Couch v. Cro-Marine Transport, Inc.

United States Court of Appeals,

Fifth Circuit.

No. 93-3902.

Ray COUCH, III, Plaintiff-Appellee,

v.

CRO-MARINE TRANSPORT, INC., et al., Defendants,

James J. Flanagan Shipping Corporation, Defendant-Appellant.

BERISFORD METALS CORPORATION, d/b/a Erlanger & Co., Third-Party
Plaintiff,

v.

CENTRAL ILLINOIS DOCK COMPANY, Third-Party Defendant Intervenor-
Appellee,

v.

JAMES J. FLANAGAN SHIPPING CORPORATION, Third-Party Defendant-
Appellant.

Feb. 13, 1995.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before GARWOOD, JOLLY and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellee longshoreman Ray Couch (Couch) filed this

suit against Cro-Marine-Transport (Cro-Marine), Berisford Metals

Corporation/Erlanger and Company (Erlanger), and James J. Flanagan

Shipping Corporation, d/b/a New Orleans Stevedoring Company (NOSC),

for injuries sustained while unloading steel cargo from a Cro-

Marine barge in Peoria, Illinois. Erlanger was the owner of the

steel cargo, and NOSC was the stevedore that loaded the steel into

the barges in the port of New Orleans. After the district court

1
dismissed the claims against Cro-Marine and Erlanger, Couch

proceeded with his suit against NOSC and recovered a $1,722,640

judgment in a bench trial. Defendant-appellant NOSC appeals,

raising several factual and legal issues. We affirm in part,

vacate in part, and remand.

Facts and Proceedings Below

Couch, a longshoreman employed by Central Illinois Dock

Company (CIDC), was injured while discharging steel cargo from Cro-

Marine barge VL-8141 in Peoria, Illinois, on December 14, 1987. As

a result of his injuries, Couch's leg was amputated above the knee.

The steel destined for Peoria had arrived in the port of New

Orleans aboard the M/V UCKA. Thereafter, the owners of the M/V

UCKA hired NOSC to discharge the M/V UCKA and transload the steel

cargo onto three Cro-Marine barges, including barge VL-8141, for

the trip upriver to Peoria. The steel cargo consisted of bundles

of steel billets of various sizes, steel coils, and steel bars.

Chander Gorowara, an independent marine surveyor hired by the

cargo owner Erlanger, inspected and photographed the steel cargo in

New Orleans while it was stacked in a wharf storage shed and again

after NOSC loaded it into the barges bound for Peoria. These

photographs, introduced into evidence at trial, show the condition

of the cargo and its stow in the barges bound for Peoria. As

depicted by the photographs of the stow in the storage shed, NOSC

neatly stacked the steel bundles in tiers with wood dunnage placed

between the layers. By contrast, the photographs of the stow in

the barges, particularly barge VL-8141, reveal that NOSC

2
haphazardly dumped irregular piles of steel into the barges.

Several of the piles were dropped in the barge at an angle instead

of being stacked to provide a walking surface for the discharging

stevedore. Moreover, NOSC used dunnage irregularly and as a bridge

to support the weight of the steel instead of its intended use as

a separation.1

Tugs accompanied the unmanned barges on the voyage upriver to

Peoria. Erlanger hired CIDC, a Peoria stevedoring company with

over thirty years' experience on the Illinois River, to discharge

the steel from the barges to trucks for shipment to the Caterpillar

Truck Company, also in Peoria. Ninety-five percent of CIDC's

business consists of discharging vessels, and steel accounts for

about ninety percent of the cargo it unloads. After personally

inspecting the barges, Daniel McNally (McNally), the owner and

president of CIDC, described the stow as one of the worst barge

loads he had ever seen. There were four or five distinct piles of

steel bundles jammed against each other with broken dunnage

throughout the barge. McNally noticed bundles not separated by

dunnage and overhanging bundles ready to fall over.

CIDC had more experience in discharging steel cargo than any

other stevedore in the area. McNally decided that CIDC would

proceed carefully to discharge the steel from the barges. McNally

assigned a crew consisting of a crane operator, two laborers, one

1
The district court observed that NOSC was paid to discharge
the M/V UCKA at a fixed price per metric ton rather than at an
hourly rate, thus providing an incentive to load the barges as
quickly as possible.

3
of whom was Couch, a superintendent, and a truck driver to unload

the barge. At the time of the accident, Couch had three months of

experience unloading barges. Cohenour, the laborer assisting

Couch, had one and one-half years of experience.

The unloading operation consisted of the crane operator

lowering a block with two attached choker chains into the cargo

area. Cohenour and Couch, positioned at either end of the piles of

steel, would wrap the choker chains around the ends of the bundle

of steel billets to be unloaded. At this point, Cohenour would

signal the crane operator to lift the bundles out of the barge and

onto the truck.

Due to the haphazard dump stow of the steel and the

insufficient and improper use of dunnage, Couch and Cohenour had

difficulty getting the chains around the bundles and needed to use

pry bars to lift up the bundles so that the chains could be placed

around the ends. Moreover, the crane operator occasionally had to

pick up one end of a bundle so that chains could be placed around

the other end. This operation proceeded for some twenty-one hours

until only eight bundles, located in the starboard bow of barge VL-

8141, remained to be unloaded. These bundles were leaning against

the rake of the bow and were arranged so that there were three

bundles on the bottom, two in the middle, and three on the top, the

weight of the top three bundles being supported by the two bundles

in the middle.

Couch and Cohenour then attempted to unload two of the top

bundles positioned closest to them. Because these bundles were

4
pressed against the rake of the bow, the crane operator lifted one

end of either one or two of these bundles and set them down.

Couch, who was closest to the bow, was trying to wrap the chains

around the ends of the two bundles when he heard a crack. A one

and one-half to four ton bundle of steel billets fell and crushed

Couch's left leg. At the time of the accident, the crane operator

was still awaiting a signal from Cohenour.

After five unsuccessful surgical procedures, Couch's

physicians amputated his leg above the knee. Since the initial

amputation, Couch has undergone additional surgery, including stump

revision, bringing the total number of surgeries to fourteen at the

time of the district court judgment. Couch now wears a prosthetic

device, which requires maintenance and regular part replacement due

to his active lifestyle. Couch suffers severe ghost pains in his

leg and has also endured back and knee pain due to the pressure his

activities place on those muscles. Couch was twenty-seven years

old at the time of his injury. Prior to the accident, he had led

a very active life, was a black belt in karate and an amateur boxer

aspiring to turn professional. Before the accident, Couch worked

approximately forty hours per week earning $9.25 per hour.

At his own initiative and expense, Couch enrolled in community

college after the accident to train for another career as a diesel

mechanic. In December 1992, he returned to work for CIDC as a

diesel mechanic, eventually working twenty-four hours each week at

$11.25 per hour, approximately the same hourly rate he would be

earning if he had not been injured. Shortly after starting work as

5
a diesel mechanic, Couch's condition forced him to take off

approximately one month. Couch still hopes to work five days a

week, but that will depend upon the strain such a schedule puts on

his body.

Couch originally filed suit in the United States District

Court for the Central District of Illinois against Cro-Marine, the

owner of the barge, and Erlanger, the owner of the steel cargo. He

subsequently amended his complaint to name NOSC as a defendant.

After NOSC objected to venue in the Central District of Illinois,

the entire proceeding was transferred to the Eastern District of

Louisiana. Prior to trial, the district court granted Cro-Marine

and Erlanger's motions for summary judgment and dismissed them from

the action. NOSC filed a third-party complaint against CIDC

seeking indemnity and contribution. CIDC also remained in the

litigation as an intervenor seeking to recover amounts paid to or

on behalf of Couch under the Illinois Workers' Compensation Act

(IWCA).

After a bench trial, the district court entered a judgment

against NOSC awarding Couch $1,722,640. This award included

$134,225 for past medical and prosthesis expenses, $150,000 for

future medical and prosthesis expenses, $88,415 for past wage

losses, $200,000 for future loss of earning capacity, and

$1,150,000 for physical pain and suffering, disability, impairment,

and mental anguish. Because Couch received IWCA benefits from his

employer CIDC, the district court held that CIDC was entitled to

recover from his award the amount spent on medical expenses

6
($134,225) and the compensation benefits paid ($71,105), subject to

a credit of 25% attorneys' fees in favor of Couch and his counsel.

Finally, the district court awarded interest from the date of the

entry of the judgment on the award of future medical expenses and

future loss of earning capacity. On the past medical expenses,

past lost wages and the $1,115,000 pain and suffering award, the

district court awarded interest from the date of the injury.

Discussion

I. Applicability of Scindia

The Longshore and Harbor Workers' Compensation Act (LHWCA)

establishes a comprehensive framework to provide a federal workers'

compensation program for longshoremen injured or killed in

job-related accidents. 33 U.S.C. §§ 901-950; Gilmore & Black, The

Law of Admiralty 408-412 (1975). The 1972 congressional amendments

to the LHWCA "were the first significant effort to reform the 1927

Act and the judicial gloss that had been attached to it."

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261, 97

S.Ct. 2348, 2356, 53 L.Ed.2d 320 (1977). Prior to 1972, an injured

longshoreman could receive benefits from his stevedore-employer

under LHWCA and also recover damages from the shipowner for

injuries caused by the negligence or unseaworthiness of the vessel

being serviced. Gilmore & Black, The Law of Admiralty 411 (1975).

In order to prevail in an unseaworthiness cause of action, the

longshoreman did not have to prove fault on the part of the

shipowner but only needed to show an unsafe, injury-causing

condition on the vessel. Seas Shipping Co. v. Sieracki, 328 U.S.

7
85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Under the Sieracki

doctrine, a shipowner could be held liable even if the stevedore

created or caused the injury-causing condition. See, e.g., Crumady

v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3

L.Ed.2d 413 (1959).2 Moreover, the shipowner thus held liable to

the longshoreman could maintain an indemnity action against the

stevedore for breach of an implied or express warranty to handle

the cargo in a reasonably safe manner. Ryan Stevedoring Co. v.

Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133

(1956).

The Supreme Court has described the 1972 amendments as a

legislative compromise between three groups: (1) shipowners

dissatisfied with decisions permitting longshoremen compensated

under LHWCA to recover in unseaworthiness actions; (2) stevedores

subject to indemnification suits by vessel owners; (3)

longshoremen seeking increased compensation benefits. Northeast

Marine Terminal Co., 432 U.S. at 263-65, 97 S.Ct. at 2357.

Discussing the 1972 amendments, the Supreme Court has stated, "The

design of these changes was to shift more of the responsibility for

compensating injured longshoremen to the party best able to prevent

injuries: the stevedore-employer." Howlett v. Birkdale Shipping

Co., S.A., --- U.S. ----, ----, 114 S.Ct. 2057, 2063, 129 L.Ed.2d

78 (1994).

2
In Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91
S.Ct. 514, 27 L.Ed.2d 562 (1971), the Supreme Court held that a
single act of operational negligence by the stevedore did not
render the vessel unseaworthy.

8
 The legislative compromise incorporated in the 1972

amendments radically reformulated the triangular relationship

between vessel owners, stevedores, and longshoremen. First,

Congress substantially increased the benefits payable to

longshoremen under the LHWCA. Second, the amendments abolished the

longshoreman's right to recover from the shipowner for

unseaworthiness. Finally, Congress eliminated the stevedore's

obligation to indemnify the shipowner if it was held liable for

damages suffered by the longshoreman. Gilmore & Black, The Law of

Admiralty 411 (1975). The 1972 amendments, however, preserved a

longshoreman's right to recover from the vessel owner for

negligence. 33 U.S.C. § 905(b).3 Because Congress did not recite

the acts or omissions of a vessel that would amount to negligence,

the scope of the duty owed by a vessel to longshoremen was left to

"be resolved through the application of accepted principles of tort

law and the ordinary process of litigation." H.R.Rep. No. 92-1441,

92nd Cong., 2nd Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 4698,

4704. In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S.

3
33 U.S.C. § 905(b) provides:

"In the event of injury to a person covered under this
chapter caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages
by reason thereof, may bring an action against such
vessel as a third party in accordance with the
provisions of section 933 of this title, and the
employer shall not be liable to the vessel for such
damages directly or indirectly and any agreements or
warranties to the contrary shall be void.... The
liability of the vessel under this subsection shall not
be based upon the warranty of seaworthiness or a breach
thereof at the time the injury occurred."

9
156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Court articulated the

scope of a shipowner's duty to longshoremen under section 905(b)

and outlined three general duties shipowners owe to longshoremen.

This Court has summarized the three scenarios under which a vessel

owner may be liable under Scindia:

"1) if the vessel owner fails to warn on turning over the ship
of hidden defects of which he should have known.

2) for injury caused by hazards under the control of the ship.

3) if the vessel owner fails to intervene in the stevedore's
operations when he has actual knowledge both of the hazard and
that the stevedore, in the exercise of "obviously improvident'
judgment means to work on in the face of it and therefore
cannot be relied on to remedy it." Pimental v. LTD Canadian
Pacific BUL, 965 F.2d 13, 15 (5th Cir.1992) (citations
omitted).

NOSC argues that the duty a loading stevedore owes a

discharging longshoreman is equivalent to the duty a shipowner owes

a longshoreman under Scindia. NOSC asserts that it cannot be

liable under Scindia because its stow constituted an open and

obvious condition, therefore not triggering a breach of the first

Scindia duty to warn of hidden defects. Scindia does hold that in

a suit under section 905(b) by a longshoreman against a shipowner,

the vessel's duty does not extend to open and obvious conditions.

Scindia, 451 U.S. at 172-74, 101 S.Ct. at 1625. The district court

refused to apply Scindia, citing crucial differences between the

position of the vessel owner in relation to the discharging

longshoremen and the position of the loading stevedore in relation

to the discharging longshoremen. We hold that the district court

was correct for several reasons.

NOSC argues that Scindia applies to the facts of this case and

10
establishes that it owed no duty to protect Couch or any other

discharging longshoreman from open and obvious hazards. Scindia

involved a suit by an injured longshoreman against a shipowner

under section 905(b), the longshoreman's statutory right to recover

from the vessel owner for negligence as preserved in the 1972

amendments. The LHWCA defines the term "vessel" to mean "any

vessel upon which or in connection with which any person entitled

to benefits under this chapter suffers injury or death arising out

of or in the course of his employment, and said vessel's owner,

owner pro hac vice, agent, operator, charter or bare boat charter,

master, officer, or crew member." 33 U.S.C. § 902(21). Although

Couch originally asserted a section 905(b) claim against Cro-Marine

as the owner of the unmanned barges, the district court granted

Cro-Marine's motion for summary judgment on the grounds that it

breached no duty owed to Couch under Scindia, thereby eliminating

section 905(b) from the suit.4 NOSC, the onloading stevedore,

remained in the litigation as the sole defendant, and Couch

proceeded with his cause of action against NOSC under the general

maritime law as provided for in the pretrial order.

In its supplemental brief and at oral argument on appeal, NOSC

contends that Howlett v. Birkdale Shipping Co., --- U.S. ----, 114

S.Ct. 2057, 129 L.Ed.2d 78 (1994), strongly reinforces its argument

that the Scindia standard should govern the relationship between

4
In the same order, the district court granted defendant
Erlanger's motion for summary judgment on the ground that a cargo
owner owed no duty with respect to the cargo operations. Couch
did not appeal the district court's order dismissing Erlanger and
Cro-Marine.

11
the onloading stevedore and the discharging longshoremen. The

issue addressed by the Court in Howlett, a section 905(b) suit

against a shipowner, was the scope of a shipowner's duty to warn of

latent hazards in the cargo stow. Although Howlett elaborates the

scope of the first Scindia duty, it does not help NOSC overcome the

insurmountable hurdle of applying the Scindia standard to a case

involving a suit by an injured longshoreman against a loading

stevedore. Scindia and Howlett are section 905(b) cases brought

against shipowners and do not support NOSC's contention that the

Scindia standard should apply in this case, a negligence suit under

the general maritime law against a party other than the vessel

owner.

The facts in this case may be somewhat unusual because they

involve a domestic onloading stevedore (NOSC) loading a stow which

causes injury to a domestic discharging longshoreman (Couch).

Perhaps more typically, the vessel being unloaded by the injured

longshoreman will have been loaded by a foreign stevedore over whom

the discharging longshoreman is unable to obtain jurisdiction, and

the injured discharging longshoreman hence sues only the vessel

owner for negligence under section 905(b). See Howlett v. Birkdale

Shipping Co., S.A., --- U.S. ----, 114 S.Ct. 2057, 129 L.Ed.2d 78

(1994) (section 905(b) suit by discharging longshoreman injured

when he slipped on a plastic sheet improperly placed in the stow by

the loading stevedore in Ecuador); Woods v. Sammisa Co., 873 F.2d

842 (5th Cir.1989), cert. denied, 493 U.S. 1050, 110 S.Ct. 853, 107

L.Ed.2d 847 (1990) (section 905(b) suit against shipowner by

12
longshoreman injured while unloading steel pipes improperly loaded

by stevedore in Brazil); Clay v. Lykes Bros. S.S. Co., 525 F.Supp.

306 (E.D.La.1981) (section 905(b) suit against vessel owner by two

longshoremen injured while unloading cargo negligently loaded by

stevedores in London).5

The facts of this case give rise to an important distinction

between vessel owners and stevedores. The Court in Scindia held

that a vessel owner has "no general duty by way of supervision or

inspection to exercise reasonable care to discover dangerous

conditions that develop within the confines of the cargo operations

that are assigned to the stevedore." Scindia, 451 U.S. at 172, 101

S.Ct. at 1624. As support for this rule, the Court discussed at

great length the fact that the stevedore is the expert in cargo

operations hired by the nonexpert shipowner. Id. at 168-74, 101

S.Ct. at 1623-1625. Accordingly, the Court in Scindia described

"the justifiable expectations of the vessel that the stevedore

would perform with reasonable competence and see to the safety of

the cargo operations." Id. at 172, 101 S.Ct. at 1624.6

5
The court in Clay stated "[t]here is no question but that
parties who are not before the court, the riggers in London who
tied the cable and the stevedores who placed the bundles of pipe
on top of the cable, were negligent and that this negligence was
a cause of the resultant accident and injuries to plaintiffs."
525 F.Supp. at 308.
6
The indemnity cases decided before the 1972 amendments
reason that "the stevedore was in the best position to avoid
accidents during cargo operations and that the shipowner could
rely on the stevedore's warranty to perform competently." Id.
Section 41 of the LHWCA mandates that the stevedore provide its
employees with a reasonably safe work place and implement
safeguards necessary to prevent injuries. Further, 33 U.S.C. §
941(a). 33 U.S.C. § 941(a) also authorizes the Secretary of

13
 In Scindia and Howlett the Court considered the relationship

between and roles of the stevedore-employer and the vessel owner.

Emphasizing the role of the stevedore-employer as a specialist in

cargo operations on one side and the nonexpert vessel on the other

side, the Court reasoned that, as between these two parties, the

stevedore-employer was in the best position to prevent injuries to

longshoremen. Unlike the shipowner in Scindia, NOSC, as loading

stevedore, is indeed an expert in cargo operations, thus creating

a very different relationship, with experts in stevedoring on both

sides. Therefore, the reasoning of the Court in Scindia for

crafting a limited scope of liability for the nonexpert vessel

based on the justifiable expectations of the shipowner does not

logically apply to the facts of this case. Accordingly, based on

the facts of this case, the onloading stevedore was in the best

position to avoid creating a dangerous stow and therefore may be

held liable for any injuries suffered by discharging longshoremen

caused by its negligent stow.7

Labor to promulgate regulations to protect the life, health, and
safety of longshoremen. For example, an OSHA regulation
governing cargo stows provides:

"(a) When necessary, cargo shall be secured or blocked
to prevent its shifting or falling.

(b) In breaking down, precautions shall be taken, when
necessary, to prevent the remaining cargo from
falling." 29 C.F.R. § 1918.83(a)-(b).
7
By way of analogy, the district court observed that a
stevedore may be held liable for cargo damage due to its
negligence. Maurice Pincoffs Co. v. Dravo Mechling Corp., 697
F.Supp. 244, 249-50 (E.D.La.1987), aff'd without op., 880 F.2d
411 (5th Cir.1989) (holding that an unloading stevedore has a
duty to exercise reasonable care and may be liable for any damage

14
 NOSC argues that the purpose of the 1972 amendments to the

LHWCA was to shift the responsibility for compensating injured

longshoremen to the party best able to prevent injuries, the

stevedore-employer. In order to further this congressional

purpose, NOSC contends that we should apply Scindia and Howlett to

place the responsibility for compensating Couch on his

stevedore-employer. The Scindia Court described the 1972

amendments abolishing a longshoreman's unseaworthiness cause of

action against a vessel owner as reflecting congressional intent

"to make the vessel answerable for its own negligence and to

terminate its automatic, faultless responsibility for conditions

caused by the negligence or other defaults of the stevedore."

Scindia, 451 U.S. at 168, 101 S.Ct. at 1622-23. Therefore, the

Court in Scindia reasoned that it would be inconsistent with the

LHWCA as amended in 1972 to hold that a shipowner has a continuing

duty to discover and remedy dangerous conditions that develop

during the loading or unloading of cargo. As the Court observed:

"Such an approach would repeatedly result in holding the
shipowner solely liable for conditions that are attributable
to the stevedore, rather than the ship. True, the liability
would be cast in terms of negligence rather than
unseaworthiness, but the result would be much the same.
"[C]reation of a shipowner's duty to oversee the stevedore's
activity and insure the safety of longshoremen would ...
saddle the shipowner with precisely the sort of nondelegable
duty that Congress sought to eliminate by amending section
905(b).' " Id. [at 169, 101 S.Ct.] at 1623 (citations
omitted).

When Congress enacted the 1972 amendments, it adjusted the

rights between shipowners, stevedore-employers, and longshoremen.

done to the cargo due to its negligence).

15
Applying the 1972 amendments to the facts of this case, the three

affected parties are Cro-Marine as the barge owner, CIDC as the

stevedore-employer, and Couch as the injured longshoreman. The

1972 amendments, however, did not purport to adjust the rights of

one stevedoring company versus another stevedoring company for

injuries sustained by longshoremen. Thus, the 1972 amendments and

Court decisions interpreting section 905(b) do not affect the

outcome of Couch's suit against NOSC under the general maritime

law.

We are not persuaded by NOSC's contention that Scindia 's

trilogy of duties should apply to the loading stevedore/discharging

stevedore or longshoreman relationship. A review of the Scindia

duties reinforces our conclusion that the Scindia duties were

formulated specifically to govern section 905(b) suits between

vessel owners and injured longshoremen. For example, under the

third Scindia duty, a shipowner has a duty to intervene in the

stevedore's operations when it knows of the hazard and knows that

the stevedore cannot be relied upon to remedy it. Scindia, 451

U.S. at 176-78, 101 S.Ct. at 1627. Because a loading stevedore

such as NOSC will never be present when the discharging stevedore

unloads the cargo, the loading stevedore could not be liable under

the third duty.8 As the facts of this case demonstrate, NOSC was

not present in Peoria, Illinois, when CIDC unloaded the cargo.

8
The only conceivable way a loading stevedore could be held
liable under the third Scindia duty would be if someone informed
it that the discharging stevedore could not be relied on to
remedy the situation.

16
Again, this distinction underscores the thrust of Scindia, which

was to prevent resuscitating, albeit under a negligence label, the

unseaworthiness cause of action abolished in 1972 and not to

reformulate the general maritime law governing negligence suits

brought against a party other than a vessel owner.

II. Standard of Care

Having determined that Scindia does not apply to the facts of

this case, we must turn to the issue of the duty owed by a loading

stevedore to a discharging longshoreman. We hold that a loading

stevedore must load the cargo so that an expert and experienced

stevedore will be able to discharge the cargo with reasonable

safety by exercising reasonable care. Federal Marine Terminals,

Inc. v. Burnside Shipping Co., 394 U.S. 404, 414-15, 89 S.Ct. 1144,

1150, 22 L.Ed.2d 371 (1969). We find that the district court

applied the correct standard of care under the general maritime law

and thus will not disturb the district court's finding that NOSC's

drop stow was such that an expert and experienced stevedore could

not, despite the exercise of reasonable care, safely unload the

steel cargo. Accordingly, we reject NOSC's argument that the

district court improperly applied a general layman's reasonableness

standard.9

9
In its brief, NOSC seizes upon the district court's phrase
"reasonable care under the circumstances" as evidence that the
district court improperly applied a general layman's
reasonableness standard. The phrase "reasonable care under the
circumstances" is merely a way of paraphrasing the applicable
standard of care. In fact, the Court in Scindia employed this
shorthand to describe the precedent upon which NOSC relies:

"We held in Marine Terminals v. Burnside Shipping

17
III. District Court Findings

NOSC contends that the district court's findings that it was

negligent and that CIDC was not contributorily negligent are

clearly erroneous. We disagree. We review a district court's

findings of fact for clear error and will not reverse a finding of

fact unless a review of the entire record leaves us "with the

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

Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 121 (5th

Cir.1994) (citation omitted). We hold that the evidence taken as

a whole adequately supports the district court's findings.10

NOSC next argues that the district court erred in calculating

the damages for pain and suffering and future wage losses. We

disagree again. Based upon our review of the record as a whole, we

Co., that the vessel owes to the stevedore and his
longshoremen employees the duty of exercising due care
"under the circumstances.' This duty extends at least
to exercising ordinary care under the circumstances to
have the ship and its equipment in such condition that
an expert and experienced stevedore will be able by the
exercise of reasonable care to carry on its cargo
operations with reasonable safety to persons and
property...." Scindia, 451 U.S. at 166-67, 101 S.Ct.
at 1622 (citations omitted).
10
Because we uphold the district court's finding that CIDC
was not negligent, we need not reach NOSC's claim that the
district court improperly denied its contribution claim against
CIDC.

NOSC also argues that the district court applied the
improper causation standard. NOSC asserts that its
negligence, if any, was not the legal cause of Couch's
injuries, instead alleging CIDC was negligent in
repositioning the steel bundles during the offloading
process. Because we uphold the district court's findings
that NOSC was negligent and that CIDC was not negligent, we
reject NOSC's argument and hold that the district court
applied the correct causation standard.

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are unable to conclude that the district court's damage awards are

clearly erroneous.

IV. Prejudgment Interest

NOSC also challenges the district court's award of

prejudgment interest on the entire $1,150,000 pain and suffering

award. The award of prejudgment interest in admiralty cases "is

the rule rather than the exception, and, in practice, is well-nigh

automatic." Reeled Tubing, Inc. v. M/V Chad G, 794 F.2d 1026, 1028

(5th Cir.1986) (citation omitted). Prejudgment interest, however,

may not be awarded with respect to future damages. Boyle v. Pool

Offshore Co., Div. of Enserch Corp., 893 F.2d 713, 719 (5th

Cir.1990); Pickle v. International Oilfield Divers, Inc., 791 F.2d

1237, 1241 (5th Cir.1986), cert. denied, 479 U.S. 1059, 107 S.Ct.

939, 93 L.Ed.2d 989 (1987).

In Boyle, this Court vacated the district court's award of

prejudgment interest on plaintiff's $195,910 recovery for general

pain and suffering and remanded it to the district court to

calculate what proportion of the damages, if any, represented

compensation for future pain and suffering. Boyle, 893 F.2d at

718. In this case, the judgment does not state what proportion of

the pain and suffering award is for future damages.11 Because it

appears to have included the award of prejudgment interest on

damages for future pain and suffering, we must vacate this portion

11
The district court described the pain and suffering award
as compensation for "[p]hysical pain and suffering, disability,
impairment, and mental anguish." The court's findings do not
divide the pain and suffering award as between that in the past
and that to be undergone in the future.

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of the judgment and remand it to the district court for a

determination of what proportion of the pain and suffering award

represents future damages.

Conclusion

For the foregoing reasons, the judgment of the district court

is

AFFIRMED in part; VACATED in part; and REMANDED.

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