Petition for Writ of Certiorari — Boat Niagara Falls, Inc. v. Joia

—— ‘)

y a7

ar od YP 13 oon

BL

No. - . OCT 30 1987

tie

)PPOSEPH F. SPANIOL, JR.

In the | “ei

Supreme Court of the United States.

OCTOBER TERM, 1987

BOAT NIAGARA FALLS, INC.,

PETITIONER,

Vv.

FRANCISCO JOIA AaNnp

JO-JA SERVICE CORP.,

RESPONDENTS.

Petition for a Writ of Certiorari to the

United States Court of Appeals for

the First Circuit.

THOMAS E. CLINTON

Counsel of Record

SETH S. HOLBROOK

CLINTON AND MuzykKaA, P.C.

One State Street

Boston, Massachusetts 02109

(617) 723-9165

Attorneys for Petitioner

October 30, 1987

BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS

7 ane, An) i i

7 = _

x ae) ai oo

i - | ns

; .

ae _ oo ee eT

Se 1 ae aa

a

_ a ori a

sy > 7

Ay

= = ¥ a a S

= - ne

40

7 ; a ; 7 . | | |

. ae s ee Prey tee Pe Oe ne a a a

:

Question Presented.

The jury at the District Court trial assessed comparative

fault in this seaman’s personal injury action as follows:

The plaintiff — 5%

The co-defendant vessel ee

owner/employee — 30%

An intervening joint tortfeasor

co-defendant — 65%

The trial court entered judgment on the principle of joint

and several liability vitiating the comparative jury finding.

The question presented is:

Whether the application of the Massachusetts’ common law

principle of joint and several liability affirmed by the First

Circuit in an action commenced pursuant to the Jones Act (46

U.S.C. § 688) and the General Maritime Law conflicts with

the reason and principle of United States v. Reliable Transfer

Co., 421 U.S. 397 (1975) and creates a conflict with the

principle of comparative negligence as applied by the Fifth,

Eighth, and Eleventh Circuits.

List of All Parties.

All parties to this action appear in the caption of this Petition.

There are no subsidiaries or affiliates.

ee TT ETT a

Vv

Table of Contents.

Questions presented

List of all parties

Table of authorities

Opinions below

Jurisdiction

Statute involved

Statement of the case

Existence of jurisdiction below

Reasons for granting the writ

I. The decision is in direct conflict with the reason

and principle of United States v. Reliable Trans-

fer Co—

II. The decision of the First Circuit is contrary to

the decisions of the Fifth and the Eleventh Cir-

cuits ;

III. This issue is strongly in need of the Supreme

Court’s voice

Conclusion

9

10

Appendices follows p. 11

Table of Authorities Cited.

CASES.

Bartlett v. New Mexico Welding Supply, Inc., 646

P.2d 570 (N.M. App. 1982)

Edmonds v. Compagnie Generale Transatlantique, 443

U.S. 256 (1979)

vi

TABLE OF AUTHORITIES CITED.

Executive Jet Aviation Co. v. City of Cleveland, 409

U.S. 249 (1972)

Fitzgerald v. United States Lines, 374 U.S. 16 (1963)

Gormley v. Van Ingen, 736 F.2d 624 (11th Cir. 1983)

Griffith v. Wheeling-Pittsburgh Steel Corp., 610 F.2d

116, vacated and remanded, 451 U.S. 156, rein-

stated, 657 F.2d 25 (3d Cir. 1981)

Harrison v. Flota Mercante Grancolombiana, 577 F.2d

968 (Sth Cir. 1979)

Joia v. Jo-Ja Service Corp., 817 F.2d 908 (Ist Cir.

1987)

Jovovich v. Desco Marine Inc., 809 F.2d 1529 (Lith

Cir. 1987) 6,

Kermarec v. Compagnie Generale Transatlantique,

358 U.S. 625 (1959)

Laubach v. Morgan, 588 P.2d 1071 (Okla. 1978)

Leger v. Drilling Well Control, Inc., 592 F.2d 1246

(Sth Cir. 1987) 6, 8,

Pope and Talbot v. Hawn, 346 U.S. 406 (1953)

Smith and Kelly Co. v. S/S Concordia Tadj, 718 F.2d

1022 (11th Cir. 1983)

SNCO Barge Lines v. Sun Transportation Co., 775

F.2d 221 (8th Cir. 1985) .

The Lottawanna, 21 Wall. 558, 22 L.Ed. 654 (1874)

United States v. Reliable Transfer Co., 421 U.S. 397

(1975) 5. @. Fs

Walsh v. Zuisei Kaiun, 606 F.2d 259 (9th Cir. 1979)

Oo ©

oo

~

~

— ©

Vii

TABLE OF AUTHORITIES CITED.

STATUTES.

28 U.S.C. § 1254(1)

28 U.S.C. § 1333

46 U.S.C. § 183

46 U.S.C. § 688(a)

West's Ann. Cal. Civ. Code, Sections 1431 et seq.

MISCELLANEOUS.

Granelli, “The Attack on Joint and Several Liability,”

71 ABA Journal 61 (July, 1985)

14 Va. L. Rev. 677 (1927-28)

nA >} UM Nw

10

No. -.. 4

In the

Supreme Court of the United States.

OcTOBER TERM, 1987

BOAT NIAGARA FALLS, INC.,

PETITIONER,

FRANCISCO JOIA AND

JO-JA SERVICE CORP.,

RESPONDENTS.

Petition for a Writ of Certiorari to the

United States Court of Appeals for

the First Circuit.

Opinions Below.

The opinion of the United States District Court for the Dis-

trict of Massachusetts with regard to the application of joint

and several liability was not reported. The opinion of the

United States District Court for the District of Massachusetts

can be found in the Appendix (A. 27a). The opinion of the

United States Court of Appeals for the First Circuit is reported

at Joia v. Jo-Ja Service Corp., 817 F.2d 908 (1st Cir. 1987).

2

Jurisdiction.

The judgment of the Court of Appeals for the First Circuit

was entered on May 1, 1987 (A. 25a).

The judgment of the Court of Appeals for the First Circuit

denying the Petition for Rehearing and Suggestion of Rehearing

en banc was entered on June 17, 1987 (A. 26a). On September

10, 1987, the time for filing this petition was extended to

October 30, 1987.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1).

Statute Involved.

The Jones Act, 46 U.S.C.S. Appx., Section 688(a) provides:

Any seaman who shall suffer personal injury in the

course of his employment may, at his election main-

tain an action for damages at law, with the right of

trial by jury, and in such action all statutes of the

United States modifying or extending the common-

law right or remedy in cases of personal injury to

railway employees shall apply; and in case of the

death of any seaman as a result of any such personal

injury the personal representative of such seaman

may maintain an action for damages at law with the

right of trial by jury, and in such action all statutes

of the United States conferring or regulating the right

of action for death in the case of railway employees

shall be applicable. Jurisdiction in such actions shall

be under the Court of the district in which the defend-

ant employer resides or in which his principal office

is located.

3

Statement of the Case.

This is an action in tort for personal injury suffered by the

Plaintiff, Francisco Joia on August 1, 1983, on the fishing

vessel NIAGRA FALLS. The plaintiff’s accident occurred

when he slipped on hydraulic fluid which had overflowed onto

the engine room floor when a Jo-Ja employee mistakenly filled

the hydraulic tank with fresh water. Suit was commenced

against co-defendants Jo-Ja Service Corp. and Boat Niagara

Falls, Inc. on March 14, 1984 in the United States District

Court for the District of Massachusetts.

Trial was held before Mazzone, J., and a jury. The plaintiff

proceeded upon two counts against co-defendant, Boat Niagara

Falls, Inc. and one count against co-defendant Jo-Ja Service

Corp. Both Jo-Ja Service Corp. and Boat Niagara Falls, Inc.

filed crossclaims against each other for indemnification. At

the close of all the evidence, both defendants moved for di-

rected verdicts on the plaintiff ’s Complaint which were denied.

The case was presented to the jury against Boat Niagara

Falls, Inc. on counts alleging Jones Act negligence and-unsea-

worthiness. The case presented to the jury against the defend-

ant, Jo-Ja Service Corp. consisted of a single count alleging

negligence in creating a dangerous condition on the F/V NIAG-

ARA FALLS.

Instructions were submitted to the jury by the Court under

comparative fault principles of maritime law. Accordingly,

special questions were propounded to the jury to determine

the plaintiff ’s and defendants’ percentage of causal negligence.

The jury returned a verdict assessing liability for plaintiff ’s

accident as follows: : |

Plaintiff, Francisco Joia — 5%

Boat Niagara Falls, Inc. —- 30%

Jo-Ja Service Corp. — 65%

4

The jury assessed plaintiff ’s damages in the total amount of

$360,000.00 consisting of the following breakdown:

Pain and suffering $250,036.00

Past Wages | 44,000.00

Future Lost Earnings 65,964.00

Total Damages $360,000.00

The jury also awarded prejudgment interest at the rate of 10%.

Subsequent to the verdict both defendants filed Motions for

Judgment Notwithstanding the Verdict which were denied.

The defendant Jo-Ja Service Corp. presented evidence on its

affirmative defense of limitation of liability under 46 U.S.C.

§§ 183 et seq. After a hearing, the trial judge granted limitation

and permitted defendant Jo-Ja Service Corp. as operator of

the waterboat to limit its liability to a stipulated figure of

$50,000.00, the value of the water boat. Judgment was entered

against defendant Boat Niagara Falls, Inc. in the amount of

$292,000.00 and prejudgment interest from August 1, 1983

on past lost wages of $44,000.00 and the defendant Jo-Ja

Service Corp. in the amount of $50,000.00. Following the

trial court’s denial of its Motions for Judgment Notwithstanding

the Verdict and for a New Trial, defendant Boat Niagara Falls,

Inc. timely filed its Notice of Appeal.

On appeal, the United States Court of Appeals for the First

Circuit reversed the finding allowing limitation of liability as

to Jo-Ja Service Corp. It affirmed the District Court’s findings

as to the application of joint liability as to Boat Niagara Falls’

responsibility for the damages even though Boat Niagara Falls

was only 30 percent at fault for plaintiff ’s injuries.

The First Circuit panel based its affirmance of the application

of joint liability on two grounds: the application of Massachu-

5

setts common law and an interpretation of United States v.

Reliable Transfer Co., 421 U.S. 397 (1975). The Court

examined Massachusetts law despite the clear application of

general maritime law to the facts of the case where the incident

involved a traditional maritime activity on a vessel in navigable

waters. The panel’s interpretation of the Reliable Transfer case

clearly ignored the express language of that opinion by Stating,

“Furthermore, there was no indication [in Reliable Transfer]

that the comparative fault rule should apply to a situation other

than a maritime collision or stranding.” (A. 15a).

Jo-Ja Service Corp. has few assets of any value. Its protec-

tion and indemnity insurance coverage has a $50,000.00 limit.

Therefore, the petitioner Jo-Ja Service Corp. is faced with

having to pay far more than its proportionate share of the

damages as assessed by the jury. Specifically, Boat Niagara

Falls, Inc. is forced to pay all of the damages in excess of

$50,000.00 even though it was found to be only 30% at fault.

Existence of Jurisdiction Below.

The United States District Court for the District of Massa-

chusetts had jurisdiction over the toit claims of the respondent

pursuant to the Jones Act, 46 U.S.C.S. Appx. Section 688

and 28 U.S.C. § 1333. ‘

Reasons for Granting the Writ.

This Court should grant certiorari because the decision of

the First Circuit is in direct conflict with the reason and prin-

ciple of United States v. Reliable Transfer Co., 421 U.S. 397

(1975). The First Circuit decision also presents a principle as

to which the Courts of Appeal are in conflict. Leger v. Drilling

6

Well Control, Inc., 592 F.2d 1246 (Sth Cir. 1987), Jovovich

v. Desco Marine, Inc., 809 F.2d 1529 (11th Cir. 1987). The

application of joint and several liability in cases brought by

Jones Act seamen against two or more defendants would have

dramatic consequences for the maritime industry.

I. THE DECISION Is IN DIRECT CONFLICT WITH THE REASON

AND PRINCIPLE OF United States v. Reliable Transfer Co.

This Court in United States v. Reliable Transfer, 421 U.S.

397 (1975) abandoned the admiralty rule of divided damages,

whereby the amount of property damage in a maritime collision

case is equally divided whenever two or more parties involved

are found to be guilty of contributory fault regardless of the

relative degree of their fault. The Court replaced the divided

damages rule with a standard requiring liability for such dam-

age to be allocated among the parties proportionately to the

comparative degree of their fault. 421 U.S. at 411. This Court

noted that “‘a proportional fault rule would simply bring recov-

ery for property damage in maritime collision cases into line

with the rule of admiralty law long since established by Con-

gress for personal injury cases.” Jd. at 409.

The First Circuit panel however, in its opinion of May 1,

1987, referring to Reliable Transfer, stated that “there was no

indication in that the comparative fault rule should apply to a

situation other than a maritime collision or stranding.” (A.

15a.) This is directly contrary to the express language of the

Reliable Transfer opinion.

The Reliable Transfer Court even noted that “in our own

admiralty law a rule of comparative negligence has !ong been

applied with no untoward difficulties in personal injury actions.”

7

421 U.S. at 407, citing Pope and Talbot v. Hawn, 346 U.S.

406 (1953). Therefore, since the First Circuit’s rationale for

the application of joint and several liability was based on an

erroneous reading of Reliable Transfer, the writ should be

granted.

The panel’s decision cited Massachusetts common law in

support of its affirmance of the application of the doctrine of

joint and several liability. However, it is clear that the panel

should not have looked to Massachusetts common law as the

alleged act of negligence occurred on the navigable waters of

the United States. The plaintiff pleaded in his Complaint that

his accident resulted from a traditional maritime activity and

stated that the action was brought pursuant to the Jones Act

and the General Maritime Law. The action therefore, is clearly

within the scope of admiralty jurisdiction. Executive Jet Avia-

tion Co. v. City of Cleveland, 409 U.S. 249 (1972). Under

the Supremacy Clause, the federal maritime law rather than

the state law must be applied. The Lottawanna, 21 Wall. 558,

22 L.Ed. 654 (1874); Kermarec v. Compagnie Generale Trans-

atlantique, 358 U.S. 625 (1959).

The comparative fault rule has been adopted in maritime

personal injury actions and recognized by various circuits in

maritime personal injury cases. Harrison v. Flota Mercante

Grancolombiana, 577 F.2d 968 (Sth Cir. 1979); Griffith v.

Wheeling-Pittsburgh Steel Corp., 610 F.2d 116, vacated and

remanded, 451 U.S. 156, reinstated, 657 F.2d 25 (3d Cir.

1981); Walsh v. Zuisei Kaiun, 606 F.2d 259 (9th Cir. 1979);

Smith and Kelly Company v. S/S Concordia Tadj, 718 F.2d

1022 (11th Cir. 1983).

The doctrine of joint and several liability is inimical to the

application of a porportionate fault rule. Bartlett v. New Mexico

Welding Supply Inc., 646 P.2d 570, 586 (N.M. App. 1982).

It is important to underscore that the doctrine of joint and

several liability developed under the common law system of

8

contributory negligence where a plaintiff who was guilty of

the slightest negligence was barred from recovery. The law

balanced this possible inequity by allowing a plaintiff who

was found to be legally pure because he was not even siightly

negligent to collect his entire judgment from any defendant

who was guilty of even slight negligence. Laubach v. Morgan,

588 P.2d 1071 (Okla. 1978), 14 Va. L. Rev. 677 (1927-28).

Now that admiralty courts are able to determine degrees of fault,

and a plaintiff can recover regardless of his own degree of fault,

the doctrine of joint and several liability is no longer viable.

The First Circuit correctly noted that the decision of Ed-

monds v. Compagnie Generale Transatlantique, 443 U.S. 256

(1979) is not controlling in the instant case. The holding of

that decision is distinguished because of the unique remedial

purpose of the Longshoreman’s and Harbor Worker’s Compen-

sation Act and the “delicate balance between the statute and

judge made law.” /d. at 273. There is no such statute involved

in the instant case.

II. THE DECISION OF THE First Circuit Is CONTRARY

TO THE DECISIONS OF THE FIFTH AND

THE ELEVENTH CIRCUITS.

If the First Circuit opinion of May 1, 1987 is allowed to

stand, this holding will be in direct conflict to that of the Fifth

Circuit and the Eleventh Circuit. In Leger v. Drilling Well

Control, Inc., 592 F.2d 1246 (Sth Cir. 1979) the Fifth Circuit

explicitly adopted the rationale of Reliable Transfer in the

application of comparative fault principles where one defendant

has settled before trial. The Leger court extensively discussed

the principles of Reliable Transfer and specifically held that

a defendant should not pay more than its allocated share of

liability. “The reasoning of Reliable Transfer loses none of its

9

cogency in the context of a non-collision personal injury case.”

Id. at 1251. This is directly opposite to the First Circuit’s

reasoning in the instant case.

The Eijeventh Circuit has recently held in Jovovich v. Desco

Marine Inc., 809 F.2d 1529 (11th Cir. 1987) that in maritime

cases, damages are to be apportioned according to fault. In

Jovovich, the issue was whether a settling defendant in a per-

sonal injury action could seek indemnity from non-setting de-

fendants where the settlement was greater than its proportionate

share of liability. The court explicitly noted that in the Eleventh

Circuit the guidelines of Leger apply “to all theories of maritime

liability apportionment including indemnity and contribution.”

Id. at 1532. See, Germley v. Van Ingen, 736 F.2d 624 (11th

Cir. 1983).

Therefore, the First Circuit’s opinion of May 1, 1987 is

directly contrary to that of the Fifth and Eleventh Circuits.

See, SNCO Barge Lines v. Sun Transportation Co., 775 F.2d

221 (8th Cir. 1985). This opinion creates a conflict among the

circuits and is inimical to the uniformity of maritime law which

is of such vital national importance.

III. THis Issue Is STRONGLY IN NEED OF THE

SUPREME COuRT’S VOICE.

The First Circuit opinion also states that the question of the

viability of doctrine of joint and several liability is better left

to the legislature. However, as this Court has stated, “Congress

has largely left to this Court the responsibility for fashioning

the controlling rules of admiralty law.” Fitzgerald v. United

States Lines, 374 U.S. 16, 20 (1963), quoted in Reliable Trans-

fer, 421 U.S. at 409.

If this decision is allowed to stand, a defendant in a maritime

action will be responsible for all of a plaintiff ’s damages even

10

though it was only at fault in a small degree. This will have

the practical effect of imposing a heavy financial burden on

an already troubled industry.

Many states have abolished joint and several liability or

severely modified the doctrine. Granelli, “The Attack on Joint

and Several Liability,” 71 ABA Journal 61 (July, 1985). New

_. Hampshire, Vermont, Ohio, Kansas and New Mexico have

abolished joint and several liability while Nevada, Texas, In-

diana, Louisiana, Oregon, Pennsylvania, lowa, Minnesota and

Oklahoma have placed limitations on its application. /d. at

62. California has recently enacted a statute which drastically

modifies joint liability. West’s Ann. Cal. Civ. Code, Sections

1431 et seq.

This subject is very much in need of the Supreme Court’s

voice. This Court should address this matter which will have

a large impact on the maritime field.

Conclusion.

The Petitioner prays that the Writ of Certiorari should prop-

erly be granted because the issue raised affects uniformity of

maritime law in an industry where federal statutory and general

maritime law control.

11

The impact of a return to state common law principles of

joint and several liability will place seamen personal injury

law in a state of confusion affecting all industries attempting

to seek uniformity for the protection of this class of individual.

Respectfully submitted,

THOMAS E. CLINTON

Counsel of Record

SETH S. HOLBROOK

CLINTON anpD MUZYKA, P.C.

One State Street

Boston, Massachusetts 02109

(617) 723-9165

Attorneys for Petitioner

October 30, 1987

Table of Contents.

Appendix A — Opinion of the United States Court of

Appeals for the First Circuit dated May |, 1987

Appendix B — Judgment of the United States Court of

Appeals for the First Circuit dated May 1, 1987

Appendix C — Order of the United States Court of

Appeals for the First Circuit dated June 17, 1987

Appendix D — Memorandum and Order on Judgment

of the United States District Court for the District

of Massachusetts dated August 30, 1985

Appendix E — Judgment in a Civil Case of the United

States District Court of the District of Massachusetts

dated September 16, 1985

la

25a

26a

27a

3la

la

Appendix A.

United States Court of Appeals

For the First Circuit

No. 85-1753

FRANCISCO JOIA,

Plaintiff, Appellee,

Vv.

JO-JA SERVICE CORP.,

Defendant, Appellee.

BOAT NIAGARA FALLS, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

{[Hon. A. David Mazzone, U.S. District Judge]

Before

Campbell, Chief Judge,

Torruella, Circuit Judge,

and Pieras,* District Judge.

Thomas E. Clinton with whom Clinton & Muzyka, P.C.

was on brief for appellant.

Thomas J. Hunt with whom Law Offices of Thomas J. Hunt

was on brief for Francisco Joia.

Richard B. Kydd with whom Michael F. Kuppens and Knee-

land, Kydd & Handy were on brief for Jo-Ja Service Corporation.

May 1, 1987

* Of the District of Puerto Rico, sitting by designation.

2a

PIERAS, District Judge. This is a seamen’s suit for personal

injuries against the employer and a water boat who had a

service contract with the employer. Plaintiff, Francisco Joia

(hereinafter “Joia’”) brought two counts against his employer,

Boat Niagara Falls, Inc. (hereinafter “Niagara’’), the first under

the Jones Act, 46 U.S.C. § 688 et seqg., and the second under

the general maritime theory of unseaworthiness. Joia brought

one count of common law negligence, a state law pendent

claim, against co-defendant Jo-Ja Service Corporation,' the

owner of the water boat, (hereinater “Jo-Ja’’). Both co-defend-

ants filed cross claims for contractual indemnity. The case was

tried to a jury on plaintiff's counts, and it returned a verdict

for plaintiff, finding Jo-Ja 65% negligent, Niagara 30% negli-

gent, and plaintiff 5% negligent. The jury awarded plaintiff

damages in the amount of $360,000.00, allocating $44,000.00

for past wages, $65,964.00 for lost future earnings, and

$250,036.00 for pain and suffering. It also awarded prejudg-

ment interest at the rate of 10%.

At the close of plaintiff's case, Niagara moved for a directed

verdict, which was denied. Both codefendants filed motions

for judgment notwithstanding the verdict, which were also

denied. The district court heard Jo-Ja’s motion for limitation

of liability, and by memorandum and order of judgment the

court limited Jo-Ja’s liability to the stipulated value of its

vessel, which was $50,000.00. It entered judgment for plaintiff

in the amount of $342,000.00, $50,000.00 against Jo-Ja, and

$292,000.00 against Niagara. The court allowed prejudgment

interest on the $44,000.00 past lost wages from August 1,

1983, onward. The assigned errors we examine on appeal

relate to the denials of the directed verdict and judgment n.o.v.,

the limitation of liability, joint and severai liability, excessive

damages, and the codefendant’s cross claims.

'The parties settled two counts relating to maintenance and cure, and a

stipulation of dismissal as to these counts was filed on May 29, 1985.

P y

3a

I. Factual Background

On August 1, 1983, Joia was the engineer aboard the F/V

NIAGARA FALLS, an eighty-foot-long steel hull stern drag-

ger owned by Niagara. On that date it was docked in New

Bedford, Massachusetts, having just returned from a fishing

trip. At approximately 5:00 a.m., the water boat CHIPPY,

owned by Jo-Ja, pulled alongside the F/V NIAGARA FALLS

to fill its fresh water tank pursuant to a contract. The operator

of the CHIPPY, Michael Mahoney, had previously filled the

fresh water tank on the F/V NIAGARA FALLS approximately

six to twelve times with no difficulty finding the water recep-

tacle. However, on this date the operator mistakenly pumped

approximately 200 to 300 gallons of water into its hydraulic

oil fill. The hydraulic oil tank thus was over-filled causing a

_ mixture of hydraulic fluid and water to overflow inside the

boat. This fluid mix spilled onto the floor of the engine room.

After realizing his mistake, the operator turned off the water

and proceeded to fill the correct tank. Joia’s claim of unseawor-

thiness against his employer was primarily based upon the lack

of proper markings to identify the separate water and hydraulic

oil fills.

Mahoney called his supervisor, Clifford Davignon, at about

6:30 a.m. and informed him of the accident. Davignon told

the operator that he would take care of it. He arrived at the

vessel at about 6:45 a.m. to find it locked. He contacted his

employer, Thomas Thomas, at about 7:00 a.m., who instructed

Davignon to clean the mess.

Meanwhile, at 9:00 a.m., Joia arrived to start the engine of

the F/V NIAGARA FALLS. Joia walked partway down the

ladder to the engine room and stopped when he saw water and

oil all over the engine room floor. He watched from the ladder

for about 10 to 15 minutes to determine the cause of the mess

and then left the vessel to speak to the owners. He first spoke

to co-owner, Joe Beatriz, who was unaware of the problem.

4a

Joia told Beatriz that he needed a pump to pump the water

out. Beatriz gave Joia no instructions. Joia then spoke with

co-owner Tony Pimental, who told Joia to clean the engine

room. Joia responded that he could not clean the engine room

until he pumped out some of the water.

Joia, ordered by Joe Beatriz, purchased a pump at a supply

store and returned to the vessel at 11:40 a.m. He stepped down

the ladder and into the engine room with the pump, and saw

that the water level on the floor had not changed. Joia knew

from experience that the oil on the floor was hydraulic oil. As

he walked through the oil and water on the deck, he slipped

and fell. He sat on the deck for three or four minutes, got up

and took his tools, and installed the pump. Shortly after his

fall, a representative of Jo-Ja arrived on the vessel. Joia asked

the representative what happened, who responded that he did

not know. Joia then called his wife, who picked him up at the

vessel and took him to a doctor. He suffered back injuries,

and required the surgical removal of a hydrocele in his right

testicle, as well as a laminectomy to remove a herniated disc.

II. Directed Verdict and Motion for Judgment N.O.V.

Niagara contends that the district court erred in denying

both Niagara’s motion for directed verdict and the motion for

judgment notwithstanding the verdict. Its ground of support

was that Joia breached his duty to his employer, Niagara, to

maintain and keep clean the engine room on the F/V NIAGARA

FALLS. The standard of review of a refusal to grant a directed

verdict and a refusal to grant a judgment n.o.v. is the same.

De Mars v. Equitable Life Assur. Soc. of U.S., 610 F.2d 55,

57 (Ist Cir. 1979). A verdict should be granted only where

the evidence could lead reasonable men to but one conclusion,

without evaluating the credibility of the witnesses or consider-

ing the weight of the evidence. /d. at 57. The appeals court

must view the evidence most favorable to the nonmoving party

Sa

and give that party the benefit of all reasonable inference. /d.

Because the standard of review is the same, we consider both

motions together. With these axioms in mind, we now consider

the district court’s rulings.

Niagara argues the evidence shows that Joia is barred from

recovery because his injuries resulted from a breach of his

contractual duty to his employer, that of maintaining and clean-

ing the engine room, citing Peymann v. Perini Corp., 507

F.2d 1318 (ist Cir. 1974), cert. denied, 421 U.S. 914, 95

S.Ct. 1572, 43 L.Ed.2d 780 (1975). In Peymann, the plaintiff

was an engineer on the defendant shipowner’s tug boat. While

conducting an engine overhaul, plaintiff attempted to hook a

chain fall overhead. In order to reach the hook, plaintiff was

required to stand upon something to increase his height. He

looked but could not find a ladder. Instead, he perched “like

a bird” on an iron pipe rail, of which he knew oil constantly

dripped on. He fell from his perch and was injured. The trial

court directed a verdict for the defendant. The appeals court

affirmed, stating that the jury could have found that it was

plaintiff's primary duty to maintain the engine room in a sea-

worthy condition, and that stepping on the rail without wiping

off the oil which was placed there by him, was his sole respon-

sibility. Peymann, 507 F.2d at 1323. Peymann is distinguish-

able from the case at bar. In Peymann, the plaintiff was respon-

sible for creating the condition which caused his injuries,

whereas here, a third party over whom Joia had no control

created the unseaworthy condition on the engine room deck

of F/V NIAGARA FALLS. Joia testified that the maintenance

of the engine room was his responsibility. Co-owner Pimental

directed him to clean the mess, saying: “If you said this is a

big old mess, you go clean it up.” Joia responded that he

needed to pump out some of the water in order to lower the

oil level, otherwise, additional water would cause the oil to

rise over the deck again. He then proceeded to install the

6a

pump in the engine room, where he fell and suffered his in-

juries.

Furthermore, had his employer not given him directions,

this might be a different case. Joia proceeded only under the

general directions of his employer, where in Peymann, the

plaintiff proceeded under his own directions. Indeed, under

these circumstances, it would have seemed futile for Joia to

have first attempted to clean the deck and then to pump the

water, and foolish for his employer to have so directed. We

cannot say that under Peymann, as a matter of law, Joia

breached his duty to maintain a clean engine room. Joia was

directed to clean this mess, understood his responsibility to

maintain the engine room, and proceeded to remedy the prob-

lem in a manner he saw fit. This evidence could not lead

reasonable men to one conclusion. It was for the jury to decide

whether Joia proceeded in a reasonable manner, and it did

decide, finding Joia 5% contributorily negligent.* We find that

the district court properly denied Niagara’s motions for directed

verdict and judment on Joia’s breach of duty to his employer.

III. Charge to the Jury

Niagara next argues that the district court committed preju-

dicial error in refusing to give its requested jury instructions

>This case is somewhat similar to Caddy v. Texaco, Inc., 363 Mass. 36,

292 N.E.2d 348 (1973). In Caddy, supra, a seamen was instructed to clean

up oil and do some other work, but was not told in what order to proceed.

The court held that his performing the other work first would only make him

contributorily negligent, and not bar him from recovery. In Peymann, this

court suggested that if the Caddy seaman had been instructed to clean the oil

first, but instead performed the other work first, he might not recover from

his injuries. 507 F.2d at 1323 n.2. Here Joia had to do two things, pump the

water and clean the deck, though he was not instructed in what order. Joia did

not disobey employer’s orders, but proceeded to clean by pumping water first.

While it may have been advisable, for instance, to place a plank over the deck,

rather than wade through the oil and water, his manner of walking could only

make him contributorily negligent. .

Ta =

regarding Joia’s duty to his employer. The requested instruc-

tions dealt with the rule of Peymann, that is, if the jury found

that the sole cause of Joia’s injuries was his breach of duty to

his employer, he is barred from recovery. That argument need

not detain us long, for we have previously determined that the

rule of Peymann is not applicable here.

While all parties are entitled to an adequate jury instruction

upon the controlling issues, the court need not employ the

precise language urged by any party. Computer Identics Corp.

v. Southern Pacific Co., 756 F.2d 200, 203-04 (1st Cir. 1985).

Moreover, if the district court’s instruction properly apprises

the jury of the applicable law, the failure to give the-exact

instruction requested does not prejudice the objecting party.

McKinnon v. Skil Corp., 638 F.2d 270, 274 (1st Cir. 1981).

Our review of the jury instructions given regarding the duty

issue shows that the district court adequately covered the ap-

plicable rules of law. In charging the jury, the district court

instructed that the defendants were entitled to “rely upon him

(Joia) to exercise reasonable care, knowledge and skill as an

experienced person or as an experienced engineer.” Moreover,

the district court instructed more than once that the jury was

to consider whether Joia’s injuries were caused, in whole or

in part, by his own negligence, and that the jury was to assign

a percentage of any negligence committed by Joia and the

defendants. The jury was instructed that it would assign a

percentage of fault of 1 to 100 to either of the parties and that

the total percentages must equal 100. Further, the jury was

provided special verdict forms, which contained the names of

the parties and a blank space after each for the assignment of

percentages of negligence. Had the jury assigned 100 percent

neligence to Joia, as it was told it could, a fortiori, Joia would

have been denied recovery.

8a

IV. Limitation of Liability and Joint and Several Liability

Both Niagara and Joia argue that the district court erred in

limiting Jo-Ja’s liability pursuant to 46 U.S.C. § 183. After

the jury verdict, and upon motion of Jo-Ja, the court limited

Jo-Ja’s liability to the stipulated value of the vessel, CHIPPY,

to be $50,000.00. The court then entered judgment against

Niagara for $292,000.00 and against Jo-Ja for $50,000.00,

for a total judgment of $342,000.00, stating that but for the

limiiation, judgment would be entered jointly and severally

against both defendants for $342,000.00. The plaintiff was to

bare the brunt of his 5% negligence, or, $18,000.00. Thus,

while the jury assessed 30% fault on Niagara, that court ad-

judged the defendant approximately 81% liable; on the other

hand, Jo-Ja, which was adjudged to have incurred 65% negli-

gence, must pay a maximum of only 19% of the judgment.

But for the limitation of liability, the parties would be jointly

and severally liable in the amount of $342,000.00 on the three

counts. The issue of whether the district court should or should

not have limited Jo-Ja’s liability presents a second, more com-

pelling issue. That is, whether the dollar value of the judgment

against Niagara should exceed its proportionate share of fault.

Niagara argues this court should adopt the proportionate fault

rule, and abolish joint and several liability in this context.

Because Niagara’s ultimate liability depends upon our resolu-

tion of the limitation of liability issue, we will first resolve

the issue of limitation of liability.

The Limitation of Liability Act of 1851, 46U.S.C. § 183(a),

provides that in the event of an accident “done, occasioned,

or incurred, without the privity or knowledge” of the vessel

owner, the liability of the owner shall not exceed the value of

the vessel. To determine the entitlement to limitation, the court

must find what acts of negligence caused the accident. Second,

the court must determine whether the vessel owner had knowl-

edge or privity of those acts, in order to grant or deny limita-

aul

9a

tion. Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (Sth Cir.

1976), reh’g denied, 532 F.2d 1375 (Sth Cir. 1976). In the

context of the corporate shipowner, as we have here, the privity

and knowledge scrutiny focuses not only on what the corporate

owner knows, but also on what the corporate owner should

have known. Tittle v. Aldacosta, 544 F.2d 752 (Sth Cir. 1977),

reh’g denied, 546 F.2d 906 (Sth Cir. 1977); Gilmore and

Black, The Law of Admiralty 886 (2d ed. 1975).

The district court found that Thomas, the owner of the water

boat CHIPPY, was unaware of the operator’s negligence in

pumping the water into the hydraulic oil tank, and that Thomas

was not on board the CHIPPY when the pumping occurred.

That analysis is not sufficient to determine the issue, for

An owner cannot close its eyes to what prudent inspection

would reveal. An owner must avail itself of whatever

means of knowledge are reasonably necessary to prevent

conditions likely to cause losses. “If lack of actual knowl-

edge were enough, imbecility, real or assumed, on the

part of owners would be at a premium.”

Waterman S.S. Co. v. Gay Cottons, 414 F.2d 724, 732 (9th

Cir. 1969), quoting The Argent, 1940 A.M.C. 508, 509

(S.D.N.Y. 1915).

Rather, the court must determine whether the shipowner

had knowledge of the “acts of negligence or conditions of

unseaworthiness.” Farrell, 530 F.2d at 10. Undoubtedly,

Thomas, as well as high managerial personnel, Clifford Davig-

non, the managing agent of the waterboat, knew of the pumping

accident well before Joia suffered his injuries. Mahoney called

Davignon and told him of the accident. Davignon contacted

Thomas at approximately 7:00 a.m. and told him of the acci-

dent. Thomas informed Davignon to clean up the mess the

“best way he could.” Davignon posted no warning signs, failed

10a

to inform Joia or others of the accident, and returned to the

engine deck some three hours later, after Joia had injured

himself.

This is not a case where the vessel is at sea and the owner

is unaware of emergencies, thus having to rely on his master.

Instead, the vessel was docked, and the owner, as well as

management, was within calling distance for any eventuality.

It was Thomas who gave the directions to make the vessel

seaworthy. Merely because Thomas did not watch the pumping

accident, does not prevent him from having privity. or knowl-

edge of the circumstances which made the vessel unseaworthy.

As the above facts clearly show, Thomas was aware of the

accident very shortly after it occurred. Because of this lack of

due diligence, the dangerous condition remained to the peril

of others, including Joia.

[W]here the circumstances are such that the owners or

managing agents have a duty to act to see that the vessel

is made seaworthy, a neglect or failure to take such action

will require denial of limitation. Mere instructions to sub-

ordinate employees will not suffice to give the owner the

benefit of the limitation act.

States §.S. Co. v. United States, 259 F.2d 458, 472 (9th Cir.

1957), cert. denied, 358 U.S. 933, 79 S.Ct. 316, 3 L.Ed.2d

305 (1959). The Supreme Court discussed the privity or knowl-

edge of a boat owner in an analogous situation in Spencer

Kellogg and Sons, Inc. v. Hicks, 285 U.S. 502, 52 S.Ct. 450,

76 L.Ed. 903 (1932). Spencer Kellogg operated a factory on

the New Jersey side of the Hudson River. It owned a launch

which it used to ferry employees to and from New York City

across the Hudson. The launch was not seaworthy when ice

lla

was in the river, and so the owner had instructed the manager

of the factory, Stover, to not allow the launch to be used when

ice was in the river. Stover so instructed the launch operator.

Despite this instruction, on a day when there was ice in the

river the launch was used, which resulted in an accident

wherein lives were lost. The owner of the launch, Spencer

Kellogg, sought to limit its liability, claiming it had no knowl-

edge or privity with the negligent acts of the launch operator.

The Supreme Court rejected this argument and found that the

launch owner could properly be charged with knowledge or

privity. The Court observed:

The argument is that as the boat was seaworthy when

there was no ice and instructions had been given to a

competent master not to run her through ice, the owner

did its full duty and cannot be held responsible as having

privity or knowledge of a violation by the master of these

explicit instructions. Cases such as La Brougogne, 210

U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973, which involved

the master’s failure to obey rules and instructions when

on the high seas and disaster attributable to such fault,

are cited. But there is a vast difference between the cases

relied on and the instant one. The launch was used for

ferriage over a distance of about a mile and a third. She

was known to be unseaworthy and unfit if there was ice

in the river. There is no analogy between such a situation

and that presented in the cited cases where the emergency

must be met by the master alone. In these there is no

opportunity of consultation or cooperation or of bringing

the proposed action of the master to the owner’s knowl-

edge. The latter must rely upon the master’s obeying rules

and using reasonable judgment. The conditions on the

moming in question could have been ascertained by

12a

Stover, if he had used reasonable diligence, and we think

the evidence is adequate to support the finding that the

negligence which caused the disaster was with his, and

therefore with the owner’s privity or knowledge.

Spencer Kellogg, 285 U.S. 511-12, 28 S.Ct. at 453. Cf. Napoli

v. [Transpacific Carriers Corp. and Universal Cargo Cariers,

Inc.| Hellenic Lines, Ltd., 536 F.2d 505 (2d Cir. 1976). Under

the circumstances of this case, Jo-Ja is held to have privity

and knowledge as a matter of law and is therefore not entitled

to limit its liability.

As noted above, Niagara contends that the judgment entered

against it should not exceed the proportionate degree of fault

assessed by the jury. The jury did not assess three separate

proportionate values of fault on each count. Rather, it placed

one set of fault values against the parties for all three counts.

Niagara argues that liability should be entered not jointly

and severally, but on the basis of responsibility. We understand

its concern. Had we ruled that Jo-Ja was entitled to limit its

liability, it would have faced a judgment of $292,000.00, an

amount substantiality greater than its proportionate share of

liability assessed by the jury, 30%, or $108,000.00. He argues,

therefore, that this court should abolish or limit joint and several

liability. His argument, however, must fail because the two

bodies -of law governing this case, maritime law and state

common law of negligence, both provide that the defendants

in this litigation are jointly and severally liable for the plaintiff's

losses.

a) Massachusetts Common Law

Under joint and several liability, the plaintiff is entitled to

collect only the amount of the judgment, although he may

recover any part or all of the judgment from one or more of

the tortfeasors. The effect of joint and several liability is that ~

13a

each defendant is liable for the entire amount of damages to

the plaintiff. Generally, the joint tortfeasor who pays more

than his pro rata share of the judgment has a right of contribu-

tion over against the other joint tortfeasors for the excess.

Under Massachusetts law, joint tortfeasors are jointly and

severally liable for a plaintiff's damages. Feneff v. Boston &

Maine R.R., 196 Mass. 575, 82 N.E. 705 (1907). “If two or

more wrongdoers negligently contribute to the personal injury

of another by their several acts, which operate concurrently

so that in effect the damages suffered are rendered inseparable,

they are jointly and severally liable.” Feneff, 196 Mass. at

581, 82 N.E. at 707. When two or more defendants are held

jointly and severally liable, the amount of the judgment is the

same against all joint tortfeasors. Delfino v. Torosian, 354

Mass. 395, 237 N.E.2d 694 (1968). Under Massachusetts

statutory law, a joint tortfeasor who pays more than his pro

rata share of the judgment has an action for contribution against

the other joint tortfeasors. Mass. Gen. L. ch. 231B. However,

proportionate share of liability is determined not upon the

relative degrees of fault, but by the number of joint tortfeasors

involved. MacLachlan v. Brotherhood Oil Corp., 10 Mass.

App. 811, 404 N.E.2d 1272 (1980).

b. The Law Under the Jones Act and General Maritime Law

Joia argues that under the Jones Act and the general maritime

law, joint tortfeasors are jointly and severally liable for a

seamen’s personal injuries, regardless of the defendants’ de-

grees of fault. Edmonds v. Compagnie Generale Transatlantic,

443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979); Cooper

Stevedoring Co. Inc. v. Fritz Kopke, Inc., 417 U.S. 106, 94

S.Ct. 2174, 40 L.Ed.2d 694 (1974). Niagara, on the other

hand; contends that admiralty law has long recognized a pro-

portionate fault rule, United States v. Reliable Transfer Co.,

421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975); Leger v.

l4a

Drilling Well Controi, Inc., 592 F.2d 1246 (Sth Cir. 1979),

or that, in the alternative, this court should recognize a pro-

portionate fault rule in maritime cases involving personal in-

juries to seamen. We examine these contentions in light of the

existing law.

In Reliable Transfer, the Supreme Court overruled the

mutual fault rule established in The Schooner Catharine v.

Dickinson, 58 U.S. (17 How.) 170, 15 L.E. 233 (1855), and

substituted a rule requiring that liability for damages be allo-

cated when possible in proportion to the relative fault of each

party. The mutual fault or equal contribution rule, which was

the law in admiralty collision cases for over a century prior,

required that property damage by equally divided whenever

two or more parties were at fault, regardless of the relative

degrees of fault.

In abolishing the rule, the Court noted that every major

maritime nation had since discarded it and replaced it with the

rule of comparative fault. Reliable Transfer, 421 U.S. at 397-

98. The divided damages rule rested on the assumption that

it provided “rough justice,” because a determination of fault

was difficult to measure. The Court stated that the rule was

no longer viable in those instances where a determination of

fault could be made in a particular collision, but that there are

occasions when degrees of fault cannot be calculated. A com-

parative negligence rule, moreover, would induce vessel own-

ers to be more careful and deter them from harmful conduct

that would result in greater liability. The Court’s holding was

clear:

We hold that when two or more parties have contributed

by their fault to cause property damage in a maritime

collision or stranding, liability for such damage is to be

allocated among the parties proportionately to the com-

parative degree of their fault, and that liability for such

15a

damages is to be allocated equally only when the parties

are equally at fault or when it is not possible fairly to

measure the comparative degree of their fault.

Reliable Transfer, 421 U.S. at 411. The Court’s holding was

limited to collision cases involving property damage. Further-

more, there was no indication that the comparative fault rule

should apply to a situation other than a maritime collision or

stranding.

In Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (Sth

Cir. 1979), the Fifth Circuit extended the proportionate fault

rule of Reliable Transfer to a noncollision personal injury case

involving a seaman, stating that “[t]he reasoning of Reliable

Transfer loses none of its cogeny in the context of a non-col-

lision personal injury case.” 592 F.2d at 1249. In Leger, an

injured seaman brought suit against the defendants, under the

Jones Act and under general maritime law. After two trials,

the jury assigned comparative fault percentages against the

parties, and awarded the seaman damages for his personal

injuries. The award of damages came after the plaintiff settled

with two of the three defendants. In fact, the two defendants

settled for damages higher than their proportionate fault as

assessed by the jury. As it then existed, if the non-settling

defendant paid damages proportionate to his fault, the plaintiff

would recove an amount higher than the jury award. He there-

fore sought on appeal to reduce his damages to an amount

lower than his comparative fault. He was seeking in effect, a

dollar-for-dollar credit of the amounts the plaintiff received in

settlement. The Fifth Circuit rejected this argument, and held

that the nonsettling defendant must pay his portion of the total

damages of the jury award proportionate to his percentage of

negligence. Leger, $92 F.2d at 1248-50. In so holding, the

court based its decision on Reliable Transfer and Cooper

Stevedoring Co. v. Kopke, 417 U.S. 106, 94 S.Ct. 2174, 40

l6a

L.Ed.2d 694 (1974), which allowed contribution in noncolli-

sion maritime cases, but left open the issue of division of

damages. Furthermore, the Leger court saw this approach as

encouraging settlements. Neither did the seaman enjoy a double

recovery. Instead, it considered the plaintiff to have received

a favorable settiement. We decline to take this approach for

the following reasons.

We believe that Edmonds v. Compagnie Generale Transat-

lantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979),

thought not controlling, states the admiralty rule applicable

here. The plaintiff, a longshoreman, while employed by a

stevedore, was injured while working on a vessel. He recovered

statutory benefits from his employer under the Longshoreman’s

and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et

seq. (“Act”). He later brought a direct action in negligence

against the shipowner pursuant to § 905(b) of the Act. The

jury found the shipowner 20% negligent, the stevedore-em-

ployer 70% negligent, and the plaintiff 10% negligent. Upon

entering judgment, in accordance with maritime law, the dis-

trict court ruled that the shipowner was liable for all the dam-

ages not due to the plaintiff's own negligence. In other words,

though the shipowner was 20% negligent, it was liable for the

employer’s negligence for a total of 90% of Edmond’s dam-

ages. The Fourth Circuit reversed, holding that 1972 amend-

ments to the Act required the imposition of a proportionate

fault rule whereby the shipowner was liable only for the share

of damages assignable to its fault. The Supreme Court reversed

the appeals court, holding that the 1972 amendments did not

alter the traditional maritime rule thai, in a longshorerman’s

suit against a shipowner, while the award may be reduced by

the plaintiff's negligence, the shipowner is responsible to the

longshoreman for the remainder of the award, even if the

negligence of the stevedores contributed to the injury. Ed-

17a

monds, 443 U.S. at 272. The Court stated that Congress in-

tended the 1972 amendments to eliminate both the shipowner’s

warranty of seaworthiness to the longshoreman and the steve-

dore’s warranty of workmanlike service to the shipowner. Ed-

monds, 443 U.S. at 263. In dealing with the mixture of a

statutory and judge-made loss allocating mechanism, the Court

stated that this maritime rule applicable to a longshoreman’s

tort action is consonant with the common law rule.

This . . . rule is in accord with the common law, which

ailows an injured party to sue a tortfeasor for the full

amount of damages for an indivisible injury~that the

tortfeasor’s negligence was a substantial factor in causing,

even if the concurrent negligence of others contributed

to the incident.

443 U.S. at 261. Manifestly, while the narrow holding of

Edmonds does not govern a seaman’s action, the rule applied

there is the same as the rule applicable here.’

The Court recognized the inequitable burden in shipowner

must shoulder, but held a stronger distaste for the unfairness

a proportionate fault system would create against the longshore-

man in light of the remedial purpose of the Act. 443 U.S. at

271. The loss allocating mechanism employed in Edmonds

and the 1972 amendments are intended to compensate an in-

jured longshoreman as fully as possible for the damages suf-

fered.

We agree with the decision in Ebanks v. Great Lakes Dredge

& Dock Co., 688 F.2d 716 (11th Cir. 1982), cert. denied,

460 U.S. 1083, 103 S.Ct. 1774, 76 L.Ed.2d 346 (1983),

‘The Court cited the Restatement (Second) of Torts § 886 that “under trad-

itional tort law, a plaintiff obtaining a judgment against more than one corcur-

rent tortfeasor may satisfy it against any one of them.” /d. at 261 n.8.

18a

which held that in a maritime negligence action, it was error

for the trial court to submit to the jury special interrogatories

to determine the comparative degrees of fault between a defend-

ant and a non-party. Ebanks, 688 F.2d at 722. The court relied

on the Edmonds decision in holding that since the plaintiff

may receive against either of several joint tortfeasors, the com-

parative degrees of fault is irrelevant. /d. Furthermore, a paying

defendant has a right of contribution against a non-paying

entity that may be decided in a different proceeding. /d.

The joint and several loss allocating mechanism which serves

to provide an injured seaman his full judgment is consonant

with the policy behind the Jones Act, to provide protection to

seamen who are victims of negligence. Cosmopolitan Shipping

Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed.

1692 (1949); see also Bennet v. Perini Corp., 510 F.2d 114,

117 (1st Cir. 1975) (Jones Act is to be construed remedially).

The policy underlying the remedial nature of the Jones Act

and the general maritime law necessitates our adherences to

the joint and several rule. The rationale behind Reliable Trans-

fer, which involved property damages, and a seaman’s action,

which involves personal injury, are not the same. The compara-

tive fault rule of Reliable Transfer is designed to achieve a

fair assessment of damages against each party according to

their degrees fault and to deter harmful conduct of vessels.

That rationale loses its strength in a seaman’s tort action. If

comparative fault were the rule, an injured seaman might have

to bear damages higher than his degree of fault, for example

in a case where a tortfeasor is insolvent and/or he or another

tortfeasor has limited his liability according to the limitation

act. Assuming in this case that Jo-Ja were entitled to limited

liability, it would be liable for $50,000.00 in damages, and

Niagara would be liable for $100,000.00 in damages. On a

$360,000.00 judgment, Joia would bear $202,000.00 in

damges, or 51% of the jury award, where he was only 5% at

fault.

19a

While the result we reach today may seem inequitable to a

defendant, including Niagara, ultimately, in a contribution

proceeding, it will be liable according to its degree of fault.

Contribution between joint tortfeasors in admiralty is according

to comparative fault. Maritime Overseas Corp. v. Northeast

Petroleum Indus., 706 F.2d 349, 355 (1st Cir. 1983). There-

fore, in this case if Niagara were to pay a disproportionate

share of the judgment, it could seek contribution against Jo-Ja,

and no inequities would result to either party. Admittedly,

assuming again that Jo-Ja successfully limited liability, under

the joint and several rule, Niagara would bear a larger, dispro-

portionate share of the damages. But the Supreme Court made

clear in Edmonds that the seamen should not suffer this in-

equity.

Under the Court of Appeal’s proportionate fault rule,

however, there will be many circumstances when- the

iongshoreman will not be able to recover in any way the

full amount of his damages determined in his suit against

the vessel. If, for example his damages are at least twice

the benefits paid or payable under the Act and the ship

is less than 50% at fault, the total of his statutory benefits

plus the reduced recovery from the ship will not equal

his total damages.

443 U.S. at 270. Moreover, the Court stated that in the

Longshoremen’s and Labor Worker’s Compensation Act, Con-

gress did not intend to place the burden of the inequity on the

Longshoreman, “whom the Act seeks to protect.” /d. at 270.

Likewise, we do not find that Congress in enacting the Jones

Act intended to place this similar burden on an injured seaman.

Niagara argues that this court should, in any event, follow

“the trend towards the adoption of comparative negligence.

While we decline this invitation, the comparative negligence

20a

system has its merits in a case where one tortfeasor incurs

minimal negligence, and the other tortfeasors are insolvent,

enjoy limited liability, or are otherwise protected by operation

of law, or in instances where the plaintiff incurs substantial

contributory negligence. However, the decision whether to

continue this trend is more properly before a legislature.

We hold that defendants Niagara and Jo-Ja are jointly and

severally liable to plaintiff in the amount of $342,000.00 and

that plaintiff bears the loss of $18,000.00, representing 5%

negligence assigned by the jury.

V. Jury Award for Damages for Pain and Suffering

Niagara contends that the jury award of $250,036.00 for

damages for pain and suffering is unsupported by the evidence

and is excessive, and the district court improperly denied its

motion for a remittitur or a new trial on damages. On appellate

review, a jury’s award will be set aside only when it is so

excessive “that the district court’s refusal to order a new trial

constitutes a manifest abuse of discretion.” Rivera v. Rederi

A/B Nordstjernan, 456 F.2d 970, 975 (1st Cir. 1972), cert.

denied, 409 U.S. 876, 93 S.Ct. 124, 34 L.Ed.2d 128 (1972).

The jury’s verdict must stand unless it is “grossly excessive”

as “shocking to the conscience.” LaForest v. Autoridad de las

Fuentes Fluviales de Puerto Rico, 536 F.2d 443, 447 (1st Cir.

1976). The reviewing court is constrained to view the evidence

in the light most favorable to the plaintiff. Betancourt v. J.C.

Penney Co. Inc., 554 F.2d 1206, 1207 (1st Cir. 1977). We

now turn to the evidence in the record.

In the August 1, 1983 fall, Joia injured both his back and

his right testicle; prier to the injury he had problems with an

enlarged testicle and was treated by a chiropractor for back

problems although the extent of these prior conditions was not

clear. While the pain in his testicle disappeared within min-

Disses

2la

utes, after six days his testicle began to swell, and he consulted

a urologist. After finding blood in his bladder, the urologist

performed a cystourethrascopy on August 21, 1983. Joia tes-

tified that he was nervous about the scope being introduced

into his penis, and he suffered a burning sensation after the

operation. A different doctor operated on his groin in Sep-

tember of 1983. Joia testified that he was nervous about the

operation, and that he was worried about the effects of the

operation. In all, two operations were performed on his testicle,

both resulting in pain and anguish. It is entirely understandable

that a young, married man may have considerable anxiety and

mental distress over the possible consequences of surgery on

his reproductive organs.

Moreover, Joia suffered great pain in his back immediately

after the accident, and his wife had to heip him off the vessel.

He sought treatment from a chiropractor on the day of the

accident, who treated him for a period of one month; during

the time he experienced severe pain. He consulted another

chiropractor, during which time he was in greater pain than

before. He then consulted an orthopedist, who conducted an

EMG. Another doctor conducted a myelogram, which required

a one-week hospital stay, and during that stay he was placed

in traction. Between July 30, 1984 and August 8, 1984, he

was hospitalized for a laminectomy. This treating doctor, Dr.

Ciminello, testified to the pain Joia experienced during this

treatment.

In January 1985, Joia underwent a second myelogram for

incontinence associated with his back injury; he felt ashamed

for having wet his bed. He underwent a second cystoscopic

examination. Joia also testified that since January, 1985, he

has felt discomfort in his back and that his right foot is con-

stantly numb. Dr. Ciminello confirmed that scar tissue remain-

ing from the laminectomy might account for the discomfort

in his back.

22a

In substance, there was ample testimony that Joia experi-

enced bouts of pain and humiliation during the year and one-

half since the accident. Furthermore, there was evidence that

Joia can no longer participate in family activities, including

athletics and dancing.

Under our standard of review, we cannot say that, on the

evidence and testimony presented, the jury award for pain and

suffering was “grossly excessive,” “shocking to the consci-

ence,” nor can we say that the court’s refusal to order a new

trial was a “manifest abuse of discretion.” Concededly, while

the award is very high, the total net award was reduced by

the $18,000.00 attributed to the 5% negligence of Joia.

VI. Crossclaims

Niagara’s final contention is that the district court committed

reversible error in failing to instruct the jury regarding its

crossclaims against Jo-Ja for tort and contract indemnity. Under

a theory of tort indemnity, between joint tortfeasors the whole

loss may be shifted-to the more guilty of the tortfeasors. Araujo

v. Woods Hole, Martha's Vineyard, Nantucket Steamship Au-

thority, 693 F.2d 1, 3 (1st Cir. 1982). A contractual right to

indemnity may arise if there are “unique special factors dem-

onstrating that the would-be indemnitor bear the ultimate re-

sponsibility for the plaintiff's safety . . . or where there is a

generally recognized special relationship between the parties.”

Araujo, 693 F.2d at 2-3 (citations omitted).

The record shows that Niagara failed to make a timely ob-

jection to the court’s failure to give the instructions. Rule 51

States in pertinent part:

No party may assign as error the giving or failure to give

an instruction unless he objects thereto before the jury

retires to consider its verdict, stating distinctly the matter

to which he objects and the grounds of his objection.

23a

Opportunity shall be given to make the objection out of

the hearing of the jury.

Fed. R. Civ. P. 51. This Court has previously stated the

rationale behind the rule:

The object of the rule is to afford the trial judge an oppor-

tunity upon second thought, and before it is too late, to

correct any inadvertent or erroneous failure to charge.

The rule also serves to lessen the potential burden of

appellate courts by diminishing the number of rulings at

the trial which they may be called upon the review.

Marshall v. Nugent, 222 F.2d 604, 615 (ist Cir. 1955).

The record below reveals that after the second day of trial,

the trial court stated to counsel that “I think everything has to

go to the jury, which includes your two crossclaims.” In re-

sponse, Niagara submitted four questions regarding tort and

contract indemnity in the verdict forms. During jury instruc-

tions, the trial court explained that Niagara had its claims

against Jo-Ja, but did not specifically instruct the jury regarding

the crossclaims for tort and contract indemnity. After the trial

court finished reading the special verdict questions, it stated

in open court: “Now, let me ask counsel, before I excuse the

alternates, if they have anything to add?” Thereafter, at the

bench and out of the presence of the jury, counsel for Niagara

made on objection regarding the court’s refusal to read its

proposed instructions 9 through 16, which dealt with the

Peymann issue. Niagara made no objection regarding the omis-

sion of the crossclaims from the special verdict forms. The

jury then retired to deliberate.

Niagara objected to this omission three months after the jury

verdict, at the limitation of liability hearing on August 7, 1985.

24a

Manifestly, Niagara’s objection was not timely under Rule 51.

These are precisely the circumstances that Rule 51 addresses.

Marshall v. Nugent, supra. The trial court gave counsel ample

opportunity to object to omissions in the special verdict form,

and counsel for Niagara made none regarding this issue.

Moreover, it may not rely on statements by the trial court prior

to its conclusion of jury instructions as an excuse for its neglect.

See, e.g. DeHues v. Western Electric Co., 710 F.2d 1344 (8th

Cir. 1983).

As to tort indemnity, along with its procedural problem —

under Rule 51, Niagara’s active negligence precluded it from

recovering against Jo-Ja under that theory beyond its percen-

tage of negligence as found by the jury. “Where the party

seeking indemnification was itself guilty of acts or omissions

proximately causing the plaintiff's injury, tort indemnification

is inappropriate.” Arauso, 693 F.2d at 3. Niagara could not

have recovered under a theory of tort indemnity.

Affirmed in part, reversed in part.

25a

Appendix B.

Gnited States Court of Appeals

FOR THE FIRST CIRCUIT

No. 85-1753

FRANCISCO JOIA,

Plaintiff, Appellee,

Vv.

JO-JA SERVICE CORP.,

Defendant, Appellee.

BOAT NIAGARA FALLS, INC.,

Defendant, Appellant.

JUDGMENT

Entered: May 1, 1987

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and

was argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The judgment of the district

court is affirmed in part and reversed in part in accordance

with the opinion filed this day.

Appellee Joia’s cost shall be borne one half by Boat Niagara

Falls, Inc., and one half by appellee Jo-Ja Service Corp.

By the Court:

/s/Francis P. Scigliano

Clerk.

26a

Appendix C.

United States Court of Appeals

For the First Circuit

No. 85-1753

FRANCISCO JOIA,

Plaintiff, Appellee,

v. Rec. June 18, 1987

JO-JA SERVICE CORP.,

Defendant, Appellee.

BOAT NIAGARA FALLS, INC.,

Defendant, Appellant.

Before

CAMPBELL, Chief Judge,

COFFIN, BOWNES, BREYER, TORRUELLA, SELYA,

Circuit Judges, and PIERAS,* District Judge.

ORDER OF COURT

Entered: June 17, 1987

The panel of judges that rendered the decision in this case

having denied the petitions for rehearing submitted by appel-

lant, Boat Niagara Falls, Inc. and by the appellee Jo-Ja Service ~

Corp, and their suggestions for the holding of a rehearing en

banc having been carefully considered by the judges of the

| court in regular active service and a majority of said judges

not having voted to order that the appeal be heard or reheard

by the Court en banc,

It is ordered that both petitions for rehearing and the sugges-

tions for rehearing en banc be denied.

By the Court,

/s/Francis P. Scigiliano

Clerk

* Of the District of Puerto Rico, sitting by designation.

27a

Appendix D.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

FRANCISCO JOIA, Civil Action

Plaintiff 84-731-MA

Vs.

BOAT NIAGARA FALLS, INC.,

and JO-JA SERVICE CORP.,

Defendants

MEMORANDUM AND ORDER

ON JUDGMENT

Mazzone, D.J. August 36, 1985

This case, brought pursuant to the Jones Act, 46 U.S.C.

§ 688, and a pendent state law claim, is now before the Court

for a determination of the defense of limitation of liability and

for entry of judgment in accordance with this decision and the

jury verdict returned on May 14, 1985. This case was tried to

a jury, resulting in a verdict for the plaintiff. On the complaint

and cross-claim, the jury found that the plaintiff was 5% neg-

ligent, and the defendant Boat Niagara Falls, Inc. was 30%

negligent, and the defendant Jo-Ja Service Corp. was 65%

negligent. The jury further found the plaintiff's damages to be

$360,000 and it specifically allocated this amount as follows:

$44,090 for past wages; $65,964 for lost future earnings;

$250,036 for pain and suffering. The jury awarded prejudg-

ment interest at the rate of 10%. At a subsequent hearing, the

defendant presented its limitations of liability defensa,

Were it not for the deferise of limitation of the liability of

Jo-Ja Service Corp. , judgment would enter jointly and severally

against the defendants in the amount of three hundred forty two

28a

thousand dollars ($342,000) on Counts I, Il and V. See

Maritime Overseas Corp. v. Northeast Petroleum Industries,

Inc., 706 F.2d 349, 355 (ist Cir. 1983) (“Contribution between

joint tortfeasors in a maritime action for personal injuries is

proper where, as here, neither tortfeasor’s liability is limited

by statute” ) (emphasis added). See also Edmonds v. Compag-

nie Generale Transatlantique, 443 U.S. 256, 260 n.8 (1976).

Further, on the cross-claims of the defendants, the issues have-

ing been tried and decided by the jury, liability would have

been allocated as one hundred eight thousand dollars

($108,000) against the defendant Boat Niagara Falls, Inc., and

two hundred thirty four thousand dollars ($234,000) against

the defendant Jo-Ja Service Corp.

Prejudgment interest at the rate of 10% is allowed from

August 1, 1983 on the $44,000 past-tost wages component

only of the jury verdict. No interest is awarded for the other

components of the damage award. Pino v. Protection Maritime

Insurance Co., 490 F.Supp. 277, 280 (D.Mass. 1980).

Jo-Ja Service Corp. has filed a motion to limit its liability

pursuant to 46 U.S.C. § 183. Under that statute, a vessel

owner may limit his liability of the value of the vessel by

proving that he had no “privity or knowledge” of the cause of

the plaintiff's injuries. See generally Coryell v. Phipps, 317

U.S. 406 (1943). Where, as here, the defendant is a corpora-

tion, liability may be limited to the value of the vessel if the

defendant proves that its managing agents and officers were

without privity or knowledge as to the cause of the plaintiff's

injuries. /d. at 410-12. In this context, privity or knowledge

. . . iS a term of art complicity in the fault that caused the

accident . . .” Petition of United States Dredging Corp., 213

F.Supp. 780, 784 (E.D.N.Y. 1963).

In determmining whether the Jo-Ja Service Corp.’s liability

should be limited to the value of the vessel, I am bound by

the jury’s determination that its negligence contributed to Joia’s

injury. Murray v. New York Central Railroad Co., 287 F.2d

29a

152, 154 (2nd Cir. 1961), cert. denied, 366 U.S. 945 (1961).

See also In re Double D. Dredging Co., 467 F.2d 468, 469

(Sth Cir. 1972); Petition of Trawler Weymouth, Inc., 223

F.Supp. 161, 163 (D.Mass. 1961); Gilmore & Black, Law of

Admiralty, (2d ed. 1975) §§ 10-19, at 874.

The evidence clearly supports a conclusion that Jo-Ja’s em-

ployee, Michael Mahoney, the operator of the waterboat

CHIPPY, negligently filled the hydraulic oil tank instead of

the water tank, causing the overflow onto the engine room

deck where the plaintiff slipped and was injured.

The defendant is entitled to limit its liability to the value of

the vessel, therefore, if the preponderance of the evidence

establishes that no corporate officer or managing agent of the

Jo-Ja Service Corp. had privity or knowledge of the actions

of the vessel’s operator. Herve, it is the privity or knowledge

of Thomas L. Thomas, the owner of the CHIPPY, that is at

issue. I find that Thomas did not have privity or knowledge

of Michael Mahoney’s negligence in pumping water into the

hydraulic oil tank. The evidence showed that Thomas was not

on board the CHIPPY when the accident occurred, and it is

settled that the privity or knowledge of the captain of a vessel

about his own acts of negligence occurring at sea is not imputed

to the vessel’s owner.' See, e.g., Complaint of Bankers Trust

Co., 651 F.2d 160, 169 (2nd Cir. 1981); Agrico Chemical

Co., v. S/S Atlantic Forest, 620 F.2d 487, 489 (Sth Cir. 1980),

aff d, 459 F.Supp. 638, 648 (E.D.La. 1978); Petition of

Kinsman Transit Co., 338 F.2d 708, 715-16 (2nd Cir. 1964),

cert. denied sub nom., Continental Grain Co. v. City of Buf-

falo, 380 U.S. 944 (1965); McDonald v. The 202, 194 F.Supp.

'46 U.S.C. § 183(e) provides that the knowledge of privity of the vessel's

master “. . . at or prior to the commencement of the voyage . . .” shall be

imputed to the vessel owner. This section is not relevant here, as the cause of

the plaintiff's injuries was an action taken after the voyage commenced.

30a

383, 390 (S.D.Ala. 1961). Compare Continental Oil Co. v.

Bonanza Corp., 677 F.2d 455, 467-68 (Sth Cir. 1982).

On the evidence presented at trial and after further hearing

on August 7, 1985, I find that Thomas, the owner of the

CHIPPY, was not complicit in the fault that caused Joia’s

injuries. I therefore rule that the defendant, Jo-Ja Service

Corp., is entitled to limit its liability to the value of the vessel,

which the parties have stipulated is $50,000.

Accordingly, judgment will enter for the plaintiff, Francisco

Joia, in the amount of $342,000.00 against the defendant,

Jo-Ja Service Corporation, in the amount of $50,000.00 and

against the defendant, Boat Niagara Falls, Inc., in the amount

of $292,000.00 with prejudgment interest at the rate of 10%

per annum on $44,000.00 only, from August 1, 1983.

SO ORDERED.

/s/A. David Mazzone

United States District Judge

3la

Appendix E.

JUDGMENT IN A CIVIL CASE

Auited States District Court

District of Massachusetts

FRANCISCO JOIA,

Plaintiff

Vv. CiviL ACTION No. 84-0731-MA

BOAT NIAGARA FALLS, INC., ET AL

Defendants

Jury Verdict. This action came before the Court and a jury

with the judicial officer named above presiding. The issues

have been tried and the jury has rendered its verdict.

(} Decision by Court. This action came to trial to hearing be-

fore the Court with the judge (magistrate) named above pre-

siding. The issues have been tried or heard and a decision

has been rendered.

IT IS ORDERED AND ADJUDGED

in accordance with the jury verdict on May 14, 1985,

the stipulation of dismissal of Count III filed on May

29, 1985 and the Court’s memorandum and order

dated August 30, 1985, judgment for the plaintiff,

Francisco Joia, in the amount of $342,000.00,

against the defendant, Jo-Ja Services Corporation in

the amount of $50,000.00 and against the defendant,

Boat Niagara Falls, Inc., in the amount of

$292,000.00 with prejudgment interest at the rate of

32a

10% per annum from August 1, 1983 on $44,000.00

only in the amount of $9,338.75 for a total of

$301,338.75 against the defendant, Boat Niagara

Falls, Inc.

APPROVED:

/s/ _A. David Mazzone

United States District Judge

NOTE: The post judgment interest rate effective this date is

7.91%

CLERK DATE

GEORGE F. McGRATH Sept. 16, 1985

(By) DEpuTY CLERK

/s/ Helen M. Costello