July 26, 2012
Plaintiff v. Maersk Lines Limited
Reply in Support
Our maritime attorneys fight to achieve the maximum possible recovery for our clients throughout all stages of litigation, even after a trial and a successful verdict. In this case, our attorneys won a jury verdict in favor of an injured seaman who worked on a Maersk container vessel. However, the jury also reduced the Plaintiff’s award by comparative fault. The plaintiff asked the court to set aside the jury’s finding of comparative fault and to award the Plaintiff his full damages.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 11-21589-CIV-CMA
WILLIAM C. SKYE
MAERSK LINE, LIMITED CORPORATION
d/b/a MAERSK LINE LIMITED
REPLY TO DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO ALTER OR AMEND THE JUDGMENT PURSUANT TO RULE 59(E)
– Plaintiff, WILLIAM C. SKYE, by and through his undersigned counsel, hereby files his reply to Defendant’s, MAERSK LINE LIMITED CORPORATION, Response in opposition to Plaintiff’s Motion to Alter or Amend the Judgment Pursuant to Rule 59(e) and for good cause relies on the following:
PLAINTIFF’S REQUESTED JURY INSTRUCTIONS ARE TAKEN FROM HOLDINGS CONSISTENT WITH THE BROAD REMEDIAL PURPOSES OF THE JONES ACT. THESE HOLDINGS REFLECT THE REALITY OF A SEAFARER’S POSITION AND THE PERILS OF HIS OCCUPATION. IT IS FOR THESE REASONS THAT THE LAW PUTS THE ONUS ON THE EMPLOYER TO MAINTAIN SAFE WORKING CONDITIONS, INCLUDING NOT ORDERING SEAFARERS TO PERFORM DANGEROUS TASKS. FURTHER, IT WAS PLAIN ERROR TO PERMIT THE DEFENDANT’S EXPERT TO EXPLAIN TO THE JURY THE CONSTRUCTION AND APPLICATION OF THE STATUTES AT ISSUE. INSTRUCTING THE JURY ON THE LAW IS THE PRIVILEGE AND DUTY OF THE COURT. BY USURPING THAT DUTY, THE DEFENDANT’S EXPERT PRESENTED A CONVOLUTED AND PATENTLY ERRONEOUS UNDERSTANDING OF THE WORK-REST HOUR LAWS. BY PRESENTING THIS ERRONEOUS UNDERSTANDING OF THE LAW, THE DEFENDANT MISLEAD THE JURY INTO BELIEVING SOMETHING NOT SUPPORTED BY THE EVIDENCE, THAT MAERSK DID NOT VIOLATE THE LAWS IN QUESTION.
In his motion for post trial relief, Skye seeks to have the Court set aside the Jury’s finding of comparative negligence. The Court should set aside the finding of comparative negligence because the jury was not properly instructed regarding the rights and duties of a seaman as they relate to his negligence. Additionally, the finding of comparative negligence should be set aside because it was plain error for the court to allow Defendant’s expert to testify about the meaning and application of laws at issue in this case that directly related to comparative negligence.
II. Jury Instructions
Plaintiff’s requested jury instructions comport with the humanitarian purposes of FELA, the Jones Act, and their liberal application. See Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562 (1987). The embodiment of that humanitarian purpose and liberal application was recently reaffirmed in the Supreme Court’s decision of CSX Transp., Inc. v. McBride, 131 S. Ct. 2630 (2011). The Supreme Court’s reaffirmation of the featherweight burden in FELA/Jones Act cases reflects both the Court and Congressional intent to curtail the abusive practices of the transportation industry and the imbalance of power that exists between employer and employee. It is precisely this imbalance of power that Plaintiff’s requested jury instructions addressed.
Plaintiff’s requested instruction regarding a Seaman’s Duty of Self Protection is the better reasoned approach to imposing a duty on a seafarer. The imbalance of power that exists between employer and employee should be reflected in the duty owed by both of those parties. Although Maersk cites the annotations and comments to the Eleventh Circuit Pattern Jury Instructions for the proposal that a seaman should exercise ordinary care in contravention of the holding in Spinks v. Chevron Oil Co., 507 F.2d 216, 223 (5th Cir. 1975), it can still find no Eleventh Circuit case overruling this holding. As stated in Plaintiff’s original motion, only the Supreme court or Eleventh Circuit sitting en banc can overrule the Eleventh’s circuits binding precedent. No Supreme Court case or en banc ruling from the Eleventh Circuit has overruled Spinks, thus it is still good law in this circuit and the Court should have given this instruction.
Plaintiff’s requested Jury instructions regarding a Seaman’s Duty to Follow Orders and a Seaman’s Duty to Follow Order – Contributory Negligence, also address the imbalance of power that exists between a ship owner and a ship’s crew. Plaintiff’s Trial Exhibit 1 was Skye’s job description, the first task in this description commands Skye to, “[f]ollow all lawful orders received from the master”. Another task requires Skye to, “[a]dminister the deck department in accordance with all MLL requirements.” There was no exception in Skye’s job description allowing him to avoid these duties if he thought they were unsafe. The reality is that the Plaintiff would have been fired if he refused to work in the manner that he was ordered to by his captain and by Maersk’s shoreside management. Michael McCright testified to this fact and that testimony was presented to the jury. Despite this fact, Maersk sought to impose a duty on Skye to both question his orders and his working conditions, and then convinced the Jury he was negligent for not doing so. This duty simply does not exist and the Plaintiff’s requested jury instructions made that clear.
Contrary to what the Defendant argues, Skye’s requested instructions pertaining to a Seaman who carries out his orders do not contravene the holding of Gatreuax v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997). The requested instructions instead recognize that in the special circumstance wherein a seaman is ordered to do something by his employer, he cannot be expected to disobey and thus should not be at fault for any resulting injury. Skye testified that he never worked or did any task that was not required of him by his employer in Trial Exhibit 1. Maersk argues that giving these instructions would reward unreasonable conduct, but the unreasonable conduct is giving unsafe orders, not following those orders to keep one’s job.
Notably, the Defendant cannot provide anything beyond its argument that the Plaintiff’s instructions contradict the general statement that a Jones Act employer is not the insurer of a seaman’s safety or that there must be negligence on the part of an employer for liability to attach. However, nothing in Plaintiff’s requested jury instructions 15b or 16 would contradict either of these principles. All these instructions do is make clear that when a seaman is ordered to do a task, he cannot be found to be comparatively negligent for completing that task. If that task is unreasonable, dangerous, and/or negligent, the responsibility should fall on the shoulders of the party giving the order, not the party carrying it out.
Maersk argues that the cases Plaintiff cites are inapplicable because they deal with the Longshore and Harbor Worker’s Compensation Act or the doctrine of unseaworthiness. Neither of those facts make this good law inapplicable herein. First, in Mahnich v. Southern Steamship Co., 321 U.S. 96 (1944)  the Supreme Court dealt with the question of unseaworthiness when a Plaintiff had been ordered to paint a ship’s bridge using defective rope to support his weight. This rope was provided to the seaman by his superior onboard the vessel. Thus it was the negligence of a fellow crewmember that rendered the ship unseaworthy. As a result, the entire decision is filled with discussion on the effect of an employer’s negligence and a fellow seaman’s negligence.
The Supreme Court revisited Manich over a decade later and stated that it was a landmark decision in the development of admiralty law and further encouraged a broad reading of the holdings therein:
In 1944 this Court decided Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. While it is possible to take a narrow view of the precise holding in that case, the fact is that Mahnich stands as a landmark in the development of admiralty law.
Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 548 (1960).
Since that time, Mahnich has been cited in numerous cases involving the Jones Act.
Similarly, Plaintiff’s citation to Byrd v. Reederei, 638 F.2d 1300 (5th Cir. 1981) is appropriate in this case. Maersk points out that Byrd was a case brought under the Longshore and Harbor Worker’s Compensation Act and not the Jones Act. What Maersk fails to note is that the Byrd Court itself stated that for purposes of contributory negligence and assumption of risk, Longshoremen and Jones Act seaman should be treated the same:
Although the 1972 Amendments to the Act effected several fundamental changes in the nature of longshoremen’s compensation, those changes did not alter the impermissibility of the assumption of risk defense. Gay v. Ocean Transport & Trading, Ltd., supra. Gay also makes clear that under the amendments, seamen and longshoremen are to be treated alike for these purposes.
Byrd v. Reederei, 638 F.2d 1300, 1306 (5th Cir. 1981).
The Byrd decision then goes on to cite numerous Jones Act and FELA cases in support of its holding.
Lastly, Maersk attempts to distinguish the applicability of these cases due to Skye’s injury having been caused by repeated negligent orders versus one negligent order resulting in a one time injury. It does not matter for the purposes of the Court or the Jury’s analysis whether or not it was multiple orders that resulted in Skye’s injury or one order. The issue is the same and in fact Skye’s circumstances make these instructions even more pertinent. Given the nature of Skye’s injury, it was difficult for him to know that carrying out his orders was dangerous because the affect on his body was gradual and progressive as opposed to acute. This issue was decided long ago by the Supreme Court in Urie v. Thompson, 337 U.S. 163 (1949), wherein the Supreme Court stated that an injury need not be acute to be compensable under the Jones Act.
III. It was plain error to allow the Defendant’s Expert to testify about the meaning and application of federal statutes at issue in this case.
This Court should vacate the jury’s finding of comparative negligence and award the Plaintiff his full damages because Maersk’s expert should not have been allowed to testify to the Jury about the meaning and application of the federal laws at issue. Allowing this testimony led to a large finding of comparative negligence that created a substantial injustice for the Plaintiff. An error is plain where it was, “(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
Herein, Maersk’s expert was permitted to testify about the meaning and application of the federal work rest hour laws at issue. As explained in Skye’s Motion to Alter or Amend the Judgment [D.E. 172], Captain Douglas Torberg was not qualified to render an opinion concerning compliance with the STCW and further rendered a ridiculous opinion that defies well-established canons of statutory interpretation. This alone makes the error of allowing Captain Torberg’s testimony plain, but this error is even more clear because Captain Torberg should not have been testifying about the meaning and application of the law. It is the province of the Trial Court Judge to instruct the Jury on the meaning and application of laws. In dealing with the meaning and application of contractual terms the Former Fifth Circuit held:
If the terms of the contract are unambiguous, however, then the interpretation of the terms is solely for the judge. Merely because the parties disagree upon the meanings of contract terms will not transform the issue of law into an issue of fact.
See Gen. Wholesale Beer Co. v. Theodore Hamm Co., 567 F.2d 311, 313 (5th Cir. 1978) (internal citations omitted).
The above quote reflects precisely what happened here. The parties disagreed as to the meaning of the “exceptions” in the federal work rest hour laws including some terms therein, such as the meaning of the word “may”. The meaning of the exceptions and their operation were issues of law properly left for the Court to instruct the Jury on. Instead, Captain Torberg was permitted to testify as to what Congress intended by including the word “may” versus “shall” in one of the federal statutes. Further, Captain Torberg was permitted to testify to the jury as to how the work rest hour laws operated. Captain Torberg is neither a congressman, an expert in maritime law, or a member of the International Maritime Organization which promulgated the STCW. Accordingly, he should not have been permitted to testify as to the meaning and application of these laws. Rather, the Court should have instructed the Jury as to the exceptions contained in the work rest hour laws. It was then the Jury’s job to apply the facts of this case to the law as presented to them by the Court instead of the Defendant’s liability expert.
The consequence of this error was the Jury’s high finding of comparative negligence. This finding affected Skye’s substantial rights by depriving him of 75% of his damages resulting from his injury. It is also an affront to justice as Maersk got away with only a slap of the wrist for its wrongful conduct and violation of the law.
Skye’s requested Jury instructions comported with the purpose and spirit of the Jones Act. These instructions were correct statements of the law and were critical to the jury’s understanding of this case. The failure to give the Plaintiff’s requested instructions led to a high finding of comparative negligence creating a substantial injustice to the plaintiff.
Similarly, Maersk’s expert was allowed to testify about the meaning and application of federal laws at issue in this case. Further, that expert testified to a patently erroneous understanding of those laws and the exceptions therein. This testimony led to the jury’s high finding of comparative negligence that once again created a substantial injustice for the Plaintiff.
WHEREFORE, Plaintiff respectfully requests this honorable court alter or amend the final judgment to eliminate the jury’s finding of comparative negligence and award Skye his full damages.
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204
By: /s/ Eric Charles Morales
ERIC C. MORALES
FLORIDA BAR # 91875
 Interestingly, Maersk states in its footnote 4 that Mahnich, a seaman’s case, is no longer good law because it was overturned by an amendment to the Longshore and Harbor Worker’s Compensation Act. Yet later in its memorandum, Maersk argues that the case of Byrd v. Reederei, 638 F.2d 1300 (5th Cir. 1981), discussing comparative negligence under the Longshoremen and Harbor Worker’s Compensation Act, is not instructive for the purposes of Skye’s case because he was a seaman and not a longshoremen. Seemingly, the Defendant would like to have it both ways. When Maersk wants to make an argument, the Longshoremen and Harbor Worker’s Compensation act is instructive, when the Plaintiff wants to use the same logic, the same act is inapplicable.
 Maersk also attempts to argue for the third time that the primary duty doctrine should apply and that as a result the Plaintiff’s requested instructions are inapplicable. Firstly, the fact that Skye was an officer on the Sealand Pride does not mean that he did not take orders. Skye took orders from his captain and from Maersk’s shoreside management. Further, as the Plaintiff has already argued in Court and fully briefed in Response to Maersk’s Omnibus Motion for Post Trial Relief [D.E. 182], which plaintiff fully incorporates and relies on herein, the Primary Duty doctrine is dead.8