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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marine Solution Services, Inc. v. Horton (5/16/2003) sp-5691

Marine Solution Services, Inc. v. Horton (5/16/2003) sp-5691

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


MARINE SOLUTION SERVICES,     )
INC., an Alaska Corporation,       )    Supreme Court No. S-9916
                              )
             Appellant/            )    Superior Court No.
             Cross-Appellee,       )    3AN-97-3770 CI
                              )
     v.                       )    O P I N I O N
                              )
THOMAS HORTON,           )    [No. 5691 - May 16, 2003]
                              )
             Appellee/             )
             Cross-Appellant.      )
________________________________)
                              )
THOMAS HORTON,           )    Supreme Court No. S-9935
                              )
             Appellant,            )    Superior Court No.
                              )    3AN-98-9265 CI
     v.                       )
                              )
STEVE ADAMS,                  )
                              )
             Appellee.             )
________________________________)



          Appeal  from the Superior Court of the  State
          of    Alaska,    Third   Judicial   District,
          Anchorage, Brian C. Shortell, Judge.

          Appearances:   Theodore  M.  Pease,  Jr.  and
          Michael  W.  Sewright, Burr, Pease  &  Kurtz,
          Anchorage,    for    Appellant/Cross-Appellee
          Marine  Solution Services, Inc.   Charles  W.
          Ray,   Jr.,  Anchorage,  for  Appellee/Cross-
          Appellant   and   Appellant  Thomas   Horton.
          Lanning M. Trueb, Beard Stacey Trueb Jacobsen
          &  Stehle, LLP, Anchorage, for Appellee Steve
          Adams.   Brewster  H. Jamieson  and  Brad  E.
          Ambarian,  Lane Powell Spears Lubersky,  LLP,
          Anchorage, for Intervenor CGL Insurers.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          FABE, Chief Justice.


I.   INTRODUCTION

          Thomas Horton suffered compound fractures in both  legs

while  moving  a barge from Pickworth Dock in Anchorage.   Horton

sued  Marine Solution Services, the owner of the vessel  and  the

company  for  which  he served as president and  chief  executive

officer, for unseaworthiness under traditional maritime  law  and

for  negligence under the Jones Act.  A jury returned  a  verdict

for  Horton  and  awarded  him  $1,184,873.85.   Marine  Solution

Services  appeals several of the jury instructions,  focusing  on

whether  Horton was an employee and seaman entitled to  a  remedy

under  the  Jones Act and whether The Pennsylvania rule  applies.

Horton  appeals  both the reduction of the  jury  award  and  the

interest on the award.

          Although  we  affirm  the majority  of  the  challenged

superior  court rulings, we conclude that Horton may be  entitled

to  the five percent enhancement of prejudgment interest and that

postjudgment interest shall accrue at 10.5 percent.  On these two

issues, we reverse and remand for a corrected judgment.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

          Marine Solution Services, Inc. (MSS) is a closely  held

corporation   in  the  business  of  commercial  diving,   marine

contracting,  marine  services, and  vessel  operations.   Thomas

Horton  is  the president, chief executive officer,  and  general

manager  of  MSS.   His mother, Gerda Horton, is  the  secretary.

Gerda  Horton is also the majority shareholder of MSS.   Together

they  are the only officers and directors of MSS.  Thomas  Horton

and  his  mother also own another company together called  Horton

Marine.  Thomas Horton owns fifty-one percent of the stock, while

Gerda Horton owns forty-nine percent.  They are the only officers

and directors of that corporation as well.

          In  the  late  afternoon  of  September  18,  1995,  an

attorney  for Chugach Electric Association telephoned Horton  and

informed  him  that  Chugach Electric  had  taken  possession  of

Pickworth Dock.  The attorney demanded that Barge 204 be  removed

from Pickworth Dock or the vessel would be seized.  Horton agreed

to  move the barge at the next high tide, which would be at  3:30

a.m.  on  the morning of September 19.  Horton then made a  radio

call  to Steve Adams, the MSS employee working as skipper of  the

tug  SOLUTION,  and told him of the plan to tow  the  barge  from

Pickworth  Dock at high tide that morning.  Horton said  that  he

would be assisting in the operation.

          Horton  arrived at the dock at approximately 3:00  a.m.

and  was taken to Barge 204 aboard a skiff.  At the front of  the

barge  are  two Panama chocks, which are two large pipes  in  the

shape  of  an  inverted letter U, welded to the deck.   When  the

barge is being towed, the tow lines generally are run through the

Panama chocks so that the lines do not come loose or sweep across

the  deck  as  the  tug  turns.  Adams and  Gerald  Wallace,  the

engineer  on the SOLUTION, secured a tow line to the  barge,  but

did  not  pass it through the Panama chocks, and the tug SOLUTION

began towing Barge 204 away from the dock.

          Horton,  who  was  aboard the barge, noticed  that  the

SOLUTION and the barge were headed for the North Star Dock and  a

barge  tied to it.  A collision seemed imminent.  Horton sprinted

to  the  forward part of the barge in an attempt to signal Adams,

who was navigating the SOLUTION, to tow farther offshore to avoid

an accident.  Adams noticed Hortons actions and also saw that the

tug and barge were drifting toward the dock.  After the starboard

engine died and was restarted, Adams gave the engines full power.

This  sudden movement in a different direction jerked the towline

taut and it snapped across the deck.  Horton was standing between

the  towline  and the steel weatherwall, so that  when  the  line

swept  across  the  deck  it  smashed Hortons  legs  against  the

weatherwall.   Horton  suffered compound fractures  in  all  four

bones just above the ankles in both legs.

          Hortons  legs  were  severely injured  and  had  to  be

reconstructed.   In  addition  to the  fractures,  Horton  claims

associated  nerve, vascular, muscle, and skin  injuries.   Horton

apparently  still suffers from chronic pain and  depression,  and

now walks with a pronounced limp.

     B.   Procedural History

          This   case   originally  consisted  of  two   separate

lawsuits.   Horton filed his complaint against MSS in  May  1997.

He  set  forth  five  causes of action: (1) unseaworthiness;  (2)

negligence  and breach of the duty of care under the  Jones  Act;

(3)  maintenance,  cure,  and unearned  wages;  (4)  failure  and

refusal to provide adequate medical attention; and (5) negligence

under the doctrine of respondeat superior.  The first four causes

of  action were based on the assertion that Horton was a  seaman.

The  fifth cause of action was raised in the event that the trial

court  determined  Horton  was not a  seaman  and  therefore  not

entitled  to  the relief set forth in the first  four  causes  of

action.   Horton  requested maintenance,  cure,  unearned  wages,

compensatory damages, attorneys fees and costs, and interest.

          In September 1998 Horton filed a second lawsuit against

Steve  Adams,  the MSS employee operating the tug  SOLUTION  when

Horton  was  injured.  Horton asserted only one cause of  action,

negligence,  for  failure  to ensure a safe  towing  arrangement,

failure  to  warn, failure to maintain a proper  lookout,  and  a

general  failure  to  act  reasonably  under  the  circumstances.

Horton requested compensatory damages, attorneys fees, costs, and

interest.  The two lawsuits were consolidated in August 1999.

          In  August  1999 MSS moved for summary judgment  as  to

Hortons first four causes of action on the grounds that he is not

a  seaman  and  therefore not entitled to claims  for  Jones  Act

negligence, a warranty of seaworthiness, or maintenance and cure.

MSS  also  moved for summary judgment on Hortons fifth  cause  of

action for common law negligence, arguing that the Alaska Workers

Compensation  Act  (AWCA)  provided Hortons  exclusive  remedies.

Horton moved for partial summary judgment as to the liability  of

MSS because, Horton alleged, MSS was in violation of at least two

statutory  requirements when Horton was injured.  MSS cross-moved

for  summary judgment on the issue of liability on the basis that

Horton  is  president, chief executive officer, general  manager,

director,  and  forty  nine  percent  owner  of  [MSS],  and  any

negligence  of  MSS is imputed to Horton.  Adams also  moved  for

summary  judgment  on  the ground that Horton  is  a  seaman  and

therefore  not able to bring a claim against a fellow  employee,1

and that even if Horton were not a seaman, his exclusive remedies

are  under  the  Longshore and Harbor Workers Compensation  Act.2

Superior Court Judge Brian C. Shortell denied all motions, except

that of Adams, who was granted summary judgment.

          Trial against MSS began on December 7, 1999.  The  jury

found  that  Horton was a seaman and therefore able  to  maintain

Jones Act claims.  The jury found for Horton on all claims except

those  related to his diabetes, but concluded that he was fifteen

percent  at fault.  Horton was awarded $186,000 in cure, $175,000

for  past damages, and $1,155,000 for future damages.  The  trial

court  reduced the amount of cure by the medical bills  that  MSS

had  already paid.  The trial court also initially increased pre-

and   postjudgment  interest  by  the  statutory   five   percent

enhancement, but then removed the enhancement so that prejudgment

interest  was set at ten percent,3 and postjudgment interest  was

set at 7.545%.  Both Horton and MSS appeal.

III. DISCUSSION

     A.   The Marine Solution Services Appeal

          1.   Horton may sue MSS.

          1.   MSS first argues that Horton should not have been allowed to

sue  his  company . . . .  It claims that Horton was in  complete

control of MSS, effectively his alter ego, and that therefore any

negligence  is  imputed  to Horton.  It also  asserts  that  [a]n

individual who is owner of a vessel cannot sue himself to recover

          for any of the tort maritime remedies.  MSS moved for summary

judgment  on  this issue, but the trial court denied the  motion.

We  consider  the issue de novo and view the facts in  the  light

most favorable to the nonmoving party.4

          It  is  uncontested that MSS is an Alaska  corporation.

As  such, it can sue and be sued in its corporate name.5  Drawing

the  facts  in  the  light  most favorable  to  Horton,  MSS  had

significant assets, was insured against losses, employed  several

individuals, filed corporate tax returns, [and] held  itself  out

as  a  bona  fide  corporation  .  .  .  .   As  a  closely  held

corporation,  MSS had only two people on its board of  directors:

Horton  and  his  mother  Gerda.  Gerda Horton  is  the  majority

shareholder.6  She controls the election of directors and has the

authority  to  appoint  and  discharge  the  president   of   the

corporation.   Horton and Gerda also jointly own  Horton  Marine,

Inc.7   Horton Marine holds title to the tug SOLUTION.  The other

vessel  involved  in the accident in this case,  Barge  204,  was

owned  by  Rasmussen  Equipment Company.   At  the  time  of  the

accident, both boats were leased by bareboat charter to MSS;  MSS

has  conceded that it was, at the time of the incident, owner pro

hac  vice  of  both vessels.  Thus, MSS is an Alaska  corporation

that was owner of the vessels at the time of the accident.

          Because MSS is a corporation and was the owner  of  the

vessels,  there is no support for MSSs assertion that an  officer

may  not  sue in tort the corporation for which he or she  works.

Indeed, MSS concedes this point:  [MSS] has not found any case in

which  the  claims  of an individual have been denied  against  a

corporation  because he was president, chief  executive  officer,

director and a major shareholder . . . .

          It  is  well-established that the corporate  entity  is

distinct  although all or a majority of its stock is owned  by  a

single individual or corporation, or although the corporation  is

a  so-called  family or close corporation.8  This  holds  equally

true  in  maritime cases.  In Stewart v. Moore,  for  example,  a

          federal district court dismissed claims against the sole

stockholder  and president of the corporation on the  basis  that

the  corporate  entity was the owner of the vessel and  therefore

the  proper defendant.9  In general, the corporate identity  will

be  disregarded  only  when  the separate  personalities  of  the

corporation  and  the  individual no  longer  exist.10   Relevant

factors for considering whether a corporation is merely an  alter

ego are commingling of funds and assets, undercapitalization, and

failure to observe corporate formalities.11  Here, Horton is  not

the majority shareholder, and there has been no evidence that  he

commingled  funds or assets, undercapitalized MSS, or  failed  to

observe  the necessary formalities.  The corporate entity remains

distinct, and there is little evidence to suggest MSS was Hortons

alter ego.  MSS is a corporation, and it may not disavow its  own

status  when  convenient or in order to avoid litigation.12   The

trial  courts denial of summary judgment to MSS on this point  is

affirmed.

          2.   Horton was an employee.

          In  a related argument, MSS claims that Horton was  not

an  employee of MSS and therefore not able to bring Jones Act  or

unseaworthiness  claims.  At the conclusion  of  the  trial,  the

court  granted  a  directed verdict finding that  Horton  was  an

employee  of MSS and did not submit the issue to the  jury.   MSS

asserts  that  this  constitutes reversible error  and  that  the

question  whether  Horton  was  an  employee  should  have   been

submitted  to  the  jury.   We affirm a  directed  verdict  where

reasonable jurors could not reach different conclusions.13

          The  Jones  Act  remedy is available only  against  the

seamans employer.14 The Jones Act provides that [a]ny seaman  who

shall suffer personal injury in the course of his employment may,

at  his election, maintain an action for damages at law.15  Thus,

it  must  be determined whether MSS was Hortons employer.   While

there  is no clear test to resolve this question, there are  some

guiding   principles.   The  United  States  Supreme  Court   has

          concluded that employment should be construed broadly:

          [T]he word employment should be construed  so

          as  to  give protection to seamen  for  torts

          committed  against them by those standing  in

          the  proximate relation of employer, and  the

          rules   of  private  agency  should  not   be

          rigorously applied.  Yet this Court  may  not

          disregard  the plain and rational meaning  of

          employment and employer to furnish a seaman a

          cause   of   action  against  one  completely

          outside the broadest lines or definitions  of

          employment or employer.[16]

With  that  in  mind,  the Supreme Court  then  set  forth  three

questions:  Whose orders controlled the master and  crew?   Whose

money paid their wages?  Who hired the crew?17  Thus, the employer

is the entity that supervises, manages, directs, and controls the

employee.18  Ordinarily this is a jury question.19

          MSS  was owner pro hac vice of the vessels, and  Horton

was  aboard one of the vessels attempting to prevent its  seizure

when  he  was  injured.  There is no indication that  Horton  was

working  on his own behalf.  The record also reveals that  Horton

was serving as acting deck hand at the time, according to Captain

Adams,  and  that technically Horton was Adamss subordinate.   In

general,  the  captain is in charge of the vessel and  operations

even  when  Horton is on board.  Adams had been  hired  by  Steve

Miller, the port captain for MSS, and only met Horton briefly two

days  before  the  accident.  In addition,  Horton  was,  broadly

speaking, under the control of MSS since it had the authority  to

discharge him.  Gerda Horton testified that she considered Horton

to be an employee of the corporation since he did everything that

was  necessary and served in any capacity in which he was needed.

In  this  context, Horton could have been nothing other  than  an

employee  of MSS.  Because MSS submitted no evidence  that  could

have allowed reasonable jurors to conclude that Horton was not an

          employee, we affirm the directed verdict as to Hortons employee

status.

          3.   The denial of summary judgment and the jury instruction on
               seaman status were not erroneous.
               
          1.   In addition to being an employee, Horton must establish

seaman  status at the time of injury to maintain his  Jones  Act,

unseaworthiness, and maintenance and cure claims.  His status  is

therefore critical to most of the claims in this case.   Yet  the

Jones  Act  does not define seaman.  Instead, the  definition  of

seaman  has  been delineated in case law.  In general,  a  seaman

must  have  an  employment-related  connection  to  a  vessel  in

navigation and contribute to the function of the vessel or to the

accomplishment of its mission.20  The United States Supreme Court

has  clarified that employment-related connection to a vessel  in

navigation  means a connection that is substantial  in  terms  of

both duration and nature.21  The Court added that the inquiry into

who is a seaman is of necessity fact specific; it will depend  on

the  nature  of the vessel and the employees precise relation  to

it.22    We  recognized  these  guidelines  in  Cavin  v.  State,

Department of Public Safety.23

          MSS raises two arguments on Hortons seaman status:  (1)

the  trial court erred in denying its motion for summary judgment

on  seaman  status, and (2) the trial court improperly instructed

the  jury  on  seaman status.  We review the  denial  of  summary

judgment de novo.24  Whether a jury instruction incorrectly states

the  law  is  a legal question to which we apply our  independent

judgment.25   An erroneous statement of law in a jury instruction

will not constitute reversible error unless it prejudiced one  of

the parties.26

          With  respect to MSSs first claim that the trial  court

erred  by  not  granting  summary  judgment,  seaman  status   is

generally  a  jury  question.27  As we confirmed  in  Cavin,  the

determination  of  seaman status is necessarily  fact-specific.28

Moreover,  the  standard  set by the Supreme  Court  for  summary

judgment  as to seaman status is quite high:  [W]here  undisputed

          facts reveal that a maritime worker has a clearly inadequate

temporal connection to vessels in navigation, the court may  take

the  question  from the jury by granting summary  judgment  or  a

directed verdict.29  While Hortons role at MSS was at times  more

office-related, undisputed facts do not show a clearly inadequate

temporal  connection.   According to  affidavits  and  deposition

testimony  filed  by  Horton in opposition  to  MSSs  motion  for

summary judgment, Horton had served on vessels for several months

at  a time.  He also regularly serviced these vessels.  He tended

to  fill  in and serve as crewman or assistant deck hand whenever

the need arose.  MSS counters that it had been conclusively shown

Horton  spent  at most 10% of his time at sea and certainly  less

than  the  thirty percent necessary to qualify as a seaman  under

Chandris.

          We   do  not  agree.   First,  in  Chandris  the  Court

explicitly  stated  that  thirty  percent  was  no  more  than  a

guideline  and that departure from it will certainly be justified

in   appropriate  cases.30   Second,  MSSs  assertion   that   it

conclusively proved that Horton spent no more than ten percent of

his  time  at sea is flawed because it relies entirely  upon  the

vessel  logs.   This evidence was contradicted by affidavits  and

deposition testimony from three witnesses.  It was not error  for

the  trial  court  to  deny  the  motion  for  summary  judgment.

Similarly, it was not error for the trial court to have  declined

to  grant  MSS a directed verdict on this issue at the conclusion

of  the  trial.  Horton, his son Thomas, Jr., and Captain  Miller

provided  additional testimony at trial on the extent of  Hortons

service   aboard   the  vessels.   This  further   refuted   MSSs

contentions  and created a disputed question of fact  appropriate

for the jury to decide.

          MSS  also  asserts  that  the  trial  court  improperly

instructed the jury on seaman status.  MSS takes issue  with  the

trial  courts  Instruction  No. 15,  which  was  based  upon  the

Wilander  and Chandris holdings, but does not mention the  thirty

          percent guideline:

               Mr.  Horton was permanently assigned  to
          Marine Solution Services, Inc.s fleet  if  he
          had  more  than  a  temporary  or  occasional
          connection with its vessels, and proves  that
          he  had  an  actual regular  connection  with
          those vessels.
          
               If  you  find  that Mr. Horton  was  not
          permanently  assigned to a fleet of  vessels,
          as  I  have  just defined it, he nevertheless
          can  satisfy the first part of the  test  for
          seaman  status if he performed a  substantial
          part  of  his  work on the fleet of  vessels,
          that is if he performed a significant part of
          his  work  on  the fleet of vessels  with  at
          least   some   degree   of   regularity   and
          continuity,  and his duties  on  the  vessels
          were   more   than   merely  fortuitous   and
          incidental.
          
Horton  responds that the trial court followed the Fifth  Circuit

pattern  jury instruction, which does not include a reference  to

the  thirty percent guideline even though that is the circuit  in

which the guideline originated.

          We have previously acknowledged that the thirty percent

reference is no more than a guideline:

               As  a general guide to this inquiry, the

          Chandris Court stated, we think it preferable

          to focus upon the essence of what it means to

          be  a seaman and to eschew the temptation  to

          create  detailed  tests  to  effectuate   the

          congressional  purpose, tests  that  tend  to

          become    ends    in   and   of   themselves.

          Nevertheless,  the  Court  approved   as   an

          appropriate  rule of thumb for  the  ordinary

          case  the  30 percent test developed  in  the

          Fifth  Circuit and followed by  many  courts.

          But  it  warned  that this  benchmark  should

          serve[] as no more than a guideline . . . and

          departure from it will certainly be justified

          in appropriate cases.[31]

Because the thirty percent guideline was consciously designed  as

a  flexible  rule,  failure to include it  does  not  render  the

instruction  erroneous.   While it might  be  helpful  for  trial

courts  to  mention the thirty percent guideline as guidance  for

the  jurors,  the  jury  instruction in  this  case  nevertheless

presents a correct test for seaman status.

          MSS  also  contends that the trial courts  use  of  the

phrases  more than a temporary or occasional connection and  more

than  merely fortuitous and incidental are incorrect and  warrant

reversal  and  a  new trial because a jury could interpret  these

phrases as meaning that a litigant is a seaman if he spent little

time  at  sea.  However, these phrases do not exist in  isolation

and are modified in the instruction by the terms substantial part

of  his  work, significant part of his work, and some  degree  of

regularity and continuity.  No reasonable juror could  find  that

Horton  spent only a minimal amount of time on vessels  but  also

performed  a  substantial part of his work on vessels  with  some

regularity.   When the jury instruction is read in its  entirety,

MSSs  suggested interpretation is inaccurate.  We  conclude  that

there is no error in the jury instruction.32

          4.   The trial court did not improperly reverse its earlier

               position on The Pennsylvania Rule and prejudice MSS.

          1.   MSS argues that the trial court initially declined to apply

The  Pennsylvania  Rule to this case but,  at  the  last  moment,

reversed its position and decided that the jury should be charged

on the Rule.33  MSS contends that this purported shift in position

prejudiced  its  case  and  that it would  have  tried  the  case

differently  if  it  had  known the  Rule  was  going  to  apply.

Specifically,  MSS  points to statements  by  Judge  Shortell  on

December  22,  1999,  during  the  discussion  of  proposed  jury

instructions.   [T]he facts of this case  .  .  .  may  make  The

Pennsylvania Rule applicable.  I had rejected that idea  but  the

more  when I read these cases, I think thats a close call . . . .

Judge  Shortell then added, I know that this is a reversal  of  a

          position I have taken and I want to give you every opportunity to

respond.  Judge Shortell ultimately ruled that the Rule did apply

and so instructed the jury.

          MSSs  claim  that it was prejudiced by the reversal  of

position is unconvincing for two reasons.  First, there is no way

it   could   have  known  that  Judge  Shortell  originally   had

reservations  about  the application of the  Rule  to  this  case

because  he  never communicated his thoughts to the parties.   In

August 1999 Horton filed a motion for partial summary judgment as

to  liability.  That motion asserted that the Rule  should  apply

and that, since MSSs expert allegedly conceded that MSS could not

show  that the violations did not cause Hortons injuries,  Horton

is  entitled  to an order finding that defendant Marine  Solution

Services,  Inc., is liable to him as a matter of law.  The  trial

court   denied  the  motion  without  explanation   and   without

mentioning   The  Pennsylvania  Rule.   Whether  Judge   Shortell

reversed his thinking on this legal issue is immaterial.  What is

critical  is  that  he  never communicated his  position  to  the

parties, much less issued a legal ruling on the matter.

          Second,  we are not persuaded by MSSs argument that  it

would  have  handled the case differently had it known  that  the

trial  court  was contemplating applying the Rule.  Both  parties

called  witnesses  who testified to the regulations  and  whether

they  had  been violated when Horton was injured; this  testimony

would  only  be relevant to establishing whether The Pennsylvania

Rule  applied.  Thus, the record does not support the notion that

the trial court changed course to the detriment of MSS.

          5.   The trial court did not err in applying The Pennsylvania

               Rule.

          MSS  next  contends  that  The  Pennsylvania  Rule  was

erroneously applied to this case.  It first alleges that the Rule

has  been  roundly criticized and disfavored.  It  then  suggests

that  the  Rule generally only applies to collisions and  not  to

Jones  Act claims such as Hortons.  MSS notes that the effect  of

the Rule is to shift dramatically the burden of proof from Horton

to  MSS.  Horton counters that the Ninth Circuit has applied  the

Rule  to  maritime  actions  that  did  not  involve  collisions.

Whether the Rule applies to this case presents a question of law,

to which we apply our independent judgment.34

          The  Pennsylvania Rule provides that if a vessel is  in

violation of a statutory duty35 intended to prevent collisions at

the  time  of the accident, the burden shifts to that  vessel  to

prove that its conduct did not and could not have been the cause:

          [W]hen,  as in this case, a ship at the  time

          of  collision  is in actual  violation  of  a

          statutory    rule   intended    to    prevent

          collisions,  it is no more than a  reasonable

          presumption that the fault, if not  the  sole

          cause,  was at least a contributory cause  of

          the  disaster.   In such a  case  the  burden

          rests  upon  the ship of showing  not  merely

          that her fault might not have been one of the

          causes, or that it probably was not, but that

          it  could  not  have been.  Such  a  rule  is

          necessary to enforce obedience to the mandate

          of the statute.[36]

The  Rule allocates the burden of proof to the party in violation

of  the statute or regulation.37  In effect, it is an evidentiary

rule that reverses the burden of proof.38  And although it imposes

a heavy burden  that the violation could not have been a cause of

the accident  it does not determine a partys share of liability.39

Therefore, the Rule has survived the United States Supreme Courts

adoption  of a comparative fault scheme for admiralty  matters.40

Here, the trial court employed the Rule in jury Instruction  Nos.

24  and 25, which both state that if MSS failed to show that  the

violation  could not have been one of the causes of the  injuries

to  Mr.  Horton, you must find that [MSS] is liable to compensate

Mr.  Horton for his injuries.  (Emphasis added.)

          MSS  argues  that the Rule does not apply  to  personal

injury or Jones Act cases.  We disagree.  Although the Rule arose

in  a case that involved a vessel collision, it has been extended

to  non-collision cases.  For example, the Ninth  Circuit,  which

has frequently employed the Rule,41 has applied the Rule in Jones

Act  personal  injury cases.  In Mathes v. The Clipper  Fleet,  a

seaman  was injured while transferring cargo between two ships.42

He  brought  a  Jones Act claim and argued that the  Rule  should

apply because the captain did not have his credentials physically

aboard  the  ship as required by Coast Guard regulations.43   The

court  concluded  that the Rule did not come  into  play  because

there is no conceivable connection between the violation and  the

injury.44  In other words, the court assumed the Rule applied  in

the  Jones  Act case but then concluded that there was  no  nexus

between  the violation and the injury.  Other circuits have  been

more  emphatic that the Rule applies in non-collision cases.   In

United   States  v.  Nassau  Marine  Corp.,  the  Fifth   Circuit

explicitly stated that [t]he [Pennsylvania] Rule does  not  apply

only to collisions.45  The Fifth Circuit later explained that the

rule has been reformulated to apply to any statutory violator who

is  a  party  to a maritime accident. 46  We adopt  the  majority

position  set forth by the Ninth Circuit in Mathes that the  Rule

applies if there is a nexus between the violation and the injury.

The trial courts application of the Rule here was not erroneous.

          6.   The jury instructions concerning violations of the two

               regulations were not erroneous.

          Having concluded that The Pennsylvania Rule does  apply

in  this  case, we will now examine both regulations that  Horton

claims  MSS  violated.   The first is a  Coast  Guard  regulation

governing uninspected towing vessels:

          An  individual  of 21 years or  more  of  age

          holding  a  license as master  of  inspected,

          self-propelled vessels, or a license as  mate

          or   a  pilot  of  inspected,  self-propelled

          vessels  of  more  than 200  gross  tons,  is

          authorized   to   serve   as   operator    of

          uninspected   towing   vessels   within   any

          restrictions on the individuals license.[47]

(Emphasis  added.)   Because Captain Adams was licensed  only  to

serve  as  master of vessels of not more than 100 gross tons  and

the  tug SOLUTION was a vessel of 123 gross tons, the trial court

ruled that MSS violated the regulation as a matter of law.48  MSS

contends  that the trial court should have submitted the question

to  the  jury  and  that the trial court should  have  considered

whether there was an exception to the Coast Guard regulation  for

vessels  engaged  in the offshore mineral and oil  industry.   We

review  grants  of summary judgment de novo.49   Whether  a  jury

instruction presents the correct law is a legal question to which

we  apply our independent judgment.50  An erroneous statement  of

law  in  a jury instruction will not constitute reversible  error

unless it has prejudiced one of the parties.51

          There  is  little  merit  to MSSs  argument.   MSS  has

conceded  the pertinent facts: Captain Adams, who was  master  of

the tug SOLUTION when Horton was injured, was licensed to operate

vessels up to 100 gross tons while the tug SOLUTION was a  vessel

of  123  gross  tons.   Those were the only  facts  necessary  to

determine whether the captain was operating the vessel within any

restrictions  on  the individuals license.   MSSs  contention  on

appeal  that  the trial court should have considered whether  the

tug  was subject to a licensing exception was not raised  in  the

          trial court.52  The facts necessary to support the argument that

the  tug could have been engaged in work that might render it  an

exception  to  the licensing requirement were raised  by  Captain

George Reid but no exception was ever argued to the trial court.53

As  such, the argument has been waived and we decline to consider

it.54   We  conclude  that whether MSS was in  violation  of  the

regulation at the time of the accident was appropriately  decided

as a matter of law.

          The  second regulation that MSS violated is Rule  5  of

the  Convention  on the International Regulations for  Preventing

Collisions  at Sea (COLREGS).  It provides for a lookout  at  all

times:

          Every  vessel shall at all times  maintain  a

          proper look-out by sight and hearing as  well

          as  by all available means appropriate in the

          prevailing circumstances and conditions so as

          to make a full appraisal of the situation and

          of the risk of collision.[55]

The  trial  court presented to the jury the question whether  MSS

had  a  proper lookout. MSS argues that the trial court erred  in

instructing the jury on Rule 5 because it was intended to prevent

collisions  and  there was no collision in this case.   MSS  also

claims that Horton presented insufficient evidence to support the

jurys finding.

          MSS  argues that Rule 5 has no pertinence to this case.

We  disagree.  Rule 5 requires a proper lookout in order to avoid

collisions.  In general, it is established that violation of  the

lookout  rule  triggers The Pennsylvania Rule, thus shifting  the

burden  of  proof.56  According to Horton, he  was  injured  when

Captain  Adams was attempting to avoid a collision with  a  barge

moored  at the North Star Dock.  Adams apparently tried  to  turn

the tug to avoid a collision when the starboard engine died.   In

the  meantime,  Horton ran to the forward part of  the  barge  to

signal Adams about the impending collision.  Adams managed to get

          the engine started again, gave the engines full power, and the

movement of the tug jerked the tow line against the barge.   That

tow  line swept across the deck of the barge and crushed  Hortons

legs  against  the  steel  weatherwall.   According  to  his  own

testimony, Adams was focused principally on avoiding a  collision

with  the  barge at the dock.  Because the failure to maintain  a

lookout  could reasonably have led to the series of  events  that

resulted  in  Hortons  injury, the trial court  did  not  err  in

instructing the jury on Rule 5.

          In   a   related   argument,  MSS  claims   there   was

insufficient  evidence  to  support the  jury  verdict  that  MSS

violated  Rule 5.  MSS points out that Adams testified  he  could

see  everything he needed to see in order to avoid  a  collision,

suggesting  that a lookout may not have made a difference.   That

was an issue for the jury, which ultimately disagreed with MSS.

          7.   It was not error to pose a single question on Hortons

               comparative negligence.

          MSS  next  argues  that  the trial  courts  failure  to

assiduously   separate   and  define  Hortons   Jones   Act   and

unseaworthiness claims . . . including the degree  to  which  the

jury  found  Horton comparatively at fault under  each  claim  in

verdict  question 17 constitutes reversible error.   Question  17

asked:

          What  is  the percentage of fault  for  which
          each party is responsible?
          
          Marine Solution Services, Inc.
          (negligence and/or unseaworthiness)
          
          Thomas Horton
          (negligence)

The  jury attributed eighty-five percent of the fault to MSS  and

fifteen  percent  to  Horton.  MSS contends that  the  Jones  Act

negligence and unseaworthiness claims should have been  separated

to  allow  the jury to determine Hortons comparative fault  under

each  claim.   This is a question of law to which  we  apply  our

independent judgment.57

          We  first note that both parties were involved  in  the

preparation  of  this  verdict form, and if  MSS  disagreed  with

combining  comparative  negligence into  a  single  question,  it

should  have  objected at the appropriate time.  Alaska  Rule  of

Civil  Procedure  51(a) provides that [n]o party  may  assign  as

error the giving or the failure to give an instruction unless the

party  objects  thereto before the jury retires to  consider  its

verdict, stating distinctly the matter to which the party objects

and  the  grounds  of the objection.  Regardless,  MSSs  argument

fails   for   other  reasons.   Unseaworthiness  and  Jones   Act

negligence  are  separate claims, each with distinct  elements.58

The  court  instructed the jury on the elements  of  each  claim.

MSSs  contention that the separate causes of action required  the

jury   to   separately  determine  a  percentage  of   fault   is

unpersuasive.  Because all of Hortons claimed damages  arose  out

of  a  single  incident,  submission of  a  single  interrogatory

regarding    Hortons   possible   comparative   negligence    was

appropriate.59

          When  all of the claimed damages stem from  a

          single    event,   a   single   interrogatory

          concerning the amount of damages may then  be

          submitted,  for, in that event,  damages  are

          framed  in  terms of operational occurrences,

          i.e.,  the  accident or event, but  causation

          must  be  determined in light of the separate

          standards of proof.[60]

It is undisputed that there was a single event in this case.  The

jury  found for Horton on both claims arising out of that  single

incident.  The fact that the trial court did not require the jury

to apportion the percentage of comparative negligence for each of

the  two  causes  of  action was not error because  there  is  no

conceivable  way to separate them when damages  arise  out  of  a

single  event.  We conclude that the trial court did not  err  in

posing   a   single  verdict  question  on  Hortons   comparative

negligence.

          8.   The trial court did not abuse its discretion in declining to

               instruct the jury on primary duty and unsafe means.

          1.   MSS also argues that the trial court erroneously refused to

give  jury  instructions on primary duty and unsafe  means.   The

trial  court  has broad discretion to determine what instructions

should  be  given in a particular case.61  A review of  both  the

primary  duty  and unsafe means doctrines suggests  that  neither

applies in this case.

          The  primary  duty rule provides that a seaman-employee

may  not recover from his employer for injuries caused by his own

failure  to  perform a duty imposed on him by  his  employment.62

There are three limiting principles:

          First, the primary duty rule will not  bar  a

          claim of injury arising from the breach of  a

          duty  that  the plaintiff did not consciously

          assume  as a term of his employment.  Second,

          the  rule  does not apply where a  seaman  is

          injured by a dangerous condition that he  did

          not create and, in the proper exercise of his

          employment  duties, could not have controlled

          or  eliminated.  Third, the rule applies only

          to  a knowing violation of a duty consciously

          assumed as a term of employment.[63]

The  primary  duty  rule has only been applied  in  circumstances

where  the  seaman  neglected his own  particular  duty  and  was

injured  as a result.  For example, in Walker v.  Lykes Brothers,

a  heavy  file  cabinet fell and crushed the  leg  of  the  ships

master.64  The master, who had a duty to keep the ship  safe  and

seaworthy,  had  known that the file cabinets were  not  properly

secured  for  several months, yet he had neglected to  have  them

repaired.65  The primary duty rule barred the ship masters claim.66

In  general, courts have limited the primary duty rule, sometimes

even when the seaman failed to perform his own duty.67

          In  this  case, when questioned by Judge Shortell,  MSS

could  not identify a duty that Horton was under at the  time  of

the  accident,  much less a knowing violation  of  a  consciously

assumed  duty.  MSS did argue that Hortons duty was  [t]o  decide

when  [] and on what tide . . . that barge was going to be moved.

However,  this  contention does not fit within the parameters  of

the  primary  duty rule.  We conclude that the  trial  court  was

within  its discretion when it declined to instruct the  jury  on

primary duty.

          MSS  also requested a jury instruction on unsafe means.

Unsafe means is a rarely used doctrine that is similar to primary

duty.   It provides that if there are two ways to perform a task,

and  one  is  dangerous, the seaman who consciously  chooses  the

unsafe  means  of  performance may not recover.68   MSS  has  not

pointed to a task, or to two ways of performing it, or much  less

to  any evidence that Horton chose an unsafe option.  But perhaps

more  important  here  is the fact that  the  doctrine  has  been

rejected in other circuits.69  This may be because there is  some

confusion  as to the difference between primary duty  and  unsafe

means.70   More importantly, a seamans own negligence is  already

considered in apportioning liability.71  In any event, it is not a

widely  used or clearly defined doctrine and it does not fit  the

facts  of  this  case.   The  trial court  properly  declined  to

instruct the jury on unsafe means.

          9.   The Jones Act award may not be reduced by comparative

               negligence.

          MSSs  next  argument is that the trial court  erred  by

failing  to  reduce the jury award by the fifteen  percent  fault

allocated to Horton by the jury.  The trial court determined that

the  award would not be reduced by Hortons comparative negligence

since   the  jury  found  that  [MSS]  violated  federal   safety

regulations   and   failed  to  carry  its   burden   under   the

[Pennsylvania] rule.  This presents a question of law to which we

apply our independent judgment.72

          Because   Horton   prevailed  on  two  distinct   legal

theories,   we  will  discuss  the  implications  of  the   jurys

assignment  of comparative negligence on each.  We first  address

Hortons  Jones Act claim.  The Jones Act explicitly  incorporates

the Federal Employers Liability Act (FELA).73  FELA precludes the

reduction of an award for comparative negligence where the common

carrier violated a safety statute that contributed to the  injury

of the employee:

          In  all  actions on and after April 22,  1908

          brought  against any such common  carrier  by

          railroad  under or by virtue of  any  of  the

          provisions of this chapter to recover damages

          for  personal  injuries to  an  employee,  or

          where  such  injuries have  resulted  in  his

          death,  the fact that the employee  may  have

          been  guilty of contributory negligence shall

          not bar a recovery, but the damages shall  be

          diminished by the jury in proportion  to  the

          amount  of  negligence attributable  to  such

          employee: Provided, That no such employee who

          may  be  injured or killed shall be  held  to

          have  been  guilty of contributory negligence

          in  any  case  where  the violation  by  such

          common carrier of any statute enacted for the

          safety of employees contributed to the injury

          or death of such employee.[74]

(Emphasis  added.)  Interpreting this statute, the United  States

Supreme  Court concluded that when an employee is  injured  as  a

result  of the employers violation of a statute, the employer  is

liable   even  if  the  injury  was  not  one  the  statute   was

specifically aimed at protecting against.75

          The Fifth Circuit then applied this rule to a violation

of  the  Coast Guard manning statute providing that a vessel  may

not  be  navigated unless it has the full crew specified  in  its

          certificate of inspection.76  The court extensively reviewed the

history  of  the statute and determined that it had been  enacted

for  the  safety of the crew; the court therefore concluded  that

damages  could  not  be  reduced  by  the  employees  comparative

negligence  even  though the jury found him seventy-five  percent

negligent.77  Furthermore, the Fifth Circuit rejected as contrary

to  the  language of FELA the employers argument that  the  court

should take account of an employees comparative negligence  where

that negligence consists of deliberate acts.78

          In  Fuszek  v.  Royal King Fisheries, Inc.,  the  Ninth

Circuit applied this rule where the employer was in violation  of

a  Coast Guard regulation requiring that all exposed machinery on

board  a  vessel have suitable hand covers.79  A fish  processing

marine  technician reached his hand inside the machine  while  it

was running to clear a jam and his hand was crushed.80  The trial

court  found him twenty-five percent comparatively negligent  and

accordingly reduced his damages, but the Ninth Circuit  reversed,

ruling  that  the vessel was in unexcused violation  of  a  Coast

Guard  safety  regulation that was designed not only  to  protect

members of the class to which [the injured person] belonged,  but

also  to  prevent the type of injury he sustained.81   The  Ninth

Circuit further noted that this decision comported with the Fifth

Circuit rule82 as well as its own prior decisions.83

          Here,  the  trial  court determined  that  MSS  was  in

violation  of  a Coast Guard licensing regulation, and  the  jury

found  that  MSS was in violation of Rule 5 of the  COLREGS  (the

lookout rule).  The trial court found that the lookout rule was a

safety  regulation and that Horton was in the  class  of  persons

sought to be protected.  We agree.  Requirements that the captain

of  a  vessel be licensed to operate that type of vessel and that

the  vessel have a lookout are both designed to ensure safety and

to  protect the vessels crew.  Moreover, the rule stated  by  the

Ninth  Circuit  in Fuszek specifically referred  to  Coast  Guard

safety  regulations,  such as the licensing requirement  in  this

          case.  Horton thus fits squarely within the Fuszek rule that in

an  action  brought under the Jones Act, reduction  of  a  seaman

plaintiffs  damages  is  prohibited  where  the  employer  is  in

unexcused  violation  of  a  statute or  regulation  designed  to

protect members of the class to which the seaman belongs  and  to

prevent  the type of injury sustained.  The trial court thus  did

not err in declining to reduce Hortons Jones Act award.  However,

Horton  did  not just prevail on his Jones Act theory;  the  jury

also  found for him on his unseaworthiness claim.  Thus, we  must

consider this latter claim in our discussion of reducing  Hortons

award for his comparative negligence.

          Unseaworthiness  claims may be reduced for  comparative

negligence.   Maritime  law  has []  long  applied  the  rule  of

comparative fault in a seamans unseaworthiness action  against  a

shipowner.84   In  a  case where unseaworthiness  and  Jones  Act

negligence are tried together, and the jury makes a single damage

award  and  a  general  determination of  comparative  negligence

without  apportioning comparative fault to each cause  of  action

the entire award would simply be diminished by the percentage  of

the  plaintiffs fault.85  In that situation, the Jones Act  award

and  the  unseaworthiness award would comprise a  single  uniform

award.   However, that cannot be the case here.  Hortons  damages

award  cannot be viewed as a single award flowing from  both  his

unseaworthiness  and  Jones  Act claims,  given  that  under  The

Pennsylvania  Rule  his  Jones Act claim cannot  be  reduced  for

comparative negligence.  Therefore, if on remand, the trial court

characterizes the damages award as a Jones Act award, it may  not

reduce  the  amount  by  Hortons  comparative  negligence.    If,

however, the award is characterized as an unseaworthiness  award,

the damages may be reduced by fifteen percent.

          10.  Horton is entitled to prejudgment interest only on his
               unseaworthiness claims.
               
          MSSs  final  point on appeal is that  the  trial  court

erroneously denied its motion to vacate the prejudgment  interest

awarded to Horton by the jury.  MSS contends that where one award

          of damages is made for claims of Jones Act negligence and

unseaworthiness, prejudgment interest is not allowed.  We  review

de  novo  whether  a  trial court correctly applied  legal  rules

pertaining to prejudgment interest.86

          The  general  rule appears to be that where  Jones  Act

negligence  and  unseaworthiness are tried together,  prejudgment

interest  may  be  awarded  only on  that  part  of  the  damages

attributable solely to unseaworthiness.87  Prejudgment interest is

generally not permitted on Jones Act claims.88  Since the jury in

this  case  was  asked  to  calculate  damages  for  both  claims

together, prejudgment interest for only the unseaworthiness claim

cannot  be separated out, and therefore, under this rule,  Horton

would not be entitled to prejudgment interest at all.

          Here,  however, we have concluded that  the  Jones  Act

claim  cannot  be  reduced for comparative  negligence  and  that

therefore there is not a uniform single award for both the  Jones

Act   and   unseaworthiness  claims.   Consequently,  prejudgment

interest  can  only  be awarded on the damages  award  if  it  is

characterized as an unseaworthiness claim and is thus subject  to

reduction   for  comparative  negligence  but  not   if   it   is

characterized  as a Jones Act claim.  It is interesting  to  note

that because there is no reduction for comparative negligence but

also  no  allowance for prejudgment interest in  this  Jones  Act

claim, while reduction for comparative negligence and prejudgment

interest  are permitted in the unseaworthiness claim, calculation

of the total judgment under each claim appears to reach virtually

the  same  result in the present case.  On remand,  the  superior

court  shall perform both calculations and award Horton whichever

judgment amount is greater.89

     B.   Hortons Cross-Appeal

          1.   Reasonable persons could differ as to whether Horton had

               achieved maximum cure.

          1.   Horton first claims in his cross-appeal that no reasonable

person  could  have  found  Horton  was  at  maximum  cure   and,

          therefore, the jury verdict should be reversed. Specifically,

Horton  alleges that there was no evidence to support  the  jurys

decision  that Horton had reached maximum cure.  We will  reverse

the  jurys  finding  only if the evidence is so  clearly  to  the

contrary  that  reasonable  persons could  not  differ  in  their

judgment. 90

          Maintenance  and  cure is a doctrine  that  applies  to

seamen injured while in the service of the ship.91  Maintenance is

a  sum  for  living expenses during the period of  treatment  and

convalescence,  and cure pays for medical expenses.   An  injured

seaman  is entitled to cure until the seaman is at maximum  cure,

meaning  the point at which no improvement in the seamans medical

condition  is  to be reasonably expected.92  Cure is  limited  to

curative, as opposed to palliative, medical treatment.93

          Considering the high standard applicable to  the  jurys

determination  and  the  testimony before the  court,  reasonable

persons  could  differ as to whether Horton had  reached  maximum

cure.   Hortons  own orthopedic surgeon, Dr. Vasileff,  testified

that  he  would  not recommend any further medical treatment  for

Horton:

          Q:   The  last  time you saw him,  would  you
               have  recommended any further  treatment
               for the leg or ankle?
               
          A:   No.
     
          Q:   Or not  leg or the foot, excuse me.
     
          A:   No.
          
          Q:   Okay.  And why is that?
          
          A:   Well,  it was  the fracture was healing,
               the   I thought we probably did what  we
               could.  Now, in terms of the nerve pain,
               certainly,  that could have   you  know,
               you  could  investigate that further  to
               see if something could be done.
               
Dr.  Brown, who treats Hortons diabetes,94 testified that  Horton

has chronic pain and depression.  Dr. Brown is not a psychiatrist

however.  Dr. Craig, a clinical neuropsychologist, testified that

chronic pain treatment is geared toward helping people learn  how

to  cope  with  the  discomfort.  He then added,  theres  nothing

magical  about  pain programs thats going to make the  discomfort

just  go  away . . . .  In other words, the expert witnesses  did

suggest  stabilizing  treatments, but it is questionable  whether

Hortons  pain or depression would improve or could be cured  over

time.   We  conclude that reasonable persons could differ  as  to

whether Horton had reached maximum cure and therefore we will not

overturn the jury verdict.

          2.   MSS is entitled to an offset.

          1.   Hortons second claim is that the trial court improperly

reduced  the  jury award for cure by deducting the medical  bills

already paid by MSS.  Essentially, Horton argues that there is no

evidence that MSS actually paid any of Hortons medical bills  and

that  whether  MSS is entitled to an offset is a  jury  question.

This argument has little merit.

          MSS  and  Horton  stipulated to Hortons medical  bills.

The  jury  awarded  the  entire amount,  less  the  expenses  for

diabetes  since the jury found that condition to be unrelated  to

Hortons   injuries.   During  the  trial,  Horton  attempted   to

introduce evidence of medical bills paid by MSS but was prevented

from doing so by the trial court.95  After the trial, MSS moved to

reduce the jury award for cure by $122,030.76, the amount paid by

MSS  for medical bills arising from Hortons injuries.  The  trial

court observed that there was no dispute that the bills had  been

paid:

          There  is  no  factual  dispute  between  the
          parties  regarding the sum paid nor is  there
          dispute  that  the $122,030.76  was  paid  on
          behalf  of the defendant for medical expenses
          arising  out of plaintiffs injuries.  .  .  .
          [T]here are no factual issues to be resolved.
          Both agreed that the issue to be decided here
          is simply a legal one.
          
          . . . .
     
               There  is  no  legitimate dispute  here.
          The  plaintiff  had a total  of  $186,000  in
          medical/cure  expenses.  The  defendant  paid
          $122,030.76 of those expenses.  The defendant
          should be given credit for those payments.
          
We agree with the trial court and reject Hortons argument that he

should get what amounts to a double recovery of medical expenses.

          3.   Horton is entitled to an enhancement of prejudgment interest

               only.

          Horton  claims  that he is entitled to  enhancement  of

prejudgment  and  postjudgment interest  because  MSS  failed  to

achieve  a  verdict more favorable to it than  Hortons  offer  of

judgment made under the former Alaska Rule 68.  MSS counters that

prejudgment  interest  enhancement is not  available  because  it

conflicts  with  federal  law and that statutory  provisions  for

prejudgment  interest  do not provide for postjudgment  interest.

This  issue  presents a question of law to  which  we  apply  our

independent judgment.96

               a.   Prejudgment interest

          Before  trial,  Horton made an offer  of  judgment  for

$950,000  plus  costs, prejudgment interest, and attorneys  fees.

The  jury ultimately awarded Horton $175,000 in past damages  and

$1,155,000  in future damages as well as ten percent interest  on

his  past  losses.  Horton claimed entitlement to an  enhancement

based  on the former Alaska Civil Rule 68 that provided  that  if

the  judgment rendered was not more favorable to the offeree than

the offer, the prejudgment interest accrued would be increased by

five percent as specified in the former AS 09.30.065.97 The trial

court  initially  added  the enhancement, increasing  prejudgment

interest to fifteen percent per year and postjudgment interest to

12.545%.   The  trial  court  later  revised  that  decision  and

determined that Horton would receive ten percent prejudgment  and

7.545%  postjudgment interest; the trial court removed  the  five

percent  enhancement from both interest rates.  It is the removal

of the enhancement that Horton now appeals.

          Because  Horton made an offer for judgment for $950,000

and  was  ultimately  awarded  more than  $1,300,000,  he  should

qualify  for  the enhancement.  However, whether the  enhancement

applies  depends  upon  whether  the  trial  court  characterizes

          Hortons damages award as a Jones Act or unseaworthiness award.

We  have  established that Horton is not entitled to  prejudgment

interest on his Jones Act claim.  Consequently, he cannot receive

an   enhancement  of  prejudgment  interest  if  his   award   is

characterized as a Jones Act award.98  However, if the trial court

characterizes Hortons damages award as an unseaworthiness  award,

he is entitled to an enhancement of prejudgment interest.99

               b.   Postjudgment interest

          Horton  also  argues that postjudgment interest  should

have  accrued at 10.5% under the former AS 09.30.070(a) and  that

he  is entitled to an enhancement of that interest as well.   MSS

maintains  that  the  statute  and  Rule  68  do  not  apply   to

postjudgment   interest  at  all  and  thus  neither   does   the

enhancement.   The trial court awarded postjudgment  interest  at

the rate of 7.545%.

          At  the  time this action was filed, the former version

of  AS  09.30.070(a),  the  statute  providing  for  interest  on

judgments, provided that [t]he rate of interest on judgments  and

decrees  for  the payment of money is 10.5 percent  a  year.   It

appears  that  the  parties  presented  the  new  version  of  AS

09.30.070(a) to the trial court, and accordingly the trial  court

may have calculated the interest at three percentage points above

the  12th  Federal Reserve District discount rate  in  effect  as

required  by  the new version of AS 09.30.070(a).   Perhaps  this

explains  why  the  trial  court  specified  a  rate  of  7.545%.

However,  the statute in effect at the time this case  was  filed

provides that interest is to be set at 10.5%.  Further,  the  new

statute provides that it applies to all causes of action accruing

on or after August 7, 1997, thus clearly implying that it was not

meant  to apply to causes of action accruing before that date.100

The   trial   courts  use  of  the  wrong  statute  to  calculate

postjudgment interest constitutes plain error, and we reverse and

remand to correct the judgment and set the interest rate at  10.5

percent.

          Horton,  however, is not entitled to an enhancement  of

postjudgment  interest.   Horton  argues  that  the   enhancement

applies to postjudgment interest because the former version of AS

09.30.065 only generally refers to judgment and the interest rate

and  is not explicitly limited to prejudgment interest.  However,

as  MSS  points  out, AS 09.30.065 also refers  to  the  interest

awarded under AS 09.30.070 and accrued up to the date judgment is

entered.   (Emphasis added.)  We have interpreted this  provision

as  referring only to prejudgment interest.101  In addition,  the

purpose  of  the  enhancement  was to  encourage  settlement  and

discourage  protracted  litigation on  less  meritorious  claims;

accordingly, the penalty of the enhancement should only apply  to

the period before judgment.  Therefore, Horton is entitled to  an

enhancement   of  prejudgment  interest  only;  the   enhancement

provision does not apply to postjudgment interest.102

IV.  CONCLUSION

          The  jury  made  a single damage award  to  Horton  who

brought  claims  under  both the Jones  Act  and  unseaworthiness

theories.    Because  there  is  no  reduction  for   comparative

negligence but also no allowance for prejudgment interest in  his

Jones  Act claim, while both reduction for comparative negligence

and  prejudgment  interest are permitted in  his  unseaworthiness

claim,  the  superior court should perform alternate calculations

of  the total judgment under each claim.  Horton will be entitled

to  the  larger of the two judgments.  Furthermore, if the  trial

court  characterizes  his  damages award  as  an  unseaworthiness

award,   Horton  is  entitled  to  the  statutory  five   percent

enhancement on prejudgment interest only.  Postjudgment  interest

was  erroneously set by the trial court under the new version  of

the  statute  and should be recalculated at 10.5% to reflect  the

statute  in  effect  at  the time the complaint  was  filed.   We

REVERSE  and REMAND for corrected judgment on these  points.   In

all other respects, the trial courts judgment is AFFIRMED.

_______________________________
     1     The  Osceola,  189  U.S. 158, 175 (1903);  McAleer  v.
Smith, 57 F.3d 109, 116-18 (5th Cir. 1995).

     2    33 U.S.C.  902-38 (2001).

     3    In accordance with the federal admiralty rule, the jury
was  permitted  to award prejudgment interest,  rather  than  the
trial  court.  Robinson v. Pocahontas, 477 F.2d 1048,  1053  (8th
Cir.    1973).   Neither  party  objected  to  the  trial   court
submitting this issue to the jury.

     4     Christensen  v. NCH Corp., 956 P.2d 468,  474  (Alaska
1998).

     5    AS 10.06.010(2).

     6     MSS  claims  that  Gerda Horton is  fifty-one  percent
owner,  and  Thomas  Horton  owns the other  forty-nine  percent.
Gerda  Horton admits to being the majority shareholder  but  does
not specify her percentage.

     7     MSS  also  claims  that Thomas Horton  owns  fifty-one
percent  of  Horton  Marine  and  Gerda  Horton  owns  forty-nine
percent.

     8    18 Am. Jur. 2d Corporations  45 (2002).

     9     334  F.  Supp.  396, 397 (S.D. Tex.  1971);  see  also
Kathleen  M. Dorr, Who Is Owner of Vessel or Employer  of  Seaman
for Maritime Purposes, 95 A.L.R. Fed. 636  6 (1989).

     10     18 Am. Jur. 2d Corporations  45 (2002).  This applies
in  contract and in tort.  Milton v. Cavaney, 364 P.2d  473,  477
(Cal. 1961).

     11    Uchitel Co. v. Telephone Co., 646 P.2d 229, 235 (Alaska
1982); Lorenz v. Beltio, Ltd., 963 P.2d 488, 497 (Nev. 1998).

     12     See Croxton v. Crowley Maritime Corp., 817 P.2d  460,
464  (Alaska  1991)  (noting that persons who  choose  to  become
incorporated may not evade the consequences of corporateness when
that would suit their convenience) (citation omitted).

     13     D.P. v.  Wrangell Gen. Hosp., 5 P.3d 225, 228 (Alaska
2000).

     14    Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783,
787  n.6  (1949);  see  also Evans v. United  Arab  Shipping  Co.
S.A.G.;  M/V Al Wattyah, 4 F.3d 207, 215 (3d Cir. 1993);  Addison
v.  Gulf  Coast Contracting Servs., Inc., 744 F.2d 494, 498  (5th
Cir.  1984).

     15    46 U.S.C. app.  688(a) (2003).

     16     Cosmopolitan Shipping, 337 U.S. at 790-91.  See  also
Evans,  4  F.3d at 216 (applying traditional rules of  agency  in
addition to following reasoning of Cosmopolitan Shipping).

     17    Cosmopolitan Shipping, 337 U.S. at 795.

     18    Addison, 744 F.2d at 499.

     19    Kathleen M. Dorr, Who Is Owner of Vessel or Employer of
Seaman for Maritime Purposes, 95 A.L.R. Fed. 636  2(b) (1989).

     20     McDermott Intl, Inc. v. Wilander, 498 U.S.  337,  355
(1991) (citations omitted).

     21     Chandris,  Inc. v. Latsis, 515 U.S. 347,  368  &  370
(1995).

     22    Id. at 371 (quoting Wilander, 498 U.S. at 356).

     23    3 P.3d 323, 327-28 (Alaska 2000).

     24     Christensen v. NCH Corp., 956 P.2d 468,  474  (Alaska
1998).

     25     Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d
20, 29 (Alaska 1998).

     26     Id.;  Grimes  v. Haslett, 641 P.2d 813,  818  (Alaska
1982).

     27     Wilander,  498  U.S. at 356 (If  reasonable  persons,
applying  the proper legal standard, could differ as  to  whether
the  employee  was a member of a crew, it is a question  for  the
jury.).

     28     Cavin, 3 P.3d at 327 n.23 (quoting Wilander, 498 U.S.
at 356).

     29    Chandris, Inc. v. Latsis, 515 U.S. 347, 371 (1995).

     30    Id.; see also Cavin, 3 P.3d at 328.

     31     Cavin, 3 P.3d at 328 (quoting Chandris, 515  U.S.  at
369, 371).

     32     We  note that even if Horton had not qualified  as  a
seaman  under  the federal tests, he would have  qualified  as  a
Sieracki seaman for purposes of an unseaworthiness remedy because
the  injury occurred at sea.  Seas Shipping Co. v. Sieracki,  328
U.S.  85,  95 (1946); Cavin, 3 P.3d at 331-32 (holding that  1972
amendments to Longshore and Harbor Workers Compensation Act  only
superseded Sieracki as it applied to longshoremen, and that other
maritime   workers  still  have  unseaworthiness   claims   under
Sieracki).

     33     The Pennsylvania Rule provides that if a vessel is in
violation  of a statutory duty intended to prevent collisions  at
the  time  of  an  accident, the burden of proof shifts  to  that
vessel  to show that the violation could not have been the  cause
of the collision.  The Pennsylvania, 86 U.S. 125, 136 (1873).

     34     Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988)
(citation omitted).

     35     Whether MSS violated any statutory duties that  would
have triggered the Rule is discussed below.

     36    The Pennsylvania, 86 U.S. at 136.

     37     Pennzoil Producing Co. v. Offshore Express, 943  F.2d
1465, 1472 (5th Cir. 1991).

     38     Candies Towing Co. v. M/V B & C Eserman, 673 F.2d 91,
93  (5th Cir.  1982).  In a related argument, MSS claims that the
language  of  the  Rule implies to the jury that  MSS  must  show
beyond  a  reasonable  doubt that it could not  have  caused  the
accident, and the jury instructions should have provided  instead
that  [t]he  defendant  has the burden of showing  by  clear  and
convincing evidence that [the violation] was not a cause  of  the
accident.   However, the jury instructions made no  reference  to
beyond   a  reasonable  doubt  and  instead  included  a  general
instruction  specifying that the burden was  the  standard  civil
more likely than not burden.  There is no error.

     39    Pennzoil, 943 F.2d at 1472.

     40     Id.  MSS contends that the Supreme Courts decision in
Reliable Transfer may have effectively overruled The Pennsylvania
Rule.  See generally United States. v. Reliable Transfer Co., 421
U.S.  397  (1975).  This is not correct.  It is widely recognized
that  Reliable  Transfer only overruled The Pennsylvania  on  the
point  of allocating comparative fault.  United States v.  Nassau
Marine  Corp., 778 F.2d 1111, 1116 (5th Cir. 1985); Allied  Chem.
Corp. v. Hess Tankship Co. of Delaware, 661 F.2d 1044, 1052  (5th
Cir. 1981).

     41     Mathes v. The Clipper Fleet, 774 F.2d 980,  982  (9th
Cir.  1985) (citing five additional cases in which Ninth  Circuit
employed the Rule).

     42    Id. at 981-82.

     43    Id.  at 982-83.

     44    Id.  at 983.

     45    778 F.2d at 1116.

     46     Pennzoil Producing Co. v. Offshore Express, Inc., 943
F.2d  1465, 1472 (5th Cir. 1991).  But see Wilkins v. Am.  Export
Isbrandtsen  Lines,  Inc.,  446 F.2d  480,  486  (2d  Cir.  1971)
(Finally, as a judgmental matter, we are not persuaded that there
are  broad considerations of policy which require that we  extend
the admiralty rule of The Pennsylvania beyond the chosen area  of
ship collisions to embrace Jones Act cases.).

     47    46 C.F.R.  15.910(a) (1989) (amended Nov. 20, 2000).

     48     This ruling of a violation triggered The Pennsylvania
Rule and resulted in a jury instruction that MSS had to show  the
violation could not have caused Hortons injuries.  Courts in  the
Ninth  Circuit  have held that violation of a regulation  enacted
for  personnel safety triggers the Rule.  Elms v. Crowley  Marine
Service, 1997 A.M.C. 835, 842-43 (W.D. Wash. 1996).  The  license
requirement  is  mandatory  and  was  enacted  to  establish  the
complement  necessary for safe operation of vessels.   46  C.F.R.
15.101.

     49     Christensen v. NCH Corp., 956 P.2d 468,  474  (Alaska
1998).

     50     Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d
20, 29 (Alaska 1998).

     51    Grimes v. Haslett, 641 P.2d 813, 818 (Alaska 1982).

     52     MSS now seems to claim that the tug was subject to an
exception provided in 46 C.F.R.  15.610 for vessels of less  than
200  gross tons engaged in the offshore mineral and oil industry.
46 C.F.R.  15.610 (1996) (amended Nov. 19, 1999).

     53     There  is no indication of this argument having  been
raised  either  during  trial or in MSSs  opposition  to  Hortons
motion for summary judgment as to liability for violation of  the
COLREG   5,  discussed  infra,  and  the  Coast  Guard  licensing
regulation.  Instead, MSS argued that Adamss lack of an  adequate
license was imputed to Horton.

     54    Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997) (As a
general  rule,  an issue that was not raised in the  trial  court
will not be considered on appeal.).

     55    International Regulations for Preventing Collisions at
Sea, July 15, 1977, Part B, sec. 1, Rule 5, 28 U.S.T. 3459.

     56     Trinidad Corp. v. S.S. Keiyoh Maru, 845 F.2d 818, 826
(9th  Cir.  1988); Illinois Constructors Corp. v. Logan  Transp.,
Inc., 715 F. Supp. 872, 883 (N.D. Ill. 1989).

     57    See Kodiak Island Borough v. Exxon Corp., 991 P.2d 757,
759 (Alaska 1999).

     58     Comeaux v. T.L. James & Co., 702 F.2d 1023, 1024 (5th
Cir. 1983)

     59     Fontenot v. Teledyne Movible Offshore, Inc., 714 F.2d
17, 19 (5th Cir. 1983).

     60    Comeaux, 702 F.2d at 1025.

     61    Chenega Corp. v. Exxon Corp., 991 P.2d 769, 776 (Alaska
1999).

     62     Cal. Home Brands, Inc. v. Ferreira, 871 F.2d 830, 836
(9th Cir.  1989).

     63     Bernard v. Maersk Lines, Ltd., 22 F.3d 903, 907  (9th
Cir. 1994).

     64    193 F.2d 772, 773 (2d Cir. 1952).

     65    Id.

     66    Id. at 774-75.

     67     See, e.g., Yehia v. Rouge Steel Corp., 898 F.2d  1178
(6th  Cir. 1990) (holding that claims of deck hand cleaning  oily
deck  were  not barred by primary duty rule since deck  hand  had
neither duty nor ability to remove all oil from deck).

     68    Peymann v. Perini Corp., 507 F.2d 1318, 1322 (1st Cir.
1974).

     69     See, e.g., Kelley v. Sun Transp. Co., 900 F.2d  1027,
1031 (7th Cir. 1990).

     70     Unsafe  means  closely resembles the  third  limiting
principle  of the primary duty rule.  That is, unsafe  means  has
evolved  to  apply when the seaman had knowledge of  a  dangerous
condition  and also a duty to remedy it.  Kelley v.  Sun  Transp.
Co., 900 F.2d 1027, 1030-31 (7th Cir. 1990).

     71     As mentioned above, comparative negligence is already
considered  in Jones Act and unseaworthiness claims,  and  indeed
Horton was found to be fifteen percent at fault.

     72    Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 759
(Alaska 1999).

     73     46 U.S.C. app.  688(a) (2002); Roy Crook & Sons, Inc.
v.  Allen, 778 F.2d 1037, 1038 (5th Cir. 1985).

     74    45 U.S.C.  53 (2002).

     75     Kernan  v.  Am.  Dredging Co., 355 U.S.  426,  432-33
(1957); see also Roy Crook & Sons, 778 F.2d at 1039.

     76    Roy Crook & Sons, 778 F.2d at 1041-42 (applying rule to
46 U.S.C.  222 as replaced by 46 U.S.C.  8101(d)).

     77    Id. at 1042-43.

     78    Id. at 1043.

     79     98 F.3d 514, 516-17 (9th Cir. 1996) (interpreting  46
U.S.C.  4502(b)(2)G and 46 C.F.R.  28.215).

     80    Id. at 515.

     81    Id. at 517.

     82     Id. (referring to Roy Crook & Sons, 778 F.2d at 1041,
1043  and  Smith v.  Trans-World Drilling Co., 772 F.2d 157,  160
(5th Cir. 1985)).

     83    Id. at 517 (referring to Kopczynski v. The Jacqueline,
742  F.2d 555, 558-59 (9th Cir. 1984) (noting that employee could
have  recovered without any reduction for comparative  negligence
if  he  had been injured at sea and his injuries had been due  to
negligence attributable to violation of Coast Guard regulation)).

     84    Knight v. Alaska Trawl Fisheries, Inc., 154 F.3d 1042,
1047 (Alaska 1998).

     85     Fontenot v. Teledyne Movible Offshore, Inc., 714 F.2d
17, 19 (5th Cir. 1983).

     86     City  of Seward v. Afognak Logging, 31 P.3d 780,  783
(Alaska 2001).

     87    McPhillamy v. Brown & Root, Inc., 810 F.2d 529, 531-32
(5th  Cir. 1987); Petersen v. Chesapeake & Ohio Ry. Co., 784 F.2d
732,  741 (6th Cir. 1986); Wyatt v. Penrod Drilling Co., 735 F.2d
951, 956 (5th Cir. 1984).

     88      McPhillamy,  810  F.2d  at  532  n.1  (holding  that
prejudgment  interest is only disallowed when case  is  tried  by
jury, but is discretionary when tried before the court).

     89     See Magee v. United States Lines, Inc., 976 F.2d 821,
823 (2d Cir. 1992) (holding that in cases involving Jones Act and
unseaworthiness claims where a single award of damages  is  made,
the  successful plaintiff [should] be paid under  the  theory  of
liability  that  provides the most complete recovery)  (citations
omitted).

     90     Alaska Democratic Party v. Rice, 934 P.2d 1313,  1320
(Alaska  1997) (quoting Diamond v. Wagstaff, 873 P.2d 1286,  1290
(Alaska 1994)).

     91     The  Osceola, 189 U.S. 158 (1903).  The term  in  the
service of the ship is liberally construed.  See Warren v. United
States,  340  U.S. 523, 529-30 (1951); Koistinen  v.  Am.  Export
Lines, Inc., 83 N.Y.S.2d 297 (1948).

     92    Vella v. Ford Motor Co., 421 U.S. 1, 4-6 n.5 (1975).

     93     Nassen  v. CSX Lines, LLC, 191 F. Supp. 2d  307,  317
(E.D.N.Y. 2002); Sefcik v. Ocean Pride Alaska, Inc., 844 F. Supp.
1372, 1373 (D. Alaska 1993).

     94    The jury found that Hortons diabetes was not related to
his injuries.  The issue has not been appealed.

     95     The  trial court granted a motion in limine  on  this
issue  because  it determined that Horton was going  to  use  the
evidence  of  insurance  coverage and  medical  payments  for  an
improper purpose.  Introduction of evidence that shows payment of
medical   and  similar  expenses  is  not  admissible  to   prove
liability.   Alaska R. Evid. 409.  In addition, evidence  that  a
person  was insured against liability is not admissible to  prove
negligence.  Alaska R. Evid. 411.  Even relevant evidence may  be
excluded  if its probative value is outweighed by the  danger  of
unfair  prejudice,  confusion of the issues,  or  misleading  the
jury.  Alaska R. Evid. 403.

     96     City  of Seward v. Afognak Logging, 31 P.3d 780,  783
(Alaska 2001).

     97    This case was filed before August 7, 1997 and therefore
the former versions of Rule 68 and AS 09.30.065 apply.

     98    Horton argues that because Rule 68 is a procedural and
not  substantive  provision  he may  receive  an  enhancement  of
prejudgment interest on his Jones Act award; however, we need not
address this argument because enhancement of prejudgment interest
only applies to unseaworthiness.

     99    See McPhillamy v. Brown & Root, Inc., 810 F.2d 529, 532
n.1  (5th  Cir. 1987) (noting [t]he award of prejudgment interest
under maritime law is well-nigh automatic ).

     100    Ch. 26,  55, SLA 1997.

     101     Andrus v. Lena, 975 P.2d 54, 57 (Alaska 1999) (Where
the  party  defending  against the  claim  rejects  an  offer  of
judgment  more favorable to the offeree than the final  judgment,
the  superior court must increase the prejudgment interest  award
by five percent.).

     102     Because the jury found that Horton was a seaman  and
there is no error in the jury instruction, Hortons claims against
Adams are moot and we need not consider them.