Opposition Brief — Armadores de Cabotaje, S. A. v. Young
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No. 93-1040 and No. 93-1068 | Mnrinma Court, U.S
KILED
In The JAN 2 7 1994
Supreme Court of the United |States; ine cucen
October Term, 1993
+
NO. 93-1040
EMPRESA NACIONALE SIDERURGICA, S.A.,
Petitioner,
versus
JERRY YOUNG,
Respondent.
+ —
NO. 93-1068
ARMADORES de CABOTAJE, S.A.,
Petitioner,
versus
JERRY YOUNG,
Responden f.
7 —
Petitions for Writs of Certiorari
to the Louisiana Fourth Circuit Court of Appeal
+
BRIEF FOR RESPONDENT
on o-—
LAWRENCE S. KULLMAN (#7884)
Lewis & KULLMAN
2615 Pan American Life Center
601 Poydras Street
New Orleans, Louisiana 70130
Telephone: 504/588-1500
Counsel of Record
77)
FrReDERICKA HomBerGc Wicker (#697
434 Bellaire Drive
New Orleans, Louisiana 70124
Telephone: 504/482-1887
Attorneys for Respondent, Jerry Young
COCKLE LAW 6BRIEF PRINTING CO. (600) 225-6964
OR CALL COLLECT (402) 42-2831 \
A
III.
IV.
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE.................. 1
SUMMARY OF ARGUMENT.................. 10
ENSIDESA’S WRIT APPLICATION SHOULD BE
DENIED BECAUSE IT WAS NOT DENIED DUE
PROCESS UNDER THE FOURTEENTH
AMENDMENT BY THE APPLICATION OF
LOUISIANA CODE OF EVIDENCE ARTICLE
ARCASA’S WRIT APPLICATION SHOULD
pe se Be TTT Pere ee LS CTeee
A. The holding below does not conflict with
Derr as properly interpreted ..............
B. Granting this writ would not serve the inter-
indie 6 5 on 0 08h binces View dues
C. Your Honors should refuse to grant the writ
because the Louisiana Fourth Circuit Court
of Appeal properly interpreted the duties
owed under 33 United States Code section
905(b) and found that there was sufficient
evidence to support the jury verdict ......
Wy. SII 660 brad eOC beta cdetcredeesese
11
22
22
25
TABLE OF AUTHORITIES
Page
CaAszs:
Carpenter v. Universal Star Shipping SA, 924 F.2d
1539 (Sth Cie. 19PE), ccc cccseyeststdscotaeneisces 29
Coody v. Richardson, 569 So. 2d 1012 (La. App. 3d
Cir. 1990), cert. den’d, 572 So. 2d 90 (1991)........ 23
Derr v. Kawasaki Kisen K.K., 835 F.2d 490 (3d Cir.
1987), cert. den'd, 486 U.S. 1007 (1988)...... 22-25, 26
Government of Virgin Islands v. Gereau, 523 F.2d 140
(3d Cir. 1975), cert. den’d, 424 U.S. 917 (1976)..... 18
Harris v. Flota Mercante Grancolumbiana, S.A., 730
F.2d 296 (Sth Cin, Fe ciscsvvedesdvcuser: 22, 25, 26
Kirsch v. Plovidba, 971 F.2d 1026 (3d Cir. 1992),...... 24
Lemon v. Bank Lines, Ltd., 656 F.2d 110 (5th Cir.
Tc) Sera rd SAT Sp ky 22, 25, 26
Marine Terminals v. Burnside Shipping Co., 394 US,
4046 (1969) . ...040s0eccdumeus x cee teeneemeees eeeeee 26
Martinez v. Food City, Inc., 658 F.2d 369 (5th Cir.
1961)... ..+scn0educk¥) cathe pane enG ae ee ane eb aed 18
McDonald v. Pless, 238 U.S. 264 (1915)............ 13-15
Riggs v. Scindia Steam Nav. Co., 8 F.3d 1442 (9th Cir.
19DS). .occcevccvveuhseeke heen ieee. 22, 27-29
Scindia Steam Nav. Co. v. De Los Santos, 451 U.S.
- 156 (1988) . «<60000cetneeeeeaneeeeene 8, 24, 26-27, 30
Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987)..... 19
Smith v. Phillips, 455 U.S. 209 (1982) ............005. 12
TABLE OF AUTHORITIES — Continued
Page
State v. Shillcutt, 341 N.W.2d 716 (Wis. App. 1983).... 19
State v. Shillcutt, 350 N.W.2d 686 (Wis. 1984)........ 19
Tanner v. United States, 483 U.S. 107 (1987)... 13, 16, 21
Turner v. Japan Lines, Ltd., 651 F.2d 1300 (9th Cir.
1981), cert. den'd, 459 U.S. 967 (1982).. 22, 27, 28, 29
United States v. Casamayor, 837 F.2d 1509 (11th Cir.
1988), cert. den’d sub nom. Barker v. United States,
are aed ebhdbad¥eNeddes 6¢e:s 18
United States v. Duzac, 622 F.2d 911 (5th Cir. 1980),
cert. den'd, 449 U.S. 1012 (1980)............. 17-18, 21
Woods v. Sammisa Co., Ltd., 873 F.2d 842 (5th Cir.
1989), cert. den'd, 493 U.S. 1050 (1990)............. 22
Young v. Armadores de Cabotaje, S.A., 617 So. 2d 537
Pe SE ee A eee 9, 12, 25
Young v. Armadores de Cabotaje, S.A., 625 So. 2d 171
Ears Us bades vss bevev cde beddevesrte’ 12
OrHeER:
33 U.S.C. § 901, et seq. (Longshore & Harbor
Workers’ Compensation Act)................ 1, 27, 29
EE EE Sp cttocdcéveccccvcess 1, 22, 23, 24, 29
House Report, 1972 U.S.C.C.A.N. at 4704......... 27-28
Louisiana Code of Civil Procedure article 1793...... 23
Louisiana Code of Evidence article 606B..... 10, 11, 13
LSA — R.S. § 22:655, et seg. (Louisiana’s Direct
eee edie deweretedcnbebesreees 4
Federal Rules of Evidence Rule 606(b) ... 11, 15, 18, 21
at PURI SS
MAY IT PLEASE) THE COURT:
I.
STATEMENT OF THE CASE
Respondent, Jerry Young, a longshoreman, brought
suit in the Civil District Court for the Parish of Orleans,
State of Louisiana, seeking damages for injuries he sus-
tained while off-loading steel beams from a vessel, the
M/V LORENA, in the Port of New Orleans, Louisiana.
The defendants were Empresa Nacionale Siderurgica,
S.A., (Ensidesa), a Spanish steel manufacturer that had
loaded the cargo in Aviles, Spain, and chartered the ves-
sel for the voyage from Spain to New Orleans; and Arma-
dores de Cabotaje, S.A., (Arcasa), the owner and operator
of the vessel. The plaintiff claimed that Arcasa and
Ensidesa were both liable for negligence under section
905(b) of the Longshore and Harbor Workers’ Compensa-
tion Act (33 U.S.C. § 901, et seq.; 33 U.S.C. § 905(b),
hereinafter referred to as “905(b)”) and, additionally, that
Ensidesa, as the stevedoring company that had loaded
the vessel, was liable for negligence under the general
maritime law.
On November 22, 1982, Jerry Young, then a 46-year-
old experienced longshoreman employed by Cooper
Stevedoring, was working with his gang in the No. 2 hold
of the M/V LORENA, off-loading steel beams. Young
App. 43a.
The beams could have been stowed on either the
edges (the “H” position) or on the flanges (the “I” posi-
tion). When the beams are stowed in the “H” position, the
edges of the beams cut into dunnage placed to separate
the layers of beams. The extent of the damage to the
dunnage depends on the weight of the stow (that is, how
high the steel beams are loaded within the hold of the
vessel) and the quantity and quality of the wood dunnage
used. Stowage in the “H” position also creates an uneven
surface on which the men have to walk while off-loading
the cargo. Young App. 44a.
In contrast, stowage in the “I” position results in the
dunnage resting on the beams’ flat flanges, thus prevent-
ing the dunnage from being cut. Stowage in this manner
also gives the longshoremen a flat surface upon which to
walk and work. Young App. 44a.
Ensidesa clearly knew that use of the “H” method to
stow the steel beams tends to cut and crush the dunnage
between the tiers of steel beams. Ensidesa further knew
that, when the dunnage was crushed, it made safe off-
loading with standard rigging very difficult, if not impos-
sible.! Young App. 45a.
Indisputedly, the master of the M/V LORENA (an
Arcasa employee) was the person ultimately responsible
for the manner in which the cargo was stowed and was a
' When Ensidesa’s own longshoremen, in Spain, encoun-
tered crushed dunnage, they used a giant clamp to lift the
beams sufficiently to replace the crushed dunnage, thereby per-
mitting the placement of chains for off-loading. Ensidesa’s
director of the Port of Aviles had been to the United States and
observed American stevedoring operations and knew that the
giant clamps used by Ensidesa in Spain were not utilized by
stevedores in the United States, who were unaware of their
existence. Young App. 45a.
co-participant with Ensidesa’s port captain in preparing,
approving and ultimately accepting the stowage.
Serafin Garcia testified in pertinent part as follows:
Q. Mr. Garcia, it’s my understanding that you
are employed by Ensidesa as the director of the
Port of Aviles?
A. Yes.
Q. As port director, you supervise all activity
carried on at the port?
A. Yes.
Q. Does that include responsibility for the
manner in which vessels are stowed?
A. Yes.
(R. Vol. V at 350-51.)
Q. The master of the vessel works with Cap-
tain Cazon as operations director of the port to
work out a stowage plan prior to loading any
vessel; is that right?
A. Yes.
(R. Vol. V at 352.)
Q. In 1982 all steel beams being loaded from
the port of Aviles were loaded in the H method;
is that right?
A. Yes.
(R. Vol. V at 353.)
Q. In 1982 Ensidesa chartered the M/V Lorena
from the company Arcasa; is that right?
;
7
&
ee So. a ————
A. Yes.
(R. Vol. V at 354.)
Q. If you know, is the master of the Lorena
employed by the owner of the Lorena?
A. The captain in 1982 of the vessel as well as
the captain in 1989 to date wherever the vessel
may be is always an employee of the owners of
the vessel, whoever they may be.
(R. Vol. V at 356.)
©. And it is Ensidesa and the master of the
vessel who prepare the stowage plan, correct?
A. Yes.
(R. Vol. V at 361.)
Q. Do you know, Mr. Garcia, after the vessel is
loaded and before it leaves the Port of Aviles,
does the captain of the vessel have to accept the
vessel from Ensidesa?
A. Yes, correct, because the captain of the ves-
sel is personally all the time the responsible
person of the cargo, since he is responsible for
the delivering the merchandise to designation in
the best possible conditions.
(R. Vol. V at 364.)
Florentino Cezon Cuiroz testified further as follows:
Q. By whom are you employed, sir?
A. By Ensidesa.
Q. What is your job, sir?
A. Chief of port operations for Ensidesa in
Aviles.
Q. Do you supervise stevedoring operations in
the port?
, hs ee
Q. Did you use the same stowage method for
voyages as for the voyage in 1982 for the M/V
Lorena?
A. Yes, exactly the same.
Q. Have you loaded many other vessels in the
past in the same manner you loaded the Lorena?
A. Yes, and it’s still being done the same way
today.
(R. Vol. V at 406-07.)
Q. And you always review those plans with
the master or captain of the vessel?
A. Yes.
Q. And the captain or master of the vessel
must approve those plans, correct?
A. Yes, because he’s the responsible person.
Q. When you prepare the plans to load the
vessel, is it your responsibility to take into con-
sideration the safety of the stow?
A. Yes.
Q. As part of your job when you prepare the
stowage plan, is it part of your responsibility to
prepare a stow so that the cargo is stowed in a
safe manner?
A. Yes.
(R. Voi. V at 410-12.)
Q. Who has the last word with regard to the
manner of a stow?
A. The captain.
(R. Vol. V at 415.)
After the M/V LORENA arrived at the Port of New
Orleans, Cooper Stevedoring began the off-loading pro-
cess. Captain Ross, a marine surveyor employed by Coo-
per, the off-loading stevedore, to monitor the off-loading,
found that the dunnage between the tiers of beams had
become compressed and/or broken up, creating a dan-
gerous stow. Young App. 47a.
As the longshoremen removed cargo from the hold of
the LORENA and reached lower tiers of beams, the dun-
nage was found to be more and more crushed until the
steel beams virtually rested on top of each other, without
any separation at all. Young App. 46a-47a.
In these circumstances, it became impossible for the
longshoremen to insert the wires far enough onto the
beams to lift them and place the chains. The longshore-
men had to “nip” the ends of the beams; that is, someone
managed to lift one end of a beam a short distance while
fellow longshoremen threw wood chunks under the beam
and then forcec' the wire back farther. In effect, the long-
shoremen were having to put in dunnage after the cargo
had been stowed. Young App. 48a.
Captain Ross testified that he had never seen a stow
of steel beams as bad as the one he observed on the M/V
LORENA in November 1982. Young App. 47a.
Mr. Young's longshore gang had no alternative but to
continue to off-load the vessel as carefully as they could.
In due course, while the longshoremen were attempt-
ing to “nip the beams,” a wire slipped off a beam and a
T-bar, part of the lifting tackle, began swinging wildly
through the hold and, in the process, it hit Jerry Young in
the head and knocked him unconscious and caused him
to fall onto the steel beams, suffering severe injuries to
his back. Young App. 49a.
As of the time of trial, about seven years later, Mr.
Young had been hospitalized eight times; he had had
three surgical procedures on his back; he had received
anesthetic injections into the muscles around his spine on
approximately 40 occasions; he had been hospitalized to
have morphine injected into his spine on at least three
occasions; he was regularly taking an oral narcotic pain
medication; and he was permanently and totally dis-
abled. Young App. 49a-5la, 64a.
The medical testimony established that Mr. Young
would probably continue to suffer to the same extent for
the remainder of his life and he would continue to require
significant ongoing treatment for the relief of his symp-
toms, including, inter alia, hospitalization and probably
additional surgery. Young App. 64a.
In addition, Mr. Young suffered substantial psycho-
logical injury as a result of his injuries and resulting
inability to work. As Dr. Robert Newman, his treating
psychiatrist testified, Mr. Young’s whole sense of self was
tied up in his ability to do his job and do it well. Young
App. 65a. The combination of the physical disability and
pain coupled with the vocational disability caused Mr.
Young to suffer severe depression and anxiety. According
to Dr. Newman, he had difficulty in sleeping, loss of
appetite and decreased interest in sex. Young App. 65a.
In January 1989 Mr. Young’s depression got worse,
and he told Dr. Newman that he had no hope and saw no
future for himself, and he was seriously thinking about
suicide. Young App. 65a.
As Dr. Newman testified at trial, Mr. Young’s “image
of himself had been damaged beyond repair” by his
injury and resulting disability. Young App. 65a.
The matter went to trial in May, 1989.
The trial court charged the jury on the applicable law
in accordance with the decision of this Court in Scindia
Steam Nav. Co. v. De Los Santos, 451 U.S. 156 (1981). See
Young App. 21a-25a.
After the jury had retired for its deliberations, it
returned to the courtroom at about 8:30 p.m. reporting
that it had not reached a decision. R. Vol. VII at 48. At
that time no juror gave any indication that any other juror
was acting improperly or deliberating in a biased or
prejudiced manner.
At 10:30 p.m. the jury returned for the second time
and returned its verdict, voting 9 to 2 in Mr. Young’s
favor, awarding $1.7 million in damages and holding
defendant Ensidesa 85 per cent liable and defendant
Arcasa 15 per cent liable. R. Vol. VII at 50-51.
The jury was polled and confirmed its verdict. Again,
no juror voiced any objection to the manner of the delib-
erations or as to any prejudice or bias that had affected
the jury’s decision-making. R. Vol. VII at 51-54.
a
At no time subsequent to the jury’s rendering its
verdict did any juror approach the court with any com-
ment regarding the manner of the deliberations.
Later, Ensidesa moved for a new trial and, in support
thereof, attached an affidavit from one of the dissenting
jurors. Ensidesa App. 81a-83a. Ensidesa subsequently
supplemented this memorandum with two additional
affidavits. Ensidesa App. 89a-9la, 92a-94a.
Ensidesa’s position was that the affidavit testimony
was sufficient to warrant the granting of a new trial. \At
no time did Ensidesa request that the trial court hold an
evidentiary hearing, and its motions for judgment notwith-
standing the verdict and new trial were submitted to the court
for decision after full argument in open court.
Ensidesa and Arcasa both appealed from that judg-
ment.?
The Louisiana Fourth Circuit Court of Appeal
affirmed the judgment against both defendants, but
reduced the plaintiff's award from $1,700,000 to
$1,106,000 plus medical expenses. The court of appeal
found Arcasa was entitled to complete contractual indem-
nity from Ensidesa. Young v. Armadores de Cabotaje, S.A.,
617 So. 2d 517, 545 (La. App. 4th Cir. 1993).
? Neither Arcasa nor Ensidesa have ever paid the judgment
or posted bond for their various appeals. Arcasa is “defunct,”
but was covered by a policy of “reinsurance,” which is alleged
to be not subject to Louisiana’s Direct Action Statute. LSA - R.S.
§ 22:655, et seq. Ensidesa still sells steel to United States cus-
tomers, but claims it has no assets in this country subject to
seizure and so is “judgment proof” in this.country.
10
Il.
SUMMARY OF ARGUMENT
Ensidesa contends that it was denied due process of
law by the application of Louisiana Code of Evidence
article 606B. Ensidesa is mistaken. The Louisiana Fourth
Circuit Court of Appeal’s decision is consistent with the
decisions of this Court prohibiting the admissibility of
testimony by jurors about jury deliberations to impeach
the validity of a jury verdict. The jurors had ample oppor-
tunity to object to any bias or misconduct. The kinds of
complaints made here against Juror Granderson’s state-
ments during deliberations have been consistently held
inadmissible as competent evidence to impeach a jury
verdict. Moreover, Ensidesa never asked the trial court to
hold an evidentiary hearing on this issue, and should not
now be heard to complain.
Arcasa seeks writs to correct what it perceives as a
split in the United States Circuit Courts of Appeals con-
cerning the duties owed by a vessel owner to a discharg-
ing stevedore. But the holding of the Louisiana Fourth
Circuit Court of Appeal below does not present the con-
flict that Arcasa contends exists by reason of other United
States Court of Appeals decisions.
For these reasons, the decision of the Louisiana
Fourth Circuit Court of Appeal should not be disturbed.
- «
a i i a a
11
Ill.
ENSIDESA’S WRIT APPLICATION SHOULD BE
DENIED BECAUSE IT WAS NOT DENIED DUE PRO-
CESS UNDER THE FOURTEENTH AMENDMENT BY
THE APPLICATION OF LOUISIANA’S CODE OF EVI-
DENCE ARTICLE 606B.
Louisiana Code of Evidence article 606B, like its
counterpart, Rule 606(b) of the Federal Rules of Evidence,
prohibits a juror from offering testimony concerning jury
deliberations to impeach the validity of a verdict.
In this regard, Louisiana Code of Evidence article
606B states as follows:
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any
matter or statement occurring during the course
of the jury’s deliberations or to the effect of
anything upon his or any other juror’s mind or
emotions as influencing him to assent to or dis-
sent from the verdict or indictment or concern-
ing his mental processes in connection
therewith, except that a juror may testify on the
question whether any outside influence was
improperly brought to bear upon any juror
.. . Nor may his affidavit or evidence of any
statement by him concerning a matter about
which he would be precluded from testifying be
received for these purposes.
After the verdict was rendered, counsel for Ensidesa,
without leave of court, obtained the affidavits of three
jurors concerning statements made by another juror, Mr.
Granderson, during the course of the jury’s deliberations.
Ensidesa states at page 12 of its Application for Writ
of Certiorari that it requested a hearing before the trial
12
court on its motion for a new trial on the issue of juror
misconduct, arguing, “ ‘This court has long held that the
remedy for allegations of juror partiality is a hearing in
which the defendant has the opportunity to prove actual
bias.’ Smith v. Phillips, 455 U.S. 209, 215 (1982).” But, in
fact, Ensidesa at no time moved for an evidentiary hear-
ing with regard to its allegation of juror misconduct.
Ensidesa App., Motion for a New Trial, 71a-77a; 78a-80a;
84a-88a. The trial court set Ensidesa’s motion for a new
trial for hearing (Young App. 26a), and a hearing was had
in open court. Ensidesa did not attempt to call jurors to
testify, choosing to rely upon the three affidavits it had
submitted, which were, of course, not subject to cross-
examination by respondent.
At the hearing on Ensidesa’s motion for a new trial,
the triai court considered the affidavits of the three
jurors, but denied Ensidesa’s motion.
On appeal, Ensidesa contended that the trial court
had erred in refusing to grant its motion for a new trial
because of the “evidence” of jury misconduct.* The court
of appeal rejected this argument, holding the affidavits of
these three jurors “as to matters or statements made
by ...[{Mr. Granderson] during deliberations are clearly
inadmissible to question the validity of the jury verdict.”
Young, 617 So. 2d at 534.
3 Ensidesa first complained of an alleged failure to grant an
evidentiary hearing in its writ of certiorari to the Louisiana
Supreme Court (Ensidesa App. 107a), which writ was denied.
Young v. Armadores de Cabotaje, S.A., 625 So. 2d 171 (La. 1993).
13
Louisiana Code of Evidence article 606B, the trial
court’s reliance thereon to deny Ensidesa’s motion for a
new trial, and the court of appeal’s decision are all
entirely consistent with the decisions of this Court pro-
hibiting the admissibility of testimony by jurors about
jury deliberations to impeach the validity of a jury ver-
dict. McDonald v. Pless, 238 U.S. 264 (1915); Tanner v.
United States, 483 U.S. 107 (1987).
In McDonald v. Pless, 238 U.S. 264, the plaintiffs
brought suit to recover $4,000 allegedly owed for legal
services. After a trial, the jury returned a verdict in the
plaintiffs’ favor for $2,916. The defendant moved to set
aside the verdict on the basis that the jury had not delib-
erated about the evidence, but rather had agreed to a
quotient verdict by dividing what each of them individu-
ally thought the verdict should be by 12. Further, it was
alleged that one juror had voted to give the plaintiff
nothing and three had voted for $5,000, obviously more
than the plaintiffs’ demand. After the quotient was calcu-
lated, some jurors objected because of the inclusion of the
three $5,000 votes, but, ultimately, the protesting jurors
finally yielded to the argument that they were bound by
the previous agreement, and the quotient verdict was
rendered accordingly.
At the hearing on the motion to set aside the verdict, the
defendant called to the stand one of the jurors who was
sworn to testify as a witness. The trial court refused to allow
the juror to testify on the grounds that he was “incompetent
to impeach his own verdict.” 238 U.S. at 266.
This Court was then called upon to decide whether
the trial court had erred in refusing to consider the prof-
fered testimony and whether the defendant had been
14
denied due process of law. In holding that the trial court
had not erred and that the defendant was not entitled to
relief, Your Honors reasoned as follows:
[T]he weight of authority is that a juror cannot
impeach his own verdict. The rule is based upon
controlling considerations of a public policy
which in these cases chooses the lesser of two
evils. When the affidavit of a juror, as to the
misconduct of himself or the other members of
the jury, is made the basis of a motion for a new
trial the court must choose between redressing
the injury of the private litigant and inflicting
the public injury which would result if jurors
were permitted to testify as to what had hap-
pened in the jury room.
These two conflicting considerations are illus-
trated in the present case. If the facts were as
stated in the affidavit, the jury adopted an arbi-
trary and unjust method in arriving at their
verdict, and the defendant ought to have had
relief, if the facts could have been proved by
witnesses who were competent to testify in a
proceeding to set aside the verdict. But let it
once be established that verdicts solemnly made
and publicly returned into court can be attacked
and set aside on the testimony of those who
took part in their publication and all verdicts
could be, and many would be, followed by an
inquiry in the hope of discovering something
which might invalidate the finding. Jurors
would be harassed and beset by the defeated
party in an effort to secure from them evidence
of facts which might establish misconduct suffi-
cient to set aside a verdict. If evidence thus
secured could be thus used, the result would be
to make what was intended to be a private
15
deliberation, the constant subject of public
investigation — to the destruction of all frank-
ness and freedom of discussion and conference.
238 U.S. at 267-68.
Your Honors went on to state that:
[T]here might be instances in which such testi-
mony of the juror could not be excluded without
“violating the plainest principles of justice.”
This might occur in the gravest and most impor-
tant cases; and without attempting to define the
exceptions, or to determine how far such evi-
dence might be received by the judge on his
own motion, it is safe to say that there*is noth-
ing in the nature of the present case warranting
a departure from what is unquestionably the
general rule, that the losing party cannot, in
order to secure a new trial, use the testimony of
jurors to impeach their verdict.
238 U.S. at 268-69.
The policy considerations underlying this Court's
decision in McDonald v. Pless were ultimately codified in
Rule 606(b) of the Federal Rules of Evidence, which pro-
vides as follows:
Upon an inquiry into the validity of a ver-
dict ... a jury may not testify as to any matter or
statement occurring during the course of the
jury’s deliberations or to the effect of anything
upon that or any other juror’s mind or emotions
as influencing the juror to assent to or dissent
from the verdict . . . or concerning the juror’s
mental processes in connection therewith,
except that a juror may testify on the question
whether extraneous prejudicial information was
improperly brought to the jury’s attention or
16
whether any outside influence was improperly
brought to bear upon any juror... .
This rule has been consistently interpreted by the
courts to exclude any offer of testimony by jurors with .
respect to their internal deliberations for the purpose of
setting aside their verdict. In Tanner v. United States, 483
U.S. 107 (1987), Your Honors refused to allow testimony
concerning juror intoxication and marijuana and cocaine
abuse that the defendant contended had deprived him of
his Sixth Amendment guarantee of a “competent jury.”
This Court wrote as follows:
[L]ong-recognized and very substantial con-
cerns support the protection of jury delibera-
tions from intrusive inquiry. Petitioners’ Sixth
Amendment interests in an unimpaired jury, on
the other hand, are protected by several aspects
of the trial process. The suitability of an individ-
ual for the responsibility of jury service, of
course, is examined during voir dire... .
oreover, jurors are observable by each other,
and may report inappropriate juror behavior to
the court before they render a verdict. . . . Finally,
after the trial a party may seek to impeach the
verdict by non-juror evidence of misconduct. . . .
In light of these other sources of protection of
petitioners’ right to a competent jury, we con-
clude that the District Court did not err in
deciding, based on the inadmissibility of juror
testimony . . . that an additional postverdict
evidentiary hearing was unnecessary.
483 U.S. at 127 (citations omitted).
The seriousness of the allegations at issue in Tanner
shows the great importance the Supreme Court has
17
attached to the policy of prohibiting postverdict intru-
sions into juror deliberations in the absence of informa-
tion as to any extraneous or outside influence on their
decision-making. Here, the allegations raised by the three
juror affidavits are entirely directed at matters inherent in
the jury’s decision-making process and deliberation and
in no way suggest that any “extraneous” or “outside”
influence was brought to bear within the jury room to
affect the jury’s verdict.
Rather, it is alleged that the jury was corrupted by
the presence and statements of Mr. Granderson, who
argued for a higher verdict than others thought appropri-
ate and supported his arguments in terms that some other
jurors interpreted as being racist in favor of the plaintiff
(who is black). One juror stated that, as the deliberations
continued, she and others simply wanted to end the
matter and thus agreed to a compromise with Mr. Gran-
derson, in an amount greater than this juror otherwise
believed was appropriate.
Allegations of jury bias were made in a criminal case,
United States v. Duzac, 622 F.2d 911 (5th Cir. 1980), cert. den‘d,
449 U.S. 1012 (1980). There, during the course of deliberations,
the jury sent the court a note saying that, because of certain
“prejudices” among the jury due to prior personal experi-
ences, they were hung and could not reach a unanimous
decision. The defendant moved for a mistrial, which the trial
court denied. After the jury was instructed to continue the
deliberation, they returned with a unanimous verdict against
the defendant, who was black.
The court of appeal affirmed the verdict, reasoning as
follows:
18
[T]here is no evidence that any external influence
was brought to bear on members of the jury. The
prejudice complained of is alleged to be the
product of personal experiences unrelated’ to
this litigation. . . . Although the jury is obligated
to decide the case solely -on the evidence, its
verdict may not be disturbed if it is later learned
that personal prejudices were not put aside dur-
ing deliberations.
622 F.2d at 913 (emphasis added).
In Martinez v. Food City, Inc., 658 F.2d 369 (5th Cir.
1981), the defendant contended that a verdict against it
should be set aside because of a juror affidavit stating
that, during the deliberations, one juror said the defen-
dant “should be taught a lesson.” Id. at 372. The court of
appeals refused to set aside the verdict, finding that this
evidence was inadmissible and therefore there was “no
competent evidence” to support a new trial. Id. at 374.
In United States v. Casamayor, 837 F.2d 1509 (11th Cir.
1988), cert. den’d sub nom. Barker v. United States, 488 U.S.
1017 (1989), a postverdict affidavit by one juror com-
plained that the jury foreman had used “strong arm tac-
tics.” 837 F.2d at 1515. In rejecting the argument that this
evidence should be admissible and competent to autho-
rize a new trial, the Eleventh Circuit held that “the
alleged ha:«ssment or intimidation of one juror by
another would not be competent evidence to impeach the
verdict under Rule 606(b) .. . ” Id.
In Government of Virgin Islands v. Gereau, 523 F.2d 140,
150 (3d Cir. 1975), cert. den’d, 424 U.S. 917 (1976), the
Court held that “evidence of discussions among jurors,
intimidation or harassment of one juror by another, and
19
other intra-jury influences on the verdict are within the
[no impeachment] rule, rather than the exception, and is
not competent evidence to impeach a verdict.”
In Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987),
the petitioner for habeas corpus relief, a black male, had
been convicted of soliciting prostitutes. The government's
chief witness against him was a young white woman. At
trial, the jury had first deadlocked and then returned a
guilty verdict after being urged to decide the case by the
trial court. .
The defendant sought to set aside the verdict based
upon evidence that, during the jury’s final deliberations,
a white male juror had said, “Let’s be logical. He’s black
and he sees a seventeen year old white girl — I know the
type.” 827 F.2d at 1156. The trial court denied the defen-
dant’s request for relief, and the Wisconsin Court of
Appeal affirmed the judgment, holding that the statement
of the juror during jury deliberations was not competent
evidence to set aside the verdict. State v. Shillcutt, 341
N.W.2d 716 (Wis. App. 1983). The Wisconsin Supreme
Court affirmed. State v. Shillcutt, 350 N.W.2d 686 (Wis.
1984). The defendant then sought habeas relief in the
federal court, arguing that the racist comment made dur-
ing jury deliberations violated his constitutional rights
under the Sixth and Fourteenth Amendments. In rejecting
this argument, the Seventh Circuit Court of Appeal noted
that its role was to “inquire whether the state court
determination violated any federal constitutional or stat-
utory right of the petitioner.” 827 F.2d at 1158. The Court
concluded that, even in this context, “applying the no-
impeachment rule does not offend fundamental fairness.”
Id. at 1160.
20
These cases clearly establish that the kinds of com-
plaints made here against Juror Granderson’s statements
during deliberations have been consistently held inad-
missible as competent evidence to impeach a jury verdict.
There is nothing about this case to suggest that this
defendant was denied fundamental fairness and due pro-
cess by the application of this rule here. No juror objected
about bias before a verdict was rendered when there was
opportunity to do so before the Court. No juror objected
about misconduct when the jury was polled at the time
the verdict was rendered. The statements were made later
only after the dissident jurors were contacted by counsel
for the defendant.
Moreover, the affidavits presented, even if consid-
ered, fall far short of establishing by clear and convincing
evidence either that Mr. Granderson was racially biased
or that racial bias prejudiced the jury’s verdict against
Ensidesa.
According to the jurors’ affidavits, Mr. Granderson
wanted to award Mr. Young more than $2,000,000. Given
the extraordinary severity of Mr. Young’s injuries, it sim-
ply cannot be said that Mr. Granderson’s views must
have been animated solely by bias favoring Mr. Young.
Finally, Ensidesa complains that no hearing was held
on its motion for a new trial. This is patently untrue. A
lengthy hearing was held. No new evidence was intro-
duced at the hearing, but no evidentiary hearing was
requested. There is nothing in Louisiana law that prohib-
ited Ensidesa from requesting such a hearing or subpoe-
naing the jurors. Ensidesa simply chose not to do so.
vitied
21
In Tanner, 483 U.S. 107, Your Honors, in response to a
similar complaint, held that the “District Court did not
err in deciding, based on the inadmissibility of juror
testimony and the clear insufficiency of the nonjuror evi-
dence offered by petitioners, that an additional postver-
dict evidentiary hearing was unnecessary.” 483 U.S. at
127. Here, Trial Judge Johnson was not even asked to
hold such a hearing.
Similarly, in United States v. Duzac, 622 F.2d 911, the
Fifth Circuit held that the defendant in that criminal
proceeding had no constitutional right to an evidentiary
hearing on his complaints of jury misconduct since “the
only questions that the trial judge might have asked at a
hearing would have concerned the jurors’ prejudices and,
therefore, would have been impermissible.” 622 F.2d at
914. This is exactly the same situation that existed here.
Even if the trial court had been asked to hold an evidenti-
ary hearing, it would have been error to grant it in the
circumstances of this case.
In conclusion, Louisiana’s evidentiary rule (virtually
identical to Federal Rule of Evidence 606(b)) prevents
impeachment of a jury’s verdict by evidence of the jury’s
alleged improper deliberations, regardless of whether
such evidence suggests bias, intimidation, or compro-
mise. The narrow question presented by Ensidesa’s writ
application is whether Louisiana’s use of its evidentiary
rule here violated the defendant's right to due process.
Given the allegations made, the ample opportunities
available to the jury te object to bias if they had seen fit,
and the settled precedent of this court, we respectfully
suggest that the answer is “NO” and that Ensidesa’s writ
of certiorari should be denied.
22
IV.
ARCASA’S WRIT APPLICATION SHOULD
ALSO BE DENIED.
A. The holding below does not conflict with Derr* as
properly interpreted.
Arcasa correctly states that the Fifth Circuit in Lemon
v. Bank Lines, Ltd., 656 F.2d 110 (5th Cir. 1983), Harris v.
Flota Mercante Grancolumbiana, S.A., 730 F.2d 296 (5th Cir.
1984), and Woods v. Sammisa Co., Ltd., 873 F.2d 842 (5th
Cir. 1989), cert. den’d, 493 U.S. 1050 (1990), and the Ninth
Circuit in Turner v. Japan Lines, Ltd., 651 F.2d 1300 (9th Cir.
1981), cert. den’d, 459 U.S. 967 (1982), and Riggs v. Scindia
Steam Nav. Co., 8 F.3d 1442 (9th Cir. 1993), have clearly
held that the vessel owner’s 905(b) obligation of reason-
able care under the circumstances applies to the ship and
its work spaces and that under appropriate circumstances
this duty may apply to a dangerous condition in stowed
cargo that longshoremen must off-load.5 The Louisiana
4 Derr v. Kawasaki Kisen K.K., 835 F.2d 490 (3d Cir. 1987),
cert. den’d, 486 U.S. 1007 (1988).
> Trial Judge Johnson charged the jury, in pertinent part, as
follows:
The shipowner and charterer of the vessel may be
liable for a negligently stowed cargo which causes
injury where the shipowner or charterer knew or
should have known of the dangerous condition. . .
Young App. 23a.
The record reflects that during the charge conference
Ensidesa stated that the charge was “superfluous.” Young App
2a. Later, Arcasa simply stated that it objected to plaintiff’s
ie a
23
Fourth Circuit's decision is certainly consistent with these
decisions, as Arcasa allows.
We part with Arcasa’s insistence that the decision
below is clearly in conflict with the United States Third
Cizcuit’s interpretation of the vessel owner’s duties under
905(b) in Derr v. Kawasaki Kisen K.K., 835 F.2d 490.
The Derr opinion can arguably be construed in two
ways, as petitioner Arcasa implicitly acknowledges: (1)
broadly, that the vessel owner, despite its failure to exer-
cise reasonable care, may not be found liable for harm
caused by dangers arising from cargo because it has no
legal duties with respect thereto; or (2) narrowly, that a
vessel owner owes a duty of care but can be found liable
only if it is shown that its own conduct caused or contrib-
uted to the dangerous condition or it had actual know!}-
edge of a dangerous condition.
The first construction (no duty) is refuted by the Derr
court’s holding that “there is no general duty on the part
of a vessel to supervise or inspect the work of steve-
dores” and that a vessel owner “can be deemed negligent
towards a longshoreman injured because of improperly
stowed cargo only if the vessel has breached one of the limited
requested jury charge No. 5 without stating any reasons for the
objection. Young App. 19a.
Neither statement is a sufficient objection as a matter of
Louisiana law to preserve for appellate review an objection to
the court’s instructions, which, obviously, were not plainly erro-
neous. Louisiana Code of Civil Procedure article 1793; Coody v.
Richardson, 569 So. 2d 1012, 1017 (La. App. 3d Cir. 1990), cert.
den‘d, 572 So. 2d 90 (1991).
24
duties referred to in Scindia.” 835 F.2d at 497. (Emphasis
added.)
This is hardly a holding of no duty under any circum-
stances with respect to dangers arising from stowed
cargo.
But beyond the words of the Derr opinion itself, a
“no duty” construction is inconsistent with the vessel's
duty of due care imposed by 905(b) as interpreted in
Scindia. For example, were danger in the cargo the result
of the vessel having run aground, or of the captain's
instructions, or of vessel crew conduct, liability could
certainly be imposed.
Finally, the Third Circuit in Kirsch v. Plovidba, 971
F.2d 1026 (3d Cir. 1992), has itself narrowed some of the
broad dicta in Derr. In Derr the court stated, “if the
danger in the cargo was indeed readily apparent . . . there
can be no liability under Scindia,” 835 F.2d at 497; but in
Kirsch, it more narrowly stated that “a shipowner may be
negligent for failing to eliminate an obvious hazard that it
could have eliminated, but only when it should have
expected that an expert stevedore could not or would not
avoid the hazard and conduct cargo operations reason-
ably safely.” 971 F.2d at 1031. See also discussion at 1031
nn.6-7.
If Your Honors agree that the Derr court’s “no duty”
analysis is subject to clear exceptions that avoid, for
example, immunizing vessel employee conduct with
respect to stowed cargo, then there is no conflict in fact
with the Louisiana decision below.
25
Here, the evidence showed that Arcasa was a co-
participant with Ensidesa in causing and permitting the
manner of stow that the jury found presented an unrea-
sonable danger to the off-loading stevedore, and the
court of appeal specifically found that “ARCASA’s conduct
contributed to plaintiff's accident and resulting injuries.”
Young, 617 So. 2d at 528. (Emphasis added.)
Accordingly, the holding of the Louisiana Fourth Cir-
cuit is not in conflict with a proper reading of the holding
of the United States Third Circuit in Derr, and Jerry
Young respectfully asks that petitioner Arcasa’s writ of
certiorari be denied.
B. Granting this writ would not serve the interests of
uniformity.
Arcasa urges that Your Honors should grant cer-
tiorari in the interest of “uniformity” of the maritime law.
Here, both the trial court and the court of appeal
followed the clear precedents in the United States Fifth
Circuit Court of Appeal, in which they sat, Lemon, 656
F.2d 110; Harris, 730 F.2d 296.
By so doing, the Louisiana courts properly adhered
to the principle of uniformity in the application of gen-
eral maritime law. Arguably, were state courts free to
adopt interpretations different from those of the federal
circuit in which they sit, uniformity would be utterly
destroyed and forum shopping would be the rule. More-
over, this court’s work load would be significantly
increased because in addition to having to periodically
26
resolve conflicts of maritime law among the federal cir-
cuit courts, Your Honors would necessarily have to also
referee and resolve conflicting interpretations of maritime
law between state and federal courts and even conflicts
between appellate courts in the same state.
Were Your Honors to grant Arcasa’s writ and hold
that the trial and appellate courts should have followed a
broad reading of Derr and should have disregarded
Lemon and Harris, the decision, paradoxically, would
invite, in the long run, a result that is the opposite of that
intended. Accordingly, Jerry Young respectfully requests
denial of Arcasa’s petition.
C. Your Honors should refuse to grant the writ because
the Louisiana Fourth Circuit Court of Appeal prop-
erly x«terpreted the duties owed under 33 United
States Code section 905(b) and found that there was
sufficient evidence to support the jury verdict.
In Scindia, 451 U.S. 156, Your Honors, citing Marine
Terminals v. Burnside Shipping Co., 394 U.S. 404, 415 (1969),
defined the “turnover” duty of a vessel owner, vis-a-vis
longshoremen who must board the vessel to undertake
cargo operations, as follows:
[T]he vessel owes to the stevedore and his long-
shoremen employees the duty of exercising due
care “under the circumstances.” This duty
extends at least to exercising ordinary care
under the circumstances to have the ship and its
equipment in such condition that an expert and
experienced stevedore will be able by the exer-
cise of reasonable care to carry on its cargo
operations with reasonable safety to persons
27
and property, and to warning the stevedore of
any hazards on the ship or with respect to its
equipment that are known to the vessel or
should be known to it in the exercise of reason-
able care, that would likely be encountered by
the stevedore in the course of his cargo opera-
tions and that are not known by the stevedore
and would not be obvious to or anticipated by
him if reasonably competent in the performance
of his work. The shipowner thus has a duty with
respect to the condition of the ship’s gear,
equipment, tools, and work space to be used in
the stevedoring operations; and if he fails at
least to warn the stevedore of hidden danger
which would have been known to him in the
exercise of reasonable care, he has breached his
duty and is liable if his negligence causes injury
to a longshoreman.
Scindia, 451 U.S. at 166-67 (citation omitted).
As the Ninth Circuit in Turner, 651 F.2d 1300, and
Riggs, 8 F.3d 1442, has suggested, there are especially
strong policy reasons to avoid immunizing the vessel
owner from the duty of due care with respect to cargo
where the on-loading is done by a foreign loading steve-
dore not subject to the provisions of the Longshore and
Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et
seq., and not subject to the comprehensive scheme of
federal regulations governing longshore operations.
The Ninth Circuit in Riggs began with an apprecia-
tion of Congress’s intent in enacting the 1972 amend-
ments to the Longshore and Harbor Workers’
Compensation Act. In this regard, it cited the House
Report, 1972 U.S.C.C.A.N. at 4704, which concluded as
follows:
28
Permitting actions against a vessel based on
negligence will meet the objective of encourag-
ing safety because the vessel will still be
required to exercise the same care as a land-
based person in providing a safe place to work.
Thus nothing in this bill is intended to derogate
from the vessel’s responsibility to take appropri-
ate corrective action where it knows or should
have known about a dangerous condition.
8 F.3d at 1444.
With this understanding of congressional intent in
mind, the Ninth Circuit explained its view that a vessel
owner may be held liable if it negligently fails to correct
dangerous conditions arising from the loading of cargo
by a foreign stevedore, reasoning as follows:
Turner’s holding that the turn over duties of
safe-condition and warning encompass non-
obvious dangerous conditions in stowed cargo
rested on our conclusion that such a rule would
further the Congressional goal of safety that
underlies the LHWCA. We reasoned that neither
the off-loading longshoreworker nor his steve-
dore-employer could exercise any contro] over
the on-loading foreign stevedore. Only the ves-
sel could do so, by choosing a reliable foreign
stevedore, supervising its work when necessary,
and correcting concealed dangers or warning
the off-loading stevedore of them. Moreover, we
noted that in many cases, the injured worker
could not sue the foreign stevedore, who would
be beyond the reach of the processes of a federal
district court. All of these factors are equally
applicable in the case of an open and obvious
cargo defect.
29
We noted in Turner another factor that is also
equally applicable to both types of cargo defects.
We recognized that section 905(b) does not bar a
shipowner from recovering against a foreign ste-
vedore, who is not an “employer” within the
meaning of the LHWCA, where the stevedore is
primarily at fault for the off-loading long-
shoreworker’s injuries. As we recently stated in
Carpenter v. Universal Star Shipping SA [924 F.2d
1539, 1544 (9th Cir. 1991)], where we reaffirmed
our holding and reasoning in Turner: “The pros-
pect of vessel-initiated actions against foreign
stevedores provides foreign stevedores with an
incentive to do their work carefully.”
8 F.3d at 1446.
This analysis is especially persuasive under the par-
ticular facts and circumstances here since (1) the dan-
gerous condition caused by the foreign on-loading
stevedore did not create any risk of harm to them (and
therefore they had no incentive to correct it), but did
create a significant risk of harm to those longshoremen
who would have to off-load the cargo; (2) the on-loading
stevedore, Ensidesa, had a dual role since it was also the
vessel’s charterer; (3) the off-loading longshoremen had
no practical alternative to avoid the danger; and (4) the
vessel owner was a co-participant in causing and permit-
ting the dangerous condition. This is not like a situation
wherein the foreign stevedore spills oil in the hold, pre-
senting a danger to itself as well, which an off-loading
stevedore could later simply repair or avoid, and which
the vessel had no role in causing.
Finally, here, the jury agreed that the on-loading
stevedore/charterer, Ensidesa, was in fact primarily
30
responsible for the hazard and therefore found Ensidesa
85 per cent at fault and Arcasa 15 per cent at fault.
Though the two parties were held solidarily liable to the
plaintiff, the court of appeal held that, under the contrac-
tual relationship that existed between them, Arcasa had
full indemnity against Ensidesa, not only for its liability
to the plaintiff, but for its attorney fees as well.
This allocation of fault by the Louisiana courts fully
accords with the basic policies providing the underpin-
nings of Your Honors’ decision in Scindia, 451 U.S. 156.
For that reason as well, we urge that Your Honors refuse
to grant Arcasa’s writ of certiorari.
V.
CONCLUSION
For the foregoing reasons, the petitions for writs of
certiorari to the Louisiana Fourth Circuit Court of Appeal
should be denied.
Respectfully submitted,
LAWRENCE S. KULLMAN (#7884)
Lewis’ & KULLMAN
2615 Pan American Life Center
601 Poydras Street
New Orleans, Louisiana 70130
Telephone: 504/588-1500
FrepericKA HomperG Wicker (#6977)
434 Bellaire Drive
New Orleans, Louisiana 70124
Telephone: 504/482-1887
No. 93-1040 and No. 93-1068
+
In The
Supreme Court of the United States
October Term, 1993
¢
NO. 93-1040
EMPRESA NACIONALE SIDERURGICA, S.A.,
Petitioner,
versus
JERRY YOUNG,
Respondent.
.
NO. 93-1068
ARMADORES de\CABOTAJE, S.A.,
Petitioner,
versus
JERRY YOUNG,
Respondent.
+
Petitions for Writs of Certiorari
to the Louisiana Fourth Circuit Court of Appeal
¢
APPENDIX TO RESPONDENT'S BRIEF
+
APPENDIX CONTENTS
Ne Ws HU EE Was SRA wROSeRh eee nde ces ssives
Record, Vol. VII (Jury Charge Conference) April
Ns on heb 6 oN ed cdeseceibonss
ES Bevin ckdcreeseseatoadnevecvees
Record, Vol. VII (Jury Charges), one 26, 1989, at
Sy OS ee ee Pere re ere Tee ee re Tere
Civil District Court for the. Parish of Orleans
Order setting Ensidesa’s post-trial motions for
I Ri ab heed nn eae dns sa vacdeas dade vedveeecnes
Civil District Court for the Parish of Orleans
Order setting Arcasa’s post-trial motions for
EP EPP Pere ere LOTT Tee
Original Brief of Appellee, Jerry Young, 90-
CA-1107, Fourth Circuit, December 10, 1990....
.. 30a
la
CIVIL DISTRICT COURT
PARISH OF ORLEANS
STATE OF LOUISIANA
JERRY YOUNG NO. 84-17780
VS DIVISION “I”
ARMADORES DE CABOTAJE,
S.A. AND K&B EQUIPMENT
COMPANY
Testimony and notes of evidence, taken in the above-
entitled, cause, before the HONORABLE BERNETTE J.
JOHNSON, Judge Presiding, on the 25th day of April,
1989.
APPEARANCES:
MS. FREDERICKA HOMBERG WICKER
Representing the Plaintiff
GERARD T. GELPI, ESQ.
BRIAN THOMPSON, ESQ.
Representing ARCASA
MILES P. CLEMENTS, ESQ.
ANDREW S. DE KLERK, ESQ.
Representing ENSIDESA
Reported by:
Barbara A. Burger
Certified Shorthand Reporter
2a
(DISCUSSION OFF THE RECORD).
THE COURT:
Number four.
MR. DEKLERK:
Four is okay if we add in the rest of the para-
graph.
THE COURT:
I'll give the entire statement from Lemon against
Bank Lines. Number five.
MR. DEKLERK:
I would merely say this is superfluous.
MS. WICKER:
No, it is not. It states that the shipowner and
charterer may be liable for negligently stowed cargo
which causes injury. That’s what this case is about.
THE COURT:
I'll give five. Six, obvious dangers.
MR. DEKLERK:
We would submit that this doesn’t apply to a
charter. Secondly, ENSIDESA wasn’t there; and thirdly, I
don’t think this applies to the facts.
MR. GELPI:
We don’t believe it applies to the facts.
\
iecetenmnaaiiaamieauidi
3a
MS. WICKER:
Throughout the trial questions were asked of
every longshoreman who took the stand about you didn’t
complain, you didn’t do this, you didn’t do that alluding
to a duty by the longshoreman to leave their job -
THE COURT:
I’ll give it. Number seven.
MR. DEKLERK:
I would have the same objection. There was no
evidence of any complaints. That’s precisely the point.
MS. WICKER:
They were asked and it was eluded they should
have.
THE COURT:
I'll give seven. I'll give eight. Objections to eight.
MR. DEKLERK:
Yes. this comes from a case involving Section 933
of the Act and furthermore we are being sued as the
loading stevedore under the general maritime law. |
would submit that comparative fault is the root that
applies to us.
MS. WICKER:
I gave the Court a memorandum with respect to
the Cooper T. Smith question generally speaking and the
law is that the shipowner may not assert Cooper T. Smith
negligence as a defense and I site [sic] to you Edmonds v.
Compagnie -
all
4a
MR. GELPI:
I think the way it’s worded may not assert the
defense. We didn’t do anything wrong and Cooper did it
all.
THE COURT:
I think in the 933 action it is a comparison of
fault as between the vessel and the longshoremen. That
seems to be the reading of Hartford Accident and Indem-
nity Company against Ocean Carrier.
MS. WICKER:
This is not a 905 B action.
THE COURT:
I remember we using this case. If this action says
under 933 the comparison of fault is as fault, negligence
as it relates to the vessel or to the longshoreman -
MS. WICKER:
Maybe that’s an improper cite. Maybe that’s not
the proper case.
THE COURT:
Let’s leave that. Let’s leave eight. That takes us
to nine.
MR. DEKLERK:
I would submit that the test for loading steve-
dore is simply one of ordinary negligence under the
circumstances. There are no cases which specifically state
what that test is.
5a
THE COURT:
The charge seems to say that the onloading ste-
vedore has a duty of reasonable care but then I think it
implies too much when it says that the duty was that the
cargo should be properly stowed and properly separated
with adequate dunnage. I'll exclude nine.
MS. WICKER:
Could we limit nine?
THE COURT:
We will exclude nine. Ten. This is all right in the
general charges. I admit ten.
MS. WICKER:
One other thing the question of prejudgment
interest, I don’t know how we are going to resolve it. If
we do resolve it and it goes to the jury — I guess we ought
to go to the jury.
THE COURT:
They need to argue against the — including seven
in the interrogatories. We will do it in that fashion.
MS. WICKER:
And then I give you a charge if you decide it
goes to the jury -
THE COURT:
Do you have one prepared?
6a
MS. WICKER:
Yes.
THE COURT:
Okay. Let’s pass that at the moment.
MS. WICKER:
One other question was with regard to Work-
men’s — the longshoremen comp. I thought the Court was
gong to address that. I didn’t seek to address it myself.
Whatever the Court wants to say.
THE COURT:
About the fact that Mr. Young has been compen-
sated under the Longshoremen Harbor Workers Act with
compensation benefits and they need not consider?
MS. WICKER:
Would you add something to that so that it will
take care of that if they think he has already gotten
money. They can think the Court will do whatever the
Court thinks they need to do.
MR. CLEMENTS:
Also there should not be a suggestion he will not
get future comp under the act. It’s a question of past and
future comp.
MS. WICKER:
But he doesn’t get future comp until they get
credit for this recovery so it all washes out.
7a
THE COURT:
Now let’s see where we are. With regard to the -
that takes care of the plaintiffs requested charges. Let's go
onto defendants. ARCASA, ENSIDESA, which one first:
Let’s take ARCASA first.
MR. GELPI:
Maybe we should try go to ENSIDESA first.
THE COURT:
The revised special jury charges dated April 25;
is that right, let’s start number one.
MS. WICKER:
With regard to number one paragraphs two and
three are like plaintiffs charge one are more in the nature
of their argument and the rest of it is already given in
plaintiff's charge number two with a direct quote and,
therefore, two or three I guess is covered by plaintiffs
three since that’s what the defense -
THE COURT:
I'll give jury charge one and paragraph one only,
jury charge two and paragraph one only.
MS. WICKER:
Can I ask with regard to charge one on para-
graph one can we just knock out only have and put
ENSIDESA need exercise ordinary care instead of need
only exercise ordinary care.
8a
MR. DEKLERK:
I think that’s precisely the point. That’s what
ENSIDESA has to do. They only have to exercise ordinary
care.
MS. WICKER:
Those are unnecessary adjectives.
THE COURT:
I’ll leave it all in.
MR. GELPI:
We can agree with our charges covered by
ENSIDESA and that ENSIDESA and ARCASA be added.
THE COURT:
Okay.
MS. WICKER:
With regard to jury charge number two that’s an
improper statement of the law. That refers to Scindia
category three case. This is a Scindia category one case.
THE COURT:
We are back as to whether the hazard was seen
before the unloading or whether it developed during the
course of the operation.
MS. WICKER:
The problem is that the defense would like to
have law before the jury. Once you start, then their origi-
nal duty goes away and that’s what this charge alludes to
and it’s bad law. The Lemon case speaks contra to this.
The Harris case speaks contra to this. I object. I think it’s
an improper statement of the law.
9a
MR. GELPI:
I think that’s what we just read from Lemon.
THE COURT:
I'll give two.
MS. WICKER:
Number three is addressed in plaintiffs charge
number three as well as plaintiffs number four by direct
quotes to the cases.
THE COURT:
Which one do you want?
MR. DEKLERK:
We would like four.
MS. WICKER;
No. I’m saying their charge three equals my
charges three and four that you have already ruled on.
THE COURT:
This one three and four speak to the safety of the
equipment. I don’t know if we have that yet.
MR. DEKLERK:
Charge four has to do with opening arguments
and that’s very important evidence of the case and the
applicable law.
THE COURT:
Let’s give three paragraph one. Only the Court
will give charge four paragraph one only. that takes us to
five.
10a
MS. WICKER:
Note my objection to this.
THE COURT:
I don’t think we need five. We have already
given that in some fashion. Omit five. This talks about the
negligence of Cooper.
MS. WICKER:
I don’t think the negligence of Cooper has any
place in this case but also I believe that Scindia does not
say that there is a duty on the part of the offloading
stevedore to inspect.
MR. DEKLERK:
I think this comes directly from the Scindia
wording.
THE COURT:
Prior to beginning operations.
MS. WICKER:
It’s the owners duty to provide the offloading
stevedore with a reasonably safe cargo which expert ste-
vedores can offload with the use of reasonable care.
MR. GELPI:
I think the last part of what counsel said is
maybe a correct statement.
lla
THE COURT:
I’m inclined to give this charge and eliminate all
the others that touch on it. The vessel owes to the steve-
dore and his longshoremen employees a duty of exercise
and due care under the circumstances. This duty extends
at least to exercising ordinary care under the circum-
stances to have the ship and its equipment in such condi-
tion that an expert and experienced stevedore will be able
to by the exercise of reasonable care to carry on its cargo
operations with reasonable safety to persons and prop-
erty and to warning the stevedore of any hazards on the
ship or with respect to its equipment that are known to
the vessel or should be known to it in the exercise of
reasonable care that would likely be encountered by the
stevedore in the course of his cargo operations and are
not known by the stevedore and would not be obvious to
or anticipated by him if reasonably competent in the
performance of his work. The shipowner thus has a duty
with respect to the conditions of tie ship’s gear, equip-
ment, tools and work space to be used in the stevedoring
operations and if he fails to warn the stevedore of hidden
danger which would have been known to him and in the
exercise of reasonable care he has breached he [sic] duty
and is liable if his negligence causes injury to a long-
shoreman. What does that eliminate?
MS. WICKER:
Six, seven, nine, ten, eleven, that far back.
THE COURT:
All of these came from Scindia.
12a
MR. DEKLERK:
Yes. Seven is from Helaire.
MS. WICKER:
I think the balance of these charges are covered
by the charge you just read.
THE COURT:
We have omitted five. We are on six again.
MR. DEKLERK:
The ship owner within limits is -
THE COURT:
Okay. I| have it. I'll give that charge.
MS. WICKER:
That would be instead of six.
THE COURT:
Yes. I’ll omit six and we will give the language:
the shipowner within the limits is entitled to rely on the
stevedore who owes no duty to the longshoreman to
inspect or supervise the cargo operations.
Now we are on seven
MS. WICKER:
With regard to seven I object to the charge in
total because I don’t think it has anything to do — again
just for purposes of objection the category one case which
this is more specifically with regard to paragraph two,
that’s not a statement of law. That’s argument.
BD IE ER iet Ce o men
Se es
oo a 2 DP
13a
THE COURT:
I'll omit seven. I think it will be clear as to the
duties of shipowner and the charterer of the vessel.
MR. GELPI:
For the record ARCASA strongly objects to the
omission of the charge. We think it’s in detail and
shouldn’t be omitted.
THE COURT:
I think it works both ways. We are trying to give
the jury the understanding it’s up to them to decide
whether the dangerous condition existed at the beginning
of the offloading operations or whether it developed
subsequent to the beginning of the operations and so to
limit the duty in some fashion of a vessel owner might
confuse the jury.
MR. GELPI:
I think the law as stated in Helaire and jury
charge number seven is clear. As I appreciate it, it’s a
matter of law if a competent stevedore felt that a condi-
tion although dangerous was within the province of his
men to unload it even though it was dangerous. If he
judged it safe enough, the vessel owner is exonerated
from liability. I think that’s the law. That’s the basis for
my objection. I’m not trying to say what this case holds. I
think that’s the law.
MR. DEKLERK:
This is a quote from the case.
l4a
MS. WICKER:
I strongly object to giving it.
THE COURT:
I guess we are reading seven. Nine is a little bit
similar.
MS. WICKER:
I don’t mind nine. I think that nine is an accurate
statement. I would love not to have it but I think it’s an
accurate statement of the law. I don’t think it applies to
this case. Given your ruling if you are saying the jury gets
to decide whether it’s something that helped in the con-
fines of cargo operations.
THE COURT:
So we will give nine. We are back to seven.
MS. WICKER:
I think seven is not an accurate statement of the
law that applies to this case. I think any statement in that
regard is covered by the general Scindia charge you
intend to give and further I kind of gave up on nine
because it basically talks about the same sort of thing and
so seven is duplicitous.
MR. GELPI:
The key to plaintiffs argument is seven isn’t a
correct statement of the law. Whether it applies to this
case, that’s for the jury to decide.
15a
THE COURT:
It does say in the footnote the owners actual
knowledge of a dangerous condition which later injured a
longshoreman would not in itself make the owner negli-
gent. It might well be reasonable for the owner to rely on
the stevedores judgment that the condition though dan-
gerous was safe enough.
MS. WICKER:
The problem is that the Helaire case addresses a
condition that came into existence once offloading had
begun. That’s not where we are.
THE COURT:
Let’s strike all the language in seven and put this
in. I better say owner or charterer. Instead of seven the
charge will read actual knowledge of a dangerous condi-
tion by the owner or charterer of the vessel which dan-
gerous condition later injures a longshoreman would not
in itself make the owner or charterer of the vessel negli-
gent. It might well be reasonable for the owner or char-
terer to rely on the stevedores judgment that the
condition though dangerous was safe enough. That takes
us to eight.
MS. WICKER:
I think you just covered that.
MR. GELPI:
I will concede eight is probably included in that.
l6a
THE COURT:
Nine, that’s the same thing.
MS. WICKER:
Right, we did nine. Now we are on ten.
MR. DEKLERK:
I would like to add in the word might deveiop on
nine.
THE COURT:
Let’s just add in ENSIDESA and ARCASA had
no duty to discover danger conditions that developed.
We are on ten.
MS. WICKER:
I don’t have any objection to ten.
THE COURT:
11.
MS. WICKER:
I don’t think 11 has anything to do with this case.
THE COURT:
We will omit 11.
MS. WICKER:
Number 12 they site [sic] no case law.
THE COURT:
That’s general law. I'll give 12.
17a
MS. WICKER:
On 13 I only have an objection to a couple of
words in paragraph two where it says at line — at the end
of line five and beginning of line six even in the slightest
degree I would like to have that omitted and again at the
end where it says Jerry Young's negligence contributed to
his own injury. I would like to have it changed to make it
balanced. You may find he was not negligent at all or he
was negligent to the extent of one percent to a hundred
percent.
THE COURT:
I think this is balanced.
MS. WICKER:
As to charge number 14 this addresses assump-
tion of the risk which is — with regard to 905 B cases has
been excluded specifically by the Scindia case.
THE COURT:
We will omit it.
MR. DEKLERK:
Naturally we take a contrary position.
THE COURT:
That takes care of the defendants revised special
jury charges. Let’s go onto ARCASA charges.
MS. WICKER;
Defendants charge number nine is the same as
ARCASA charge number one.
18a
THE COURT:
I'll give one. We will omit one. Let’s look at two.
MR. GELPI:
We are going to delete number two.
THE COURT:
Three, let’s pass three. I'll give four. We will omit
five, omit six, omit seven, omit eight, omit nine, omit ten,
we will give 11, omit 12, omit 13. We will give 14. We will
give 15, omit 16, omit 17, omit 18, omit 19, omit 20, omit
21, omit 22, omit 23. Let’s give 24 — no, let’s omit 24. I'll
give 25. We will omit supplemental number one. Two,
omit; three, I'll give three. I'll give four. Let’s omit five,
omit six. We will give seven.
MR. GELPI:
Can I make for the record my objections.
THE COURT:
This is in reference to the proposed jury inter-
rogatories submitted on behalf of ARCASA. These are
dated April 10, 1989 and the supplemental jury charges
dated April 17, 1989.
MR. GELPI:
ARCASA would object to the failure of the Court
to give its original charge number six, original charge
number seven, and then with respect to its supplemental
charges ARCASA has no objections and it’s satisfied with
the Court’s decision based on the duplications that we
have discussed.
19a
With respect to ENSIDESA’s charges I think I
stated my objections when those were covered. I did not
state my objection with respect to plaintiff’s charges and I
won't argue at this time. We object to the Court’s giving
charge - plaintiffs charges five, six, seven and eight.
MR. DEKLERK:
We would do the same thing.
THE COURT:
We are dealing only with the defendant revised
special jury charges dated April 25, 1989; is that right?
MR. DEKLERK:
That’s correct. We would object to Your Honor’s
failure to include... :
R. Vol. VII at 93-113.
20a
CIVIL DISTRICT COURT
PARISH OF ORLEANS
STATE OF LOUISIANA
JERRY YOUNG NO. 84-17780
VS DIVISION “I”
ARMADORES DE CABOTAJE,
S.A. AND K&B EQUIPMENT
COMPANY
Testimony and notes of evidence, taken in the above-
entitled, cause, before the HONORABLE BERNETTE J.
JOHNSON, Judge Presiding, on the 26th day of April,
1989.
APPEARANCES:
MS. FREDERICKA HOMBERG WICKER
Representing the Plaintiff
GERARD T. GELPI, ESQ.
BRIAN THOMPSON, ESQ.
Representing ARCASA
MILES P. CLEMENTS, ESQ.
ANDREW S. DE KLERK, ESQ.
Representing ENSIDESA
Reported by:
Barbara A. Burger
Certified Shorthand Reporter
2la
by the Court. You must not reduce the amount of past
wages to which you find Mr. Young is entitled by the fact
that he has collected certain amounts in Worker’s Com-
pensation benefits. I’m saying to you that you may not
reduce any amount you find he is entitled to in past
wages on account of the fact that he has collected
Worker’s Compensation benefits, is that clear?
The vessel owes to the stevedore and his long-
shorerman employees a duty of exercising due care under
the circumstances. This duty extends at least to exercising
ordinary care under the circumstances to have the ship
and its equipment in such condition that an expert, an
experienced stevedore will be able to by the exercise of
reasonable care to carry on its cargo operations with
reasonable safety to persons and property and to warning
the stevedore of any hazards on the ship or with respect
to its equipment that are known to the vessel or should
be known to it in the exercise of reasonable care. Such
conditions must be made known if they are likely to be
encountered by the stevedore in the course of his cargo
operations, and if they are not known to the stevedore
they must be made known to him by the vessel owner
except that where they are open and obvious the vessel
owner may expect that the stevedore would reasonably
anticipate those and they expect that the stevedore would
be reasonably competent in the performing of his work
and unloading a vessel such as the one involved in this
instance.
The shipowner thus has a duty with respect to
the condition of the ships gear, equipment, tools and the
work space to be used in the stevedoring operations. If
the shipowner fails at least to warn the stevedore of
|
|
|
:
|
22a
hidden dangers which would have been known to him in
the exercise of reasonable care, he has breached his duty
and is liable if his negligence causes injury to a long-
shoreman.
The vessel may be liable if the vessel fails to
exercise due care to avoid exposing the longshoreman to
harm from hazards that may be encountered in areas or
from equipment under the active control of the vessel
during the stevedoring operations.
As a general rule the shipowner may rely on the
stevedore to avoid exposing the longshoreman to unrea-
sonable hazards. This is because the federal statutes
require the stevedore which is the longshoreman’s
employer to provide a reasonably safe place to work and
to take safeguards with respect to equipment and work-
ing conditions.
In this case the plaintiff Mr. Jerry Young is seek-
ing damages from ARCASA and ENSIDESA for personal
injuries sustained on November 22nd, 1982 while he was
working as a longshoreman for Cooper Stevedoring
aboard the M/V LORENA.
Plaintiff claims that the defendants acting
through their agents and/or employees were negligent
and that such negligence was a proximate cause of this
accident and injury. The vessel owner and charterer owed
the stevedore and his longshoreman employes [sic] a
duty of exercising due care under the circumstances.
MR. DE KLERK:
I think you already read that.
23a
THE COURT:
Let’s omit that. In this case ARCASA and
ENSIDESA would be responsible for eliminating dan-
gerous conditions which exist at the outset of the steve-
doring operations but ARCASA and ENSIDESA would
have no duty by way of supervision or inspection to
exercise reasonable care to discover dangerous conditions
that develop within the confines of the cargo operations.
It is a stevedore who must see to the safety of cargo
operations. The shipowner and charterer of the vessel
may be liable for a negligently stowed cargo which
causes injury where the shipowner or charterer knew or
should have known of the dangerous condition, that a
danger is open and obvious is not necessarily a complete
defense to a longshoreman’s suit.
If the longshoreman’s only alternatives would be
to leave his job or face trouble for delaying the work, thus
a longshoreman’s own knowledge of shipboard hazard
will not negate a shipowner’s duty of care which would
otherwise exist.
The law does not require the longshoreman or
stevedore to request remedial action in order to recover
from the shipowner for injuries due to a dangerous con-
dition within the shipowner’s control.
Under the law ENSIDESA and ARCASA need
only have exercised ordinary care under the circum-
stances to provide a vessel that expert and experienced
stevedores would be able to by the exercise of reasonable
care to perform the operations with reasonable safety to
persons and property.
24a
The primary responsibility for the safety of Mr.
Young rested upon Cooper Stevedoring. Under the law
ENSIDESA and ARCASA would be entitled to rely on
Cooper not to expose its employees to unreasonable haz-
ards and ENSIDESA and ARCASA would have no duty
to anticipate the action or inaction of a careless stevedore
or to anticipate negligence on their part or to supervise
them.
Before turning the vessel over to stevedore Coo-
per, ENSIDESA and ARCASA had the duty to exercise
ordinary care under the circumstances, to have the ship
and its equipment in such condition that an expert steve-
dore could unload the vessel and the cargo safely.
ENSIDESA and ARCASA are only under a duty to warn
the stevedores of hidden dangers in the vessel and its
equipment of which by the exercise of reasonable care
they should have been aware.
This duty is not breached if the dangerous condi-
tion is an open and obvious one and the longshoreman
could see. An obvious defect should be as apparent to the
stevedore and its longshoreman employees as to
ENSIDESA and ARCASA.
The shipowner and the charterer of the vessel
within limits would be entitled to rely on the stevedores
and owes no duty to the longshoreman as I said to
inspect or supervise the cargo operations.
Once the longshoreman employees of Cooper
began working, ENSIDESA and ARCASA had no general
duty under the law to discover a dangerous conditions
[sic] that developed within the confines of the stevedores
operation.
25a
Actual knowledge of a dangerous condition by
the owner or charterer of the vessel which condition later
injured a longshoreman would not in itself make the
owner or charterer of the vessel negligent. It might well
be reasonable for the owner or charterer to rely on the
stevedores judgment that the condition though dan-
gerous was safe enough.
The shipowner or charterer is not responsible for
the negligence of the stevedore or its employees such as
the flagman or crane operator. In other words, ARCASA
and ENSIDESA are not responsible for the negligence of
Cooper or Cooper employees. The shipowner or charterer
itself must be actually at fault and that fault must be the
proximate cause of the plaintiff’s injury.
The plaintiff is under a legal obligation to miti-
gate his damages. In other words, he is obligated to seek
employment if he can. If you find for plaintiff, any award
you make should be reduced by the amount that he could
have earned in the past and what he can earn in...
R. Vol VII at 29-35.
26a
CIVIL DISTRICT COURT FOR
THE PARISH OF ORLEANS
STATE OF LOUISIANA
NO. 84-17780 DIVISION “L” DOCKET NO. 4
JERRY YOUNG
VERSUS
ARMADORES de CABOTAJE, S.A. and
K&B EQUIPMENT COMPANY
FILED;
DEPUTY CLERK
ORDER
PLEASE TAKE NOTICE that the Motion of Empresa
Nacional Siderurgica, S.A. for Judgment Notwithstanding
the Verdict and the Alternative Motion for a New Trial
will be heard by the Court on Friday, June 16th, 1989 at
9:00 o’clock a.m., or as soon thereafter as counsel may be
heard.
New Orleans, Louisiana this 30th day of May, 1989.
/s/ Bernette J. Johnson
DISTRICT JUDGE
PLEASE SERVE:
Mr. Jerry Young
through his attorney
Ms. Fredericka H. Wicker
LEWIS & KULLMAN
2615 Pan-American Life Center
601 Poydras Street
New Orleans, Louisiana 70130
27a
Arcasa through its attorney
Mr. Randall C. Coleman, III
GELPI, SULLIVAN, CARROLL & LABORDE
430 Notre Dame Street
New Orleans, Louisiana 70130
28a
CIVIL DISTRICT COURT FOR
THE PARISH OF ORLEANS
STATE OF LOUISIANA
NO. 84-17780 DIVISION “L” DOCKET NO. 4
JERRY YOUNG
VERSUS
ARMADORES de CABOTAJE, S.A. and
K&B EQUIPMENT COMPANY
FILED;
DEPUTY CLERK
ORDER
The Motion of Armadores de Cabotaje, S.A. for Judg-
ment Notwithstanding the Verdict or Alternatively for
New Trial will be heard by the Court on Friday, June 16th,
1989 at 9:00 o’clock a.m., or as soon thereafter as counsel
may be heard.
New Orleans, Louisiana this 30th day of May, 1989.
/3/ (sgd) Bernette J. Johnson
JUDGE
PLEASE SERVE:
Jerry Young,
Through his attorney of record:
Ms. Fredericka H. Wicker
LEWIS & KULLMAN
2615 Pan-American Life Center
601 Poydras Street
New Orleans, Louisiana 70130
29a
Empressa Nacional Siderurgica, S.A.,
Through its counsel of record:
Miles P. Clements, Esq.
LEMLE, KELLEHER, KOHLMEYER, DENNERY,
HUNLEY, MOSS & FRILOT
2100 Pan-American Life Center
601 Poydras Street
New Orleans, Louisiana 70130
Cooper/T. Smith Stevedoring and
The Home Insurance Company,
Through their attorney of record:
Roch P. Poelman, Esq.
HEBERT, MOULEDOUX & BLAND
601 Poydras Street
1650 Pan American Life Center
New Orleans, LA 70130
ee
30a
IN THE
COURT OF APPEAL FOR THE FOURTH CIRCUIT
STATE OF LOUISIANA
NO. 90-CA-1107
JERRY YOUNG
Plaintiff-Appellee
VS.
ARMADORES de CABOTAJE, S.A.,
Defendant-Appeilant
AND K & B EQUIPMENT COMPANY, INC.
APPEAL FROM THE CIVIL DISTRICT COURT
PARISH OF ORLEANS, STATE OF LOUISIANA,
NO. 84-17780
HONORABLE BERNETTE JOHNSON
ORIGINAL BRIEF OF APPELLEE,
JERRY YOUNG
FREDERICKA HOMBERG WICKER, 6977
LAWRENCE S. KULLMAN, 7884
Lewis and Kullman
2615 Pan American Life Center
601 Poydras Street
New Orleans, Louisiana 70130
(504) 588-1500
APPEAL COUNSEL FOR
JERRY YOUNG
PLAINTIFF - APPELLEE
3la
CIVIL CASE
TABLE OF CONTENTS
PAGE
TAMMIE dics c cece. ce cc cece cece.
ES eres iii
SYLLABUS OF PRINCIPLES OF LAW.............. vi
STATEMENT OF THE CASE...............-..-.+5. 1
ee 1
SUMMARY OF ARGUMENT...............-.. 0005. 7
oes ocircc ccc c sec ec cece. -
A. THE SUBSTANTIVE LAW...............-..- 8
B. RESPONSE TO SPECIFICATIONS OF ERRORS 12
1. THE JURY’S VERDICT ON LIABILITY,
BOTH AS TO ARCASA AND ENSIDESA,
WAS SUPPORTED BY THE EVIDENCE
AND WAS NOT MANIFESTLY ERRO-
PU GREORSswebswseoveserbvccesccceses 12
2. THE JURY’S DAMAGE AWARD IS SUP-
PORTED BY THE EVIDENCE, AND THE
TRIAL COURT DID NOT ABUSE ITS DIS-
CRETION IN REFUSING TO ORDER A
DT Cer Setesscgescecccccoccce 16
32a
3. THE TRIAL COURT DID NOT IMPROP-
ERLY SUBMIT CLAIMS TO THE JURY,
AND IT GAVE PROPER INSTRUCTIONS. .
THE TRIAL JUDGE PROPERLY
CHARGED THE JURY ON THE LAW
RELATIVE TO COOPER STEVEDORING
AND PROPERLY DECLINED TO SUBMIT
A JURY INTERROGATORY REGARDING
COOPER STEVEDORING’S “COMPARA-
TIVE NEGLASENCE 2... cc cccccecseccess
THE COURT DID NOT ERR IN ITS RULINGS ON
VARIOUS PRETRIAL AND EVIDENTIARY MAT-
THE TRIAL COURT PROPERLY DENIED
ENSIDESA’S MOTION TO CONTINUE
py, rt Cer a et ee
THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION BY EXCLUDING
ENSIDESA’S LIABILITY EXPERT AND
CANCELING THE APRIL 1989 INDEPEN-
DENT MEDICAL EXAMINATIONS......
THE COURT DID NOT ERR IN PERMIT-
TING THE TESTIMONY OF ALBERT
ROSS, JOHNNY PORTER, DOUGLAS
LEMOTT AND SAM DOUGLAS
REGARDING THE SAFETY OF THE
8 Pe eee eT TTT ToT OT eC TTT TLE
THE ECONOMIST’S TESTIMONY WAS
PROPERLY ALLOWED ........ccscccesees
THE DEFENDANTS WERE NOT PREJU-
DICED BY BELATED KNOWLEDGE OF
PLAINTIFF’S MEDICAL HISTORY AND
1987 AUTOMOBILE ACCIDENT.........
20
21
23
24
25
26
28
33a
10. JERRY YOUNG’S CONVICTIONS WERE
PROPERLY EXCLUDED................. 29
11. THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION BY EXCLUDING DR.
BOGRAN’S REPORT, THE PETITION
RESULTING FROM SEPTEMBER 1987
AUTOMOBILE ACCIDENT AND BY THE
LIMITATION OF THE REDIRECT OF DR.
CPP Coo Ch bere d cob Cede weewe et vives 30
12. EVIDENCE OF SUBSEQUENT CHANGE
IN STOW PLANS WAS PROPERLY
PRP EGS ved we nb ens dseeenntrecee 31
13. PLAINTIFF’S CLOSING ARGUMENT
VE? SURES -GNUE MIN TEES +c becccnccccccsrss 31
14. THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN DENYING THE DEFEN-
DANT’S MOTION FOR A NEW TRIAL
BASED UPON ALLEGED JUROR MIS-
CWDS cd cht beds ceeds ent seeset 32
Se EE ch gb 0d eben o6dkbe 045 dhdwe sens 34
ST 26 Dh wink detnne tierce nsdeete casts 35
CNM UUNGe GP DUNC OUI fist pe wcerevevccssoveress 35
34a
TABLE OF AUTHORITIES
PAGE
I. CASE CITATIONS
Armstrong v. State Farm Fire and Casualty Co., 423
So.2d 79 (La. App. ist Cir. 1982) ..:...cccccceeess 24
Bailes v. U.S. Fidelity & Guaranty Co., 512 So.2d
633, 643 (La. App. 2nd Cir. 1987)............. vii, 19
Belk v. Montgomery Ward and Company, Inc., 501
So.2d 1008 (La. App. 2d Cir. 1987).............4.. 27
Bennett v. Sedco Maritime, 520 So.2d 894, (La. App.
Sd Cie; TOG} sun can vatescdecuvdcedecdeutenesiveress 34
Blandino v. Brown Erection Co., Inc., 341 So.2d 577,
(La. App. 2d Cir. 1977)... ccesccccccccveeccescvens 34
Brown v. Southern Farm Bureau Ins. Co., 426 So.2d
684 (La. App. Ist Cir. 1982). ........cscecveees vii, 19
Burgess v. City of Baton Rouge, 477 So.2d 143 (La.
App. 1st Cir, 1965)... ccccncvcccsesesechesssoens 29
Burton v. Berthelot, 567 So.2d 649 (La. App. 4th Cir.
i.) PEPE ETT e ere Ge ee vii, 16, 17, 18
Clay v. Lykes Bros. S.S. Co., Inc., 525 F.Supp. 306
(B.D. Uae. SOBER) cise elke bean tewens heer erkets 14, 15
Collier v. Williams-McWilliams Co., Inc., 459 So.2d
719 (La. App. 4th Cir. 1984) ...........-.0005. viii, 25
Daigle v. Coastal Marine, Inc., 488 So.2d 679 (La.
WGGB)... vv ccvaventecsesanbamnekesssiankeenin sia vii, 12
Dengle v. Hibernia National Bank, 539 So.2d 947 (La.
App. 4th Cir. 1908)... cccccccscvcvesecsvesevcsess 26
Derr v. Kawasaki Kisen KK, 835 F.2d 490 (3rd Cir.
19GB)... cc cevcwadesseesOMalentbaweleeterberereres 12
35a
Duerden v. PBR Offshore Marine Corp., 471 So.2d
BERS Get Pee We GE BI onc ccc cvcccccccccces 32
Edmonds v. Compagnie Generale Transatlantique, 443,
UD. Zoe, FP GAA. Z7a0 CISTD) .. ov cccvccccsces vii, 21
Falgoust v. Richardson Industries, Inc., 552 So.2d
1345 (La. App. Sth Cir. 1969) .........cccccccceoes 26
Fernandez v. Chios Shipping Co., [ ‘d., 542 F.2d 145
SE MEUM fd csdicnnvcddvedccvecegacseceses vi, 9
Fields v. Senior Citizens Center, Inc., 528 So.2d 573
Se FS SE ED wv escvecvvcccbecveveceecees 32
Gordon v. Hubbard, 541 So.2d 211 (La. App. 4th Cir.
EET eT TE TIY UTE ELLE TC OLE LETTE ELEEe 20
Handy v. Cheatum, 410 So.2d 322 (La. App. 4th Cir.
ERS EES 8 ee Enna a ee Pee 33
Harris v. Flota Mercante Grancolombiana, S.A., 730
P.2G 296 (Sth Cig. 19664)... ...0cssccccees vi, 11, 14, 15
Heaton v. Gulf International Marine, Inc., 536 So.2d
G22 (LG. App. 1st Cig, TGGG)...ccccccccescccccccee 29
Hernandez v. M/V RAJAAN, 841 F.2d 582 (5th Cir.
cea iaaes WEA b 4 W Ge or 66 Ahn4 od 6 ON R0tensncesens 14
Hill v. Texaco, 674 F.2d 447 (5th Cir. 1982)....... vii, 21
Icicle Seafoods, Inc. v. Worthington, 75 U.S. 709
MAES CRCURGdT ety ndN dns bovcctereesceesess vii, 12
Kermarec v. Compagnia General Transantlantipa, 358
ae Gee Civar) ARO. S97 (1959) .. ww ccvccssccceces 10
Kerr-McGee v. Ma-Ju Marine Services, Inc., 830 F.2d
NE was can toseescessevessrecees vi, 8
Lemire v. New Orleans Public Service, Inc., 458 So.2d
CE ceersed sr ersucccocenecteeccseeseece 23
36a
Lemon v. Bank Lines, Ltd., 656 F.2d 110....... vi, 11, 14
Lirette v. State Farm Ins. Co., 563 So.2d 850 (La.
as ka RR IU aa ou Sa Eds Sa astee bak ds hone 13
Mitchell v. Clark Equipment Co., 561 So.2d 175 (La.
PS SER GR TR Ci hoes eee ae ee CERN 17
Morrison v. ].A. Jones Const. Co., Inc., 537 So.2d 360
ts: CU SE A TE 9 ado wd cescctnpansstsceencn 23
Muzyka v. Remington Arms Co., Inc., 774 F.2d 1309
POE Gi SU ese cecusscvesepprenets coveyedar viii, 31
Nance v. Gulf Oil Corp., 817 F.2d 1176 (5th Cir.
i SR ae re te er per Tarr eer Py reer Tee 23
Ogletree v. Willis-Knighton Memorial Hospital, 530
So.2d 1175 (La. App. 2nd Cir. 1988) .............. 32
Roby v. Hyundai Merchant Marine, 700 F.Supp. 316
GENRES DEE ee Ubiorebyecovccevceudeke Chel rees 14, 15
Roper ex rel Roper v. Gelsomino, 507 So.2d 868 (La.
BR, Te Ge BO Rene ckexachecenssetsueusreveses « 27
Samuels v. Empresa Lineas Maritimas Argentinas, 573
Pee Ce PE RA SOUR 6 oon as oct cccnbnceees es vii, 23
Sather v. White, 388 So.2d 402 (La. App. 1st Cir.
Oe Peer ee ee Oren ee eer err Terr Eee 29
Schwamb v. Delta Air Lines, 516 So.2d 452 (La. App.
Rah: Cie. DOD aia 5 vipi niin’ ieee eva reetaesescccck vii, 19
Scindia Steam Navigation Co. v. De Los Santos, 451
U.S. 156, 101 S.Ct. 1614 (1981)........... vi, 9, 10, 11
Trapani v. State Farm Mutual Automobile Insurance
Company, 524 So.2d 226 (La. App. 5th Cir. 1988). .vii, 27
37a
Treadaway v. Societe Anonyme Louis-Dreyfus, 894
eee ee er eer re etre 14
Turner v. Japan Lines, Ltd., 651 F.2d 1300 (9th Cir.
FRED 6 fue Cesdncneto tance cehecereehis vi, 9, 11, 14, 15
Uhler v. Evangeline Riding Club, 525 So.2d 550 (La.
Pas BO Tne BT 5 R58 OAR KRG A Gn Che ees edr ets sees 29
Webb v. Insurance Company of North America, 396
So.2d 508 (La. App. 3d Cir. 1981)................. 29
Williams v. Sentry Insurance Co., 370 So.2d 901 (La.
Pa, Be Se a Sk oA Ack ad sav thebeecccess 32
Woods v. Samissa, 873 F.2d 842
riedeb Las CkeNee eeete aed vi, vii, 10, 11, 14, 15, 20, 21
Il. STATUTORY AUTHORITIES
FEDERAL
See HE PIDs 6nd ba 00d bie ierdded deed vi, 8
Pe Rs EE tooo 0 ces ncknvsasesaesuenheun vi, 8
LOUISIANA
Ce | ME PTT TTT ET ETE CT Tree re ene 29
Se Ti eelen ME EN a ope. phn caveveceses cusikes OPLgeee 23
fk eX Per ere rer oe 24
Cee ee ob bio rd Veedovedecseeeeti vii, 24
Re sts ee cine wend uwale eimees vii, 20
ee Sey I I Ie vb accune veces <sensbeaceneeed 31
nn ee et why we ede eked viii, 31
Ce SE Gs Ws GD Wi oe eedis cctv cseuvens Vili, 33
38a
LSA ~- C. Evie. GR, GOP Bei ccidecsctivctet ve ceeeenl 30
EBA — CC. ets GOR. Fis bikie cnvevendecceescumeee 27
LGA .- C. BNR. GER FURs veld ccecccscecseunyvidevunue 27
LSA = C, BURG. Mi Fetes ca rbvcarsictenceecatsesene 27
SYLLABUS OF PRINCIPLES OF LAW
1.
“In the event of injury to a person covered under
this act caused by the negligence of a vessel, then
such a person, or anyone otherwise entitled to
recover damages by reason thereof, may bring an
action against such vessel as a third party in accor-
dance with the provisions of § 33 of this Act.” 33
U.S.C.A. § 905(b).
For purposes of liability pursuant to 33 U.S.C.
§ 905(b), the “vessel” encompasses both the owner,
operator and the time charterer. 33 U.S.C. § 902(21);
Kerr-McGee v. Ma-Ju Marine Services, Inc., 830 F.2d
1332, 1338 (5th Cir. 1987).
The plaintiff may recover from either the owner/
operator or the time charterer for negligence. These
entities may attempt to shift the burden between
them by way of indemnification. Fernandez v. Chios
Shipping Company, Ltd., 542 F.2d 145 (2d Cir. 1976);
Turner v. Japan Lines, Ltd., 651 F.2d 1300 (9th Cir.
1981).
The vessel “owes to the stevedore and his longshore-
men employees the duty of exercising due care
‘under the circumstances.’ ” Scindia Steam Navigation
Co. v. De Los Santos, 451 U.S. 156, 166, 1015, Ct. 1614,
1622 (1981).
“With regard to a condition that exists prior to or at
the outset of cargo operations, the vessel must exer-
cise ordinary care to have the ship and its equipment
39a
in such condition that an expert and experienced
stevedore will be able by the exercise of reasonable
care to carry on its cargo operations with reasonable
safety....” Id., 451 U.S. at 167; 101 S.Ct. at 1622.
The vessel has a duty to warn the stevedore of any
hazardous conditions on the ship or with respect to
its equipment that are known or should be known to
the vessel in the exercise of reasonable care, that
would likely be encountered by the stevedore in the
course of his cargo operations, and that are not
known by the stevedore and would not be obvious
to, or anticipated by, him if reasonably competent in
the performance of his work. Id., 451 U.S. at 167, 101
S.Ct. at 1622.
A vessel interest has an obligation to exercise due
care to ensure that the vessel’s cargo is loaded such
that it can be discharged with reasonable safety. The
defendants may be found liable “for damages aris-
ing from a dangerous stow [in] situations where the
[defendants] knew or should have known of the
dangerous condition.” Woods v. Samissa,\873 F.2d 842,
850 (5th Cir. 1989); Lemon v. Bank Lines, Ltd., 656 F.2d
110 (5th Cir. 1981); Harris v. Flota Mercante Gran-
colombiana, S.A., 730 F.2d 296 (5th Cir. 1984).
That a danger is “obvious” is not necessarily a com-
plete defense to a longshoreman’s suit, “because
when faced with an openly dangerous shipboard
condition, the longshoreman’s ‘only alternatives
would be to leave his job or face trouble for delaying
the work.’” ... Thus “’a longshoreman’s own
knowledge of a shipboard hazard will not negate a
shipowner’s duty of care which would otherwise
exist.’ ” Harris v. Flota Mercante Grancolombiania, S.A.,
730 F.2d at 299-300.
In a maritime case tried in state court, the standard
of appellate review is governed by Louisiana law.
40a
Icicle Seafoods, Inc. v. Worthington, 75 U.S. 709 (1986);
Daigle v. Coastal Marine, Inc., 488 So.2d 679 (La.
1986).
10. “A trier of fact has much discretion in the assess-
ment of general damages. Before an appellate court
can disturb a trial court’s award of general damages,
the record must clearly reveal that the trier of fact
abused its discretion in making the award. If such an
abuse of discretion is found, then the court may look
to other awards made in similar cases as an aid to
raising or lowering the award to the highest or low-
est point which would have been reasonably within
the discretion of the jury.” Burton v. Berthelot, 567
So.2d 649 (La. App. 4th Cir. 1990).
11. “Future medical expenses must be established with
some degree of certainty. However, an award of
future medical expenses is in great measure highly
speculative and not susceptible of calculation with
mathematical certainty.” Burton v. Berthelot, 567
So.2d 649, 663 (La. App. 4th Cir. 1990).
12. With regard to whether a jury’s award is excessive,
the Court of Appeal should consider “whether the
award can be supported under the interpretation of
the evidence most favorable to the plaintiff which
reasonably could have been made by the fact
finder.” Bailes v. U.S. Fidelity & Guaranty Co., 512
So.2d 633, 643 (La. App. 2nd Cir. 1987).
13. The jury is not “bound” by the testimony of an
economist. The test is whether or not the award is
supported by the evidence. Brown v. Southern Farm
Bureau Ins. Co., 426 So.2d 684 (La. App. 1st Cir. 1982).
14. The jury is not required as a matter of law to use any
specific discount factor and can lawfully use the
total offset method in calculating the plaintiff's loss
15.
16.
17.
18.
19.
4la
of future earnings. Schwamb v. Delta Airlines, 516
So.2d 452, 465 (La. App. 1st Cir. 1987).
“A party may not assign as error the giving or the
failure to give an instruction unless he objects
thereto either before the jury retires to consider its
verdict or immediately after the jury retires, stating
specifically the matter to which he objects and the
grounds of his objection.” LSA —- C.C.P. art. 1793 C.
A shipowner sued by an injured stevedore cannot
obtain contribution from a concurrently negligent
employer. Edmonds v. Compagnie Generele Transatlan-
tique, 443 U.S. 256, 268; 99 S.Ct. 2753, 2760 (1979);
Woods v. Samissa, 873 F.2d 842, 846 (5th Cir. 1989);
Hill v. Texaco, 674 F.2d 447, 449 (5th Cir. 1982).
Since “the employer/stevedore’s negligence would
not, if proved, affect the longshoreman’s recovery,”
there is no reason to submit the issue of the steve-
dore’s negligence to the jury. Samuels v. Empresa
Lineas Maritimas Argentinas, 573 F.2d 884, 885 (La.
1978).
“A continuance shall be granted if at the time a case
is to be tried, the party applying for a continuance
shows that he has been unable, with the exercise of
due diligence, to obtain evidence material to his
case... “LSA - C.C.P. art. 1602. The “party moving
for a continuance has the burden of proving that his
motion falls within these peremptory grounds.” Col-
lier v. Williams-McWilliams Co., Inc., 459 So.2d 719,
722 (La. App. 4th Cir. 1984).
Qualification of experts is within the discretion of
the trial judge and will not be reversed absent mani-
fest error. Trapani v. State Farm Mutual Automobile
Insurance Company, 524 So.2d 226, 230 (La. App. 5th
Cir. 1988).
20.
21.
22.
42a
Evidence of subsequent remedial measures is admis-
sible when offered for a purpose other then proving
negligence or culpable conduct, “such as proving
ownership, authority, knowledge, control, or fea-
sibility of precautionary measures, or for attacking
credibility.” LSA - C. Evid. art. 407 (Emphasis
added.); Muzyka v. Remington Arms Co., Inc., 774 F.2d
1309, 1313 (5th Cir. 1985).
The “Golden Rule” addresses only argument
wherein counsel asks the jury to put itself in the
plaintiff's shoes with regard to damages. Duerden v.
PBR Offshore Marine Corp., 471 So.2d 1111, 1114 (La.
App. 3d Cir. 1985).
“Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter
or statement occurring during the course of the
jury's deliberations or to the effect of anything upon
his or any other juror’s mind or emotions as influ-
encing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in
connection therewith, except that a juror may testify
on the question of whether any outside influence
was improperly brought to bear upon any juror
.. . Nor may his affidavit or evidence of any state-
ment by him concerning a matter about which he
would be precluded from testifying be received for
these purposes.” LSA - C. Evid. art. 606 B.
MAY IT PLEASE THE COURT:
STATEMENT OF THE CASE
Petitioner/appellee, Jerry Young, a longshoreman,
brought suit in the Civil District Court for the Parish of
Orleans for injuries he sustained while off-loading steel
beams from a vessel, the M/V LORENA, in New Orleans,
43a
Louisiana. The defendants were Empresa Nacional Side-
rurgica, S.A. (Ensidesa), a Spanish steel manufacturer
that had loaded the cargo and chartered the vessel for the
voyage to New Orleans, and Armadores de Cabotaje, S.A.
(ARCASA), the owner and operator of the vessel.
The plaintiff claimed that ARCASA and Ensidesa
were both liable for negligence under section 905(b) of
the Longshore and Harbor Workers’ Compensation Act
[33 U.S.C. section 905(b)jand, additionally, that Ensidesa,
as the stevedoring company that had loaded the vessel,
was liable for negligence under the general maritime law.
The jury found that both defendants were negligent
and awarded $1,700,000 in damages.
Both defendants filed motions for a new trial and/or
for judgment notwithstanding the verdict. The trial court
denied the motions and this appeal followed.
STATEMENT OF THE FACTS
On November 22, 1982, Jerry Young, then a 46-year-
old experienced longshoreman employed by Cooper Ste-
vedoring, was working with his regular gang in the No. 2
hold of the M/V LORENA, off-loading steel beams, when
the sling his coworkers were using to try to pry up the
beams slipped off, swung wildly, and hit him in the head
before he could get out of the way. (Record, Vol. V, pp.
194-195; Vol. IV, pp. 54-60, 262, 289.)
This incident was caused by the hazardous condition
resulting from the way the loading stevedore, Ensidesa,
had stowed the steel. (Record, Vol. IV, pp. 46-60; Vol. IV,
pp. 287, 325, 334-335; Vol. V, p. 448.)
44a
These were 60-foot steel beams, called “H” or “I”
beams. This means that they were webbed and flanged. If
one looked at the end of a beam, one would see an “H” or
an “I” shape depending on how the beam was turned.
(Record, Vol. IV, pp. 264-265, 278-280; Vol. V, 318-321.)
The beams could be stowed on either the edges (the
“H” manner) or on the flanges (the “I” manner). (Record,
Vol. IV, pp. 39, 264; Vol. V, pp. 362-367, 421.) Wooden
dunnage is placed between each tier of steel. (Record,
Vol. IV, pp. 39-40, 265-267; Vol. V, p. 427.) When the
beams are stowed in the “H” manner, the edges of the
beams cut into the dunnage. The extent of damage to the
dunnage depends on the weight of the stow (that is, how
high it is loaded) and the quality of the wood used.
Stowage in the “H” manner also creates an uneven sur-
face on which the men have to walk while off-loading the
cargo. (Record, Vol. IV, pp. 39-40, 265, 268-269, 280; Vol. V,
pp. 366, 421-424, 442.)
On the other hand, stowage in the “I” manner puts a
flat surface against the dunnage, so it is not cut. Stowage
in this manner also gives the longshoremen a flat surface
upon which to walk and work. (Record, Vol. IV, pp. 39-40,
54-60, 320, 342; Vol. V, pp. 367, 427.)
Defendant Ensidesa chartered this vessel and loaded
it in Aviles, Spain. Ensidesa, as charterer and as loading
stevedore, chose to stow the steel in the “H” manner.
Also, the steel was loaded all the way to the top of the
holds. (Record, Vol. IV, pp. 43, 355, 406; Vol. V, pp. 351,
354-355, 406, 410-414.)
Ensidesa’s chief of port operations prepared the
stowage plan and supervised the Ensidesa longshoremen
45a
who loaded the vessel. (Vol. V, pp. 351, 354-355, 406.) He
was responsible for seeing that the vessel was loaded
properly to permit safe off-loading. (Vol. V, pp. 411, 414.)
The master of the M/V LORENA, ARCASA’‘s
employee, approved the stowage plan prior to loading
the vessel. (Vol. V, pp. 352, 410.) As master of the vessel,
he was the person ultimately responsible for the manner
in which the cargo was stowed. (Vol. V, pp. 352, 410.)
Ensidesa knew that use of the “H” method to stow
the steel beams would tend to cut and crush the dunnage
between the tiers of steel beams. (Record, Vol. V, pp.
366-367, 424, 427.)
Ensidesa further knew that when the dunnage was
crushed it made safe off-loading with standard rigging
very difficult, if not impossible. (Record, Vol. V, p. 367.) In
fact, when Ensidesa’s own longshoremen encountered
crushed dunnage, they used a different method and dif-
ferent tools to off-load the steel beams, unknown to
American stevedores. (Vol. IV, pp. 61, 87, 100, 110, 335,
341; Vol. V, pp. 367-369, 385-386 416-421.)
In such circumstances, Ensidesa used a giant clamp
to lift the beams sufficiently to replace the crushed dun-
nage, thereby permitting the placement of the chains for
off-loading. (Vol. V, pp. 368-369, 416, 421.) Ensidesa’s
director of the Port of Aviles had been to the United
States and observed American stevedoring operations.
He knew that the giant clamps being used by Ensidesa
were unknown to American longshoremen. (Vol. V, pp.
369-370, 385-386, 417-421.)
46a
Despite this, Ensidesa never gave any warning what-
soever to Cooper Stevedoring about the need for special
equipment and techniques. (Vol. V, pp. 416-421.)
After the M/V LORENA arrived at the Port of New
Orleans, Cooper Stevedoring began the off-loading pro-
cess. Mr. Glen Reibe, Cooper’s ship superintendent, testi-
fied that when the M/V Lorena arrived he noted that the
cargo was stowed in the “H” manner, which was very
unusual. (Record, Vol. IV, p. 342-343.)
The longshoremen used standard rigging to remove
the steel beam cargo. The crane cable was attached to a
T-bar from which four cables were suspended, two on
each side, with hooks at the end. (Vol. IV, pp. 36-37.)
Normally the longshoremen would insert wires
between the tiers of beams. With adequate dunnage, the
wires could be inserted a good distance from the ends of
the beams. (Vol. IV, pp. 45, 271.) Then the wires would be
attached to the hooks and the crane would lift the load.
The longshoremen would insert chains beneath the bun-
dies, then the chains would be attached to the hooks, and
the load would be lifted out of the hold. (Vol. IV, p. 37,
271.)
When the steel beams are loaded in the “I” method,
the dunnage present between the tiers of steel beams
permits the safe insertion of the wires a sufficient dis-
tance from the end of the beams for safe and efficient
lifting and placement of chains. (Vol. IV, p. 40, 271.)
But when the beams are loaded in the “H” manner
and the dunnage is crushed, the situation is entirely
different. In this case, as the longshoremen removed
47a
cargo from the hold of the LORENA and reached lower
tiers of beams, the dunnage became more and more
crushed until the steel beams virtually were on top of
each other without any separation at all. (Vol. IV, pp. 46,
50, 54, 267, 269, 345-346, 396-400.)
The Cooper marine surveyor, Capt. Ross, observed
the entire off-loading process. He testified that the dun-
nage (which was supplied by Ensidesa) was soft and of
poor quality that broke with compression. He saw that
the longshoremen were having a lot of difficulty off-
loading the beams and that they had to “nip” the ends of
the beams to get them out. Capt. Ross testified that he
had never seen a stow of steel beams as bad as the one
he observed on the M/V Lorena in November, 1982.
(Record, Vol. V, pp. 47, 442-448, 516-519.)
Mr. Glen Reibe testified in the same vein:
Q. As the longshoremen got further and fur-
ther down in the hold and had discharged
tiers of steel beams, what did you observe
with regard to the dunnage?
A. I noticed that the dunnage had been
crushed severely due to the compression of
the steel on top of it.
Q. What did that do with regard to the off-
loading longshoremen?
A. Made it even more harder as we got deeper.
It was almost as if you had steel on top of
steel without any dunnage.
(Vol. IV, pp. 345-46.)
48a
Mr. Douglas Lemott, a member of Jerry Young's gang
and an eyewitness to his injury, described the situation as
follows:
Q. On the day of Mr. Young’s injury, can you
tell the jury what it was like trying to
unload those steel beams that were in that
vessel, the M/V Lorena that day?
A. Well, the dunnage under it had broke and
the beams were beams on beams where
they had fell and joined together and when
we tried to get the chain under it you
couldn’t get a chain under it so we would
catch just as much as we could catch to try
and raise it up and then try to put a piece of
wood under it until we could get enough to
raise them all the way up.
(Vol. IV, pp. 45-46.)
In effect, the longshoremen were putting in dunnage
after the cargo had been stowed. (Vol. IV, pp. 46-50,
269-272, 275-278, 375.)
It became impossible to insert the wires far enough
onto the beams to lift them and place the chains. The
longshoremen had to “nip” the end of the beam, or place
the wire as far in as they could force it, have the beam
lifted a little while they then threw wood chunks under
the beam and then force the wire back farther. Of course,
“nipping” the edge of the beam created a serious danger.
(Vol. IV, pp. 46-50, 54-56, 127, 287-288, 302, 325, 329, 344,
400-401; Vol. V, pp. 447-448.)
But the longshoremen had no alternative but to con-
tinue to off-load the vessel as carefully as they could.
5
>
aaa caeneeaeceaeieanaainiaaaimaiiiie
49a
(Vol. IV, pp. 61, 100, 275, 302, 335-336, 345-346, 352,
363-364, 391, 402.)
In due course, while the longshoremen were “nip-
ping” onto some beams and trying to raise them in order
to insert dunnage, the wire slipped off the end and the
T-bar swung wildly through the hold. One of the long-
shoremen screamed to get out of the way, but Jerry Young
was not able to move in time to avoid this swinging bar.
He was hit in the head and knocked unconscious onto the
steel beams. (Vol. IV, pp. 54-61, 272-278, 288-290, 332-333;
Vol. V, 203-206.)
As a result of this incident, Jerry Young suffered
injuries to his head and lower back and arm.!
He was briefly hospitalized and then conservatively
treated by Dr. Bogran for his continuing complaints.
In April, 1983, Dr. Bogran consulted Dr. John Water-
meier, an orthopedic surgeon, because Mr. Young was
continuing to complain of pain in his low back and radi-
ating pain into his leg.
Dr. Watermeier readmitted Mr. Young to the hospital
and diagnosed a probable ruptured disc at L4-L5 and
attempted a chemical laminectomy with a chymopapain
injection. Mr. Young’s complaints improved somewhat
and he was discharged from the hospital on April 19,
1983.
! Jerry Young had worked as a longshoreman for most of
his adult life. He had suffered some minor injuries, but nothing
that had caused him to miss work for a substantial period of
time. At the time of this incident he was in good health, doing
his full duties, and was not under any doctor’s care.
50a
Unfortunately, the improvement was only temporary
and in June of 1983 Dr. Watermeier found that Mr. Young
-was again complaining of severe pain and was walking
with a pronounced limp. At this point Dr. Watermeier
recommended a lumbar laminectomy. Mr. Young was
again hospitalized, from June 23 to June 28, 1983, and the
procedure was performed. (Record, Vol. IV. p. 201.)
After the operation, Mr. Young continued to be fol-
lowed by Dr. Watermeier. He had complaints with respect
to both his back and leg and also his wrist. Dr. Water-
meier diagnosed a probable carpal tunnel syndrome
resulting from the injury in November, 1982. (Record, Vol.
IV, p. 206.)
Mr. Young continued to see Dr. Watermeier every one
or two months. By January, 1984, Dr. Watermeier noted
that he appeared to be chronically depressed. In Febru-
ary, 1984, Dr. Watermeier began giving Mr. Young anes-
thetic injections into the muscles around his spine in
order to try to at least temporarily relieve his symptoms.
In addition, Mr. Young was taking oral Percodan, a nar-
cotic pain medication.
Despite the two surgeries that had been performed,
Mr. Young’s symptoms did not improve. He continued to
have severe pain in his back and leg, requiring monthly
anesthetic injections. In December, 1984, Dr. Watermeier
again hospitalized him for more diagnostic tests in light
of the continuing problems.
Then, in May, 1984, Dr. Watermeier hospitalized Mr.
Young for the fifth time and performed a laminectomy
and fusion operation.
5la
Unfortunately, Mr. Young’s symptoms did not signifi-
cantly improve. He continued to see Dr. Watermeier and
to receive anesthetic injections at the office. Because the
treatments provided only partial relief, Dr. Watermeier
hospitalized Mr. Young for the sixth time, in September,
1985, so that he could be given a morphine injection into
the spine.
Dr. Watermeier continued to follow Mr. Young and
continued to try to treat his pain with various modalities,
including Percodan, Marcaine anesthetic injections, and
periodic hospitalizations to have morphine injections into
his spine.
These treatments continued up to the time of trial.
Dr. Watermeier testified that Mr. Young was totally
and permanently disabled. Even if he could be trained for
some type of sedentary light employment, the constant
pain and need for ongoing orthopedic and psychiatric
treatment makes employment a practical impossibility.
(Vol. IV, pp. 216, 219, 225, 226, 229-230, 234.)
Dr. Robert Newman, a psychiatrist, began seeing Mr.
Young in April, 1988. He diagnosed his condition as an
adjustment disorder, depression and withdrawal, and he
began regular psychiatric therapy. (Vol. V, pp. 108, 134.)
In January, 1989, Mr. Young became suicidal. (Vol. V, p.
122.) At the time of trial Mr. Young was still under Dr.
Newman’s care and it was Dr. Newman’s opinion that he
was disabled from returning to work as a result of his
psychiatric problems resulting from his injury and inabil-
ity to work. (Record, Vol. V, pp. 136-138, 191.)
52a
At the time of his injury, Mr. Young was earning
about $25,000 a year. (Vol. V, pp. 196-197.) From Novem-
ber 22, 1982, until the time of trial, Mr. Young was never
again able to return to employment. In the opinion of his
treating physicians, it was unlikely that Mr. Young would
ever work again.
SUMMARY OF ARGUMENT
Both ARCASA and Ensidesa were negligent in failing
to ensure that the loading stevedore in Aviles, Spain,
(ENSIDESA) stowed the cargo in such a manner that it
could be discharged in New Orleans with reasonable
safety. The defendants further failed to warn the off-
loading longshoremen both of the danger presented by
the crushed dunnage and resulting overlapping, jammed
and enmeshed stow and of the need for special equip-
ment, or C-Clamps known to the Spaniards but unknown
to American stevedores, to safely off-load the vessel.
The jury did not commit manifest error in finding
that the two defendants breached their duty of care to
Jerry Young. The jury properly evaluated the credibility
of the witnesses, resolved conflicts in the testimony and
made reasonable inferences of fact.
?
With regard to the damages awarded, the jury did
not abuse its much discretion. The general damage award
is supported by evidence that Jerry Young has been per-
manently and totally disabled and has endured an
extraordinary course of medical treatment and measures
to relieve pain that is going to continue for the remainder
of his life.
53a
The jury’s awards for loss of earnings and future
medical expenses are supported by the evidence
The defendants moved for a new trial and/or judg-
ment not withstanding the verdict upon substantially the
same grounds as are urged on this appeal. The trial court,
which was intimately familiar with these lengthy pro-
ceedings, denied these motions. Your Honors should find
that the trial court did not abuse her discretion and that
the jury’s verdict is not clearly wrong.
ARGUMENT
A. THE SUBSTANTIVE LAW.
Jerry Young sued ARCASA and Ensidesa as “the
vessel” for damages under the Longshore and Harbor
Workers’ Compensation Act, (LHWCA), 33 U.S.C. section
905 (b). He also sued Ensidesa as the loading stevedore
for negligence pursuant to general maritime law.
For purposes of liability pursuant to 33 United States
Code section 905(b), the “vessel” encompasses both
ARCASA as owner/operator and Ensidesa as the time
charterer. 33 U.S.C. section 902(21); Kerr-McGee v. Ma-Ju
Marine Services, Inc., 830 F.2d 1332, 1338 (5th Cir. 1987).
Jerry Young has the right to recover from both for negli-
gence. These entities may attempt to shift the burden
between them by way of indemnification. Fernandez v.
Chios Shipping Co., Ltd., 542 F.2d 145 (5th Cir. 1976); Turner
v. Japan Lines, Ltd., 651 F.2d 1300 (9th Cir. 1981).
In Scindia Steam Navigation Co. v. De Los Santos, 451
U.S. 156, 101 S.Ct. 1614, (1981), the United States Supreme
54a
Court clarified the scope of the duties owed by the vessel
to stevedores and longshoremen.
Stating that the vessel “owes to the stevedore and his
longshoremen employees the duty of exercising due care
‘under the circumstances,’ ” the Supreme Court in Scindia
identified three separate aspects of this duty. Id., 451 U.S.
at 166, 101 S.Ct. at 1622.
First, with regard to a condition that exists prior to or
at the outset of cargo operations, the vessel must exercise
ordinary care to have the ship and its equipment
in such condition that an expert and experi-
enced stevedore will be able by the exercise of
reasonable care to carry on its cargo operations
with reasonable safety . . .
Id., 451 U.S. at 167, 101 S.Ct. at 1622.
A corollary of this first Scindia duty is that the vessel
has a duty to warn the stevedore of any hazardous condi-
tions on the ship or with respect to its equipment that are
known or should be known to the vessel in the exercise of
reasonable care, that would likely be encountered by the
stevedore in the course of his cargo operations, and that
are not known by the stevedore and would not be
obvious to, or anticipated by, him if reasonably compe-
tent in the performance of his work. Id., 451 U.S. at 167,
101 S.Ct. at 1622.
The “Scindia No. 2 duty” involves the vessel’s lia-
bility when it actively involves itself in cargo operations
and either negligently injures a longshoreman or fails to
maintain equipment, etc., in the area over which it has
maintained actual control during the stevedoring opera-
tion. No party alleged that, at the time Jerry Young was
55a
injured, the vessel was in active control of the area in
question.
The third Scindia duty applies to dangerous condi-
tions that develop or come to light once stevedoring
operations are under way. Scindia, 451 U.S. at 175-176, 101
S.Ct. at 1626-27. A vessel will, in this situation, be liable
under section 905(b) if:
It had actual knowledge of a dangerous condi-
tion... and actual knowledge that the stevedore
was not acting to correct it.
Woods v. Sammisa, 873 F.2d 842, 847 (5th Cir. 1989).
In this case, Jerry Young contended that the vessel
breached the first Scindia duty in two ways. First, he
contended that the two defendants were negligent in
failing to ensure that the loading stevedore in Aviles,
Spain, (Ensidesa) stowed the cargo in such a manner that
it could be discharged in New Orleans with reasonable
safety. Secondly, and also under the first Scindia duty, he
contended that the defendants failed to warn him both of
the danger presented by the crushed dunnage and result-
ing overlapping, jammed and enmeshed stow and of the
need for special equipment, or C-clamps known to the
Spaniards but unknown to the American stevedores, to
safely off-load the vessel. Kermarec v. Compagnie Generale
Transatlantique, 358 US 625, 1959 AMC 597 (1959).
He further contended that Ensidesa, as the loading
stevedore, was negligent in creating an unreasonably
dangerous stow on the vessel. Kermarec v. Compagnie Gen-
erale Transatlantique, 358 U.S. 625, 1959 AMC 597 (1959).
56a
The defendants, on the other hand, took the position
that the cause of Jerry Young’s accident was an unsafe
condition created by the Cooper stevedores during the
off-loading operation,? rendering this a case to be judged
by the standards of the third Scindia duty.°
Since Scindia, several courts have considered the
question whether the vessel’s duty of reasonable care
extends to hazardous cargo conditions created by a load-
ing stevedore. The clear majority have decided that it
does.
This question was first raised in Turner v. Japan Lines,
Ltd., 651 F.2d 1300 (9th Cir. 1981). There an off-loading
stevedore was injured when he fell from a stack of cargo
that had not been properly shored by the loading steve-
dore. In concluding that the vessel owner and charterer
could be found liable on these facts, the Ninth Circuit
reasoned as follows:
Imposing a duty on the Owner or Time-Char-
terer or both in this case should refer to the
congressional goal of safety. The foreign steve-
dore, who is presumably primarily at fault, may
in many cases be beyond reach of the court's
processes, and the injured longshoreman would
be unable to sue it. As between the vessel and
2 See Arcasa Brief, p. 13, paras. 1, 2; n.4; Ensidesa Brief, pp.
9-13.
* The trial court correctly found that whether the dan-
gerous condition, if any, that caused Jerry Young’s casualty
existed at the beginning of off-loading or developed within the
confines of cargo operations was an issue of fact for the jury, and
submitted the law relevant to both plaintiff's and defendant's
theories to the jury. (Vol. VII, p. 106, 11. 13-22.)
57a
the stevedore-employer, the vessel is the only
one in a position to insure the safety of the
longshoremen. The off-loading stevedore has no
control whatsoever over the foreign stevedore.
The vessel, on the other hand, can insure safety
by choosing a reliable foreign stevedore, super-
vising its work when necessary, and warning
the off-loading stevedore of concealed dan-
gerous conditions created by the foreign steve-
dore. .. . We hold, therefore, that the vessel had
a duty to protect the plaintiff against concealed
dangers created by a foreign stevedore which
the vessel could, in the exercise of reasonable
care, have corrected or warned of.
Id. at 1304.
In light of this duty, the Court held that the plaintiff
could recover if he proved by a preponderance of the
evidence that the vessel “knew or should have known” of
a hazardous condition created by the loading stevedore.
Id. at 1304.
In three subsequent decisions the Fifth Circuit Court
of Appeals has agreed that the vessel may be found liable
under 905(b) if it knew or should have known of dan-
gerous conditions created by a loading stevedore and
failed to either correct the condition or warn about it.
Lemon v. Bank Lines, Ltd., 656 F.2d 110 (5th Cir. 1981);
Harris v. Flota Mercante Grancolombiana, S.A., 730 F.2d 296
(5th Cir. 1984); Woods v. Sammissa, 873 F.2d 842.
In Woods v. Sammissa, 873 F.2d at 850, the Fifth Circuit
summarized these legal principles as follows:
Under the first Scindia duty, a vessel interest
has an obligation to exercise due care to ensure
that the vessel’s cargo is loaded such that it can
58a
be discharged with reasonable safety. The
defendants may be found liable “for damages
arising from a dangerous stow [in] situations
where the [defendants] knew or should have
known of the dangerous condition.”
In this case, Judge Johnson charged the jury in accor-
dance with these principles of law, and there was no
objection by either defendant to the Court’s instructions.*
B. RESPONSE TO SPECIFICATIONS OF ERRORS.
In this appeal, ARCASA has specified 7 errors and 11
issues for review, and Ensidesa has specified 17 errors
and 20 issues for review. In effect, each defendant has
attacked virtually every discretionary decision made by
Judge Johnson during a lengthy trial.
We will discuss each of the alleged errors that was
briefed, but will give greatest attention to what would
appear to be the defendants’ most important contention,
that the verdict, both on liability and damages, was mani-
festly erroneous.®
4 In Derr v. Kawasaki Kisen KK, 835 F.2d 490, 495-96 (3rd Cir.
1987), the Third Circuit held that the shipowner could not be
held liable for conditions arising from the stowage of cargo.
Obviously, even if this minority view were accepted, it would
have no effect here on Ensidesa’s liability under the general
maritime law for its negligence as the loading stevedore.
5 We have tried to simply address the merits of the defen-
dants’ arguments. This is obviously an important case to all
concerned. That does not excuse some of the statements that
have been made; for example, “The trial court facilitated plain-
tiff’s concealment and ambush.” (Ensidesa Brief, p. 50.)
59a
1. THE JURY’S VERDICT ON LIABILITY, BOTH
AS TO ARCASA AND ENSIDESA, WAS SUP-
PORTED BY THE EVIDENCE AND WAS NOT
MANIFESTLY ERRONEOUS.
Both ARCASA and Ensidesa contend that the jury’s
verdict was not supported by the evidence and should be
set aside. In this regard, the standard of appellate review
is governed by Louisiana law. Icicle Seafoods, Inc. v. Worth-
ington, 475 U.S. 709 (1986); Daigle v. Coastal Marine, Inc.,
488 So.2d 679 (La. 1986). Under Louisiana law:
It is well settled that a court of appeal may not
set aside a finding of fact by a trial court or a
jury in the absence of “manifest error” or unless
it is “clearly wrong,” and where there is conflict
in the testimony, reasonable evaluations of cred-
ibility and reasonable inferences of fact should
not be disturbed upon review, even though the
appellate court may feel that its own evaluations
and inferences are as reasonable... .
When findings are based on determinations
regarding the credibility of witnesses, the mani-
fest error — clearly wrong standard demands
great deference to the trier of fact’s findings; for
only the fact finder can be aware of the varia-
tions in demeanor and tone of voice that bear so
heavily on the listener’s understanding and
belief in what is said.
Lirette v. State Farm Ins. Co., 563 Se.2d 850, 852 (La. 1990).
From the evidence presented the jury could reason-
ably conclude the following: (1) Ensidesa, acting as load-
ing stevedore, developed and carried out the stowage
plan for the M/V LORENA in October, 1982. (Vol. IV, pp.
335, 406; Vol. V, pp. 351, 354-355, 406, 410-414.) (2)
60a
Ensidesa was responsible for the “H” method of stow, the
height of the stow, and the nature, amount and placement
of the wood dunnage. Id. (3) the master of the vessel, an
Arcasa employee, approved the stowage plan prior to
loading and accepted the vessel when the stow was com-
plete. (Vol. IV, pp. 355, 406; Vol. V, pp. 351, 354-355, 406,
410-414.) (4) the master was the person ultimately respon-
sible for the manner of the stow. (Vol. V, pp. 352, 364,
410.) (5) Ensidesa knew when it loaded the vessel that the
“H” method of stow tended to crush the dunnage
between the tiers of steel beams making safe off-loading
with standard rigging very difficult, if not impossible.
(Vol. V, pp. 366-367, 424, 427.) (6) Ensidesa knew that its
own longshoremen used a special technique and equip-
ment, giant C-Clamps, to off-load “H” stows with
crushed dunnage. (Vol. V, pp. 368-369, 416, 421.) (7)
Ensidesa knew or should have known that this technique
and necessary equipment was unknown to American ste-
vedores. (Vol. V, pp. 369-370, 385-386, 417-421.) (8) Nei-
ther Ensidesa nor ARCASA at any time warned the
American stevedore, Cooper T. Smith, either of the proba-
ble crushed dunnage and consequent jammed, overlap-
ping and enmeshed nature of the stow in the lower tiers
or of the need for special equipment to safely off-load the
vessel. (Vol. V, pp. 416-421.) (9) Although Ensidesa chose,
and ARCASA approved, the “H” stow, it was no more
difficult or time consuming to load a vessel in the “I”
method. (Vol. V, pp. 376, 421.) (10) Once the cargo was
stowed, there was nothing the off-loading stevedores
could do to correct the situation except to try to get the
steel out as carefully as possible.
ra
bla
As discussed above, Judge Johnson charged the jury in
accordance with the majority view that “the defendants may
be found liable ‘for damages arising from a dangerous stow
[in] situations where the [defendants] knew or should have
known of the dangerous condition.’ ” Woods v. Sammisa, 873
F.2d at 850. There is no requirement that the vessel have
actual knowledge of the danger presented before liability
attaches. Rather, that duty speaks in terms of a failure to
exercise care. Woods v. Sammissa, 873 F.2d at 851.°. Here, as in
Woods, neither defendant denies actual knowledge of the
nature of the stow; rather they contend that the evideice
does not establish either that the “H” stow, with its conse-
quent crushed dunnage and jammed beams, created an
unreasonable risk of harm to the longshoreman or that they
could be charged with knowledge of the risk if it existed.
The evidence that the “H” stow was unusual and
unnecessary and that it foreseeably increased the risk of
injury to the longshoremen and that the risk could have
been avoided by using the “I” stow or by warning the
American stevedore of the need for special off-loading
equipment, that is, giant C-clamps, was ample for the
jury to conclude that the defendants did not exercise
© Defendant Ensidesa argues that the Woods statement of
the first Scindia duty at pages 850-851 is an “oversimplification.”
However, the Fifth Circuit in Woods was reiterating earlier state-
ments made by various courts — Hernandez v. M/V RAJAAN, 841
F.2d 582 (5th Cir. 1988); Harris v. Flota Mercante Grancolumbiana,
730 F.2d 296; Lemon v. Bank Lines, Ltd., 656 F.2d 110; Turner v.
Japan Lines, Ltd., 651 F.2d 1300; Roby v. Hyundai Merchant Marine,
700 F.Supp. 316 (E.D. La. 1988); Clay v. Lykes Bros. S.S. Co., Inc.,
525 F.Supp. 306 (E.D. La. 1981). In Treadaway v. Societe Anonyme
Louis-Dreyfus, 894 F.2d 161 (5th Cir. 1990) the Fifth Circuit con-
firmed this view of the law.
62a
reasonable care to provide the longshoremen with a safe
place to work. Woods v. Sammisa, 873 F.2d at 850-851.
“” 4“
Evidence that the stow was “dangerous,” “poor,” and
“bad” is sufficient to support a jury finding of negligence.
See Woods v. Sammisa, 873 F.2d at 851, and Harris v.
Grancolumbiana, 730 F.2d at 298.
As the loading stevedore, Ensidesa is also liable to
plaintiff for its negligence in creating a dangerous stow
that it was reasonable to foresee might injure an off-
loading longshoreman. Turner v. Japan Lines, Inc., 651 F.2d
1300; Roby v. Hyundai Merchant Marine, 700 F.Supp. 316;
Clay v. Lykes Bros. S.S. Co., Inc., 525 F.Supp. 306.
Finally, the defendants contend that they may not be
held liable for a hazard that was “open and obvious” to
the off-loading longshoremen. But this is simply not the
law.
In Harris v. Flota Mercante Grancolumbiana, S.A., the
district court relieved the defendant from liability, find-
ing that the danger had been “obvious” to all the long-
shoremen, including the plaintiff. The Fifth Circuit Court
of Appeals reversed, holding as follows:
But that the danger was “obvious” is not neces-
sarily a complete defense to a longshoreman’s suit,
“because when faced with an openly dangerous
shipboard condition, the longshoreman’s ‘only
alternatives would be to leave his job or face trou-
ble for delaying the work.’” . . . Thus “ ‘a long-
shoreman’s own knowledge of a shipboard hazard
will not negate a shipowner’s duty of care which
would otherwise exist.’ ”
730 F.2d at 299-300.
63a
Here, the uncontradicted evidence is that the long-
shoreman had no reasonable alternative other than to try
to remove this steel cargo as carefully as possible. The
fact that they were aware of the danger is simply not a
defense to the claims against the defendants who created
the hazard in the first place. Judge Johnson charged the
jury in accordance with then settled legal principles, and
the defendants made no objection. Clearly the jury had
ample evidence to find that the defendant was not
relieved of liability because the off-loading longshoremen
had no alternative but to proceed to off-load the cargo.
2. THE JURY’S DAMAGE AWARD IS SUP-
PORTED BY THE EVIDENCE, AND THE
TRIAL COURT DID NOT ABUSE ITS DISCRE-
TION IN REFUSING TO ORDER A REMIT-
TITUR.
Defendant ARCASA (but not Ensidesa) attacks as
excessive the jury’s awards for general damages, past and
future loss of earnings and earning capacity, and future
medical expenses.
In considering this contention, the Court of Appeal
must be guided by the following principles of Louisiana
law:
A trier of fact has much discretion in the assess-
ment of general damages. Before an appellate
court can disturb a trial court’s award of general
damages, the record must clearly reveal that the
trier of fact abused its discretion in making the
award. If such abuse of discretion is found, then
the court may look to other awards made in
similar cases as an aid to raising or lowering the
64a
award to the highest or lowest point which
would have been reasonably within the discre-
tion of the jury.
Burton v. Berthelot, 567 So.2d 649, 661 (La. App. 4th Cir.
1990). (Citations omitted.)
Here, the jury awarded Jerry Young $775,000 for past
and future physical and mental pain and suffering and
for his permanent disability. We respectfully suggest that
this award is supported by evidence of an extraordinary
course of medical treatment and measures taken to
relieve pain and the uncontradicted testimony that Mr.
Young is going to suffer with the same level of physical
pain and emotional difficulties for the remainder of his
life.
As of the time of trial Mr. Young had been hospi-
talized on eight occasions; he had had three surgical
procedures; he had received anesthetic injections into the
muscles around his spine on approximately 40 occasions;
he had been hospitalized to have morphine injected into
his spine on at least three occasions; he was regularly
taking an oral narcotic pain medication; and he was per-
manently and totally disabled. (Watermeier, Record, Vol.
IV, pp. 182-237.)
The medical testimony established that Mr. Young
would probably suffer to the same extent for the remain-
der of his life and would continue to have to have signifi-
cant ongoing treatment for the relief of his symptoms,
including hospitalization and probable additional sur-
gery.
In addition, as discussed above, Mr. Young suffered
substantial psychological injury as a result of his injuries
65a
and resulting inability to work. As Dr. Robert Newman,
his treating psychiatrist testified, Mr. Young’s whole
sense of self was tied up in his ability to do his job and do
it well. The combination of the physical disability and
pain coupled with the vocational disability caused Mr.
Young to suffer severe depression and anxiety. According
to Dr. Newman he had difficulty in sleeping, loss of
appetite and decreased interest in sex. (Record, Vol. V, p.
112.)
Dr. Newman saw Mr. Young regularly and prescribed
antidepressant medication.
In January, 1989, Mr. Young’s depression got worse
and he told Dr. Newman that he had no hope and saw no
future for himself and was seriously thinking about sui-
cide. Although Mr. Young was no longer suicidal at the
time of trial, his emotional problems remained.
As Dr. Newman testified, “his image of himself had
been damaged beyond repair” by his injury and resulting
disability. (Record, Vol. V, p. 136.)
Given the foregoing, we respectfully suggest that the
jury’s award of damages is supported by the evidence
and does not represent an abuse of the jury’s discretion.”
? Under the standards of appellate review set forth above,
the Court of Appeal need not look to similar awards in similar
cases unless it determines that there was an abuse of discretion.
If Your Honors feel it is necessary to look to other awards, we
refer the Court to recent decisions in Burton v. Berthelot, 567
So.2d 649 (La. App. 4th Cir. 1990), and Mitchell v. Clark Equip-
ment Co., 561 So.2d 175 (La. App. 5th Cir. 1990). In Burton, the
Fourth Circuit approved an award of general damages totalling
$377,000 for physical and mental pain and suffering following a
66a
ARCASA also contends that the jury’s award of
$300,000 for future medical expenses is excessive and an
abuse of discretion.
In this regard the law is clear that “future medical
expenses must be established with some degree of cer-
tainty. However, an award of future medical expenses is
in great measure highly speculative and not susceptible
of calculation with mathematical certainty.” Burton v.
Berthelot, 567 So.2d at 663. (Citations omitted.)
Here, the award of future medical expenses is justi-
fied by the testimony of both of Mr. Young’s treating
physicians as to the need for medical treatment for the
remainder of Mr. Young's life.
Specifically, Dr. Watermeier testified that Mr. Young
(1) would continue to have to be followed on a regular
basis by an orthopedic surgeon; (2) would require sur-
gery to relieve his carpal tunnel syndrome in his wrist at
a probable cost of $2,000 to $3,000 (Record, Vol. IV, pp.
226-228); (3) might require an anterior lumbar fusion at
an estimated cost of $15,000 to $20,000; (4) would need
intermittent hospitalizations for morphine injections
every two months at a cost of $2,000 per treatment; (5)
back injury. But in Burton the plaintiff had had one back surgery
with a resulting permanent disability before the injury in ques-
tion. And, more importantly, there is nothing like the same
objective evidence in that case as here indicating continued
severe physical pain requiring extraordinary treatment mea-
sures providing only temporary relief. In Mitchell, the Court of
Appeal affirmed a jury verdict in the amount of $400,000. Com-
paring the description of the injuries in that case with what
Jerry Young has suffered, we again respectfully suggest that a
much higher award would be justified here.
67a
would need office visits and office anesthetic injections at
a cost of $34 per visit and $22 per injection every month
or every other month. (Record, Vol. IV, p. 230.)
The psychiatrist, Dr. Newman, testified that Mr.
Young would continue to require supportive psycho-
therapy every two weeks at a cost of $82.50 per session
and that this could be expected to continue for the rest of
Mr. Young’s life. In addition, Mr. Young would probably
continue to require antidepressant medication.
Given the above testimony, the jury could reasonably
conclude there was a reasonable probability that Mr.
Young would require future medical care and treatment
at a cost in the range of $12,000 to $15,000 a year for the
remainder of his life. On this record, the award of
$300,000 is well within the jury’s discretion.
Finally, defendant ARCASA takes issue with the
jury’s awards for past and future loss of earnings and
earning capacity.
The jury awarded $175,000 for Mr. Young’s loss of
earnings from the date he was hurt on November 22, 1982
until the time of trial in 1989.
From the evidence, the jury could have concluded
that Mr. Young’s annualized income for 1982 would have
been approximately $25,000 and that various members of
his former crew had continued to earn an income in this
range from that time until the time of trial. (Record, Vol.
V, pp. 196-197, 329; Vol. IV, pp. 66-68.) Since seven years
had elapsed since the time of Mr. Young’s injury, the jury
undoubtedly simply multiplied $25,000 by 7 to reach its
award of $175,000.
68a
Certainly this was within the jury’s discretion.
ARCASA also contends that the jury’s award of
$460,000 for loss of future earning capacity was excessive.
In considering this contention, the Court of Appeal
should consider “whether the award can be supported
under the interpretation of vidence most favorable to
the plaintiff which reasongbly could have been made by
the fact finder.” Bailes v. U.S. Fidelity & Guaranty Co., 512
So.2d 633, 643 (La. App. 2nd Cir. 1987).
ARCASA coniends that the maximum the jury could
have reasonably awarded for lost earnings would have
been $331,097 based upon the testimony of the expert
economist, Dr. Philip Jeffress. But obviously the jury was
not “bound” by the testimony of either of the economists.
Brown v. Southern Farm Bureau Ins. Co., 426 So.2d 684 (La.
App. Ist Cir. 1982). Rather, the test is whether or not the
award was justified based upon all the evidence avail-
able.
Mr. Young was 52 years old at the time of trial. The
jury reasonably could have decided that Mr. Young could
have worked for an additional 18 years with approximate
earnings of $25,000, and his future loss of earnings would
have been in the range of $460,000. Clearly, the jury was
not required as a matter of law to use any specific dis-
count factor and could lawfully use the total offset
method in calculating Mr. Young’s loss of future earnings.
Schwamb v. Delta Air Lines, 516 So.2d 452, 465 (La. App.
1st Cir. 1987).
69a
3. THE TRIAL COURT DID NOT IMPROPERLY
SUBMIT CLAIMS TO THE JURY, AND IT
GAVE PROPER JURY INSTRUCTIONS.
Both defendants contend that the trial court erro-
neously submitted theories of recovery to the jury and
gave improper jury instructions.
But it is clear that the defendants are foreclosed from
any objection to the jury instructions because they made
no objection whatever to the charges that were given.
(Vol. III, p. 91, Il. 6-8, p. 93, Il. 4-6.) Gordon v. Hubbard, 541
So.2d 211, 212 (La. App. 4th Cir. 1989).
In this regard, article 1793 C of the Louisiana Code of
Civil Procedure provides as follows:
A party may not assign as error the giving or
the failure to give an instruction unless he
objects thereto either before the jury retires to
consider its verdict or immediately after the jury
retires, stating specifically the matter to which
he objects and the grounds of his objection . . .
The defendants rely upon the decision of the Fifth
Circuit in Woods v. Sammissa Co., Ltd., 873 F.2d 842, in
support of their argument that Judge Johnson improperly
submitted the failure-to-warn claim to the jury in this
case. But in Woods, unlike here, the defendants speci-
fically moved for a directed verdict on the failure-to-warn
theory and objected to the jury’s being charged with
respect to it. If the defendants had not made this objec-
tion, the Fifth Circuit would not have considered any
claim of error on appeal. The Fifth Circuit specifically
addressed this with respect to the fact that the jury in
70a
Woods was erroneously charged with respect to the third
Scindia duty, stating the following:
Under the law of this circuit, therefore, the jury
should not have been charged on the third Scin-
dia duty. Because the defendants, preferring to
concede that the third duty applied and to argue
that the evidence was insufficient to support a
finding that it had been breached, did not raise
this issue in their motions for directed verdict
and j.n.o.v., we cannot find error on this ground.
873 F.2d at 853, n.14.
Since the defendants made the same strategic deci-
sion here, they must be similarly foreclosed from the
allegation of error.
But even if the defendants’ arguments had been
properly preserved for appeal, we respectfully suggest
that they would not be well-founded.
In this case, as distinguished from Woods, there is a
factual basis upon which the jury could have properly
determined that the defendants were obligated to warn
the off-loading stevedore about the manner of the stow of
the steel cargo. The record in this case shows that the
loading stevedore and vessel charterer, Ensidesa, knew
that the cargo was being stowed in the “H” manner, knew
that this would increase the likelihood of the destruction
of the dunnage, knew that there were special tools avail-
able to facilitate the removal of the cargo under such
circumstances, and knew that this equipment was
unknown to American stevedores. Under such circum-
stances, the jury could have determined that the defen-
dant was liable not only for failing to provide the off-
7la
loading stevedores with a safe place to work, but also for
failing to warn of the need for special equipment.
4. THE TRIAL JUDGE PROPERLY CHARGED THE
JURY ON THE LAW RELATIVE TO COOPER STE-
VEDORING AND PROPERLY DECLINED TO SUB-
MIT A JURY INTERROGATORY REGARDING
COOPER STEVEDORING’S “COMPARATIVE
NEGLIGENCE.”
The longshoreman’s exclusive remedy against the
stevedore/employer is for workman’s compensation ben-
efits under the Longshore and Harbor Workers’ Compen-
sation Act, 33 U.S.C. Section 905. As a consequence of the
exclusive-remedy provision, the United States Supreme
Court has held that a shipowner sued by an injured
stevedore cannot circumvent the rule by obtaining contri-
bution from a concurrently negligent employer. Edmonds
v. Compagnie Generale Transatlantique, 443, U.S. 256, 268, 99
S.Ct. 2753, 2760 (1979)8; Woods v. Sammissa, 873 F.2d 842,
846; Hill v. Texaco, 674 F.2d 447, 449 (5th Cir. 1982).
8 Id. at 2760: “As we have said, section 905 permits the
injured longshoreman to sue the vessel and exempts the
employer from any liability to the vessel for any damages that
may be recovered. Congress clearly contemplated that the
employee be free to sue the third-party vessel to prove negli-
gence and causation on the vessel’s part and to have the total
damages set by the court or jury without regard to the benefits
he has received or to which he may be entitled under the Act.
Furthermore, under the traditional rule, the employee may
recover from the ship the entire amount of the damages so
determined. If he recovers less than the statutory benefits, his
employer is still liable for the statutory amount.
“Under this arrangement, it is true that the ship will be
liable for all of the damages found by the judge or jury; yet its
72a
This decision has two implications in the context of
this trial.
First, as defendant ARCASA properly requested, the
jury was charged extensively on the law regarding the
bearing of Cooper’s alleged negligence on this case. (Vol.
VIL, 4/26/89, pp. 3-5, pp. 28-29, 1. 10; p. 31, Il. 4-12; p. 32,
ll. 8-14; p. 33, Il. 16-25; p. 34, 1. 17 to p. 35, 1. 20.)9
negligence may have been only a minor cause of the injury. The
stevedore-employer may have been predominantly responsible;
yet its liability is limited by the Act, and if it has lien rights on
the longshoreman’s recovery it may be out-of-pocket even less.”
* In pertinent part, Judge Johnson instructed the jury as
follows: In comparing fault as I said a longshoreman’s award
may be reduced by that portion of damages assignable to his
own fault. As a matter of maritime law, the shipowner or the
charterer of a vessel would be responsible to the plaintiff in full
for the remainder of damages even if the stevedore, Cooper in
this case, was also negligent or contributed to his injuries. The
longshoreman may recover the total amount of his damages
from the vessel owner Ensidesa and/or the charterer of the
vessel or the owner of the vessel ARCASA if their negligence
was a contributing cause of his injury even if the stevedore
Cooper is partly to blame. (Record, Vol. VII, 4/26/89. at 28, ll.
1-16.)
If you find that the accident was caused solely by negli-
gence of the plaintiff and the stevedore Cooper or Cooper
employees, then you must find in favor of the defendants. (Id. at
28, Il. 17-21.)
As a general rule the shipowner may rely on the stevedore
to avoid exposing the longshoreman to unreasonable hazards.
This is because the federal statutes require the stevedore which
is the longshoreman’s employer to provide a reasonably safe
place to work and to take safeguards with respect to equipment
and working conditions. (/d. at 31, ll. 4-12.)
ARCASA and Ensidesa would have no duty by way of
supervision or inspection to exercise reasonable care to discover
73a
Second, since the employer/stevedore’s negligence
would not, even if proved, affect the longshoreman’s
recovery, the Fifth Circuit has held that there is no reason
to submit the issue of the stevedore’s negligence to the
jury. Samuels v. Empresa Lineas Maritimas Argentinas, 573
F.2d 884, 885 (5th Cir. 1978).
dangerous conditions that develop within the confines of the
cargo operations. It is a stevedore who must see to the safety of
cargo operations. (Id. at 32, ll. 8-14.)
The primary responsibility for the safety of Mr. Young
rested upon Cooper Stevedoring. Under the law Ensidesa and
ARCASA would be entitled to rely on Cooper not to expose its
employees to unreasonable hazards and Ensidesa and ARCASA
would have no duty to anticipate the action or inaction of a
careless stevedore or to anticipate negligence on their part or to
supervise them. (Id. at 33, ll. 16-25.)
The shipowner and the charterer of the vessel within limits
would be entitled to rely on the stevedores and owes no duty to
the longshoreman as I said to inspect or supervise the cargo
operations. (Id. at 34, li. 17-22.)
Once the longshoreman employees of Cooper began work-
ing, Ensidesa and ARCASA had no general duty under the law
to discover a dangerous condition that developed within the
confines of the stevedore’s operation. (Id. at 34, |. 23, to 35, |. 1.)
Actual knowledge of a dangerous condition by the owner or
charterer of the vessel which condition later injured a long-
shoreman would not in itself make the owner or character of the
vessel negligent. It might well be reasonable for the owner or
charterer to rely on the stevedore’s judgment that the condition
though dangerous was safe enough. (Id. at 35, ll. 2-10.)
The shipowner or charterer is not responsible for the negli-
gence of the stevedore or its employees such as the flagman or
crane operator. In other words, ARCASA and Ensidesa are not
responsible for the negligence of Cooper or Cooper employees.
The shipowner or charterer itself must be actually at fault and
that fault must be the proximate cause of the plaintiff’s injury.
(Id. at 35, ll. 11-20.)
74a
Defendant cites two cases for the proposition that an
interrogatory concerning Cooper’s comparative negli-
gence should have gone to the jury. Lemire v. New Orleans
Public Service, Inc., 458 So.2d 1308 (La. 1984), and Nance v.
Gulf Oil Corp., 817 F.2d 1176 (5th Cir. 1987). In both of
these cases, Louisiana law, not the maritime law, gov-
erned the substantive rights of the parties.
Moreover, in Nance, the court applied Louisiana Civil
Code article 2324 as amended in 1987. Even if Louisiana
law governed this issue, article 2324 as amended in 1987
could not be retroactively applied. Morrison v. J.A. Jones
Const. Co., Inc., 537 So.2d 360 (La. App. 4th Cir. 1988).
THE COURT DID NOT ERR IN ITS RULINGS ON
VARIOUS PRETRIAL AND EVIDENTIARY MATTERS.
The defense has objected to virtually every pretrial
and evidentiary ruling made by the trial court, as will be
discussed below.
Prior to taking up each issue, a discussion of the
course of this litigation is in order.
Suit was filed on October 21, 1984.
Between 1984 and 1989, the plaintiff conducted dis-
covery.
Plaintiff filed the first motion to set for trial on
December 30, 1987, and the trial was set for November 9,
1988. On June 30, 1988, however, Ensidesa filed a motion
to continue trial. Trial was later set for April 17, 1989, as a
special first fixing.
" - —- | ied
75a
On Thursday, March 30, 1989, 18 days before trial,
Ensidesa informed plaintiff for the first time that it had
retained a new liability expert and of appointments uni- .
laterally made for Jerry Young to undergo independent
medical examinations one week prior to trial. On March
31, 1987, plaintiff filed a motion to strike the testimony of
the new expert and to cancel the independent medical
examinations. On April 3, 1989, at the pretrial conference,
plaintiff’s motion was granted. On April 5, 1989, Ensidesa
sought supervisory writs with this court, which were
denied.
On April 14, 1989, Ensidesa filed a motion to con-
tinue the trial, alleging that it had uncovered new evi-
dence that Jerry Young had been shot in a gun fight. The
plaintiff responded immediately and the motion was
denied.
5. THE TRIAL COURT PROPERLY DENIED
ENSIDESA’S MOTION TO CONTINUE THE
TRIAL.
On April 14, 1989, (three days before this trial was
scheduled to begin) Ensidesa filed a motion to continue,
alleging that it had just uncovered “new evidence” that
the plaintiff had suffered gunshot wounds and that this
required additional discovery.
Article 1601 of Louisiana Code of Civil Procedure
provides that “a continuance may be granted in any case
if there is good ground therefor.” The decision to grant or
deny a continuance on this basis rests within the sound
discretion of the trial court and will rarely be interfered
76a
with by the court of appeal. Armstrong v. State Farm Fire
and Casualty Co., 423 So.2d 79, 82 (La. App. 1st Cir. 1982).
Article 1602 of Louisiana Code of Civil Procedure
provides that: “A continuance shall be granted if at the
time a case is to be tried, the party applying for a continu-
ance shows that he has been unable, with the exercise of
due diligence, to obtain evidence material to his
case...” Under this article, the “party moving for a
continuance has the burden of proving that his motion
falls within these peremptory grounds.” Collier v. Wil-
liams-McWilliams Co., Inc., 459 So.2d 719, 722 (La. App.
4th Cir. 1984).
In this case, the trial court properly denied the defen-
dant’s motion for a continuance because the alleged “new
evidence” had, in fact, been known to the defendants for
over two years.
In 1987 Dr. Monroe Laborde, the orthopedist hired by
Ensidesa to evaluate Jerry Young, wrote Ensidesa’s coun-
sel a report informing him of the gunshot wound.
(Record, Vol. VIL, pp. 31-33.) Subsequently, in September
1988, Dr. Rene Culver, the psychiatrist Cooper hired to do
an independent evaluation of Jerry Young, wrote
Ensidesa’s counsel an extensive report that discussed the
gunshot incident and the subsequent surgery. (Record,
Vol. VI, p. 212.)
Since the defendants had, in fact, obtained evidence
with respect to this gunshot wound far in advance of the
trial, we respectfully suggest that the trial court correctly
denied their motion to continue on this basis.
77a
6. THE TRIAL COURT DID NOT ABUSE ITS DIS-
CRETION BY EXCLUDING ENSIDESA’S LIA-
BILITY EXPERT AND CANCELING THE
APRIL 1989 INDEPENDENT MEDICAL EXAM-
INATIONS.
On March 30, 1989, 18 days before the scheduled
trial, Ensidesa first informed plaintiff that it had retained
a new expert, Peter Duffy, and that it had unilaterally
made appointments for Mr. Young to be seen by two
physicians, Dr. Robert Applebaum and Dr. Monroe
Laborde just one week before trial.
Plaintiff moved to exclude the testimony of Mr. Duffy
and to cancel the scheduled examinations. Finding that
these things came too late, the trial court granted the
plaintiff's motion, and Your Honors denied the defen-
dants’ writ application.
There is no reason for a different decision to be
reached now.
The defendants had previously retained, and the
plaintiff had deposed, two liability experts, Mr. Henry
Feste and A. F. Frazier, both marine surveyors who had
actually observed the off-loading of the M/V LORENA.
There was no reason these witnesses could not have been
called by the defendant.
Moreover, the defendants were not prejudiced by the
exclusion of Mr. Duffy because the jury heard substan-
tially the same evidence through various other witnesses.
(Casimo Gonzalez Ayesta, deposition introduced at trial,
pp- 5, 9, 17; Serafin Garcia, Vol. V, pp. 351, 353, 365;
Florentino Quiroz, Vol. V, pp. 407, 416.) Also, see Dengle v.
78a
Hibernia National Bank, 539 So.2d 947, 952 (La. App. 4th
Cir. 1989); Falgoust v. Richardson Industries, Inc., 552 So.2d
1348, 1355-56 (La. App. 5th Cir. 1989).
With respect to the last-minute medical examinations,
the defendants argued that the plaintiff's treating physi-
cian, Dr. Watermeier, had only recently made any men-
tion of Mr. Young’s carpal tunnel syndrome and that they
had to respond to this testimony. But, in fact, Dr. Water-
meier had testified concerning the plaintiff's carpal tun-
nel syndrome in his deposition, which was taken by the
defendant more than a year earlier, on November 10,
1987. Under these circumstances, we respectfully suggest
that the trial court correctly decided these matters and
did net abuse its discretion.
7. THE COURT DID NOT ERR IN PERMITTING THE
TESTIMONY OF ALBERT ROSS, JOHNNY POR-
TER, DOUGLAS LEMOTT AND SAM DOUGLAS
REGARDING THE SAFETY OF THE STOW.
The defendants want it both ways. While they object
to the testimony by an off-loading surveyor and certain
off-loading longshoremen with regard to the safety of the
stow, they simultaneously rely upon the testimony of the
loading surveyor, loading longshoremen, and another off-
loading longshoreman on the same issue. (Charlie Otkins,
Vol. VI, pp. 172-189; Deposition, Avesta; Florentino
Quiroz, Vol. V, pp. 406-427; Serafin Garcia, Vol. V, pp.
350-391.) Defendants simultaneously proffer as an expert
an individual who has never worked at the Port of New
Orleans, has little experience loading steel beams, no
experience off-loading steel beams and who relied for his
79a
opinion upon ten photographs and an incomplete sub-
mission of depositions provided seven years after the
incident, one month before trial. (Duffy deposition, pp.
28-31, 32, 33-34, 49-52.) Captain Ross, on the other hand,
had substantial experience both loading and unloading
steel beams. (Ross, Vol. V, p. 391.) Porter, Lemott and
Douglas, likewise relied upon their own experience for
their testimony (Lemott, Vol. IV, pp. 33-37, 39, 44-45;
Porter, Vol IV, pp. 259-260, 264, 267, 283-288; Douglas,
Vol. V, pp. 318-321.)
Qualification of experts is within the discretion of the
trial judge and will not be reversed absent manifest error.
Trapani v. State Farm Mutual Automobile Insurance Com-
pany, 524 So.2d 226, 230 (La. App. 5th Cir. 1988). A
witness may be qualified as an expert based upon experi-
ence as well as knowledge, skill, training or education
and may, as here, testify to an ultimate issue to be
decided by the trier of fact. (La. C. Evid. arts. 702, 704;
Belk v. Montgomery Ward and Company, Inc., 501 So.2d
1008, 1012 (La. App. 2d Cir. 1987); Roper ex rel Roper ov.
Gelsomino, 507 So.2d 868, 871 (La. App. 5th Cir. 1987). A
witness, although not testifying as an expert, may give
opinions that are rationally based on his perception ana
are helpful to the determination of a fact in issue. La.
Code of Evid. art. 701.
Capt. Ross was abundantly qualified by virtue of his
education, training, and experience to testify as an expert
witness on the matters involved in this trial.
Capt. Ross graduated from nautical college in 1949
and then worked on ocean-going cargo vessels for the
next 15 or 16 years in various capacities, including third
80a
mate, second mate, chief officer and commanding officer.
Then, in 1972, he began work as a port captain for Atlan-
tic Shipping, a charterer of vessels. As port captain, it was
Capt. Ross's responsibility to supervise the loading and
off-loading of cargo from vessels, including steel cargo.
He did this for five years until 1977, when he formed his
own company and began working as a consulting marine
surveyor.
He had been qualified in the federal courts as an
expert in marine surveying and had testified with respect
to safety considerations in regard to the handling and
loading and off-loading of cargo.
It was clearly within the trial court’s discretion to
accept Capt. Ross as an expert in the area of marine
surveyor and as an expert in safety with regard to steve-
doring operations.
8. THE ECONOMIST’S TESTIMONY WAS PROP-
ERLY ALLOWED
Ensidesa complains that the trial court failed to strike
the testimony of the plaintiff's economist, Dr. Philip
Jeffress.
Dr. Jeffress calculated past lost wages of $141,365 and
discounted future lost wages of $189,732, totalling
$331,097. He based his calculations of both past and
future lost wages on an annual income of $25,000, taking
into consideration Mr. Young’s annualized earnings in
1982 and information concerning the continued earnings
of similarly placed longshoremen with similar experi-
ence. (Vol. VI, pp. 6, 9, 16, 23-26, 36-37, 45, 63-64; Jerry
\
8la
Young, Vol. V, pp. 196-197; Sam Douglas, Vol. V, p. 329;
Douglas Lemott, Vol. IV, pp. 66-68).
Past lost wages were calculated to date of trial. Since
the plaintiff had no opportunity to invest this money,
there was no reason whatever to discount this amount.
(Vol. VL, p. 6). Dr. Jeffress had assumed a work-life expec-
tancy of 10.1 years based upon the Department of Labor
work-life expectancy tables and a 2'/2 percent below-
market discount rate. (Vol. VI, pp. 11-14.)
Dr. Jeffress also testified that, if non wage benefits
were not included in Mr. Young’s W2 statements, he
suffered an additional $62,381 in past losses and $91,743
as the discounted value of his future losses. (Vol. VI, pp.
4, 15, 50-53.)
Mr. Winn Niemond, a representative of the New
Orleans Steamship Association, testified that Mr. Young
would not receive credit for health, welfare and pension
benefits after November, 1990. So there was no “double-
dipping” on the calculation of Mr. Young’s loss of future
fringe benefits including pension benefits. (Vol. VI, pp.
77-79.)
Dr. Jeffress was fully cross-examined with respect to
his fringe-benefit calculations, the “down turn” in the
economy and all the other assumptions in his computa-
tions. There was no reason whatever for the court to have
stricken his testimony.
82a
9. THE DEFENDANTS WERE NOT PREJUDICED BY
BELATED KNOWLEDGE OF PLAINTIFF’S MEDI-
CAL HISTORY AND 1987 AUTOMOBILE ACCI-
DENT.
The defendants complain that they obtained new
medical information just before trial and were prejudiced
by not having it earlier. But since the defendants were not
diligent in their quest for evidence of Jerry Young’s medi-
cal history and extraneous casualties, they cannot now
complain of the tardiness of their receipt of this informa-
tion. Heaton v. Gulf International Marine, Inc., 536 So.2d
622, 626 (La. App. Ist Cir. 1988); Burgess v. City of Baton
Rouge, 477 So.2d 143, 145-46 (La. App. Ist Cir. 1985);
Sather v. White, 388 So.2d 402, 403 (La. App. 1st Cir. 1980);
Uihler v. Evangeline Riding Club, 525 So.2d 550, 551-52 (La.
App. 3d Cir. 1988); Webb v. Insurance Company of North
America, 396 So.2d 508, 512 (La. App. 3d Cir. 1981).
The defendants never requested an updated deposi-
tion of either Jerry Young or Dr. Watermeier, and first
subpoenaed medical records that were not in plaintiff’s
possession one week before trial.
Furthermore, defendants were not prejudiced
because they extensively questioned the plaintiff and var-
ious other witnesses regarding Jerry Young’s medical
condition from 1968 forward, his gunshot wound and his
1987 automobile accident. (Culver, Vol. VI, pp. 212-214,
218-220, 225-228; Laborde, Vol. VIL, pp. 19-23, 30, 32; Jerry
Young, Vol. V, pp. 282-288, 307; Watermeier, Vol. V, pp.
41-45, 50, 57, 61, 65, 68, 79; Newman, Vol. V, pp. 141-144,
146, 151-153, 159, 167-168, 172, 175, 181-182.)
83a
The bottom line is that all of this was fully aired
before the jury.
10. JERRY YOUNG’S CONVICTIONS WERE
PROPERLY EXCLUDED.
Ensidesa complains that it was not permitted to
cross-examine the plaintiff with respect to certain crimi-
nal convictions. Mr. Young pleaded guilty to possession
of marijuana pursuant to Louisiana Revised Statute
40:983; therefore, this plea is clearly inadmissible. His
conviction for illegal possession of a weapon was a mis-
demeanor punishabie by n
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