June 15, 2012
Skye v. Maersk Lines Limited
Motion to Alter or Amend the Judgment
Our experienced maritime trial attorneys work hard to ensure that our clients always get a fair and positive result. This includes ensuring that the judgment awarded to our client is fair in light of the evidence. In this motion, our attorneys fight to increase the judgment received by an injured seaman who worked aboard a Maersk shipping vessel. Despite winning a jury verdict at trial, the Plaintiff had his total award reduced by comparative fault. In this motion, the Plaintiff asks the Court to set aside the jury’s finding so the Plaintiff can receive 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
PLAINTIFF’S MOTION TO ALTER OR AMEND THE JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 59(e)
Plaintiff, WILLIAM C. SKYE, by and through his undersigned counsel and pursuant to Federal Rule of Civil Procedure 59(e) hereby moves this court for entry of an Order altering the Final Judgment in this matter and for good cause relies on the following memorandum of law.
JUDGMENT IN THIS MATTER WAS ENTERED IN FAVOR OF THE PLAINTIFF. HOWEVER, THE JURY FOUND THE PLAINTIFF SEVENTY-FIVE PERCENT AT FAULT FOR HIS OWN INJURY. THE JURY’S HIGH FINDING OF COMPARATIVE FAULT WAS DIRECTLY ATTRIBUTABLE TO THE ERROR OF NOT GIVING PLAINTIFF’S REQUESTED JURY INSTRUCTIONS REGARDING A SEAMAN’S DUTY OF SELF PROTECTION AND DUTY TO FOLLOW ORDERS. THESE INSTRUCTIONS ARE CORRECT STATEMENTS OF THE LAW AND WERE CRITICAL TO THE JURY’S UNDERSTANDING OF THE APPLICABLE LAW. PROVIDING THESE INSTRUCTIONS WOULD HAVE RESULTED IN A FINDING OF NO COMPARATIVE NEGLIGENCE. AS SUCH, THE JUDGMENT SHOULD BE ALTERED TO ELIMINATE THE JURY’S FINDING OF COMPARATIVE NEGLIGENCE. FURTHERMORE, COMPARATIVE NEGLIGENCE SHOULD HAVE BEEN BARRED BY 46 USC § 53 BASED ON THE UNCONTROVERTED EVIDENCE OF MAERSK’S STATUTORY VIOLATIONS. DEFENDANT’S OWN EXPERT FOUND STATUTORY VIOLATIONS, BUT TESTIFIED THE VIOLATIONS FELL UNDER EXCEPTIONS TO THE LAW. DEFENDANT’S ARGUMENT ALLOWSING THE EXCEPTION TO SWALLOW THE RULE IS AN ABSURD CONSTRUCTION OF THE STCW THAT MISLED THE JURY. ACCORDINGLY, THE COURT SHOULD ALTER THE JUDGMENT FINDING THAT THE DEFENDANT VIOLATED THE STCW, THUS BARRING THE APPLICATION OF COMPARATIVE NEGLIGENCE.
The Federal Rules of Civil Procedure allow a litigant, subject to an adverse judgment, to file a motion to alter or amend under Rule 59(e). Van Skiver v. United States, 952 F.2d 1241 (10th Cir. 1991), cert. denied, 506 U.S. 828, 121 L. Ed. 2d 51, 113 S. Ct. 89(1992). Herein, while Plaintiff Skye was the prevailing party at trial, the jury’s finding of 75% comparative negligence was unfair and improper. As such, Skye requests this Honorable Court, based on Fed. R. Civ. P. 59(e), to alter or amend the judgment by striking the jury’s finding of comparative negligence.
To be clear, Skye is not asking for a new trial, but instead only for the Court to alter/amend the judgment to prevent manifest injustice. The Jury found that the total damages suffered by the Plaintiff were $2,362,299.00. However, due to the large apportionment of fault to the Plaintiff, the final judgment in favor of the Plaintiff was only $590,574.75. The Plaintiff was deprived of $1,771,724.25 of his damage award due to a finding of comparative fault that was made based on an incorrect understanding of the law. This is a manifest injustice and the Court should alter the final judgment and award the Jury’s full compensatory damages to William Skye.
The decision of whether to grant or deny a Rule 59(e) motion is discretionary. Matter of Prince, 85 F.3d 314 (7th Cir. 1996); Mobil Oil Corp. v. Amoco Chemicals Corp., 915 F. Supp. 1333 (D.Del. 1994). Courts generally recognize three (3) grounds justifying reconsideration of an order: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994); see also Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986). Herein, the Fed. R. Civ. P. 59(e) motion is based on the need to correct manifest injustice; which is, simply put, William Skye being deprived of 75% of the jury’s awarded compensatory damages based on an unfair and improper finding of comparative negligence.
I. The Jury Instructions misled the jury
Trial in this matter began on May 7, 2012. Pursuant to this Court’s instruction, multiple versions of the parties joint proposed jury instructions were filed leading up to and through the trial. The parties agreed on most of these instructions, but due to the nature of the claim being made the Plaintiff requested three instructions be read to the jury which the Defendant objected to. [D.E. 135; copy attached as Exhibit 1]. The failure to give these instructions resulted in the large finding of comparative negligence and manifest injustice to the Plaintiff. The Court should correct that injustice by altering the judgment in this matter to eliminate the application of the jury’s finding of comparative negligence.
a. Requested Instruction # 15 – Seaman’s Duty of Self Protection
A seaman’s duty to protect himself is slight. His duty is to do the work assigned, not to find the safest method of work.
The above jury instruction was requested by the Plaintiff to aid the jury in their understanding of the law regarding the rights and duties of seaman such as the Plaintiff. The instruction is a direct holding from the Former Fifth Circuit case of Spinks v. Chevron Oil Co., 507 F.2d 216 223 (5th Cir. 1975); which remains unconflicted in the Eleventh Circuit.
The Defendant objected to the giving of this instruction, claiming that Spinks was overruled by the case of Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997). The Court agreed with Maersk and held that Spinks was no longer good law and thus that the jury instruction not be given. The Plaintiff objected, arguing that although the Gatreaux case overruled Spinks in the modern day Fifth Circuit, the requested instruction was still the correct statement of the law in the Eleventh Circuit.
Opinions handed down by the Former Fifth Circuit prior to September 30, 1981 are binding precedent as they existed on that date on all Courts in the Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981). Subsequent to that date, that law remains binding until the Eleventh Circuit has overruled the decision en banc, or until the Supreme Court overrules the decisions. The Eleventh Circuit has held, “[t]he law of this circuit is ‘emphatic’ that only the Supreme Court or this court sitting en banc can judicially overrule a prior panel decision.” See Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997) (emphasis added). Accordingly, the modern Fifth Circuit overruling its prior precedent has no controlling effect on that precedent in the Eleventh Circuit. The two bodies of law although having the same origin are distinct and governed by the two separate circuits.
The above outlined approach is followed by the modern Fifth Circuit when the Eleventh Circuit expressly overrules Former Fifth Circuit precedent. In Jimenez v. Wood County, Tex., 660 F.3d 841, 851 (5th Cir. 2011), the modern Fifth analyzed Former Fifth Circuit precedent to determine whether or not it was still good law after being overruled by a more recent Eleventh Circuit case. In his dissent, Justice Smith commented on an exchange between the trial Court judge and counsel stating, “…the court obviously could not rely on Eleventh Circuit case law to overrule [former] Fifth Circuit precedent.” Id.
The same should be true herein, simply because the modern Fifth has decided to overrule its own precedent, that does not affect the separate and unique body of case law which has been adopted as binding authority in the Eleventh Circuit, that is decisions from the Former Fifth Circuit as they existed on September 30, 1981. As the Eleventh Circuit has emphatically held, absent an en banc decision from the Eleventh or a decision of the Supreme Court, that case law is still binding authority. To date no Eleventh Circuit or Supreme Court decision has overruled Spinks v. Chevron Oil Co., 507 F.2d 216 223 (5th Cir. 1975).
Failure to give a jury instruction is an error if the result “was an incorrect statement of the law and it was probably responsible for an incorrect verdict, leading to substantial injustice.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (11th Cir. 1999). Here, the failure to give Plaintiff’s requested Jury instruction concerning a Seaman’s duty of self-protection certainly led to the large finding of comparative negligence against the Plaintiff. The law holds that William Skye had only a slight duty to protect himself, yet the jury found him seventy-five percent at fault for his injuries caused by his work.Such a finding is untenable under the law.
b. Requested Instruction # 15 – Seaman’s Duty to Follow Orders
Seaman and others who work on a vessel must accept, without critical examination, and without protest, working conditions and appliances as commanded by (their) superior officer, and they do not assume the risk of working under such conditions.
Skye also argued for and was denied the above jury instruction. Just as with Skye’s requested instruction regarding a Seaman’s Duty of Self Protection, the above instruction is a correct statement of the law with regard to a critical point of fact in this case. Again the above instruction was derived directly from binding precedent. The language of this instruction first appeared in the Supreme Court case of Mahnich v. S. S. S. Co., 321 U.S. 96 (1944). Mahnich has been cited more than four hundred and sixty times in decisions of various Courts all over the Country. This Court affirmatively cited Mahnich as recently as August 23, 2011. See State Nat. Ins. Co. v. Anzhela Explorer, L.L.C., 812 F. Supp. 2d 1326, 1363 (S.D. Fla. 2011).
Mahnich is still good law and this instruction bore directly on the facts of the Plaintiff’s case. The Defendant repeatedly argued that Skye was at fault for his own injury because he chose to work long hours in violation of the STCW despite the fact that he was exhausted. The Plaintiff testified that he never worked more hours than were required of him by his superiors, including Maersk’s shoreside management and the captain on the ship. Maersk argued that Bill Skye should have done more to complain about his working conditions and the manning of the Sealand Pride. In the end, the Jury believed Maersk and found that Bill Skye was partially at fault for the conditions that caused his injury.
This finding is in direct contravention of the above case law which explicitly holds that a seaman such as Bill Skye is not tasked with the burden of questioning the orders of his superiors and the conditions in which he works. In other words, the jury was not instructed that Skye had no duty to question his orders – a necessary component of any negligence that could have been attributed to Skye. The absence of this instruction certainly resulted in the Jury’s large apportionment of comparative fault to the Plaintiff and thus resulted in a manifest injustice. Accordingly, the Court should alter the Final Judgment in this case to eliminate the Jury’s finding of comparative negligence, thus awarding the entire amount of damages to the Plaintiff.
c. Requested Instruction # 16 – Duty to Follow Orders – Contributory Negligence
When a seaman is performing work as ordered or told by his Captain or superior, he cannot be found to be contributorily negligent.
The Plaintiff requested and was denied the above instruction regarding a seaman’s duty to follow the orders of his superiors. Even more directly than Plaintiff’s requested instruction regarding a duty to follow orders, this instruction speaks to the legal effect of following orders when a Plaintiff seaman is injured. This instruction comes from Jones Act cases in the First, Second and again the Former Fifth Circuit. Most commonly, Courts in the Second Circuit give this instruction in Jones Act cases based on the language of Darlington v. National Bulk Carriers Inc., 157 F.2d 817 (2d Cir.1946). In fact, the Second Circuit has found that it is reversible error to not give this instruction in a Jones Act case. See Earl v. Bouchard Transportation Co., Inc., 917 F.2d 1320, 1323-1324 (2nd Cir. 1990).
Binding precedent from the Former Fifth Circuit case of Byrd v. Reederei, 638 F.2d 1300 (5th Cir. 1981), also holds that an employee cannot be negligent for continuing to do his job as ordered to. Id. This is true even when the employee knows that job is dangerous. Id. The Court in Byrd cited the earlier Fifth Circuit case of, San Pedro Compania Armadoras, S. A. v. Yannacopoulos, 357 F.2d 737 (5th Cir. 1966) with the same holding.In San Pedro, a seaman was injured when he entered a tank on a vessel with a defective top. The seaman knew that top to be defective, but entered the tank after being ordered to do so. The jury in that case found the seaman 50% at fault, but on appeal the Former Fifth eliminated the comparative negligence. Id. In doing so, the court held that any finding of negligence against the Plaintiff when he was following orders was tantamount to finding that the Plaintiff assumed the risks of his job and thus barred by law. Id.
Giving Plaintiff’s requested instruction would clearly have negated any jury finding of comparative negligence. Just as with Plaintiff’s requested instruction regarding a Seaman’s Duty to Follow Orders, the above instruction directly addresses one of the main points driven home by the Defendant throughout its case: that Bill Skye should have told his superiors that there was a problem on the Sealand Pride or delegated his work. Maersk argued that Bill Skye was negligent for failing to do this. The denied instruction would have properly informed the jury that, as a matter law, Skye cannot be comparatively negligent for performing work which was assigned to him. It is important to note that the Defendant never argued or presented evidence to contradict the documentary evidence that Skye presented in trial exhibit 1. Trial exhibit 1, the GSMS Chief Mate Job Description, concretely proved that Bill Skye was assigned at least twenty-six duties in addition to his eight hours of navigational watchstanding.
Accordingly, the failure to give this instruction resulted in a large allocation of fault to the Plaintiff for simply following his orders. This greatly reduced the Jury’s award to the Plaintiff, creating a substantial injustice that this Court should now remedy by altering the Judgment to award Skye his full measure of damages.
Taken together, these three jury instructions paint a very clear picture of the law, which was not presented to the jury. The law is clear that a seamen’s duty of self-protection is slight; that he must follow orders without examination; and that he cannot be found comparatively negligent where performing his job duties as required. Were the jury properly instructed on these points of law, there would have been no finding of comparative negligence. Accordingly, this Honorable Court should alter/amend the judgment to strike the finding of comparative negligence and award Skye the full compensatory damages. This is the only way to prevent manifest injustice.
II. The Plaintiff introduced volumes of evidence to prove the numerous statutory violations committed by the Defendant. The Defendant’s own expert admitted the existence of statutory violations. Despite this, the jury found no statutory violations thus subjecting the Plaintiff to the effects of comparative negligence. This finding was not in accordance with the evidence in this case or the spirit of the STCW and the Court should alter the judgment to reflect the statutory violations, thus barring the application of comparative negligence.
From the outset of this case Skye alleged Maersk repeatedly violated two work rest hour statutes, 46 U.S.C. 8104(d) and 46 C.F.R. 15.111, commonly referred to as the STCW. As a result of those violations, Skye further argued that Maersk was negligent per se and that according to 46 U.S.C. § 53, the Plaintiff could not be found comparatively at fault for his own injury.
In the course of this trial, the Plaintiff introduced into evidence STCW violation spreadsheets, trial exhibit 19, displaying literally hundreds of violations of the STCW. Additionally, the Plaintiff introduced the STCW log book, trial exhibit 18, signed by the captain of the ship, which the Plaintiff testified was a true and correct copy of the STCW log from the Sealand Pride. Maersk introduced no evidence to call the credibility of these documents into doubt.
Both of these documents amount to hundreds of pages of concrete evidence of the excessive hours the Plaintiff was forced to work on the Sealand Pride in direct violation of the STCW. Additionally, the Plaintiff testified that his work schedule violated the STCW. Skye, having received training and licensing from the U.S. Coast Guard with regard to STCW work hour restrictions and having worked under those restrictions for many years, had the capacity to testify regarding STCW violations. Accordingly, the Plaintiff produced physical and testimonial evidence of STCW statutory violations, and thus he should not have been subject to any finding of comparative negligence according to 46 U.S.C. § 53.
In response to the copious evidence introduced by the Plaintiff, the Defendant relied on the testimony of its expert, Captain Douglas Torberg. Despite never having worked as a crewmember or captain on a single ship since the introduction of the STCW work hour restrictions, Captain Torberg testified that the numerous violations of the STCW demonstrated by the Defendant could be explained away with exceptions to the statutes. Among these supposed exceptions about which Cap. Torberg testified was a word in the final sentence of 46 U.S.C. § 8104(d) which states, “[a] licensed individual or seaman in the deck or engine department may not be required to work more than 8 hours in one day” (emphasis added). Captain Torberg focused on the use of the word, “may” and testified that since congress used the word “may” instead of “shall”, the Plaintiff was allowed by law to work more than eight hours in one day.
Captain Torberg’s testimony with regard to the use of the word “may” instead of “shall” is patently absurd. Under Captain Torberg’s construction, the entire last sentence implementing a work hour restriction is a nullity. The sentence would serve no legislative purpose and would nullify the purpose of the statute. Reading the statute this way would mean that Congress could just have likely included a sentence that read, “a licensed individual or seaman in the deck or engine department may have three meals a day or he may not, there is no rule with regards to meals.”
The rules of statutory interpretation are clear. The Court must start with the language of the statute itself. See Consumer Prod. Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108 (1980). The words in the statute are to be given their normal meaning. Gonzalez v. McNary, 980 F.2d 1418, 1420 (11th Cir.1993). The Court only looks beyond the plain meaning of the words when the language of the statute is unclear or ambiguous, when Congress clearly has expressed an intent contrary to that suggested by the plain language, or when absurd results would ensue from adopting the plain language interpretation. See Alacare Home Health Servs., Inc. v. Sullivan, 891 F.2d 850, 856 (11th Cir.1990).
Herein, the plain meaning of “may not be required” is that a person shall not be required to do something. If the Court seeks to look beyond the clear meaning of “may not be required” it can be inferred from the statute that Congress’ intent was to implement some kind of restriction on work hours of seafarers, not to create an open ended statement with no effect. The interpretation testified to by the Defendant brings about an absurd result that makes the entire sentence meaningless. One of the basic cannons of statutory interpretation is that a statute should not be read so that it is meaningless. See United States v. DBB, Inc., 180 F.3d 1277, 1285 (11th Cir. 1999). Another basic cannon of statutory construction that Captain Torberg’s testimony defies, is that questions of statutory interpretation or application are pure questions of law. See Wright v. Hanna Steel Corp., 270 F.3d 1336, 1342 (11th Cir. 2001).
Captain Torberg next testified that the 8 hour work restriction of 46 U.S.C. 8104(d) and restrictions imposed by 46 C.F.R. 15.111 were subject to numerous other exceptions as delineated in 46 U.S.C. 8104(f). One such exception testified about concerned, “performing work necessary for the safety of the vessel, or the vessel’s passengers, crew or cargo”. 46 U.S.C. 8104(f)(2). According to Captain Torberg, every violation of the STCW highlighted by the Defendant could be explained away by this exception.
As this Court so simply put it when interpreting different statutory exceptions in Sakal v. United States, 2010 WL 3782138 (S.D. Fla. 2010), “the exception does not swallow the rule”; meaning an exception may not be construed to be so broad and sweeping as to effectively nullify the purpose and application of the law. The understanding of the statute that Captain Torberg testified about to the Jury was misleading and prima facie invalid as it basically does away with any work hour restriction at all, again thus making the entire statute a nullity and contradicting both the plain meaning of the language and the intent of congress. Further, this Captain Torberg should not have even been testifying about the meaning and application of the STCW.
In summation, the Defendant offered no credible or valid evidence to contradict the evidence introduced by the Plaintiff that clearly established numerous statutory violations on the part of Maersk. As such, the jury should not have even considered the issue of comparative negligence.
Although victorious in his suit, the Plaintiff was deprived of full and proper compensation through the application of the jury’s finding of seventy-five percent comparative negligence. Had the Jury been given full and proper instruction on the relevant law in this case, it would not have found Bill Skye comparatively at fault for his own injury. Consequently, the Jury’s finding of comparative negligence in this case results in manifest injustice. The Jury’s high allocation of comparative fault is an injustice that leaves the Plaintiff only partially compensated for his permanent injuries and thus the court should correct this injustice by altering the Jury’s final judgment and reducing or eliminating the Plaintiff’s comparative fault.
Additionally, any finding of comparative negligence should not have reduced the Plaintiff’s recovery. 46 U.S.C. § 53 is clear that when a Defendant has violated a safety statute, the Plaintiff’s recovery should not be reduced by his comparative fault. Herein, the Plaintiff introduced abundant evidence of statutory violations that should have barred any reduction of damages due to comparative negligence. The Defendant offered no evidence in rebuttal other than the testimony of a witness paid more than $60,000.00, who never worked as a crewmember subject to the regulations about which he testified. Further that witness testified as to Congress’ intent, twisting the statutes far beyond the plain meaning of their language and giving the statutes an absurd construction that nullified their existence. This evidence was misleading to the jury and resulted in an manifestly unjust verdict of comparative negligence on the part of the Plaintiff which should be remedied by this Court rejecting the finding of comparative negligence and awarding William Skye his total losses as calculated by the jury.
WHEREFORE, the Plaintiff requests this Honorable Court enter an order altering the Final Judgment of this case and finding that the Plaintiff was not comparatively at fault. Plaintiff additionally requests this Honorable Court enter an Order altering the Final Judgment and finding that the Defendant violated 46 U.S.C. 8104(d) and 46 C.F.R. 15.111 and thus that the Plaintiff’s damages cannot be reduced by any allocation of comparative fault.
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
By: /s/ Eric Charles Morales
ERIC C. MORALES
FLORIDA BAR # 91875
 Due to a clerical error, two separate Jury Instructions were labeled “Requested Instruction #15”.