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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.
