Jody King v. Huntress, Inc.

Supreme Court

No. 2011-341-Appeal.
No. 2012-202-Appeal.
No. 2012-203-Appeal.
(WC 08-415)

Jody King :

v. :

Huntress, Inc. :

NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
 Supreme Court

No. 2011-341-Appeal.
No. 2012-202-Appeal.
No. 2012-203-Appeal.
(WC 08-415)

Jody King :

v. :

Huntress, Inc. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Justice Robinson, for the Court. This case is a federal maritime action1 in which Jody

King, the plaintiff, raised claims for maintenance and cure; negligence under the federal Jones

Act, as codified in 46 U.S.C. § 30104; and “breach of the warranty of seaworthiness.”2 On June

1
Although the law of the sea is essentially federal in nature, the Rhode Island state courts
have jurisdiction over this federal maritime action pursuant to the “saving to suitors” clause set
forth in 28 U.S.C. § 1333(1). Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222 (1986)
(“The saving to suitors clause leaves state courts competent to adjudicate maritime causes of
action * * * .”) (internal quotation marks omitted); see Benders v. Board of Governors for Higher
Education, 636 A.2d 1313, 1316 (R.I. 1994). However, the rare involvement of our courts in
such matters is cause for understandable uncertainty in its application by both trial justices and
attorneys.
2
Many of the filings by the parties referenced in this Court’s discussion have headings
which use all capital letters, are underlined, or employ bold-face type. We have conformed those
headings to our usual style throughout this opinion.

-1-
1, 2011, after a trial in Washington County Superior Court in which plaintiff prevailed on his

claim for maintenance and cure, but not on his claims for negligence and breach of the warranty

of seaworthiness, the trial justice denied the motion for a new trial filed by the defendant,

Huntress, Inc., with respect to the claim for maintenance and cure and granted the motion for a

new trial filed by the plaintiff with respect to the claims for negligence and breach of the

warranty of seaworthiness. The defendant appeals that decision,3 contending that the trial justice

erred in: (1) denying the defendant’s motion for a new trial on the claim of maintenance and cure

because the trial justice, sua sponte, gave what the defendant considers to be an improper

instruction to the jury with respect to “unearned wages;” (2) granting the plaintiff a new trial on

the issues of negligence under the Jones Act and breach of the warranty of seaworthiness

because, in the defendant’s view, the trial justice “overlooked” and “misconstrued” testimony,

resulting in a decision which was “clearly wrong;” and (3) applying Rhode Island’s prejudgment

interest statute, as codified in G.L. 1956 § 9-21-10, as opposed to the principles of general

federal maritime law pertaining to prejudgment interest.

For the reasons set forth in this opinion, we vacate the trial justice’s denial of defendant’s

motion for a new trial with respect to the claim for maintenance and cure. We likewise vacate

the trial justice’s grant of plaintiff’s motion for a new trial on the claims of negligence under the

Jones Act and breach of the warranty of seaworthiness. Additionally, we conclude that the trial

justice’s reliance upon Rhode Island’s prejudgment interest statute was in error.

3
We note that plaintiff also filed a cross-appeal in this case. However, in his brief to this
Court, plaintiff chose not to address any issues raised in his cross-appeal; consequently, we
likewise shall not address them. See Wilkinson v. State Crime Laboratory Commission, 788
A.2d 1129, 1131 n. 1 (R.I. 2002) (stating that, when a party fails to properly brief an issue for
this Court’s review, it “constitutes a waiver of that issue”); see also Carrozza v. Voccola, 90
A.3d 142, 149 n. 10 (R.I. 2014).

-2-
 I

Facts and Travel

On May 29, 2008, plaintiff filed a complaint in Washington County Superior Court,

against defendant; the allegations in the complaint related to the injuries sustained by plaintiff in

an accident which took place on May 31, 2006 on board a commercial fishing vessel owned by

the defendant corporation. The complaint contained a claim for maintenance and cure4 (Count

One); a claim for negligence under the federal Jones Act (Count Two); and a claim for breach of

the “warranty of seaworthiness” (Count Three). In due course a trial was held over seven days in

November of 2010.5 We summarize below the salient aspects of what transpired at that trial.

A

The Testimony at Trial

1

The Plaintiff’s Witnesses

i. The Testimony of Plaintiff 6

The plaintiff testified at trial that he worked as a “[d]eckhand” on a commercial fishing

vessel named Persistence; he added that he received payment for his first “fishing trip” on the

Persistence on March 12, 2005 and on several subsequent trips until his last trip on April 3, 2006.

4
“[M]aintenance and cure” are defined as “[c]ompensation provided to a sailor who
becomes sick or injured while a member of a vessel’s crew.” Black’s Law Dictionary 1039 (9th
ed. 2009).
5
During pretrial proceedings, defense counsel argued that the issue of prejudgment interest
in a federal maritime case falls within the discretion of the jury. The trial justice suggested that
defendant submit a proposed jury instruction to that effect. However, upon a review of the
record, there is nothing to indicate that defendant ever submitted such a proposed instruction.
6
We are aware that plaintiff was not the first witness to testify; but, in the interest of
clarity, we believe it helpful to recount the relevant aspects of his testimony at the outset.

-3-
It was his testimony that during that time period he went on multiple fishing trips and earned

approximately $54,000. When asked how he “would * * * know who was going on * * * the

next trip,” it was Mr. King’s testimony that he would do “boat duty to follow the trip that [he]

just finished and Kyle [Goodwin][7] would make the list out and determine who was going on

that trip and who was going to stay on shore.”

According to Mr. King’s testimony, on May 31, 2006, he arrived at the Persistence for

“boat duty” (because the vessel was in between fishing trips), and he was assigned painting duty.

He stated that he was assigned to paint the “coaming,”8 which was located “in between the

second and third floor hatch;” Mr. King further explained that the coaming was on the ceiling of

the “fish hold deck” and on the floor of the room above (the “packing room”). It was his

testimony that he placed a “stepladder” on the “cement floor of the fish hold;” he added that he

“didn’t believe [the stepladder] was on a slant.” He indicated in this testimony that, as he

reached the second rung of the stepladder, it “seemed to come out from underneath [him] and

[he] fell” to his left. When asked if he knew why the stepladder came out from underneath him,

he responded: “No. I do not.” It was also his testimony that, after he fell, but on the same day as

the fall, he noticed that the stepladder had “two deep gouges or cuts” on the “bottom rung.”

Mr. King testified that after the fall he experienced pain in his left arm from his “wrist all

the way to [his] shoulder,” but he said that he “attempted to continue to finish [his work that]

day.” He added that he had never seen a stepladder “lashed” or “blocked” on the Persistence and

that he had never observed a “spotter” being employed. According to his testimony, he was
7
The plaintiff testified that he considered Kyle Goodwin to be his “employer” when he
went aboard the Persistence. Kyle Goodwin is not to be confused with Glenn Goodwin, whose
testimony we discuss infra.
8
“Coaming” is defined as “[a] raised rim or border around an opening, as on a ship’s deck,
designed to keep out water.” The American Heritage Dictionary of the English Language 353
(5th ed. 2011).

-4-
ultimately diagnosed with a “large rotator cuff tear” in his left shoulder. He further testified that

he underwent two surgeries on his left shoulder to repair the rotator cuff. When asked at trial

about his expenses, his testimony indicated that the cost of his mortgage and utilities was

approximately $37 per day, while his expenses for food were approximately $15 per day. He

acknowledged that defendant had made payments to him for “maintenance” and had also paid

him what he characterized as an “advance,” but he added that those payments stopped in

February of 2008. The plaintiff contends that the maintenance payments should not have been

halted because, as Dr. Gary Perlmutter testified at his deposition, plaintiff did not reach his

“maximum medical end result” until March 9, 2010.9 Albert Sabello, a “vocational rehabilitation

counselor,” testified at trial that, due to the injury to plaintiff’s left arm, he would not be able to

return to work as an offshore fisherman; he stated that the duties of a fisherman were “beyond

[plaintiff’s] physical ability for lifting, using manual motor coordination, [and] dexterity.”

On cross-examination, plaintiff testified that, after he positioned the stepladder on the day

of the accident, it was “as level as it could possibly be,” but he acknowledged that the floor of

the fish hold was “pretty rutted” and had a “tiny * * * bow.” He further testified that, if one of

the other individuals working on the Persistence that day saw something wrong with the

placement of his stepladder, that person “should have said something” to him.

ii. The Testimony of Christopher Weisensee

Christopher Weisensee testified that he was a “[d]eckhand” working on the Persistence

on the day that plaintiff fell. He further stated that the vessel was tied up at the dock on that day;

9
According to plaintiff’s testimony, Dr. Gary Perlmutter was his treating physician when
he underwent a second surgery to repair the tear in his rotator cuff. As plaintiff states in his
brief, Dr. Perlmutter’s videotaped deposition was played for the jury at trial. The transcript of
Dr. Perlmutter’s deposition reflects that, by March 9, 2010, he considered plaintiff to have
reached his “maximum medical end result” and concluded that “no further treatment was
warranted.”

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and, when he was then asked if the vessel moved back and forth when tied to the dock, he

responded: “Not noticeably usually.” It was Mr. Weisensee’s testimony that the captain made

the decision as to who would go on each fishing trip; he stated that the captain “picks who he

feels deserves to go.” It was his further testimony that the composition of the crew was not the

same from trip to trip.

Mr. Weisensee testified that he was working with plaintiff in the fish hold on the day of

plaintiff’s fall. He stated that he was about twenty feet away from plaintiff and that he saw him

place the stepladder on a “slant” because the fish hold was not “completely straight in all areas.”

At trial, he claimed that he had not seen plaintiff climb the stepladder or fall from it; he

explained that, although he had said in his deposition that plaintiff was on the second step of the

stepladder when he fell, he had merely “assumed” that plaintiff was on the second step “based on

how much time it took at the time.” During cross-examination, he clarified the latter statement

by testifying that “two or three” seconds elapsed between the moment when he “glanced” over

and saw plaintiff setting up his stepladder and the eventual fall. According to Mr. Weisensee’s

testimony, plaintiff fell to his left.

Mr. Weisensee also stated that setting up the stepladder on a slant was “not smart.”

However, he explained that he did not say anything to plaintiff about the slanted stepladder—not

because he did not “care,” but rather because he did not know that plaintiff was going to “climb

up and hurt himself.” He then acknowledged that in his deposition he had stated:

“We’re in harm’s way all the time. Somebody’s doing something
stupid, they’re just being stupid. I don’t really care. It’s not my
problem. Go hurt yourself. I don’t care. It’s not my problem.”

-6-
 On cross-examination at trial, Mr. Weisensee testified that, when he saw plaintiff setting

up the stepladder on a slant, he thought that plaintiff would use his own judgment and not climb

a slanted stepladder.

iii. The Testimony of David Reposa

David Reposa testified that he was working on the Persistence as a “deckhand” on the

day in question; he added that the vessel was “[t]ied to the dock.” According to his testimony,

Mr. Reposa was above plaintiff on the “mid-deck,” about fifteen to twenty feet away from

plaintiff at the time of the fall. His testimony indicated that he could see Mr. King through an

open central hatch. He testified that he was painting, and he added that there was “sufficient

ventilation” so that there were not any “dangerous vapors.” He further stated that the paint was

not making his eyes “red and glossy.” However, plaintiff’s counsel confronted him with his

deposition testimony, in which he had stated that the paint vapors were “kind of” making his

eyes red and glossy. It was further his testimony that, when plaintiff fell, he was carrying “his

paint brush and his container in his hands * * * .” He testified that plaintiff climbed to the third

step and that the stepladder toppled to the right, while plaintiff fell to the left.

iv. The Testimony of Allan Feldman

Allan Feldman testified that he was an “emeritus professor” at Brown University, having

worked in the Economics Department since 1971. He testified at trial with respect to plaintiff’s

economic loss. In his testimony he explained that he projected lost income for plaintiff as a

fisherman at $54,500 per year for the four and a half years between plaintiff’s injury and the

trial. It was his further testimony that that resulted in his calculating the “total lost earnings over

the period starting in the year 2006, the date of the accident, through the [date of the trial]” to be

-7-
$254,166. He further testified that he calculated plaintiff’s potential earnings “from the end of

the current year until the end of [plaintiff’s] work life expectancy” to be “$642,836.”

v. The Testimony of Grant Parker

Grant Parker, a “sea captain” with thirty-five years of experience, who was qualified as

an expert, testified that a stepladder was an “inherently unsafe” item to use on a vessel; he added

that “a platform ladder” or “a vertical ladder” should have been used. He further indicated in his

testimony that the specific stepladder used by plaintiff on the day of his fall should have been

“taken out of service” (i.e., removed from the vessel) because there were “cuts in the bottom

rung.” In the course of his testimony, Captain Parker opined that every employee on a vessel has

a responsibility to maintain a safe work environment; he stated that the “reasonable prudent

seaman” is obligated to “alert [another seaman] that he’s standing in harm’s way and to remove

the hazard or alert the seaman that he’s then standing in harm’s way and not allow that unsafe act

to continue.” He added that crew members should be instructed “about the safe working

procedure.” Finally, when asked whether or not he had “an opinion to a reasonable degree of

certainty whether the fishing vessel Persistence was a reasonably safe place to work as it lay at

the dock on May 31, 2006,” he responded as follows: “I would have to say none [sic] due to the

ladder condition and the disposition of the seaman not willing to stand and alert his fellow

seaman that there’s an unsafe condition.”

Captain Parker acknowledged on cross-examination that a vessel tied to a dock, as the

Persistence was when plaintiff fell, is very stable.

-8-
 2

The Defendant’s Witnesses

i. The Testimony of Glenn Goodwin

Glenn Goodwin testified that he was “a part owner and the captain of the fishing vessel

Persistence;” he added that he was a captain full-time from 1986 to 1994 and thereafter

continued to captain the vessel on a part-time basis. He testified that stepladders were used “all

the time just to let us do overhead activities, wires being run and painting and all * * * .” When

asked whether, “based on [his] experience as a captain on a fishing vessel and the fishing vessel

Persistence for 25 years [he] believe[d] that * * * a crewman on a vessel [who] would not come

to the aid of a fellow crewman intentionally ha[d] a place on * * * [that] vessel,” he responded in

the negative. However, when asked if he were to see “someone in the process of setting up a

ladder and [he] glanced over and while they were setting it up [he] saw it slanted, would

you * * * warn them before * * * you knew they were getting on the ladder,” he replied as

follows: “When they were setting the ladder up I don’t know if I would warn them at that point.”

Captain Goodwin added that he possibly would not do so because he “wouldn’t be really

convinced that that was where [the ladder] was going to be used.”

ii. The Testimony of David Webb and JoAnn Greene

David Webb testified that he was working as a “deckhand” on the Persistence on May 31,

2006. It was his testimony that on that date the fish hold was “dry;” he added that he was

working in the “forward section” of the fish hold on that day and was not “affected” by the paint

fumes. He further stated that the vessel was “stationary.” It was his further testimony that he

had “[m]any times” used the same stepladder that Mr. King was using on May 31, 2006.

-9-
 JoAnn Greene, a “bookkeeper” for defendant, testified that plaintiff went on “sixty-two

and a half percent” of the Persistence’s fishing trips from 2005 to 2006; she added that, in the

over twenty years that she had worked for defendant, only one crewman (as contrasted with

“captains or engineers”) had worked beyond the age of fifty.

B

The Jury Instructions, Closing Arguments, and Verdict

In the course of instructing the jury with respect to the count for maintenance and cure

(Count One), the trial justice stated:

“If Mr. King is entitled to maintenance and cure, then you should
also award him unearned wages from the date of Mr. King’s injury
until the end of the period for which * * * Huntress agreed he
would work, that is, when he was serving the ship.”

After the jury instructions had been given, but before closing arguments, defense counsel raised

an issue concerning the trial justice’s instruction on unearned wages; at sidebar, he addressed the

trial justice as follows:

“On the wages you mentioned that he’s entitled to maintenance
and cure and he’s entitled to unearned wages. I’m afraid the jury is
– unearned wages and lost wages, unearned wages I think from
[plaintiff counsel’s] posture -- instructions relate to unearned
wages for the trip in which Mr. King, if he was on a fishing trip, so
there’s no unearned wages.”

The exchange at sidebar continued as follows:

“[The Court]: Well, this may be. I don’t know what he’s
going to argue. He is entitled to unearned wages but unearned
wages in this context is not lost wages which is what Dr.
Perlmutter testified to which is unearned wages until the end of the
trip, for instance, until the end of his expected employment. I
believe that was the instruction I gave. Unearned is different from
the other.

“[Defense Counsel]: Understood, I don’t want that. I
believe the jury may have been confused, unearned wages will be

- 10 -
 lost wages because he’s not entitled to be employed, simply was
not employed.

“* * *

“[Plaintiff Counsel]: Well, actually relative to medical
costs the Court will give a new instruction, I think we agreed on
that, relative to unearned wages.

“[The Court]: I’m inclined to do that already, instruct on
unearned wages differentiating them from lost wages. The Court is
inclined to overrule. Do you wish to be heard?

“[Plaintiff Counsel]: No, your Honor.

“[The Court]: Objection is overruled.”

In spite of the trial justice’s suggestion in the course of the just-quoted colloquy that he was

going to instruct the jury with respect to the difference between lost wages and unearned wages,

no such instruction was ever given, even though the trial justice did in fact give some

supplemental instructions to the jury.

At the conclusion of closing arguments, defense counsel lodged an objection to that

portion of plaintiff counsel’s closing argument which dealt with the unearned wages issue. The

following exchange took place:

“[Defense Counsel]: I think [plaintiff counsel] knows
exactly what I’m going to mention, the fishing wages, the unearned
wages during the fishing season is absolutely not the law of
admiralty as applies to this case, and there was no fishing season.
This is black letter law and this is why I mentioned before I would
ask for a Court instruction that --

“[The Court]: On what? On what he said?

“[Defense Counsel]: That he’s entitled to unearned wages
to the following fishing season.

“[The Court]: That wasn’t my instruction. Are you saying
that’s [plaintiff counsel’s] instruction on the law? I told them not to
listen to anybody but the Court on the law. How do you like that?

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 “[Defense Counsel]: I would say --

“[The Court]: The instructions.

“[Defense Counsel]: It’s a factual issue. I’m very confident
it was a factual issue.

“[The Court]: Well, if it was a factual issue it doesn’t
relate to the instructions at all. Anything else?

“[Defense Counsel]: No, that’s it. Thanks.”10

After the jury was sent to deliberate, in the course of discussing the jury instructions and

interrogatories with counsel, the trial justice stated that “negligence does not carry with it

prejudgment interest in most jurisdictions that I’m aware of. We’re only talking about the

computations of prejudgment interest which is done by the Court after the verdict.” The

following ensued:

“[Defense Counsel]: Well, if there is a question, you’re
right. This is – agrees to the Jones Act and goes to unseaworthiness
or vice-versa. The Court cannot apply interest though and that was
--

“[The Court]: Well, why didn’t you actually say that when
the jury was in the room so I could have corrected the instructions?
Now I’m trying to correct the interrogatories. They weren’t given
separate instructions on interest.

“[Defense Counsel]: Your Honor --

“[The Court]: And, therefore, you waived it. The verdict
form will go as is.”

10
On November 29, 2010, after the jury rendered its verdict in the case, the trial justice
issued an order “welcom[ing] memoranda from counsel to clarify” issues surrounding the
assessment of prejudgment and postjudgment interest. The plaintiff and defendant each filed a
memorandum in response to the trial justice’s order; those memoranda were filed on December
6, 2010 and December 13, 2010 respectively. On December 15, 2010, plaintiff filed an
additional memorandum with respect to interest, to which defendant responded on January 20,
2011.

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 Thereafter, on November 24, 2010, the jury returned a verdict in plaintiff’s favor on

Count One (maintenance and cure) in the amount of $257,500. The jury found in favor of

defendant on Counts Two and Three (negligence under the Jones Act and breach of the warranty

of seaworthiness).

C

The Motions for a New Trial

On December 6, 2010, defendant Huntress moved for a new trial on Count One

(maintenance and cure); it contended that the trial justice’s instruction with respect to unearned

wages was improper. It also contended that the jury must have “misunderstood” the court’s

instruction because it awarded “five times” the amount of damages that plaintiff was seeking for

maintenance. (Emphasis in original.) In the alternative, defendant sought a remittitur of the

judgment to $30,000—that amount being what defendant argued plaintiff was entitled to for

maintenance after his wife’s financial contribution to the household was taken into account.

The plaintiff for his part moved for a new trial with respect to Counts Two and Three

(negligence under the Jones Act and breach of the warranty of seaworthiness). The plaintiff’s

counsel recounted the evidence (some of which he claimed was unchallenged) that he believed

would support defendant’s liability on Counts Two and Three; he then set forth a number of

alleged errors, none of which are at issue in this appeal. In a memorandum filed after the court

held a hearing on the new trial motions but before it ruled on those motions, plaintiff’s counsel

argued that “[r]easonable individuals could not have come to the conclusion reached by the jury”

with respect to Counts Two and Three and that, therefore, he was entitled to a new trial on those

counts.

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 On January 24, 2011, each party having objected to the other party’s motion for a new

trial, a hearing was held, at which the parties were given the opportunity to present argument

with respect to their respective motions for a new trial as well as the issue of prejudgment

interest. With respect to prejudgment interest, plaintiff’s counsel argued that the Rhode Island

prejudgment interest statute, as codified in § 9-21-10, should be applied; he stated that the act of

calculating prejudgment interest was “ministerial,” “not discretionary.” The plaintiff’s counsel

further argued that the “status quo” would be preserved if the court were to employ the 12

percent prejudgment interest set forth in § 9-21-10; and, with respect to his “status quo”

contention, he stated: “If that is to be disrupted, * * * it is for the defendant to do it, if the

defendant seeks to do it. [The plaintiff is] perfectly happy with the status quo being maintained.”

In contrast, defense counsel contended that the issue of prejudgment interest was a “substantive

area of law” and that, “by virtue of the federal common law of admiralty,” the awarding of

prejudgment interest was properly in “the discretion of the jury.” He stated that the rule that

prejudgment “interest must be submitted to the jury [was] the accepted rule of admiralty

jurisprudence.”

At the January 24, 2011 hearing, the trial justice issued a decision from the bench with

respect to the issue of prejudgment interest. The trial justice began his decision by stating: “In

this case the question before the Court is not a federal question as it is an issue of common law as

opposed to statutory law.” After distinguishing some of the cases cited by defendant, he

ultimately concluded:

“[T]he twelve percent [interest] rate which must be added by the
clerk is not up to the Court to determine. It is procedure and it is a
ministerial act * * * more importantly, we don’t ask the jurors to
place their value judgment on whether or not to apply the twelve
percent, that’s not what the statute calls for and, therefore, pre-
judgment [sic] interest * * * [is] granted pursuant to the statute.”

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 The trial justice reserved decision on the parties’ motions for a new trial. Then, on June

1, 2011, he issued an eleven-page order detailing his decision on the motions for a new trial and

addressing a motion filed by defendant requesting that he reconsider his decision on prejudgment

interest. In order to properly decide the issues presented to us on appeal we must discuss, at

some length, the trial justice’s June 1 decision on the motions for a new trial.

The trial justice began by addressing defendant’s motion for a new trial concerning the

issue of maintenance. In compliance with the standard articulated by this Court with respect to

motions for a new trial, the trial justice initially reviewed the evidence presented to the fact-

finders. He addressed the testimony of plaintiff, Mr. Sabella, Dr. Feldman, and Dr. Perlmutter.

With respect to the jury’s award of damages for maintenance, he stated:

“While this is more than the amount calculated by Dr. Feldman,
the jury was attentive and considered all of the evidence. It was
within its province to consider the extent of Mr. King’s harm, and
to weigh other factors, such as how many fishing journeys he may
have attended, or the varying success of each fishing trip. The
jury’s result was reasonable.”

The trial justice proceeded to discuss defendant’s contentions with respect to whether the

jury instruction relative to unearned wages was in error. The trial justice pointed out that he had

told the parties that “an admiralty personal injury case was novel for a Superior Court trial” and

that he had requested that the parties file pretrial memoranda. He added that he did not receive

any such memorandum or a request for jury instructions from defendant until the trial was nearly

over—even though, according to the trial justice, plaintiff had filed an extensive request for

instructions a “week before trial,” in which plaintiff included a “request [for] an award for lost

- 15 -
earnings.”11 The trial justice further stated that, with reference to the jury instruction concerning

unearned wages, defendant’s “objection on ‘wages’ if it was an objection, was obscure.” He

continued by referencing Rule 51(b) of the Superior Court Rules of Civil Procedure,12 which

deals with objections to jury instructions; and he then found that defendant had not stated

“distinctly the matter to which the party objects and the grounds of the party’s objection.”

(Internal quotation marks omitted.) Accordingly, the trial justice denied defendant’s motion for

a new trial on the issue of maintenance, stating: “There was no clear explanation or objection.

Hence, Huntress cannot assign the instruction as error.”

The trial justice then turned to a discussion of plaintiff’s motion for a new trial with

respect to Counts Two and Three. He noted that, “[w]hile Mr. King presented a significant case

on liability it was not iron-clad;” he then proceeded to discuss the testimony of Mr. Weisensee,

deeming it “worthy of extensive comment.” The trial justice found that, after Mr. Weisensee

testified that “Mr. King’s ladder was not positioned on a level floor” and that Mr. Weisensee was

aware of that fact before Mr. King climbed the ladder, Mr. Weisensee’s “demeanor significantly

changed and he became uncooperative * * * .” In the view of the trial justice, Mr. Weisensee’s

11
The trial justice added: “No citations were provided to the court regarding how to
compute the damages for maintenance, until after the verdict was received and the jury was
discharged.”
12
Rule 51(b) of the Superior Court Rules of Civil Procedure provides as follows:

“At the close of the evidence or at such earlier time during the trial
as the court reasonably directs, any party may file written requests
that the court instruct the jury on the law as set forth in the
requests. No 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 party’s objection.
Opportunity shall be given to make the objection out of the hearing
of the jury.”

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“reluctance * * * to respond to questions posed by Mr. King’s counsel at the trial” was the

reason for portions of his deposition being read into the record. The trial justice made specific

reference to the portion of that deposition where Mr. Weisensee stated:

“We’re in harm’s way all the time. Somebody’s doing something
stupid, they’re just being stupid. I don’t really care. It’s not my
problem. Go hurt yourself. I don’t care. It’s not my problem.”

Turning next to the testimony of Captain Parker, the trial justice pointed out that Captain

Parker testified that “the standard of care is for a seaman to help another seaman in harm’s way,

and not allow an unsafe operation to continue”—testimony which, according to the trial justice,

was not “questioned on cross-examination” and was “acknowledged” by Glenn Goodwin in his

testimony at trial. Consequently, in the trial justice’s judgment, Mr. Weisensee’s “failure to

warn violated the standard of care” and “proximately caused the harm” at issue in the case.

Accordingly, the trial justice stated that he could not “conclude that Huntress, and its staff, had

no negligence at all” because “[a] poorly trained or unfit crew constitute[d] unseaworthiness.”

The trial justice found that, “[t]o the extent Mr. Weisensee failed to warn and knew he should do

so, Huntress was negligent;” he further found that, “[i]f Mr. Weisensee did not know his

obligation to warn, then he was inadequately trained for his employment in the fishing industry.”

The trial justice concluded his analysis of plaintiff’s motion for a new trial as follows:

“In consideration of the testimony of the witnesses regarding the
factual events, the expert testimony adduced and the materials
submitted as evidence, and the reasonable inferences drawn
therefrom, the jury’s verdict is against the fair preponderance of
the evidence. The verdicts relative to the negligence and
unseaworthiness counts failed to do justice or respond to the merits
of the controversy. * * * Reasonable minds could not have come to
the conclusion reached by the jury. Mr. King’s motion for new trial
on the issues of negligence and unseaworthiness must therefore be
granted.” (Internal quotation marks omitted.)

- 17 -
 With respect to defendant’s motion to reconsider the award of prejudgment interest, the

trial justice stated:

“Again, the Court is stymied as it was never asked to present the
issue of interest to the jury, until after the jury was discharged.
Each of the attorneys approved the jury verdict form before
deliberations. Again, the Court makes the most of a poor situation.
Courts rely on attorneys to prepare the Court, propelled by the
adversary system.”

Accordingly, the trial justice denied defendant’s motion requesting the court to reconsider its

ruling on the issue of prejudgment interest. On June 17, 2011, defendant filed a notice of

appeal.13

II

Standard of Review

A

Motions for a New Trial

The defendant urges this Court to apply what it refers to as the “appellate rule” in

reviewing the trial justice’s ruling on the motions for a new trial. It is true that we have in the

past referred to a principle denominated as the “appellate rule,” which we explained as follows:

“If a trial justice fails to make a specific appraisal of the evidence,
then this [C]ourt will apply the appellate rule, in which case the
evidence is examined in the light most favorable to the prevailing
party to determine if there is any competent evidence that, if
believed, would support the jury’s verdict.” Hefner v. Distel, 813
A.2d 66, 70 (R.I. 2003) (internal quotation marks omitted).

However, in this case, we are unable to say that the trial justice failed “to make a specific

appraisal of the evidence.” Id. As such, we decline defendant’s invitation to apply the

13
After defendant filed a notice of appeal, final judgment was entered on July 25, 2011.
The defendant thereafter filed a second notice of appeal on August 11, 2011. The plaintiff filed a
cross-appeal on August 15, 2011. This Court then consolidated those three appeals on
November 14, 2012.

- 18 -
“appellate rule;” we will apply our usual standard of review with respect to a motion for a new

trial.

As we have stated on numerous occasions, in considering a motion for a new trial, the

trial justice sits as a “super juror” and is required to “make an independent appraisal of the

evidence in the light of his [or her] charge to the jury.” Botelho v. Caster’s Inc., 970 A.2d 541,

545 (R.I. 2009) (internal quotation marks omitted); see also Candido v. University of Rhode

Island, 880 A.2d 853, 856 (R.I. 2005); Pollard v. Hastings, 862 A.2d 770, 777 (R.I. 2004);

Barbato v. Epstein, 97 R.I. 191, 193-94, 196 A.2d 836, 837 (1964). When making this

independent appraisal, the trial justice must weigh the evidence and assess the credibility of

witnesses. Rose v. Cariello, 85 A.3d 618, 622 (R.I. 2014). The trial justice is also free to “reject

some evidence and draw inferences which are reasonable in view of the testimony and evidence

in the record.” Botelho, 970 A.2d at 545 (internal quotation marks omitted); see also Bajakian v.

Erinakes, 880 A.2d 843, 851 (R.I. 2005). If, in the trial justice’s independent judgment, “the

evidence is evenly balanced or is such that reasonable minds in considering the same evidence

could come to different conclusions, the trial justice must allow the verdict to stand.” Botelho,

970 A.2d at 545; see also Pollard, 862 A.2d at 777. However, if the trial justice were to find that

“the verdict [was] against the preponderance of the evidence and thereby fail[ed] to either do

justice to the parties or respond to the merits of the controversy, the verdict must be set aside.”

Botelho, 970 A.2d at 545 (internal quotation marks omitted); see also Gomes v. Rosario, 79 A.3d

1262, 1265 (R.I. 2013).

- 19 -
 On appeal, “[i]f the trial justice has carried out the duties required by Rule 59[14] of the

Superior Court Rules of Civil Procedure and our decided cases, his or her decision is accorded

great weight by this Court” and “his or her determination either granting or denying a motion for

new trial will not be disturbed unless * * * [he or she] has overlooked or misconceived material

and relevant evidence or was otherwise clearly wrong.” Botelho, 970 A.2d at 546; Pantalone v.

Advanced Energy Delivery Systems, Inc., 694 A.2d 1213, 1216 (R.I. 1997); see also Pollard, 862

A.2d at 777; Morrocco v. Piccardi, 713 A.2d 250, 253 (R.I. 1998); Kurczy v. St. Joseph Veterans

Association, Inc., 713 A.2d 766, 770 (R.I. 1998).

B

Jury Instructions

In addition to the motions for a new trial at issue in this case, our review of defendant’s

contentions on appeal also requires us to evaluate an instruction given to the jury by the trial

justice; we evaluate such an instruction on a de novo basis. Oden v. Schwartz, 71 A.3d 438, 450

(R.I. 2013); see also State v. Ros, 973 A.2d 1148, 1166 (R.I. 2009); State v. Graham, 941 A.2d

848, 855 (R.I. 2008). In instructing a jury, the “trial justice fulfills his or her obligation to charge

the jury properly by framing the issues in such a way that the instructions reasonably set forth all

of the propositions of law that relate to material issues of fact which the evidence tends to

support.” Morinville v. Old Colony Co-operative Newport National Bank, 522 A.2d 1218, 1222

(R.I. 1987) (internal quotation marks omitted). We examine a jury instruction given by the trial

14
Rule 59(a) of the Superior Court Rules of Civil Procedure provides in pertinent as
follows:

“A new trial may be granted to all or any of the parties and on all
or part of the issues for error of law occurring at the trial or for any
of the reasons for which new trials have heretofore been granted in
the courts of this state.”

- 20 -
justice in its entirety, rather than examining “single sentences or selective parts of the charge in

isolation, * * * [outside of] the context in which they were rendered.” Botelho, 970 A.2d at 545

(internal quotation marks omitted); see also Parrella v. Bowling, 796 A.2d 1091, 1101 (R.I.

2002). In conducting our review, we are mindful of the fact that “[t]he reading [of the jury

instruction] was not presented to a meeting of the bar association. It was given to a group of

laymen.” Baccari v. Donat, 741 A.2d 262, 264 (R.I. 1999) (internal quotation marks omitted);

see also Neri v. Nationwide Mutual Fire Insurance Co., 719 A.2d 1150, 1153 (R.I. 1998).

Additionally, “even if an instruction is erroneous, reversal is warranted only if it can be shown

that the jury could have been misled to the resultant prejudice of the complaining party.”

Botelho, 970 A.2d at 545 (internal quotation marks omitted); see also State v. Lynch, 19 A.3d

51, 58 (R.I. 2011); Hodges v. Brannon, 707 A.2d 1225, 1228 (R.I. 1998).

C

Prejudgment Interest

With respect to the issue of prejudgment interest, we shall review in a de novo manner

the trial justice’s decision to apply the Rhode Island state statute governing prejudgment interest.

See In re Volkswagen and Audi Warranty Extension Litigation, 692 F.3d 4, 13 (1st Cir. 2012)

(“We * * * review choice of law issues de novo.”); Robidoux v. Muholland, 642 F.3d 20, 22 (1st

Cir. 2011) (“Choice of law determinations are questions of law, which we * * * review de

novo.”); Torre v. Brickey, 278 F.3d 917, 919 (9th Cir. 2002) (“Whether state or federal law

applies to a particular issue in a diversity action is a question of law which we * * * review de

novo.”); see also Waterman v. Caprio, 983 A.2d 841, 844 (R.I. 2009) (“This Court * * * uses a

de novo standard to review a trial justice’s rulings on questions of law.”).

- 21 -
 III

Analysis 15

A

Count One—Maintenance and Cure

1

Waiver

In ruling on defendant’s motion for a new trial, the trial justice called into question the

adequacy of defendant’s objection to the unearned wages instruction that was included within the

trial justice’s instructions on maintenance and cure. The plaintiff for his part contends that

defendant waived any argument relative to the unearned wages instruction given to the jury

because it failed to adequately object to the instruction at trial; defendant disagrees, contending

that its objection was “clearly sufficient to preserve the issue.”

Under Rule 51(b), “[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 party’s objection.” The

rationale underlying this rule is that it is necessary to “allow the trial justice an opportunity to

make any necessary corrections to his or her instructions before the jury begins its deliberations.”

DiFranco v. Klein, 657 A.2d 145, 147 (R.I. 1995); see also A. R. Alvernas, Inc. v. Cohen, 420

15
We deem it important to note that, after our extensive review of the record in this case
and the applicable case law, we are left with the impression that, at several junctures, there was a
profound misunderstanding of the law to be applied amongst the attorneys in this case and/or a
failure to inform the trial justice of the applicable law in a cogent and timely manner.
Consequently, there was on some occasions an understandable lack of certainty on the part of the
trial justice as to the appropriate principles of law to be applied. We would urge the parties, on
remand, to endeavor to provide the trial justice with a more timely and thorough discussion of
the federal law to be applied in this case. See generally Bajakian v. Erinakes, 880 A.2d 843, 848
n. 7 & n. 8 (R.I. 2005).

- 22 -
A.2d 78, 81 (R.I. 1980). While we are “especially rigorous in the application of the raise-or-

waive rule when considering objections to jury instructions,” Botelho, 970 A.2d at 548, we

nonetheless “will not apply Rule 51(b) in an overly stringent manner,” DiFranco, 657 A.2d at

147; moreover, we have stated that “no particular formality is required of counsel in raising an

objection.” A. R. Alvernas, Inc., 420 A.2d at 81. However, the objection must be “specific

enough to alert the trial justice as to the nature of [the trial justice’s] alleged error.” Botelho, 970

A.2d at 548 (internal quotation marks omitted); see also DiFranco, 657 A.2d at 147. “[T]he

purpose of the specificity requirement is to give the trial justice a chance to remedy any

deficiency in the charge while there is still a meaningful opportunity to effectuate such a

remedy.” Botelho, 970 A.2d at 548 (internal quotation marks omitted).

It will be recalled that, in the course of objecting to the jury instruction on unearned

wages before the jury left the courtroom to deliberate, defense counsel stated:

“On the wages you mentioned that he’s entitled to maintenance
and cure and he’s entitled to unearned wages. I’m afraid the jury is
– unearned wages and lost wages, unearned wages I think from
[plaintiff counsel’s] posture -- instructions relate to unearned
wages for the trip in which Mr. King, if he was on a fishing trip, so
there’s no unearned wages.

“* * *

“I believe the jury may have been confused, unearned wages will
be lost wages because he’s not entitled to be employed, simply was
not employed.”16

While defendant’s objection was not a model of proper syntax, it nonetheless made reference,

several times, to the contention that the “unearned wages” instruction was in error and may have

resulted in the jury being “confused;” in our judgment, the objection had enough “meat on the

16
The defendant also objected, at the conclusion of closing arguments, to that portion of
plaintiff’s closing argument which referenced the unearned wages issue.

- 23 -
bone” to have put the trial justice on notice as to what defendant contended was “the nature of

[the trial justice’s] alleged error.” Botelho, 970 A.2d at 548 (internal quotation marks omitted).

Moreover, it would seem that the trial justice understood the essence of defendant’s objection

because he stated in response: “I’m inclined to do that already, instruct on unearned wages

differentiating them from lost wages.”17 Accordingly, it is our opinion that defendant did not

waive his contentions with respect to the trial justice’s unearned wages instruction.

2

Maintenance and Cure—Jury Instruction

In order to put the contentions of the parties on the claim for maintenance and cure 18 in

their proper context, we deem it necessary to begin with a discussion of the law with respect to

admiralty actions for maintenance and cure.

This Court has stated, in its sole opinion dealing with the matter, that “the vessel and her

owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the

extent of his maintenance and cure, and to his wages, at least so long as the voyage is

continued.” Tavares v. Dewing, 33 R.I. 424, 437-38, 82 A. 133, 138 (1912). While we have not

had frequent occasion to opine either on admiralty issues generally or on causes of action for

maintenance and cure in particular, our review of federal case law has unearthed a plethora of

cases dealing with maintenance and cure, to which we now turn for guidance.

17
We are aware that, in actuality, the trial justice never gave a further instruction “on
unearned wages differentiating them from lost wages.”
18
It should be noted that cure was not at issue in the case; plaintiff acknowledged that
defendant had fulfilled its obligation with respect to cure by paying for plaintiff’s medical
expenses in their entirety.

- 24 -
 “From time immemorial, the law of the sea has required shipowners to ensure the

maintenance and cure of seamen who fall ill or become injured while in service of the ship.”

Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 454 (1st Cir. 1996) (internal quotation marks

omitted); see LeBlanc v. B.G.T. Corp., 992 F.2d 394, 397 (1st Cir. 1993); see also 1 Thomas J.

Schoenbaum, Admiralty and Maritime Law, § 6-28 at 505 (5th ed. 2011) (stating that a ship

owner’s obligation to pay maintenance and cure for an injured seaman “is of ancient vintage”).

The right to maintenance and cure is “largely without regard to fault,” Ferrara, 99 F.3d at 454

(internal quotation marks omitted); maintenance and cure are “due without regard to the

negligence of the employer or the unseaworthiness of the ship.”19 Pelotto v. L & N Towing Co.,

604 F.2d 396, 400 (5th Cir. 1979); see Plesha v. M/V Inspiration, 419 F. Supp. 2d 67, 71 (D.

P.R. 2006); see also 1B Benedict on Admiralty § 42 at 4-5 (7th rev. ed. 2012) (“Fault concepts

are alien to the maintenance and cure remedy * * * .”). A seaman “may forfeit his entitlement

only by engaging in gross misconduct.” Ferrara, 99 F.3d at 454 (internal quotation marks

omitted).

Maintenance refers to the “provision of, or payment for, food and lodging,” while cure

provides for the payment of “any necessary health-care expenses * * * incurred during the period

of recovery from an injury or malady.” Ferrara, 99 F.3d at 454 (internal quotation marks

omitted); see also Whitman v. Miles, 387 F.3d 68, 71 (1st Cir. 2004). The right to receive

maintenance and cure extends until such time as the seaman reaches “maximum medical

recovery.” Whitman, 387 F.3d at 72 (internal quotation marks omitted). Such maximum

medical recovery occurs when the seaman is “so far cured as possible”—meaning that the

19
The right of a seaman to recover “maintenance and cure for illness or injury occurring
while he is in the service of the ship is often analogized to workmen’s compensation.” Grant
Gilmore & Charles L. Black, Jr., The Law of Admiralty, ch. VI, § 6-6 at 281 (2d ed. 1975).

- 25 -
seaman is either fit to work or his or her “condition has stabilized and further progress ended

short of a full recovery * * * .” Id. (internal quotation marks omitted); see Plesha, 419 F. Supp.

2d at 71; see also Ferrera, 99 F.3d at 454.20

The defendant posits that the jury’s award of $257,500 for maintenance was “nearly

five * * * times more than [Mr.] King’s own best evidence of $54,000 and five * * * times the

amount [Mr.] King’s counsel demanded of the jury.” It contends that the reason for that

discrepancy is the fact that the trial justice issued, sua sponte, a jury instruction on unearned

wages within the maintenance and cure instructions; according to defendant, such instruction

was “legally incorrect as [Mr.] King was not entitled to unearned wages under established black

letter law.”21 It is the view of defendant that unearned wages are available on a maintenance

claim only if the “seaman is employed under a contract for a specific period of time[]

or * * * when a seaman becomes ill or injured during a voyage.” (Emphasis in original.) It is

defendant’s contention that: (1) Mr. King can produce no “contract, written, oral or otherwise,

requiring him to serve or requiring [defendant] to hire him for any particular trip, let alone a

specific duration;” and (2) that, consequently, he is not entitled to unearned wages. The

defendant further posits that the unearned wages instruction essentially (and incorrectly in

defendant’s view) told the jury that “if they awarded maintenance and cure, th[en] they should

award unearned wages * * * .” (Emphasis in original.) It avers that, given what it contends was

20
For further authorities relative to the history and development of maintenance and cure,
we direct the interested reader to The Osceola, 189 U.S. 158 (1903) and Hall v. Noble Drilling
(U.S.) Inc., 242 F.3d 582 (5th Cir. 2001).
21
The defendant also contends that the trial justice committed error when he instructed the
jury with respect to cure, despite the fact that cure was not at issue in the case (see footnote 18,
supra). However, as defendant concedes, the trial justice issued a corrective instruction.
Accordingly, we perceive no error in the trial justice’s instructions on the issue of cure. See
Kurczy v. St. Joseph Veterans Association, Inc., 820 A.2d 929, 944 (R.I. 2003).

- 26 -
an excessive damages award, it is clear that the jury “misunderstood the law, the evidence, or

both.”22

In response, plaintiff posits that “as brief as [the unearned wages instruction] is, it is a

correct statement of a straightforward law.” He further contends that defendant should have

produced a written agreement specifying the duration of Mr. King’s employment if it wanted to

contend that he was not entitled to unearned wages. Additionally, plaintiff claims that defendant

should have requested “a special verdict form that segregates the elements of damages” in order

to “preserve for appeal a challenge to separate components of a plaintiff’s damage award.”

(Internal quotation marks omitted.) Lastly, plaintiff contends in his brief to this Court that, given

the amount of the damages awarded, the jury “found pursuant to the [unearned wages]

instruction an implied-in-fact contract.”

It will be recalled that the instruction at issue in this case reads as follows:

“If Mr. King is entitled to maintenance and cure, then you should
also award him unearned wages from the date of Mr. King’s injury
until the end of the period for which * * * Huntress agreed he
would work, that is, when he was serving the ship.”

We shall evaluate that instruction in a de novo manner. Ros, 973 A.2d at 1166.

Our review of the relevant case law makes it abundantly clear that the unearned wages

instruction given by the trial justice was erroneous. For vessels like the Persistence, which are

“ocean going ships, the rule is said to be that wages are recoverable for the balance of the

voyage * * * .” Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty, ch. VI, § 6-12 at

309 (2d ed. 1975); see Vickers v. Tumey, 290 F.2d 426, 434 (5th Cir. 1961); Tavares, 33 R.I. at

437-38, 82 A. at 138; see also 1 Schoenbaum, § 6-28 at 506. However, it is possible for a

22
The defendant makes a final argument that, as an alternative to granting a new trial, the
trial justice should have granted its motion for a remittitur.

- 27 -
seaman and his or her employer to extend the period of recovery of unearned wages by

contract.23 See Gilmore & Black, § 6-12 at 309; see also Nichols v. Barwick, 792 F.2d 1520,

1524 (11th Cir. 1986). Such a contract would have to provide a definite right to employment for

a fixed period of time. See Farrell v. United States, 336 U.S. 511, 520 (1949) (holding that a

seaman, injured while the vessel he worked on was docked, was not entitled to the one year

worth of unearned wages that he was seeking because his employment contract provided only

“for a term of time not exceeding 12 (Twelve) calendar months”) (internal quotation marks

omitted). Accordingly, “[t]he period as to which unearned wages must be paid is determined by

reference to the contractual relationship. When a seagoing employee has no contract or has a

contract with no enforceable term of duration, she only is entitled to unearned wages from the

time she becomes unfit for duty to the end of that voyage.”24 Gheorghita v. Royal Caribbean

23
It should be noted that the period for which a seaman is entitled to recover unearned
wages “differs from the period of entitlement to maintenance and cure.” Gheorghita v. Royal
Caribbean Cruises, Ltd., 93 F. Supp. 2d 1237, 1243 (S.D. Fla. 2000); see Barnes v. Andover Co.,
L.P., 900 F.2d 630, 643 (3d Cir. 1990); see also 1 Thomas J. Schoenbaum, Admiralty and
Maritime Law, § 6-29 at 513 (5th ed. 2011).
24
The concept of unearned wages, which a seaman may be entitled to under a claim for
maintenance and cure, differs greatly from the concept of lost wages which may be a part of the
damages awarded if a seaman prevails on a claim for negligence under the Jones Act or breach
of the duty of seaworthiness. See LeBlanc v. B.G.T. Corp., 992 F.2d 394, 397 (1st Cir. 1993)
(stating that maintenance and cure “is curative in nature and is thus to be distinguished from
other admiralty rights, such as the right to recover lost wages or the right to recover for a
shipowner’s negligence, which are compensatory”); see also Jones v. Spentonbush-Red Star Co.,
155 F.3d 587, 592 (2d Cir. 1998) (holding that a “plaintiff may recover compensatory damages
for lost income in Jones Act and unseaworthiness cases”); Ferrara v. A. & V. Fishing, Inc., 99
F.3d 449, 452 (1st Cir. 1996). While unearned wages are awardable only to the end of the
voyage on which the seaman is injured or for the duration of his or her employment contract (if
there is one), future lost wages could conceivably be recoverable under a negligence or breach of
the duty of seaworthiness claim for the duration of a seaman’s work life expectancy. See Jones,
155 F.3d at 592. The court in Vickers v. Tumey, 290 F.2d 426, 434-35 (5th Cir. 1961) explained
the distinction as follows:

“[A] classic element of damages in any personal injury claim
where the standard of recovery is a pecuniary loss, is the inability,

- 28 -
Cruises, Ltd., 93 F. Supp. 2d 1237, 1243 (S.D. Fla. 2000); see Berg v. Fourth Shipmor

Associates, 82 F.3d 307, 309 (9th Cir. 1996) (stating that a “vessel owner must pay unearned

wages for a limited period,” only “throughout the period of employment”) (internal quotation

marks omitted); see also Nichols, 792 F.2d at 1524 (holding that the plaintiff presented no

evidence of a contract to work “until the end of the season” and, as such, was “entitled to wages

only to the end of the voyage”); Vickers, 290 F.2d at 434 (stating that, “under the maritime

doctrine of maintenance, wages and cure, wages * * * do not extend beyond the end of the

voyage”). Thus, we hold that Mr. King was only entitled to recover unearned wages as part of

his claim for maintenance and cure for either: (1) the duration of the voyage on which he was

injured (which is not relevant here since the Persistence was docked when Mr. King’s injury

occurred); or (2) for the duration of an employment contract between Mr. King and defendant, if

there was such a contract.

The plaintiff relies on Robinson v. Pocahontas, Inc., 477 F.2d 1048 (1st Cir. 1973), as

support for the contention that unearned wages can be awarded to the end of the fishing season.

(We infer from plaintiff’s brief that he is contending that such wages can be awarded without an

employment contract, as there was no evidence as to the existence of such a contract in the

or reduced ability, to earn wages. Consequently, in a seaman’s
action either under the Jones Act or maritime doctrine of
unseaworthiness, a part of the recovery, if otherwise permissible,
will be the loss of wages from the date of the injury down to the
trial and, if established, the probable loss of wages in the
future. * * * On the other hand, wages, in the maintenance-wages-
cure sense is a very limited award. Perhaps offsetting its limited
nature in terms of duration is the compensating feature that for an
illness or injury suffered in the service of the ship, such wages are
due as a matter of right wholly without regard to unseaworthiness
or negligence or both.”

- 29 -
instant case.) Robinson provides as follows: “[I]t has been settled that the right to recover wages

through the end of the voyage or, as in this case, through the end of the fishing season * * * is a

recognized element of a disabled seaman’s claim for maintenance and cure.” Id. at 1051. The

opinion in Robinson is silent as to whether there was a contract between the plaintiff and the

defendant which might have entitled him to unearned wages until the end of the fishing season;

additionally, other than the just-quoted sentence, the Robinson opinion contains no further

discussion of the issue. Id.

Importantly, in support of the just-quoted sentence, the Court in Robinson cited to Vitco

v. Joncich, 130 F. Supp. 945 (S.D. Cal. 1955), which was affirmed by Joncich v. Vitco, 234 F.2d

161 (9th Cir. 1956). Robinson, 477 F.2d at 1051. The cited district court opinion in Vitco

provides that “[a]long with the obligation to provide maintenance and cure, the maritime law

attaches to the seaman’s contract of employment the right to receive his agreed wages throughout

the period of employment * * * which historically has meant to the end of the voyage, since the

general custom in ships, other than the coastwise trade, is to sign on for a voyage rather than for

a fixed period.” Vitco, 130 F. Supp. at 949 (internal quotation marks omitted). The court in

Vitco held that the seaman was entitled to unearned wages (or a share of the catch) until the end

of the fishing season when, unlike in the instant case, there had been an oral invitation by the

defendant to the plaintiff to join the crew for the tuna fishing season. Accordingly, we are not

swayed by the passing reference to the fishing season in Robinson, especially given the clarity in

federal maritime law with regard to when a seaman is entitled to unearned wages as part of a

claim for maintenance and cure.

It is abundantly clear from a review of the testimony and evidence presented at trial in the

instant case that at no relevant time was there an employment contract between Mr. King and

- 30 -
defendant. Mr. King himself testified that he would do “boat duty to follow the trip that [he] just

finished and Kyle [Goodwin] would make the list out and determine who was going on that trip

and who was going to stay on shore.” Mr. Weisensee testified that the captain would decide who

would go on each fishing trip and that the captain “pick[ed] who he fe[lt] deserve[d] to go;” he

added that the composition of the crew was not the same from fishing trip to fishing trip.

Moreover, JoAnn Greene testified that, during the years when Mr. King worked for defendant,

he only went on “sixty-two and a half percent” of the Persistence’s fishing trips. The plaintiff,

who had the burden of proving that there was an employment agreement of a specified duration

between defendant and him, did nothing to rebut that evidence. In fact, he did not enter a

contract into evidence at all;25 and, as defendant points out, “[p]erhaps more compelling, [when

plaintiff testified, he] was never even asked about any such agreement by his attorney.” 26 There

was simply no evidence at trial that a contract existed between Mr. King and defendant; as such,

in accordance with the applicable federal maritime law, Mr. King was not entitled to any

unearned wages. See Farrell, 336 U.S. at 520-21.

We are of the opinion that the trial justice’s jury instruction with respect to unearned

wages was given in error in that it was an incomplete and insufficient statement of the law. The

trial justice stated that, if the jury awarded maintenance and cure, it “should also

award * * * unearned wages * * * when [Mr. King] was serving the ship.” The trial justice was

correct that plaintiff was entitled to be compensated under maintenance and cure for the duration

25
We note that, in the course of the hearing on the parties’ motions for a new trial,
plaintiff’s counsel acknowledged that “[t]he jury positively never had a contract” before it.
26
It is further noteworthy that there was also no evidence presented at trial to support
plaintiff’s statement on appeal that the jury must have found that there was an implied-in-fact
contract between him and defendant.

- 31 -
of his employment contract; i.e., when “he was serving the ship.” However, the trial justice

failed to explain that plaintiff was “serving the ship” only if he was on a voyage or had an

employment contract for a specified duration. The lack of clarification of the jury instruction

with respect to unearned wages illustrates the fact that the trial justice did not “fram[e] the issues

in such a way that the instructions reasonably set forth all of the propositions of law * * * .”

Morinville, 522 A.2d at 1222 (internal quotation marks omitted). It is further our view that,

because the unearned wages jury instruction was somewhat ambiguous in the eyes of this Court,

it is quite probable that it was even more so for the lay jurors. See Baccari, 741 A.2d at 264.

The fact that the incomplete jury instruction given by the trial justice with respect to

unearned wages “misled” the jury is evident when one considers the jury award—the $257,500

jury award for maintenance and cure is simply not supported by the evidence. Botelho, 970 A.2d

at 545 (internal quotation marks omitted). Since plaintiff was not entitled to unearned wages and

the parties agreed that cure had already been paid, plaintiff was entitled only to compensation for

his food and lodging from the date of his injury until his maximum medical recovery on March

9, 2010. Moreover, as plaintiff acknowledged, much of those maintenance expenses had already

been paid by defendant. In fact, plaintiff’s testimony reflects the fact that he was only seeking

$37 per day for his mortgage and utilities and $15 a day for his food expenses from February of

2008 (when defendant stopped paying) until March 9, 2010. On the basis of this Court’s rough

calculations, that does not amount to a sum close to $257,500. Thus, there was no basis for the

jury’s award of $257,500 unless the jurors, incorrectly, took into account plaintiff’s unearned

wages.27 Therefore, it is our decided opinion that the trial justice’s erroneous jury instruction

27
We deem it entirely possible that, when the unearned wages jury instruction is considered
in the context of the entirety of the jury instructions, the jury did not properly fathom the
distinction between the lost wages (on which there was testimony by Dr. Feldman) that it could

- 32 -
“misled” the jury “to the resultant prejudice” of defendant. Id. (internal quotation marks

omitted). Accordingly, we remand this case for a new trial on plaintiff’s claim for maintenance

and cure. See Baccari, 741 A.2d at 264.

3

Maintenance and Cure—Motion for a New Trial

Huntress, Inc., the defendant corporation, makes a further contention that, even if the jury

instruction is found not to be in error, the trial justice nevertheless committed clear error in

addressing defendant’s motion for a new trial based on an excessive jury award; defendant avers

that the trial justice failed to consider all of the material evidence and failed to even reference his

jury instruction specifically. It argues that, “had [the trial justice] conducted the correct analysis

in light of the correct law, the excessiveness of the jury’s award would have been evident.” The

majority of the trial justice’s decision on defendant’s motion for a new trial was devoted to

addressing the reasons why he was of the opinion that any challenge to the jury instruction

concerning unearned wages was waived. However, due to the fact that we have already

determined that a new trial should be held on plaintiff’s claim for maintenance and cure, we need

not discuss whether the trial justice misconceived or overlooked material evidence or was

otherwise clearly in error in the portion of his discussion which related to the jury’s award on the

claim of maintenance and cure. See Botelho, 970 A.2d at 546.

have awarded had it found defendant to be negligent under the Jones Act or to have breached the
warranty of seaworthiness and unearned wages under claims for maintenance and cure. Cf.
Ferrara, 99 F.3d at 452-53 (stating that “a district court’s failure to acknowledge the three
doctrines’ substantive differences usually requires reversal”).

- 33 -
 B

Counts Two and Three—Negligence under the Jones Act and Breach of the Warranty of

Seaworthiness

The defendant also contends that the trial justice erred in granting plaintiff’s motion for a

new trial with respect to Counts Two and Three—viz., negligence under the Jones Act (Count

Two) and breach of the warranty of seaworthiness (Count Three). It posits that the trial justice

inappropriately focused on the portions of the testimony of Mr. Weisensee which were not

supportive of the jury verdict in defendant’s favor—and, in so doing, overlooked the testimony

of Mr. King and Mr. Reposa completely, as well as the portions of Mr. Weisensee’s testimony

which were supportive of the verdict in defendant’s favor. The defendant additionally avers that

the trial justice misconstrued the testimony on which he did rely and impermissibly considered

portions of Mr. Weisensee’s deposition testimony which were not read into the record at trial

and, accordingly, were not before the jury. The defendant concludes its argument by stating:

“[T]he trial evidence shows the error in the [trial] judge’s decision. Not only could reasonable

minds differ as to [Mr.] Weisensee’s role in [Mr.] King’s accident, the preponderance of the

evidence overwhelmingly supported the jury’s verdict for Huntress.”

The plaintiff responds by contending that the trial justice thoroughly reviewed the

evidence and, after a “meticulous evaluation,” correctly concluded that plaintiff’s motion for a

new trial should have been granted. He states that the trial justice’s “reasoning is clear and his

assessment sound and should stand undisturbed.”

Although we ultimately are able to resolve defendant’s contentions largely on the basis of

our existing jurisprudence with respect to motions for a new trial, we first deem it helpful to

- 34 -
briefly outline the legal principles which form the basis of claims for negligence under the Jones

Act and breach of the warranty of seaworthiness.

The Jones Act created a statutory cause of action which provides that “[a] seaman injured

in the course of employment * * * may elect to bring a civil action at law, with the right of trial

by jury, against the employer.” 46 U.S.C. § 30104(a). A seaman has a cause of action under the

Jones Act if “an employer’s failure to exercise reasonable care causes a subsequent injury even

where the employer’s negligence did not render the ship unseaworthy.” Poulis-Minott v. Smith,

388 F.3d 354, 366 (1st Cir. 2004) (internal quotation marks omitted); see also Rannals v.

Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir. 2001). In contrast with claims for breach of the

warranty of seaworthiness and ordinary negligence claims, under the Jones Act “[a] crew

member’s burden of proving causation is featherweight, meaning liability exists if the

shipowner’s negligence contributed even in the slightest to the injury.” Bielunas v. F/V Misty

Dawn, Inc., 621 F.3d 72, 76 (1st Cir. 2010) (internal quotation marks omitted); see Poulis-

Minott, 388 F.3d at 366; see also Rannals, 265 F.3d at 447; Ribitzki v. Canmar Reading & Bates,

Ltd. Partnership, 111 F.3d 658, 662 (9th Cir. 1997).28

Negligence under the Jones Act and breach of the warranty of seaworthiness “are

separate theories of recovery that must be kept distinct,” Rivera v. Herndon Marine Products,

Inc., 895 S.W.2d 430, 434 (Tex. Ct. App. 1995), due to the fact that “unseaworthiness is a

condition, and how that condition came into being—whether by negligence or otherwise—is

quite irrelevant to the owner’s liability for personal injuries resulting from it.” Usner v.

28
The reader interested in the history and development of the Jones Act would profit from
perusing The Law of Admiralty by Grant Gilmore and Charles L. Black, Jr.—a superb piece of
admiralty scholarship. See Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty, §§ 6-
20 to 6-27(a) at 325-54 (2d ed. 1975).

- 35 -
Luckenbach Overseas Corp., 400 U.S. 494, 498 (1971) (emphasis in original). The United States

Supreme Court has “undeviatingly reflected an understanding that the owner’s duty to furnish a

seaworthy ship is absolute and completely independent of his duty under the Jones Act to

exercise reasonable care.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960); see Poulis-

Minott, 388 F.3d at 366 (“Unseaworthiness is a cause of action that enforces the ship owner’s

absolute duty to provide to every member of his crew a vessel and appurtenances reasonably fit

for their intended use.”) (internal quotation marks omitted); see also Rivera, 895 S.W.2d at 434.

Accordingly, the question of seaworthiness of a vessel has been “complete[ly]

divorce[d] * * * from concepts of negligence.” Mitchell, 362 U.S. at 550.

Although the duty of the owner of a vessel is “absolute” with respect to breach of the

warranty of seaworthiness, Justice Stewart has eloquently noted as follows:

“[I]t is a duty only to furnish a vessel and appurtenances
reasonably fit for their intended use. The standard is not
perfection, but reasonable fitness; not a ship that will weather
every conceivable storm or withstand every imaginable peril of the
sea, but a vessel reasonably suitable for her intended service.”
Mitchell, 362 U.S. at 550; see also Ribitzki, 111 F.3d at 664.

Moreover, while it is not necessary to prove negligence in a cause of action for breach of the

warranty of seaworthiness, the seaman must prove that the “unseaworthy condition * * * is the

proximate cause of the injury sustained.” Poulis-Minott, 388 F.3d at 366.29

29
In Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960), the United States Supreme Court
provided a detailed history of the warranty of seaworthiness from the earliest codifications of
“the law of the sea” in the “Laws of Oleron, promulgated about 1150 A.D. by Eleanor, Duchess
of Guienne,” to the state of the law in the United States at the time when the Supreme Court was
formulating its opinion in Mitchell. Id. at 543, 543-50. In conducting our own research into the
law of admiralty (and its application to the instant case), we have encountered a wealth of
additional helpful scholarship relative to the issue of the warranty of seaworthiness. See, e.g.,
Joel K. Goldstein, The Osceola and the Transformation of Maritime Personal Injury Law: Some
Propositions About the Case and its Propositions, 34 Rutgers L.J. 663 (2003); Risk Distribution

- 36 -
 We acknowledge that the trial justice in the instant case, in reviewing plaintiff’s motion

for a new trial on his claims for negligence under the Jones Act and breach of the warranty of

seaworthiness, adhered to the required steps of: (1) making an “independent appraisal” of the

evidence; (2) assessing the credibility of the witnesses (at least those whose testimony he

addressed) and “draw[ing] inferences” from that testimony; and (3) making an independent

determination based on the evidence. Botelho, 970 A.2d at 545 (internal quotation marks

omitted); see Rose, 85 A.3d at 622. However, even when a trial justice has adhered to the steps

which our case law requires when dealing with a motion for a new trial, it is nonetheless our duty

to vacate the decision on the motion if the trial justice misconceived or overlooked material

evidence or “was otherwise clearly wrong.” Botelho, 970 A.2d at 546 (internal quotation marks

omitted). Our exacting review of the record and the decision of the trial justice wherein he

granted plaintiff’s motion for a new trial on his claims of negligence under the Jones Act and

breach of the warranty of seaworthiness has led us to the conclusion that: (1) the trial justice in

this case indeed misconceived and overlooked material evidence in reaching his decision; and (2)

that decision was clearly wrong. Our several reasons for reaching that conclusion are detailed

below.

We begin by noting that a review of the record indicates that defendant’s contention that

the trial justice relied on portions of the deposition testimony of Mr. Weisensee which were not

in evidence at the trial is correct. In fact, plaintiff concedes that point in his brief to this Court,

stating: “Without doubt the trial justice referred to a deposition that had not been before the

and Seaworthiness, 75 Yale L.J. 1174 (1966); LaVerne Evans, Maritime Personal Injuries and
the Doctrine of Seaworthiness, A Matter of Status, 19 JAG J. 13 (1964).

- 37 -
jury * * * .”30 The plaintiff contends that the references by the trial justice are cumulative and,

therefore, harmless. In Greensleeves, Inc. v. Smiley, 68 A.3d 425, 435 (R.I. 2013), we indicated

that “the trial justice’s decision was clouded by references to matters outside of the record.” We

went on to state:

“It is well settled that error inheres in the action of a trial
justice who * * * relies either in whole or in part on matters not in
evidence. * * * However, such error is harmless and therefore not
reversible if the trial justice relied on ample evidence independent
30
The trial justice’s decision contains two incidents of reference to the testimony from Mr.
Weisensee’s deposition that was not before the jury. The first occurs when the trial justice
quotes as follows:

“A: No, I didn’t say anything about it.
“Q: Why didn’t you say anything?
“A: We’re in harm’s way all the time. Somebody’s doing
something stupid, they’re just being stupid. I don’t really care. It’s
not my problem. Go hurt yourself. I don’t care. It’s not my
problem.
Weisensee deposition tr. September 17, 2010, page 19.”

However, the portion of the deposition read into evidence at trial was as follows:

“Question: Why didn’t you say anything?
“Answer: We’re in harm’s way all the time. Somebody’s
doing something stupid, they’re just being stupid. I don’t really
care. It’s not my problem. Go hurt yourself. I don’t care. It’s not
my problem.”

The second incident occurs in footnote two of the trial justice’s decision, where the trial justice
again references deposition testimony not before the jury:

“During the deposition cross-examination, six weeks after the
direct examination, Mr. W[e]isensee contends that Mr. King
should have appreciated his own risk. Deposition of October 29,
2010 at page 44. Even if that were true, jury interrogatories 4 and 5
only dealt with whether the Huntress [sic] was unseaworthy or
negligent. Mr. King’s negligence, if any, was referenced in a later
deposition. The responses to interrogatories 4 and 5 are therefore
inconsistent with the evidence presented. Mr. Weisensee also
suggests he did not see Mr. King go up the ladder which is
blatantly contradictory to the testimony he gave weeks earlier.”

- 38 -
 of the references [to matters outside the record] to support [his]
ultimate decision[.] * * * Therefore, we must determine whether
the sum of the other evidence supporting the [trial] justice’s
decision indicates to us that his consideration of the [matters
outside the record] was not an inextricable component of his
analysis of the case.” Id. (internal quotations marks omitted).

Ultimately we held in Greensleeves that, while it was “imprudent” for the trial justice to have

relied on evidence outside the record, such reliance was “harmless” in that case. Id. In view of

our reasoning in Greensleeves, plaintiff’s argument that the trial justice’s reliance on Mr.

Weisensee’s deposition testimony was harmless is not entirely without merit. However, even if

the trial justice’s references to the portions of Mr. Weisnesee’s deposition testimony which were

not presented to the jury at trial would not suffice in and of themselves to necessitate vacating

the trial justice’s decision, they do tend to suggest that his broader consideration of the evidence

may also have been based upon inaccuracies—resulting in, as we discuss infra, the overlooking

and mischaracterizing of material evidence by the trial justice and, consequently, clear error.31

It does not require an exhaustive review of the trial justice’s decision to arrive at the

ineluctable conclusion that he did, in fact, overlook and mischaracterize material evidence. In

the course of ruling on plaintiff’s motion for a new trial, the trial justice discussed only the

testimony of Mr. Weisensee and Captain Grant Parker, with a passing reference to the testimony

of Glenn Goodwin. The trial justice overlooked the material testimony of David Reposa, David

31
We further point out that the trial justice stated in his decision that Mr. Weisensee’s
testimony was “worthy of extensive comment” due to the fact that he “was the only person in the
fishhold with Mr. King at the time of the fall.” However, this statement is inconsistent with
other testimony in the record. David Webb, a deckhand on the Persistence, testified that he was
“painting” in the “forward section” of the “fish hold” on the day in question and was “20 feet”
away from plaintiff when he fell. (Emphasis added.) Moreover, Mr. Weisensee himself testified
that “there were a couple of people down [in the fish hold] that day,” and he answered in the
affirmative when asked if a “Mr. Hay” was working with him in the fish hold on the date in
question.

- 39 -
Webb, and plaintiff.32 While a trial justice need not reference all of the evidence elicited at trial,

he is required to reference enough for this Court to be satisfied that he applied the correct

standard. See Panarello v. State, Department of Corrections, 88 A.3d 350, 373 (R.I. 2014)

(stating that, whereas a trial justice is not required to “expressly reference every last bit of the

evidence * * * [he or she] need only discuss sufficient evidence for it to be clear to this Court

that the standard applied was appropriate”). In our judgment, by failing to consider the material

testimony of the three above-mentioned witnesses, the trial justice failed to reference enough

evidence for this Court to be satisfied that he applied the correct standard. See id.; Anderson v.

Johnson, 59 R.I. 241, 247, 195 A. 240, 243 (1937) (holding that a trial justice erred when he,

without “sufficient reason[,] * * * completely ignor[ed] the testimony of one group of interested

witnesses, who were apparently believed by the jury, and in accepting the testimony of the other

equally interested group, whom the jury did not believe”).

In addition to overlooking the testimony of Mr. Reposa, Mr. Webb, and plaintiff, the trial

justice, in rendering his decision, also critically overlooked portions of Mr. Weisensee’s own

testimony. The trial justice focused almost exclusively on the following statement made by Mr.

Weisensee at his deposition and read into the record at trial:

32
For example, the trial justice did not discuss the portions of plaintiff’s testimony which
reflected the fact that plaintiff did not think the stepladder was placed on a slant (although he
acknowledged that the fish hold was “pretty rutted”). This testimony was particularly relevant in
view of the consideration that (as defense counsel suggested in his cross-examination of Mr.
King), if the stepladder was not placed on a slant, there was nothing wrong with the stepladder
which Mr. Weisensee could have noticed and warned plaintiff about.
The trial justice also neglected to weigh the fact that, despite plaintiff’s testimony that he
was not carrying anything when he climbed the stepladder, Mr. Reposa testified that, when
plaintiff went up the stepladder, he was carrying “his paint brush and his container * * * of
paint.” (Therefore, presumably, plaintiff could not have grasped the stepladder for balance.)
The trial justice further ignored testimony by David Webb to the effect that he had “[m]any
times” used without incident the same stepladder that Mr. King used on the date in question.
Even these examples, which only scratch the surface of the overlooked testimony, tellingly
illustrate the fact that the trial justice clearly erred in overlooking material evidence in this case.

- 40 -
 “We’re in harm’s way all the time. Somebody’s doing something
stupid, they’re just being stupid. I don’t really care. It’s not my
problem. Go hurt yourself. I don’t care. It’s not my problem.”

The trial justice used that statement by Mr. Weisensee, coupled with testimony by Captain

Parker that stepladders were “inherently unsafe” on any vessel and that (in the words of the trial

justice) “the standard of care among sea vessels is that each member of the crew is responsible

for the safety of each other member,” as predicates for his holding that Mr. Weisensee’s failure

to warn plaintiff of his slanted stepladder deviated from the standard of care. The trial justice

further stated that, if Mr. Weisensee did not know of his duty to warn, then defendant deviated

from the standard of care because Mr. Weisensee had been inadequately trained. It was

consequently the opinion of the trial justice that he could not “conclude that the negligence count

fails completely” and that “[t]o the extent Mr. Weisensee failed to warn and knew he should do

so, Huntress was negligent.” The trial justice determined that the jury’s verdict was against the

fair preponderance of the evidence and that “[r]easonable minds could not have come to the

conclusion reached by the jury.”

What the trial justice neglected to consider was contradictory testimony from Mr.

Weisensee’s own lips suggesting that he did not simply fail to warn plaintiff with respect to his

slanted stepladder because he did not “care” or because it was not his “problem.” To begin

with, it was Mr. Weisensee’s testimony at trial that he did not see plaintiff climb the stepladder

after placing it on a slant and that he did not see plaintiff fall. 33 On direct examination at trial,

33
It should be recalled that Mr. Weisensee explained at trial that, although he had said in
his deposition that plaintiff was on the second step of the stepladder when he fell, he had merely
“assumed” that plaintiff was on the second step “based on how much time it took at the time.”
He clarified that statement during cross-examination when he testified that “two or three”
seconds elapsed between the moment when he “glanced” over and saw plaintiff setting up his
stepladder and plaintiff’s eventual fall.

- 41 -
before a portion of his deposition testimony was read into the record, the following exchange

occurred:

“[Plaintiff Counsel]: * * * [W]hat, if anything, did you say to [Mr.
King] about straightening out the ladder?

“[Mr. Weisensee]: I never said anything to him about it.

“[Plaintiff Counsel]: Now, he was walking in harm’s way and you
said nothing?

“* * *

“[Mr. Weisensee]: I didn’t realize he was in harm’s way.

“* * *

“[Mr. Weisensee]: I said I didn’t realize at the time that he was
going to climb on it like that and fall down.

“* * *

“[Plaintiff Counsel]: Why was it that you didn’t warn Mr. King?

“[Mr. Weisensee]: * * * I glanced up and I saw him setting up the
ladder and to me the way it looked like he was setting it up, it
didn’t look like it was straight up and then I just glanced back just
to do what I was doing. I was thinking to myself, you know, that’s
not really like you’re not using your head but I didn’t really feel
like it was necessary to shout at him, ‘hey, what are you doing’,
you know.

“[Plaintiff Counsel]: And that’s because you thought he was being
stupid?

“[Mr. Weisensee]: Well, I mean what do you mean? No, no.

“[Plaintiff Counsel]: And you thought what he was doing was
stupid?

“* * *

“[Mr. Weisensee]: To set up a ladder slanted so it’s not safe, it’s
not smart.

- 42 -
 “[Plaintiff Counsel]: And you didn’t care whether he was being
stupid or not, correct?

“[Mr. Weisensee]: Not that I didn’t care. I mean, I didn’t realize
that he was going to climb up and hurt himself.

“[Plaintiff Counsel]: And you didn’t care whether he hurt himself
when he was undertaking that task at that point, correct?

“[Mr. Weisensee]: I didn’t realize that he was going to hurt
himself.

“[Plaintiff Counsel]: But you didn’t care?

“[Mr. Weisensee]: If he hurt himself? I don’t know. It’s on him, I
guess, not me.

“[Plaintiff Counsel]: And it’s not really your problem, is that what
you’re going to say?

“[Mr. Weisensee]: He’s the one that has to deal with that; I mean,
not really, no, but at the time it’s not like I was thinking I’m not
going to warn him because, you know, I don’t care * * * .”

Immediately after the just-quoted exchange, the portion of Mr. Weisensee’s deposition testimony

which was relied on by the trial justice was read into the record. On cross-examination, Mr.

Weisensee was asked: “At the time that you glanced at [Mr. King] when you turned to your

right, did you know that Mr. King was going to climb the ladder while it was [slanted]?” He

replied: “No, I just saw him setting it up. I didn’t think that he -- I thought he would use his own

sense and he would see what I saw, that it was slanted * * * .”

After an exhaustive review of the record in this case and particularly the testimony of Mr.

Weisensee, it appears to us that Mr. Weisensee gave inconsistent testimony at trial and at his

deposition regarding Mr. King’s fall and why he did not warn Mr. King about the slanted

stepladder. We have repeatedly held that “neither a witness’s prior contradictory statements nor

the inconsistencies in his testimony inhibit a fact finder’s right to accept the witness as credible,

- 43 -
and to pick and choose from his testimony what portions he deems worthy of belief.” Russian v.

Lipet, 103 R.I. 461, 464, 238 A.2d 369, 371 (1968); see also Rhode Island Consumers’ Council

v. Smith, 111 R.I. 271, 295-96, 302 A.2d 757, 772 (1973); Madeira v. Pawtucket Housing

Authority, 105 R.I. 511, 515, 253 A.2d 237, 239 (1969). Although a trial justice, in properly

ruling on a motion for a new trial, must also assess the credibility of witnesses, the justice

commits clear error when he or she completely overlooks testimony which is materially

contradictory to the testimony on which the justice bases his or her determination. It is clear that

the above-quoted testimony of Mr. Weisensee, which was inconsistent with the portion of the

testimony on which the trial justice relied, was not referred to in the trial justice’s decision. The

only arguable reference comes in footnote two of the trial justice’s decision, where he states as

follows:

“Mr. Weisensee also suggests he did not see Mr. King go up the
ladder which is blatantly contradictory to the testimony he gave
weeks earlier. Such self-serving statements lack credibility.”

This statement serves to further illustrate the trial justice’s error in not taking into account Mr.

Weisensee’s testimony about not knowing that Mr. King was going to climb the stepladder; the

trial justice discussed only the portions of Mr. Weisensee’s testimony that he deemed to be

credible, overlooking the rest. In this Court’s judgment, members of the jury, acting in their

capacity as fact-finders, were well within their discretion to credit certain portions of the

contradictory testimony of Mr. Weisensee, even if the portions which they chose to find credible

differed from those that the trial justice was inclined to find credible. See Russian, 103 R.I. at

464, 238 A.2d at 371.

By ignoring testimony which did not support his determination, the trial justice in the

instant case overlooked material evidence in finding that reasonable jurors could not differ and

- 44 -
that the verdict was against the fair preponderance of the evidence. In the situation presented in

this case, where there was inconsistent testimony from a specific witness some of which the

jurors could have found to be credible and some of which the trial justice found to be credible,

one simply cannot say that reasonable minds could not differ on the outcome of the case; thus, it

is our judgment that in this case reasonable minds could, and did, differ.34 Accordingly, we hold

that the trial justice committed clear error in granting plaintiff’s motion for a new trial. See

34
On June 30, 2011 (twenty-nine days after his June 1 decision on the motions for a new
trial), the trial justice ruled on plaintiff’s motion for judgment as a matter of law. See Super. R.
Civ. P. 50. The plaintiff contended that he was entitled to judgment as a matter of law on Count
Two (negligence under the Jones Act). In the course of denying plaintiff’s motion, the trial
justice stated:

“Mr. King’s motion relies on the testimony of Mr.
Weisensee, who testified that he did not warn. However, Mr.
Weisensee’s credibility was very much in issue – which led to the
admission of his deposition testimony. Mr. Weisensee was a key
witness to the negligence. He claimed he saw the ladder leaning,
saw Mr. King was about to fall and took no action. If his testimony
is believed, Mr. King’s case is strengthened. If it is discounted
completely, Mr. King’s case is not as clear. Reasonable jurors
could have reached different conclusions concerning Mr.
Weisensee’s credibility and what actually happened as Mr. King
climbed the ladder.”

We recognize that the trial justice, in ruling on a motion for judgment as a matter of law (rather
than a motion for a new trial), was not authorized to evaluate the credibility of the witnesses and
was required to draw all inferences in favor of the nonmoving party. See Oliveira v. Jacobson,
846 A.2d 822, 829 (R.I. 2004). However, we note that the trial justice, when ruling on the
motion for judgment as a matter of law, also did not reference Mr. Weisensee’s testimony at trial
which tended to suggest that he did not see Mr. King climb the stepladder and did not warn Mr.
King about the slanted stepladder because he did not know that he was going to climb the
stepladder and fall.
The trial justice’s decision also emphasizes how crucial the credibility of Mr.
Weisensee’s inconsistent testimony was to this case. We have held that, in such situations, it is
the prerogative of the fact-finder to “pick and choose” which testimony it deems to be believable.
Russian v. Lipet, 103 R.I. 461, 464, 238 A.2d 369, 371 (1968). The trial justice is not free to
disregard the decision of the jurors simply because he would find different portions of the
inconsistent testimony to be credible.

- 45 -
Botelho, 970 A.2d at 545 (“If the trial justice determines that the evidence is evenly balanced or

is such that reasonable minds in considering the same evidence could come to different

conclusions, the trial justice must allow the verdict to stand.”); see also Bajakian, 880 A.2d at

851; Marcotte v. Harrison, 443 A.2d 1225, 1232 (R.I. 1982).

In addition to overlooking material evidence, the trial justice also misconceived the

evidence on which he did rely. He interpreted the statement of Mr. Weisensee on which he

relied—namely, Mr. Weisensee’s deposition testimony that he did not care if a fellow crew

member was injured—to mean that Mr. Weisensee, when he looked over and saw that Mr.

King’s stepladder was slanted, “appreciated the risk” and made a conscious choice not to warn

Mr. King about the apparent danger. However, that conclusion required a large inferential leap

on the part of the trial justice. The statement itself reflects nothing more than a general lack of

concern for the safety of his fellow crew members; Mr. Weisensee did not specifically state, that,

because he generally lacks concern for their safety, he deliberately failed to warn Mr. King on

May 31, 2006 that his stepladder was on a “slant.” Moreover, there is no testimony by Mr.

Weisensee indicating that he knew that Mr. King would climb the stepladder and be at risk of

injuring himself. It is clear to this Court that a jury could have heard the same statement as the

one on which the trial justice relied and come to the conclusion that Mr. Weisensee did not

knowingly opt not to warn Mr. King in this particular instance, leading us once again to the

conclusion that reasonable minds could differ. See Botelho, 970 A.2d at 545. Accordingly, it is

our opinion that the trial justice misconceived Mr. Weisensee’s testimony.

One final point supports our conclusion—namely, that the trial justice’s determination

that Mr. Weisensee’s breach of the duty to warn was a proximate cause of the harm (which

determination was also extrapolated from the same just-discussed small portion of Mr.

- 46 -
Weisensee’s deposition testimony on which the trial justice relied), was in error. Even though

the threshold for proving proximate cause in a claim under the Jones Act is very low, the trial

justice overlooked evidence that could indicate a different proximate cause for Mr. King’s fall

and injury. See Bielunas, 621 F.3d at 76. We refer to Mr. Reposa’s testimony that plaintiff was

climbing the stepladder while holding a paintbrush and a container of paint. Once again,

depending on which testimony is deemed more credible, reasonable minds could certainly differ

in determining what proximately caused Mr. King’s fall. The varying testimony of Mr.

Weisensee and the other witnesses at trial regarding the circumstances of plaintiff’s fall leads us

to conclude that the trial justice’s determination that “Mr. Weisensee’s reluctance to warn had

significant ramifications which the jury failed to appreciate” was without support and, thus, was

clearly erroneous.

In view of the just-discussed incidents where the trial justice overlooked or misconceived

material evidence, it is clear to this Court that the trial justice committed clear error when he

determined that the verdict was against the fair preponderance of the evidence and granted

plaintiff’s motion for a new trial on Counts Two and Three for negligence under the Jones Act

and breach of the warranty of seaworthiness. Accordingly, we vacate the trial justice’s decision

in that regard.

C

Prejudgment Interest

The last issue which defendant raises on appeal is its contention that, in ruling about the

prejudgment interest issue, the trial justice erred when he relied upon Rhode Island’s

prejudgment interest statute35 as opposed to the pertinent principles of federal maritime law.

35
General Laws 1956 § 9-21-10(a) reads as follows:

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According to defendant, in an action based on federal maritime law, states may not apply their

own substantive law when it is in conflict with substantive federal maritime law. The defendant

contends that federal maritime law on prejudgment interest is substantive (not procedural) and

that, therefore, the question of whether or not to award prejudgment interest (and how much, if

any, to award) was one for the jury to determine. The defendant states: “[T]he trial judge’s

decision to apply * * * Rhode Island’s prejudgment interest statute to plaintiff’s award

is * * * without precedent in any state or federal court.” Additionally, defendant posits that it

was improper for the trial justice to determine that defendant bore the burden of requesting that

the question of whether or not to award prejudgment interest (and how much, if any, to award)

be presented to the jury, rather than allocating that burden where defendant contends it

belongs—namely, with plaintiff.

The plaintiff responds by contending that preemption (which is how plaintiff has chosen

to characterize defendant’s argument) is an affirmative defense—which defendant failed to plead

and, consequently, may not raise now. He further contends that any issue with respect to

prejudgment interest was waived by defendant because defendant failed to object before the jury

left the courtroom to begin deliberations. Finally, plaintiff avers that federal maritime law leaves

the awarding of prejudgment interest to the discretion of the trial justice.

“In any civil action in which a verdict is rendered or a
decision made for pecuniary damages, there shall be added by the
clerk of the court to the amount of damages interest at the rate of
twelve percent (12%) per annum thereon from the date the cause of
action accrued, which shall be included in the judgment entered
therein. Post-judgment interest shall be calculated at the rate of
twelve percent (12%) per annum and accrue on both the principal
amount of the judgment and the prejudgment interest entered
therein. This section shall not apply until entry of judgment or to
any contractual obligation where interest is already provided.”

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 In our judgment the following explanation of the concept of prejudgment interest is

particularly well articulated:

“If justice were immediate, there would never be an award
of prejudgment interest.[] The injured party would receive an
enforceable judgment immediately, with no loss in value from the
time value of money. Because justice often takes many years to
achieve, interest is added to the original judgment to ensure that
compensation is complete.[] These calculations are ubiquitous,
since the laws of most U.S. jurisdictions provide for interest on
legal judgments from the time the claim arose until the date of
judgment.[] Such interest is called prejudgment interest.” Michael
S. Knoll, A Primer on Prejudgment Interest, 75 Tex. L. Rev. 293,
294 (1996) (footnotes omitted).

The question before us with respect to prejudgment interest in the instant case is twofold.

First, we must address whether or not the trial justice properly invoked Rhode Island statutory

law relative to prejudgment interest or whether he should have applied federal maritime law.

Second, (based on what will ultimately be our conclusion that the trial justice should have

applied federal maritime law) we must address how the principles of federal maritime law with

respect to prejudgment interest should have been applied in this case.

We begin our analysis with the question of whether state law or federal maritime law

with respect to prejudgment interest should have been applied. The United States Supreme

Court has held that the “savings to suitors clause,”36 which gives state courts jurisdiction (albeit

not exclusive jurisdiction) over a federal maritime claim, “allows state courts to entertain in

personam maritime causes of action, but in such cases the extent to which state law may be used

to remedy maritime injuries is constrained by a so-called reverse-Erie doctrine which requires

that the substantive remedies afforded by the States conform to governing federal maritime

standards.” Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23 (1986) (internal

36
The “savings to suitors clause” is set forth in 28 U.S.C. § 1333(1). See generally, Grant
Gilmore & Charles L. Black, Jr., The Law of Admiralty, ch. I, § 1-13 at 37 (2d ed. 1975).

- 49 -
quotation marks omitted). The United States Court of Appeals for the First Circuit likewise has

stated: “It is well settled that by force of the Constitution itself, when a common law action is

brought, whether in a state or in a federal court, to enforce a cause of action cognizable in

admiralty, the substantive law to be applied is the same as would be applied in an admiralty

court—that is, the general maritime law * * * .” Robinson v. Pocahontas, Inc., 477 F.2d 1048,

1052-53 (1st Cir. 1973); see also Carey v. Bahama Cruise Lines, 864 F.2d 201, 207 (1st Cir.

1988) (stating that states may not “modify or displace essential features of the substantive

maritime law”) (internal quotation marks omitted). The principle which we draw from those

cases is that, in an admiralty action in state court, issues which would be considered

“substantive” are governed by federal maritime law. Therefore, if prejudgment interest is a

substantive issue, then the trial justice in the instant case was required to apply federal maritime

law, rather than Rhode Island statutory law.

We find guidance in our own jurisprudence, which, while not directly on point, provides

some enlightenment as we endeavor to determine whether prejudgment interest is a substantive

issue. In L.A. Ray Realty v. Town Council of Cumberland, 698 A.2d 202, 213-14 (R.I. 1997),

this Court, applying federal law in an action based on 42 U.S.C. § 1983, stated that “federal

courts in 42 U.S.C. § 1983 litigation generally view the availability of prejudgment interest as a

question of federal law.” We proceeded to state as follows:

“[S]tate law requirements may not be applied if their application
would contravene the purpose of a federal law or policy, or if
different outcomes would result depending on whether 42 U.S.C.
§ 1983 claims were brought in federal or state court, thereby
thwarting the federal interest in uniformity. * * * Therefore, a state
limitation on the availability of prejudgment interest may not be
applied if such a limitation would contravene the goal of § 1983 to
fully compensate the injured party.” L.A. Ray Realty, 698 A.2d at
214.

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 The concerns which we expressed in L.A. Ray Realty with respect to “the federal interest

in uniformity” and the goals of state and federal law are also present in this case. Federal

maritime law leaves the issue of whether to award prejudgment interest (and in what amount, if

any) to the discretion of the fact-finder (see infra). In contrast, Rhode Island’s statute with

respect to prejudgment interest provides for the application of 12 percent interest by the clerk in

any “civil action in which a verdict is rendered or a decision made for pecuniary damages;” it is a

ministerial act which does not allow for any discretion by the judge or the jury. Section 9-21-10.

Thus, applying state law in this context would result in “different outcomes”—depending on

whether a particular federal admiralty action was brought in federal or state court. L.A. Ray

Realty, 698 A.2d at 214; see Gilmore & Black, ch. I, § 1-17 at 48 (“[S]tate legislation is clearly

invalid where it actually conflicts with the established general maritime law * * * .”); see also

Carey, 864 F.2d at 207. The real possibility of such “different outcomes” indicates that

prejudgment interest should be considered a substantive issue, in order to provide uniformity and

prevent forum shopping. On that point, we are in agreement with the following statement by the

Supreme Judicial Court of Massachusetts in reference to the issue of whether state or federal law

should be applied in an admiralty case with respect to the awarding of prejudgment interest:

“Maintaining disparate rules between the State and Federal
courts * * * would foster inconsistent results on a substantive
matter which often constitutes a considerable portion of the
damages recovered. In turn, the guarantee of prejudgment interest
to a successful plaintiff in a State court [as would be the case under
Massachusetts state law] would encourage forum shopping.”
Militello v. Ann & Grace, Inc., 576 N.E.2d 675, 679 (Mass. 1991);
see Hanna v. Plumer, 380 U.S. 460, 468 (1965) (discussing Erie
Railroad Co. v. Tompkins, 304 U.S. 64 (1938) and stating that “the
twin aims of the Erie rule [are] discouragement of forum-shopping
and avoidance of inequitable administration of the laws.”).

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In addition to the application of state law resulting in a lack of uniformity and forum shopping,

the goals of Rhode Island state law and federal maritime law with respect to awarding

prejudgment interest are inconsistent; unlike the federal law, which leaves to the fact-finder the

issue of whether or not prejudgment interest (and how much, if any, to award) is equitable in a

particular case, one of the purposes of the Rhode Island state statute is to “encourag[e] the early

settlement of claims.” Martin v. Lumbermen’s Mutual Casualty Co., 559 A.2d 1028, 1031 (R.I.

1989); see Pray v. Narragansett Improvement Co., 434 A.2d 923, 930 (R.I. 1981). For all of the

foregoing reasons, this Court’s precedent strongly suggests that prejudgment interest should be

considered a substantive issue.

In addition, our review of federal case law and the case law from other jurisdictions

clearly indicates that prejudgment interest has been considered to be a substantive issue by

numerous courts. We first note that, although it has not specifically addressed prejudgment

interest in the context of an admiralty action, we find some helpful guidance in the teachings of

the United States Supreme Court; it has held that the “proper measure of damages is inseparably

connected with the right of action,” suggesting that any issues relating to damages are

substantive. Chesapeake & Ohio Railway Co. v. Kelly, 241 U.S. 485, 491 (1916). The First

Circuit has specifically held that any issue which affected the “amount of damages” was

substantive and required the application of federal law. Robinson, 477 F.2d at 1053 (internal

quotation marks omitted); see Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 741 (1st

Cir. 1982) (“Because Count I of the complaint stated a cause of action arising under [a federal]

Act, whether or not the trustee is entitled to prejudgment interest as an element of damages is a

matter of federal law.”). The Supreme Judicial Court of Massachusetts has similarly stated:

“Federal and State courts agree that because it concerns a substantive remedy,[] the questions

- 52 -
whether to, and who may, award prejudgment interest are governed by the Federal maritime law

and not State law.” Militello, 576 N.E.2d at 678 (footnote omitted). Indeed, numerous scholarly

writings have echoed the just-referenced holdings of the First Circuit and the Supreme Judicial

Court of Massachusetts. See, e.g., Norman M. Stockman, Admiralty Law for the Land-Side

Alabama Lawyer, 71 Ala. Law. 296, 303 (2010) (“[T]he availability of prejudgment interest is a

matter of substantive admiralty law.”); Michael F. Sturley & David C. Frederick, Prejudgment

Interest in Seaman’s Personal Injury Cases: Supreme Court Precedent Lost in a Sea of

Procedural Confusion, 33 J. Mar. L. & Com. 423, 427 (2002) (“The awarding of prejudgment

interest has long been held * * * to be part of the substantive law applied by the trial

court * * * .”).

After careful consideration of the state of the law with respect to prejudgment interest in

an admiralty action, we now hold that in such an action prejudgment interest is a substantive

issue. Accordingly, it was error for the trial justice to apply Rhode Island state law on such a

substantive issue. The trial justice should have applied federal maritime law. In order to provide

clarity with respect to this somewhat complicated issue, we proceed by discussing what federal

maritime law demands with respect to prejudgment interest.

As the United States Supreme Court has recognized, “[t]hroughout our history, admiralty

decrees have included provisions for prejudgment interest.” City of Milwaukee v. Cement

Division, National Gypsum Co., 515 U.S. 189, 194 (1995); see also The Amiable Nancy, 16 U.S.

(3 Wheat.) 546, 562-63 (1818) (augmenting the damages awarded by a lower court and directing

that the additional funds bear prejudgment interest); Del Col v. Arnold, 3 U.S. (3 Dall.) 333, 334

(1796) (affirming a decree which provided for interest from “the day of capture”). However, as

plaintiff recognizes, there is no consensus among the federal circuits as to the type of admiralty

- 53 -
cases which are eligible for the awarding of prejudgment interest, who is responsible for

determining if prejudgment interest should be awarded, and who has the discretion to determine

how much prejudgment interest is to be awarded. See 80 A.L.R. Fed. Recovery of Prejudgment

Interest in Actions under the Federal Employers’ Liability Act or Jones Act 185, § 11, § 15 at

217, 226 (1986) (recognizing that some courts allow prejudgment interest to be awarded in

actions under the Jones Act and some do not); see, e.g., Jones v. Spentonbush-Red Star Co., 155

F.3d 587, 593 (2d Cir. 1998) (stating that “pre-judgment interest should be awarded in admiralty

cases absent exceptional circumstances”); Wyatt v. Penrod Drilling Co., 735 F.2d 951, 956 (5th

Cir. 1984) (stating that prejudgment interest may not be awarded on a claim under the Jones Act,

but may be awarded on a “maritime claim”); Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1053

(1st Cir. 1973) (holding that the jury has discretion as to whether or not to award prejudgment

interest in an admiralty action); 2 Am.Jur.2d Admiralty § 215 at 694 (2004) (stating that “[a]

court has discretion to award prejudgment interest in an admiralty case”).37 In our judgment, the

United States Court of Appeals for the First Circuit articulated the most sensible approach in

Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1052-53 (1st Cir. 1973), and it is that approach

which this Court will follow.

In Robinson, the court was confronted with an action brought by an injured seaman

against the company which chartered the vessel on which he was injured; the action was brought

under the Jones Act and also included claims for “unseaworthiness and maintenance and cure

under the general maritime law.” Id. at 1049. The company that chartered the vessel argued on

37
The lack of uniformity with respect to the awarding of prejudgment interest in a federal
maritime action has been noted in admiralty scholarship. See, e.g., David Gray Douglas, The
Current Status of the Availability of Prejudgment Interest in Admiralty, 17 Tul. Mar. L.J. 283,
283 (1993) (“[T]he federal circuit courts have developed different theories governing what types
of awards can qualify for prejudgment interest and when such awards can be granted.”).

- 54 -
appeal that the trial justice erred in awarding prejudgment interest to the plaintiff. Id. at 1052.

After holding that federal law must be applied on the issue of prejudgment interest, the First

Circuit proceeded to hold that prejudgment interest in a federal maritime action is properly left to

the discretion of the jury. Id. at 1052-53; see also Cordero v. De Jesus-Mendez, 922 F.2d 11, 13

(1st Cir. 1990) (“There can be no doubt that in this circuit the decision to award prejudgment

interest in a federal question case lies within the sole province and discretion of the jury.”). Even

though the plaintiff had included “demands for interest in his complaint,” since the award of

prejudgment interest was in the jury’s discretion and “[the plaintiff] did not request that the jury

be instructed that it might, in its discretion, add pre-judgment interest to its award,” the court

modified the trial justice’s judgment by “striking out the award of pre-judgment interest.”

Robinson, 477 F.2d at 1053.

We further note that the holding of the Supreme Judicial Court of Massachusetts in its

decision in Militello, 576 N.E.2d at 678-79, was substantially similar to the holding of the First

Circuit in Robinson.38 In Militello, the court held, that “in an action * * * in which both Jones

Act and unseaworthiness claims are tried before a jury, the questions whether to award

prejudgment interest, and at what rate, are to be decided by the jury.” Id. at 678. The court

further held that, “[b]ecause the plaintiff in this case did not correctly pursue prejudgment

interest [in the form of a jury award], he may not now recover it.” Id. at 679. We are in

agreement with the holdings in Robinson and Militello.

38
The plaintiff’s attempt to distinguish Militello v. Ann & Grace, Inc., 576 N.E.2d 675, 679
(Mass. 1991), by arguing that in that case the defendant requested a jury instruction on
prejudgment interest before the jury retired to deliberate is unavailing. The defendant in the
instant case did not have the burden of requesting such a jury instruction; that burden was
unquestionably plaintiff’s.

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 The plaintiff avers that defendant, by not requesting a jury instruction until after the

jurors left the courtroom to deliberate, thereby waived any contention that the issue of

prejudgment interest should have been presented to the jury.39 We find that assertion to fly in the

face of both common sense and the foundational principles of our adversary system; requiring

defendant to ask for a jury instruction which could ultimately lead to that same defendant being

required to pay an even higher damages award to plaintiff is, in our estimation, more than

quixotic; that approach would be utterly inconsistent with the traditional thesis-antithesis method

which characterizes the Anglo-American litigation process. It was plaintiff who would have

benefited from prejudgment interest on any jury award in his favor; it logically follows that it

was plaintiff who was responsible for requesting a jury instruction with respect to prejudgment

interest. Robinson, 477 F.2d at 1053.

Thus, in our judgment, the trial justice in the instant case erred in applying Rhode

Island’s prejudgment interest statute; under federal maritime law (which should have been

applied), the issue of prejudgment interest is within the discretion of the jury and plaintiff bore

the burden of requesting a jury instruction regarding prejudgment interest.

IV

Conclusion

In conclusion, we hold: (1) that the trial justice’s unearned wages jury instruction, which

was part of his instructions to the jury with respect to the plaintiff’s claim for maintenance and

cure, was erroneous and resulted in prejudice to the defendant; (2) that the trial justice

39
The plaintiff also argues, with respect to the issue of prejudgment interest, that
preemption is an affirmative defense which defendant failed to plead and which is therefore
waived. We respond to that argument by simply noting that preemption is not at issue in this
case; we are instead concerned with a choice of law issue.

- 56 -
overlooked and misconceived material evidence in the course of granting the plaintiff’s motion

for a new trial on his claims for negligence under the Jones Act and breach of the warranty of

seaworthiness; and (3) that the trial justice erred in applying Rhode Island’s prejudgment interest

statute, rather than following federal maritime law, which would have required the plaintiff to

request an instruction whereby the issue of awarding prejudgment interest (vel non) would be

submitted to the jury.

For the reasons set forth in this opinion, we vacate the trial justice’s denial of the

defendant’s motion for a new trial with respect to the claim for maintenance and cure; we

likewise vacate the trial justice’s grant of the plaintiff’s motion for a new trial on the claims of

negligence under the Jones Act and breach of the warranty of seaworthiness. Additionally, we

hold that the trial justice’s reliance upon Rhode Island’s prejudgment interest statute was in

error. The record may be returned to the Superior Court with instructions that a new trial be

conducted only on the claim for maintenance and cure.

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 RHODE ISLAND SUPREME COURT CLERK’S OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: Jody King v. Huntress, Inc.

CASE NO: No. 2011-341-Appeal.
No. 2012-202-Appeal.
No. 2012-203-Appeal.
(WC 08-415)

COURT: Supreme Court

DATE OPINION FILED: July 2, 2014

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY: Associate Justice William P. Robinson

SOURCE OF APPEAL: Washington County Superior Court

JUDGE FROM LOWER COURT:

Associate Justice Jeffrey A. Lanphear

ATTORNEYS ON APPEAL:

For Plaintiff: Merlyn P. O’Keefe, Esq.

For Defendant: Martin K. DeMagistris, Esq.