RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2001 FED App. 0101P (6th
File Name: 01a0101p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
|James W. Perkins,
Judith Lynn Perkins,
American Electric Power Fuel Supply, Inc.;
Indiana Michigan Power Company, Inc., River Transportation Division,
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 98-00064--Sandra S. Beckwith, District
Argued: November 29, 2000
Decided and Filed: April 6, 2001
Before: NELSON, SILER, and CLAY, Circuit Judges.
ARGUED: James B. Helmer, Jr., HELMER,
MARTINS & MORGAN, Cincinnati, Ohio, for Appellant. Todd M. Powers,
SCHROEDER, MAUNDRELL, BARBIERE & POWERS, Cincinnati, Ohio, for Appellee.
ON BRIEF: James B. Helmer, Jr., HELMER, MARTINS & MORGAN, Cincinnati,
Ohio, Meredith Lynn Lawrence, LAWRENCE & SCHLETKER, Warsaw, Kentucky,
for Appellant. Todd M. Powers, SCHROEDER, MAUNDRELL, BARBIERE & POWERS,
Cincinnati, Ohio, for Appellee.
CLAY, J., delivered
the opinion of the court, in which NELSON, J., joined. SILER, J. (p. 22),
delivered a separate concurring opinion.
CLAY, Circuit Judge.
Plaintiff, James Perkins, appeals from the district court's order entering
judgment in favor of Defendants, American Electric Power Fuel Supply, Inc.
("AEP") and Indiana Michigan Power Company, Inc., River Transportation
Division,(1) after a bench trial on Plaintiff's claims
for negligence under the Jones Act, 46 U.S.C. § 688, and unseaworthiness
under general maritime law. Plaintiff also appeals the district court's
order denying Plaintiff's pre-trial motion to continue the trial date,
extend discovery, and amend his complaint. For the reasons that follow,
we REVERSE in part and AFFIRM in part the district court's
order entering judgment against Plaintiff and REMAND; however, we
the district court's order denying Plaintiff's pretrial motion.
for Defendant AEP from 1980 until the date of his accident. Plaintiff worked
as a deckhand from 1980 to 1988 on commercial river vessels. In 1988, he
was promoted to second mate, the position he held until his injury which
is the subject of this litigation. Defendant AEP is a river transportation
company, transporting bulk commodities, primarily coal, on the Ohio River
and its tributaries. Defendants were the operators of the M/V C.J. Bryan
and barge AEP-508.
as second mate included seeing that wires, ratchets and rigging were properly
placed on the tow, in accordance with the captain's orders, and inspected
prior to use. Plaintiff was injured on December 28, 1997 when he fell from
barge AEP-508 to the deck of the M/V C.J. Bryan, a distance of about
eight or nine feet. When Plaintiff fell, he was attempting to "lay" a "rock
and roll" or "jockey" wire from an outside barge to the M/V C.J. Bryan.
Although Plaintiff had laid dozens of wires on inside barges before, he
had never performed this specific task. Plaintiff was attempting to lay
the wire by tightening it using a stationary rachet located on the port
stern of barge AEP-508, cranking the ratchet outboard with a cheater pipe
slipped over the ratchet handle for added leverage. Plaintiff had gotten
the wire substantially tight when the "dog"(2) of the
ratchet failed to catch properly, causing the tension on the cheater pipe
to give way. Then, Plaintiff was propelled forward, lost his balance and
fell over the edge of the barge onto the deck of the M/V C.J. Bryan.
The evidence at trial revealed that Plaintiff was straddling the ratchet
while attempting to lay the wire.
extensive injuries from the fall including permanent disabling injuries.
Plaintiff suffers from chronic pain and permanent physical limitations.
He has had five surgeries; his right knee is permanently fused; his right
leg stands a half inch off the ground; and his left ankle is fitted with
a steel plate and may require fusion or even amputation.
Plaintiff and his
wife, Judith Perkins, filed suit against Defendants for his injuries on
January 21, 1998. The complaint alleged that Defendants were liable for
negligence under the Jones Act and for the unseaworthiness of the M/V
C.J. Bryan and/or the AEP-508 barge under general admiralty law because
the ratchet Plaintiff used was defective and was the cause of his injuries,
and Defendants failed to take adequate safety precautions and provide training
Prior to trial, on
July 6, 1999, Plaintiff filed a motion to continue the trial, amend his
complaint, and extend discovery. The district court denied the motion on
August 17, 1999 and the matter went to trial on September 20, 1999.
After a three-day
bench trial, the district court found that Defendants were not negligent
and that the M/V C.J. Bryan and AEP-508 barge were seaworthy. Moreover,
although not necessary to its decision, the district court concluded, without
explanation, that Plaintiff was negligent in straddling the ratchet in
violation of AEP policy and that his negligence was likely the sole proximate
cause of his injuries. This appeal followed.
We review the district
court's legal conclusions de novo. See Schroyer v. Frankel,
197 F.3d 1170, 1173 (6th Cir. 1999). The factual findings of the district
court following a bench trial are reviewed for clear error. See id.
In our review of the district court's factual findings, this Court gives
due regard to the district court's opportunity to judge the credibility
of the witnesses. See Adams County Reg'l Water Dist. v. Vill. of Manchester,
Ohio, 226 F.3d 513, 517 (6th Cir. 2000). A finding of fact is clearly
erroneous "'when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.'" Id. (quoting United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
This action arises
under the Jones Act, 46 U.S.C. § 688, and general admiralty law. Plaintiff,
Defendants' employee and a seaman,(4) claims that Defendants
were negligent and Defendants' vessels, the M/V C.J. Bryan and AEP-508,
were unseaworthy because the equipment appurtenant thereto, namely the
ratchet, malfunctioned under proper and intended use and Defendants failed
to provide adequate safety measures and training for Plaintiff.
on appeal that the district court erred in its factual findings and application
of the law. Specifically, Plaintiff claims that the district court erred
in finding that the ratchet was not defective, that Plaintiff had received
adequate training, that Defendants were not negligent in failing to take
certain safety precautions to prevent Plaintiff's injury, and that the
M/V C.J. Bryan and AEP-508 barge were not unseaworthy. Plaintiff
also claims that the district court disregarded Plaintiff's status as a
ward of the court and erred in its application of the proof of negligence
required under the Jones Act and the standard of liability under the seaworthiness
doctrine. And although not necessary to the district court's decision,
Plaintiff also challenges the district court's finding that Plaintiff was
negligent in straddling the ratchet and that Plaintiff's negligence was
likely the sole cause of his injuries. We hold that the district court
erred in concluding that Plaintiff was not entitled to recover either on
the Jones Act claim or the unseaworthiness claim.
It is a well-settled
principle of law that seamen are "emphatically the wards of the admiralty."
Chrandis, Inc. v. Latsis, 515 U.S. 347, 354-55 (1995) (citation
and quotation omitted); accord Socony-Vacuum Oil Co. v. Smith, 305
U.S. 424, 431 (1939); Davis v. Am. Commercial Lines, Inc., 823 F.2d
1006, 1007 (6th Cir. 1987).
The paternal regard of the Courts
and Congress for seamen has, for the most part, grown out of the peculiar
conditions of their employment. These conditions, by their very nature
rigorous and subjecting the seaman to unusually severe discipline for extended
periods of time, are quite unlike the conditions which attend land labor,
and have resulted in extraordinary remedies being made available to those
who accept this calling.
Paul v. United States, 205 F.2d 38, 42
(3d Cir. 1953). "It is for this reason that remedial legislation [enacted]
for the benefit and protection of seamen has been liberally construed to
attain that end." Socony-Vaccum, 305 U.S. at 431; accord Isbrandtsen
Co. v. Johnson, 343 U.S. 779, 782 (1952).
One such remedial
measure is the Jones Act, 46 U.S.C. § 688, which provides in pertinent
Any seaman who shall suffer personal
injury in the course of his employment may, at his election, maintain an
action for damages at law, with the right of trial by jury, and in such
action all statutes of the United States modifying or extending the common-law
right or remedy in cases of personal injury to railway employees shall
apply; and in case of death of any seaman as a result of any such personal
injury the personal representative of such seaman may maintain an action
for damages at law with the right of trial by jury, and in such action
all statutes of the United States conferring or regulating the right of
action for death in the case of railway employees shall be applicable.
46 U.S.C. § 688. Under the Jones Act, seaman
are afforded rights parallel to those given to railway employees under
the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et.
seq. The FELA provides in pertinent part:
Every common carrier by railroad
. . . shall be liable in damages to any person suffering injury while he
is employed by such carrier . . . for such injury or death resulting in
whole or in part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or insufficiency,
due to its negligence, in its cars, engines, appliances, machinery, track,
roadbed, works, boats, wharves, or other equipment.
45 U.S.C. § 51. Therefore, in suits under
the Jones Act, the court must determine whether the evidence justifies
the conclusion that the employer was negligent and that the employer's
negligence played any part, however slight, in producing the injury to
the seaman. See Sweeney v. Am. Steamship Co., 491 F.2d 1085, 1089
(6th Cir. 1974).
Proof of negligence
(duty and breach) is essential to recovery under the Jones Act. See
Jacob v. City of New York, 315 U.S. 752, 755 (1942). Whether an employer
is negligent is determined under the "ordinary prudence" standard normally
applicable in negligence cases. See Gautreaux v. Scurlock Marine, Inc.,
107 F.3d 331, 335 (5th Cir. 1997). However, once the plaintiff proves negligence,
he need only show that his employer's negligence is the cause, in whole
or in part, of his injuries. See Daughenbaugh v. Bethlehem Steel Corp.,
891 F.2d 1199, 1204 (6th Cir. 1989). In essence, there is a reduced standard
for causation between the employer's negligence and the employee's injury.
See Gautreaux, 107 F.3d at 335. Moreover, because the comparative
negligence principle applies to negligence actions under the Jones Act,
any negligence on the part of the employee operates only to mitigate the
damages due to the employee unless his negligence is the sole cause of
his injuries. See Jacob, 315 U.S. at 755.
To recover, the plaintiff
must first establish "the breach of a duty to protect against foreseeable
risks of harm."
Hernandez v. Trawler Miss Vertie Mae, Inc., 187
F.3d 432, 437 (4th Cir. 1999). In the instant case, Plaintiff alleged that
Defendants were negligent in several respects: (1) in providing a defective
ratchet with which Plaintiff had to work; (2) in failing to provide Plaintiff
with adequate training; and (3) in failing to take certain safety precautions
to prevent Plaintiff's injury. We conclude that Plaintiff met his burden
of proof with respect to the safety precautions and that the district court
clearly erred in this respect. As to the other two claims of negligence,
the defective ratchet and the training, we are not similarly convinced
that Plaintiff met his burden of proof. We will address each in turn.
We conclude that
Plaintiff has failed to establish the breach of a duty with respect to
his first theory of negligence, that the ratchet was defective, inasmuch
as Plaintiff has failed to establish the employer's prior notice of the
defect or that the risk of harm from a defective ratchet was foreseeable.
It is a fundamental principle that, under the Jones Act, an employer "must
have notice and the opportunity to correct an unsafe condition before liability
will attach." Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir.
1993). "There must be some evidence from which the trier of fact can infer
that the owner either knew, or in the exercise of due care, should have
known of the unsafe condition." Id. The evidence on record fails
to show that Defendants knew or should have known of any possible defect
in the particular ratchet Plaintiff was using or that they had an opportunity
to correct such a defect. In fact, the evidence demonstrates that Plaintiff
himself inspected the ratchet prior to using it and did not detect any
defects. Moreover, Plaintiff's supervisor conducted another visual inspection
of the ratchet after Plaintiff's accident and did not detect any defects
in the ratchet; this constitutes evidence that Defendants did not have
notice of any defect in the ratchet. Absent evidence sufficient to show
that Defendants knew or should have known that the ratchet was defective,
Plaintiff has failed to establish that Defendants breached a duty to protect
Plaintiff from a foreseeable risk. See Ribitzki v. Canmar Reading &
Bates, Ltd., 115 F.3d 658, 663 (9th Cir. 1997).
Similarly, we conclude
that Plaintiff has failed to establish that Defendants were negligent in
ensuring that Plaintiff was adequately trained to lay the jockey wire.
With respect to the adequacy of Plaintiff's training, the district court
17.Plaintiff was an experienced seaman.
He received on-the-job training which is consistent with the custom and
practice in the river industry. In addition, during his seventeen year
with AEP, Plaintiff attended safety meetings on at least a monthly basis.
When Captain Harrington was aboard the vessel, Plaintiff attended safety
meetings on a weekly basis. Some of these meetings included instruction
and warnings regarding the safe use of ratchets, cheater pipes and other
18.Moreover, Plaintiff had significant
experience in laying and tightening jockey wires. Having laid 50-100 such
wires before the night of his injury, he was familiar with the risks and
dangers associated with that type of wire. Although Plaintiff testified
that this was the first time he had laid the wires to the outside barges,
as opposed to a center barge, the Court finds this configuration did not
change the way in which the wires were tightened or the way the ratchet
was positioned and cranked. Moreover, Plaintiff had laid thousands of other
wires, at least some of which had required him to tighten the ratchet toward
an empty cargo hopper or toward the edge of a barge exposing him to comparable
danger, which would have given him similar training and experience. The
Court finds Plaintiff had adequate training and experience to safely lay
the jockey wire on the night of his injury.
(J.A. at 37-38.) We are not convinced that these
findings are clearly erroneous.
Plaintiff does not
deny that he had previously laid thousands of wires safely. His testimony
reveals that he had no reason to believe that he could not perform the
procedure safely that night. Plaintiff, however, argues that he had never
laid a jockey wire to an outside barge before. Plaintiff argues that he
had experience in laying the wire to the center barge, not the outside
barge. There is a difference between the two, Plaintiff argues, such that
he needed additional training to perform the task.
however, testified that a review of exhibits admitted into evidence revealed
that Plaintiff had extensive training, some above and beyond industry standard.
Defendants' expert further testified that Plaintiff was trained in tightening
wires, ratchet replacement and proper rigging. Despite that Plaintiff had
not received specific instruction regarding laying jockey wire to an outside
barge, Defendants' expert testified that there was no appreciable difference
in the method for laying jockey wires to an outside barge and the thousands
of other wires Plaintiff laid to the center barge. Defendants' expert stated
that, from the evidence including Plaintiff's deposition and training information,
Plaintiff's training was adequate to allow him to lay a jockey wire to
an outside barge. Defendants' expert's testimony supports the district
court's conclusion. Giving due regard to the district court's opportunity
to judge the witness' credibility, as we must, we conclude that the district
court's findings as to the adequacy of Plaintiff's training were not clearly
We next turn to the
district court's finding of fact and conclusions of law as to Plaintiff's
allegation that Defendants were negligent in failing to provide adequate
safety precautions. Specifically, the district court found that
20. Although, the ratchet on barge
AEP-508 that Plaintiff was using at the time of the accident was older,
he determined pursuant to his responsibility as second mate that it was
not in need of replacement or repair. Likewise, upon inspection after the
accident, Captain Harrington determined the ratchet was not in need of
replacement or repair and left it in service for the remainder of the tow.
Tow ratchets were removed from barge AEP-508 on January 27, 1998, one of
which was determined to be in need of replacement. However, it was not
established which ratchet Plaintiff was using on the night of the accident.
Accordingly, the Court finds that barge AEP-508 was reasonably safe and
fit for its intended purpose on the night of December 28, 1997. No evidence
was offered to establish that barge AEP-508 departed in any way from industry
21.The C.J. Bryan had passed
inspection by the Coast Guard under the Responsible Carrier program without
suggestion that any modification was needed to the vessel in order for
it to be reasonably safe and fit for its intended purpose. The installation
of a "rigging" or "safety" deck between the towknees [sic] is not required
by regulation, nor is it customary or common in the industry on a vessel
like the C.J. Bryan. Likewise, the installation of a "safety chain"
or grab irons between the towknees [sic] is not required or customary in
the industry. Neither the absence of these safeguards, nor the lack of
rubber on the towknees [sic], rendered the C.J. Bryan unsafe or
unfit for service the night of December 28, 1997.
(J.A. at 39-40.) Here, Plaintiff takes issue
with district court's findings and argues that they are based on facts
not in evidence. We agree that the district court's findings are unsupported
by the evidence in the record.
that the district court's finding that M/V C.J. Bryan had passed
inspection by the Coast Guard and under the Responsible Carrier program
without suggestion that modification was needed to the vessel was not supported
by the record. Specifically, Plaintiff points to the fact that M/V C.J.
Bryan is an uninspected vessel, meaning that the Coast Guard does not
inspect the vessel for or regulate the construction of safety equipment
such as the handrails, safety chains or guardrails about which Plaintiff
complains. As an uninspected vessel, federal regulations only require that
the vessel have minimal safety requirements such as life preservers, emergency
radio beacons, fire extinguishers, etc.(5) See 46
C.F.R. Pts. 24-27.
Although the district
court correctly pointed out that there were no regulations or industry
practices requiring the presence of safety ropes or handrails, there was
no evidence that safety ropes or handrails were inconsistent with custom
and practice. The evidence at trial reveals that Defendants installed safety
chains and rails in several other areas of the vessel. Moreover, other
vessels in Defendants' fleet had safety appliances between the tow knees.
Defendants' expert testified at trial that the size of the vessel would
prohibit the installation of a safety deck, but conceded that nothing prevents
the installation of a safety chain on top of the tow knees. Defendants
argue that the inspections of the Responsible Carrier program did not result
in recommendations that either safety chains or safety decks be constructed
on the ship. However, the testimony does not point to the extent of those
inspections and whether the inspections were meant to consider whether
safety chains or safety decks were needed.
In addition, there
was testimony by Defendants' safety manager that, one month prior to Plaintiff's
accident, another worker on the M/V C.J. Bryan fell from the tow
knee and was injured. Furthermore, Defendants' expert testified that the
failure of the ratchet was common in the industry. Based on these facts,
we conclude that the district court erred in determining that Defendants
were not negligent in failing to provide adequate safety measures. These
facts show that Defendants knew of the risk that the ratchet could fail
and also knew that a seaman could fall from the tow knee and injure himself;
nevertheless, Defendants failed to adequately guard against these risks
for the safety of their seamen. Moreover, that Defendants had installed
safety ropes in other ships and other areas of the M/V C.J. Bryan
indicates that it would not have been excessively burdensome in light of
the risks to the seamen for Defendants to install safety ropes here. Given
that one month prior to Plaintiff's injury another seaman was injured by
a fall on the M/V C.J. Bryan, we conclude that Defendants were negligent
in failing to take adequate safety precautions in the face of the notice
of the danger to their seamen.
is sufficient evidence to show that Defendants' failure to provide the
safety ropes was the cause, in whole or part, of Plaintiff's injuries.
The testimony at trial was that if a safety rope had been in place, Plaintiff
would have had something to grab and his fall would have been prevented.
We therefore conclude that the district court erred in determining that
Plaintiff was not entitled to recover under this theory of negligence.
Under the seaworthiness
doctrine, there is an absolute duty to maintain a seaworthy ship, the breach
of which imposes liability without fault, i.e., strict liability. See
Brown v. Dravo Corp., 258 F.2d 704, 706 (3d Cir. 1958). A shipowner
has an obligation to "'furnish a vessel and appurtenances reasonably fit
for their intended use.'" Havens, 996 F.2d at 217. However, a vessel
need not be "free from all possibility of mishap, for the seaworthiness
of a ship is a relative concept, dependent in each instance upon circumstances."
Brown, 258 F.2d at 706. To prove an unseaworthiness claim, a plaintiff
must show that the unseaworthy condition of the vessel was the substantial
and direct or proximate cause of the plaintiff's injuries. See Havens,
996 F.2d at 218.
It is well-settled
law that even a temporary or unforeseeable failure of a piece of vessel
equipment under proper and expected use is sufficient to establish unseaworthiness
provided that the unseaworthy condition was the proximate cause of the
harm suffered by the plaintiff. See Ferrara v. A. & V. Fishing,
Inc., 99 F.3d 449, 453 (1st Cir. 1996); Havens, 996 F.2d at
217-18; Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st
Cir. 1980); Tex. Menhaden Co. v. Johnson, 332 F.2d 527, 528 (5th
Cir. 1964). Plaintiff testified that he used the ratchet and attempted
to lay the jockey wire in the same manner as always. In addition, Plaintiff's
supervisor testified that he saw nothing abnormal, incorrect, or unusual
about Plaintiff's performance during the period that he observed him. In
the instant case, there is sufficient evidence on the record to conclude
that Plaintiff was properly using the ratchet for its intended purpose
when it malfunctioned (Defendants' expert concluded and the district court
found that the ratchet malfunctioned).(6)
established that the malfunction of the ratchet was a proximate or a direct
and substantial cause of his injuries. Defendants' expert testified that
the malfunction of the ratchet was common. Given the manner in which a
wire is laid, we find that it was foreseeable that if a ratchet malfunctioned
during the laying of a wire, the force resulting from the ratchet could
propel a seaman forward and cause injury. It is clear from the evidence
that the malfunction of the ratchet was a substantial and direct cause
of Plaintiff's injuries. The district court therefore erred in determining
that, despite the testimony that the ratchet malfunctioned under normal
use, the M/V C.J. Bryan and AEP-508 were seaworthy. To the contrary,
the record indicates that Defendants failed in their absolute duty to maintain
a seaworthy vessel because the ratchet Plaintiff was using on the night
of his injury was not reasonably fit for its intended use. See Hubbard,
626 F.2d at 200; Tex. Menhaden Co, 332 F.2d at 528.
We further conclude
that Plaintiff can recover for unseaworthiness on the ground that the M/V
C.J. Bryan and AEP-508 did not have adequate safety equipment and therefore
were not fit for their intended uses. As discussed earlier, Defendants
knew of the dangers of the ratchet failing as well as the dangers of seamen
falling on the vessel, having had a seaman injured on the same vessel by
a fall just a month prior to Plaintiff's injuries. This evidence is sufficient
to show that the M/V C.J. Bryan and AEP-508 were unseaworthy and
that Defendants were therefore strictly liable for their failure to provide
a seaworthy vessel. Plaintiff also showed that the failure to provide adequate
safety equipment was at least one of the proximate causes of Plaintiff's
injuries inasmuch as it was foreseeable, given the previous fall, that
Plaintiff could be injured from a fall on the vessel in light of the failure
to provide safety rope or similar equipment.
We now consider Plaintiff's
contention that the district court erred in determining that he was negligent
in straddling the ratchet. We need not address the district court's dicta
that Plaintiff's negligence was the sole proximate cause of his injuries
inasmuch as we have previously concluded that Defendants' negligence contributed
to Plaintiff's injuries.
The district court
13.At the time of his injury, Plaintiff
was straddling the ratchet with one foot flush to the coaming and the other
beside the outside edge of the ratchet. AEP safety rule 1.13 instructs
employees not to "straddle wire or ratchets when tightening barge lines."
In this context, the Court finds there is no significant difference between
tightening barge "lines" and tightening barge "wires" as Plaintiff was
doing. Plaintiff's own expert testified that it would be "common sense"
in the industry not to straddle the ratchet. Rule 1.13 further provides
that "employees shall operate the ratchet lever from the inboard side."
This means from the side of the ratchet closest to the center of the vessel
upon which the employee is standing. When an employee is straddling the
ratchet, he is not to the inboard side of the ratchet and is likewise in
violation of this latter portion of the rule.
14.AEP policy also prohibits pushing
the cheater pipe past vertical when tightening a wire. Plaintiff learned
through on-the-job training and experience that doing so was dangerous
because it increases the likelihood of the dog slipping and the operated
being thrown off balance. Plaintiff denied pushing the pipe past vertical
the night of his injury even though he testified at his deposition that
he could not remember whether he had pushed the pipe past vertical.
(J.A. at 35-36.)
We believe that the
district court's findings in this respect are unsupported by the evidence
and clearly erroneous. Even though Plaintiff was straddling the ratchet,
there is not enough information in the testimony to conclude that this
position was negligent and that it contributed to Plaintiff's injuries.
Plaintiff's expert testified that Plaintiff's straddling position was a
more stable position than if he had not straddled the ratchet. Defendants'
expert testified that straddling the ratchet was improper, but on cross-examination
admitted that in his deposition he testified that straddling the ratchet,
i.e., placing Plaintiff's legs farther apart, provided a more stable platform.
In the face of this uncontradicted evidence from Plaintiff's expert and
Defendants' expert's more contradictory statements, we believe that the
district court clearly erred in finding that Plaintiff was negligent in
straddling the ratchet simply because it violated AEP policy. There appears
to be no support in the law for the proposition that the violation of company
policy alone constitutes negligence.
We decline to entertain
Defendants' argument that Plaintiff was negligent in pushing the ratchet
past vertical because the district court did not draw such a conclusion.
At most, there is only evidence that Plaintiff did not know whether he
pushed the ratchet past vertical; there is no evidence to show that he
actually pushed the ratchet past vertical. Furthermore, the evidence on
the record shows that even if Plaintiff had actually pushed the ratchet
past vertical, it would not constitute negligence. In Defendants' own exhibit,
purporting to show the correct way of laying the wire, the deck hand there
pushed the ratchet beyond vertical.
However, even if
the district court had properly concluded that Plaintiff was negligent,
we find that his negligence would not bar his recovery, but only reduce
his damages under the theory of comparative negligence under the Jones
Plaintiff next contends
that the district court abused its discretion in denying his motion to
amend his complaint, to extend discovery and to continue the trial date.
We find no such abuse of discretion.
We review the district
court's denial of Plaintiff's motion to amend his complaint for abuse of
discretion. See Gen. Elec. Co. v. Sargent & Lundy, 916 F.2d
1119, 1130 (6th Cir. 1990). Similarly, we review the district court's denial
of discovery for abuse of discretion. See United States v. Jones,
159 F.3d 969, 977 (6th Cir. 1998). Likewise, the denial of a motion for
continuance of trial is reviewed for abuse of discretion. See Scholl
v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir. 1964).
Plaintiff filed his
complaint on January 21, 1998. A calender order, entered April 23, 1998,
set the deadline for amending the complaint for May 20, 1998, and the deadline
for discovery for December 31, 1998. The parties later entered a stipulation
extending discovery to July 30, 1999. Plaintiff filed his motion to amend
his complaint, extend discovery, and continue the trial on July 6, 1999.
Plaintiff argued that he should be allowed to amend his complaint to reflect
information found through discovery. Specifically, Plaintiff stated that
he learned that the cheater pipe Plaintiff used had been manufactured by
Defendant AEP; he had learned the identity of the manufacturer of the ratchet,
whom he wanted to add as a party; and that depositions were still not complete
due in part to the debilitating health of Plaintiff.
The district court
issued an order denying Plaintiff's motion. The court's order stated it
had advised Plaintiff of the deficiencies in his complaint four months
prior to his motion and invited Plaintiff to amend his complaint at that
time, but Plaintiff declined to do so. The court noted that "Plaintiffs
have waited until the eleventh hour to move for an extension, a continuance
and a leave to amend their complaint. None of the matters raised in support
of their Motion should have come as a surprise to Plaintiffs." (J.A. at
30-31.) The Court also found that
They assert that Plaintiff James
W. Perkins' medical condition has changed and will continue to change,
that the discovery is not yet complete, and that an amendment of the complaint
would permit them to add specific allegations related to matters learned
in recent discovery. To the extent that these matters learned in recent
discovery are germane to Plaintiffs' existing claims, Plaintiffs need not
amend their complaint add those matters. To the extent that Plaintiffs
wish to assert new claims, they have not identified those claims or provided
a justification for their failure to seek leave to do so at an earlier
time. With the exception of matter related to Plaintiff James W. Perkins'
medical condition, Plaintiffs have not identified matters concerning which
additional discovery should be permitted. With regard to matters related
to Mr. Perkins' medical condition, Plaintiffs will be required, as is often
the case in actions involving bodily injuries, to present evidence related
to the injuries, Mr. Perkins' current condition, and his prognosis. Plaintiffs
have not demonstrated they will be unable to do so if the Court does not
grant the requested extension and continuance. For all of those reasons,
Plaintiffs' Motion is denied.
(J.A. at 30-31.)
Rule 15(a) of the
Federal Rules of Civil Procedure provides that leave to amend should be
freely granted when justice so requires. See Fed. R. Civ. P. 15(a).
In deciding whether to allow an amendment, the court should consider the
delay in filing, the lack of notice to the opposing party, bad faith by
the moving party, repeated failure to cure deficiencies by previous amendments,
undue prejudice to the opposing party, and futility of amendment. See
Gen. Elec. Co., 916 F.2d at 1129. Here, there is evidence of delay,
but Defendants have not alleged that they have been prejudiced by any proposed
amendment. Nevertheless, we note that the court only four months earlier
gave Plaintiff an opportunity to cure deficiencies in his complaint and
Plaintiff declined to do so. Having found that Plaintiff had not shown
justification for an amendment to add new claims or new parties to his
complaint, the district court did not abuse its discretion in denying the
motion to amend.
In addition, the
district court did not abuse its discretion in denying Plaintiff's motion
to continue the trial and extend discovery. As to discovery, the court
noted that Plaintiff had not shown what information or discovery was needed
and how it would be relevant or beneficial to Plaintiff's case. Moreover,
the discovery period in this case had already lasted over a year. And Plaintiff
waited until less than three months prior to the start of trial to file
his motion. Under these circumstances, the district court did not abuse
its discretion in denying further discovery. See e.g., Lewis v. ACB
Bus. Serv., Inc., 135 F.3d 389, 402-03 (6th Cir. 1998). As to Plaintiff's
motion to continue the trial, Plaintiff has failed to show that he was
actually prejudiced by district court's denial of his motion, that additional
time would have produced additional witnesses or evidence for Plaintiff's
case; absent such a showing, Plaintiff cannot claim that the district court
abused its discretion. See United States v. Martin, 740 F.2d 1352,
1360-61 (6th Cir. 1984).
We therefore conclude
that the district court did not err in denying Plaintiff recovery under
the Jones Act based on claims that Plaintiff was inadequately trained or
that the ratchet he worked with was defective; nor can Plaintiff recover
under the unseaworthiness doctrine based on his inadequate training theory.
However, we conclude that the district court erred in denying Plaintiff
recovery under the Jones Act since Plaintiff proved that Defendants were
negligent in failing to provide adequate safety precautions to prevent
Plaintiff's injuries and that Defendants' negligence was a cause of Plaintiff's
injuries. Likewise, the district court erred in denying Plaintiff recovery
under the unseaworthiness doctrine inasmuch as the record indicates that
Plaintiff proved that Defendants failed to provide vessel equipment, in
this case a ratchet, reasonably fit for its intended purpose and take adequate
safety precautions for Plaintiff's safety. The failure of the ratchet and
the inadequate safety precautions were a proximate or direct and substantial
cause of Plaintiff's injuries, thereby making Defendants strictly liable
under the unseaworthiness doctrine for Plaintiff's injuries.
We further conclude
that Plaintiff failed to establish that the district court abused its discretion
in denying his motion to amend his complaint, to extend discovery, and
continue the trial date.
Accordingly, we REVERSE
in part and AFFIRM in part the district court's judgment entered
against Plaintiff and
REMAND for a hearing on the issue of damages
to the extent necessary; we also AFFIRM the district court's order
denying Plaintiff's motion to amend his complaint, extend discovery, and
continue the trial.
SILER, Circuit Judge,
concurring. I concur in most of the conclusions reached by the majority
in this case. However, I disagree with the conclusion that the district
court clearly erred in denying recovery under the Jones Act. Although the
majority makes out a good case for concluding that defendant was negligent
in failing to provide adequate safety precautions, this is a finding of
fact. There was a basis for the district court to find that the ship owner
was not negligent by failing to have safety ropes or handrails. "Where
there are two permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous." Anderson v. City of Bessemer
City, 470 U.S. 564, 574 (1985). Similarly, I would not find that the
vessel and the barge were unseaworthy because there was not adequate safety
equipment as the failure to have certain safety equipment was also a finding
of fact, which I think was not clearly erroneous.
Nevertheless, I agree
with the majority in its conclusion that the vessel and barge were unseaworthy
because the ratchet was not reasonably fit for its intended use. Truly,
like negligence, seaworthiness is usually a finding of fact. See Mahnich
v. Southern S. S. Co., 321 U.S. 96, 98 (1944). However, the malfunction
of the ratchet shows that it was not reasonably fit for its intended use,
so the vessel was not seaworthy. See Hubbard v. Faros Fisheries, Inc.,
626 F.2d 196, 199 (1st Cir. 1980). Therefore, the malfunction of the rachet
was a substantial and direct cause of the injuries to Perkins.
In conclusion, I
would also reverse and remand but only on a narrower basis than determined
by the majority.
1 Defendant AEP owns and operates Defendant Indiana Michigan
Power Company, Inc.
2 The "dog" is the brake-like component of the ratchet
designed to engage the teeth of one of the gears to prevent the gear from
turning. (J.A. at 1012, 1375.)
3 Plaintiff alleged an additional claim under the Americans
with Disabilities Act (ADA) and his wife alleged a claim for loss of consortium.
The district court granted summary judgment to Defendants on the loss of
consortium claim on August 20, 1998 and dismissed the ADA claim after Plaintiff
failed to answer a show cause order. These claims are not before the Court
in this appeal.
4 Neither party contests that Plaintiff is a seaman within
the meaning and coverage of the Jones Act.
5 Defendants argue that the Court should not consider
these regulations because Plaintiff did not introduce them into evidence
below. However, the court sees no difference between these regulations
and applicable case law which this Court may consider even though not relied
on by either party below. In addition, the record indicated to the district
court that the vessel was an uninspected vessel and the district court
had at its disposal the regulations indicating the safety requirements
of an uninspected vessel.
6 Unlike a claim under the Jones Act, where a finding
of negligence is necessary, the source of the malfunction is irrelevant
to an unseaworthiness claim. "[U]nseaworthiness is a condition,
and how that condition came into being--where by negligence or otherwise--is
quite irrelevant to the owner's liability for personal injuries resulting
from it." Ferrara, 99 F.3d at 453 (emphasis in original).