cir. 1986). This Circuit follows the
maximum recovery rule under which a remittitur may
reduce damages only to the maximum amount a trier
of fact could properly have awarded. Osburn, supra, at
919 (citing, Zeno v. Great Atlantic & Pacific Tea Co.,
803 F.2d 178, 181 (5th Cir. 1986)); Caldarera v. East-
ern Airlines, Inc., 705 F.2d 778, 784 (Sth Cir. 1983).
Under these criteria, we review each component of the
damage award.
i) Lost Wages
The trial court calculated the present value of Her-
nandez’s lost future wages using the below-market dis-
count rate. In arriving at the sum of $800,221.00, the
court relied exclusively on the calculations of Hernan-
dez’s expert. The expert assumed a work-life expectancy
of 30 years and used the average full-time United States
longshoreman’s rate of $23,000.00 per annum. The court
adjusted this figure upward to account for seniority and
added an additional 15% for fringe benefits. The court
adjusted the figures downward to account for inflation,
subtracted federal income taxes and multiplied by .85
to arrive at the present value of lost future wages.”
The record does not support these findings. Hernnadez’s
tax returns show that he had been a part-time longshore-
man for the three years preceding his injury. His wage
rate was $14.00 per hour. In 1980 he earned $8,341.00,
in 1981 he earned $8,634.00, in 1982 he earned $6,500.-
00 and in 1983 (prior to the accident) he earned $2,600.
2. The trial court failed to subtract $56,000 for social security
taxes. Hernandez concedes a remittitur in this amount would be due.
3la
No evidence supports the court’s conclusion that Her-
nandez, a part-time worker, would have gained any
seniority had he been able to remain on the job. There
is no evidence that Hernandez had ever received any
fringe benefits.
In Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir.
1983) (en banc), cert. denied sub nom., Heinrich Schmidt
Reederei v. Byrd, 467 U.S. 1252, 104 S. Ct. 3537, 82
L.Ed.2d 842 (1984) (Culver II) the Circuit en banc
stated that:
“calculation of the lost income stream begins with
the gross earnings of the injured party at the time
of the injury. To this amount other income inci-
dental to work, such as fringe benefits, should be
added. From it, the fact-finder should subtract
amounts the wage earner would have been required
to pay such as income tax and work expenses.”
Culver II, 722 F.2d at 117.
[4] Based on Culver II, the trial court was clearly
erroneous in accepting a damage calculation based on
the average longshoreman’s wage rate. Culver II requires
the court to use the plaintiff's gross earnings at the time
of the injury. The court further erred by adding fringe
benefits and seniority in the absence of evidence that
Hernandez was entitled to these benefits while he was
working part time.
[5] Dianella presented a computation using the below-
market discount rate method but substituting Hernandez’s
actual earnings in the 3.82 years preceding the accident
without seniority and fringe benefits. Under these calcula-
tions, Hernandez’s lost wages would amount to $190,-
32a
296.00.*° Hernandez has not had the opportunity to chal-
lenge the accuracy of Dianella’s calculations. We there-
fore hold that on the issue of lost wages Hernandez may
either agree to a remittitur in the amount of $689,925.00,
or he may opt for a new trial under the dictates of
Culver II and this opinion.
ii) U.S. v. Mexican Rates
[6] In calculating lost wages and medical expenses,
the district court assumed that Hernandez could continue
working as a United States longshoreman despite evi-
dence that he was an illegal alien who had been deported
on several previous occasions and whose wife and three
children resided in Mexico. The court based its assump-
tion on its finding that Hernandez intended to reside
permanently in the United States.
The court’s assumption that an illegal alien may collect
lost wages and medical expenses based on United States
rates is called into question by Sure-Tan, Inc. v. N.L.R.B.,
467 U.S. 883, 104 S. Ct. 2803, 81 L.Ed.2d 732 (1984).
In Sure-Tan, the Supreme Court remanded an award of
a six-month back pay to several illegal aliens stating that:
“in computing backpay, the employees must be
deemed ‘unavailable’ for work (and the accrual of
backpay therefore tolled) during any period when
they were not lawfully entitled to be present and
employed in the United States.”
Sure-Tan, 104 S. Ct. at 2814. By similar logic, Dianella
argues that Hernandez should be deemed ineligible to
4. Because social security taxes have been subtracted from Dia-
nella’s calculation of lost wages, it is not necessary to deduct from
this sum the amount of $56,000.00 which Hernandez conceded was
in error.
33a
recover lost future United States wages and United States
medical expenses because he was not entitled to be present
and employed in the United States for the remainder of
his life.
Although Dianella’s argument may have been correct
at the time of Hernandez’s injury, the Immigration Re-
form and Control Act of 1986, 8 U.S.C. §§ 1101 et seq.
(1987), has placed a belated stamp of legitimacy on
the district court’s assumption that Hernandez could re-
main in the United States. Section 1255a(a)(2)(A) of
the Act provides that any alien who:
“establish[es] that he entered the United States be-
fore January 1, 1982, and that he has resided con-
tinuously in the United States in an unlawful status
since such date. . .”
and who meets the other requirements of the Act may
be considered an alien lawfully admitted for temporary
residence. The record indicates that Hernandez has re-
sided in the United States continuously since 1970 and
is therefore likely eligible for resident alien status. We
need not ponder the effect of appiying Sure-Tan’s “legal
readmittance into the United States” language to the
court’s award of lost wages and medical expenses to
Hernandez. An illegal alien who has demonstrated his
eligibility for permanent resident status under the Immi-
gration Reform and Control Act is entitled to a damage
award based on United States wage and medical rates.
iii) Household Services
[7] The district court awarded $87,000.00 for lost
household services. The court calculated that Hernandez
would have performed 10 hours of household services
34a
a week for the remainder of his 72 year life expectancy.
However, there was no evidence that Hernandez had
performed any household services prior to his injury.
Hernandez testified that he lived alone in an apartment
at the time of his injury and performed no yard or auto-
mobile work. His wife and three children lived in Mexico
and his services could not have contributed to their
household.
It is indisputable that Hernandez, a paraplegic, has
lost his ability to perform household services in the future.
However, the trial court is not at liberty to grant damages
for lost household services in the absence of any
evidence that Hernandez performed household services in
the past. See e.g., De Centeno v. Gulf Fleet Crews, Inc.,
798 F.2d 138, 142 (Sth Cir. 1986). In addition, because
Hernandez received an award for attendant care, the ad-
ditional recovery for lost household services would con-
stitute a double recovery. The erroneous allowance of
$87,000.00 for lost ability to perform household services
is reversed,
iv) Medical Expenses
The trial court awarded $153,472.48 in past medical
expenses, $152,000.00 for future medical supplies and
$582,000.00 in future medical and hospital expenses
exclusive of attendant care. Hernandez’s expert arrived
at these figures by estimating what medical expenses
Hernandez had incurred to date as a paraplegic and what
expenses he could be expected to incur given his perma-
nent disability.
[8] Dianella challenges the expert’s calculation of
future medical and hospital expenses on the basis that
35a
he used tax exempt rather than taxable bonds. Dianella
contends that the proper figure should have been $451,-
000.00. However, Dianella presents no legal authority
suggesting that the expert’s choice of tax exempt bonds
was improper. Both types of investment were available
and either properly could be used in the calculation.
See, e.g., Culver II, supra, 722 F.2d at 122. This part
of the award is supported by substantial evidence.
[9] Dianella further contends that the court should
have calculated medical expenses using Mexican rather
than United States rates. Dianella cites Sosa v. M/V
LAGO IZABAL, 736 F.2d 1028, 1034 (5th Cir. 1984)
in which we upheld the use of American medical rate
in calculating medical expenses for a Mexican national
only after a finding that “[the plaintiff] would not receive
adequate medical care in Mexico.” Sosa, 736 F.2d at
1034. Dianella contends that because the court made
no such finding in Hernandez’s case, it cannot calculate
future medical expenses using American rates. However,
Sosa does not state that a finding of inadequate foreign
medical care must precede every award of medical ex-
penses based on American rates. The decision of which
rate to use is a finding of fact which varies from case
to case. In this case, Hernandez has been under the care
of doctors in Houston and, as discussed in § il, supra,
is probably entitled to remain in the United States for
his medical care. The court’s award of medical expenses
based on American rates is therefore not clearly erroneous.
v) Transportation and Non-Medical Commodities:
[10, 11] The court awarded $446,400.00 for trans-
portation expense and $18,600.00 for non-medical com-
modities such as utility bills, cleaning and laundering.
36a
Substantial evidence supports the district court’s finding
that paraplegics do incur higher utility bills and launder-
ing expenses than non-paraplegics. However, substantial
evidence does not support the court’s award for trans-
portation expenses. Hernandez testified that he never
owned a vehicle before the accident and that since the
accident, he only leaves his house to visit friends at a
local social hall. He makes this 20-block trip in his
wheelchair for exercise. No evidence was presented that
Hernandez needed a modified van for medical reasons.
This testimony does not support the court’s finding that
Hernandez required the continuous use of a fully new
van plus modifications and operating expenses totaling
$446,400.00.
Dianella’s expert testified that a large, two-door sedan
provided customary transportation for paraplegics at a
cost, including upkeep, of $24,248.00. In light of Her-
nandez’s testimony concerning his infrequent use of trans-
portation, this is the largest award supportabie by the
evidence. Hernandez may accept a remittitur in the
amount of $422,151.00 or choose a new trial on the
issue of transportation expenses limited to meeting proven
needs on a basis of using or renting vehicles of reasonable
cost.
vi) Attendant Care
[12] The court found that Hernandez would incur
$12,547.00 per year in attedant care expenses, at a
present value of $730,000.00. The court based its con-
clusions on Hernandez’s expert’s testimony that Hernan-
dez would require four hours of assistance by a nurse’s
aide daily. In the alternative, Hernandez’s wife could be
compensated on the basis of a nurse’s aide’s salary for
37a
her assistance in “bathing, housekeeping and meal prepa-
ration.”
Dianella contends that at most Hernandez requires
one or two hours of attendant care daily. In fact, Dia-
nella states that Hernandez would have difficulty being
availabie for four hours of care each day in light of his
active rehabilitation schedule. Dianella further states that
Hernandez’s wife should be compensated on a minimum
wage scale, not at the salary of a nurse’s aide. Dianella
assumes that Hernandez’s wife will be available to pro-
vide attendant care and that her care wiil be comparable
to that care provided by a nurse’s aide. Under its cal-
culations, the maximum amount recoverable for attendant
care is $141,534.50.
The evidence supports the district court’s rejection of
Dianella’s assumptions. Hernandez will require skilled
attendant care for the rest of his life. The record does
not establish that his wife will continue to provide it
or will provide it as competently as a nurse’s aide. The
trial court’s award for attendant care is affirmed.
vii) Pain and Suffering
[13] The trial court awarded $1,000,000.000 for pain
and suffering. Dianella disputes this finding on the basis
that Hernandez was instantly paralyzed from the waist
down and could not have felt any substantial pain as a
result of the injury. Dianella contends that mental anguish
does not justify the award in light of testimony by Her-
nandez’s treating physician that he had adjusted well
to the disability.
In Hyde v. Chevron U.S.A., Inc., 697 F.2d 614, 632
(Sth Cir. 1983), we stated that:
38a
“any amount awarded for pain and suffering de-
pends to a great extent on the trial court’s observa-
tion of the plaintiff and its subjective determination
of the amount needed to achieve full compensation.”
Hyde, 697 F.2d at 632. Each award for pain and suf-
fering depends heavily on its own facts. Allen v. Seacoast
Products, 623 F.2d 355, 364 (Sth Cir. 1980).
The trial court based its award for pain and suffering
on testimony that Hernandez suffered “phantom pains”
in his legs, underwent several painful surgical procedures
and would probably require more surgery in the future.
He has experienced a catastrophic change in his lifestyle
which has caused a significant degree of mental anguish.
In light of this testimony, $1,000,000.00 is not a clearly
excessive award beyond the “maximum possible recovery
for these injuries.” Sosa, supra, 736 F.2d at 1035. This
award is affirmed.
viii) Pre and Post Judgment Interest:
The district court awarded prejudgment interest on the
full damage award at a rate of 9% per annum accruing
from the date of the injury to the date of the judgment.
The court awarded postjudgment interest at a rate of
8.18% per annum.
[14] The award of prejudgment interest in admiralty
cases is within the discretion of the trial court. Curry v.
Fluor Drilling Services, Inc., 715 F.2d 893, 896 (5th
Cir. 1983) (citing, Harrison v. Flota Mercante Gran-
colombiana, §.A., 577 F.2d 968, 988 (Sth Cir. 1978)).
In cases arising under 33 U.S.C. § 905(b), prejudgment
interest is the rule, not the exception. Webster v. M/V
MOOLCHAND, Sethia Liners Ltd., 730 F.2d 1035,
39a
1040 (5th Cir. 1984) (citing, Helaire v. Mobil Oil Co.,
709 F.2d 1031, 1042 (Sth Cir. 1983)).
[15] However, the trial court erred in awarding pre-
judgment interest with respect to future damages. Martin
v. Walk, Haydel & Associates, Inc., 794 F.2d 209, 212
(Sth Cir. 1986); Wyatt v. Penrod Drilling Co., 735 F.2d
951, 956 n. 4 (Sth Cir. 1984). At oral argument Her-
nandez conceded that a remittitur of prejudgment interest
on future damages was due. We affirm the award of pre-
judgment interest on past damages and the award of
post-judgment interest, but direct the district court to
recalculate the amount of interest awarded on future
damages and vacate its prejudgment interest award.
ix) Credit for Settlement:
[16] The third-party defendants settled with -Hernan-
dez before trial for $410,000.00 and then participated
in the trial to establish Dianella’s negligence. Dianella
concedes that under Leger v. Drilling Well Control, Inc.,
592 F.2d 1246, 1251 (Sth Cir. 1979) it is not auto-
matically entitled to a credit for the settlement. It argues,
however, that the amount of the settlement must be
deducted from the total damages awarded for Hernandez’s
injury. Dianella’s arguments have merit.
In a recent decision, the Eleventh Circuit held that a
plaintiff in a maritime suit is entitled to receive a full
damage award less any amount he recovered in a settle-
ment with third-party defendants. Self v. Great Lakes
Dredge & Dry Dock Company, 832 F.2d 1540, 1548
(11th Cir. 1987). We find the Eleventh Circuit’s reason-
ing in Self sound. Hernandez is only entitled to one
recovery for the injuries he suffered. Strachan Shipping
40a
Co. v. Nash, 782 F.2d 513, 520 (Sth Cir. 1986). Be-
cause the court’s award against Dianella represented
100% of the loss Hernandez suffered (less 5% for
contributory negligence) his award from Dianella must
be reduced by any amount he received in a settlement
from the third-party defendants.
C) Limitation of Liability
At a separate hearing after the verdict was rendered,
the district court denied Dianella’s petition to limit its
liability to the value of the vessel plus pending freight,
pursuant to 46 U.S.C. § 183(a) (1958).* Section 183(a)
provides that:
“The liability of the owner of any vessel . . . for
any loss, damage, or injury . . . done, occasioned
or incurred, without the privity or knowledge of
such owner or owners, shall not, except in cases
provided for in subsection (b) of this section, ex-
ceed the amount or value of the interest of such
owner in such vessel, and her freight then pending.”
[17-19] “Privity” as used in the statute means some
fault or neglect in which the shipowner personally par-
ticipates. “Knowledge” means personal cognizance or
means of knowledge of which the shipowner is bound
to avail himself. Matter of Texaco, Inc., 570 F.Supp.
1272, 1278 (E.D. La. 1983). The burden of establishing
‘lack of privity or knowledge’ is on the shipowner.
Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (Sth Cir.
4. The value of the vessel plus pending freight was $2,820,917.39.
We recognize that the adjustments in damages awarded could render
this issue moot. However, since the case must go back for further
consideration by the district court, it is in the interest of justice to
rule on the issue now in the event it recurs.
4la
1976). The court denied the defense holding that Dia-
nella did not meet its burden of establishing lack of
privity or knowledge about the malfunctioning winch.
[20] Dianella’s managing agent and port engineer
testified that they did not have privity or knowledge of
negligent acts or unseaworthy conditions. However, this
testimony does not establish that the RAJAAN’s owner
lacked privity or knowledge of the unseaworthy condi-
tions nor does it establish who exercised control over the
RAJAAN. In light of this failure of proof by Dianella
and the fact that proof of privity or knowledge of the
RAJAAN’s owners was solely within Dianella’s control,
we affirm the findings of the district court.
The costs of this appeal will be ey divided” De- =
tween the parties.
AFFIRMED in part, subject to possible remittitur,
and, in part, VACATED and REMANDED.
42a
APPENDIX C
Alejandro HERNANDEZ,
Plaintiff-Appellee,
V.
M/V RAJAAN, etc., and Dianella Shipping Corporation,
Defendants-Third Party Plaintiff-Appellants,
V.
ISHIKAWAJIMA HARIMA HEAVY INDUSTRIES,
LTD., Cargill, Inc., et al.,
Third-Party Defendants-Appellees.
Alejandro HERNANDEZ,
Plaintiff-Appellee,
v.
M/V RAJAAN, Her Engines, Tackle, etc., in rem, and
Dianella Shipping Corporation,
Defendants-Appellants.
Nos. 85-2608, 87-2044.
United States Court of Appeals,
Fifth Circuit.
June 20, 1988.
Longshoreman brought action against shipowner and
vessel to recover for personal injuries caused by falling
sack of rice. The United States District Court for the
Southern District of Texas, James DeAnda, J., found ship-
owner and vessel liable, and shipowner appealed. The
Court of Appeals, 841 F.2d 582, affirmed in part, vacat-
43a
ed, and remanded. On petition for rehearing and sug-
gestion for rehearing en banc, the Court of Appeals held
that longshoreman, an illegal alien who had been de-
ported on several previous occasions and whose family
resided in Mexico, was entitled to damages for future
lost wages at United States rates after he was injured
while loading vessel, absent showing by vessel owner that
longshoreman was about to be deported.
Petition denied.
Kenneth D. Kuykendall, Royston, Rayzor, Vickery &
Williams, Houston, Tex., Robert DeLange, Galveston,
Tex., for Dianella,-etc., and M/V Rajaan, etc.
Edward J. Hennessy, Helm, Pletcher, Hogan, Bowan
& Saunders, Earl B. Austin, Baker & Botts, Houston,
Tex., for Cargill, Inc.
David G. Matthiesen, Funderburk & Funderburk,
Houston, Tex., for Langston Companies, Inc., et al.
Stephen W. Hanks, Timothy H. Pletcher, Houston,
Tex., for Alejandro Hernandez.
Louis E. McCarter, Richard L. Lagarde, Houston,
Tex., for Ishikawajima Harima Heavy Industries.
Butler & Binion, Walker Beavers, Robert D. Arre-
dondo, Houston, Tex., for Brazos River Harbor Naviga-
tion Dist.
Gary H. Miller, Fulbright & Jaworski, Houston, Tex.,
for Texas Employers’ Ins. Ass’n.
John P. Forney, Jr., Houston, Tex., for Ohji Seiki-
Kogyo Kabushiki Kaishi.
44a
Robert L. Adams, Houston, Tex., for Synthetic In-
dustries, Inc.
Robert S. MacIntyre, Jr., Houston, Tex., for Euro
Grain Trading, Ltd.
Edward J. Hennessy, Randall D. Wilkins, Houston,
Tex., for Affiliated Rice Mills.
Appeals from the United States District Court for the
Southern District of Texas.
Before CLARK, Chief Judge, BRIGHT* and POLITZ,
Circuit Judges.
ON PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
(Opinion March 30, 1988, 5 Cir. 1988, 841 F.2d 582)
PER CURIAM:
In its petition for rehearing, Dianella correctly points
out that the legal and factual issues involved in our deter-
mination that Hernandez had demonstrated eligibility for
permanent resident status under the Immigration Reform
and Control Act of 1986, 8 U.S.C. §§ 1101 et seq.
(1987), were not properly briefed or developed in either
this court or the district court. Part B(ii) of this court’s
opinion of March 30, 1988, 841 F.2d 582, which con-
cluded that Hernandez had demonstrated his eligibility
for permanent resident status under the Immigration Re-
form and Control Act, was improper, and that part of
Our opinion is hereby withdrawn and the following is
substituted:
* Circuit Judge of the Eighth Circuit, sitting by designation.
45a
ii) U.S. or Mexican Rates
In calculating lost wages and medical expenses, the dis-
trict court assumed that Hernandez could continue work-
ing as a United States longshoreman despite evidence
that he was an illegal alien who had been deported on
several previous occasions and whose wife and three
children resided in Mexico. The court based its assump-
tion on its finding that Hernandez intended to reside per-
manently in the United States.
The court’s assumption that an illegal alien may col-
lect lost wages and medical expenses based on United
States rates is challenged by Dianella on the basis of
Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 104 S. Ct. 2803,
81 L.Ed.2d 732 (1984). In Sure-Tan, the Supreme Court
remanded an award of back pay to several illegal aliens,
stating that:
“in computing backpay, the employees must be
deemed ‘unavailable’ for work (and the accrual of
backpay therefore tolled) during any period when
they were not lawfully entitled to be present and
employed in the United States.”
Sure-Tan, 104 S. Ct. at 2814. Dianella argues that Her-
nandez similarly should be deemed ineligible to recover
lost future United States wages and United States medi-
cal expenses because he was not entitled to be present
and employed in the United States for the remainder of
his life.
Hernandez asserts that he was working in the United
States at the time of his injury, and the district court
found that he intended to continue working in this coun-
try on a permanent basis. The record demonstrates that
46a
Hernandez had been in the United States since 1970 for
substantial periods of time and had worked as a long-
shoreman for almost four years preceding the accident.
At the time of the accident, Dianella was accepting Her-
nandez’s labors on the M/V RAJAAN without regard to
the status of his citizenship. As a private citizen, Dian-
ella’s relationship to Hernandez is not the same as the
plaintiffs’ relationship with their employer in Sure-Tan,
in which a back-pay remedy applied by the National
Labor Relations Board was found to implicate labor
policy considerations.
The question here is whether, given Hernandez’s status
as an illegal alien, the district court’s decision to grant
damages to Hernandez for future lost wages based upon
his employment status at the time of injury and for the
lengthy period preceding injury was clearly erroneous.
Sosa v. M/V LAGO IZABAL, 736 F.2d 1028, 1035
(Sth Cir. 1984). We conclude that it was not.
The burden of proof in the calculation of damages was
initially on Hernandez who had to establish the damages
his injury had caused and was likely to cause in the fu-
ture. Once Hernandez proved his prior wages in the
United States, the burden shifted to Dianella to establish
that the use of past wages to calculate future damages
was factually improper and, if so, what a proper measure
of damages should be. Because Dianella presented no
proof that Hernandez was about to be deported or would
surely be deported, the court did not err in basing its
award on Hernandez’s past earnings stream as required
by Culver II. Dianella is liable to make Hernandez whole
for the injury inflicted. It cannot defeat his right to re-
cover by asserting that his award for future lost wages
47a
should be based upon speculation regarding what he
might be earning were he in Mexico. Hernandez has now
applied for amnesty under the Immigration Reform and
Control Act of 1986, but this development is a matter
that we need not now consider.
This correction of Part B(ii) of our opinion of March
30, 1988, does not affect our partial affirmance of the
district court’s use of U. S. wage rates for the calculation
of Hernandez’s damages.
In all other respects, the petition for rehearing is DE-
NIED, and no member of this panel nor judge in regular
active service on the court having requested that the court
be polled on rehearing en banc (Federal Rules of Ap-
pellate Procedure and Local Rule 35), the suggestion for
rehearing en banc is DENIED.
48a
APPENDIX D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 85-2608 & 87-2044
ALEJANDRO HERNANDEZ,
Plaintiff-Appellee,
V.
M/V RAJAAN, Etc., and DIANELLA
SHIPPING CORP.,
Defendants-Third Party Plaintiff-Appellants,
V.
ISHIKAWAJIMA HARIMA HEAVY INDUSTRIES,
LTD., CARGILL INC., ET AL.,
Third-Party Defendants-Appellees.
ALEJANDRO HERNANDEZ,
Plaintiff-Appellee,
V.
M/V RAJAAN, Her Engines, Tackle, Etc., in rem and
DIANELLA SHIPPING CORP.,
Defendants-Appellants.
Appeals from the United States District Court for the
Southern District of Texas
ON PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
(Opinion June 20, 1988, 5 Cir., 198_, F.2d )
( July 21, 1988 )
49a
Before CLARK, Chief Judge, POLITZ and BRIGHT, *
Circuit Judges.
PER CURIAM:
The Petition for Rehearing is DENIED and no member
of this panel nor Judge in regular active service on the
Court having requested that the Court be polled on re-
hearing en banc, (Federal Rules of Appellate Procedure
and Local Rule 35) the Suggestion for Rehearing En
Banc is DENIED.
ENTERED FOR THE COURT:
/s/ CHARLES CLARK
Chief Judge
* Senior Judge from the 8th Circuit Court of Appeals, sitting by
designation.
50a
APPENDIX E
TRIAL RECORD VOLUME 5,
pp. 6-12, 25-30, 34-37
[6]
* * *
ALEJANDRO HERNANDEZ, SWORN
DIRECT EXAMINATION
BY MR. HANKS:
Tell me your name, please?
Alejandro Rodriguez Hernandez
Mr. Hernandez, how old are you, Mr. Hernandez?
I am thirty-four years old.
Give us your date of birth?
6th of June, *52.
rFOPOPO
[7]
Where were you born?
Lalucha, State of Micharcan, Mexico.
How big a town is that?
It’s a rural community of about 2,000 inhabitants.
. During the time you were growing up there, I
understand your father worked in the fields, is that right?
A. Yes.
Q. What kind of work did you do while you were in
Mexico?
A. In the fields.
Q. How far did you go in school in Mexico, Mr. Her-
nandez?
A. The third grade.
Q. Are you able to fluently read and write in Spanish?
OFOP”
5la
A. A little bit.
Q. Are you able to speak or read English?
A. No.
Q. When did you first come to the United States?
A. 1970.
Why did you come to the United States from
Mexico? .
A. To live better, to make a better life for my family.
Q. What kind of jobs have you done since you first
come to the United States?
A. I worked in different kinds of jobs.
Q. Were they alli jobs of manual labor type jobs?
[8]
©
A. Yes.
Q. You worked*in Chicago for a time at a restaurant?
A. Yes.
Q. You worked in Fort Worth for a period of time
building bumpers for cars?
A. Yes.
Q. I understand you worked for a period of time for
a contractor pouring cement?
A. Yes.
Q. You have been back to Mexico for brief periods of
time since 1970, is that right?
Yes, sir.
You just came back to the United States?
Yes. ,
What kind of work did you begin doing in 1979?
1979, a longshoreman.
In Freeport, Texas?
Yes.
A.
Q.
A.
Q.
A.
Q.
A.
52a
Q. Did you continue to work or seek work as a long-
shoreman from 1979 up until the date you got hurt?
A. I didn’t understand.
Q. Did you work as a longshoreman in 1980?
A. Yes.
Q. In 1981?
A. Yes.
[9]
Q. 1982 and 1983 did you continue working as a
longshoreman, whenever you could work?
A. Yes, sir.
Q. Before your accident, Mr. Hernandez where was
it you wanted to continue living?
A. As a longshoreman.
Q. Did you want to continue living in the United
States?
A. Yes.
Q. Was that your intention at that time?
A. Ye.
Q. Was it your intention, before you got hurt, Mr.
Hernandez, to continue working as a longshoreman for
the rest of your life?
A. Yes. (R. Tr. Vol. 5, pp. 6-9)
[10]
* 86% *
THE COURT: Is this man married?
MR. HANKS: Yes.
THE COURT: How many children does he have?
MR. HANKS: I will ask him that. I will ask him
about it.
Sia
[11]
THE COURT: Go ahead.
Q. Mr. Hernandez, I want to ask you a little bit about
your family. You were married in Mexico?
Yes.
How many children did you have?
Three girls in Mexico.
Can you tell me their names, Mr. Hernandez?
Luce Maria, Veronica and Guadelopa.
What is the name of your wife?
Ouita Ohara D’Hernandez.
THE COURT: How old were you when you were
married?
THE WITNESS: I got married in 1969.
THE COURT: Were any of your children born in
this country?
THE WITNESS: Well, I had some other children
with another lady.
THE COURT: How many other children did you
have apart from the children you had with your wife?
THE WITNESS: Three.
THE COURT: Are they American citizens?
THE WITNESS: Yes.
THE COURT: How about the children from your
wife, were any of the children you had with your wife
American citizens?
rPOPOPOP
[12]
THE WITNESS: No.
54a
THE COURT: Go ahead.
Q. Mr. Hernandez, just for the record, what are the
names of your children and ages, if you recall exactly
of the children that are born in this country that are
American citizens?
A. Yes. One girl is twelve years old. One boy is five
years old, the other one four. (R. Tr. 5, pp. 10-12)
* *« *
[25]
* *«* *
Q. (By Mr. Kuykendall) Mr. Hernandez, I under-
stand you came to the United States in 1970?
That is correct.
You entered the country in Del Rio, is that correct?
Yes.
Did you enter the country illegally?
Yes.
How is that, how did you get in in 1970?
Through the water.
You were apparently working in Fort Worth in
1973 as a laborer?
A. That’s correct.
Q. As I understand it you were apprehended by the
[26]
emigration service in 1974 at Fort Worth, is that correct?
A. That’s correct.
Q. Was there a hearing in Fort Worth in 1974 before
the emigration service?
A. I don’t remember.
OPOPOror
55a
Q. What I’m asking you, sir, did the emigration service
ask you to leave or did the ere service just ask
you to leave and you left?
A. Well, they took me out of here, they took me to
Mexico.
Q. They transported you from Fort Worth back to
Mexico?
A. Yes.
Q. Before that occurred, was there a hearing in a
room with the emigration officers in which you testified
or presented your position as to why you should stay
in the country?
THE COURT: Doesn’t the record show it was a
voluntary departure?
MR. KUYKENDALL: That’s what I’m trying to find
out.
THE COURT: Do you know?
MR. HANKS: No.
THE COURT: Usually on the first go-around it’s a
voluntary departure, anyway.
[27]
MR. KUYKENDALL: I understand that, but there
were others.
Q. There were subsequent occasions?
A. Yes. ’
THE COURT: How many times have the emigration
service put you out of the country?
THE WITNESS: I don’t remember exactly how many
times.
j —
56a
THE COURT: Various?
THE WITNESS: Yes, many, several.
Q. In 1975, you came back to the United States and
you went to California?
A. Yes.
Q. The emigration service apprehended you in Cali-
fornia at River Bend, California and sent you back to
Mexico, is that correct?
A. Correct.
Q. That proceeding there, were you allowed to leave
California and go back to Mexico voluntarily or was
there any type of hearing in which you were ordered
to go back to Mexico?
A. That’s correct. There was a hearing.
Q. There was a hearing and as a result of that hearing
were you deported?
A. That’s correct.
[28]
THE COURT: Isn’t there some documentation to
show whether he was deported or not?
MR. KUYKENDALL: Not under this name.
THE COURT: Under any name.
MR. KUYKENDALL: I don’t have it.
THE COURT: They give them a hearing and then
grant them a voluntary departure, so it doesn’t help me
—I don’t know how relevant it is anyway, but go ahead.
Q. You came back and went to Chicago?
A. Correct.
Q. You were deported from Fort Worth again?
57a
A. Correct.
Q. You came back to the United States and went to
Freeport?
A. Correct.
Q. Have you been deported since you’ve been at
Freeport?
A. In 1978 was the last deportation.
Q. Was that while you were in Freeport?
A. In Pearland.
Q. You got married in 1969 to your present wife, is
that correct?
A. Correct.
Q. You had three children and all three children were
born in Mexico, is that what I understand?
[29]
A. That’s correct.
Q. Were you married to Carmen in Freeport?
A. No.
Q. As I understand it you were not living with Carmen
at the time of your injury?
A. Correct.
THE COURT: I believe he construed your previous
question. You were asking him the site of his marriage.
Is that what you meant to ask him? Where the marriage
occurred or where the marriage was performed?
MR. KUYKENDALL: In Mexico. He didn’t marry
Carmen.
THE COURT: You asked him if he was married in
Freeport and I don’t know whether you’re talking about
his status or where the marriage took place.
eal
58a
Q. Mr. Hernandez, I may have been confused myself.
I apologize. You have only been married one time ‘and
that was to your present wife in Mexico, is that right?
A. Correct.
Q. You have had three children all in Mexico by
your present wife?
A. Correct.
Q. While you were married to your present wife, you
started living with a lady called Carmen in Freeport?
A. Correct.
[30]
Q. You had three children by Carmen?
A. Correct.
Q. But you and Carmen were separated sometime
before you got hurt, as I understand it?
A. Correct.
Q. As I understand it, you, Carmen and the three
children were not living together before you got hurt?
A. Correct. (R. Tr. Vol. 5, pp. 25-30)
[34]
* * *
Q. Sir, at the time of your injury your wife was liv-
ing in Mexico, as I understand it?
A. That’s correct.
Q. When you were admitted into TIRR, you started
having conversations with Mrs. Lewis and the social
worker at TIRR with regard to who was going to take
care of you after you were released from the hospital, is
that correct? Let me ask you a simpler question. When
you were in the hospital did you start having conversa-
tions with a social worker at TIRR and you and she
EE
a
59a
had to decide who was going to help take care of you
after you were released from TIRR where you were
going to go?
A. That’s correct.
Q. You informed the social worker you would like
your wife in Mexico to take care of you or assist you
after you left the hospital?
A. That’s correct.
Q. Arrangements were made through the social work-
er? She obtained a visitor’s visa for your wife to come to
the United States, right?
A. That is correct.
Q. Dr. Donovan and the social worker wrote letters
on
[35]
your behalf to obtain your wife’s admission to come into
the country?
A. That’s correct.
Q. Was that about May or June of 1984 that she was
allowed to come into the United States?
A. In May, no it’s not correct. She got the visa in
January of this year. January it will be one year. On the
22nd of January it had been a year that she got the visa
to come to the United States.
Q. January 1985 Dr. Donovan and the social worker
wrote a letter and got her visa extended?
A. That’s correct.
Q. Also after your wife was here you obtained the
help of Dr. Donovan and the social worker to try to ob-
tain permission for your three children to come to the
United States, is that correct?
A. They did this but they couldn’t bring the children.
60a
Q. Emigration would not give the children the visa?
A. I believe they didn’t.
Q. While you were trying to get the children to come
to the United States, didn’t you tell Dr. Donovan and the
social worker that you wanted them to come to be here
until you had completed your rehabilitation and were
able to return to Mexico?
A. I don’t remember.
[36]
Q. Is the letter, Plaintiff's Exhibit No. 26 written by
TIRR, Dr. Donovan and the social worker dated May 10,
1984. On the last sentence the letter says we greatly
appreciate your atention in this situation and hope you
are able to help Mr. and Mrs. Hernandez’s children to
come and stay with them until his rehabilitation is
finished and he returns to his home in Mexico. Sir, do
you remember telling Dr. Donovan and the social worker
that you intended to return to Mexico after your rehabili-
tation was completed?
A. No. I don’t remember.
Q. You don’t remember, all right. Did you have any
intention in May of 1984 to return to Mexico after your
rehabilitation?
A. I don’t remember.
THE COURT: Do you now have an intention to re-
turn to Mexico or do you plan to remain in this country,
if you can?
THE WITNESS: If it is possible, I would like to stay
here in the United States.
Q. Does your wife and mother intend to stay here, or
do you know?
6la
A. I haven’t asked them. Only my wife would be try-
ing to stay here.
Q. Is your wife necessary to help you for your
[37]
assistance at home?
A. That’s correct.
Q. If she is required to return to Mexico when her
visitor’s visa runs out, will you go to Mexico with her?
A. No, sir.
Q. Mr. Hernandez, do you know a Nancy Lewis?
A. Nancy Lewis—I don’t. The one I know is called
Susy Lewis. |
Q. The case manager that helped you and got the
supplies for you after you checked out of the hospital?
A. Yes.
Q. Do you remember telling Ms. Lewis in June of
1984 you would probably return to Mexico after this
case was over?
A. I don’t remember.
Q. Do you remember telling anyone that you intended
to return to Mexico after this case was over?
A. I don’t remember.
Q. Have you made any application with the-immigra-
tion service to stay in the United States or taken any
other action to try to stay in the United States?
A. No. I haven’t done anything until this time. I
haven’t applied for any permits.
MR. KUYKENDALL: No further questions. (R. Tr.
Vol. 5, pp. 34-37)
> ———E
62a
APPENDIX F
TIRR
THE INSTITUTE FOR REHABILITATION AND RESEARCH
in the Texas Medical Center
1333 Moursund Avenue
Houston, Texas 77030
(713) 797-1440
May 10, 1984
To Whom It May Concern:
This verifies that Alejandro Rodriquez Hernandez is a
patient undergoing comprehensive rehabilitation in this
hospital for a spinal cord injury which left him paralyzed
from the chest down. The injury is the result of a work
related accident which occurred on 9/21/83.
Comprehensive rehabilitation for a patient like Mr. Her-
nandez means bringing him to maximum independence
at a wheelchair level, including physical, emotional and
social independence. This requires at least two years of
treatment both in the hospital setting and at home.
During Mr. Hernandez first TIRR admission he learned
some basic concepts of rehabilitation about his body
functions which, if he were not appropriately oriented,
could result in complications which might be fatal. He
learned to apply these concepts during a two-month dis-
charge and is now readmitted for training in more ad-
vanced skills in physical functioning.
Mr. Hernandez’s wife, Jovita, was allowed to come into
this country several months ago to learn his care and
to provide assistance when necessary. However, their
three children, Luz Maria-9, Veronica- 8, and Guada-
lupe - 7, were left in Mexico in the care of Mr. Her-
nandez’s parents. This separation has caused them anguish
and depression, especially Mr. Hernandez, since he is
aware that returning to Mexico is not an option for him
at this time as treatment is not available where he lives.
63a
Seeing his children again would be very supportive to
him and to the Children.
Since Mr. Hernandez’s accident occurred while he was
at work, his medical expenses are covered and he receives
weekly compensation checks from his Worker’s Com-
pensation insurance.
We greatly appreciate your attention in this situation and
hope you are able to help Mr. and ‘Mrs. Hernandez’s
children to come and stay with them until his rehabilita-
tion is finished and he returns to his home in Mexico.
/s/ CARMEN G. PENA
Carmen G. Pena, C.S.W.
Medical Social Worker
/s/ W. H. DONOVAN, M.D.
William H. Donovan, M.D.
Attending Physician
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.