# Petition — Sea-Land Service, Inc. v. Akermanis

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 461 U.S. 927

## Text

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SEA-LAND SERVICE, INC.,
Petitioner,
—against—
CARL O. AKERMANIS,
Respondent.

ON PETITION FOR AWRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION OF SEA-LAND SERVICE, INC.
FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT

JOSEPH T. STEARNS

40 Wall Street

New York, New York 10005
(212) 344-4700

Aitorney for Petitioner
WALKER & CORSA

SANDRA R. M. GLUCK
Of Counsel

QUESTIONS PRESENTED FOR REVIEW

1. Where respondent consented in district court to a Judge-
ment on a Reduced Verdict in response to the trial court’s offer
of a “remittitur” which was beyond the power of that court to
grant, did the Court of Appeals lack jurisuiction to entertain
his cross-appeal?

2. When the district court granted a new trial on “the
liability issues” in the event the “remittitur” was not accepted,
was it a violation of the United States Const. amend. VIi and
the Judiciary Act of 1789 for the Court of Appeals, after
having concluded that the “remittitur” accepted by respondent
could not validly have been offered, to re-examine facts found
by a jury by its own review of the evidence at trial for the
stated purpose upon remand of “focus{ing] the district court’s
attention on matters that may obviate the need for a new
trial. . .”?

3. Can the Court of Appeals remand a case to a district
court for “further consideration consistent with. . . [its]...
opinion” and ask for a re-exercise of discretion on an issue
upon which the Court of Appeals has held the district court
had already acted without abuse or mistake in law?

4. Where a district court orders a new trial in response to a
motion pursuant to Rule 59 Fed.R.Civ.P. because of “clear and
serious” error by the jury on a finding of fact, and is held by
the Court of Appeals to in all respects have applied the law
correctly and not to otherwise have abused its discretion, can
the Court of Appeals properly issue an advisory opinion in
order to “focus the district court’s attention” on an alternative
interpretation of how the jury might conceivably have inter-
preted the facts, in order to reach a result more pleasing to the
Court of Appeals, without improperly impairing the subse-
quent exercise of discretion of the district court?

5. If the Court of Appeals was required to affirm the district
court’s grant of a new trial, because in all respects it correctly
understood and applied the law and did not abuse its discre-
tion, should the Court of Appeals have ordered a complete
new trial on all issues of liability and damages ? In a seaman’s
comparative fault personal injury case brought pursuant to 46
U.S.C. § 688 et seq. (the Jones Act) are the liability issues ever
“completely separable” from the issue of damages and were
they in this case?

eee

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..........
TABLES OF ALPES ENED cv iscccdecvoscvcctevaces
PETITES WEEAI ccccccetocneccetesseccsvensces

FUMIO EOE So ekr ana teucdusededeesedivecvenss

REASONS FOR GRANTING THE WRIT:

A. THE COURT OF APPEALS ERRED IN DE-
TERMINING THAT IT HAD JURISDICTION
TO ENTERTAIN RESPONDENT'S CROSS-AP-

B. THE COURT OF APPEALS RE-EXAMINED
FACTS FOUND BY THE JURY IN VIOLATION
OF THE UNITED STATES CONSTITUTION
AMEND. VII AND IMPERMISSIBLY INTER-
FERED WITH THE DISCRETION OF THE
EDS E GAIIRE b0deccervecvesanscceesces

C. THE ISSUES OF LIABILITY AND DAMAGES
WERE INSEPARABLE AND THE COURT OF
APPEALS ERRED IN AFFIRMING THIS AS-
PECT OF THE DiSTRICT COURT’S DECI-
WINE cnc cvassepecscnnecesvsaccecsbesseccees

APPENDIX A

Decision of the Court of Appeals filed September
Ue cs Kiara Ucdhwe Reh eeeeaa Reet eT een

14

19

24

27

APPENDIX B

Decision of the Court of Appeals dated October

28, 1982 denying Petitioner's Motion for Re-

hearing and Suggestion for Rehearing En Banc ..
APPENDIX C

Memorandum Opinion and Order of the United
States District Court, S.D.N.Y. dated October 14,
CN CUe Le cea CEL ehe cate he knta dneseee wena

APPENDIX D

Order of the United States District Court dated
November 2, 1981 denying Defendant’s Motion
Se NL obo be bean Ws anabe ben véskceves

APPENDIX E

Judgment On A Reduced Verdict entered Novem-
EE hoes cis veseee ee anthbebteeeensas

APPENDIX F

Memorandum Opinion and Order of the United
States District Court dated January 18, 1983 ....

APPENDIX G

CE TOG SEUe TROOONG accexvecacscccesees

APPENDIX H

Consent to Reduce Jury Verdict.............65.

PAGE

B-1

C-1

D-1

E-1

F-]

TABLE OF AUTHORITIES
CASES PAGE

Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350 (4th
Sb EE 000.055 00d £040 sR eRe Eee caee ee 20

Akermanis v. Sea-Land Service, Inc., 521 F.Supp. 44
(SDNY 1981), rev’d and remanded, 688 F.2d 898 (2d
Gay El wk eae 0550500405 SRE eee passim

Bevevino v. M.S. Saydjari, 574 F.2d 676 (2d Cir. 1978). 4

Compton v. Luckenbach Overseas Corporation, 425
Fie COS CE SPTEN a boc a Ndesccecueweseneawsel 18, 20

Donovan v. Penn Shipping Co., Inc., 429 U.S. 648

(1977), affirming per curiam, Donovan v. Penn Ship-
ping Co., Inc., 536 F.2d 536 (2d Cir. 1976)....... 6, 14, 15,
16, 25, 27

Fairmount Glassworks v. Cub Fork Coal Co., 287 U.S.
RUE 6 ais 505 40ds bd bene eeneeensiaacteeeee 18, 20

Gasoline Products v. Champlin Refining Co., 283 U.S.
eh igs EERE CET ECE ree re 3, 25, 26, 2/7

Landry v. Two R. Drilling Co., 511 F.2d 138 (Sth Cir.
CONES «Seb winnn 0000 sa eos tenes hea banneceeeane 24, 26

Mattox v. News Syndicate Co., 176 F.2d 897 (2d Cir.),
C666. GON. Fee WD. SIS Ps oot vv kcustenccaveeus 16

Morgan v. Consolidated Rail Corp., 509 F. Supp. 281
Se FU 00 0b. i5'0-600nkne ca censens cneeab waa 21

Norfolk Southern Railroad Co. v. Ferebee, 238 U.S. 269
SOEa w0doutk0.60000400 504506000 SREREE eS eee 24, 27

Portman v. American Home Products Corp., 201 F.2d
Ee Wee ee SOE eo bccncccccatesavenwanadewesuaen 18, 20

Rivera v. Farrell Lines, Ltd., 474 F.2d 255 (2d Cir. 1973),
COk, GR. SES UD. GEE CaP ra ivcas cucnrcavasecnctens 25

vi

Stevenson v. Hearst Consol. Publications, Inc., 214 F.2d

PAGE

Pee AE, COs cabs diecniccessvoscpudecsrenews 21
Thompson v. Camp, 167 F.2d 733 (6th Cir.), cert. den.,
Bae Ce, CONTE chive cdevecctccucessconetccctes 24
United States ex rel. GREENHALGH vy. F.D. Rich Co.,
Inc., $20 F.2d 886 (9th Cir. 197S).........ceeeeeees 21
Westerman v. Sears, Roebuck & Co., 577 F.2d 873 (Sth
GO SOU SSS oes Rescue Csuecedesebarevasanedaced 16
Woodworth v. Chesbrough, 244 U.S. 79 (1917). ....... 16
STATUTES
in Bie" i PP rrrrrerryr er reere rere i, 2, 19, 20
Federal Statutes:
Be APs GRUMEED cckccesviecesesacseussenene 2
45 U.S.C. § 51 et seq. (Federal apes Liability
PE ED Sedcccetvecvicserescccsnerecsss 2
46 U.S.C. § 688 et sez. (Jones Act).........0006- oe
Judiciary Act of 1789, C.20, 1 Stat. at L.84, § 22 i,
2, 20
Federal Rules of Civil Procedure:
DD NN 5.604 va ad eee de tdewanetddsancrasecess 7
PE Cea cbapecveertsnsevkecesakaceen L 5, 4, 7,-90
Supreme Court Rules:
gS Peer rrr rere ye Ter trae ce 27
ee re errr Ser rrr eT eee Ti 27

Vii

TREATISES

Moore’s Federal Practice, 2nd Ed., V. 6A .........44.

Prosser, Law of Torts, 4th Ed

PAGE

PETITION OF SEA-LAND SERVICE, INC.*
FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT

OPINIONS BELOW

The decision of the Court of Appeals filed September 14,
1982 reversing the district court’s judgment and remanding the
case for further consideration consistent with the opinion,
reported in 688 F.2d 898, is reprinted in Appendix “A.”** The
decision of the Court of Appeals dated October 28, 1982
denying petitioner’s motion for rehearing and suggestion for
rehearing en banc appears here in Appendix “B.” The memo-
randum opinion of the United States District Court, Southern
District of New York of October 14, 1981 deciding petitioner’s
motion pursuant to Rule 59 Fed.R. Civ.P. by granting a new
trial on “liability issues” in the event respondent should not
accept a “remittitur” is reported at 521 F. Supp. 44 and is
reprinted in Appendix “C.” The opinion of the district court
denying petitioner’s motion for reargument of that decision is
reprinted in Appendix “D.” The Judgment on a Reduced
Verdict from which appeal was taken to the United States
Court of Appeals, Second Circuit is reprinted in Appendix
“E.” The decision of the district court on remand, which is
dated January 18, 1983, directing entry of judgment on the
jury verdict despite respondent’s agreement to accept the
Judgment on a Reduced Verdict, is here reprinted in Appendix
on”

: Parent companies:

R. J. Reynolds Industries, Inc.
Sea-Land Industries Investments, Inc.

Affiliates:

Sea-Land Industries, Inc.

Sea-Land Industries (Bermuda) Ltd.
Sea-Land Industries, U.S.A., Inc.
Sea Readiness, Inc.

= References to material included in the Appendices will be referred to

as “App.” followed by the appropriate letter.

JURISDICTION

Petitioner seeks review of a decision of the Court of Appeals
for the Second Circuit filed September 14, 1982. By order
dated October 28, 1982, the Court of Appeals denied peti-
tioner’s petition for rehearing and suggestion for rehearing en
banc. The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).

STATUTES INVOLVED

U.S. CONST. amend. VII:

In suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall
be preserved, and no fact tried by a jury, shall be
otherwise re-examined in any Court of the United States,
than according to the rules of common law.

Judiciary Act of 1789, C.20, 1 Stat. at L.84:

Sec. 22. And be in further enacted, That final decrees
and judgments in civil actions in a district court, where
the matter in dispute exceeds the sum or value of fifty
dollars, exclusive of costs, may be re-examined, and
reversed or affirmed in a circuit court, holden in the same
district, upon a writ of error,**** (a) And upon a like
process, may final judgments and decrees in civil actions,
and suits in equity in a circuit court, *** be re-examined
and reversed or affirmed in the Supreme Court, **** (b)
But there shall be no reversal in either court on such writ
of error for **** any error in fact. ****

46 U.S.C. § 688 (Jones Act); 45 U.S.C. § 51 ef seq. (Federal
Employers’ Liability Act [FELA]).

STATEMENT OF THE CASE

Trial in the United States District Court, Southern District of
New York of this Jones Act' seaman’s personal injury action
resulted in a jury verdict in respondent’s favor on June 26,
1981 in the amount of $528,000 subject to reduction on
account of the jury’s finding (by special verdict) of respon-
dent’s 4% comparative fault.’ Petitioner’s motion for a new

1
2

46 U.S.C. §§ 688 ef. seq.

Certain elements of respondent’s damages were discounted by the
district court to present value reflecting inflation by agreement of the
parties. The verdict thus reduced was $489,514.61. Respondent never
reported his shipboard accident which he said occurred on June 4,
1977 and caused injury to his neck. At the time of this “injury,” which
was initially diagnosed as “sore neck muscles” and could not have
involved more than a sprain, he was suffering, at age 59, from the
effects of ancient cervical arthritis so severe that his treating doctor
testified that had he examined respondent before his injury he would
have “disqualified” him from work as a merchant seaman [App. G-6].

The jury damage verdict was in an amount within a few hundred
dollars of what was asked for in summation [App. G-8] and was
returned after the jury, despite an explicit charge on damages, inquired
whether they were required to “install figures” for damages [App.
G-9]. By special verdict the jury awarded $250,000 on account of pain
and suffering for what could only have been an aggravation of a
pre-existing condition, despite reference in respondent's medical rec-
ords after the injury that “Tylenol keeps arthritic pain under control
. . .” [App. G-11]. The award for future lost wages, from the date of
the verdict to age 65 was $118,000. Between his retirement at max-
imum union pension shortly after the accident, until the time of trial,
respondent was hospitalized on five occasions, for among other things,
circulatory impairment caused by peripheral vascular disease (arterios-
clerosis) resulting in crippling pain when respondent walked less than
100 yards [App. G-10}.

The district court described the verdict as “undoubtedly generous”
(521 F. Supp. 52, App. C-13]. But, in fact, it was in all respects
aberrant and the result of respondent’s attorney’s misconduct in telling
the jury, without basis, that petitioner’s witnesses had lied when such
argument was colorable only because of an otherwise irrelevant gap in
the trial record. Failing to properly confront how the verdict was

4

trial pursuant to Rule 59 Fed.R.Civ.P. resulted in an opinion
and order of the district court (the Hon. Charles S. Haight,
Jr.) of October 14, 1981 (521 F. Supp. 44, S.D.N.Y. 1981)
conditionally granting a new trial ‘‘on the issues of liability
[oniy]’’ because, in the district court’s view, the jury finding of
but 4% contributory negligence was so low as to lead the trial
judge to conclude that: ‘‘[i]n the circumstances of this case, I
have no difficulty at all in concluding that the minimal percent-
age assigned to that fault constitutes clear and serious error’’
[521 F. Supp. at 50, App. C-9]. The granting of a partial new
trial was conditioned upon respondent refusing to accept a
‘*remittitur’’: not one involving reduction of the jury’s damage
award on account of excessiveness but achieving the same
effect by increasing respondent’s comparative fault from the
jury’s 4% to 25%, a figure which was arbitrarily adopted by
the district court after its canvass of headnotes in West’s
Federal Practice Digest under the topic ‘‘assumption of risk,
contributory negligence and division of damages’’ [521 F.
Supp. at 50, App. C-9].

On October 26, 1981 petitioner moved to reargue the district
court’s decision on grounds that the court’s “remittitur” was,
in fact, an illegal additur. Since the district court had correctly
applied the law with respect to when and in what circumstances
a new trial be granted,’ and assessed the facts with respect to
the issue of respondent’s comparative fault without abusing its
discretion, petitioner argued that the proposed “iemittitur” be

obtained, the district court and later the Court of Appeals, impermis-
sibly sought to avoid a retrial for reason, apparently, of “judicial
economy.”

3s The district court cited (at 521 F. Supp. 44, 48) Bevevino v. M.S.
Saydjari, 574 F.2d 676, 677, 683-684 (2d Cir. 1978) for its specific
approval of the rule set out in 6A Moore’s Federal Practice § 59.08[5},
at 59-160-59-161 (1973) which provides that the trial judge should
“abstain from interfering with the verdict unless it is quite clear that
the jury had reached a seriously erroneous result.” [521 F. Supp. at
47-48, App. C-4]. The correctness of this rule was reaffirmed by the
Court of Appeals’ decision in this case [688 F.2d at 905, App. A-3}].

5

recalled and an unconditional new trial granted. Upon reargu-
ment, petitioner also urged that the district court had mistak-
enly viewed the issues of comparative fault and damages as
“completely separable”* in this or any other Jones Act case
and that a new trial on all issues was required. Defendant’s
reargument motion was denied in all respects by the district
court’s order dated November 2, 1981 [App. D].

On November 9, 198] respondent accepted the district
court’s “remittitur” in lieu of a new trial on liability issues
[App. H] and consented to «1 Judgment on a Reduced Verdict
[App. E]. Petitioner appealed and respondent, despite his
consent to the judgment appealed from, cross-appealed. Upon
appeal both petitioner and respondent argued that the district
court was without power to order a “remittitur,” the latter
despite his consent. Petitioner additionally argued, as it had in
district court, that the district court’s re-examination of facts
found by the jury respecting respondent’s contributory negli-
gence was in no way influenced by any mistaken view of the
law, but that the “remittitur” was beyond the power of the
district court to grant and, accordingly that a new trial on, at
least, the liability issues was absolutely required. But again
petitioner argued that because the issues of liability and dam-
ages were not completely separable a new trial on all issues was
mandatory.

In his cross-appeal respondent, despite his consent to the
Judgment on a Reduced Verdict (which established the Court
of Appeals’ jurisdiction), sought judgment based on the jury
verdict and for that purpose joined petitioner’s argument that
the “remittitur,” which he had accepted in order to avoid a
retrial, was invalid. In support of his argument that the district
court had mistakenly concluded that the jury’s 4% finding was
unconscionably low, respondent argued nots that the trial judge
had misunderstood the facts, but on/y that he had confused the

4 The prerequisite for granting a partial new trial established in
Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494 (1931)
which the district court decision cited [521 F. Supp. at 58, App. C-25].

6

proscribed defense in Jones Act cases of assumption o/ risk
with contributory negligence. In reply, petitioner argued that
the Court of Appeals was without power to consider respond-
ent’s cross-appeal because of plaintiff's consent to the judg-
ment appealed from’ and that, in any event, since the district
court had made no mistake of law in deciding the contributory
negligence issue, and had properly applied the correct test of
when a new trial must be granted, the Court of Appeals was
required to affirm the grant of a new trial but order it to be
held on all, not just the liability issues.

On September 14, 1982 the Court of Appeals (688 F.2d 898)
reversed the district court’s judgment and remanded the case to
district court for “further consideration consistent with [its]
opinion.” The Court of Appeals held that the “remittitur” was
impe: missible; but instead of ordering a new trial even on the
liability issues as the decision of the district court had pro-
vided, it asked the trial court to reconsider its re-examination
of the facts found by the jury. As the opinion makes clear, this
request was the result of the Court of Appeals’ own re-exami-
nation of the facts and its perception that inferences and
conclusions different from those arrived at by the trial judge
could possibly explain or “justify” the jury's 4% finding of
comparative fault.

In sum, the Court of Appeals, without concluding: (1) that
the district court had committed legal error by misapplying the
law with respect to either comparative negligence or the grant-
ing of a new trial; or, (2) that the court’s analysis of the facts
was so mistaken as to constitute an abuse of discretion and,
hence, require reversal on grounds of legal error, or (3) that the
district court’s opinion was too unclear for such assessment to
be made, asked for a second consideration of the facts in order
that the district court might successfuliy reconcile the jury’s
4% finding with suggestions of novel and, indeed, not before

5 On authority of Donovan v, Penn Shipping Co., Inc, 429 U.S, 648
(1977), affirming per curiam, Donovan v, Penn Shippowg Co., Inc.,
$36 F.2d $36 (2d Cir, 1976),

argued, ‘‘theories’’ of plaintiff's contributory negligence of-
fered by the Court of Appeals’ upon its ‘town review of the
evidence. . .”’ [App. F-7].

On the basis of reference to Rule 50(c) Fed. R.Civ.P. provid-
ing for a conditional order of a new trial in the event of a grant
by a district court of a motion for judgment n.o.v., the Court
of Appeals concluded that it was ‘‘entirely appropriate to
entertain the cross-appeal in this case’’ [688 F.2d at 904, App.
A-9] as a result of which the appeals court was ‘‘afford{ed]

. . the opportunity to focus the district court's attention on
matters that may obviate the need for a new trial or at least
limit its scope’’ [/d.]. The Court of Appeals then ‘‘turned to”’
the cross-appeal for purposes of proposing a new factual
theory of plaintiff's contributory negligence not mentioned in
the summation of either party or argued to the district court on
the post-trial motion. The purpose of this focusing of attention
was clearly to encourage the district court to attempt to
reconcile its view of the propriety of the jury’s contributory
negligence finding with the Court of Appeals’ view of another
‘possible’ basis of the jury’s finding of contributory negli-
gence—that respondent had been negligent ‘in the manner in
which he performed his work’’ [688 F.2d at 905, App. A-10).

This usual demonstration of contributory negligence had not
been argued in district court. Instead, the question of contribu-
tory negligence had focused upon the ‘‘continuing-to-work”’
theory in that plaintiff was not ordered or otherwise required
to perform the work renewing pedestal supports on-deck at the
time of his injury, which he had said had occurred in weather
conditions which were only a “‘little bit too rough’’ [App.
G-2]. This ‘‘theory,’’ that respondent ‘‘could have, by an
alternate course of conduct, avoided the danger’’ [521 F.
Supp. at 49, App. C-6] was the only basis for evaluation of
contributory negligence considered by the district court in the
Rule 59 Fed.R.Civ.P. motion, Properly so.

In the determination of the post-trial motion Judge Haight,
after first acknowledging the unquestionably sound principle

8

applicable to Jones Act cases—-that mere continuing to work in
the face of unsafe conditions is not basis, without more, for a
finding of contributory negligence—concluded upon thorough
review of the facts that there had been a requisite safe alterna-
tive admitted in plaintiff's testimony. At 521 F. Supp. 49
{App. C-7] the district court found as ‘‘essentially undisputed
facts’’: (1) that the project of replacing the on-deck fittings had
been going on for a period of a week, ten days, possibly
longer; (2) that plaintiff had been preparing some of the
replacement fittings while the vessel was in the Mediterranean
and that the weather [there] was ‘‘real beautiful’’; (3) that
plaintiff, while given a number of projects, exercised a consid-
erable degree of personal control as to which project he would
work upon at what time and (4) that the accident occurred on a
Saturday which was an overtime day on which plaintiff was
not required to work at all, unless he wished to accrue
overtime, On these bases, the district court found support for
defendant’s argument that ‘plaintiff could have performed
this work while the vessel was still sailing in the beautiful
weather of the relatively sheltered Mediterranean; or, the vessel
having progressed into the North Atlantic, he could have
deferred the work until a different time if the weather condi-
tions at a given moment created a hazardous condition,”’ [521
F, Supp. at 49, App. C-7; emphasis added.]

On the basis of this analysis of the facts the trial judge
concluded that he:

. . » [did] not hold that a 4% allocation of contributory
negligence can never be appropriate. But | do conclude
that, in the circumstances of this case, it cannot be. As the
defendant accurately states. . ., this is a case “tin which
plaintiff was working voluntarily on overtime and in
which he admitted that he exercised discretion as to when
and how he would perform this routine task.’’ No com-
pulsion to do this work at this time appears, Plaintiff
could have reasonably foreseen that it would be safer to
do burning and finishing on an exposed deck in the
Mediterranean rather than the North Atlantic, [521 F.
Supp. at 51; App. C-9, 10).

9

On January 18, 1983, in response to the obvious wish of the
Court of Appeals, the district court reversed itself entirely and
held that the jury assessment of the facts respecting contribu-
tory negligence had ‘‘not persuaded [him] that a four percent
contributory negligence factor is against the weight of the
evidence, thereby constituting serious error’’ [App. F-11],
despite having initially concluding that he had had ‘‘no diffi-
culty at all in concluding that the minimal percentage assigned
to that fault constitutes clear and serious error’’ [App. C-9]}.

The district court was specifically directed by the Court of
Appeals to first ‘‘consider whether the ‘work performance’
theory of contributory negligence finds enough support in the
evidence. . . to justify the four percent factor’’ and instructed
that ‘‘[i]f [the district court] concludes it does not, then [its]
order for a new trial will stand,’’ [688 F.2d at 905; App. A-11,
emphasis added]. If the district court found the 4% factor to
be justified on the basis of ‘‘work performance’’ negligence, it
had then to consider whether the jury had erred in not
attributing fault to plaintiff for negligently exercising his dis-
cretion, The trial court discharged its dual mandate and or-
dered entry of judgment on the jury verdict after concluding
that a four percent assessment for ‘‘work performance,”’ did
not ‘‘bring[ ] about a ‘seriously erroneous result.’ ’’ [App. F-8]
and that respondent’s ‘‘continuing-to-work,’’ upon which the
court’s original holding was based, could be ignored.

But whether the district court fairly weighed the ‘‘work
performance’’ evidence, assuming contrary to fact that any
existed, is by no means clear. In discessing this ‘‘issue’’ the
district court referred only to respondent’s argument in sum-
mation [App. F-7, n. 1] that he had been doing the work in the
only manner possible (i.e. which is properly an argument
against, not for, ‘‘work performance’’ negligence) because this
supposedly demonstrated that plaintiff had had ‘‘little room
for maneuver;’’ as well as to petitioner’s summation argument
(on the issue of proximate cause rather than contributory
negligence, which the court acknowledged) that the injury had
been wholly the result of a ‘‘momentary lapse of carelessness
on [respondent’s] part’’ [App. F-7, F-8, n. 2].

10

It would, therefore, seem that if the jury assessed four
percent for ‘‘work perfurmance”’ they did so in error and only
because of this understandable failure (assumed by the district
court [App. F-8, n. 2]) to grasp the significance of the contrib-
utory negligence/proximate cause distinction. To correct such
error, whether due to disobedience of instructions or under-
standable error is the principal office of a Rule 59
Fed.R.Civ.P. motion. But the test of whether the motion
should be granted is not whether the jury result can be
explained but, as the Court of Appeals said, whether it can be
‘*justified.’’ The motion is, of course, addressed to the trial
court’s conscience—to assess whether or not the verdict is
clearly wrong, not to explain or reconcile how a jury mistake
might have been made.

Whether, despite the district court’s apparent correct percep-
tion of the true basis of the motion, the correct test was
applied upon this ‘‘re-consideration’’ is, unfortunately, much
to be doubted. For in conclusion, Judge Haight said: ‘‘[m]y
own ‘feel’ for the case [to which the district court said it
thought the Court of Appeals had extended only ‘a certain
deference’ (App. F-9)] is that it was on this [continuing-to-
work] theory of contributory negligence that the jury held
plaintiff entitled to recover less than his full damages’’ [App.
F-11]. Sound enough. Why else was the ‘‘work performance’’
theory not charged and not raised before oral argument when
introduced by the Court of Appeals? The exhaustion of what
remained of the district court’s discretion could not have been
more poignantly expressed. In short, the district court ex-
plained the verdict rather than justified it. How, after all, cana
result based on a mistake be justified and why is not the trial
court’s ‘‘feel’’ rather than the appeals court’s rationalization
controlling?

Having decided that the jury’s error—what the court as-
sumed was its misperception of the contributory negligence
issue—‘‘justified’’ the verdict, the district court, as was neces-
sary in order to achieve the result sought by the Court of
Appeals, next proceeded to consider the second aspect of the

appeals court mandate: reconsideration of the proof respecting
the ‘‘continuing-to-work’’ contributory negligence theory
which had, of course, to be all but entirely discounted if on
reconsideration a new trial motion was to be denied. Dis-
counted it was, but in a way which the Court of Appeals had
not apparently thought possible, despite its own review of the
facts and assumed thorough familiarity with the district court’s
opinion which had not led it to suggest even the possibility of
error on this basis.

The Court of Appeals, with ample reason, characterized the
district court’s assessment of the ‘‘continuing-to-work”’ theory

f contributory negligence as ** . . . based on a conclusion
that Akermanis had authority to schedule his own work and
that he exercised poor judgment by agreeing to work on the
Los Angeles’ deck on June 4, 1977, when he might have
deferred the task to another day.’’ [688 F.2d at 904, App.
A-9]. The Court went on to state:

**fi}f that was the jury’s conciusion, then, based on the
evidence presented at trial, Judge Haight was acting
within his broad discretion in ruling that a finding of only
4% contributory negligence was against the weight of the
evidence and that a new trial should be granted.”’ [/d.]

In its most recent opinion, the district court characterized
this aspect of respondent’s contributory negligence as based on
the claim that respondent ‘‘should have refused to perform the
work in question in the conditions that prevailed on June 4”’
which the district court said was ‘‘a significantly different, and
from defendant’s point of view less appealing, proposition’’
from the question whether plaintiff should have performed this
work before that time while the vessel was in the Mediterra-
nean [App. F-10]; despite the fact that respondent was not
ordered to work on-deck that morning. He was, rather, asked
to continue work on the pedestal renewals by doing work either
underdecks or on-deck. At the time of the request, the morning
of June 4, 1977, respondent testified that ‘‘ . . . new parts
were to be made’’ [App. G-]]—work which would have been

12

done in the machine shop underdecks. Respondent was given
**no list’? [App. G-3] and the respect accorded one engineer by
another was inconsistent with his being told when and how to
do the routine work assigned [App. G-5]. Far from being less
appealing, respondent’s option to defer the work was the
substantial contributory negligence argument offered the jury.°

Instead of extensively considering respondent’s options on
the day of the injury—which the Court of Appeals had already
held to be sufficient basis for setting aside the jury’s verdict—
the district court primarily dealt with respondent’s discretion
prior thereto. The district court then proceeded to deal with
this less important argument by extended reference to respond-
ent’s overtime sheets for the voyage [App. F-9, 10].’ But
respondent’s options prior to the day of his accident was but
one of four ‘‘continuing-to-work”’ considerations including the
essentially undisputed one ‘‘that plaintiff, while given a num-
ber of projects . . ., exercised a considerable degree of per-
sonal control as to which project he would work upon at what
time’’ [521 F. Supp. at 49, App. C-7] which had led the district

6 In summation, petitioner framed the issue as follows:

Did he have to do the burning that morning? Could he have waited
until the afternoon? Could he have waited until the next day? The
answer clearly is yes. [App. G-7].

7 These overtime sheets allegedly demonstrate that respondent spent
some sixteen hours prior to June 4 working on this task. But this is in
direct conflict with his trial testimony that it would not have taken
more than 15 or 20 minutes to burn off the old angle irons [App. G-4;
emphasis added]; and that the replacements ‘* ‘didn’t take long to
make it [sic]. You don’t have to work for days. | could make four, five
in one day or maybe six, maybe all eight.’ ’’ [521 F.Supp. at 50; App.
C-8; emphasis added]. It is apparent that the district court’s most
recent opinion, reconsidering evidence heard some eighteen months
previously, seized on but one item of evidence without benefit of other
evidence which could put it into proper context. This deus ex machina
approach is, we submit, inevitable if district courts are to be placed in
the position of having to ‘‘reconsider’’ opinions granting new trials in
the absence of error of law or abuse of discretion.

13

court to originally hold that ‘‘[n]o compulsion to do this work
at this time appears’’ [521 F. Supp. at 51, App. C-10].

The district court in reconsidering the motion dealt with this
true ‘‘continuing-to-work’’ argument for contributory negli-
gence by concluding that ‘‘the chief engineer had made it plain
that he wished the work completed before the vessel reached
Rotterdam”’ [App. F-10]" and that plaintiff had, on June 4,
1977, been told to ‘‘resume burning and welding work on-
deck’’ and that the first assistant engineer had ‘‘reiterated [his]
direction that the work be performed that morning’’ [App.
F-11, emphasis supplied].

But respondent was not told to work on-deck; he was only
asked to continue a work assignment having both on-deck and
underdeck components [see pp. 11-12, supra]. Thus, although
he may have been told (as he testified) to resume burning,
welding and fabricating ‘‘work’’ that morning, that did not
mean that he was required to commence working on-deck in
the face of what he considered to be unsafe conditions.
According to his own testimony, respondent had ample discre-
tion as to ‘* ‘when and how he would perform this routine
task’ ’’ [521 F.Supp. at 51; App. C-9, 10]; and he could,
therefore, have deferred the on-deck work in favor of fabricat-

8 There is no such testimony in the record. The court was apparently
relying on the unfounded assertion of respondent's counsel in the
parties’ most recent submissions to the court that ‘the vessel arrived in
Rotterdam on June 6, 1977. . . where the crane was used to unload
other cargo. Consequently an inference may be drawn that the work
had to be completed since it could not be done in port and work was
required on the crane before discharge on June 6, 1977."’ [Plaintiff's
Trial (sic) Brief, Dec. 17, 1982 at p. 16, emphasis added.] This
argument is baseless for the simple reason that respondent was not
repairing the crane itself but an angle iron atop a pedestal which
provided a resting place for the crane’s securing turnbuckles which
respondent's own expert described as not involving the ‘‘safety of the
vessel’’, There was no testimony that any of these angle irons had to be
renewed by any particular date, or that if there was no angle iron
present the turnbuckle could not safely have been supported on the
pedestal itself.

14

ing new parts in the underdecks machine shop until conditions,
in his view, improved (as they did by no later than 12:00 noon
that same day when the wind force was but 3-4 (Beaufort scale)
about 1% hours after the accident) [Deck Log, June 4, 1977].

The district court’s analysis is, we respectfully submit, defi-
cient on account of its failure to discriminate between the
underdeck and on-deck work which respondent himself testi-
fied he was told the chief engineer wanted him to continue that
morning. It focuses almost entirely on what was in the mind of
the judge at the time he originally determined the new trial
motion (the ‘‘Mediterranean’’ argument), but does not address
the holding by the Court of Appeals that he would have been
justified, based on the evidence, in ordering a new trial if he
believed that the jury had concluded respondent should have
deferred the work to later that day or the following day. Since
Judge Haight states that it is his opinion that the jury did so
conclude [App. F-11], was he not bound to adhere to his
original ruling?

REASONS FOR GRANTING THE WRIT

A.

THE COURT OF APPEALS ERRED IN DETERMINING
THAT IT HAD JURISDICTION TO ENTERTAIN
RESPONDENT'S CROSS-APPEAL

Despite this Court’s reaffirmance of “. . . the long-standing
rule that a plaintiff in federal court, whether prosecuting a
state or federal cause of action, may not appeal from a
remittitur order he has accepted” (Donovan v. Penn Shipping
Co., Inc., et al., 429 U.S. 648 [1977], affirming per curiam,
536 F.2d 536 [2d Cir. 1976}), the Court of Appeals refused to
apply the rule because of what it characterized as its rationale:
“waiver and efficiency” [688 F.2d at 903, App. A-7]. Respond-
ent’s consent to the Judgment on a Reduced Verdict was
disposed of as follows:

15

Now that we have adjudicated Sea-Land’s appeal and
agreed with appellant that the District Judge lacked the
power to condition the new trial order on a remittitur
adjusting the contributory negligence percentage, the first
step in ordering relief with respect to the appeal is, as
Sea-Land requests, to vacate the judgment entered upon
the reduced award on the ground that its entry was
erroneous. Once we do that, it is conceptually difficult
and practically unfair to think of the plaintiff as having
waived a cross-appeal by consenting to a judgment that
no longer exists. [688 F.2d at 903, App. A-7].

Apart from its dubious logic, this argument does not begin to
address the substantive issue presented by the agreement of but
one party to a particular disposition as that agreement affects
the rights of the other party. The important point is not
whether the judgment was of a kind which the district court
was authorized to offer, but the fact of respondent’s consent in
order to avoid a retrial on “the liability issues” with attendant
possibility of a defendant’s verdict or assessment by a second
jury of contributory negligence significantly greater than the
25% proposed by the district court. Nowhere, petitioner re-
spectfully submits, does the Court of Appeals come to grips
with that central issue.’

The authorities cited by the Court of Appeals in its opinion
and by this Court in its per curiam opinion in Donovan v.
Penn Shipping Co., Inc., supra make plain that the bar to

9 As was noted by a majority in the Court of Appeals in Donovan v.
Penn Shipping Co., 536 F.2d at 538:

The prejudice to the defendant in allowing the plaintiff to bypass
the second trial and obtain direct review of the remittitur is
therefore obvious. The defendant's right to have the second jury
consider the issue of damages, although conditioned upon the
plaintiff having first rejected the remittitur is nonetheless a valuable
one. It should not be lightly disregarded. Furthermore, in those rare
instances where a second trial is required, it provides yet an
additional gauge by which the Court of Appeals can judge the
propriety of the remittitur.

16

appeal by a party who has accepted a remittitur includes
cross-appeals. Mattox v. News Syndicate Co., 176 F.2d 897,
904 (2d Cir.), cert. den., 338 U.S. 858 (1949); Woodworth v.
Chesbrough, 244 U.S. 79 (1917) cited in Donovan v. Penn
Shipping Co., 429 U.S. at 649. See, also, Westerman v. Sears,
Roebuck & Co., 577 F.2d 873, 883 (Sth Cir. 1978). However,
under the rule fashioned by the Court of Appeals in this case,
which in effect permits the courts to ignore a consent to a
remittitur in circumstances where the underlying judgment “no
longer exists,” it can be anticipated that as a practical matter
the Donovan rule will not apply to many cross-appeals. This
“exception” would arise in any case where a defendant has
successfully appealed for a new trial on a liability issue and
plaintiff, who has accepted a remittitur of damages, cross-ap-
peals—for in each of those cases, too, the reduced iudgment
which had been consented to would “no longer exist” in the
event of a defendant's successful appeal and the Court of
Appeals would be required to consider plaintiff's cross-appeal.
It is not difficult to foresee that a defendant might forego a
powerful argument that a mistake was made in the court’s
conduct of the trial—for example, in the charge on a liability
issue—lest it face, should its argument succeed, restoration of
the jury’s damage assessment despite plaintiff's agreement that
such award was too high.'°

The appeals court's discussion of the “efficiency” rationale
of Donovan v. Penn Shipping Co., supra is, thus, badly flawed

10 In this case petitioner claimed that respondent had sustained no
damages, an argument which the district court expressly acknowl-
edged. See, 521 F. Supp. at 47 [App. C-3]. Since some damage is an
element of proof required to establish liability in any negligence case,
the holding by the Court of Appeals in this case that the issues of
liability and damages were “completely separable,” although obviously
wrong, would seemingly allow such holding in any case. It can
therefore be anticipated that cross-appeals concerning accepted remitti-
turs will be brought every time defendant appeals on liability, against
the possibility that the Court of Appeals will agree that remittitur
should not have been granted and, as here, “holds” the jury verdict
and orders retrial of liability only.

17

and not just to the extent already indicated. The discussion of
“efficiency” was obviously intended to be restricted to this
case, and was but the springboard for an advisory opinion
designed to influence the district court. Thus the Court of
Appeals determined that the efficiency argument was “less
persuasive” in this case for the following reasons:

. . .Normally, when an appellate court dismisses the ap-
peal or cross-appeal of a plaintiff who has accepted a
remittitur, the burden on the court system is reduced
because there will be neither an appeal nor a new trial.
That is not true in this case. If we dismiss the cross-appeal
and simply return the case to the District Court for a new
trial, now that the conditional aspect of the new trial
order has ben excised, there would clearly be less of a
burden on this Court. But that course would add consid-
erably to the burden on the District Court, which would
have to conduct a trial that the cross-appellant is prepared
now to show us should never have been ordered. [688 F.2d
at 903, App. A-7, 8; emphasis added.]

On the facts of this case, had respondent joined in peti-
tioner’s argument to the district court that it could not sup-
plant a jury’s finding of contributory negligence with one of its
own, instead of accepting the benefit of a decision which he
later argued was illegal, the trial judge, faced with the unusual
circumstance of agreement to error by both parties, might well
have himself “excised” his mistaken “remittitur.”'' And, of
course, it is hardly enough to say that this case is “unusual”
[688 F.2d at 904, App. A-9]; for that does not necessarily mean

11 Of all the curious aspects of this curious case, the most curious is
how respondent succeeded in exploiting the district court's error with
the assistance of the Court of Appeals. Perhaps the time has passed for
argument that the bar is, at least to some extent, obliged to relieve the
bench of the embarrassment which follows an obvious error, Not every
member of the federal bench is entirely familiar with the correct means
by which the courts can redress a jury error, But respondent's counsel
was.

18

that the Court of Appeals’ holding will be as limited (i.e., to
this case on/y) as that court perhaps believes.

The real premise of the court’s argument concerning sup-
posed efficiency—“cross-appellant is prepared now to show us
{that a new trial] should never have been ordered” [App.
A-9]—is false for the simplest reason: respondent failed to
make the required showing. Indeed, the showing offered was
not the demonstration which the Court of Appeals found
persuasive. In truth, the Court of Appeals “turned to” and
“entertained” the cross-appeal only in order to permit the
Court of Appeals to show the district court why a new trial
need not be ordered.

It is instructive to review the brief filed by respondent in the
Court of Appeals, for it demonstrates that a@// respondent was
prepared to show was that the district court had erred as a
matter of law in characterizing respondent’s failure to properly
exercise his discretion as comparative fault (respondent arguing
that this in fact constituted the proscribed defense of assump-
tion of risk). But the Court of Appeals specifically held that
the district court had not so crred [688 F.2d at 904, App. A-9].

Surely, as of the time of the filing of the Court of Appeals’
opinion, it was apparent that respondent was unprepared to
show that the new trial should not have been ordered, having
demonstrated neither legal error nor abuse of discretion which
are the sole proper predicates for a reversal by the Court of
Appeals on the new trial issue. See, Portman vy. American
Home Products Corp., 201 F.2d 847, 848 (2d Cir. 1953);
Compton v. Luckenbach Overseas Corporation, 425 F.2d 1130
(2d Cir. 1970); Fairmount Glassworks v. Cub Fork Coal Co.,
287 U.S. 474, 481 (1933) and see, also, pp. 20 to 21, infra. In
sum, the argument that the Court of Appeals could quickly
and efficiently dispose of the new trial issue without retrial was
not based on any showing which respondent could make, but
upon the issuance of an advisory opinion by the Court of
Appeals.

19

The opinion of the Court of Appeals is improper for two
reasons: (1) it represents an unconstitutional re-examinction of
the facts by the appeals court when this right, by the Seventh
Amendment of the United States Constitution, is reserved
exclusively to the district courts; and, (2) once the Court of
Appeais vacated the Judgment on a Reduced Verdict by hold-
ing the remittitur invalid, the court divested itself of jurisdic-
tion to further consider an appeal from a non-final order (for a
new trial). Surely, this Court has never before been confronted
with a decision of a Court of Appeals where that court neither
affirmed, reversed nor remanded for an essential clarifica-
tion."? The Second Circuit “entertained” the cross-appeal but
heid only: “[iJn short, the District Judge, upon remand, has
discretion whether or not to order a new trial” [688 F.2d at
905-06, App. A-11]. But this discretion had already been
exercised without demonstrated abuse or other legal error.
What ensued was a most unfortunate surrender by the district
court of its constitutional prerogative. We respectfully submit
that “judicial economy” cannot be purchased at such great
cost.

THE COURT OF APPEALS RE-EXAMINED FACTS

FOUND BY THE JURY IN VIOLATION OF THE UNITED

STATES CONSTITUTION AMEND. VII AND IMPERMIS-

SIBLY INTERFERED WITH THE DISCRETION OF THE
DISTRICT COURT.

Having determined that it should entertain the cross-appeal
notwiths:anding respondent’s consent to the reduced judg-
ment, and despite the resulting non-finality of the district
court’s order for a new trial, the Court of Appeals proceeded
to ignore the proper scope of appellate review in considering an

12 Or even for further proceedings consistent with a holding by the
appeals court affecting a decision already made. Here, the remand was
for further “consideration” of an issue entirely independent of the
validity of the remittitur (which was the only matter upon which the
appeals court reversed),

20

order granting or denying a new trial. This Court has long held
that neither it nor the circuit courts of appeals will *. . .
review the action of a federal trial court in granting or denying
a motion for a new trial for error of fact. . ."" [Fairmount
Glassworks vy. Cub Fork Coal Co., 287 U.S. at 481.] This rule
was restated by Hand, J. in Portman v. American Home
Products Corp., 201 F.2d at 848 as follows:

There may be errors that are not reviewable at all and
among those that are not are erroneous orders granting or
denying motions to set aside verdicts on the ground that
they are against the weight of the evidence.

See, also, Compton vy. Luckenbach Overseas Corporation, 425
F.2d 1130 (2d Cir. 1970). As pointed out by this Court in
Fairmount Glassworks v. Cub Fork Coal Co., supra, the
formulation of this rule is rooted in this Court’s interpretation
of the Section 22 of the Judiciary Act of 1789,'° which
provided that there be ‘no reversal in either [circuit or su-
preme] court on such writ of error. . . for any error in fact.”’
This Court went on to state:

Sometimes the rule has been rested on that part of the
Seventh Amendment which provides that ‘tno fact tried
by a jury, shall be otherwise re-examined in any court of
the United States, than according to the rules of the
common law.’’ [footnote omitted.] More frequently the
reason given for the denial of review is that the granting
or refusing of a motion for a new trial is a matter within
the discretion of the trial court. [287 U.S. at 482).

The re-examination of facts found by a jury is permitted the
district courts since such power was exercised by the English
common law courts and is therefore embraced by the Seventh
Amendment [Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d
350, 353-354 (4th Cir. 1941)]. The function and proper role of
the Court of Appeals is limited to reviewing a trial court's

13 Act of September 24, 1979, chap, 20, 1 Stat. at L84, 85,

21

decision for errors of law or abuse of discretion. See, Steven-
son v. Hearst Consol. Publications, Inc., 214 F.2d 902, 910 (2d
Cir. 1954). In the instant case, the Court of Appeals identified
no such error of law or abuse of discretion. To the contrary, it
upheld the district court’s consideration of respondent's discre-
tion as a permissible head of comparative negligence [688 F.2d
at 904, App. A-9] and acknowledged that the district court
judge was acting within his broad discretion in finding that the
jury’s attribution of but 4% fault to plaintiff was seriously
erroneous so as to require a new trial [/d.].'"

Upon reaching that point in its analysis, the Court of
Appeals had no choice but to affirm the district court's
granting of a new trial. Such affirmance would have precluded
the district court judge from reconsidering his decision to grant
a new trial since the appeals court’s affirmance would have
made it the law of the case, United States ex rel.
GREENHALGH vy. F.D. Rich Co., Inc., 520 F.2d 886, 889
(9th Cir, 1975). Instead, the court went on to offer its own
review of the facts, positing that the jury’s aberrant verdict
might have bec justified by respondent's carelessness in per-
forming the task as opposed to his negligent exercise of
discretion as to when to perform it. In support of this theory,
the Court of Appeals seized upon a bare scrap of testimony
which, viewed in context of the entire trial and particularly
respondent’s difficulty with the English language, did not
mean at all what the Court of Appeals thought.'’ It is signifi-

14s It was the district court, not the Court of Appeals, which initially
cited Morgan v. Consolidated Rail Corp., 509 F. Supp, 281 (SDNY
1980) for the proposition that courts should be reluctant to overturn a
jury finding of negligence in an FELA [Jones Act] case. See 521 F.
Supp. at 48 [App. C-4].

1S The testimony in question was taken from respondent's cross-exami-
nation during which petitioner was attempting to demonstrate that in
fact respondent could not say why he had slipped and therefore could
not say that it was because of spray on deck or wind or seas (as
respondent's expert witness was later to testify). Thus, when asked
what caused his foot to come off the pedestal respondent replied:

22

cant that the district court, in reviewing and reconsidering its
earlier decision in accordance with the Court of Appeals’
direction, was of the opinion, based on its ‘‘feel’’ of the case,
that in fact the jury did nor attribute 4% fault to plaintiff
based upon this ‘‘explanation’’ by the Court of Appeals,

If the Court of Appeals had itself reinstated the jury verdict
on the basis of a holding that the district court had made an
error of fact and that 4% comparative fault was justified on
the “conduct of the work” theory noted above, there would be
no question but that the court had exceeded its powers by
reviewing the very matters which were exclusively within the
discretion of the trial judge. Petitioner submits that the fact
that the Court of Appeals remanded the case with a direction
to the trial judge to consider the “conduct of the work” theory
was no less without its powers. This is not to say that a Court
of Appeals cannot, for purposes of guidance in future cases,
advise trial courts that the Court of Appeals might have
decided the matter differently if it had been theirs to decide.
Mistakes should surely be cautioned against. But this is a
different matter entirely from what was done in this case—
where the Court of Appeals issued an advisory opinion to be
acted upon by the district court, not in some future case, but in
the case under appeal,'®

“because it was wet or the sea. . . the ship slightly rolling, just plain
slip” [688 F.2d at 905, n. 4; App. A-10, n, 4]. In elaborating upon why
he was uncertain what had occurred, respondent testified that he was
not /ooking at his foot (“I didn't watch my feot") at the time it
slipped: “that's why | say | don't know why” [/d.], The Court of
Appeals apparently interpreted respondent's “I didn't watch my foot”
as equivalent to “I didn't watch my step” and therefore indicative of
carelessness for that reason on his part, What the court perhaps did
not appreciate (as did the district court and the jury) was that
respondent, born and reared in Russia, had limited command of
English nuance.

16 ~=That the decision was advisory only (as opposed to the Court of
Appeals seeking clarification in order to determine whether the district
court had abused its discretion) is proven by the prospective affir-
mance whatever the result of the renewed exercise of discretion by the
district court.

23

The trial court judge was told: (a) to reconsider his initial
decision and (b) to consider it in light of the suggestions made
by the Court of Appeals. Any difference between this type of
interference with the discretion of the trial judge and the kind
which would result from a direct reversal without any remand
is, we submit, more apparent than real. In both cases, the
Court of Appeals has impermissibly reviewed facts found by a
jury; in both, it has acted upon a matter within the sole
discretion of the trial court.'’

In light of the recent decision of the district court, reversing
itself on the order to grant a new trial, the u/fra vires opinion
of the Court of Appeals is no longer only of theoretical
concern. Review of the district court judge’s most recent
opinion [App. F] demonstrates that he was powerfully in-
fluenced by the advisory opinion of the Court of Appeals in
exercising whatever remained of his discretion.'* This case,

17 In its petition for rehearing and suggestion for rehearing en banc,
petitioner urged the Court of Appeals to recall its decision on this
basis, The same argument was made to the district court in connection
with its reconsideration of its earlier opinion. Understandably, the
district court felt bound to follow the directive of the Court of
Appeals.

18 ~~ For example, in noting that he must give ‘‘further consideration’’ to
whether the jury’s assessment of respondent's fault was against the
weight of the evidence, the district court states: ‘*[t}hat task necessi-
tates a review of the pertinent evidence, with a proper deference to
those portions of Judge Newman's opinion which analyze it."’ |App.
F-2, emphasis added.] After quoting the entire portion of the Court of
Appeals’ decision concerning this aspect of the case, the district court
continues: **[a]gainst this background, I first consider whether or not,
in light of the entire evidence and the Court of Appeals’ analysis of the
theories of contributory negligence revealed by the evidence, the jury's
assessment of a four percent factor is against the weight of the
evidence’’ [App. F-5, 6; emphasis added.] Perhaps not surprisingly,
the district court judge went on to conclude that a 4% factor was
**justified’’ for the ‘‘work performance’’ theory of comparative fault
[App. F-7] although additionally stating that his own ‘‘feel’’ for the
case led him to believe that it was in fact the ‘‘continuing-to-work”’
theory that was the basis of the jury’s finding of comparative fault
[App. F-11]. The district court then proceeded to reverse itself on its
original holding that respondent's discretion, or his failure to exercise
it, could not constitute but 4% contributory negligence.

24

then, raises issue whether the constitutional proscription
against re-examination of facts found by a jury can be circum-
vented if a court of appeals ‘‘advises’’ a district court as to
how it might have ‘*better’’ evaluated those matters within its
exclusive discretion.

OF
THE ISSUES OF LIABILITY AND DAMAGES WERE IN-
SEPARABLE AND THE COURT OF APPEALS ERRED IN

AFFIRMING THIS ASPECT OF THE DISTRICT COURT'S
DECISION.

While noting that this Court has held that it would rarely be
proper to allow a jury in a Jones Act or FELA case to consider
the issues of damages and contributory negligence separately
(Norfolk Southern Railroad Co. v. Ferebee, 238 U.S. 269, 273
(1915)), the Court of Appeals was of the opinion that this case
was the ‘‘rare’’ instance in which an exception to that rule
should apply. This is troublesome in view of the fact that save
for Landry v. Two R. Drilling Co., 511 F.2d 138 (Sth Cir.
1975) there is no case where, despite a mistake in determination
of the liability question, a jury’s damage verdict has been
retained.

We would submit that the courts since 1915 have routinely
confronted circumstances where they were convinced abso-
lutely of the correctness of the jury’s damage award, yet have
ordered complete new trials in comparative negligence cases on
account of an error in determination of liability. Moreover,
like the district court below, the Court of Appeals does not
appear to have considered whether ‘‘the error which has crept
into one element of the verdict did not affect the determination
of [aJnother issue,’’ Thompson v. Camp, 167 F.2d 733, 734
(6th Cir.), cert. den., 335 U.S. 824 (1948), and seemed satisfied
with an explanation [688 F.2d at 906, n. 5; App. A-12, n. 5]
that the jury may have disregarded the court’s instruction on
both the damages and contributory negligence issues.

25

But even if this polarized jury did not also err in fixing
damages, there is nevertheless compelling reason to order a
new trial on all issues. It is axiomatic that one of the elements
necessary to a finding of liability for negligence is ‘‘actual loss
or damage resulting to the interest of another.’’ Prosser, Law
of Torts, 4th Ed., p. 143. As the district court acknowledged,
it was petitioner’s position that ‘‘whatever symptoms plaintiff
had suffered, or was suffering from, resulted from other
physical conditions and maladies, not related to the alleged
accident’”’ [521 F. Supp. at 47, App. C-3]. In short, petitioner
claimed with reason that respondent had suffered no damages.
This case is, thus, fhe ‘‘rare’’ instance where there can be no
question that damages and liability are completely inseparable.

The press of litigation in the courts is well known and the
reluctance to order new trials is understandable. But concern
for efficiency should not be permitted to override basic fair-
ness. Donovan, supra, 536 F.2d at 538 (dissenting op. Fein-
berg, J.). This court in Gasoline Products Co. v. Champlin
Refining Co., supra, emphatically indicated that partial retrials
may not properly be resorted to ‘‘unless it clearly appears that
the issue to be retried is so distinct and separable from the
others that a trial of it alone may be had without injustice.”’
[283 U.S. 494 (1931) at 500; emphasis added.] This, would
seem to mean simply that the ‘‘without injustice’ requirement
is to be measured by whether the issues are distinct and
separable. The decision of the Court of Appeals, in affirming
the district court’s order for a new trial on liability issues only,
completely ignores this central consideration of separability,
focusing instead on the fact that the jury, by special verdict,
indicated both aggregate damages as well as damages dis-
counted for respondent’s comparative fault.'” In essence, the

19 Thus, the court held (688 F.2d at 906, App. A-13]:

In this case, a new trial, if one is held, need not reconsider damages.
Because Judge Haight submitted detailed interrogatories to the
jury, following substantially the form suggested in Rivera, supra,
474 F.2d at 259 n.5, we know the jury’s determination of aggregate
damages suffered by the plaintiff, as well as their view of how much

26

Court of Appeals seems to be saying that the issues of damages
and contributory negligence are separable whenever the jury
has found them separately and, by extension, that the older
cases (enjoining against partial new trials on these issues in
Jones Act or FELA cases) which did not employ special
verdicts are therefore distinguishable. This, we submit, repre-
sents an emphatic abandonment of the standard set by this
Court in Gasoline Products Co. v. Champlin Refining Co.,
supra: the analysis of the Court of Appeals begs completely the
question as to whether the issues are distinct and separable so
that a second jury can fairly retry one without the other. The
special verdict requiring the jury to make findings separately—
which enables a reviewing court to ascertain whether a jury has
erred on a particular issue—is completely irrelevant for pur-
poses of determining whether that issue may properly be
retried separately. For that, the facts of the case must be
examined, an exercise from which the Court of Appeals point-
edly abstained.”’

of a discount should be applied because of contributory negligence.
Armed with these specific findings, the District Court acted within
its discretion in excluding the issue of damages from retrial. C/.
Landry v. Two R. Drilling Co., 511 F.2d 138, 143 n.4 (Sth Cir.
1975) (court accepted 20% contributory negligence factor from first
trial and limited retrial on question of damages). Although it is
possible that the jury’s special verdicts encompassed some undis-
closed compromise, absent obvious inconsistencies we will not
presume that the jury’s findings represent anything other than good
faith responses to the questions presented. As Judge Haight has
already determined that the jury’s determination of damages is
supported by the evidence, we conclude that damages need not be
reconsidered at retrial,

20 The Court of Appeals makes no reference, for example, to peti-
tioner’s argument that one of the aspects of its defense on liability was
that respondent had suffered no damages.

27

CONCLUSION

This Court is confronted with a case in which the Court of
Appeals authored an advisory opinion, after, by excision of
the improper remittitur, it had deprived itself of jurisdiction to
consider an appeal from what was then a non-final order.
Faced with no choice but to affirm the grant of a new trial, the
Court of Appeals unconstitutionally asked the district court to
reconsider its exercise of discretion on the basis of what proved
an invalid suggestion, not a reasoned conclusion, that there
might have been a mistake made by the district court in
assessing facts found by the trial jury.

Responding to the impairment of its discretion by the Court
of Appeals, the district court recalled its prior opinion and
ordered entry of judgment for very significantly more than
that sum to which respondent had consented. A mistaken
concern for ‘‘judicial economy” led the courts below to ignore
their Constitutional mandates, the Judiciary Act of 1789 and
three decisions, at least, of this Court: Donovan v. Penn
Shipping Co., Inc., 429 U.S. 648 (1977); affirming per curiam,
Donovan v. Penn Shipping Co., Inc., 536 F.2d 536 (2d Cir.
1976); Gasoline Products Co. v. Champlin Refining Co., 283
U.S. 494 (1931), and Norfolk Southern Railroad Co, v. Fere-
bee, 238 U.S. 269 (1915).

This case is the extreme example of a Court of Appeals ‘‘so
far departing from the acceptable and usual course of judicial
proceedings. . . as to call for an exercise of the Court’s power
of supervision.’’ S. Court Rule 17.1(a). In both determining it
had jurisdiction to ‘‘entertain’’ respondent's cross-appeal and
in re-examining facts found by the jury by purportedly re-
viewing the district court’s opinion for errors of fact, the
district court: ‘*. . . decided a federal question in conflict with
an applicable decision of this Court.’’ S. Court Rule 17.1(c).
Judicial activism of this kind must be discouraged if there is to
be any predictability to the law.

28

Dated: New York, New York
January 25, 1983

Respectfully submitted,

JOSEPH T, STEARNS

40 Wall Street

New York, New York 10005
(212) 344-4700

Attorney for Petitioner

WALKER & CORSA
SANDRA R. M. GLUCK
Of Counsel

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

Argued May 12, 1982 Decided Sept. 14, 1982

Nos. 1088, 1089, Dockets 81-7833, 81-7873
+

CARL O. AKERMANIS,
Plaintiff-Appellee-Cross-A ppellant,

—) =

SEA-LAND SERVICE, INC.,
Defendant-Appellant-Cross-A ppellee.
eo

Joseph T. Stearns, New York City (Sandra R.M. Gluck and
Walker & Corsa, New York City, on the brief), for defendant-
appellant-cross-appellee.

Steven Thaler, New York City (Markowitz & Glanstein, New
York City, on the brief), for plaintiff-appellee-cross-appellant.

a

Before FEINBERG, Chief Judge, and NEWMAN and WINTER,
Circuit Judges.

EE
NEWMAN, Circuit Judge:

This appeal concerns primarily the issue, apparently one of
first impression in the federal courts, whether a trial judge may
use the device of a new trial order conditioned on a remittitur
to increase a jury’s determination of the percent of responsibil-
ity for an injury that is attributable to a plaintiff’s contributory
negligence. That device was employed in this suit under the
Jones Act, 46 U.S.C. § 688 (1976), brought by plaintiff Carl
O. Akermanis, an injured seaman, against defendant ship-

A-2

owner Sea-Land Service, Inc. After plaintiff agreed to the
remittitur, the District Court for the Southern District of New
York (Charles S. Haight, Jr., Judge) entered judgment on
November 17, 1981, in favor of the plaintiff. 521 F.Supp. 44.
Defendant appeals, contending that it is entitled to an uncondi-
tional order for a new trial. Plaintiff cross-appeals, seeking an
increased judgment based on the jury’s initial determination as
to the share of responsibility attributable to his negligence. For
reasons that follow, we conclude that a remittitur may not be
used to adjust a jury’s contributory negligence percentage, and
we therefore reverse and remand for further proceedings.

In the spring of 1977, Akermanis was a third assistant day
engineer aboard Sea-Land’s vessel S/S Los Angeles during a
voyage from Greece to Rotterdam. One of the plaintiff's duties
was to replace deteriorated angle irons on pedestals used to
secure the vessel’s deck cranes. At trial, Akermanis contended
that the defendant's negligence caused him to injure himself
while working on these pedestals. Although there was conflict-
ing evidence, Akermanis testified that on June 4, 1977, his
superiors instructed him to work on the deck burning off a
rusted pedestal bracket, despite rolling seas and a deck slippery
from the ocean’s spray. According to the plaintiff, as a result
of these unsafe working conditions, he lost his balance, hit his
head against the pedestal, and hurt his back when his head was
snapped backwards as he fell. The accident was said to have
severely injured Akermanis’ cervical spine and forced his early
retirement from the merchant marine.

Sea-Land Service contested almost all of Akermanis’ allega-
tions. First, Sea-Land claimed that Akermanis’ injuries
stemmed not from an accident aboard the Los Angeles, but
rather from several preexisting ailments. Second, Sea-Land
contended that it was in no way to blame for the condition of
the Los Angeles on June 4, 1977, that Akermanis had not been
ordered to work on the pedestal bracket at any particular time,
and that any risks Akermanis faced while working on the deck
were inherent in the life of a seaman. In addition, Sea-Land
raised the defense of contributory negligence, arguing that, if
working on the pedestal was unsafe, Akermanis, who was 59

A-3

years old and had 30 years of maritime experience at the time
of the accident, should have been able to appreciate the danger
and rearrange his schedule to work below deck until the
weather cleared. According to the defendant, Akermanis had
considerable discretion in scheduling his work. Moreover,
counsel for Sea-Land suggested that the alleged accident was
more likely the result of Akermanis’ carelessness in doing his
job than any fault of the defendant. Finally, Sea-Land intro-
duced evidence through a series of expert witnesses that contra-
dicted the testimony of Akermanis’ doctors as to the extent
and cause of his spinal injuries.

In response to a special verdict form, the jury found that
Sea-Land was negligent, that its negligence was a proximate
cause of Akermanis’ June 4, 1977, accident, and that as a
result of the accident, Akermanis suffered damages totaling
$528,000. The jury further found that Akermanis also was
negligent and that the share of responsibility attributable to his
negligence was four percent.

Following the jury’s verdict, Sea-Land moved for judgment
notwithstanding the verdict or, in the alternative, for a new
trial, pursuant to Fed. R. Civ. P. 50(b). After reviewing the
record, Judge Haight concluded that there was sufficient
evidence to support the jury’s findings that negligence on the
part of the defendant caused the plaintiff's injuries. Because it
was not “ ‘clear that the jury had reached a seriously erroneous
result,’ ” Bevevino v. M.S. Saydjari, 574 F.2d 676, 684 (2d Cir.
1978) (quoting 6A Moore's Federal Practice 4 59.08{[5], at
59—160 to —161 (1973)), the District Court denied defen-
dant’s motion for judgment notwithstanding the verdict [sic],
see Berner v. British Commonwealth Pacific Airlines, Ltd.,
346 F.2d 532, 538 (2d Cir. 1965) (evidence must be viewed most
favorably for the defendant on j.n.o.v. motion), cert, denied,
382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472 (1966), and
declined to order a new trial of all the issues.

Judge Haight then considered the jury’s finding that plain-
tiff’s contributory negligence was a four percent cause of the
accident, and concluded that the selection of this percentage
was against the weight of the evidence, in his view a “clear and

Ad

serious error.” While he agreed that it was reasonable for the
jury to determine that Sea-Land’s negligence was the major
cause of the accident, he rejected four percent as the measure
of plaintiff's share of responsibility. His reasoning is set forth
in his memorandum opinion. He first assumed that the jury’s
finding of plaintiff's contributory negligence was based on
their acceptance of defendant’s evidence that Akermanis had
some discretion to determine when he would work on the
ship’s pedestals and had exercised that discretion without using
reasonable care. Judge Haight then determined that a factor of
only four percent for contributory negligence of this sort was
against the weight of the evidence and so substantially below
jury determinations in similar Jones Act cases as to warrant a
new trial. After referring to cases cited at 44A Modern Federal
Practice Digest Seamen § 29(4)(H) (West 1968), he concluded
that the lowest contributory negligence factor the evidence
would support was 25 percent. He therefore ordered a new trial
on liability issues, but with the condition that the defendant's
motion for new trial would be denied if the plaintiff would
accept a “remittitur” of damages based on an increase of the
contributory negligence factor from four to 25 percent, The
plaintiff accepted, and judgment was entered in favor of the
plaintiff for 75% of the jury’s determination of the total
amount of damages suffered.

We consider first Sea-Land’s appeal, which challenges the
District Court's authority to use the device of a remittitur to
adjust the jury’s determination of the contributory negligence
percentage. Remittitur is a limited exception to the sanctity of
jury fact-finding. It allows trial judges to reduce damages, but
only when an award is grossly excessive. As the Supreme Court
has stated, this exception is justified because, “[w]here the
verdict is excessive, the practice of substituting a remission of
the excess for a new trial is not without plausible support in the
view that what remains is included in the verdict along with the
unlawful excess—in that sense that it has been found by the
jury—and that the remittitur has the effect of merely lopping

A-5

off an excrescence,” Dimick v. Schiedt, 293 U.S. 474, 486, 55
S.Ct. 296, 301, 79 L.Ed. 603 (1935). But in Dimick, the
Supreme Court made clear that remittitur was not an expansive
doctrine: “Maintenance of the jury as a fact-finding body is of
such importance and occupies so firm a place in our history
and jurisprudence that any seeming curtailment of the right to
a jury trial should be scrutinized with the utmost care.” /d.

In giving that scrutiny to the use of remittitur in this case, we
note a fundamental difference beiween the use of remittitur to
decrease a determination of damages and its use here to
increase a contributory negligence percentage. Though both
have the same ultimate consequence of reducing the amount of
the judgment that the plaintiff is invited to accept as the price
of avoiding a new trial, the means by which the reduction is
accomplished differ in a way that is critical to determining the
lawfulness of the technique. A conditional reduction of a
damage calculation leaves in the judgment a portion of what
the jury awarded, a circumstance that the Supreme Court
considered crucial to its willingness to permit remittitur while
rejecting additur in Dimick. In this case, however, the condi-
tional ad/ustment of the contributory negligence percentage
inserts into the judgment something beyond what the jury
found: a conclusion that the plaintiff's negligence was respon-
sible for a greater share of the accident than the jury had
thought. In Dimick, the four dissenters thought it was need-
lessly artificial to deny a trial judge the authority to condition a
new trial order on payment of an additur while permitting him
to use the device of remittitur. In cither circumstance, they
argued, the judge is simple conditioning the new trial order on
the minimum adjustment necessary to render the verdict within
the bounds of reasonableness. But their view did not prevail.
We are therefore obliged to apply the rationale of the Dimick
majority, which, as we understand it, precludes any adjustment
that extends a jury’s finding, even if that extension results in a
reduced monetary judgment. '

! It could be argued that the type of remittitur permitted by Judge
Haight should be allowed since the increase in the contributory negligence
factor can be accomplished only with the consent of the plaintiff, whose

A-6

We have located only one case in which a trial court
attempted to use the remittitur device to adjust a jury’s
contributory negligence assessment, and that decision did not
survive appellate review. In Ferguson v. Chester A. Poling,
Inc. 285 N.Y.S. 340, 247 A.D. 727 (2d Dep’t 1936) (per
curiam), also a Jones Act case, the jury found that the plaintiff
had suffered damages of $25,000, and then reduced this sum
by $5,000 because the plaintiff's contributory negligence was a
20 percent cause of the accident. The trial court thought the
lowest reasonable contributory negligence factor was 60 per-
cent and therefore ordered a new trial unless the plaintiff
agreed to a reduction in the judgment from $20,00 to $10,000.
The Appellate Division reversed because “the question of
apportioning the negligence was peculiarly within the province
of the jury.” /d. at 341, 247 A.D. at 728. We agree with the
New York court that a jury’s apportionment of responsibility
in a Jones Act case is not subject to adjustment by the device
of a remittitur. In Ferguson the Appellate Division ordered
judgment upon the jury’s fact-finding. Whether that result or a
new tria: is warranted here requires consideration of plaintiff's
cross-appeal.

A. In considering the plaintiff’s cross-appeal, we face the
threshold issue of whether we have appellate jurisdiction. This
Circuit has followed the majority rule that a plaintiff who
accepts a remittitur may not appeal from a judgment entered
upon the reduced award. Donovan v. Penn Shipping Co., 536
F.2d 536 (2d Cir. 1976), aff’d per curiam, 429 U.S. 648, 97
S.Ct. 835, 51 L.Ed. 2d 112 (1977); Evans v. Calmar Steamship

share of fault is being enlarged. However, it was equally true in Dimick that
the increase in the amount of damages sought to be achieved by the use of
additur could have been accomplished only with the consent of the defen-
dant, who would have paid the increase. The Supreme Court's rejection of
additur, indeed, its grudging acceptance of remittitur, 293 U.S. at 484, 55
S.Ct. at 300, suggests that jury determinations are not to be enlarged upon,
even with the consent of the party thereby disadvantaged.

A-7

Co., 534 F.2d 519 (2d Cir. 1976). And we have also dismissed
the cross-appeal of a plaintiff who accepted a remittitur, even
though we adjudicated the merits of the defendant's appeal
from the judgment entered upon the reduced award. Mattox v.
News Syndicate Co., 176 F.2d 897, 904 (2d Cir.) cert. denied,
338 U.S. 858, 70 S.Ct. 100, 94 L.Ed. 325 (1949). But see Burris
v. American Chicle Co., 120 F.2d 218, 223 (2d Cir. 1941)
(questioning appealability but reaching merits of cross-appeal).
That rule, whatever its merit, see Donovan v. Penn Shipping
Co., supra, 536 F.2d at 538 (Feinberg J. (now C.J.), dissent-
ing); Reinertsen v. George W. Rogers Construction Corp., 519
F.2d 531 (2d Cir. 1975), does not necessarily preclude our
exercise of jurisdiction over Akermanis’ cross-appeal. The
rationale of Donovan v. Penn Shipping Co., supra, appears to
be two-fold: waiver and efficiency. The plaintiff who has
accepted a remittitur, even if the acceptance was under protest,
will not be heard to complain, and allowance of such appeals
would add to the burdens of courts.

Neither rationale applies here. Now that we have adjudi-
cated Sea-Land’s appeal and agreed with appellant that the
District Judge lacked the power to condition the new trial
order on a remittitur adjusting the contributory negligence
percentage, the first step in ordering relief with respect to the
appeal is, as Sea-Land requests, to vacate the judgment entered
upon the reduced award on the ground that its entry was
erroneous. Once we do that, it is conceptually difficult and
pratically unfair to think of the plaintiff as having waived a
cross-appeal by consenting to a judgment that no longer exists.
The rationale of court efficiency does not disappear, but it
becomes less persuasive. Normally, when an »ppellate court
dismisses the appeal or cross-appeal of a plaintiff who has
accepted a remittitur, the burden on the court system is reduced
because there will be neither an appeal nor a new trial. That is
not true in this case. If we dismiss the cross-appeal and simply
return the case to the District Court for a new trial, now that
the conditional aspect of the new trial order has been excised,
there would clearly be less of a burden on this Court. But that
course would add considerably to the burden on the District

A-8

Court, which would have to conduct a trial that the cross-ap-
pellant is prepared now to show us should never have been
ordered. What we really face is an issue that has nothing to do
with acceptance of a .emittitur: whether a cross-appeal will lie
as to a non-final order for a new trial when the main appeal
from a final judgment has already brought the case to an
appellate court.

That is similar to the situation that arises under Fed. R. Civ.
P. 50(c) when a trial court grants a motion for judgment n.o.v.
and alse, as required by Rule 50(c), conditionally grants a
motion for a new trial. Upon appeal of the judgment by the
party that wants judgment entered on the verdict, Rule 50(c)
provides that if the judgment is reversed, “the new trial shall
proceed unless the appellate court has otherwise ordered.” This
provision, which the Advisory Committee explains was not
intended to alter the scope of appellate review, see Fed. R. Civ.
P. 50 advisory committee note, contemplates that an appellate
court, after vacating the judgment n.o.v., may then review the
trial court’s ruling conditionally granting a new trial and
“otherwise order[ ]” that the new trial not be held. The result is
review of a new trial order that would not have been appeala-
ble, if not accompanied by the granting of a motion for
judgment n.o.v., until entry of judgment after retrial. See
Taylor v. Washington Terminal Co., 409 F.2d 145 (D.C. Cir.),
cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969).
Even more analogous is the procedure authorized by Rule
50(d), which applies when appeal is taken by a party whose
motion for judgment n.o.v. was denied. If that party prevails
on its appeal from the judgment entered upon the verdict, the
appellee is entitled to urge the court of appeals to order a new
trial, rather than order the entry of judgment n.o.v. See Neely
v. Martin K. Eby Construction Co., 386 U.S. 317, 329, 87
S.Ct. 1072, 1080, 18 L.Ed.2d 75 (1967) (making clear that
court of appeals can consider the new trial request apart from
the authority of Rule 50(d)). Our case in an amalgam of the
situations contemplated by Rules 50(c) and 50(d): like the 50(c)
appellant, Akermanis wants to be heard in opposition to the
trial court’s grant of a new trial, but he is not the party who

AY

appealed the judgment; like the 5O(d) appellee, he is the
adversary of the party who appealed the judgment, but he is
opposing, rather than supporting, an order for a new trial.

The situations contemplated by Rules 50(c) and 50(d) are
variations of the general authority of a court of appeals, upon
vacating a judgment, to “require such further proceedings to
be had as may be just under the circumstances.” 28 U.S.C.
§ 2106 (1976). The circumstances of this case are unusual, to
say the least. We need not and do not consider the full range of
otherwise interlocutory rulings that an appellee would like to
urge an appellate court to consider upon his adversary’s
successful appeal from a final judgment. But we think it is
entirely appropriate to entertain the cross-appeal in this case.
Doing so is in keeping with the spirit of Rules 50(c) and S50(d)
and, as will be seen in Part II(B), infra, affords us the
opportunity to focus the District Court’s attention on matters
that may obviate the need for a new trial or at least limit its
scope. We therefore turn to the cross-appeal.

B. In granting the defendant's motion for a new trial, Judge
Haight reasoned that the jury’s finding of contributory negli-
gence was based on a conclusion that Akermanis had the
authority to schedule his own work and that he exercised poor
judgment by agreeing to work on the Los Angeles’ deck on
June 4, 1977, when he might have deferred the task to another
day.’ If that was the jury’s conclusion, then, based on the
evidence presented at trial, Judge Haight was acting within his
broad discretion in ruling that a finding of only four percent
contributory negligence was against the weight of the evidence
and that a new trial should be granted.’

2 As the District Court correctly noted, under the Jones Act, negli-
gence requires more than knowledge of a hazard; it entails failure to adopt
safer alternative courses of action, See Tolar v. Kinsman Marine Transit Co.,
618 F.2d 1193, 1196 (6th Cir. 1980); Rivera v. Farrell Lines, Lid., 474 F.2d
255, 257-58 (2d Cir.), cert. denied, 414 U.S, 822, 94S8.Ct. 122, 38 L.Ed.2d $55
(1973). Inquiry at the trial properly centered on what choices were available
to Akermanis and how he exercised those choices.

3 Indeed, if the jury thought that Akermanis was negligent in electing
to do his work at the time of the accident, there is at least a superficial

A-10

It is possible, however, that the jury’s finding of contribu-
tory negligence was not based on a conclusion that Akermanis
chose to work on the pedestal that day. The jury might have
concluded that Akermanis was directed to work on the pedes-
tal at the time of the accident, but that he was negligent in the
manner in which he performed his work. During cross-exami-
nation, Akermanis admitted that his own preoccupation with
burning the bracket might have contributed to the accident.‘
During his summation, counsel for the defendant reviewed the
events surrounding Akermanis’ accident “was something due
to, perhaps, a momentary lapse of carefulness on his part.” If
the jury was focusing on the plaintiff’s manner of working at
the time of the accident, it is arguable that they considered
Akermanis’ work performance to be negligent but that such
negligence represented only a slight percentage of the cause of
the accident. In his memorandum opinion, Judge Haight gave
no explicit consideration to this possible explanation for the
jury’s contributory negligence factor of four percent.

Ordinarily, we might not be so concerned that a trial judge
explicitly consider every possible justification for a jury’s

inconsistency with the finding that the defendant was negligent in ordering
him to do the work at that time. But inconsistency is not inevitable. The jury
may have thought that the defendant had negligently instructed him to work
at that time, but not in the form of such an absolute order as to preclude
Akermanis from exercising care in deciding whether to do the work or at
least whether to call to his superiors’ attention the risks of doing the work at
that time. In any event, it is a function of the comparative negligence
doctrine to permit the jury to reconcile conflicting versions of an episode.

4 Akermanis’ testimony on cross-examination included the following:
Q. Sir, in fact, do you know why your foot came off the

pedestal?
A. Because it was wet or the sea—the ship slightly rolling just
plain slip.

Q. You don’t know why?

A. Why? It could be the ship’s rolling. | don't know why.

Q. Sir—

A. | was concentrating on my work, right. | was interested to cut
off that thing. | didn't watch my foot. The foot was standing there.
I slipped while 1 working and the ship moved, the foot slipped.
That's why I say I don’t know why [emphasis added].

A-ll

verdict before concluding that a verdict is against the weight of
the evidence and ordering a new trial. But this case arises under
the Jones Act, and jury findings under that Act, which incor-
porates standards of the FELA, are particularly resistant to
being overturned. See Morgan v. Consolidated Rail Corp., 509
F.Supp. 281, 285 (S.D.N.Y. 1980). Because we recognize that a
trial judge, with a “feel” of the case, Neely v. Martin K. Eby
Construction Co., supra, 386 U.S. at 325, 87 S.Ct. at 1078, is
normally in the best position to determine whether a verdict is
against the weight of the evidence, we prefer to have Judge
Haight consider whether the “work performance” theory of
contributory negligence finds enough support in the evidence,
assessed in the context of the entire trial, to justify the four
percent factor. If he concludes it does not, then his order for a
new trial will stand. Even if he concludes that the “work
performance” theory alone would support a four percent
factor, then Judge Haight will have the option of either
entering judgment for the plaintiff on the jury’s damage
computation, reduced by only four percent, or ordering a new
trial. This latter option remains a possibility because of an
intimation in Judge Haight’s opinion that he thinks the jury
would have committed serious error if they had not attributed
at least part of the responsibility for the accident to Akermanis
for continuing to work on deck despite the inclement weather
and unsafe conditions. In other words, Judge Haight may find
that the “work-performance” theory justifies a four percent
factor, but that Akermanis’ negligence in continuing to work is
so strongly supported by the evidence that a verdict assessing
his share of fault at only four percent is against the weight of
the evidence, whether or not the jury based its findings of
contributory negligence on the “continuing-to-work” theory.
In short, the District Judge, upon remand, has discretion
whether or not to order a new trial.

If the District Court decides that a new trial is necessary to
determine the extent of Akermanis’ contributory negligence,
there will remain a question as to the proper scope of the
retrial. Rule 59(a) permits partial retrial of distinct issues but
the trial court must examine whether a jury’s award of dam-

A-12

ages and its finding of liability are sufficiently separate to
allow a partial new trial as to liability issues. See Gasoline
Products Co, v. Champlin Refining Co., 283 U.S. 494, 500, 51
S.Ct. 513, 515, 75 L.Ed. 1188 (1931) (Partial retrial “may not
properly be resorted to unless it clearly appears that the issue
to be retried is so distinct and separable from others that a trial
of it alone may be had without injustice.”). In its memoran-
dum opinion, the District Court indicated that, if a new trial
were necessary, it would be limited to questions of liability.
Defendant contends that any retrial should include redeter-
mination of damages since the jury might have perceived
comparative negligence as closely related to damages and
might have allowed its determination of damages to be in-
fluenced by its erroneous finding of relative fault.’

Courts have been reluctant to hold a new trial on contribu-
tory negligence without also retrying damages. See Rivera v.
Farrell Lines, Inc., 474 F.2d 255, 259 (2d Cir.) (Jones Act case),
cert, denied, 414 U.S, 822, 94S.Ct. 122, 38 L.Ed.2d 55 (1973);
cf. Norfolk Southern Railroad Co. v. Ferebee, 238 U.S. 269,
273 35 S.Ct. 781, 782, 59 L.Ed. 1303 (1915) (it would rarely be
proper to allow a jury to consider a question of damages
without also submitting the issue of contributory negligence).
But this reluctance has been expressed in cases like Rivera,
where the form of the jury verdict left the court “in the dark as
to what the total award would have been absent the finding of
contributory negligence and the extent to which that finding
affected the verdict.” Rivera, supra, 474 F.2d at 259. The jury
in that case had reported a finding of contributory negligence,
but had not been asked to report the percent of responsibility it

5 While it is understandable that the defendant would prefer a second
opportunity to persuade a jury to return a modest damage award, the logic
of the argument is unclear: if the jury had determined the amount of
damages in relation to their contributory negligence percentage, the setting of
a low percentage would indicate that, if anything, damages had been scaled
down from what they might have been had the contributory negligence factor
been high. In this circumstance, it would normally be the plaintiff, not the
defendant, who might have a claim that damages should be retried in the
event of a retrial as to contributory negligence.

A-13

attributed to plaintiff's contributory negligence. However,
when a jury arrives at its decision by detailed special verdicts,
enabling a trial or a reviewing court to be reasonably certain
that an erroneous verdict was reached independent of another
verdict, a partial retrial may be in order. See, e.g., Ferebee,
supra.

In this case, a new trial, if one is held, need not reconsider
damages. Because Judge Haight submitted detailed interroga-
tories to the jury, following substantially the form suggested in
Rivera, supra, 474 F.2d at 259 n. 5, we know the jury’s
determination of aggregate damages suffered by the plaintiff,
as well as their view of how much of a discount should be
applied because of contributory negligence. Armed with these
specific findings, the District Court acted within its discretion
in excluding the issue of damages from retrial. Cf. Landry v.
Two R. Drilling Co., 5i\ F.2d 138, 143 n. 4 (Sth Cir. 1975)
(court accepted 20% contributory negligence factor from first
trial and limited retrial to question of damages). Although it is
possible that the jury’s special verdicts encompassed some
undisclosed compromise, absent obvious inconsistencies we
will not presume that the jury’s findings represent anything
other than good faith responses to the questions presented. As
Judge Haight has already determined that the jury’s deter-
mination of damages is supported by the evidence, we con-
clude that damages need not be reconsidered at retrial.

In his opinion conditionally ordering a new trial, Judge
Haight indicated that the defendant is entitled to a new trial
“on the question of contributory negligence,” but the operative
language of his order grants a new trial “on liability issues.”
The authority provided by Rule 59(a) for a new trial on “part”
of the issues lias been used by some courts with precision. E.g.,
Higginbotham v. Ford Motor Co., 540 F.2d 762 (Sth Cir.
1976). If Judge Haight determines that a new trial, if held,
should be limited to the question of contributory negligence—
both its existence and its percentage—he has discretion to
narrow the retrial to that extent.° He might well conclude that

6 If this procedure were used, the jury would be told that defendant's
negligence has already been determined and that their task is only to

A-14

since the retrial is occasioned because the first jury assigned
too great a share of the blame to the defendant, Akermanis
should not have to persuade the second jury that the defendant
was negligent simply because he had made that demonstration
too convincingly to the first jury.’ On the other hand, the
District Judge also has discretion to retry all the liability issues,
if he concludes that a triai limited to contributory negligence
would not, on balance, be fair to the parties.

We have considered the other issues raised by the defendant
concerning evidentiary rulings and the instructions to the jury
and find them to be without merit. Accordingly, the judgment
is reversed, and the case remanded for further consideration
consistent with this opinion.

determine whether the plaintiff was contributorily negligent and, if so, to
determine what percentage of responsibility for the accident is attributable to
the plaintiff's contributory negligence. The parties would, of course, be
entitled to present all evidence relevant to the fault of both parties in order
for the jury to make an apportionment of fault.

7 In some situations, it might be inappropriate to order such a limited
partial new trial. For instance, if in this case the jury's contributory
negligence factor had been impermissibly high, then any retrial might have to
encompass all aspects of liability: it might be unclear from such a verdict
whether the jury really thought the defendant was liable or whether their
finding of liability coupled with a high assessment of contributory negligence
represented a compromise between factions. Similarly, if in this case the
jury's award of damages as well as its assessment of contributory negligence
had been low, then it might be necessary to afford the plaintiff the option to
retry damages as well as liability: the jury might have discounted the damages
to compensate for the plaintiff's contributory negligence.

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

At a stated term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court
House, in the City of New York, on the 28 day of October, one
thousand nine hundred and eighty-two.

No. 81-7833
81-7873

>
CARL O. AKERMANIS,

Plaintiff-Appellee-Cross-Appellant,

—

SEA-LAND SERVICE, INC.,
Defendant-Appellant-Cross-Appellee.

>

A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by counsel
for the plaintiff-appellee-cross-appellant, Carl O. Akermanis.

Upon consideration by the panel that heard the appeal, it is
Ordered that said petition for rehearing is DENIED.

B-2

It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges of the court in regular active
service and to any other judge on the panel that heard the
appeal and that no such judge has requested that a vote be
taken thereon.

A. Daniel Fusaro, Clerk
S/ FRANCIS X. GINDHART
by FRANCIS X. GINDHART

Chief Deputy Clerk

STAMP

United States Court of Appeals, Second Circuit
Filed October 28, 1982

A. Daniel Fusaro, Clerk

C-1

UNITED STATES DISTRICT COURT
S. D. NEW YORK

Oct. 14, 1981

No. 77 Civ. 6131-CSH
aoe

CARL O. AKERMANIS,
Plaintiff,

—

SEA-LAND SERVICE, INC.,
Defendant.

es

Markowitz & Glanstein, New York City, for plaintiff; Steven
Thaler, New York City, of counsel.

Walker & Corsa, New York City, for defendant; Joseph T.
Stearns, Sandra R. M. Gluck, New York City, of counsel.

+

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Plaintiff Car! Akermanis, a licensed marine engineer,
brought this action against his former employer, defendant
Sea-Land Service, Inc., to recover for damages allegedly
caused by an accidental injury suffered on board defendant’s
vessel LOS ANGELES on June 4, 1977. The complaint stated
causes of action for unseaworthiness, and for negligence under
the Jones Act, 46 U.S.C. § 688. The Court dismissed the
unseaworthiness claim at the conclusion of plaintiff’s case.
Defendant’s motion to dismiss the negligence cause of action
was denied, defendant offered evidence, and that cause of
action was submitted to the jury in the form of a special

C-2

verdict. The jury found that defendant’s negligence was a
proximate cause of plaintiff’s accident, and assessed damages
of $150,000 for past pain and suffering, $100,000 for future
pain and suffering, $160,000 for past lost earnings, and
$118,000 for future lost earnings. The damages consequently
totalled $528,000. Finally, the jury found that the contributory
negligence of plaintiff contributed to the accident in the
amount of 4%.

The Court entered judgment in plaintiff's favor for
$489,514.61. This amount reflected the 4% reduction for
contributory negligence, and a 2% discount on future dam-
ages, the parties having offered no proof on the relevant
economic issues. Doca v. Marina Mercante Nicaraguense, 634
F.2d 30, 40 (2d Cir. 1980). The judgment bore interest at 6%
per annum.

Defendant now moves pursuant to Rules 50 and 59,
F.R.Civ.P., for an order granting defendant judgment n. o. v.,
or in the alternative a new trial, or in further alternative a
remittitur. Plaintiff cross-moves to amend the judgment so as
to provide for interest at 9%.

Plaintiff was 59 years old at the time of the alleged accident.
He had been going to sea since 1936. After service in the
United States Navy, he obtained his first marine engineer’s
license in 1946, and, until the date of his accident, sailed
continuously in the Merchant Marine since that time. He
obtained a chief engineer’s license in 1957. At the pertinent
time, however, ,laintiff was sailing on board defendant’s vessel
LOS ANGELES as a third assistant day engireer, having
joined the vessel in that capacity on March 31, 1977.

The theory of plaintiff’s case was that, on the morning of
June 4, 1977, he was assigned to do burning and “finishing”
work on deck. The LOS ANGELES was then on a voyage
from Persian Gulf ports through the Mediterranean, bound for
Rotterdam. On the date of the accident, she had passd through
the Strait of Gibraltar, and was navigating in the North
Atlantic. Plaintiff’s work consisted of using a torch to burn off

C-3

the top of an iron pedestal, containing a deteriorated support
bracket for a turnbuckle, which was in turn used to secure one
of the movable cranes of the vessel while at sea. Plaintiff
contended that the place in which he was working was unrea-
sonably unsafe because the working of the vessel in the seas
had wetted the decks with spray, rendering the deck area
slippery. (Plaintiff, in his testimony, was not specific about the
physical cause of the accident about to be related, but his
contention through counsel, articulated throughout the case
and advanced with the assistance of expert testimony at the
trial, was that wind-blown spray from waves had rendered the
deck area hazardous for work.) Plaintiff was working on top
of hatch covers near the port edge of the coaming, between the
number 9 and 10 hatches. He testified that as he was burning
the top of the pedestal with his torch, he lost his balance,
struck his head on the pedestal, and that then his head was
jerked backwards as he fell. Plaintiff alleged a severe and
permanent injury to his cervical spine, : »sulting in his inability
to work again as a merchant seaman.

Defendant’s theories of the case were (1) no accident had
occurred, rather plaintiff was asserting a pretext to recover
damages before retiring; and (2) whatever symptoms plaintiff
had suffered, or was suffering from, resulted from other
physical conditions and maladies, not related to the alleged
accident.

Plaintiff testified at the trial. The chief officer and chief
engineer of the vessel testified by deposition. In addition to
these lay fact witnesses, there was an extensive amount of
medical evidence. The medical evidence took the form of
deposition testimony by plaintiff's post-accident treating phy-
sician, an orthopedist; hospital records relating to a number of
hospitalizations of plaintiff and consequent treatment, both
prior and subsequent to the accident; and the usual medical
expert witnesses, retained by the parties to give evidence at the
trial.

The opposing papers on the present motion rehearse at
length the parties’ contentions, factual, medical, and legal. In
passing upon defendant’s motion for judgment n. o. v. under

C-4

Rule 50(b), | must view the evidence in the light most favorable
to plaintiff. The standard is different on a motion for a new
trial under Rule 59; a new trial motion may be granted even if
there is substantial evidence to support the jury’s verdict, and
the trial judge is free to weigh the evidence himself and need
not view it in the light most favorable to the verdict winner.
Bevevino v. M.S. Saydjari, 574 F.2d 676, 677, 683-84 (2d Cir.
1978). However, even within the Rule 59 context, the moving
party must satisfy the trial judge that the verdict was contrary
to the weight of the evidence; and the Second Circuit in
Bevevino specifically approved the standard set forth by a
leading commentator that the trial judge should “abstain from
interfering with the verdict unless it is quite clear that the jury
had reached a seriously erroneous result.” /d. at 684, quoting
6A Moore’s Federai Practice, 4 59.08[5], at 59-160-59-161
(1973).

Implicit in this standard is the rule that “a trial judge should
not act merely as a ‘13th juror’ and set a verdict aside simply
because he would have reached a different result had he been
the trier of fact.” Borras v. Sea Land Service, Inc., 586 F.2d
881, 887 (ist Cir. 1978). It has also been said that “courts have
long been, and should be especially reluctant to overturn a jury
finding of negligence in an F.E.L.A. case.” Morgan v. Consoli-
dated Rail Corp., 509 F.Supp. 281, 285 (S.D.N.Y.1980), and
cases cited. This last observation is pertinent because Jones Act
cases are governed by F.E.L.A. principles.

Viewed in the light of these standards, defendant is not
entitled to judgment n. o. v., or, with the exception of the
contribwtory negligence issue discussed under Point II infra, to
a new trial. The accident either occurred or it did not. Defen-
dant argued that the evidence showed plaintiff did not report
the incident, and that he had attained the level of full retire-
ment benefits, from which defendant asked the jury to infer
that plaintiff had invented the accident in order to finance a
more comfortable retirement. The jury was entitled in law to
draw that inference; but it was equally entitled to believe the
plaintiff’s account of what happened to him, as it clearly did. I
do not regard the jury’s conclusion as seriously erroneous.

C-5

Having observed plaintiff’s demeanor and listened to his testi-
mony, | do not believe that he fabricated the accident.

On the question of defendant’s negligence, plaintiff's expert
witness testified that the prevailing conditions of wave, wind,
and the vessel’s motion through the seas resulted in spray on
the deck which rendered the area unsafe for the designated
work, Plaintiff testified that the chief engineer directed him to
perform the work. The chief officer’s duties included supervi-
sion of work on deck with a view to safety. There is no basis,
under either rule, to disturb the jury’s finding that defendant's
negligence contributed to the accident.

Finally, the jury was entitled to conclude, from the mass of
medical evidence, that the accident caused an injury to plain-
tiff’s cervical spine, permanent in nature, which, when super-
imposed upon whatever prior conditions plaintiff suffered
from, constituted the cause of a permanent disability to work
as a marine engineer. The Public Health Service treating
physician, Dr. Miller, during the course of a lengthy deposi-
tion, gave such testimony (Dep. Tr. 87, 88, 95, 96); a compara-
ble opinion was expressed by plaintiff’s trial expert, Dr. Golub,
who attached particular significance to a reversal of the upper
cervical curve which he detected in the x-rays.

There was, of course, contrary evidence from the two
medical expert witnesses defendant called at trial. The jury
could have accepted those opinions; it could also have drawn
certain of the inferences which defendant’s counsel asked it to
draw from plaintiff’s voluminous medical history. But again,
the jury elected not to do so; and it is a necessary function of
lay jurors to choose between conflicting medical opinion. In
addition, the jury was entitled to consider the fact, stressed by
plaintiff’s counsel in argument, that notwithstanding the pre-
viously existing conditions stressed by defendant, plaintiff had
worked without significant interruption at sea for many years
prior to the accident in suit. Defendant’s riposte, as previously
noted, was that plaintiff had decided it was time to retire, and
wished to augment his pension. But the jury was also entitled
to credit plaintiff’s testimony—as did I—when, in responding
to that suggestion by defendant’s counsel on cross-examina-

C-6

tion, he stated in substance that he loved the sea, it was his
home, he knew no other, he had not intended to retire, and
badly missed going to sea.

These considerations are fatal to defendant’s motion for
judgment n. o. v. under Rule 50, on the questions of liability
and causation discussed. Within the context of defendant’s
motion for a new trial under Rule 59, I could disturb the jury’s
findings on these issues only if I acted as an impermissible
“13th juror,” which | decline to do, because | am not per-
suaded that they were “seriously erroneous.”

The question of substance that arises, on this aspect of the
motion, relates to the jury’s finding of 4% contributory
negligence. As noted supra, there is no basis for disturbing the
jury’s findings that the area in which plaintiff was working was
unsafe by reason of spray on the deck, and that defendant’s
supervising officers, who directed plaintiff to perform this
work, knew or should have known of the hazard. But defen-
dant argued that plaintiff, a man of many years’ experience at
sea, and the holder of a chief engineer’s license, was equally
able to appreciate any danger, and that he could have, by an
alternative course of conduct, avoided the danger.

To sustain a theory of contributory negligence, defendant
was required to demonstrate something more than plaintiff’s
proceeding in the face of an apparent hazard. A theory of
negligence, so limited, is the legal equivalent of the defense of
assumption of the risk, which is not available in cases of this
nature. Rivera v. Farrell Lines, Inc., 474 F.2d 255, 257-58 (2d
Cir. 1973). It is necessary for the defendant to demonstrate “an
act of negligence other than [plaintiff’s] knowledge of the
dangerous condition,” such as a failure to take an alternate
route which would have avoided the hazard. /d. at 258. That is
to say, “the defense of contributory negligence requires evi-
dence of some negligent act or omission by the plaintiff other
than his knowledgeable acceptance of a dangerous condition.”
Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193 (6th Cir.
1980), citing Rivera, supra. “A seaman may not be denied

C-7

recovery because he proceeds in an unsafe area of the ship or
uses an unsafe appliance in absence of a showing that there
was a Safe alternative available to him.” Tolar at 1195.

In the case at bar, defendant perceives the requisite safe
alternative in plaintiff's testimony that the project of replacing
the on-deck fittings had been going on for a period of a week,
ten days, possibly longer than that; that plaintiff had been
preparing some of the replacement fittings while the vessel was
in the Mediterranean; and that the weather in the Mediterra-
nean “was real beautiful theh.” It further appears from the
evidence that plaintiff, while given a number of projects as
assistant day engineer, exercised a considerable degree of per-
sonal control as to which project he would work upon at what
time. It is further established from the evidence that the
accident occurred on a Saturday, which was an overtime day,
and that plaintiff was not required to work on that day at all,
unless he wished to accrue overtime. From these facts, essen-
tially undisputed, defendant argues that plaintiff could have
performed this work while the vessel was still sailing in the
beautiful weather of the relatively sheltered Mediterranean; or,
the vessel having progressed into the North Atlantic, he could
have deferred the work until a different time if the weather
conditions at a given moment created a hazardous condition.
This theory finds arguable support in the following testimony
given by the plaintiff on cross-examination:

“Q. This project of cutting off and replacing these
pedestal supports owas an ongoing _ thing,
correct?” “A, Yes.”

“Q. It had been going on for a period of time, perhaps
a week, ten days, maybe more?” “A. Right.”

“Q. You were doing that when it was convenient and
you were doing other things when it was convenient and
you were doing the routine things one after the other as
you chose, correct?”

“MR. THALER: I object to form.”
“THE COURT: Overruled.”
“MR. THALER: Okay.”

C-8

“Q. As you chose?” “A. Like, working those pedes-
tals, when it was good weather, | could cut all those
gadgets off, get ready to weld these new parts over it,
because they had already made three or four of them. I
don’t know who made them. | could put those on in good
weather and when it was bad weather | could—they didn’t
take long to make it. You don’t have to work for days. I
could make four, five in one day or maybe six, maybe all
eight.” Tr. 28-29,

Against this record, the Court charged the jury, without
exception, on the issue of contributory negligence in pertinent
part as follows:

“In this case, in order to establish that the plaintiff was
negligent, the defendant must prove an act of negligence
other than the plaintiff's knowledge of a dangerous con-
dition in the area of his work. That is because under the
law, the plaintiff did not assume the risk of his employ-
ment. That is, he does not under the law assume the risk
of a negligently created condition.

“But the plaintiff was under a duty to make reasonable
use of his own senses, in order to avoid injury to himself.
In that regard, you must consider the defendant's argu-
ment that Mr. Akermanis could have arranged his work
schedule so as to complete this particular burning and
welding project while the vessel was in calmer waters,
earlier in the voyage, before passing through the straits of
Gibraltar into the North Atlantic.”

The jury, so instructed and in the light of this evidence,
answered in the affirmative the following question on the
special verdict:

“5. Has defendant proved, by a fair preponderance of
the credible evidence, that there was any contributory
fault of plaintiff Carl Akermanis, which proximately
caused his accident?”

C-9

And, having answered that question in the affirmative, the
jury assessed the percentage of contribution of the plaintiff's
own fault to the accident at 4%, leaving the remaining 96% to
fall upon defendant.

If the jury had concluded that plaintiff was free of contribu-
tory negligence, a question of some difficulty might have
arisen as to whether that conclusion was not only erroneous,
but “seriously” so. However, the jury by its verdict has voiced
its conclusion that, in fact, fault of the plaintiff contributed to
his accident. In the circumstances of this case, | have no
difficulty at all in concluding that the minimal percentage
assigned to that fault constitutes clear and serious error.

Defendant argues that a finding of 4% contributory negli-
gence is, in the circumstances, “unsupportable.” Main brief at
16. Defendant cites no case for this proposition, or to indicate
what a proper allocation should be, But | am persuaded, on
the basis of my own research, that the general proposition is
sound, and that a significant increase in the degree of contribu-
tory negligence is required to prevent a miscarriage of justice.
The subjects of “assumption of risk, contributory negligence,
and division of damages” are treated in West’s Federal Practice
Digest under “Seamen,” key number 29(4). Examination of the
headnotes indicates that, in cases where judge or jury have
found contributory negligence on the part of the plaintiff, the
allocated percentages fall for the most part between 20% and
50%. Of course, each case turns upon its own circumstances;
but this trend of decision reflects a general awareness that if a
seaman’s negligence contributed to his shipboard injury, it did
so to a significant degree.

While | find 10 precedent for so minimal an allocation in a
case where a seaman’s negligence has contributed to his own
injury, | do not hold that a 4% allocation for contributory
negligence can never be appropriate. But I do conclude that, in
the circumstances of this case, it cannot be. As defendant
accurately states in its brief at 16, this is a case “in which
plaintiff was working voluntarily on overtime and in which he
admitted that he exercised discretion as to when and how he

C-10

would perform this routine task.” No compulsion to do this
work at this time appears. Plaintiff could have reasonably
forseen that it would be safer to do burning and finishing work
on an exposed deck in the Mediterranean rather than the North
Atlantic. In somewhat comparable circumstances judges sitting
without juries have found 50% contributory negligence fac-
tors. See, e. g., Nygaard v. Peter Pan Seafoods, Inc., 508
F.Supp. 151, 154 (W.D.Wash.1981), per Senior District Judge
Beeks; Haughton v. Blackships, Inc., 334 F.Supp. 317
(S.D.Tex.1971), rev'd on other grounds, 462 F.2d 788 (Sth Cir.
1972).

In the case at bar, the jury clearly indicated its view that a
considerably greater share of fault should be allocated to the
defendant shipowner. In reaching that conclusion, the jury
presumably had in mind plaintiff's testimony that the chief
engineer instructed him to work on deck on the day in
question, testimony which permitted plaintiff's counsel to
argue in summation that, under the adverse weather conditions
prevailing, and nothwithstanding plaintiff's option to do some-
thing else that morning, “the assignment should never have
been given” by the chief engineer, and that the chief officer
should not have permitted plaintiff to continue in his work. Tr.
68. While I regard the jury’s precise assessed percentages as
impermissible, it is entitled to place the greater share of the
fault upon defendant. My view on this aspect of the case is
that, in the totality of circumstances, a contributory negligence
allocation of only 4% is seriously erroneous; and that defen-
dant is entitled to a new trial on liability issues, unless plaintiff
agrees to a remittitur of the damages awarded, based upon a
contributory negligence factor of 25%. The procedure that will
be followed in the event of a new trial is discussed under Point
VI infra.

Defendant contends that the jury’s awards of damages are
excessive. Consistent with preferred practice, cf. Gretchen v.
United States, 618 F.2d 177, 180-81 (2d Cir. 1980), the jury

C-11

completed a special verdict calculating separate amounts for
past and future loss of earnings, and past and future pain and
suffering. Defendant challenges each award.

In passing upon a motion challenging a jury’s verdict as
excessive, “the trial judge is not called upon to say whether the
amount is higher than he personally would have awarded,”
Dagnello v. Long Island Railroad, 289 F.2d 797, 806 (2d Cir.
1961), citing with approval Delaney v. New York Cent. R. Co.,
68 F.Supp. 70 (S.D.N.Y.1946), and Lopoczyk v. Chester A.
Poling, Inc., 60 F.Supp. 839 (S.D.N.Y.), aff'd, 152 F.2d 457
(2d Cir. 1945). In Delaney, this Court said:

“Even though I might disagree with the amount of the
verdict, | have no right to substitute my mind for that of
the jury. A verdict will not be set aside simply because it is
excessive in the mind of the Court, but only when it is so
grossly excessive as to shock the Court’s sense of justice
and the impropriety of allowing it to stand is manifest.”
68 F.Supp. at 73.

Lopoczyk, supra, expands on the theme in these words:

“It is familiar learning that the court should not set aside
a verdict on the ground that it is excessive unless it is so
high as to shock the conscience. This rule is to be applied
even where there is some feeling on the part of the trial
court that a smaller verdict would have been more appro-
priate . . . The principle is that if the court should set
aside the jury’s verdict in the absence of a showing of
caprice, passion or prejudice, it would be usurping the
jury’s function . . . The power to set aside should be
cautiously used because where pain and suffering and
permanent injury are involved there can be no exact
yardstick and the jury’s determination should stand unless
it is clearly unreasonable.” 60 F.Supp. at 840 (citations
omitted).

At the appellate court level, the standard of review is
essentially the same. See, e. g., Mileski v. Long Island Rail-

C-12

road, 499 F.2d 1169, 1173 (2d Cir. 1974) (“. . . we cannot say
that this award was so grossly excessive or shocking to the
conscience that it would be a ‘denial of justice to let it stand,’ ”
citing Dagnello, supra, and Grunenthal v. Long Island Rail-
road, 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed.2d 309
(1968)); Gibbs v. United States, 599 F.2d 36, 39 (2d Cir. 1979);
Zarcone v. Perry, 572 F.2d 52, 56-57 (2d Cir. 1978); Fernandez
v. Chios Shipping Co., Ltd., 542 F.2d 145, 155 (2d Cir. 1976)
(“. . . al

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0404%3A1. Public record. Not legal advice.