Bertram v. Freeport McMoran, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 93-7575
_____________________

HUGH THOMAS BERTRAM,

Plaintiff,

VERSUS

FREEPORT McMORAN, INC., ET AL.,

Defendants,

HOUMA INDUSTRIES, INC.,

Defendant-Appellant,

VERSUS

ENERGY CATERING SERVICES, INC.,

Defendant-Appellee.

____________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_____________________________________________________

(October 7, 1994)

Before POLITZ, Chief Judge, and DUHÉ and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily in issue are (1) whether an employer's right to be

reimbursed by third-party tortfeasors for maintenance and cure paid

by the employer to its injured employee is barred by the employee's

pre-trial settlements with the third-parties; and, (2) in that the

employer was not assigned fault, but the employee was, resulting in

the third-party tortfeasors' apportioned fault totalling less than

100%, whether the maintenance and cure should be reimbursed totally
by the third-party tortfeasors, or whether, instead, each should

reimburse only according to its apportioned fault, resulting in

less than full reimbursement.

Energy Catering Services, Inc., paid maintenance and cure for

its employee, Hugh Thomas Bertram, as a result of an accident for

which no fault was assigned Energy, Bertram was found 60% at fault,

and Houma Industries, Inc., and another third-party were each

apportioned 20% of the fault. Before trial, Bertram settled with

Energy, Houma, and the other tortfeasor. Houma contests having to

reimburse Energy for the maintenance and cure, primarily because of

a claimed settlement bar which it asserts springs, in part, from

the modern trend in admiralty of apportioning fault. And, as one

of its alternative bases for challenging the judgment, Houma

maintains, again seeking shelter under that trend, that it should

not have to reimburse 50% of the maintenance and cure, because it

was apportioned only 20% of the fault. We AFFIRM.

I.

Bertram, an Energy employee, was assigned to work aboard a

drilling barge owned by Offshore Pipelines, Inc. (OPI). The vessel

was anchored next to a fixed oil and gas platform owned by

Freeport-McMoran, Inc., and Freeport-McMoran Oil & Gas Co.

(collectively, Freeport) and located on the Outer Continental Shelf

off the coast of Louisiana. Houma Industries, Inc., was a

contractor on the platform. In November 1990, while returning to

the barge from the platform, Bertram was injured on the platform by

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a falling ladder, which Houma's employees had used and had been

directed to secure.

Bertram sued under the Jones Act and general maritime law,

seeking recovery from Energy for maintenance and cure; and from

Energy and OPI for negligence and unseaworthiness. He later added

negligence claims against Freeport and Houma. Energy cross-claimed

against Houma and Freeport for contribution or indemnity; they did

likewise against Energy.

Prior to trial, Bertram settled with all defendants: OPI

(shipowner), Freeport (platform owner), Houma (platform

contractor), and Energy (employer). Therefore, only the cross-

claims remained: Energy's against Houma and Freeport for

maintenance and cure reimbursement; theirs against Energy for

indemnity or contribution.

In July 1993, the district court ruled in favor of Energy.1

It found Energy without fault for Bertram's injuries, and

apportioned fault as follows: Bertram, 60%; Houma and Freeport,

each 20%. But, by an amended judgment, and although Houma and

Freeport had each been found only 20% at fault, each was required

to reimburse Energy for 50% of the approximately $143,000 paid for

maintenance and cure. Only Houma appeals.

1
The parties agreed to a summary disposition, with each
submitting proposed findings of fact and conclusions of law,
together with depositions and documentary evidence.

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 II.

Maintenance and cure is a seaman's right under general

maritime law to receive a "per diem living allowance for food and

lodging [maintenance] and ... payment for medical, therapeutic and

hospital expenses [cure]". Black's Law Dictionary 954 (6th ed.

1991); Davis v. Odeco, 18 F.3d 1237, 1245-46 (5th Cir.), petition

for cert. filed, 62 U.S.L.W. 3863 (U.S. June 10, 1994) (No. 93-

1986). A shipowner must pay maintenance and cure to any seaman who

"becomes ill or suffers an injury while in the service of a

vessel", regardless of whether either party was negligent. 1B

Ellen M. Flynn et al., Benedict on Admiralty § 42, at 4-5 (7th ed.

1993) (hereinafter cited as Benedict); see also Virginia A.

McDaniel, Recognizing Modern Maintenance and Cure as an Admiralty

Right, 14 Fordham Int'l L.J. 669 (1991). The right terminates only

when "maximum cure has been obtained". 1B Benedict § 51, at 4-73

(footnote omitted).2

2
One driving factor behind maintenance and cure is that seamen
are peculiarly "poor and friendless" and therefore deserve special
treatment, regardless of their own behavior. Perhaps the most
famous (and often-quoted) language about the special duty owed to
seamen by their employers may be Justice Story's, from Harden v.
Gordon, 11 Fed. Cas. 480 (C.C.D. Me. 1823), the landmark case for
modern American maintenance and cure:

Seamen are by the peculiarity of their lives
liable to sudden sickness from change of climate,
exposure to perils, and exhausting labour. They
are generally poor and friendless, and acquire
habits of gross indulgence, carelessness, and
improvidence. If some provision be not made for
them in sickness at the expense of the ship, they
must often in foreign ports suffer the accumulated
evils of disease, poverty, and sometimes perish
from the want of suitable nourishment....

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 Houma asserts that the district court erred (1) by holding

that Energy's maintenance and cure reimbursement cross-claim

survived Bertram's pre-trial settlements with all defendants; (2)

by granting Energy recovery of the total medical costs it paid; (3)

by finding Houma at fault; and (4) by requiring Houma to pay 50% of

the maintenance and cure, rather than 20% (its apportioned fault).

Needless to say, findings of fact are reviewed only for clear

error, Fed. R. Civ. P. 52(a); e.g., Anderson v. City of Bessemer

City, 470 U.S. 564, 573 (1985); conclusions of law are reviewed

freely. E.g., Salve Regina College v. Russell, 499 U.S. 225, 231

(1991).

A.

Whether Energy's maintenance and cure reimbursement claim

against Houma was barred by Bertram's pre-trial settlements with

all defendants is a legal issue, reviewed freely, that touches upon

***

On the other hand, if these expenses are a
charge upon the ship, the interest of the owner
will be immediately connected with that of the
seamen. The master will watch over their health
with vigilance and fidelity. He will take the best
methods, as well, to prevent diseases, as to ensure
a speedy recovery from them. He will never be
tempted to abandon the sick to their forlorn fate,
but his duty, combining with the interest of his
owner, will lead him to succor their distress, and
shed a cheering kindness over the anxious hours of
suffering and despondency.

Id. at 483, quoted in, inter alia, 1 Thomas J. Schoenbaum,
Admiralty and Maritime Law § 6-28, at 351 (2d ed. 1994)
(hereinafter cited as Schoenbaum); see also Farrell v. United
States, 336 U.S. 511, 516 (1949) (Employer knows "he must maintain
and care for even the erring and careless seaman, much as a parent
would a child".), quoted in 1 Schoenbaum § 6-31, at 356.

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the trend in maritime law of apportioning fault. In essence, Houma

contends that Fifth Circuit precedent on maintenance and cure

reimbursement, especially Savoie v. Lafouche Boat Rentals, Inc.,

627 F.2d 722 (5th Cir. Unit A 1980) (employer without fault), and

Adams v. Texaco, Inc., 640 F.2d 618 (5th Cir. 1981) (employer

partly at fault), no longer control. This is addressed best by

first retracing, in considerable detail, the steps that led to

recovery over against a third-party tortfeasor for maintenance and

cure.3

1.

As reflected in the earlier brief discussion of maintenance

and cure, the district court stated correctly that Energy, as

Bertram's employer, owed him "an absolute, non-delegable duty" to

provide maintenance and cure, regardless of Bertram's being at

fault, and Energy being blameless. E.g., Davis v. Odeco, 18 F.3d

at 1246 (owner of vessel "has a duty to pay maintenance and cure

which is unrelated to any duty of care under tort law") (citing

Adams, 640 F.2d at 620).

3
Energy characterizes its claims against Houma and Freeport as
for "indemnity and/or contribution"; it seeks "full reimbursement
... for the amounts paid in maintenance and cure, because Energy
... was found free from fault in the accident." Indemnity permits
the indemnitee "to shift all the loss onto another tortfeasor",
whereas contribution "requires that each tortfeasor pay the
proportion of the damages attributable to its actions." Hardy v.
Gulf Oil Co., 949 F.2d 826, 830 (5th Cir. 1992) (citations
omitted). Because Energy seeks "full reimbursement" from Houma and
Freeport (regardless of the fact that Energy's employee's
(Bertram's) negligence also contributed to the accident (60% at
fault) that necessitated the maintenance and cure), its claim is
for indemnity.

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 A seaman's right to maintenance and cure is
implied in the employment contract between the
seaman and shipowner. It "in no sense is
predicated on the fault or negligence of the
shipowner." Thus, an owner of a vessel is almost
automatically liable [for maintenance and cure].

Brister v. A.W.I., Inc., 946 F.2d 350, 360 (5th Cir. 1991)

(footnote and internal citations omitted; quoting Aguilar v.

Standard Oil Co. of New Jersey, 318 U.S. 724, 730 (1943)). In

addition, the seaman's right to receive, and the shipowner's duty

to pay, maintenance and cure is independent of any other source of

recovery for the seaman (e.g., recovery for Jones Act claims).

Brister, 946 F.2d at 361.

Although a seaman's negligence does not negate a shipowner's

duty to pay maintenance and cure, the shipowner may recover those

payments from a third-party whose negligence partially or wholly

caused the seaman's injury. E.g., Savoie, 627 F.2d at 723 (even

where seaman was partially responsible, it is "well-established"

that employer may recover maintenance and cure costs) (citing Tri-

State Oil Tool Indus., Inc. v. Delta Marine Drilling Co., 410 F.2d

178, 186 (5th Cir. 1969)).

Our cases allowing such a recovery follow the holding of the

landmark decision in Jones v. Waterman S.S. Corp., 155 F.2d 992,

997-1001 (3d Cir. 1946). There, a seaman employed by Waterman was

walking across the pier near his ship and fell into a ditch along

a railroad siding owned by Reading. Id. at 994. He sued Reading,

recovered damages from it, and executed a release in favor of it.

Id. Thereafter, when the seaman sued Waterman for maintenance,

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cure, and wages, Waterman impleaded Reading for indemnity for any

recovery by the seaman. Id. at 995.

The district court held that, the seaman having received a

judgment against Reading, he could not maintain the action against

Waterman, because a second judgment for the seaman could be a

double recovery. Id. And, it refused to permit Waterman's cross-

claim against Reading, on the theory set out in The Federal No. 2,

21 F.2d 313 (2d Cir. 1927) (because maintenance and cure stems from

contract between seaman and employer, employer cannot recover over

against a third-party tortfeasor, absent a contractual or other

legal relationship between employer and tortfeasor).4 Id. The

Third Circuit reversed, finding The Federal's reasoning inapposite.

Waterman, 155 F.2d at 994, 1001.

In holding that the seaman could proceed against Waterman, and

that Waterman could seek recovery over against Reading, the Third

Circuit distinguished the seaman's claims against Reading for

4
Most courts followed Waterman's reasoning, rather than that of
The Federal. Within the Second Circuit, decisions casting doubt on
the continued validity of The Federal culminated in its being
overruled in 1988 (a fact not noted by Houma, which urges us to
follow The Federal). Black v. Red Star Towing & Transp. Co., Inc.,
860 F.2d 30, 34 (2d Cir. 1988) (en banc) ("after sailing in Second
Circuit waters for six decades, The Federal No. 2 formally is
abandoned") (citing, inter alia, Savoie and Adams); see also Grant
Gilmore and Charles L. Black, The Law of Admiralty, § 6-18, at 318-
19 & n.93j (hereinafter cited as Gilmore and Black); 1B Benedict §
47 at 4-27 (discussing criticism of The Federal); Gooden v.
Sinclair Refining Co., 378 F.2d 576 (3d Cir. 1967) (following
Waterman); Gore v. Clearwater Shipping Co., 378 F.2d 584 (3d Cir.
1967) (same); United States v. The Tug Manzanillo, 310 F.2d 220,
223 (9th Cir. 1962) (same); contra, United States v. Gallagher, 467
F.2d 1103 (9th Cir. 1972) (following The Federal).

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damages (sounding in tort), from his claims against Waterman for

maintenance, cure, and lost wages (sounding in contract), stating:

[The seaman] could not have recovered maintenance
and cure and wages from Reading, nor may he recover
damages from Waterman. It follows that Waterman
and Reading were not joint tortfeasors. In fact,
Waterman committed no tort. It is not alleged that
it did. Under no theory of law can [the seaman's]
release to Reading release Waterman.

Id. at 996.

As for Waterman's claim against Reading, the court held:

It would seem to follow ... as a matter of logic
that if the master by virtue of his contract ...
with the servant is compelled to maintain and cure
his servant ... the master should be permitted to
recover these sums from the wrongdoer....

Id. at 999 (footnote omitted). In so holding, Waterman relied in

part on Pennsylvania law (holding that an employer has a right to

recover against a tortfeasor for an act depriving the employer of

the employee's services). Id. at 1000-01. And, it also described

Waterman's right against Reading as being derived from the breach

of Reading's implied warranty of maintaining the railroad track "in

a safe condition for the benefit of seamen leaving a ship moored to

the pier" with which ship it had a contract. Id. at 999-1000.

Houma asserts that Waterman is inapplicable, claiming that it

was based on Pennsylvania law, whereas this case falls under

general maritime law; and because here, there was no contract

between Houma and Energy. But, this argument was rejected in our

circuit long ago. In following the Waterman rule (employers may

seek reimbursement of maintenance and cure from third-party

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tortfeasors), we need not rely on either state law or a contract,

implied or express, between the shipowner and tortfeasor. Rather,

[we] do not view the rationale of Waterman as
limited to cases in which Pennsylvania law
controls. Other courts likewise have viewed the
Waterman case as standing for a broader rule. See,
e.g., [United States v. The Tug Manzanillo, 190 F.
Supp. 229, 232-33 (D.Or. 1960), rev'd on other
grounds, 310 F.2d 220 (9th Cir. 1962)]. [We]
similarly find unconvincing any contention that the
Waterman case is limited to cases in which a
warranty of due care by the tortfeasor is implicit
in a contract between the shipowner and the
tortfeasor. A fair reading of the Waterman case
suggests that its rationale is not limited to such
situations.

Richardson v. St. Charles-St. John the Baptist Bridge & Ferry

Auth., 284 F. Supp. 709, 714-15 n.7 (E.D. La. 1968) (Rubin,

District Judge) (ferry authority could recover for maintenance and

cure costs; its employee was injured by passenger's negligence);

compare Gauthier v. Crosby Marine Serv., Inc., 752 F.2d 1085, 1089-

91 (5th Cir. 1985) (where Louisiana law, rather than maritime law,

applied because tort occurred on shore, seaman's contributory

negligence was attributed to employer, thereby barring employer's

indemnity action).

Indeed, our court has applied the Waterman rule in a number of

cases not involving state law claims, and has allowed an employer

recovery over against a tortfeasor of maintenance and cure. E.g.,

Adams, 640 F.2d at 620-21; Savoie, 627 F.2d at 724; Tri-State Oil,

410 F.2d at 182-83. As noted, in Adams, the employer was partly at

fault; in Savoie, as in this case, the employer was without fault

("innocent").

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 "Indemnification of the innocent employer is based on the

commonsense principle that a party whose neglect has caused or

contributed to the need for maintenance and cure payments should

reimburse the cost of those payments...." Savoie, 627 F.2d at 723

(citing and quoting Tri-State Oil, 410 F.2d at 186), cited in

Adams, 640 F.2d at 620-21; accord, Black v. Red Star Towing &

Transp. Co., Inc., 860 F.2d 30, 32-34 (2d Cir. 1988) (en banc)

(overruling The Federal No. 2, 21 F.2d 313 (2d Cir. 1927), and

citing Adams and Savoie). See 1 Schoenbaum, § 6-35, at 369 & nn.1-

2 (citing and discussing, inter alia, Waterman, Adams, and Savoie;

"employer who pays maintenance and cure to a seaman has a right to

complete indemnity from an independent tortfeasor whose fault or

negligence was the sole cause of the injury"). "[I]mposition of

liability on the tortfeasor ... is not too `indirect' a consequence

of his negligence to allow recovery. The shipowner's obligation --

imposed by the law itself -- is not so unforeseeable by a

tortfeasor as to bar recovery." Adams, 640 F.2d at 620 & n.2

(brackets in Adams) (citing Grant Gilmore and Charles L. Black, The

Law of Admiralty § 6-14 (2d ed. 1975) (hereinafter cited as Gilmore

and Black); Richardson, 284 F. Supp. at 716).

2.

Therefore, as the district court recognized, Adams and Savoie

seem to permit Energy to be reimbursed for its maintenance and cure

costs. But, as noted, the key basis for Houma's challenge to

reimbursing Energy lies in two additional factors: first, Bertram

settled with all defendants prior to trial; and second, since the

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above discussed cases were decided, our court has joined the modern

trend toward proportional or comparative fault for maritime cases.

See United States v. Reliable Transfer, 421 U.S. 397 (1975),

discussed and followed in, e.g., Hardy v. Gulf Oil Corp., 949 F.2d

826, 833-36 (5th Cir. 1992) (applying proportional fault rules,

rather than tort indemnity theories, to maritime cases); Loose v.

Offshore Navigation, Inc., 670 F.2d 493, 501 (5th Cir. 1982). (As

stated, the portional fault trend is also an element of Houma's

challenge, as discussed in part II.D., to reimbursing 50% of the

maintenance and cure, as opposed to its being only allocated 20% of

the fault.)

The contention that Bertram's pre-trial settlements barred

Energy's claim is based primarily on Hardy, 949 F.2d at 835-36,

which did not concern maintenance and cure. Hardy was employed by

a contractor for ZAGOC; ZAGOC contracted also with BOS, upon whose

barge Hardy was injured. Hardy sued, inter alia, BOS and ZAGOC,

asserting claims under the Jones Act and general maritime law.

ZAGOC and BOS cross-claimed against each other: ZAGOC contended

that its contract with BOS required BOS to indemnify it for any

damages awarded Hardy; BOS sought indemnity or contribution. 949

F.2d at 829.

Prior to trial, Hardy settled with ZAGOC, agreeing to

indemnify it for any contribution claim asserted against ZAGOC,

except for BOS's claim against ZAGOC. The jury found that BOS's

negligence and the unseaworthiness of its barge were the sole

causes of Hardy's injuries; and that ZAGOC had no responsibility to

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either indemnify BOS or contribute to the damages for which BOS was

liable. Id. While its appeal was pending, BOS settled with Hardy,

leaving in issue only BOS's claims against ZAGOC. Id. at 828, 829.

Among other things, our court concluded that the advent of

proportional fault theories had limited the ability of a defendant

who settled with the plaintiff after trial to recover, either

through indemnity or contribution, from a defendant who had settled

before trial. Id. at 833-36.

At bottom, Houma's contention misapprehends the parties'

relationships to one another, and the nature of Energy's cross-

claim. Energy's maintenance and cure obligation arises as a matter

of law, through its relationship with Bertram and despite its being

without fault. E.g., 1B Benedict, § 42, at 4-5 to 4-6 (7th ed.

1993) (neither seaman's nor employer's negligence is to be

considered); Gilmore and Black § 6-6, at 281 (comparing shipowner's

liability for maintenance and cure to worker's compensation; both

are independent of fault and based on employment relationship).

Second, again in contrast to Hardy, Energy's claim against

Houma is not for recovery over for "the amount of damages [Energy]

owes the plaintiff", i.e., Bertram. Hardy, 949 F.2d at 836

(emphasis added). Rather, it is for reimbursement of maintenance

and cure; and that claim is "not a derivative right through

[Bertram,] but [wa]s a separate and distinct cause of action which

[vested] in [Energy] when it [wa]s ascertained what sum of money

[wa]s due" from Energy to Bertram. Waterman, 155 F.2d at 1001;

accord, United States v. Tug Manzanillo, 310 F.2d 220, 222 (9th

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Cir. 1962) (employer's right to recover maintenance and cure from

tortfeasor accrued "the moment the [employer] paid these sums" to

seaman, regardless of release between seaman and tortfeasor).

Nor could the settlements between Bertram and the defendants

release one defendant from an independent claim asserted by

another. In this regard, Bertram's settlements with Energy and

Houma are immaterial; there has been no settlement between Houma

and Energy. The Ninth Circuit reached the same result in Tug

Manzanillo, 310 F.2d at 221, where the tortfeasor contended (as

does Houma) that maintenance and cure costs were damages subsumed

in its settlement with the plaintiff.

The Ninth Circuit held that a settlement between the injured

seaman and the tortfeasor did not bar a claim for indemnity for

maintenance and cure by the employer against the tortfeasor:

To hold that by paying certain sums to [the
employee] ... [the tortfeasor] had thereby
discharged its then existing liability to the
[employer], is a wholly impermissible conclusion.
If A is indebted to B he cannot discharge that
indebtedness by payment to C.

Tug Manzanillo, 310 F.2d at 222. Similarly, a release between

Energy and Bertram, or Houma and Bertram, cannot bar Energy's

maintenance and cure reimbursement claim against Houma.

In support of its contention that Energy cannot recover over

for maintenance and cure, Houma relies also upon Associated Elec.

Coop., Inc. v. Mid-America Transp. Co., 931 F.2d 1266 (8th Cir.

1991). Unlike Hardy, Associated Electric does involve reimburse-

ment for maintenance and cure. 931 F.2d at 1271-73 (citing Adams

and Savoie). In Associated Electric, Teasley, an employee of AEC,

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was injured while working aboard a barge owned by MATCO. Id. at

1267-68. AEC claimed that MATCO was solely at fault; MATCO, that

AEC was negligent. Id. at 1268.

AEC paid Teasley maintenance and cure, but did not settle his

possible damages claims. Id. AEC sought recovery over against

MATCO for maintenance and cure (similar to claim by Energy), in

addition to claims for other possible damages. Id. MATCO settled

with Teasley; the agreement was conditioned on dismissal of AEC's

claims. Id. The district court dismissed those claims, and

approved the MATCO/Teasley settlement; AEC appealed. Id.

For the damages claims, the Eighth Circuit held that maritime

law barred a non-settling defendant from seeking indemnity or

contribution from a settling defendant. Id. at 1269-71 (citing

cases, and discussing circuit split). Likewise, it held that AEC's

cross-claim for maintenance and cure was barred by the MATCO/

Teasley settlement, rejecting AEC's contention that, even if that

settlement barred its damages claims, it "d[id] not affect [AEC']s

right to be reimbursed for maintenance and cure payments ...

because such rights are completely independent from Teasley's

damages." Id. at 1271. Citing Adams and Savoie, the court stated:

We reject AEC's argument for two reasons. First,
none of the cases cited by AEC involves an
indemnity suit by a non-settling defendant against
a settling defendant. Thus, such cases do not
implicate the public policy in favor of encouraging
settlements. Second, the common law cases cited by
AEC refer to the employer's action for maintenance
and cure payments as suits for indemnity or
contribution, rather than as wholly independent
actions. See Adams, 640 F.2d at 620 ("The issue,
then, becomes ... whether [the settling tortfeasor]
can secure contribution for the maintenance and

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 cure payments made necessary through both [the
other tortfeasor's] and its own negligence")
(emphasis added); Savoie, 627 F.2d at 723 (applying
rule that "an innocent employer is entitled to
indemnification from a negligent third party for
payments made to an employee injured as a result of
the third party's negligence") (emphasis added).
Admittedly, MATCO's own pleading characterized
AEC's claim for maintenance and cure payments as
one for "damages." However, we interpret these
admissions as generic descriptions applicable even
to indemnity and contribution claims.

Accordingly, we hold that AEC's claim for
maintenance and cure payments is a claim for
indemnity or contribution, and is therefore barred
by the same proportional fault approach applicable
to AEC's other claims for indemnity or
contribution.

Id. at 1271-72 (brackets and italics in original).

Notwithstanding the foregoing, Adams and Savoie remain

controlling precedent in this circuit. "[O]ne panel may not

overrule the decision, right or wrong, of a prior panel in the

absence of en banc reconsideration or superseding decision of the

Supreme Court." Batts v. Tow-Motor Forklift Co., 978 F.2d 1386,

1393 & n.15 (5th Cir. 1992) (internal quotation marks and citations

omitted). Neither has happened. We do not read the decisions by

the Supreme Court as having superseded either decision. Therefore,

an employer's right to recovery over for maintenance and cure is

not negated by a settlement by the injured employee with the third-

party tortfeasor.

Despite being bound by Adams and Savoie, we turn to the

concerns expressed in Associated Electric, in order to demonstrate

the continuing vitality of Adams and Savoie on this issue.

Contrary to the concern expressed in Associated Electric, this does

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not frustrate "the public policy in favor of encouraging

settlements". 931 F.2d at 1272. A settling third-party tortfeasor

should, obviously, be aware of the employer's maintenance and cure

payments (Houma certainly was), and, in settling with the employee,

should take into account the possibility of being required to

reimburse the employer for those payments. This should prompt the

employee, employer, and third-party tortfeasor to work together to

reach settlement of all claims, and thus avoid any further

litigation. Certainly, this is even more consistent with the

public policy in favor of settlements.5

Associated Electric's second reason for barring the employer's

maintenance and cure claim appears to be that, because the

employer's claim against the third-party tortfeasor for recovery of

maintenance and cure was labelled a claim for "indemnity or

contribution", it was the same type of claim as the employer's

5
Houma was aware, throughout the district court proceedings,
that Energy sought reimbursement for maintenance and cure; and, it
settled with Bertram knowing that Energy's claim remained. When
Houma entered into its settlement with Bertram, and he moved
therefore to dismiss his claim against Houma in May 1993, Houma had
been on notice for over a year (Energy's cross-claim was filed in
March 1992) that Energy had been paying maintenance and cure to
Bertram since the accident, and continued to pay it.

The Houma-Bertram settlement is not part of the record on
appeal. Accordingly, there is no evidence before us that that
settlement was intended to compensate Bertram for medical or living
expenses (amounts owed him by Energy as part of its maintenance and
cure obligation), rather than instead being a settlement for other
damages resulting from Houma's negligence. But, even assuming
arguendo that part of the settlement was for the grounds covered by
maintenance and cure, this demonstrates why the third-party
tortfeasor should take a maintenance and cure claim against it into
consideration, and adjust for it, when settling with the employee,
or better yet, work toward bringing about a total settlement of all
claims.

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claim for indemnity or contribution for the employee's general

damages. Because the latter type of claim was barred by the third-

party tortfeasor/employee settlement, the Eighth Circuit concluded

that the former must also be barred. This analysis, however, much

like Houma's argument detailed supra, appears to miss the critical

distinction -- long recognized in this circuit -- between an

employer's right to recover maintenance and cure payments, and one

tortfeasor's right to recover some or all of a damage award

assessed against it from another tortfeasor.

As noted, the Eighth Circuit quoted Savoie and Adams in

holding that claims for recovery of maintenance and cure were also

labelled "claim[s] for indemnity or contribution, and ... therefore

barred by the same" reasoning that barred claims for indemnity or

contribution for other damages. Associated Electric, 931 F.2d at

1272. As discussed, however, the obligation to pay maintenance and

cure differs from a tortfeasor's liability for damages -- although

a claim to recover either cost may be labelled one for indemnity or

contribution. E.g., Ray v. Lykes Bros. Steamship Co., Inc., 805

F.2d 552, 554 (5th Cir. 1986), cited in Associated Electric, 931

F.2d at 1271. As the employer urged in Associated Electric, an

employee's right to receive, and an employer's right to be

reimbursed, maintenance and cure are rights "completely independent

from [the seaman's] damages." Id. at 1271 (citing Ray). Savoie

and Adams are certainly not to the contrary.

In sum, we hold, as did the district court, that Energy's

claim is not barred by Bertram's pre-trial settlements. Savoie,

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627 F.2d at 723, 724 (even where employee has "relinquished his

other claims" against employer after receiving maintenance and

cure, employer may recover for maintenance and cure costs from

third-party found to have caused employee's injury); accord, Great

Lakes Dredge & Dock Co. v. The Tanker Robert Watt Miller, 957 F.2d

1575, 1581-84 (11th Cir.) (not maintenance and cure case; rejecting

"settlement bar" rule of Associated Electric and other cases;

citing Savoie), cert. denied, ___ U.S. ___, 113 S. Ct. 484 (1992);

Wisconsin Barge Line, Inc. v. The Barge Chem 301, 390 F. Supp.

1388, 1390, 1393-94 (M.D. La. 1975) (employer who voluntarily

settled damages claims may not recover for damages from third-party

tortfeasor, but is entitled to indemnity for maintenance and cure;

unlike non-compulsory damages settlement, maintenance and cure

payment is involuntary and therefore recoverable), rev'd on other

grounds, 546 F.2d 1125 (5th Cir. 1977) (remanding for determination

whether settlement amount was reasonable).

B.

Houma challenges the amount of cure paid Bertram, asserting

that there was

no evidence of the reasonableness of the [medical]
costs for which Energy now seeks reimbursement.
Accordingly, there is not a finding by the Court
that the costs were reasonable. Therefore it was
erroneous for the Court to award those costs.

(Footnote omitted.) In support, it states that "[t]here is

evidence that the treatment rendered by [Bertram's physician] was

unwarranted and unnecessary and is the root of Mr. Bertram's

physical problems."

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 Although the district court found that Bertram's medical

"treatment was reasonable and necessary for [his] recovery", it did

not find expressly that the cost of that treatment was reasonable.

It did state, however, that any findings of fact not expressly made

were deemed to have been made in support of its judgment. And, the

judgment awards Energy the maintenance and cure it paid.6

Therefore, we consider the district court to have found implicitly

that the amount paid for medical treatment was reasonable; we

review that finding only for clear error. See Noritake Co., Inc.

v. M/V Hellenic Champion, 627 F.2d 724, 727-28 (5th Cir. 1980);

Fed. R. Civ. P. 52(a); Tate v. American Tugs, Inc., 634 F.2d 869

(5th Cir. Unit A 1981) (determination of amount of maintenance is

fact question). A finding is clearly erroneous when, "although

there is enough evidence to support it, the reviewing court is left

with the definite and firm conviction that a mistake has been

committed and that the district court could not permissibly find as

it did." Noritake, 627 F.2d at 728 (citations omitted).

Houma bases its challenge to the amount of cure on testimony

(deposition) by its witness, Dr. Weiner, who considered the medical

treatment "unwarranted and unnecessary and ... the root of Mr.

Bertram's physical problems". As Energy points out, however,

Bertram's primary treating physician, Dr. Scheffey, testified

(deposition) that the treatment was both reasonable and necessary.

Dr. Scheffey based this on examinations of Bertram, Bertram's

physical condition, and the fact that more conservative treatment

6
Houma does not contest the maintenance payments.

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failed to improve Bertram's condition. The court's decision to

credit Scheffey's testimony, rather than Wiener's, is not clearly

erroneous. Accordingly, although the doctors were not asked

whether Dr. Scheffey's fees were reasonable, we do not disturb the

implicit finding that they were.

C.

Next, Houma contends that there is "no evidence that [it] was

a cause of [Bertram's] accident" and injuries resulting from the

falling ladder. The district court found that, for several days

prior to the accident, Houma employees had used the ladder, but

that they failed to stow or secure it properly. A Houma supervisor

was asked to secure the ladder; and, although it was tied to a

walkway grating, a post-accident investigation revealed that the

rope securing it had been cut. Further, the district court found

that the top of the ladder had never been properly secured. Based

on these findings, inter alia, the district court apportioned 20%

of the fault to Houma. (As noted, Freeport, which did not appeal,

was also found 20% at fault.) But, because Bertram failed to use

an alternative, safer route (by which he could have avoided the

ladder), and because it was "probable that a portion of Mr.

Bertram's life jacket caught a rung of the ladder, causing it to

fall on ... him", the district court apportioned 60% of the fault

to Bertram. Houma disputes the findings that it owned the ladder

and that it failed to stow or secure it; but it does not dispute

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that its workers used the ladder, or that they were directed to

secure it.7

In admiralty cases, the district court's rulings on

"negligence, cause, and proximate cause are findings of fact".

E.g., Gavagan v. United States, 955 F.2d 1016, 1019 (5th Cir. 1992)

(citing cases, including Johnson v. Offshore Express, Inc., 845

F.2d 1347, 1352 (5th Cir.) ("Questions of negligence and causation

in admiralty cases are treated as fact questions...."), cert.

denied, 488 U.S. 968 (1988)). Again, such findings are upheld

unless, reviewing the record as a whole, we are "`left with the

definite and firm conviction that a mistake has been committed'".

Id. (quoting Noritake, 627 F.2d at 728).

Freeport employees testified that Houma brought the ladder to

the platform. The record contains ample evidence that the ladder

was used by Houma; that on several occasions, Freeport employees

asked Houma's supervisor to secure it; and that it was not properly

secured or stowed on the evening of the accident. Therefore, the

findings that Houma failed to stow the ladder properly, and

assigning it 20% of the fault are not clearly erroneous.8

7
Houma also again contends, as discussed supra, that Bertram's
injuries were caused by the medical treatment he received. We have
already rejected this assertion.
8
In its reply brief, Houma asserts for the first time that some
fault should have been apportioned to Energy. Generally, we do not
address such belated claims. We decline to do so here.

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 D.

As discussed, consistent with the foregoing apportionment of

fault, and relying upon Adams (employer partly at fault), the

district court entered judgment that Freeport and Houma each

reimburse Energy for 20% of the maintenance and cure; but, on

Energy's motion, and in reliance on Savoie (employer without

fault), the judgment was amended to require each to instead

reimburse Energy for 50% of the maintenance and cure. Houma

asserts alternatively that, consistent with its apportioned fault,

it should be required to reimburse Energy for only 20% of the

maintenance and cure. This contention turns on our relatively

recent adoption, discussed supra, of proportional fault. See

McDermott, Inc. v. AmClyde, 114 S. Ct. 1461 (1994); Reliable

Transfer, 421 U.S. 397; Loose, 670 F.2d at 500-01; compare Savoie,

627 F.2d 722 (not discussing Reliable Transfer proportional fault

concepts); see also Coats v. Penrod Drilling Corp., 5 F.3d 877,

889-90 (5th Cir.) (discussing application of joint and several

liability to maritime co-defendants in comparative fault system),

reh'g en banc ordered, 20 F.3d 614 (5th Cir. 1994). Our review is

de novo.

As stated, in requiring the 50% reimbursement, the district

court relied on Savoie, 627 F.2d 722, 724, which allowed complete

indemnity of the employer by a third-party tortfeasor. Savoie

held:

Because the employer will have to pay maintenance
and cure regardless of the existence or degree of
his employee's neglect, a negligent third party who
caused or contributed to the employee's injury

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 should reimburse the employer for this inevitable
expense, even though the employee was partially to
blame. As between the innocent employer and the
partially negligent third party, the latter should
bear the burden of such payments in the same manner
a joint tort-feasor is liable to the injured victim
of concurrent delicts....

***

Because [the employer] will have to pay full
maintenance and cure to [the seaman, regardless of
his negligence], [the tortfeasor] must reimburse
[the employer] for the entire payment made.

627 F.2d at 724 (emphasis added). The district judge stated that,

were this a case of first impression, he would not have required

full reimbursement, but that he was bound by controlling precedent

-- Savoie.

Again trying to wiggle off the hook of binding precedent,

Houma maintains that Savoie is not controlling, noting that Savoie

-- decided in 1980 -- did not discuss the earlier extension of

proportional fault principles to maritime cases. Id.; see, e.g.,

Loose, 670 F.2d 493, 501 (5th Cir. 1982) (discussing Fifth

Circuit's adoption of comparative fault system, which "eliminates

the doctrine of contributory negligence ... [and] apportions fault

among joint tortfeasors in accordance with a precise determination,

not merely equally or all-or-none"); Harrison v. Flota Mercante

Grancolombiana, S.A., 577 F.2d 968, 981-82 (5th Cir. 1978) (court

should consider "the concept of proportional fault" in maritime

cases). Thus, we must examine this aspect of Savoie in light of

Reliable Transfer and its progeny.

As noted, in originally ordering each tortfeasor to reimburse

maintenance and cure only to the extent of their assigned fault

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(20% each), the district court relied upon Adams, 640 F.2d at 621

(1981). The answer to whether Savoie still controls is found in

Adams. Unlike Savoie, it anticipates Loose's more explicit

discussion of proportional fault principles. See Loose, 670 F.2d

at 500-01.

In Adams, Eymard contracted with Texaco to service its

offshore operations; Adams, an Eymard employee, was injured while

working on Eymard's crewboat. 640 F.2d at 619. He sued Eymard and

Texaco; both cross-claimed for indemnity and contribution. Prior

to trial, Adams settled with Eymard; the jury awarded damages to

Adams, with Adams adjudged 70% negligent and Eymard and Texaco each

15%. Id. The cross-claims were tried to the court; Texaco was

ordered to pay Eymard 15% of its maintenance and cure costs by way

of contribution.

In affirming Texaco's contributing 15% to Eymard, our court

noted that, even where the seaman is negligent, a "non-negligent

shipowner is still entitled to indemnity from a third-party

tortfeasor. Savoie, supra". Id. at 620. It noted that "[t]his

court has already held [in Savoie] that a tortfeasor is required to

indemnify the non-negligent shipowner for maintenance and cure

payments that result from the tortfeasor's negligence." Id.

(emphasis added). But, the court noted that Adams presented a

different situation, because not only the third-party, but also the

shipowner, was negligent. In such a case, the Adams court held,

[t]his rationale [of Savoie] equally supports the
conclusion that a concurrently negligent tortfeasor
should proportionately contribute to maintenance
and cure paid by a negligent shipowner when the

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 latter's negligence only concurrently contributed
to the seamen's injury.

Id. at 621 (citing proportional fault cases) (emphasis added). The

court held that, because both were concurrently negligent, Texaco

was liable to Eymard for the "costs of those [maintenance and cure]

payments to the extent occasioned by its fault." Id. (emphasis

added); accord, Black, 860 F.2d at 32-34 (discussing innocent

shipowner's right to indemnification from tortfeasor, versus

negligent shipowner's right to contribution from tortfeasor in

proportion to that party's negligence; citing Adams and Savoie).

As noted, in Adams both the shipowner and Texaco were found

15% at fault; the seaman, 70%. Our court concluded that Texaco was

required to contribute only 15% of the maintenance and cure to the

shipowner. Were we to use the same method of apportionment in this

case, Houma would be required to contribute only 20% of the

maintenance and cure, because this was its percentage of fault. As

reflected above, however, what distinguishes this case from Adams

is that Energy was not at fault. Thus, as the district court held,

this case is controlled by Savoie, where only the seaman and the

third-party were at fault. Although the third-party was not 100%

at fault (it shared fault with the seaman), it was nonetheless

required to reimburse all of the maintenance and cure to the

innocent shipowner. Savoie, 627 F.2d at 724.

Read together, Adams and Savoie seem to advance a policy

choice as to which party bears the burden of a seaman's negligence

when an employer seeks recovery over for maintenance and cure.

When the employer is partially at fault, the seaman's negligence is

- 26 -
imputed to the employer. This is consistent with the very basis

for the maintenance and cure obligation -- the employment

relationship. Between a negligent employer and a negligent third-

party, the seaman's portion of fault is imputed to the employer.

But, when the employer is fault-free, it may recover all of the

maintenance and cure from the negligent third-party(ies), even

though the third-party shares fault with a negligent seaman.

Therefore, Houma and Freeport, each only 20% at fault, must

nevertheless totally reimburse the maintenance and cure.

In sum, neither Adams, nor subsequent proportional fault

cases, including Loose, disturb Savoie's holding that an innocent

shipowner is entitled to full reimbursement for maintenance and

cure from a third-party tortfeasor, even though the employee was

also at fault. Accordingly, as did the district court, we must

follow Savoie.

III.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

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