     Case: 09-40088    Document: 00511045781        Page: 1     Date Filed: 03/09/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                         March 9, 2010
                                      No. 09-40088
                                                                     Charles R. Fulbruge III
                                                                             Clerk
CONSTANTINOS PALLIS ,


                                          Plaintiff–Appellant
v.

UNITED STATES OF AMERICA,

                                          Defendant–Appellee




                   Appeal from the United States District Court
                   for the Southern District of Texas (Galveston)
                                USDC No. G-07-202



Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
        Constantinos Pallis appeals the result of his maritime trial before the
district court. Pallis sued the United States, as owner of the M/V Cape Flattery,
alleging that the negligence of the ship’s crew and the unseaworthy condition of
the ship caused him to injure his knee. On appeal, Pallis argues that the district
court committed clear error in its assignment of contributory negligence,



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR . R. 47.5.4.
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                                  No. 09-40088

rejection of his unseaworthiness argument, and determination of damages.
      We affirm the district court’s findings on contributory negligence,
seaworthiness, and future lost wages because Pallis has not demonstrated that
the district court clearly erred. However, we find that the district court clearly
erred when it denied Pallis future maintenance and therefore reverse and
remand for a determination of the proper amount.
             I. FACTUAL AND PROCEDURAL BACKGROUND
      Pallis began to work in the merchant marines in 2002, starting in Group
C, the lowest rating. It took Pallis two years to catch a ship. Pallis eventually
joined the crew of the M/V Cape Flattery in 2005. He worked as a wiper, a
position involving various physical tasks, including the removal of trash and
loading and unloading of supplies.
      On the day of his injury, a supervisor assigned Pallis and another wiper
to carry sundry items up and down several levels between the main deck and the
engine room. Pallis and the second wiper worked at this task through the
morning, then took a break for lunch. Pallis returned to the project, alone, in the
afternoon.
      Pallis asked the First Assistant Engineer for help moving the bulky objects
and also inquired about using a crane to lift a net filled with the items. The
First Assistant Engineer told Pallis that the second wiper was assigned
elsewhere and that the crane was not working. However, there were many
chainfalls available throughout the ship to lift heavy objects. Pallis injured his
knee while carrying a piece of steel weighing about fifty pounds from the engine
room to the main deck for disposal.
      Pallis sued the United States under the Jones Act, 46 U.S.C. § 30104,
alleging that the United States, through its agents on board the M/V Cape
Flattery, negligently caused his injury. Pallis also alleged that the M/V Cape
Flattery was unseaworthy under maritime law, claiming that too few seamen

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had been assigned the task resulting in his injury.
      The district court conducted a bench trial and issued findings of fact and
conclusions of law, accompanied by a damages judgment. The district court
found Pallis contributorily negligent for his own injury, assigning him 75% of the
fault. The district court rejected Pallis’s unseaworthiness argument. In its
damages determination, the district court (1) rejected as too speculative Pallis’s
argument that his lost future wages should include an upgrade to a more senior
ship position; (2) found that Pallis would incur expenses for future medical
treatment; (3) established a “reasonable amount” for pain and suffering; and (4)
denied Pallis’s claim for maintenance damages because the court found he had
current earning capacity and would receive damages for future medical
expenses. The district court awarded Pallis 25% of his past lost wages, past and
future medical expenses, and pain and suffering. Pallis’s past damages totaled
$116,481.09 and future medical expenses totaled $78,256. The district court
entered final judgment against the United States for $48,684.27, with pre- and
post-judgment interest. Pallis timely appealed.
                                II. ANALYSIS
      In a bench trial under maritime law, we consider the district court’s
“findings concerning negligence and causation” as findings of fact, subject to a
clear error review. Johnson v. Cenac Towing, Inc., 544 F.3d 296, 303 (5th Cir.
2008).   Similarly, we regard the district court’s findings on “issues of
seaworthiness and negligence” as findings of fact, reviewed for clear error.
Jackson v. OMI Corp., 245 F.3d 525, 528 (5th Cir. 2001) (citing McAllister v.
United States, 348 U.S. 19, 20 (1954)). We also review damage awards for clear
error, Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 121 (5th Cir. 1994)
(citing Graham v. Milky Way Barge, Inc., 824 F.2d 376, 389 (5th Cir. 1987)),
giving the district court “wide discretion” to craft its damage award. Douglass
v. Delta Airlines, Inc., 897 F.2d 1336, 1339 (5th Cir. 1990) (citations omitted).

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        When reviewing for clear error,“[w]e entertain a strong presumption that
the court’s findings must be sustained even though this court might have
weighed the evidence differently.” Johnson, 544 F.3d at 303; see also Avondale
Indus. v. Int’l Marine Carriers, Inc., 15 F.3d 489, 492 (5th Cir. 1994) (stating
that factual findings of the district court are “binding” absent clear error). “A
finding is clearly erroneous when, although there is evidence to support it, the
reviewing court based on all of the evidence is left with the definite and firm
conviction that a mistake has been committed.” Walker v. Braus, 995 F.2d 77,
80 (5th Cir. 1993). The district court’s findings need only be “plausible in light
of the record viewed in its entirety” to survive review. Anderson v. City of
Bessemer City, 470 U.S. 564, 574 (1985).
A.      Contributory Negligence
        1.    The District Court’s Findings
        The district court assigned 75% of the fault to Pallis and 25% to the United
States. The district court found that the only negligence leading to Pallis’s
injury consisted of “miscommunications” attributable to both Pallis and the
United States.
        To support its finding, the district court interpreted Pallis’s request for
assistance and for mechanical support as requests for general assistance, rather
than a request for help moving an object that Pallis believed he could not carry
safely. Based on the response he received, Pallis did not believe that any help
was available to him, and he did not ask for help with the steel plate that caused
his injury. The district court found that because Pallis elected to move the object
that caused his injury, rather than moving lighter items until assistance became
available, he contributed to his injury. The district court also noted that Pallis
could have used available chainfalls, but chose not to do so.
        The district court found that Pallis’s requests for assistance, although
“vague,” were sufficient to put Pallis’s supervisor on notice of the heavy objects

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within Pallis’s work assignment. The district court therefore found that the
United States was contributorily negligent for Pallis’s failure to use chainfalls.
      The district court’s apportionment of liability implies that Pallis bore the
great measure of fault because he failed to wait for human assistance and chose
not to use mechanical aid. Although it is unclear from the district court’s
findings whether the decision not to wait or use mechanical aid stemmed from
the negligent miscommunication, the record shows testimony on “stop-work
authority,” which places the burden on an employee to recognize when a task
exceeds his abilities and requires him to either stop and wait for assistance or
use mechanical help. The parties contested whether stop-work authority was a
recognized maritime doctrine, and the district court did not specifically point to
this concept in its apportionment of liability. The district court did, however, use
its implications to support its findings.
      2.     Whether the Record Supports the District Court’s Findings
      The district court’s negligence finding implies that Pallis was liable for
assuming that neither human nor mechanical means were available or practical,
and therefore his decision to lift the steel plate was primarily attributable to his
own negligence. The district court purported to base its finding of negligence on
the communication between Pallis and his supervisor.            On appeal, Pallis
attempts to shift the inquiry to whether the shipowner violated its duty to
provide him with a reasonably safe place to work after assigning him to move
the trash.
      Pallis claims that a seaman has no obligation to find the safest manner of
performing an assigned task, citing Spinks v. Chevron Oil Co., 507 F.2d 216, 223
(5th Cir. 1975), clarified by 546 F.2d 675 (5th Cir. 1977). Spinks, however, does
not guide our analysis because it was overruled by Gautreaux v. Scurlock
Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc). In Gautreaux, a unanimous
en banc panel held that the reasonable person standard in Jones Act negligence

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cases is that “of the reasonable seaman in like circumstances.” Id. at 339.
Pallis’s argument does not acknowledge the Gautreaux standard. Although a
seaman may not be obligated to find the safest method of performance,
Gautreaux holds that he has a duty to exercise the judgment and acumen of a
seaman with like experience in like circumstances.
        By his own admission, Pallis is a seaman of considerable experience. The
district court found that Pallis, based on his own assumptions, elected to carry
the plate that caused his injury without waiting for human or mechanical help.
Pallis claims that the district court erred when it found him contributorily
negligent because he was following orders to move the trash. Accepting his
argument would make automatons of seamen and abrogate the holding of
Gautreaux. The district court did not clearly err when it found that a seaman
of like experience and training would have waited for human aid or used
mechanical assistance.
        To overcome the district court’s finding that “miscommunication” caused
his injury and his negligence was a contributing factor, Pallis must show that
the district court’s causation finding was implausible upon a view of the entire
record. Anderson, 470 U.S. at 574. Pallis cannot make this showing and his
efforts to shift the inquiry on the standard of care are unavailing. The district
court’s interpretation of the record is not implausible. The record shows that
Pallis was an experienced seaman, assigned the task of transporting objects of
different sizes and weights. He requested assistance—in a general manner—to
complete the task, and then chose to carry a heavy object without waiting for
human assistance or using mechanical aid. The record supports the district
court’s findings on causation. The district court did not commit clear error when
it found Pallis 75% contributorily negligent for his injuries.
B.      Seaworthiness
        Seaworthiness is a doctrine unique to admiralty. An unseaworthy boat

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will not necessarily sink when set in the water; an injured seaman need only
“prove that the owner has failed to provide a vessel, including her equipment
and crew, which is reasonably fit and safe for the purposes for which it is to be
used.” Jackson, 245 F.3d at 527 (citing Gutierrez v. Waterman S.S. Corp., 373
U.S. 206 (1963); Bowner v. Lloyd Brasilerio S.S. Co., 417 F.2d 779 (5th Cir.
1969)). The complaining seaman must also establish a “causal connection”
between the injury and the claimed unseaworthy condition. Id. (citing Caldwell
v. Manhattan Tankers Corp., 618 F.2d 361, 363 (5th Cir. 1980)).
      The district court stated that a vessel is seaworthy if it is “reasonably fit
for its intended purpose.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550
(1960). The district court, citing Meyers v. M/V Eugenio C., 842 F.2d 815, 817
(5th Cir. 1988), also noted that unseaworthiness must involve a defective
condition, not an isolated negligent act or omission. The district court found that
the M/V Cape Flattery was in an activation period, during which its intended
purpose was to prepare for active duty. The district court then concluded that
Pallis had not adequately established a defective condition onboard the M/V
Cape Flattery that rendered it not reasonably fit for its intended purpose. The
district court acknowledged that the physical conditions on the vessel were not
ideal, but found that the imperfect conditions did not present an unreasonable
risk of injury.
      On appeal, Pallis argues that the district court failed to follow our
governing law of seaworthiness because it did not make any findings on his
theory that his supervisors provided too few crew members to safely complete his
assigned task.      Pallis directs us to the Fifth Circuit Pattern Jury
Instructions–Civil, § 4.5, which states that: “if too few persons are assigned to
a given task [or] . . . if the owner of the vessel did not provide an adequate crew
of sufficient man power to perform the task required . . . and this was a
proximate cause of the injury, then the vessel was unseaworthy.” Pallis also

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cites cases which hold that if assigning too few seamen to perform heavy lifting
results in injury, the question of seaworthiness may be presented to a jury. See
Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 728 (1967) (holding that
a party should be allowed to present a theory of unseaworthiness based on
inadequate crew to a jury).
       Pallis’s argument fails because the district court’s findings of fact on the
matter of unseaworthiness satisfy clear error review when combined with the
district court’s negligence findings and apportionment of liability. We have
found that even if the trial court makes “no separate finding of proximate cause,”
it may be “implicit in the trial court’s negligence finding and apportioning of
liability.”   In re Luhr Bros., Inc., 325 F.3d 681, 685 (5th Cir. 2003) (citing
McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403, 433 n.28 (5th Cir. 2001);
Brooks v. United States, 757 F.2d 734, 737 (5th Cir. 1985)).
       The district court found that Pallis’s injury was the result of
miscommunication; it is implicit in this finding that the number of crew on board
the M/V Cape Flattery did not proximately cause Pallis’s injury. The district
court also found that Pallis should have waited for additional human assistance,
implying the availability of other assistance. The district court then ascribed
75% of the blame for the injury to Pallis, noting his failure to wait for assistance
from other crew members or use mechanical aid.
       Although the district court did not explicitly state that Pallis failed to meet
his burden of establishing that understaffing proximately caused his injury, it
is implicit in the district court’s finding that miscommunication caused Pallis’s
injury. Pallis presented his unseaworthiness theory at trial, and it may be
implied from the district court’s findings on negligence that Pallis did not carry
his burden of establishing that the claimed unseaworthiness resulted in his
injury. Jackson, 245 F.3d at 527. The district court did not commit clear error
when it denied Pallis’s unseaworthiness claim.

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C.      Advancement
        Under the Jones Act, an injured seaman may recover damages for loss of
earnings capacity, future lost earnings, medical expenses, and pain and suffering
resulting from his injury. See 46 U.S.C. § 30104. The court determines future
lost earnings with the assistance of expert testimony, taking into account the
injured seaman’s current compensation and future variables such as inflation
and invested rate of return. See, e.g., Williams v. Reading & Bates Drilling Co.,
750 F.2d 487, 491–92 (5th Cir. 1985).
        Pallis worked as a wiper at the time of his injury. The district court found
that Pallis’s lost wages between the date of his injury and the judgment totaled
$99,148, reduced by $21,255 for wages Pallis earned from another employer
during the same time. The district court also found that Pallis had a current
earning capacity greater than his earning capacity at the time of his injury,
noting testimony from Pallis’s treating physician that Pallis could perform
administrative and clerical work and testimony from a defense expert
identifying a number of possible jobs fitting that description.        Because his
current earning capacity exceeded his earning capacity at the time of his injury,
the district court found that Pallis failed to mitigate his damages and could not
recover future lost wages. The district court refused to assign Pallis damages at
a higher pay grade because the court found it too speculative to assume that
Pallis would acquire the required number of days at sea and pass the written
examinations necessary to advance.
        Pallis argues that he is entitled to calculation of future lost wages at a
higher level because he would have advanced from Group C to become a
Qualified Member of the Engine Department, with its accompanying increased
earning capacity. Pallis stated that he would eventually make the requisite
forty additional days of sea time on the assignment that resulted in his injury.
However, the district court also heard evidence casting doubt on the likelihood

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that Pallis would accumulate this sea time.
        The district court found Pallis’s advancement argument too speculative.
Viewing the record in its entirety, this finding is not implausible. We “should be
wary of attempting to second guess the district court, which has the decided
advantage of first hand experience concerning the testimony and evidence
presented at trial.” Graham, 824 F.2d at 388. There is evidence in the record
that it took Pallis some time to catch his first ship, accompanied by testimony
that acquiring the total amount of sea time necessary to advance can be difficult.
The district court did not clearly err when it found that Pallis’s assertion that he
would accumulate the necessary sea time and successfully complete the required
written exams was too speculative to craft a damage award at the higher pay
grade.
D.      Future Maintenance and Cure
        Maintenance and cure are remedies uniquely available to injured seamen,
with a “venerable history in the jurisprudence of admiralty.” Hall v. Noble
Drilling (U.S.), Inc., 242 F.3d 582, 586 (5th Cir. 2001). Maintenance “entitles an
injured seaman to food and lodging of the kind and quality he would have
received aboard the ship,” while cure “encompasses not only the obligation to
reimburse medical expenses actually incurred, but also to ensure that the
seaman receives the proper treatment and care.” Boudreaux v. United States,
280 F.3d 461, 468 (5th Cir. 2002) (citations omitted).
        Courts have granted maintenance awards to injured seamen, like Pallis,
who did not receive food or lodging during their employment. Hall, 242 F.3d at
587. Courts have long held that maintenance “extends beyond the end of the
seaman’s voyage to the time of maximum cure.” Id. at 586. A seaman reaches
maximum cure when “it is probable that further treatment will result in no
betterment in the claimant’s condition.” Rashidi v. Am. President Lines, 96 F.3d
124, 128 (5th Cir. 1996); see also Lirette v. K&B Boat Rentals, Inc., 579 F.2d 968,

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970 (5th Cir. 1978) (affirming a district court’s grant of summary judgment to
an injured seaman for claim of maintenance until maximum cure).
      Pallis made his claim for maintenance and cure during the bench trial.
The district court heard testimony from Pallis that he received maintenance of
$8 per day between his injury and trial, as required by his union contract. The
district court found that Pallis had a current earning capacity for performing
light, clerical work, and combined this finding with its award of future medical
expenses (for anticipated knee surgery), to conclude that Pallis could not recover
future maintenance and cure.
      Pallis argues on appeal that the district court clearly erred when it denied
his maintenance claim because the district court awarded Pallis future medical
expenses, and an award for future medical expenses necessarily implies that
Pallis will require time for convalescence and maintenance should be awarded
until “maximum cure.”       Pallis points to the Fifth Circuit Pattern Jury
Instructions–Civil, § 4.11, and claims that he is entitled to future maintenance
payments during his period of convalescence from future surgery.
      In Boudreaux, a district court denied an injured seaman’s motion for
maintenance and cure because it had previously awarded future medical
expenses. 280 F.3d at 469. We reversed because of the illogical nature of the
district court’s award:
      Given the court’s determination that Boudreaux still needed
      therapy to improve his mental condition, it could not have concluded
      that he had reached maximum medical cure. . . . As the court found
      that further treatment would, in fact, improve Boudreaux’s
      condition, it necessarily follows that he has not reached maximum
      medical cure.
Id. The Boudreaux court remanded for a determination of “maintenance in the
amount [the district court] determines to be reasonable.” Id.
      Boudreaux guides our disposition. It is true, as the United States argues,



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that a seaman may recover maintenance for “only such amounts as may be
needful in the immediate future for the maintenance and cure of a kind and for
a period which can be definitely ascertained.” Calmar S.S. Corp. v. Taylor, 303
U.S. 525, 531–32 (1938). When the district court found that Pallis would incur
medical expenses for physical therapy and for a full knee replacement, however,
it implied a definite period of time for the completion of that treatment. Lirette,
579 F.2d at 970 (rejecting a shipowner’s argument that an award of maintenance
until maximum cure was indefinite). We hold that the district court erred when
it refused to award Pallis future maintenance.
      Pallis failed to dispute the district court’s denial of his request for cure.
It is clear from Boudreaux that an award of future medical expenses is not
duplicative of cure because the former sounds in tort while the latter is a
contractual remedy. 280 F.3d at 469. However, because Pallis did not appeal
the district court’s denial of his cure claim, we do not address this matter on
appeal.
                                  III. CONCLUSION
      The    district     court   did    not    clearly   err   when   it   found   that
“miscommunication” caused Pallis’s injury and attributed 75% of the fault to
Pallis’s own conduct. Also, the district court did not clearly err when it failed to
explicitly address Pallis’s unseaworthiness argument, because it implied the
proximate cause of Pallis’s injury in its findings of negligence and apportionment
of liability. Finally, the district court did not clearly err when it denied Pallis’s
claim for higher future lost wages, because its finding that advancement was too
speculative is not implausible from a view of the entire record. We therefore
affirm the district court’s findings on negligence and its rejection of Pallis’s
unseaworthiness claim and claim to future lost wages.
      However, the district clearly erred when it denied Pallis’s claim for future
maintenance, because the district court also awarded damages for future

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medical expenses, implicitly finding that Pallis had not reached maximum cure.
We reverse the district court’s denial of future maintenance and remand for a
determination of the amount to which Pallis is entitled.
      AFFIRMED in part, REVERSED in part, and REMANDED.




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