Appendix — Maritime Overseas Corp. v. Hae Woo Youn

Supreme Court of the United States

OCTOBER TERM 1993

MARITIME OVERSEAS CORPORATION

AND ATLANTIA TANKER CORPORATION,

Petitioners,

VERSUS

HAE WOO YOUN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF LOUISIANA

APPENDIX

Gerard T. Gelpi

Counsel of Record

C. Gordon Starling, Jr.

G. Beauregard Gelpi

Gelpi, Sullivan, Carroll & Gibbens

430 Notre Dame Street

New Orleans, Louisiana 70130

Telephone: (504) 524-9714

Attorneys for Petitioners, Maritime

Overseas Corporation and Atlantia

Tanker Corporation

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 J

rake \\

APPENDIX A

Youn v. Maritime Overseas Corp., 623 So.2d 1257

C4 aus tuk ee kb ee tawk Georeacuus la

APPENDIX B

Denial of Rehearing (La. Oct. 7, 1993) ............. l4a

APPENDIX C

Denial of Stay (La. Oct. 11, 1993)................. l5a

APPENDIX D

Maritime Overseas Corp. v. Youn, No. A-323 (U.S.

hs ds ae ev aes eth eee ns 16a

APPENDIX E

Youn v. Maritime Overseas Corp., 605 So.2d 187

(im. App. Gth Cir. 1902) ....................... 18a

APPENDIX F

Youn v. Maritime Overseas Corp., 609 So.2d 240,

ES ee eee 70a

APPENDIX G

Maritime Overseas Corp. v. Youn, ___ U.S. ___,

eg Se 73a

APPENDIX H

Maritime Overseas Corp. v. Youn, ___ U.S. ___,

ee 74a

‘i

INDEX (continued)

APPENDIX I

Denial of Supervisory Writs (La. App. 5th Cir.

March 6, 1900)... .. 643548455 75a

APPENDIX J

Denial of Certiorari or Review (La. April 16, 1990). . .78a

APPENDIX K

Testimony of Dr. Randolph Rice Concerning Found

(R. Vol. 9, 2381-2383, 2399-2400)................ 79a

APPENDIX L

Reasons for Judgment (23rd. J.D.C. Dec. 17, 1990) . .82a

APPENDIX M

Rehearing denied (La. 5th Cir. Oct. 19, 1992) ....... 93a

la

APPENDIX A

SUPREME COURT OF LOUISIANA

No. 92-C-3017

HAE WOO YOUN

Versus

MARITIME OVERSEAS CORP. ET AL

ON WRIT OF CERTIORARI TO THE COURT OF

APPEAL, FIFTH CIRCUIT, PARISH OF ST. JAMES

FILED

SEP 3 1993

LEMMON, Justice*

The sole issue before the court in this personal injury

case is whether the court of appeal erred in reducing the

trial court’s award of general damages and in deleting the

award of loss of found.

—

Plaintiff, a boatswain on a Liberian oil tanker, was

injured aboard ship in May of 1989 when a steam valve on

the port winch opened too quickly, causing the drum to

spin and the cable to whip around the deck out of control.

When plaintiff attempted to prevent the boom from falling

* Pursuant to Rule IV, Part 2, §3, Watson, J. was not on the panel which

heard and decided this case. See footnote in State v. Barras, 615 So.2d

285 (La. 1993).

2a

on his shipmates, the cable wrapped around plaintiff’s left

thigh and crushed his leg.

Plaintiff filed this action against the vessel owner,

the supplier of the crew that operated the vessel, and their

insurer. After a bench trial, the judge found the defendants

negligent in failing to repair the control level known to be

broken and to train the crew properly. Further finding

plaintiff was not contributorily negligent, the judge award-

ed plaintiff damages in the amount of $1,703,864, itemized

as follows:

Medical expenses, future $ 40,000

Past loss of net earnings 22,642

Future loss of net earnings 200,000

Past loss of found 3,748

Future loss of found 37,474

Past physical pain and

suffering 200,000

Future physical pain and

suffering 300,000

Past mental anguish and loss

of enjoyment of life 200,000

Future mental anguish and loss

of enjoyment of life 300,000

Disability and disfigurement 400,000

.

TOTAL 1,703.864

3a

On defendants’ appeal, the intermediate court af-

firmed the judgment in most respects, but reduced the

damages award by almost one-half. 605 So.2d 187. The

court reviewed plaintiff's injuries and resulting disability

and disfigurement, concluding:

Even though Youn’s injuries are undoubted-

ly severe, and permanent in some respects, we

find that in certain areas, the trial court abused

its discretion (on the high side) in awarding

damages of 1.4 million dollars. Accordingly, we

turn to comparable cases to determine the

highest amount the trial court could have

reasonably awarded in this case.

605 So.2d at 202. The court then reviewed comparable

cases and cut the awards of $500,000 for past and future

physical pain and suffering to $214,200, the awards of

$500,000 for past and future mental anguish and loss of en-

joyment of life to $214,200, and the award of $400,000 for

disability and disfigurement to $171,600.! The court fur-

ther deleted the $44,222 award for past and future loss of

found because of failure of proof.

On plaintiff's application, this court granted cer-

tiorari to review the appellate court’s reduction of the

awards. 609 So.2d 239.

In plaintiff's accident in May of 1989, his left thigh

received the full force of the falling boom. After brief un-

consciousness, he endured great pain while waiting an hour

1 The court thus reduced the total award of general damages from

$1,400,000 to $600,000.

4a

for the helicopter to transport him to the hospital. Dr.

David Davis, the vascular surgeon who became the

treating physician, found plaintiff's foot cool and lacking a

pulse and his thigh twice the normal size. Plaintiff had no

sensation below his knee and was justifiably fearful when

told he might lose his leg.

During the emergency surgery, Dr. Davis found that

plaintiff's femoral artery, the primary blood supply to his

leg, had been completely severed. The artery had to be

reconstructed by surgery requiring an incision from plain-

tiff’s groin almost to his ankle. The incision required skin

grafting sixteen inches long and six inches wide.

Recovery was painful because of rejuvenating of the

nerves and return of sensation. Development of an infec-

tion which required debridement further complicated the

recovery.

Dr. Martin Bell, the reconstructive surgeon who

described the muscle injury “‘as if muscle tissue had been

squeezed out like toothpaste,”’ found progressive necrosis

of the muscle tissue and eventually had to remove two-

thirds of the quadriceps muscle of the thigh. Dr. Bell also

performed four additional surgeries under general

anesthesia in May and June. The first surgery involved ex-

ploration, irrigation and debriding of the wound and secon-

dary closure of the wound with cadaver skin. The second,

which involved an abscess of the thigh, included removal of

the staples from the skin grafts and exploration, incision

and drainage of the hematoma. The third removed the

cadaver skin and regrafted with plaintff’s own skin taken

from his back. The fourth was for ischemic necrosis of the

5a

quadriceps muscle, consisting of removal of staples and

retentive sutures, regrating of the knee, and exploration

and evacuation of the hematoma and necrotic muscles of

the thigh.

During the five weeks of hospitalization and surgical

procedures, morphine and demerol were administered to

help plaintiff endure the pain. Plaintiff's distress was

worsened by the fact that he was alone in a foreign country

with demoralizing injuries to his leg.

Plaintiff returned to Korea after his release from the

hospital, but his hamstring muscle ruptured, requiring a

sixth surgery. The hamstring muscle is still not function-

ing normally.

At trial, Dr. Davis described plaintiff's leg as con-

sisting of bone, artery and skin, with all the muscle gone.

The lack of muscle protecting the artery which supplies

blood to the leg subjects plaintiff to significant risk of fur-

ther serious and life threatening injury. The reconstructive

surgeon testified that plaintiff's massive tissue defect,

with skin graft basically overlying the bone, has the poten-

tial to break down. The surgeon recommended additional

surgery to graft muscle mass onto the thigh.

Plaintiff's disability is permanent and likely to

worsen. He walks with a limp and cannot walk any great

distance. He cannot perform manual labor or heavy lifting,

cannot be on his feet for extended periods of time, cannot

climb stairs, and cannot do repetitive bending, stooping,

squatting or kneeling. Plaintiff's doctors have assigned a

permanent disability rating of thirty to thirty-eight per-

6a

cent. He has significant limitation of motion of the leg and

of the knee, as well as scarring of the donor sites on the

back and the opposite leg. Dr. Davis opined that his condi-

tion renders remote his chance for gainful employment in

Korea.

At the time of trial, plaintiff still had pain, swelling,

numbness, and lack of feeling in the leg. His physical condi-

tion is likely to worsen because vascular grafts have a

limited life span and are more prone to development of

blockage and arteriosclerosis than normal arteries.

Plaintiff suffers anxiety and mental pain over his

grotesque disfigurement. His wife was ‘‘disgusted’’ when

she saw his disfigured leg, and emotional problems have

developed over this concern. Plaintiff is also understan-

dably disturbed emotionally about his ability to fulfill his

family responsibilities and the probability of future

worsening of his physical condition.

The trial judge thoughtfully weighed these facts in

fixing the amount of the awards. In reasons for judgment,

the judge stated:

These awards are more than deserved. The

plaintff’s left leg is nothing more than a stick con-

necting his thigh bone to his ankle. The scarring

demonstrated in the pictures represents a river of

gruesome tattoos which encompass and circle the

entire leg, from groin to foot. Plaintiff's leg is em-

broidered with an ugly snake-like appearance.

The Court has never seen such a dismaying scene.

The Court was most impressed with plaintff’s

sincerity and obvious heartache over his condi-

7a

tion. Plaintiff’s leg is useless for anything other

than support. Dr. Davis described the skin over

the bone as a paper thin leg. Plaintiff is in con-

stant jeopardy of any intrusion into the leg, cut-

ting the vessel, and placing his life at risk. There

are no muscles, meat, nor fatty tissue in plain-

tiff’s left thigh. Plaintiff's leg swells constantly,

will never improve, and is expected to continue on

a consistently downward course. Plaintiff will

need future medical expenses because the vessels

grafted in his leg will wear out over time. This will

require at least two more surgeries based on

plaintiff’s life span. The Court does not see how

plaintiff can accomplish any type of future work

other than desk duty for which he appears both

situationally and educationally unsuited. The

plaintiff is totally and permanently disabled, can

never return to any kind of physical activity, and

must drag around with him, a constant reminder

of this event. The impression from plaintff’s

testimony, and viewing photographs of his ex-

isting condition, persuades the Court that plain-

tiff is a depressed, sorrowful, embarrassed,

gentleman who had previously led an active,

healthy, and vital existence. Plaintiff is described

as a model patient who was most grateful to his

American doctors for saving his life. Modern

medicine can only do so much, however, and

plaintiff's discussion of his wife’s reaction when

observing his leg upon his return home and to this

date, persuades the court that the disfigurement

award is required. Plaintiff leads a life of embar-

rassment, pain and shame as a result of the in-

jury. He will have lifetime problems. The indepen-

dent medical exam ordered by the defendants

8a

reflects 90 to 100% strength loss in the left leg,

and is described by their doctor, as a ‘‘near

traumatic amputation of the left lower extremi-

ty.”’ Plaintiff has a significant whole body impair-

ment rating.

For over an hour plaintiff lay on the deck of

the ship where he had worked with pride and

dignity, fearful that he would never again stand

on his own two feet. The obvious pain described

by Capt. Choi was immense both while waiting

for the helicopter, and at the hospital. Plaintiff

was placed under the most powerful sedatives for

most of his hospital stay. As recovery occurred,

pain increased with the regeneration of the

nerves. Today plaintiff has limited motion no

vitality, and no capacity to exercise or use the leg

because of its delicate nature. He lives in constant

apprehension of further injury. He has legitimate

concerns over blood ciots, loss of circulation and

graft failures. He lives in Korea, and wet and cold

weather create additional problems in his thigh

area which the doctors describe as expectable and

severe.

In Reck v. Stevens, 373 So.2d 498 (La. 1977), this

Court commented on appellate review of general damage

awards and on the ‘‘much discretion”’ in fixing damages ac-

corded to trial courts by La. Civ. Code art. 1934(3)(1870).2

The decision pointed out that the role of an appellate court

in reviewing general damages is not to decide what it con-

siders to be an appropriate award, but rather to review

the exercise of discretion by the trier of fact. Each case is

2 The same discretion is mandated today by La. Civ. Code art. 1999.

9a

different, and the adequacy or inadequacy of the award

should be determined by the facts or circumstances par-

ticular to the case under consideration.

In Reck, this court disapproved the appellate court’s

simply reviewing the medical evidence and then concluding

that the award for those injuries was excessive, without

taking into consideration the particular effect of the par-

ticular injuries on the particular plaintiff. This court fur-

ther disapproved of the use of a scale of prior awards in

cases with generically similar medical injuries to determine

whether the particular trier of fact abused its discretion in

the awards to the particular plaintff under the facts and cir-

cumstances peculiar to the particular case. The initial in-

quiry is whether the award for the particular injuries and

their effects under the particular circumstances on the par-

ticular injured person is a clear abuse of the ‘“‘much discre-

tion”’ of the trier of fact. Gaspard v. LeMaire, 245 La. 239,

158 So.2d 149 (1963); Ballard v. Natinal Indem. Co. of

Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick

v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after

such a determination of an abuse of discretion is a resort to

prior awards appropriate and then for the purpose of deter-

mining the highest or lowest point which is reasonably

within that discretion. Coco v. Winston Industries, Inc.,

341 So.2d 332 (La. 1976); Bitoun v. Landry, 302 So.2d 278

(La. 1974); Spillers v. Montgomery Ward & Co., 294 So.2d

803 (La. 1974).

The standard for appellate review of general damage

awards is difficult to express and is necessarily non-

specific, and the requirement of an articulated basis for

disturbing such awards gives little guidance as to what

‘10a

articulation suffices to justify modification of a generous or

stingy award. Nevertheless, the theme that emerges from

Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963)

through Coco v. Winston Industries, Inc., 341 So.2d 332

(La. 1976), and through Reck to the present case is that the

discretion vested in the trier of fact is ‘‘great,’’ and even

vast, so that an appellate court should rarely disturb an

award of general damages. Reasonable persons frequently

disagree about the measure of general damages in a par-

ticular case. It is only when the award is, in either direc-

tion, beyond that which a reasonable trier of fact could

assess for the effects of the particular injury to the par-

ticular plaintiff under the particular circumstances that the

appellate court should increase or reduce the award.

In the present case the court of appeal apparently

believed that the general damage award for a leg loss or in-

jury could not exceed $600,000. In reaching this conclu-

sion, the court considered the medical injuries, but ap-

parently did not consider the terrified condition of plaintiff

while on the deck waiting for a helicopter after a near

traumatic amputation when he had attempted to protect

his shipmates; the physical pain and mental agony of the

surgeries and treatment while alone in the hospital in a

foreign country; the ‘“‘grotesque’’ appearance of the leg (as

characterized by the reconstructive surgeon) consisting on-

ly of bone, artery and skin; the justified fear of worsening

of the already fragile condition and of further injury or

death from otherwise innocuous physical contact; the ob-

vious concern over the inability to fulfill family respon-

sibilities because of the disability that certainly will require

continuing medical care and probably will worsen; the

devastating effect of the disability and disfigurement on

lla

plaintiff's marital relationship and personal esteem; and

the mental anguish and anxiety naturally accompanying

the above considerations and the continuing swelling,

numbness, pain and suffering.

When these and other factors are properly con-

sidered under the standards discussed above, we cannot

say that the trial judge abused his discretion in fixing the

generous awards of general damages. The awards are not

obviously the result of passion or prejudice, and they bear

a reasonable relationship to the elements of the proved

damages. Many rational triers of fact could have decided

that a lower award is more appropriate, but we cannot con-

clude from the entirety of the evidence in this record, view-

ed in the light most favorable to the prevailing party in the

trial court, that a rational trier of fact could not have fixed

the awards of general damages at the level set by the trial

judge or that this is one of those ‘‘exceptional cases where

such awards are so gross as to be contrary to right reason.”’

Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir.

1987). We accordingly reinstate that portion of the judge-

ment of the trial court relating to general damages.

As to the trial judge’s award for loss of found, the ap-

pellate court held that plaintiff had not established the

value of the loss and set aside the award.

“Found” is an admiralty term which describes the

element of damages representing the value of the living ex-

penses provided to a seaman by his employer as a condition

of employment while aboard ship. Found generally includes

expenses for food, lodging and clothing. Frank L. Maraist,

Admiralty in a Nutshell 194 (2d ed. 1988).

12a

Plaintiff clearly suffered this loss, inasmuch as he

will never again receive these sums from his employer while

aboard ship. The only issue is the precise value of the loss.

In Jordan v. Travelers Ins. Co., 257 La. 995, 245

So.2d 151 (1971), the plaintiff had failed to introduce in-

come tax returns and other earnings records, but had

testified regarding his employment history. The lower

courts denied his claim for loss of earnings because of

failure of proof. This court held that plaintiff had proved

that he, more probably than not, had sustained some loss

of pretrial and future earnings, and proceeded to fix an

award based on the less-than-perfect evidence.

In Stiles v. K-Mart Corp., 597 So.2d 1012 (La. 1992),

plaintiff proved that he would require future medical treat-

ment, but did not present expert testimony as to the cost

of the treatment. The court of appeal deleted the trial

court’s award for this item of damages, but this court

reinstated the award, noting:

When the record establishes that future

medical expenses will be necessary and in-

evitable, the court should not reject an award of

future medical expenses on the basis that the

record does not provide the exact value of the

necessary expenses, if the court can examine the

record and determine from evidence of past

medical expenses and other evidence a minimum

amount that reasonable minds could not disagree

will be required. La. Code of Civ. Proc. art. 2164.

597 So.2d at 1013.

ee

13a

Here, the trial judge set the award for loss of found

at $10 per day on the basis of evidence that plaintff’s

employer had provided meals, lodging and clothing to him

daily and the trial court’s inference that these daily items

would cost at least that amount. Moreover, awards for loss

of found in other reported decisions have far exceeded that

daily amount. We conclude that the award of $10 per day

was supported and should have been upheld.

Accordingly, the judgment of the court of appeal is

set aside in part, and the awards by the trial court for

general damages and loss of found are reinstated.

l4a

APENDIX B

SUPREME COURT OF LOUISIANA

No. 92-C-3017

HAE WOO YOUN

Versus

MARITIME OVERSEAS CORP. ET AL

ON WRIT OF CERTIORARI TO THE COURT OF

APPEAL, FIFTH CIRCUIT, PARISH OF ST. JAMES

APPLICATION FOR REHEARING DENIED.

WATSON, J. - not on the panel.

October 7, 1993.

15a

APPENDIX C

SUPREME COURT OF LOUISIANA

No. 92-C-3017

HAE WOO YOUN

Versus

MARITIME OVERSEAS CORP. ET AL

ON WRIT OF CERTIORARI TO THE COURT OF

APPEAL, FIFTH CIRCUIT, PARISH OF ST. JAMES

The motion to stay execution and enforcement of

judgment is denied.

October 11, 1993.

ati i,

16a

APPENDIX D

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543

WILLIAM K. SUTER AREA CODE

CLERK OF THE COURT 202-479-3011

October 14, 1993

Re: Maritime Overseas Corporation,

et al.,

v. Hae Woo Youn

Application No. A-323

Dear Mr. Gelpi:

The application for a stay of enforcement of judg-

ment of Supreme Court of Louisiana pending timely filing

and disposition of a petition for a writ of certiorari in the

above-entitled case has been presented to Justice Scalia,

who on October 14, 1993 endorsed thereon the following:

‘Denied

14/X/93

AS”

17a

Very truly yours,

WILLIAM K. SUTER, Clerk

BY /s/_ Francis J. Lorson

Francis J. Lorson

Chief Deputy Clerk

NOTE: - FOR YOUR INFORMATION: A copy of

this letter has been sent to all interested par-

ties shown on the attached notification list.

18a

APPENDIX E

HAE WOO YOUN

v.

MARITIME OVERSEAS CORP.,

Atlantia Tanker Corp., and

Assuranceforengen Gard.

No. 91-CA-407

Court of Appeal of Louisiana

Fifth Circuit.

~ July 27, 1992.

Rehearing Denied, Oct. 19, 1992.

Paul Due, Due, Smith & Caballero, Baton Rouge,

Gordon Crawford, Gonzales, Lewis Unglesby, Unglesby

& Barrios, Baton Rouge, for plaintiff, appellee.

F. Scott Kaiser, Thomas Kiggins, Phelps, Dunbar,

Marks, Claverie & Sims, Baton Rouge, M.D. Yaeger, Terri-

berry, Carroll, Yancey & Farrell, New Orleans, James B.

Kemp, New Orleans, for defei.dants, appellants.

Before BOWES, GRISBAUM and WICKER, J).

BOWES, Judge.

Plaintiff, Hae Woo Youn, filed suit for damages, nam-

ing as defendants Maritime Overseas Corporation (MOC)

and Atlantia Tanker Corporation (Atlantia) under the

Jones Act, 46 U.S.C.App. Section 688 and also the general

maritime law pursuant to the “savings to suitors” clause

of 28 U.S.C. Section 1333. Youn subsequently amended

his petition to also name, as a defendant, Assuran-

ceforeningen [sic] GARD (GARD), the marine liability

insurer for MOC and Atlantia. After trial on the merits,

19a

judgment was rendered in favor of plaintiff and against

all defendants, in solido, for $1,703,864.00, plus interest

and costs. After the denial of defendants’ motions for

new trial, this appeal was perfected. We amend and as

amended, affirm in part and remand in part the judgment

of the trial court.

FACTS

Plaintiff, Hae Woo Youn, was the boatswain

(“bosun”) on the M/T Atlantia, a Liberia oil tanker

owned by Atlantia. The M/T Atlantia was operated by

and the crew furnished by MOC. On May 23, 1989, Youn,

and two other crew members, working under Youn’s

instructions, were using the ship’s port winch preparing

to hoist the ship’s gangway back on board in preparation

for the ship’s departure. The winch controls consist of a

lever and a steam valve. A crew member, O/S Hae,

locked the control lever into place (direction) and then

opened the steam valve to start the rotation of the gypsy

head drum, which pulls in the slack of the wire cable

used to hoist heavy objects. The steam valve opened too

quickly, causing the drum to spin too fast and out of

control, which resulted in the cable coming off the gypsy

head and whipping around uncontrollably on the deck

floor. Plaintiff called to Quartermaster Choi to engage the

stopper to keep the crane boom from falling, however,

Choi became frightened and abandoned his post. Youn

ran to the stopper and en route there, was hit by the

cable, causing serious and permanent injury and defor-

mity to his left leg.

20a

ISSUES: MOC AND ATLANTIA

On appeal, MOC and Atlantia allege the following

assignments of error:

1.

If the district court had subject matter jurisdiction, it

erred in denying defendants the right to a jury trial.

A

The trial court erred in assuming jurisdiction because

Youn designated his suit as an “admiralty or general

maritime claim pursuant to La.Code Civ.P. art. 1732(6)

thereby invoking the exclusive jurisdiction of the federal

admiralty courts.

2

The trial court erred in finding that the M/T ATLAN-

TIA was unseaworthy and that such condition caused

Youn’s injuries.

4.

The trial court erred in finding that defendants were

negligent and that such negligence caused Youn’s inju-

ries.

2la

>.

The trial court erred in finding no comparative negli-

gence on the part of Youn, who chose to use an unsafe

procedure because it was “faster” and “easier.”

6.

The trial court erred in denying defendants’ Motion

to Supplement the Record and Motion for New Trial

whereas Youn was permitted to offer post-trial evidence

to prove both liability and damages, and the evidence

offered by defendants was intended to prevent the per-

petration of a fraud on the court.

7.

The trial court erred in assessing liability against

MOC because it was not the owner or operator of the

M/T ATLANTIA, and was not Youn’s employer.

8.

The trial court’s award of general damages in the

amount of $1,400,000.00 is excessive. The award should

be substantially reduced or set aside and a new trial

ordered.

9.

The trial court erred in awarding prejudgment inter-

est as to the entire damage award since a substantial

portion of the award represents future losses for which

interest would not have accrued.

22a

10.

The evidence does not support the trial court’s award

for future medical expenses in the amount of $40,000.00.

11.

The evidence does not support the trial court’s award

for past loss of earnings in the amount of $22,642.00.

12.

The evidence does not support the trial court’s award

of past and future loss of “found” in the amount of

$41,222.00.

ISSUES: GARD

GARD alleges as error the following:

A

The trial court erred in not dismissing the petition, as

amended, for want of subject matter jurisdiction, plaintiff

having designated his claims as purely admiralty or mar-

itime claims of which federal district courts have exclu-

sive jurisdiction.

r

The trial court erred in denying the defendants their

substantive federal right to trial by jury of Jones Act and

general maritime law claims.

23a

.

The trial court erred in not maintaining GARD’s

exception of no cause of action or no right of action

against it under the Louisiana Direct Action Statute,

La.R.S. 22:655, or otherwise.

4.

With plaintiff not having met his burden of proving

any insurance coverage and the terms and provisions of

any such coverage, the trial court erred in rendering

judgment against GARD.

5

The trial court erred in denying GARD’s motion for

continuance of the trial.

We shall consider GARD’s assignments of error later

in logical sequence, but first we shall consider the assign-

ments of error by both Atlantia and MOC in convenient

groups as follows:

TRIAL BY JURY/SUBJECT MATTER JURISDICTION

Defendants, Atlantia and MOC, as well as defendant

GARD, first argue that the trial court action in striking

MOC and Atlantia’s request for a jury was error. They

also agree and urge that a plaintiff's designation of his

suit as admiralty or maritime under C.C.P. art. 1732(6)

impermissibly usurps jurisdiction of admiralty cases from

the federal courts. Finally, it is alleged that C.C.P. art.

24a

1732(6) is unconstitutional in that it operates to deprive a

defendant his right to trial by jury.

In response to plaintiff’s original petition, Atlantia in

its answer, requested trial by jury. Plaintiff then filed a

first supplemental and amending petition, in which he

clarified his position that he was filing suit both under

the Jones Act and under General Maritime Law and fur-

ther stated that “Plaintiff specifically designates this suit

as an admiralty or general maritime claim for purposes of

eliminating any right to trial by jury in accordance with

1732(6) of the Louisiana Code of Civil Procedure.”

Plaintiff next filed a second amended petition which

again stated that his claim was a general maritime claim

and therefore defendants had no right to a jury trial

under LSA-C.C.P. art. 1732(6).

MOC then filed its answer, and also requested a jury

trial therein.

Plaintiff filed a motion to strike defendant’s jury

demands which was granted by the trial court. MOC and

Atlantia applied for supervisory writs to this Court. Writs

were refused.

Defendant’s application for a review of our decision

was quickly filed with the Louisiana Supreme Court who

also refused writs. Hae Woo Youn v. Maritime Overseas

Corporation, 559 So.2d 1367 (La. 1990). Thus, our decision

was, in effect, affirmed by the Supreme Court.

Immediately before trial, GARD filed a removal

notice alleging that plaintiff’s election to proceed under

general maritime law operated to divest the trial court of

jurisdiction. Federal District Judge Sear of the Eastern

25a

District of Louisiana found no merit to defendant’s argu-

ment as it remanded the case back to state court before

the state court trial began.

Youn asserts that the decisions of this court and the

Louisiana Supreme Court, denying defendant’s super-

visory relief should be considered “law of the case,”

precluding further consideration of these issues.

The Louisiana Supreme Court explained the principle

of “law of the case” in Day v. Campbell-Grosjean Roofing &

Sh. Metal Corp., 260 La. 325, 256 So.2d 105, 107 (1971):

With regard to an appellate court, the ‘law of the

case’ refers to a policy by which the court will

not, on a subsequent appeal, reconsider prior

rulings in the same case. This policy applies

only against those who were parties to the case

when the former appellate decision was ren-

dered and who thus had their day in court.

Among reasons assigned for application of the

policy are: the avoidance of indefinite relitiga-

tion of the same issue; the desirability of consis-

tency of the result in the same litigation; and the

efficiency, and the essential fairness to both par-

ties, of affording a single opportunity for the

argument and decision of matter at issue. [Foot-

notes omitted].

The “law of the case” principle applies to all deci-

sions of an appellate court, not merely those arising from

the full appeal process. Mihalopoulos v. Westwind Africa

Line, Ltd., 511 So.2d 771 (La.App. 5 Cir.1987); City of New

Orleans v. Rasmussen, 542 So.2d 13 (La.App. 4 Cir.1989),

writ denied, 548 So.2d 334 (La.1989).

26a

Ordinarily, we would decline to reconsider this issue

pursuant to the principle of “law of the case.” However,

in this instance, we note that GARD was not a party to

the suit at the time the issue was raised by writs to this

Court and the Louisiana Supreme Court. The principle of

“law of the case” is to be applied only against those who

were parties to the cases when the former appellate deci-

sion was rendered and who thus had their day in court.

Gaudet v. G.D.C., Inc., 477 So.2d 731 (La.App. 1 Cir.1985);

Day v. Campbell-Grosjean Roofing & Sh. Metal Corp., supra.

Accordingly, we will consider these issues again in

this appeal.

LSA-C.C.P. art. 1732(6) provides that a trial by jury

shall not be available in:

A suit on an admiralty or general maritime

claim under federal law that is brought in state

court under a federal ‘saving to suitors’ clause,

if the plaintiff has designated that suit as an

admiralty or general maritime claim.

Defendants’ first allegation, that the trial court erred

in striking their request for jury trial, was found meritless

in Heinhuis v. Venture Associates, Inc., 558 So.2d 1244

(La.App. 1 Cir.1990), writ denied, 559 So.2d 1369 and 1385

(La.1990), wherein the court held that, pursuant to C.C.P.

art. 1732(6), the option of whether or not to have a jury

trial rests solely with the plaintiff. Furthermore, plaintiff's

cumulation of his Jones Act claim with an admiralty or

general maritime claim does not open the door for the

defendant Jones Act employer to demand a jury trial.

At the time of oral argument in November, 1991,

Heinhuis was the only positive ruling on this issue,

27a

although there was a case from the Fourth Circuit,

Gauchet v. Chevron USA Inc., 541 So.2d 272 (La.App. 4

Cir.1989), which expressed a contrary sentiment in dicta —

and at that time, we chose to follow the Heinhuis ruling as

the more correct interpretation. Since that time, however,

on May 26, 1992, the Louisiana Supreme Court has settled

the matter with finality by holding, on rehearing, that

Jones Act claims are admiralty and maritime claims and

that, pursuant to LSA-C.C.P. art. 1732(6), the plaintiff

alone had the right to elect whether his case would be

decided by a jury or by the trial court. Parker v. Rowan

Companies, Inc., 599 So.2d 296 (La.1992).

In Sons v. Inland Marine Service, Inc., 577 So.2d 225

(La.App. 1 Cir.1991), the First Circuit rejected defendants

second argument, that the legislature, in its enactment of

C.C.P. art. 1732(6), supra, prohibiting jury trials in admi-

ralty or general maritime cases, attempted to usurp juris-

diction of admiralty cases from the federal courts,

contrary to the United States Constitution. In rejecting

this argument, the First Circuit stated that:

. . . the article does not impermissibly usurp

jurisdiction of admiralty cases because state

courts already have concurrent jurisdiction over

i’ personam admiralty actions. Nothing in the

article seeks to establish jurisdiction over in rem

admiralty suits, which are exclusively within the

jurisdiction of federal courts. Therefore, defen-

dants’ first argument has not merit. At p. 229.

[Emphasis partially ours).

Defendants’ position was also rejected by the Eastern

District of Louisiana in Bergeron v. Quality Shipyards, 765

F.Supp. 321, 323 (E.D.La.1991), wherein the court said:

28a

Second, we are at a loss, from either a logi-

cal or legal perspective, as to how the invocation

of a state procedural rule which limits the avail-

ability of a jury trial in a state court proceeding,

confers upon this court exclusive federal admi-

ralty jurisdiction. It is well established that state

courts have concurrent jurisdiction to try in per-

sonam admiralty actions. [Citations omitted].

Defendants next argue that the trial court’s action in

striking their demand for trial by jury violated their

constitutional rights under the Supremacy Clause and the

Equal Protection Clause of the United States Constitution.

In Sons, supra, this same argument was rejected:

Defendants contend the trial court’s denial

of their request for a trial by jury denies them

due process, equal protection of the laws, and

equal access to the courts in violation of the

United States and Louisiana Constitutions.

However, the United States Supreme Court has

held that the Seventh Amendment right to jury

trials in civil cases is not so fundamental to the

American system of justice as to be required of

state courts by the due process clause of the

Fourteenth Amendment. See Melancon v.

McKeithen, 345 F.Supp. 1025, 1035 (E.D.La.1972),

affirmed, 409 U.S. 943, 1098, 93 S.Ct. 289, 908, 34

L.Ed.2d 214, 67° (1973); Rudolph v. Massachusetts

Bay Insurance Co., 472 So.2d 901 (La.1985). The

denial of a jury trial in a state civil proceeding

also does not violate the equal protection clause

of the United States Constitution. Letendre v.

Fugate, 701 F.2d 1093 (4th Cir.1983).

In addition, there is no due process right to

a jury trial in civil cases under the Louisiana

Constitution of 1974. See Fidelity & Guaranty

ee

29a

Insurance Company v. Succession of Smith, 525

So.2d 348, 353 n. 3 (La.App. Ist Cir.1988). At

page 229.

The court then noted that the state had legitimate

interests in enacting LSA-C.C.P. art 1732(6), first to make

the procedure in state admiralty cases consistent withthe

procedure in the federal court system, where a plaintiff

may also designate his claim as an admiralty or general

maritime claim to preclude defendant from having a jury

trial, (see F.R.C.P. 9(h) and Romero v. Bethlehem Steel Corpo-

ration, 515 F.2d 1249 (5th Cir.1975), and second to mini-

mize the delays and greater court costs which generally

attend jury trials. Sons, supra and Heinhuis, supra.

Finally, the court noted that the denial of a jury trial

does not operate to deny defendants access to the courts

as “they still will have an adequate opportunity to defend

themselves before an impartial trier of fact.” At page 230.

Accordingly, these assignments of error are rejected.

LIABILITY FOR PLAINTIFF’S INJURIES

Atlantia and MOC allege that the trial court erred in

finding them 100% liable to plaintiff under the theories of

unseaworthy and negligence.

Initially, we note that the Louisiana Supreme Court

has set down instructions very emphatically, and on sev-

eral occasions, relative to the findings of fact made by the

trial court, as enunciated in Rosell v. Esco, 549 So.2d 840

(La.1989) (and other cases) and more recently, and more

positively, in Martin v. East Jefferson General Hospital, et al.,

iinet

30a

582 So.2d 1272 (La.1991), and we acknowledge that appel-

late courts are bound to abide by same. In Martin, the

Supreme Court stated:

. ‘if the trial court or jury’s findings are

reasonable in light of the record reviewed in its

entirety, the court of appeal may not reverse,

even though convinced that had it been sitting

as the trier of fact, it would have weighed the

evidence differently.’ Sistler v. Liberty Mutual Ins.

Co., 558 So.2d 1106, 1112 (La.1990); Arceneaux v.

Domingue, 365 So.2d 1330 (La.1978). We have

instructed the appellate courts that when there

are two permissible views of the evidence, the

factfinder’s choice between them cannot be man-

ifestly erroneous or clearly wrong. [Emphasis

added].

Additionally, in Sutton v. Central Gulf Lines, Inc., 433

So.2d 888, 891 (La.App. 5 Cir.1983), this Court examined

the scope of review applicable in an admiralty case (Jones

Act):

Initially, we acknowledge that while we enjoy

full constitutional authority to review both the

law and facts in civil cases; nevertheless, under

federal law and jurisprudence, the findings of

the trial judge on the merits may not be dis-

turbed unless they are clearly erroneous. Jones

Act, 46 U.S.C.A. Section 688; Federal Rule of

Civil Procedure, Rule 52(a); Cooper v. Keyes Off-

Shore, Inc., 421 So.2d 385 (La.App. 1 Cir.1982);

Portier v. Texaco, Inc., 426 So.2d 623 (La.App. 1

Cir. 1982). The courts in Cooper, supra, and Por-

tier, supra, both looked to the United Sites

Supreme Court for an explanation of the ‘clearly

erroneous’ rule and in McAllister v. United States,

3la

348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954), found

the following:

A finding is clearly erroneous when

‘although there is evidence to support it, the

reviewing court on the entire evidence is

left with the definite and firm conviction

that a mistake has been committed.’ 348

U.S. at 20, 75 S.Ct. at 7.

The trial court made findings of fact as follows:

The accident happened because the boat

was in an unseaworthy condition, and because

of negligence. The winch control lever had been

broken for some period of time and did not

operate. Accepting the testimony in the light

most favorable to the defendants, the Court

finds that the winch lever was dysfunctional.

Furthermore, the lever could easily and should

easily have been repaired during the six months

that it was broken while the boat was in Ameri-

can waters. The crew was non-trained. The

Court is impressed by the testimony of all crew

members that there were no safety manuals

written in Korean, that there was no training

provided for any crew members, and that the

procedure of MOC as to hire the Korean crew

member and put him on the boat. On-the-job

training can be expected to lead to accidents.

Defendants were negligent. They allowed the

crew to use the steam valve because the winch

lever did not work. The Court finds that the use

of the steam valve is not a safe method, and is

not the method intended in the design of the

ship for the use of the winch. Mr. Heu released

too much steam, accelerating the speed of the

winch, leading to the accident. The negligence

of a crew member in employing a method

32a

approved by his employer is actionable. Choi

was ordered to engage the crane reel stopper in

the event that the winch control lever began to

operate out of control. Choi, because he was

afraid, and was being peppered by debris com-

ing off the cable, ran from his post. This placed

Bosum Youn in the predicament of having no

stopper. At the time that Choi abandons his

post, the winch is out of control, Heu has over-

accelerated the steam, and the crane boom is

beginning to fall. Youn attempts to take action to

preserve his employer’s property and to save

the lives of his fellow workers. The winch cable

snaps Youn’s leg, creating his injury.

The Court resolves this as a simple matter.

The Court finds that there is gross negligence in

regard to the failure of MOC and Atlantia to

provide a seaworthy vessel, and to repair a

known broken piece of equipment. The burden

of the plaintiff is light. A vessel owner/

employer is deemed negligent if it fails to exer-

cise reasonable care to maintain a reasonably

safe work environment. In this case, the evi-

dence overwhelmingly preponderates in favor

of plaintiff and against defendant.

The Court finds as a fact, that the crew was

not properly trained in the operation of the

winch. The Court finds as a fact, that there was

no training to the crew as to what action to take

in the event the winch became out of control as

occurred here, and further, that because the ves-

sel owner failed to repair the broken winch, or

to employ an automatic stopper, it was foresee-

able that an event such as this would occur. The

Court finds that at ao time, did any superior

33a

member of the Atlantia crew, or MOC Corpora-

tion, require Youn or anyone else to use any

alternative method in winding the winch.

Defendants argue that the use of the gypsy

head to wind the excess cable onto the winch

drum, would avoid the accident. The defendants

suggest that all slack between the crane reel and

winch drum should be taken in. The Court was

impressed by the fact that the actions taken by

Youn appeared to be commonplace, and further

that the captain of the boat had no knowledge as

to what methodology was correct. The captain

admits that they were in a substantial hurry

because the pilot had come to move the boat

and that it was Youn’s job to get the crane in a

position to shove off. Youn testified and his

crew members support the idea, that the method

he was using was the most efficient, and that

they had never been instructed to avoid that

method nor of any safety hazards created by the

method.

The Court is not impressed by the defen-

dants’ efforts to blame the accident on Youn’s

use of the method employed by him, instead of

their failure to train their crew, and to repair

their broken equipment which they provided to

Youn.

The Court is not impressed by the claim that

Youn used a ‘shortcut’ in view of the Captain’s

testimony that they were in a hurry to take off,

and all witnesses’ testimony that Youn was an

experienced, knowledgeable bosun. The Court

finds that had the winch been repaired, or had

the untrained crew members stayed at their

post, or had the steam valve not been over-

charged, the accident would have been avoided.

34a

All this is directly placed at the feet of the

defendants. Furthermore, from reviewing the

evidence, including the photographs, the Court

does not believe that it would be practical or

probable, that all of the line could be placed on

the gypsy head.

* * *

The Court does not find Mr. Youn contrib-

utorily negligent. He acted in accordance with

his training, he was given inadequately trained

helpers, one of whom abandoned his post, and

he was required to work with defective equip-

ment. The Court is well aware of the pressure

placed upon a foreign seaman to do the job

required, and the inability of a seaman to refuse

his duties. The Court further notes the substan-

tial conflicts in the testimony of the crew

between their discovery depositions taken by

the plaintiff and their trial depositions several

days later. The Court recognizes in those deposi-

tions that the crew members were kept under

the total control of the defendants, that certain

relevant crew members were present in New

Orleans in order to provide information to

defense counsel, and at least one was then sent

to Tokyo rather than provided for testimony.

The record reflects that Port Captain Williams

made an inspection of the vessel right after the

accident, and condemned the actions of the crew

and recognized the failure of the equipment.

This information was not provided to plaintiff

until the eve of trial, and then only inadver-

tently. The Court, in evaluating the evidence,

believes the statements of the crew members

taken in the discovery depositions, believes the

statements of Captain Williams in his June

35a

inspection report, accepts the testimony of Cap-

tain George Blann as more reasonable based on

facts and evaluations consistent with accepted

maritime safety practices, and finds evidence in

favor of Youn on the issues of unseaworthiness,

negligence, and lack of comparative negligence

overwhelming.

A careful review of the entire record and particularly

the conclusions stated above have convinced us these

findings of fact are reasonable and are abundantly svffi-

cient to find liability in tort and under general maritime

law on the part of Atlantaia [sic] and MOC. Accordingly,

we find no manifest error in the findings of fact and

conclusions reached by the trial court.

CLAIMS UNDER (1) THE JONES ACT AND (2)

UNSEAWORTHINESS

The claims of negligence under the Jones Act and

because of unseaworthiness are separate and distinct

claims. Usner ov. Luckenbach Overseas Corp., 400 U.S. 494, 91

S.Ct. 514, 27 L.Ed.2d 562 (1971).

Under general maritime law, a shipowner has an

absolute duty to provide the members of his crew with a

seaworthy vessel. A ship is unseaworthy unless it and all

of its appurtenances and crew are reasonably fit and safe

for their intended purpose. Miles v. Melrose, 882 F.2d 976

(Sth Cir.1989), affirmed, Miles v. Apex Marine Corp.,

U.S. __, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). The duty of

a shipowner to provide a seaworthy vessel is absolute;

actual or constructive knowledge by the owner of the

unseaworthy condition is not necessary to support lia-

bility. In addition, a showing of due diligence or lack of

36a

negligence by the owner will not negate liability. Mitchell

v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d

941 (1960). To prevail on an unseaworthiness claim, a

plaintiff must show that the vessel was unseaworthy and

that the unseaworthy condition was the proximate cause

of his injury. Alverez v. ]. Ray McDermott & Co., 674 F.2d

1037 (Sth Cir.1982).

Under the Jones Act, a vessel owner is deemed negli-

gent if he fails to exercise reasonable care to maintain a

reasonably safe work environment. Ceja v. Mike Hooks,

Inc., 690 F.2d 1191 (5th Cir.1982).

The trial court found that the winch control lever was

broken, and therefore the crew had to use the steam valve

to control the winch. The seaman using the steam valve

released too much steam, accelerating the speed of the

winch and causing the accident. The trial court also

found that the crew was non-trained, and that this was a

fault or negligence assignable to the defendants and that

this also contributed to the accident.

We see no manifest error in the trial court’s judgment

finding that the vessel was unseaworthy and that Atlantia

and MOC were negligent in failing to provide to plaintiff

a safe place to work.

Atlantia and MOC agree upon and urge that plaintiff

was comparatively negligent in using the “line unat-

tached” instead of the “line attached method.”

In Ceja, supra at 1194, the court said:

Generally, a seaman has no duty to find the

safest way to perform his work. Comeaux v. T.L.

James & Co., supra, 666 F.2d [294] at 300 [5th

37a

Cir.1982]; Spinks v. Chevron Oil Co., 507 F.2d 216,

223 (Sth Cir.1975), clarified, 546 F.2d 675 (Sth

Cir.1977) (‘His duty is to do the work assigned,

not to find the safest method of work’). Rather,

the duty to provide for a safe course of conduct

lies primarily with the vessel owner. A seaman,

therefore, is not contributorily negligent merely

because he uses an unsafe tool or appliance or

proceeds in an unsafe area of the ship. Only

where it is shown that there existed a safe alter-

native available to him of which he knew or

should have known, can a seaman’s choice of an

unsafe course of action be properly considered

in determining whether he was negligent.

Accord Joyce v. Atlantic Richfield Co., 651 F.2d 676,

682-83 (10th Cir. 1981). [Emphasis partially

ours]. [Footnotes omitted].

The trial court found that the “line unattached”

method utilized by Youn was sanctioned by the defen-

dants, that this method was commonplace and was the

most efficient method to raise the gangplank. The court

further found that, from the evidence, use of the “line

attached” method was not practical or probable with

regard to plaintiff’s tasks at the time of the accident.

We see no error in the trial court’s decision finding

that plaintiff was not comparatively negligent.

Finally, defendants argue that the trial court erred in

disregarding OSHA regulations in its determination of

plaintiff’s standard of care. We see nothing in the record

which shows that plaintiff was aware of the OSHA regu-

lation which indicates that the “line attached method” is

safer nor do we find anything to show that defendant's

training, if any, of plaintiff included teaching plaintiff

38a

OSHA regulations. Furthermore, in light of the court's

finding that using the “line attached method” was neither

probable nor practical in this case, the trial court’s con-

sideration of the OSHA safety regulation would not

change the outcome of this case.

TRIAL COURT’S DENIAL OF INTRODUCTION OF

POST-TRIAL EVIDENCE AND/OR MOTION FOR NEW

TRIAL.

After the conclusion of the trial, MOC and Atlantia

sought to have introduced into evidence a videotape

demonstrating how to raise and lower the boom using the

portside winch on the M/T Atlantia. Defendants also

filed a motion for new trial alleging that this tape consti-

tuted newly discovered evidence.

We find that the trial court did not err in denying the

introduction of the videotape into evidence one month

after the conclusion of trial.

The videotape is experimental evidence attempting

to refute plaintiff’s expert’s testimony that there was too

much line on the portside winch which made using the

“line attached” procedure unsafe and/or impossible.

Before such evidence can be considered at trial a proper

foundation for its admissibility must be established.

There is ample jurisprudence holding that to establish a

proper foundation the offering party must affirmatively

show that the experiment was conducted under similar, if

not precise, conditions as were present during the origi-

nal act. Hunnicutt v. Kent, 434 So.2d 91 (La.App. 5 Cir.

1982), writ denied, 435 So.2d 442 (La.1983); Guidry v. Bos-

ton Old Colony Ins. Co., 540 So.2d 543 (La.App. 3 Cir.), writ

39a

denied, 543 So.2d 7 (La.1989). No such showing was made

in this case.

MOC and Atlantia alternatively allege that the video-

tape was “newly discovered” evidence and therefore the

trial court erred in not granting their motion for new

trial.

LSA-C.C.P. art. 1972 provides:

A new trial shall be granted, upon contra-

dictory motion of any party, in the following

cases:

(1) When the verdict or judgment appears

clearly contrary to the law and the evidence.

(2) When the party has discovered, since

the trial, evidence important to the cause, which

he could not, with due diligence, have obtained

before or during the trial.

(3) When the jury was bribed or has

behaved improperly so that impartial justice has

not been done.

To obtain a new trial on the basis of newly discov-

ered evidence there must be a clear showing not only that

the evidence was discovered after trial, but that every

reasonable and diligent effort was made to procure it

before trial. LeBlanc v. Consolidated Aluminum Co., 401

So.2d 1082 (La. App. 3 Cir.), writ denied, 409 So.2d 617

(La.1981).

Defendants argue that they did not become aware of

plaintiff’s expert’s opinion until September 12, 1990, six-

teen days before trial and that at that time they began

efforts to board the M/V Atlantia. The ship did not enter

the United States until September 24, 1990; and then it

40a

had to be moved several times. The videotape was made_

on September 28, 1990 (the same day the trial began) and

defendants received it October 1, 1990 one week after

trial. However, defendants did not seek to have the tape

introduced into evidence until November 2, 1990 - a

delay of over four weeks.

From the record before us, we find that defendants

have not borne their burden of showing that the video-

tape was “newly discovered” evidence and therefore are

not entitled to a new trial. Defendants had full knowl-

edge that the tape was being made on the day of trial.

However, they withheld this important information from

the court and opposing counsel and they made no

attempt to have the trial judge hold the case open until

the tape could be viewed and offered into evidence.

Furthermore, although defendants received the tape

on October Ist, they waited over a month to seek its

introduction into evidence. Under all these circumstances,

we see no abuse of discretion whatsoever in the trial

court’s ruling denying defendant’s motion for new trial.

Although this Court allowed defendants to supple-

ment their brief with a copy of the videotape out of an

abundance of caution to insure fairness, we decline to

examine the videotape since it was not introduced into

evidence at trial. Uniform Rules of Court - Courts of

Appeal — Rule 1-3. Coleman E. Adler & Sons, Inc. v. Wag-

goner, 538 So.2d 1131 (La.App. 5 Cir.1989).

LIABILITY OF MOC

Under both general maritime law and the Jones Act,

the employer of the seamen and the vessel owner may be

4la

liable for negligent injury or death, or injury or death

resulting from the unseaworthiness of the vessel. Sym-

eonides v. Cosmar Compania Naviera, S.A., 433 So.2d 281

(La.App. 1 Cir.), writ denied, 440 So.2d 731 (La.1983), cert.

denied, Cosmar Compania Naviera, S.A. v. Symeon Sym-

eonides, 465 U.S. 1079, 104 S.Ct. 1442, 79 L.Ed.2d 762

(1984).

MOC alleges that it does not own or operate the M/T

Atlantia and was not the employer of plaintiff, and there-

fore, the trial court erred in holding MOC liable under

general maritime law or under the Jones Act.

We are aware that only an employer can be liable

under the Jones Act. Karvelis v. Constellation Lines S.A.,

806 F.2d 49 (2nd Cir.1986), cert. denied, Constellation Lines

S.A. v. Karvelis, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d

498 (1987). However, for the purposes of recovery, it may

be possible for a seaman to have more than one Jones Act

employer. Guidry v. South Louisiana Contractors, Inc., 614

F.2d 447 (5th Cir.1980). In determining who is an

employer for recovery under the Jones Act, “control” is

the critical inquiry:

Factors indicating control over an employee

include payment, direction, and supervision of

the employee. Also relevant is the source of the

power to hire and fire. The control which is

exercised must be substantial; the mere possi-

bility of some control over the actions of an

employee will not suffice to find an employer-

employee relationship.

Volyrakis v. M/V Isabelle, 668 F.2d 863, 866 (Sth Cir.1982).

We find here that MOC was an employer under the

Jones Act for the following reasons.

42a

The record in this case establishes that all of the crew

members of M/V Atlantia who testified, including plain-

tiff, stated that MOC was their employer. Port Captain

Williams also testified that the crew of the M/V Atlantia

were working “indirectly” for MOC. Donald Farmer of

MOC testified that MOC was responsible for “crewing”

the vessel and for attending to all crew matters. The

contract between MOC and Atlantia gave MOC “sole and

exclusive management . . . of the said vessel,” including

the power to hire and fire crew, prepare payroll and

otherwise conduct all business of the vessel — nothing

could be more clear. Furthermore, the reports of plain-

tiff’s injury were sent to MOC. In view of the above facts,

we see no manifest error in the trial court’s finding that

MOC was plaintiff’s employer.

Although both plaintiff and defendants argue the

ownership status of MOC, the trial court made no finding

regarding MOC’s status as owner pro hac vice of the

M/V Atlantia. Because we find plaintiff can recover dam-

ages from MOC, under the Jones Act, the issue of

whether MOC is also owner, pro hac vice,’ of an

1 An owner pro hac vice is:

. .. one who assumes by charter or otherwise ‘exclu-

sive possession, control, command, and navigation’

of a vessel for a specific period of time. An owner pro

hac vice ‘has complete — though perhaps only tempor-

ary — dominion over the vessel entrusted to him. He

commands her navigation and is entitled to avail him-

self fully of her services.’ ‘It is therefore tantamount

to, though just short of, an outright transfer of owner-

ship.’ [Citations omitted].

Bernier v. Johns-Manville Sales Corp., 547 F.Supp. 389, 394 (1982).

43a

unseaworthy vessel is academic and need not be

addressed. McFarland v. Justiss Oil Co. Inc., 526 So.2d 1206

(La.App. 3 Cir.1988).

DAMAGES

The trial court awarded damages to Hae Woo Youn as

follows:

1. Medical Expenses, future $ 40,000.00

2. Past loss of net earnings $ 22,642.00

3. Future loss of net earnings $ 200,000.00

4. Past loss of found $ 3,748.00

5. Future loss of found $ 37,474.00

6. Past physical pain and suffering $ 200,000.00

7. Future physical pain and suffering $ 300,000.00

8. Past mental anguish and

loss of enjoyment of life $ 200,000.00

9. Future mental anguish and

loss of enjoyment of life $ 300,000.00

10. Disability and disfigurement $ 400,000.00

TOTAL $1,703,864.00

MOC and Atlantia presents several allegations of the

excessiveness of these awards.

First, defendants allege that the trial court erred in

awarding $1.4 million in general damages.

In Sutton v. Central Gulf Lines, Inc., supra, this Court

set down the guidelines to review damage awards in a

Jones Act case:

In reviewing damages awarded to injured

seamen under the Jones Act, such awards will

44a

not be disturbed unless they are so large as to

shock the judicial conscience or indicate bias,

passion, prejudice, corruption or any other

improper notice. Allen v. Seacoast Products, Inc.,

623 F.2d 355 (Sth Cir.1980). Further, in non-jury

actions, the trial court’s determination of dam-

ages is reviewable only for abuse ef discretion,

subject to being set aside as a finding of fact

under the ‘clearly erroneous’ standard of Rule

52(a) of the Federal Rules of Civil Procedure.

Smith v. Manausa, 535 F.2d 353 (6th Cir.1976). As

to excessive awards, each case must be deter-

mined on its own facts and comparing damage

verdicts rendered in different cases is not a sat-

isfactory method for determining excessiveness

in a particular case. Allen, 623 F.2d at 364 (Quot-

ing Wiley v. Stensaker Schiffahrtsges, 557 F.2d

1168, 1172 (Sth Cir.1977).

However, if an abuse of discretion is found, then this

Court may resort to prior awards in comparable cases for

guidance in fixing the appropriate award. The award may

be lowered (or raised) to the highest (or lowest) point

which is reasonably within the trial court’s discretion.

Tracy v. Jefferson Parish, 523 So.2d 266 (La.App. 5 Cir),

writ denied, 530 So.2d 569 (La.1988); Spangler v. North Star

Drilling Co., 552 So.2d 673 (La.App. 2 Cir.1989).

Youn’s injury consisted of a severe lacerations [sic] of

the femoral artery and femoral vein in his left leg and

severed main artery and vein in the lower part of the leg,

requiring that both the artery and vein be replaced and

reconstructed. Youn initially spent five weeks and under-

went five surgeries at Our Lady of the Lake Hospital in

East Baton Rouge. Eventually, two-thirds of his quadriaps

muscle was removed. During his hospital stay, Youn was

45a

in great and sustain pain requiring heavy sedation. He

was also fearful that his leg would have to be amputated.

After his return to Korea, Youn ruptured the ham-

string muscle which required surgical repair. The condi-

tion of Youn’s leg as a result of the accident prevented the

hamstring muscle from healing normally, thus causing

additional damage.

Youn currently has between a 30-35% disability of the

left lower extremity, which translates to a 14% total dis-

ability rating of the entire body. The leg is void of muscle

mass, and consists of only bone, artery and skin. His left

leg is considerably thinner than his right and is covered

with scars from groin to foot. However, plaintiff is able to

walk without crutches or other aid, but he walks with a

moderate limp. He currently takes pain medication on an

occasional basis. Youn cannot stand for extended periods

of time and will never be able to do heavy work. In

addition, Youn may have to undergo further surgery in

the future. Youn also stated that the appearance of his leg

has caused him anxiety, embarrassment and pain and has

caused marital difficulties.

Even though Youn’s injuries are undoubtedly severe,

and permanent in some respects, we find that in certain

areas, the trial court abused its discretion (on the high

side) in awarding damages of 1.4 million dollars. Accord-

ingly, we turn to comparable cases to determine the high-

est amount the trial court could have reasonably awarded

in this case.

In Jaffarzad v. Jones Truck Lines, Inc., 561 So.2d 144

(La.App. 3 Cir.), writ denied, 565 So.2d 450 (La.1990),

plaintiff suffered injuries to both legs as a result of an

46a

automobile accident. Plaintiff was initially hospitalized

for over three months during which time three surgeries

were performed. After his release, he underwent two

more surgeries, and his doctor predicted that he would

need one more operation. Plaintiff was partially disabled,

with a 15% functional impairment to his left leg and a 5%

functional impairment to his right leg. He could not do

prolonged walking or manual labor. Plaintiff also suf-

fered from back pain due to his unnatural walking gait.

The trial court awarded damages of $250,000.00. On

appeal, the court increased plaintiff's award of general

and special damages to $450,000.00.

In Peterson v. Western World, 536 So.2d 639 (La.App. 1

Cir.1988), writ denied, 541 So.2d 858 (La.1989), the 39 year

old plaintiff fell fifteen to twenty feet off a structure and

sustained a severe compression fracture of the right

ankle, a fracture of the left heel and a compression frac-

ture of the spine. Plaintiff was hospitalized for one week

following surgery where two inch screws were implanted

in his right ankle. Plaintiff was then bedridden for three

weeks, wheelchair bound for a few weeks and then

walked with crutches for two - three weeks. During his

first few weeks, plaintiff’s pain was so great he could not

talk on the phone. Plaintiff underwent a second unsuc-

cessful operation to remove the screws from his ankle. At

the time of trial, plaintiff had a 25 to 40% permanent

partial disability, was expected to undergo at least one

more surgical procedure, was unable to continue working

Or participate in recreational sporting activities. On

appeal, the court affirmed a general damage award of

$400,000.00.

47a

In LeBleu v. Dynamic Indus. Constructors, 526 So.2d

1184 (La.App. 3 Cir.), writ denied, 528 So.2d 154 (La.1988),

plaintiff's right ankle was fractured in a construction

accident (plaintiff had lost his left leg in a prior hunting

accident.). After surgery, complications arose and plain-

tiff could not use the ankle at the time of trial. Plaintiff

was totally disabled, could walk only short distances

with extreme effort and could no longer enjoy recre-

ational activities. Plaintiff also developed traumatic neu-

rosis. On appeal the trial court affirmed a general damage

award of $300,000.00.

In Snyder v. Taylor, 523 So.2d 1348, 1355-56 (La.App. 2

Cir.), writ denied, 531 So.2d 267, 268 (La.1988), plaintiff

was involved in an automobile accident. His injuries

were, in Our opinion, similar in severity in many respects

to those suffered by the plaintiff here:

Plaintiff suffered multiple and severe inju-

ries. He was unconscious in the highway for

40-45 minutes before an ambulance arrived. The

witness Curtis said that before the ambulance

arrived he observed that

The bone was sticking out of [plaintiff's] left

thigh. His knee was turned around almost

touching his left buttock area. His right foot

was turned completely around, and his

ankle bone was sticking through his sock.

Curtis said that plaintiff was screaming as he held him

down and covered him with a blanket.

Plaintiff, his wife, and experts testified about the past

and present extent of his injuries and disabilities.

Depositions of Dr. Bailey and Dr. Moyer, the orthopedic

—

48a

surgeons who treated plaintiff, were introduced. Dr. Bai-

ley said:

He had an obvious open fracture of the

left femur, or the thighbone, between the—

knee and the hip, that the bone was broken

and out through the skin. * * *

He had a closed or a fracture without

protrusion of the bone through the skin of

the same leg below the knee, with obvious

deformity and swelling in that area, and an

obvious fracture that was out of line. [Both

bones below the knee were broken.] * * *

He had a dislocation of the right ankle,

again open with the entire lower tibia, or

shinbone, and the top of the ankle exiting,

or stuck out, through the skin, also. * * *

[The right foot] was attached, but was

rotated about 130 degrees . . . He had no

pulse in his foot.

Dr. Bailey stated that the repair of plaintiff's

right ankle and foot and left leg required several

surgeries in which plates and pins were inserted

and bone grafts were performed.

Although the most serious injuries suffered

by plaintiff were those to his lower extremities,

plaintiff also suffered a broken and lacerated

nose, a lacerated eyelid, a lacerated lip, a

severely lacerated left forearm, and broken and

disaligned teeth.

Also in Snyder:

Plaintiff underwent nine separate surgical pro-

cedures.

49a

Dr. Bailey expected plaintiff to suffer con-

tinued pain in his right ankle and weakness in

his left leg due to arterial injuries.

Dr. Moyer stated that plaintiff has restricted

motion of 20 percent in his right ankle and that

the left tibia (lower leg) is bowed or malaligned.

Dr. Moyer believed that the likelihood of a

degenerative process of the left knee was ‘very,

very good’ due to the malalignment in the left

leg. He recommended that plaintiff refrain from

any activity that would put pressure on his legs

and suggested swimming or bike riding for

physical activities.

Plaintiff testified at trial almost six years

after the accident. He said he continues to suffer

pain and stiffness in his right ankie, numbness

in his left leg, lower back pain and stomach

problems due to the extensive medication he has

taken since the accident.

Plaintiff, a healthy 28-year-old engineer in

1980, was physically active and enjoyed jogging

and suow skiing before the accident. He has

since been unable to engage in such activities.

Plaintiff suffered what was described as

severe pain, especially in the hours and days

immediately following the accident. He was

hospitalized more than 30 days. He was in the

early stages of a career which required physical

exertion. Plaintiff is forever prevented from par-

ticipating in many of the previous physical

activities he enjoyed and continues to suffer

pain with substantial prospects for further

degenerative problems.

Plaintiff’s physical injuries are comparable

to those suffered by the young plaintiff in Klein

50a

v. Himbert, 474 So.2d 513 (La.App. 4 Cir.1985),

who was awarded $300,000 in general damages.

Unlike the plaintiff Klein, supra, plaintiff’s dis-

abilities also prevent him from being a physi-

cally active civil engineer, a career for which he

was educated and trained.

The appellate court found no abuse of discretion in

the trial court’s award of $325,000.00.

In Simeon v. T. Smith & Sons, Inc., 852 F.2d 1421 (5th

Cir.1988), cert denied, T. Smith & Sons, Inc. v. Simeon, 490

U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989), plain-

tiff’s foot was nearly severed from his ankle. He was

hospitalized for two months and underwent a series of

operations. At the time of trial, plaintiff could only walk

short distances, had to use a cane and was unable to

return to work. He was depressed and was experiencing

marital difficulties. After trial, the jury returned a verdict

with a general award of damages of $1,250,000.00. The

trial court ordered a remittitur of $750,000.00. On appeal,

the court further reduced the award, awarding general

damages of $600,000.00. In reaching this figure, the court

examined eight cases involving comparable injuries,

which contained various awards of general damages

ranging from $75,000.00 to $500,000.00.

Comparing the facts in the above case and the var-

ious awards with the facts and the award in the present

case for total damages we find that a total of $600,000.00

is the maxinuum amount the trial court could have rea-

sonably awarded and accordingly, we find that the

awards of damages must be reduced in this case. |

We are aware that the comparable awards discussed

are all for “general” damages which would include past

5la

and future physical pain, past and future mental anguish

and loss of enjoyment of life and disability and disfigure-

ment. However, in the case sub judice, we find it necessary

to break down the award into categories (as did the trial

court) because of the necessity under admiralty law to

exclude pre-judgment interest on future, unaccrued non-

economic damages; see discussion, infra.

Accordingly, we partition the award of general dam-

ages as follows:?

TOTAL $600,000.00

Past Physical Pain and Suffering 85,800.00

Future Physical Pain and Suffering 128,400.00

Past Mental Anguish and

Loss of Enjoyment of Life 85,800.00

Future Mental Anguish and

Loss of Enjoyment of Life 128,400.00

Disability and Disfigurement 171,600.00

Past 68,640.00

Present and Future Damages 102,960.00

? In the original general damage award, the individual ele-

ments were proportionate to the whole in the following percent-

ages: Past physical pain and suffering — 14.3%; future physical

pain and suffering — 21.4%; past mental anguish and loss of

enjoyment of life - 14.3%; future mental anguish and loss of

enjoyment of life — 21.4%; and disability and disfigurement -

28.6%. Furthermore, the past awards compared to the future

awards in a ratio of 2 to 3. Accordingly, in reducing the award,

we have utilized the same percentages.

52a

PRE-JUDGMENT INTEREST

Atlantia and MOC allege that the trial court erred in

awarding pre-judgment interest on the damage award for

future losses. When a case is brought under the general

maritime law as well as a Jones Act claim, tried before a

judge, award of pre-judgment interest lies within the trial

court’s discretion. Mihalopoulos v. Westwind Africa Line,

Ltd., supra; Williams v. Reading and Bates Drilling Co., 750

F.2d 487 (5th Cir.1985).

However, while the trial court generally has discre-

tion to award pre-judgment interest on most damage

awards, pre-judgment interest is not awardable on future,

unaccrued damages. Boyle v. Pool Offshore Co., a Div. of

Enserch Corp., 893 F.2d 713 (5th Cir.1990); Spangler v. North

Star Drilling Co., supra.

Accordingly, we further amend the judgment to

reflect that plaintiff 1s entitled to pre-judgment interest on

awards for damages except those for future damages.

Plaintiff is entitled to interest from date of judgment on

those amounts.

FUTURE MEDICAL EXPENSES

In order to recover for future medical expenses, a

plaintiff must prove that it is more probable than not that

such expenses will be undertaken and incurred. Whatley

v. Regional Transit Authority, 563 So.2d 1194 (La.App. 4

Cir.1990), writ denied, 569 So.2d 965 (La.1990).

Dr. Davis, one of plaintiff’s initial treating physi-

cians, testified that the estimated longevity of a vascular

graft was 10 years, therefore, it was more probable than

53a

not that plaintiff would have to undergo surgery within

ten years. Plaintiff’s life expectancy from date of trial was

33.8 years; therefore, it is more probable than not that

plaintiff will be required to undergo more than one surgi-

cal procedure. Dr. Davis testified further that the present

cost of such surgical procedure is $10,000.00. Dr. Davis

also stated that plaintiff should see a vascular surgeon for

an examination once a year.

Dr. Martin Bell, another treating physician, testified

that he recommended reconstruction surgery for plain-

tiff’s thigh, which would currently cost $23,500 to

$42,000.

Plaintiff testified that he presently did not wish to

undergo surgery, however, Dr. Davis testified in effect,

that his physical condition would decline to the point in

the future where he would be required to undergo surgery.

Considering the above testimony we see no abuse in

the trial court’s discretion awarding $40,000.00 for future

medical expenses.

PAST LOST EARNINGS

Defendants allege that the trial court erred in award-

ing lost wages without taking into consideration that

Youn was paid full wages from the date of the accident

until October, 1989 and 60% of his wages from November,

1989 until the trial. Defendants argue that awarding

plaintiff the full amount of wages to which he was enti-

tled from date of accident to date of trial constitutes

double recovery.

54a

Plaintiff's argument in response is two-fold. First, he

argues that defendants failed to affirmatively plead offset

or credit as a defense and therefore cannot raise this issue

on appeal. Second, plaintiff alleges that defendants were

obligated to pay these amounts as maintenance and cure.

Affirmative defenses have been held to be:

. any response(s] by the defendant which

raises new matter which ‘assuming the allegations

of the petition to be true, constitutes a defense to

the action which will have the effect of defeating

the plaintiff's suit on the merits.’ Langhans v.

Hale, 345 So.2d 1226 (La.App. 1st Cir.1977), Mod-

icut v. Bremer, 398 So.2d 570 (La.App. Ist

Cir.1980), and Rourke v. Cloud, 398 So.2d 57

(La.App. 3rd Cir.1981).

Nolan v. Attwood, 484 So.2d 289, 292 (La.App. 3 Cir.1986).

The Third Circuit has also held that a claim of credit

Or payment is an affirmative defense which must be

specifically pleaded and provided by the defendant. Gal-

land v. Nat. Union Fire Ins. Co., 452 So.2d 397 (La.App. 3

Cir.1984). We are inclined to agree.

A review of the record shows that defendants did not

raise offset or credit as a defense in any of their pleadings

filed. However, in the case before us, defendants are not

precluded from raising payment as a defense for the

following reasons. At the trial, plaintiff stipulated that he

was paid his wages, pursuant to union contract. Donald

Farmer, MOC’s Assistant Manager of the Crew Depart-

ment, also testified that plaintiff was paid after the date of

the accident pursuant to union contract. Objection was

made by the defendants to the introduction of the union

contract itself; however, there is no objection on the

a eeasneacinnenealeneeeeiaieeneineaeneiaiiel

55a

record to the evidence that plaintiff received payment

from the date of injury to the date of trial.

C.C.P. art. 1154 provides:

When issues not raised by the pleadings are

tried by express or implied consent of the par-

ties, they shall be treated in all respects as if

they had been raised by the pleading. Such

amendment of the pleadings as may be neces-

Sary to cause them to conform to the evidence

and to raise these issues may be made upon

motion of any party at any time, even after

judgment; but failure to so amend does not

affect the result of the trial of these issues. If

evidence is objected to at the trial on the ground

that it is not within the issues made by the

pleadings, the court may allow the pleadings to

be amended and shall do so freely when the

Presentation of the merits of the action will be

subserved thereby, and the objecting party fails

to satisfy the court that the admission of such

evidence would prejudice him in maintaining

his action or defense on the merits. The court

May grant a continuance to enable the objecting

party to meet such evidence.

Accordingly, our view is that the pleadings in this

Case were enlarged to include the affirmative defense of

setoff or credit by the introduction of evidence of pay-

ments to plaintiff without objection. In accord, see Sider v,

Robin Temporary Service, 515 So.2d 1123 (La.App. 5

Cir.1987), writ denied, 519 So.2d 146 (La.1988) and Lacroix,

Waring and Derbonne v. Anderson, 461 So.2d 1187 (La.App.

3 Cir. 1984), writ denied, 465 So.2d 735, 737 (La.1985).

However, our view above is actually of no help to

defendants because plaintiff argues that the payments he

56a

received were in the nature of “maintenance” and not lost

wages — and we agree - for the following reasons.

In Ceja v. Mike Hooks, Inc., supra, the court held that

maintenance payments could not be deducted from an

award for past lost wages and it also defined “mainte-

nance,” as follows:

Appellant argues that the trial court erred

in using the motive of preventing double recov-

ery to offset the award of past lost wages with

the amount of maintenance paid. On the basis of

our recent decision, in Morel v. Sabine Towing &

Transportation Co., 669 F.2d 345 (5th Cir.1982), we

agree.

In Morel, appellant shipowner had appealed

the district court’s award of maintenance to an

injured seaman during a period of compensated

vacation. The Morel panel, viewing compensated

vacation as a method of deferred wage payment

and hence as ‘earned wages,’ held that the dis-

trict court’s award of both damage elements was

proper as wages were ‘separate and distinct

from maintenance.’ Id. at 347. The Court elabo-

rated:

‘Maintenance’ is the equivalent of the

food and lodging to which a seaman is enti-

tled while at sea. Maintenance, and its nec-

essary Companion cure, are hallowed rights

of seaman who are injured or become ill

while in the service of a ship.

Maintenance is neither a substitute for

wages nor is it to be considered in lieu of a

seaman’s wages, in whole or in part.

cece

57a

Id. at 346. We have conciuded therefore, that

absent an ‘explicit contractual provision specify-

ing that . . . wages [are] to be deemed a substi-

tute for maintenance, there is no basis for

crediting such earned wages against the vessel

owner’s maintenance obligation.’ Id. (quoting

Shaw v. Ohio River Co., 526 F.2d 193 (3d Cir.1975).

[Footnotes omitted].

In the case sub judice, the union contract specifying

plaintiff’s terms of employment and rate of pay provided:

SICK PAY

SECTION 17

(1) When a Seafarer is discharged and hospi-

talized at any port outside of Korea,

because of sickness or injury, the amount

equivalent to his Basic Wage daily prorate

shall be paid as the Sick Pay for the hospi-

talization period outside of Korea.

(ili) In case the sickness or injury is due to an

accident arising out of and/or in the

course of the Seafarer’s employment, he

shall be entitled to sick pay at a rate equiv-

alent to his Basic Wage daily prorata dur-

ing the medical attention for a maximum

period of four (4) months from the date of

his return to Korea, and when the sickness

or injury has not been cured after the lapse

of this four months, the Sick Pay shall be

sixty (60) percent of his Basic Wage there-

from until he is medically declared to have

reached a maximum cure or to be incur-

able.

It is apparent that this provision sets forth a method to

calculate the amount of “maintenance and cure” a seaman

58a

is entitled to; it does not state that wages are to be paid in

lieu of maintenance. Therefore, because there is no

express contractual provision specifying that wages are to

be deemed a substitute for maintenance we find that the

trial court did not err in awarding lost wages without a

credit for sums paid to plaintiff from date of accident to

date of trial as these latter sums constitute “maintenance

and cure” and not wages. See Ceja, supra.

LOSS OF “FOUND”

Defendants assigns [sic] as error, the award for the

“loss of found”> suffered by the piaintiff in the amount of

$41,222.00. We agree.

In his reasons for judgment, the trial judge gave this

rationale for this item of damages:

“The court finds that the plaintiff carried his

burden of proof on the issue of ‘found’ through

testimony that the plaintiff was provided with

clothing and meals everyday which would

equate to at least $10.00 per day in value. The

Court takes ‘judicial notice’ of the costs of such

matters.”

LSA-C.E. 201 provides:

A. Scope of Article. This Article governs

only judicial notice of adjudicative facts. In

3 “Found” is a term peculiar to admiralty cases. It is

usually defined as the sum which represents the living

expenses furnished to the seaman by his employer as a condi-

tion of employment. Maraist, Admiralty in a Nutshell. It

includes such elements as a seaman’s daily meals and his

clothing.

aerate eaten emmnmertmiaiiel

OP peat

59a

‘adjudicative fact’ is a fact normally determined

by the trier of fact.

B. Kinds of facts. A judicially noticed fact

must be one not subject to reasonable dispute in

that it is either:

(1) Generally known within the territorial

jurisdiction of the trial court; or

(2) Capable of accurate and ready deter-

mination by resort to sources whose accuracy

cannot reasonably be questioned.

C. When discretionary. A court may take

judicial notice, whether requested or not.

D. When mandatory. A court shall take

judicial notice upon request if supplied with the

information necessary for the court to determine

that there is no reasonable dispute as to the fact.

E. Opportunity to be heard. A party is

entitled upon timely request to an opportunity

to be heard as to the propriety of taking judicial

notice and the tenor of the matter noticed. In the

absence of prior opportunity to be heard, the

request may be made after judicial notice has

been taken.

F. Time of taking notice. A party may

request judicial notice at any stage of the pro-

ceeding but shall not do so in the hearing of a

jury. Before taking judicial notice of a matter in

its instructions to the jury, the court shall inform

the parties before closing arguments begin.

G. Instructing jury. In a civil case, the

court shall instruct the jury to accept as conclu-

Sive any fact judicially noticed. In a criminal

case, the court shall instruct the jury that it may,

60a

but is not required to, accept as conclusive any

fact judicially noticed.

In Elliott v. U.S. Fidelity & Guar. Co., 568 So.2d 155

(La.App. 2 Cir.1990), the court observed:

Disputed facts are not in the same vein as

the laws of nature, geographic and historical

facts, time, laws and other matters of common

knowledge. The resolution of disputed issues of

material fact by judicial notice is improper.

Pierce v. Board of Supervisors of Louisiana State

University, 392 So.2d 460 (La.App. 1 Cir.1979).

The value of lost meals and clothing are those types

of facts which are disputed. Consequently, we find that

the trial court was not entitled to take “judicial notice” of

the loss of found or the amount thereof. The record reflect

that plaintiff did not offer any evidence as to the value,

per day, of meals and clothing or as to how many days

the plaintiff would have been entitled to receive meals

and clothing. Accordingly, we hold that the trial court

did, indeed, err in awarding plaintiff $41,222.00 for “loss

of found.” This award of the trial court is obviously

manifestly erroneous and will be annulled and set aside.

APPLICABILITY OF THE DIRECT ACTION STATUTE

In pre-trial, GARD filed exceptions of no cause and/

or right of action, alleging among other things that it

could not be sued under the Direct Action Statute, LSA-

R.S. 22:655, because that statute did not apply to “ocean

marine and foreign trade insurances” quoting LSA-R.S.

22:611 which provides that “the applicable provision of

this [Insurance Code] shall apply to insurance other than

ocean marine and foreign trade insurances.” GARD now

Ee

6la

alleges on appeal that the trial court erred in denying .

GARD’s exception of no cause and/or right of action. We

do not agree.

R.S. 22:655 allows a plaintiff to proceed directly

against an insurance company who has issued a policy or

contract «f liability insurance. In Quinlan v. Liberty Bank

and Trust, 575 So.2d 336, 347 (La.1991) the court held that

the statute “applies to any insurance against the liability

of the insured for the personal injury or corporeal prop-

erty damage to a tort victim, regardless of whether the

policy is formed in liability or indemnity terms[.]”

[Emphasis supplied]. It has been held that protection and

indemnity insurance, and more particularly, ocean marine

indemnity insurance is subject to the Direct Action Stat-

ute. Olympic Towing Corp. v. Nebel Towing Co., 419 F.2d 230

(Sth Cir.1969), cert. denied, Nebel Towing Co. v. Olympic

Towing Co., 397 U.S. 989, 90 S.Ct. 1120, 25 L.Ed.2d 396

(1970); Cushing v. Maryland Cas. Co., 198 F.2d 536 (Sth

Cir.1952) rev'd on other grounds 347 U.S. 409, 74 S.Ct. 608,

98 L.Ed. 806 (1954).

In Coleman v. Jahncke Service, Inc., 341 F.2d 956, 960-61

(Sth Cir.1965), cert. denied, Jahncke Service, Inc. v. Greater

New Orleans Expressway Commission, 382 U.S. 974, 86 S.Ct.

538, 15 L.Ed.2d 465 (1966), the court said:

LSA-Rev. Stat. 22:611 provides that the Louisi-

ana Insurance Code ‘shall apply to insurances

other than ocean marine and foreign trade

insurances.’ The district court, however, held

that the policy issued to Jahncke, although a

policy of hull insurance, was also a public lia-

bility policy, subject to the Code, and therefore

to the Direct Action Statute. The policy insured

62a

Jahncke against liability for personal injury or

property damage caused by the Claribel. The

direct action statute, by its terms, applies to

every ‘policy or contract of liability insurance.’

Though historically no love has been lost

between the direct action statute and the Fifth

Circuit, we resist the temptation to manacle an

old and now beaten enemy. “There is no indica-

tion in sec. 655 that the Louisiana legislature

intended to deny the right of direct action to

persons covered by maritime policies, while

extending it to all others.

Accordingly, we agree with appettee‘s contention

that, the general language at the beginning of section XIV

(LSA-R.S. 22:611, supra) of the insurance code does not

supersede the more specific language of the Direct Action

Statute which allows a plaintiff to proceed directly

against all liability policies, including ocean marine

indemnity insurance policies.

The defendants cite Deshotels v. SHRM Catering, 538

So.2d 988 (La.1989); Backhus v. Transit Cas. Co., 549 So.2d

283 (La.1989) and Sifers v. General Marine Catering Co., 892

F.2d 386 (5th Cir.1990) in support of their contention that

the direct action statute does not apply to ocean marine

insurance. These cases involved the claims against the

Louisiana Insurance Guaranty Association (LIGA). We

find these cases distinguishable or inapplicable from the

instant case and decline to fellow them.* We are not

bound by these decisions and decline to follow them.

4 In Deshotels, supra at 992-93, the court stated that:

The Louisiana Insurance Code does not define

‘ocean marine’ insurance. That insurance is not only

63a

Accordingly, we conclude that the trial court cor-

rectly denied GARD’s exception of no cause and/or right

of action concerning the Direct Action Statute.

excluded from LIGA coverage but also from the

scope of Part XIV, which applies to ‘The Insurance

Contract’ and includes the Louisiana direct action

statute. In context, the term ‘ocean marine’ is used as

a synonym for traditional marine insurance, that is,

property insurance on hulls, freights and cargoes.

Blair [v. Sealift, Inc.], supra. It contrasts with the

definition of marine protection insurance in LSA-R.S.

22:6(13)(e), which is insurance against liability for

death or personal injury resulting from use of a

vessel ‘in ocean or inland waterways.’

Sifers, Coe [v. L & L Sandblasting, Inc., 707 F.Supp.

874 (W.D.La.1988)], George [v. Bailey Coke and Trans-

port, Inc., 672 F.Supp. 926 (E.D.La.1987)), Day and

Backhus erred in equating all insurance covering

maritime claims with ‘ocean marine’ insurance.

LSA-R.S. 22:1377 states that Guaranty Associa-

tion insurance applies ‘to all kinds of direct insur-

ance, except life, health and accident, title, disability,

mortgage guaranty, and ocean marine insurance.’

These categories enumerate different kinds of insur-

ance policies, rather than different risks. It follows

that the exclusion for ocean marine insurance does

not apply to employers’ liability policies which inci-

dentally cover risks associated with maritime activ-

ities.

In view of the liberal construction given LIGA’s

Protection to the insureds of insolvent companies, it

would be anomalous to allow employees to walk in

and out of LIGA protection as they board or disem-

bark from a vessel. LIGA has accepted premiums for

this covered claim and cannot now deny coverage.

An insurance policy which insures an employer

against liability to employees is not a policy of

64a

PROOF OF INSURANCE COVERAGE.

GARD alleges that the trial court erred in finding

them liable in solido because the plaintiff failed to prove

‘ocean marine’ insurance merely because it embraces

some maritime risks.

In Deshotels, a protection and indemnity policy such as the

one in this case was not considered an ocean marine policy.

In Backhus v. Transit Cas. Co., supra, the court found that

under the definitional statutes in the LIGA code, marine pro-

tection and indemnity policies fell within the scope of ocean

marine insurance. Two members of the Backhus court dissen-

ted.

In Sifers, supra, the Fifth Circuit followed Backhus, and

found that plaintiffs who have suffered personal injuries and

defendants who have been forced to pay for those injuries have

no recourse against LIGA pursuant to defendant’s protection

and indemnity policy, as those policies, under LIGA statutes,

were policies of marine insurance.

More recently, in Delaune v. Saint Marine Transp. Co., 749

F.Supp. 1463 (E.D.La.1990), the court held that the Louisiana

Supreme Court in Deshotels and Backhus implicitly overruled

the holding in Cushing, supra and its progeny, (including Cole-

man, supra) that under Louisiana state law a direct action may

be asserted against a marine protection and indemnity policy.

See also Perreira v. Saint Marine Transp. Co., 1991 A.M.C. 1213,

1990 WL 299890 (E.D.La.1990).

Furthermore we note that the federal courts of Eastern

District of Louisiana are not uniform in this conclusion.

In Tassin v. Hess Marine, 1990 W.L. 93831 (E.D.La., June 28,

1990) and in Butler v. Western Company, 1990 W.L. 93855

(E.D.La., June 28, 1990), the plaintiff was allowed to proceed

directly against the insurer of the ship owner/employer. The

court refused to apply Backhus and Sifers, citing Cushing and

Coleman and held:

There is no indication that the legislature

intended that the term ‘ocean marine insurance’ as

used in Section 22:611 should be applied to Section

65a

any insurance coverage by GARD for Atlantia and/or

MOC, and/or the terms and conditions of such coverage.

The burden of proof is on the plaintiff to establish

every fact in issue which is essential to his cause of action

or right of recovery, including the existence of the policy

sued on, its terms and provisions, and that his claim is

within its coverage. Vallery v. All American Life Ins. Co.,

429 So.2d 513 (La.App. 3 Cir.1983); writ denied, 434 So.2d

1091, 1100 (La.1983); Gulf Wide Towing v. F.E. Wright

(U.K.)., 554 So.2d 1347 (La.App. 1 Cir.1989); Barber v. Best,

394 So.2d 779 (La.App. 4 Cir.1981).

A review of the record reflects that plaintiff failed to

meet its burden of proof against GARD. GARD refused,

in the beginning of the trial to stipulate to its policy (as is

usually done) and plaintiff failed to introduce the policy

into evidence or otherwise prove any terms and condi-

tions of any such policy.

The only evidence in the record to Prove the exis-

tence and extent of insurance coverage is GARD’s answer

to plaintiff’s amended petition and Atlantia’s answer to

interrogatory No. 8. In its answer, GARD admitted that it

provided to the M/T Atlantia, and her Owner, a contract

of protection and indemnity, insuring against “certain

655 to deprive injured persons of the right to bring a

direct action against an insurance company merely

because the policy in question is a “protection and

indemnity’ policy while we certainly are not bound

by these cases emanating from the federal district

courts, they add strength to our position here.

Tassin v. Hess Marine, supra.

66a

specifically enumerated protection and indemnity risks.”

Atlantia, in answering interrogatory No. 8, said “Atlantia

Tanker Corporation is insured by Assuranceforeningen

GARD.” No other evidence of the existence or extent of

insurance coverage was introduced or admitted.

Since GARD admitted that some type of insurance

coverage existed, the plaintiff was entitled to use this

confession to prove its case. However, there is nothing in

the record which proves the terms and provisions of the

policy and/or that the coverage provided by the policy

encompasses plaintiff’s claim against Atlantia. Whereas

we conclude that GARD is technically correct in requiring

the plaintiff to introduce the policy and prove that it

covers the negligence and damages proven, we also do

not feel that equity or the ends of justice would be served

by allowing GARD to escape their just liability through

such technical legal maneuvering since both GARD and

Atlantia and MOC admitted the existence of a policy.

Accordingly, since we have ample precedence from other

courts for this action, we remand the case to allow plain-

tiff to obtain and introduce into evidence the policy and/

or evidence of its terms and provisions and the scope of

its coverage, all of which can be decided by the trial

judge. Mitchell v. Wall, 482 So.2d 817 (La.App. 4 Cir.1986);

Baleht Marine v. Fireman's Ins. Co. of Newark, 460 So.2d 16

(La.App. 1 Cir.1984); writ denied, 462 So.2d 654 (La.1985);

Lucas v. Doe, 371 So.2d 336 (La.App. 4 Cir.1979); Carriere v.

Triangle Auto SVC, 340 So.2d 665 (La.App. 4 Cir.1977).

67a

DENIAL OF CONTINUANCE.

On September 28, 1990, the first day of trial, GARD

sought a continuance, alleging that it had no knowledge

of the alleged defective condition of the control lever of

the winch until September 11, 1990, when plaintiff’s

deposition was taken. The motion for continuance was

denied and GARD applied to this Court for supervisory

writs. This Court refused to issue writs and denied relief,

finding no abuse of the trial court’s discretion. On appeal,

GARD again alleges as error the trial court’s denial of its

motion for continuance.

“A continuance may be granted in any case if there is

good ground therefor.” LSA-C.C.P. art. 1601. Such a

determination is within the sound discretion of the trial

court. Jen Point Properties, LTD v. Roussel, 506 So.2d 179

(La.App. 5 Cir. 1987).

The trial court, in denying the motion, stated that the

pleadings of plaintiff raised the issue of the defective

condition of the control lever, and therefore all parties

had notice of this issue from the inception of the lawsuit.

Although we feel our Previous denial of supervisory

writs is the “law of the case” (as per our previous discus-

sion herein), nevertheless, in an abundance of caution

and fairness, we have reviewed this issue again, see no

reason to change our previous position and, once more,

we find no abuse of discretion in the trial court’s ruling

denying GARD’s motion for continuance.

68a

DISPOSITION:

In accordance with our previous discussion herein,

the judgment in favor of plaintiff, and against Atlantia

and MOC finding them liable, in solido, for damages

incurred by plaintiff is amended to read as follows:

1. Medical expenses, future $ 40,000.00

2. Past loss of net earnings _ 22,642.00

3. Future loss of net earnings $200,000.00

4. Past loss of “found” -0-

5. Future loss of “found” -0-

6. Past physical pain and suffering 85,800.00

7. Future physical pain and suffering 128,400.00

8. Past mental anguish and

loss of enjoyment of life 85,800.00

9. Future mental anguish and

loss of enjoyment of life 128,400.00

10. Past Disability and disfigurement 68,640.00

Present and Future Disability and

disfigurement 102,960.00

TOTAL $862,642.00

The judgment is further amended to allow interest

from date of judicial demand for the awards for past loss

of net earnings, past physical pain and suffering, past

mental anguish and loss of enjoyment of life and past

disability and disfigurement. Interest is awarded from

date of judgment for the awards for future medical

expenses, future loss of net earnings, future physical pain

and suffering, future mental anguish and loss of enjoy-

ment of life and present and future disability and disfig-

urement.

Met Gaal Radh

69a

The judgment in favor of plaintiff and against GARD,

finding them liable, in solido, with the other defendants

is set aside and the case is remanded for final outcome

further proceedings in accordance with and not inconsis-

tent with this opinion.

Each party is to bear his own costs.

AMENDED, AND AS AMENDED, AFFIRMED IN

PART; SET ASIDE AND REMANDED IN PART.

70a

APPENDIX F

The Supreme Court of the State of Louisiana

HAE WOO YOUN

VS. NO. 92-C-3018

MARITIME OVERSEAS CORP.,

ATLANTIA TANKER CORP., AND

ASSURANCEFORENGEN GARD

IN RE: Martime Overseas Corp.; Atlantia Tanker Corp.;

- Defendant(s); Applying for Writ of Certiorari and/or

Review; to the Court of Appeal, Fifth Circuit, Number 91-

CA-0407; Parish of St. James 23rd Judicial District Court

Div. “C” Number 19,400

December 21, 1992

Denied.

PFC

JCW

HTL

PH

DENNIS, J., would grant the writ.

Supreme Court of Louisiana

December 21, 1992

/s/ Frans J. Labranche, Jr.

Clerk of the Court

For the Court

Se

7la

The Supreme Court of the State of Louisiana

HAE WOO YOUN

VS. NO. 92-C-3017

MARITIME OVERSEAS CORP,

ATLANTIA TANKER CORP., AND

ASSURANCEFORENGEN GARD

IN RE: Youn, Hae Woo; - Plaintiff(s); Applying for Writ of

Certiorari and/or Review; to the Court of Appeal, Fifth

Circuit, Number 91-CA-0407; Parish of St. James 23rd

Judicial District Court Div. “C” Number 19,400

December 21, 1992

GRANTED.

(See order attached)

Supreme Court of Louisiana

December 21, 1992

/s/ Frans J. Labranche, Jr.

Clerk of Court

For the Court

The Supreme Court of the State of Louisiana

HAE WOO YOUN

VS. NO. 92-C-3017

MARITIME OVERSEAS CORP, ET AL

a

72a

In re: Hae Wood Youn applying for Writ of Certiorari/

Review No. 19,400 on the docket of the 23rd Judicial

District Court for the Parish of St. James, and No. 91-

CA-0407 on the docket of the Court of Appeal, Fifth

Circuit, State of Louisiana.

And, whereas, the Court has this date, pursuant to

Article 5, Section 5, of the Constitution of Louisiana,

made and issued the following order, to-wit -— “It is

ordered that the writ of review issue; that the District

Court and the Court of Appeal send up the record in

duplicate of the case; and that counsel for all parties be

notified.”

Now, therefore, the said District Court and the Court

of Appeal is hereby commanded, in the name of the State

of Louisiana and of this Honorable Court, to send up

forthwith to this Court, at the City of New Orleans, the

record in duplicate of the above entitled case.

Witness the Honorable Justices of

the Supreme Court of the State of

Louisiana on this 21st day of Decem-

ber, in the year of Our Lord, One

Thousand, Nine Hundred and

Ninety-Two.

/s/ Frans J. Labranche, Jr.

Frans J. Labranche, Jr.

Clerk of Court

73a

APPENDIX G

In The

Supreme Court of the United States

October Term 1992

MARITIME OVERSEAS CORP.

AND ATLANTIA TANKER CORP.

Petitioners,

v.

HAE WOO YOUN

Respondent.

No. 92-1532

The petition for writ of certiorari is denied.

May 17, 1993

74a

APPENDIX H

In The

Supreme Court of the United States

October Term 1992

MARITIME OVERSEAS CORP.

AND ATLANTA TANKER CORP.

Petitioners,

HAE WOO YOUN

Respondent.

No. 92-1532

The petition for rehearing of order denying writ of

certiorari is denied.

June 21, 1993

75a

APPENDIX I

Application for

No. “90 -C- -90

COURT OF APPEAL, FIFTH CIRCUIT

STATE OF LOUISIANA

FEB - 5 1990

76a

/s/ (legible

Dty, Clerk

HAE WOO YOUN

VERSUS

MARITIME OVERSEAS CORPORATION AND

ATLANTIA TANKER CORPORATION

In Re MARITIME OVERSEAS CORPORATION AND

ATLANTIA TANKER CORPORATION

Applying for SUPERVISORY AND REMEDIAL WRITS

OF CERTIORARI, REVIEW, MANDAMUS AND/OR

PROHIBITION AND FOR A STAY ORDER DIRECTED

TO THE HONORABLE JOHN L. GOLDSMITH, JUDGE

23RD J.D.C., PARISH OF ST. JAMES, STATE OF LOUISI-

ANA, DIVISION “C”, NO: 19,400

Clayton G. Ramsey

James B. Kemp, Jr.

Attorneys at Law

400 Poydras St., 30th Floor

New Orleans, Louisiana 70130-3245

(504) 566-1311

Attorneys for Relator

Paul H. Due’

Attorney at Law

8201 Jefferson Highway

Baton Rouge, Louisiana 70809

(504) 929-7481

Attorneys for Respondent

Lewis O. Unglesby

Attorney at Law

246 Napoleon Street

Baton Rouge, Louisiana 70802

(504) 387-0120

——————————— |

77a

Gordon R. Crawford

Attorney at Law

324 E. Worthy

Gonzales, Louisiana 70737

(504) 647-2881

WRIT DENIED:

I see no reason to exercise our Supervisory jurisdiction in

this matter.

/s/ T.C.W., Jr.

JUDGE THOMAS C. WICKER, JR.

JJ. KLIEBERT AND GRISBAUM CONCURRING IN THE

DENIAL OF THE WRIT

A Jones Act claim may be brought as either a law claim or

an admiralty claim. Plaintiff’s amended petition speci-

fically designates his claim as an admiralty claim, thereby

eliminating any right to a jury trial. See La. C.C.P. art.

1732(6), FRCP 9(h), and FRCP 38(e).

/s/ T.J.K.

JUDGE THOMAS J. KLIEBERT

/s/ CG.

JUDGE CHARLES GRISBAUM, JR.

Gretna, Louisiana this 6th day of March, 1990.

78a

APPENDIX J

HAE WOO YOUN

v.

MARITIME OVERSEAS CORPORATION and

Atlantia Tanker Corporation.

No. 90-CC-0528.

Supreme Court of Louisiana.

April 16, 1990.

In re Maritime Overseas Corp.; Atlantia Tanker

Corp.; - Defendant(s); applying for writ of certiorari

and/or review; Parish of St. James, 23rd Judicial District

Court, Div. “C”, No. 19400; to the Court of Appeal, Fifth

Circuit, No. 90-CW-0090.

Denied.

ri

79a

) APPENDIX K

TESTIMONY OF

DOCTOR. RANDOLPH RICE

[2381]

Q. Okay. Let’s talk about found. Assuming found at a

value of ten dollars ($10.00) a day, what would that

translate to in economic loss for Plaintiff? Assum-

ing again that he would work seventy-six point five

percent (76.5%) of the time for his remaining seven-

teen point four three (17.43%) years.

A. For the past amount, that is from the date of his ac-

cident 1989 until today, at ten dollars ($10.00) a day,

the annual amount is three thousand six hundred

and fifty ($3,650.00). Past amount is three thousand

seven hundred and forty-eight dollars ($3,748.00),

and that’s taking the seventy-six and a half percent

(76-'2%) as being truly work time. And the present

value of[2382] the future, using a below-market dis-

count rate of three percent (3%), ten dollars ($10.00)

a day, but taking the seventy-six and half percent

(76-’2%), thirty-seven thousand four hundred and

seventy-four dollars ($37,474.00).

Q. And that’s again for the seventeen point four three

(17.43) years in the future and taking seventy-six

percent (76%) of those . . . seventy-six point five per-

cent (76.5%) of those days of the future, is that

right?

A. Yes, Sir.

2 > © >

80a

All right. And that’s also the present value... in

other words, that’s discounted by the below-market

discount rate or real rate of interest using three per-

cent (3%), is that right?

Yes, Sir.

Okay. Now, is it just a matter of mathematics using

those same comparisons? In other words, if found

were fifteen dollars ($15.00) a day, you would just

work it out?

You'd raise it by fifty percent (50%).[2383]

All right. And if it were hypothetically five ($5.00)

a day, it would be half of this amount.

Correct.

And seven dollars and fifty cents a day ($7.50),

three-quarters of this amount?

Yes, Sir.

Both past and future, right, right?

That’s true.

Okay. Thank you.

MR. DUE’: I’ll tender the witness.

Would you answer any questions

defense counsel has?

* * *

| mi i

8la

[2399]

Q. Mr. Due’ asked you some questions about found. Have

you been given any information by anyone as to the

value of any found that Mr. Youn may have enjoyed

while he working for the Defendant?

A. No, Sir. Other than the hypotheticals that I think Mr.

Due’ ran through from a range of even five to fifteen

dollars ($5.00-$15.00).

Q. But you’ve heard no .. - Mr. Youn hasn’t told you or

you have heard no evidence from anyone as to whether

or not or what the value of any found he might have

enjoyed would have been, is that correct ?[2400]

A. That’s true.

82a

APPENDIX L

Hae Woo Youn 23rd Judicial District

Court

vs. No. 19,400 Parish of St. James

Maritime Overseas Corp. State of Louisiana

and Atlantia Tanker

Corp., et al

Filed: December 20, 1990 /s/ Ilegible

Clerk of Court

REASONS FOR JUDGMENT

This matter came before the Court for trial Friday,

September 28, 1990.

Present in Court: The firm of Phelps-Dunbar

representing Maritime Overseas Corporation and Atlantia

Tanker Corporation; M. D. Yager, representing

Assuranceforeningen Gard, Paul Due’ and Lewis Unglesby

representing the plaintiff, Hae Woo Youn.

The matter had been set for trial, but the Friday

before the scheduled trial date, the Assuranceforeningen

Gard, MOC, and Atlanta filed a removal petition. This peti-

tion was filed without notice to the Court. Remand was

granted on September 27, 1990, by the Eastern District,

and the trial commenced on Friday, September 28, 1990.

At the commencement of trial, the defendant,

83a

Assuranceforeningen Gard, again requested a continuance

and re-urged its claims of lack of jurisdiction. The court

denied the relief, writs were taken to the Fifth Circuit

which were also denied during the course of the trial that

day. Counsel for Assuranceforeningen Gard participated in

the trial, filed pleadings, including an answer, questioned

witnesses, and adopted the witnesses provided by its in-

sured, Maritime Overseas Corporation and Atlantia

Tanker Corporation. Furthermore, counsel for

Assuranceforeningen Gard advised the Court on the

record, that it provided the insurance coverage to the ship

for the incident involved.

The issues to be decided by the Court are the

unseaworthiness of the M.V. Atlantia, the negligence of

defendants, what contribution those made to the injuries of

plaintizi, _ plaintiff's contributory or comparative

negligence, general damages, and the applicability of

punitive damages.

The Court is convinced that the defendant MOC, the

controlling force over the plaintiff, is plaintiff's employer.

This court is further convinced after review of the evidence,

pleadings, and the statements in Court, that

Assuranceforeningen Gard provides insurance for any

damages which may be assessed.

The accident happened because the boat was in an

unseaworthy condition, and because of negligence. The

winch control lever had been broken for some period of time

and did not operate. Accepting the testimony in the light

most favorable to the defendants, the Court finds that the

winch lever was dysfunctional. Furthermore, the lever

84a

could easily and should easily have been repaired during

the six months that it was broken while the boat was in

American waters. The crew was non-trained. The Court is

impressed by the testimony of all crew members that there

were no safety manuals written in Korean, that there was

no training provided for any crew members, and that the

procedure of MOC was to hire the Korean crew member and

put him on the boat. On-the-job training can be expected to

lead to accidents. Defendants were negligent. They allowed

the crew to use the steam valve because the winch lever did

not work. The Court finds that the use of the steam valve

is not a safe method, and is not the method intended in the

design of the ship for the use of the winch. Mr. Heu released

too much steam, accelerating the speed of the winch,

leading to the accident. The negligence of a crew member

in employing a method approved by his employer is ac-

tionable. Choi was ordered to engage the crane reel stopper

in the event that the winch control lever began to operate

out of control. Choi, because he was afraid, and was being

peppered by debris coming off the cable, ran from his post.

This placed Bosun Youn in the predicament of having no

stopper. At the time that Choi abandons his post, the

winch is out of control, Heu had over-accelerated the

steam, and the crane boom is beginning to fall. Youn at-

tempts to take action to preserve his employer’s property

and to save the lives of his fellow workers. The winch cable

snaps Youn’s leg, creating his injury.

The Court resolves this as a simple matter. The court

finds that there is gross negligence in regard to the failure

of MOC and Atlantia to provide a seaworthy vessel, and to

repair a known broken piece of equipment. The burden of

the plaintiff is light. A vessel owner/employer is deemed

~~

Fens Pe TT

85a

negligent if it fails to exercise reasonable care to maintain

a reasonably safe work environment. In this case, the

evidence overwhelmingly Preponderates in tavor of plain-

tiff and against defendant.

The Court finds as a fact, that the crew was not pro-

perly trained in the operation of the winch. The Court finds

as a fact, that there was no training to the crew as to what

action to take in the event the winch became out of control

as occurred here, and further, that because the vessel

owner failed to repair the broken winch, or to employ an

automatic stopper, it was foreseeable that an event such as

this would occur. The court finds that at no time did any

superior member of the Atlantia crew, or MOC corporation,

require Youn or anyone else to use any alternative method

in winding the winch.

Defendants argue that the use of the gypsy head to

wind the excess cable onto the winch drum, would avoid

the accident. The defendants Suggest that all slack

betweeen the crane reel and winch drum should be taken in.

The Court was impressed by the fact that the actions taken

by Youn appeared to be commonplace, and further that the

captain of the boat had no knowledge as to what

methodology was correct. The captain admits that they

were in a substantial hurry because the pilot had come to

move the boat and that it was Youn’s job to get the crane

in a position to shove off. Youn testified and his crew

members support the idea, that the method he was using

was the most efficient, and that they had never been in-

structed to avoid that method nor of any safety hazards

created by the method.

86a

The Court is not impressed by the defendants’ ef-

forts to blame the accident on Youn’s use of the method

employed by him, instead of their failure to train their

crew, and to repair their broken equipment which they pro-

vided to Youn.

The Court is not impressed by the claim that Youn

used a “‘shortcut’’ in view of the Captain’s testimony that

they were in a hurry to take off, and all witnesses’

testimony that Youn was an experienced, knowledgeable

bosun. The Court finds that had the winch been repaired,

or had the untrained crew members stayed at their post, or

had the steam valve not been overcharged, the accident

would have been avoided. All this is directly placed at the

feet of the defendants. Furthermore, from reviewing the

evidence, including the photographs, the Court does not

believe that it would be practical or probable, that all of the

line could be placed on the gypsy head.

Defendants’ reliance on certain OSHA regulations,

mentioned for the first time by defendants in post-trial

briefing, is unwarranted, since OSHA regulations are not

applicable to working conditions of seamen on vessels such

as the M. V. Atlantia. Clary v. Ocean Driling and Explora-

tion Comapny, 609 Fed.2d 1121 (5th Cir. 1980).

The Court does not find Mr. Youn contributorily

negligent. He acted in accordance with his training, he was

given inadequately trained helpers, one of whom abandon-

ed his post, and he was required to work with defective

equipment. The Court is well aware of the pressure placed

upon a foreign seaman to do the job required, and the in-

ability of a seaman to refuse his duties. The Court further

.

87a

notes the substantial conflicts in the testimony of the crew

between their discovery depositions taken by the plaintiff

and their trial depositions several days later. The Court

recognizes in those depositions that the crew members

were kept under the total control of the defendants, that

certain relevant crew members were present in New

Orleans in order to provide information to defense counsel,

and at least one was then sent to Tokyo rather than provid-

ed for testimony. The record reflects that Port Captain

Williams made an inspection of the vessel right after the

accident, and condemned the action of the crew and

recognized the failure of the equipment. This information

was not provided to plaintiff until the eve of trial, and then

only inadvertently. The Court, in evaluating the evidence,

believes the statements of the crew members taken in the

discovery depositions, believes the statements of Captain

Williams in his June inspection report, accepts the

testimony of Captain Blann as more reasonable based on

facts and evaluations consistent with accepted maritime

safety practices, and finds evidence in favor of Youn on the

issues of unseaworthiness, negligence, and lack of com-

parative negligence overwhelming.

1. Medicai expenses, future $ 40,000.00

2, Past loss of net earnings $ 22,642.00

3. Future loss of net earnings $ 200,000.00

4. Past loss of found $ 3,748.00

5. Future loss of found $ 37,474.00

6. Past physicial pain and suffering $ 200,000.00

a Future physicial pain and suffering $ 300,000.00

8. Past mental anguish and loss of en-

joyment of life $ 200,000.00

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88a

9. Future mental anguish and loss of en-

joyment of life $ 300,000.00

10. Disability and disfigurement $ 400,000.00

These awards are more than deserved. The plaintiff's

left leg is nothing more than a stick connecting his thigh

bone to his ankle. The scarring demonstration in the pic-

tures represents a river of gruesome tattoos which emcom-

pass and circle the entire leg, from groin to foot. Plaintiff's

leg is embroidered with an ungly snake-like appearance.

The Court has never seen such a dismaying scene. The

Court was most impressed with Plaintiff's sincerity and ob-

vious heartache over his condition. Plaintiff's leg is useless

for anything other than support. Dr. Davis described the

skin over the bone as a paper thin leg. Plaintiff is in cons-

tant jeopardy of any instrusion into the leg, cutting the

vessel, and placing his life at risk. There are no muscles,

meat, nor fatty tissue in plaintiff's left thigh. Plaintiff's leg

swells constantly, will never improve, and is expected to

continue on a consistently downward course. Plaintiff will

need future medical expenses because the vessels grafted in

his leg will wear out over time. This will require at least two

more surgeries based on plaintiff's life span. The Court

does not see how plaintiff can accomplish any type of

future work other than desk duty for which he appears

both situationally and educationally unsuited. The plaintiff

is totally and permanently disabled, can never return to

any kind of physical activity, and must drag around with

him, a constant reminder of this event. The impression

from plaintiff's testimony, and viewing photographs of his

existing condition, persuades the Court that plaintiff is a

depressed, sorrowful, embarrassed, gentleman who had

previously led an active, healthy, and vital existence. Plain-

© EE ae

89a

tiff is described as a model patient who was most grateful

to his American doctors for saving his life. Modern

medicine can only do so much, however, and plaintiff's

discussion of his wife’s reaction when observing his leg

upon his return home and to this date, persuades the Court

that the disfigurement award is required. Plaintiff leads a

life of embarrassment, pain and shame as a result of the in-

jury. He will have lifetime problems. The independent

medical exam ordered by the defendants reflects 90 to

100% strength loss in the left leg, and is described by their

doctor, as a “‘near traumatic amputation of the left lower

extremity.”’ Plaintiff has a significant whole body impair-

ment rating.

For over an hour plaintiff lay on the deck of the ship

where he had worked with pride and dignity, fearful that he

would never again stand on his own two feet. The obvious

pain described by Capt. Choi was immense both while

waiting for the helicopter, and at the hospital. Plaintiff was

placed under the most powerful sedatives for most of his

hospital stay. As recovery occurred, pain increased with

the regeneration of the nerves. Today plaintiff has limited

motion, no vitality, and no Capacity to exercise or use the

leg because of its delicate nature. He lives in constant ap-

prehension of further injury. He has legitimate concerns

over blood clots, loss of circulation and graft failures. He

lives in Korea, and wet and cold weather create additional

problems in his thigh area which the doctors describe as ex-

pectable and severe.

The lost wages and future medical are specific. The

Court finds that the plaintiff carried his burden of proof on

the isue of ‘‘found’”’ through testimony that the plaintiff

90a

was provided with clothing and meals everyday which

would equate to at least $10.00 per day in value. The Court

takes judicial notice of the costs of such matters.

This matter has presented this Court with no doubt

whatsoever as tc a proper verdict up to the remaining ques-

tion of punitive damages. In this proceeding punitive

damages are clearly available. The computation of punitive

damages comes through no precise measure, and no par-

ticular multiplier is required. Stokes v. Delcambre, 710

Fed. 2d 1120 (5th Cir. 1983). The Fifth Circuit has noted

that treble damages schemes are acceptable as a method of

applying punitive damages, and further that other higher

and lower multipliers are acceptable. In Matter of P & E

Boat Rentals, Inc., 872 Fed. 2d 642 (5th Cir. 1989), the

Fifth Circuit adopted the rule of U.S. Steele Corporation v.

Fuhrman, 407 Fed. 2d 1143 (6th Cir. 1969). The rule pro-

vides that the isolated action of a lower level employee, or

even a captain, does not support a finding that the corpora-

tion or owners are responsible. Stated precisely, the P & E

rule which this Court feels applicable in this circuit is:

“We think the better rule is that punitive

damages are not recoverable against the owner of

a vessel for the act of the master unless it can be

shown that the owner authorized or ratified the

acts of master either before or after the accident.

Punitive damages also may be recoverable if the

acts committed were those of an unfit master and

the owner was reckless in employeing him.’’ 872

Fed. 2d 652.

The Court also feels that Self v. Great Lakes Dredge

and Dock Company, 832 Fed. 2d 1540 (11th Cir. 1987),

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9la

must be considered herein. The Eleventh Circuit was

broken up from the Fifth Circuit, and ‘Eleventh Circuit

Law”’, like the “Fifth Circuit Law”, is of special considera-

tion for this Court. Stated precisely the Self rule is:

“Punitive damages should be available in cases

where the ship owner wilfuly violated the duty to

maintain a safe and seaworthy ship, as was found

to exist on the part of the Great Lakes by the

district court, or where the ship owner’s acts or

failure to act recklessly increase the danger of a

disaster.”’

It is this Court’s considered opinion and a specific

finding herein that based upon its factual determinations

under the Se/f standard punitive damages are due. | t is this

Court’s further considered opinion and a specific finding

herein that based upon its factual determinations under the

P & E standard punitive are not due. The Court cannot con-

template a more compelling example of a need for establish-

ment of a true standard which can be applied uniformly.

While the Court wil] State for the record that it feels

the Self standard the more preferable under the Court’s

understanding of Proper judicial application of

jurisprudence the Court will reluctantly consider itself

bound by the P & FE standard set forth by the Fifth Circuit

and deny punitive damages herein.

The Court taxes all costs against the defendants, in-

cluding the following expenses:

$ 6,294.22 - Vessel Inspection by Captain Blann

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$ 4,462.50 - Expert witness fee, Captain Blann

$ 1,622.50 - Dr. G. Randolph Rice

$ 295.11 - Smart Corporation

$ 344.00 - Deposition costs

The Court further awards plaintiff the following

medical expenses as costs necessary for the treating physi-

cians to arrive at their final opinions:

$ 311.00- Bone and Joint Clinic (Dr. Joe Morgan)

$ 50.00 - Plastic Surgery Group (Dr. Martin Bell)

$ 50.00 - CVT Surgical Center (Dr. David Davis)

The Clerk of Court is hereby instructed to file these

Reasons for Judgment in the minutes of this Court and to

notify Mr. Paul Due’, 8201 Jefferson Highway, Baton

Rouge, Louisiana 70809, to prepare and forward a judg-

ment for execution in accordance herewith.

Gonzales, Louisiana this 17th day of December,

1990.

/s/ John L. Goldsmith

John L. Goldsmith, Judge

23rd Judicial District Court

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APPENDIX M

HAE WOO YOUN

v.

MARITIME OVERSEAS CORP.,

Atlantia Tanker Corp., and

Assuranceforeigen Gard.

No. 91-CA-407

Court of Appeal of Louisiana

Fifth Circuit.

REHEARING WAS THIS DAY REFUSED IN THE

CASE.

October 19, 1992.