           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Huss v. The King Company, et al.           No. 02-1010
        ELECTRONIC CITATION: 2003 FED App. 0272P (6th Cir.)
                    File Name: 03a0272p.06                                                  _________________
                                                                                                 COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ARGUED: Joseph Kelly Carley, JAQUES ADMIRALTY
                  FOR THE SIXTH CIRCUIT                                  LAW FIRM, Detroit, Michigan, for Appellant. Robert D.
                    _________________                                    Nienhuis, GOLDSTEIN & PRICE, St. Louis, Missouri, Paul
                                                                         D. Galea, FOSTER, MEADOWS & BALLARD, Detroit,
 MICHAEL B. HUSS ,                X                                      Michigan, for Appellees. ON BRIEF: Joseph Kelly Carley,
          Plaintiff-Appellant,     -                                     Judith A. Schornack-Smith, JAQUES ADMIRALTY LAW
                                   -                                     FIRM, Detroit, Michigan, for Appellant. Robert D. Nienhuis,
                                   -  No. 02-1010                        GOLDSTEIN & PRICE, St. Louis, Missouri, Paul D. Galea,
           v.                      -                                     FOSTER, MEADOWS & BALLARD, Detroit, Michigan, for
                                    >                                    Appellees.
                                   ,
 THE KING COMPANY , INC.;          -
 LAKE MICHIGAN                                                                              _________________
                                   -
 CONTRACT ORS , INC.,              -                                                            OPINION
         Defendants-Appellees. -                                                            _________________
                                   -
                                  N                                         WILLIAM W SCHWARZER, Senior District Judge. This
       Appeal from the United States District Court                      is an appeal from an adverse judgment after trial in an action
  for the Western District of Michigan at Grand Rapids.                  brought by Michael Huss for injuries sustained while
      Nos. 98-00366; 00-00043—Wendell A. Miles,                          employed by defendant King Company, Inc. (King). On
                      District Judge.                                    May 3, 1995, Huss, together with three other King
                                                                         employees, attempted to retrieve a work boat from the yard of
                     Argued: June 11, 2003                               codefendant Lake Michigan Contractors (LMC). As the boat
                                                                         was being hoisted by a crane off its cradle, Huss crawled
              Decided and Filed: August 5, 2003                          underneath the boat to remove a scrap of rope from the
                                                                         propeller shaft. While he was attempting to remove the rope,
        Before: MOORE and GIBBONS, Circuit Judges;                       one of the lines securing the boat to the crane came loose,
             SCHWARZER, Senior District Judge.*                          causing it to fall on Huss. He sustained a compression
                                                                         fracture of the fifth lumbar vertebra and a posterior left rib
                                                                         fracture. After spending one night in the hospital, he was
                                                                         released to home. He returned to work approximately one
                                                                         month after the accident, performing duties that did not
                                                                         require heavy lifting, until August 1997. At that time, he
    *
                                                                         ceased reporting to work, and in December 1997, he
     The Honorable William W Schwarzer, Senior United States District    terminated his employment with King. In May 1998, Huss
Judge for the Northern District of California, sitting by designation.

                                  1
No. 02-1010              Huss v. The King Company, et al.               3    4       Huss v. The King Company, et al.                    No. 02-1010

filed this action alleging claims against King under the Jones               stated the amount of maintenance and cure due to be a
Act, 46 U.S.C.§ 688 et seq., and for unseaworthiness, and                    disputed issue.
against LMC for unseaworthiness and negligence. In January
2000, he filed another action against King alone to recover                     In July and August 2001 the case went to trial before the
maintenance and cure. The two actions were consolidated.                     district judge. At the conclusion of the trial, the court
Following a bench trial, the court awarded Huss damages of                   delivered oral findings stating, among other things, that new
$30,234.73; after reducing this amount by sixty percent for                  evidence had come to light leading the court to determine that
Huss’s comparative fault and crediting King with                             maximum cure had been reached prior to January 1998.2 In
overpayment of maintenance and cure, it entered a take-                      subsequent written findings, the court stated that the prior
nothing judgment. This appeal followed. The district court                   entry of summary judgment for Huss on the issue of
had jurisdiction under 28 U.S.C. § 1333, and we have                         maintenance and cure was “essentially meaningless if by the
jurisdiction under 28 U.S.C.§ 1291. Because the rulings of                   time of the ruling King had already paid all of the
the district court were not clearly erroneous and did not abuse              maintenance and cure to which [Huss] was entitled.” It held
its discretion, we affirm the judgment.                                      that because Huss reached maximum cure sometime between
                                                                             September and December 1997, King properly discontinued
                           DISCUSSION                                        maintenance and cure payments as of January 1998. King
                                                                             had, however, as the court noted, made additional payments
I. THE CLAIM AGAINST KING                                                    following the court’s earlier ruling for the years 1998, 1999,
                                                                             and 2000. The court found that King was entitled to credit for
  A. The Maintenance and Cure Issue                                          those sums toward any judgment on the unseaworthiness and
                                                                             Jones Act claims.3 Huss then filed a post-trial brief, much of
  In July 2000, Huss moved for partial summary judgment on                   it devoted to the maintenance and cure issue. In November
his claim for maintenance and cure.1 The court found that                    2000 the court issued its Supplemental Order Regarding
King had discontinued payment of maintenance and cure on                     Maintenance and Cure addressing the evidence adduced at
January 1, 1998. It held that because Huss had presented
evidence that he had not reached maximum cure and King
had failed to raise a triable issue, Huss was entitled to                        2
summary judgment on liability, leaving the amount due, if                          The court found, inter alia, that Huss provided false information
                                                                             during a med ical history leading the court to question his cred ibility.
any, to be determined. A pretrial order entered in May 2001                  Huss vigoro usly challenges the court’s credibility determination but offers
                                                                             nothing compelling a finding of clear error. See Peveler v. United States,
                                                                             269 F.3d 693 , 702 (6th C ir. 200 1) (“W e are genera lly reluctant to set
    1                                                                        aside credibility determinations made by the trier of fact, who has had the
      A seaman who is injured while in service of a vessel is en titled to
maintenance and cure at the expe nse of the vessel owner. Maintenance        opportunity to view the witness on the stand and assess his demeanor.”).
is a subsistence allowance designed to provide the seam an with              On the merits, the court also found that medical opinion that Huss would
compensation sufficient to pay for his food and lodging until the time of    have benefitted from a second surgery was lacking, partially based on the
maximum cure. C ure is the e mplo yer’s obligation to pay for medical        fact that the physician who performed Huss’s surgery, Dr. Reynaldo
expenses for an injured seaman. The obligation to pay maintenance and        Castillo, expressed the opinion in November 1997 that pain may be
cure continues until the seaman is cured or, if there is permanent           something with which he will have to live.
impa irment, until he reaches the point of m aximum me dical re covery.          3
See Thomas J. Schoenbaum, Admiralty and Maritime Law 369, 372, 375                 The court did not require Huss to repay any amounts he had
(3d ed. 2001 ).                                                              received.
No. 02-1010                Huss v. The King Company, et al.                   5    6      Huss v. The King Company, et al.            No. 02-1010

trial and not previously presented that led the court to find                          the judge subsequently changes the initial ruling and
that maximum cure had been reached before January 1998, as                             broadens the scope of the trial, the judge must inform the
well as the arguments on the issue advanced by Huss.                                   parties and give them an opportunity to present evidence
                                                                                       relating to the newly revived issue. Failure to do so
  Huss’s principal argument on appeal is that the court erred                          might in some circumstances cause substantial prejudice.
in revoking its partial summary judgment determining that
maintenance and cure had not been reached by September                             875 F.2d at 386.
2000. Rule 56(d) authorizes the entry of partial summary
judgment. Fed. R. Civ. P. 56(d). It states that if summary                            Here, the district judge informed Huss of the change of his
judgment is rendered on less than an entire case and a trial on                    initial ruling and gave him an opportunity in post-trial
the remaining claims is necessary, the court                                       briefing to argue that he was entitled to continued payment of
                                                                                   maintenance and cure after January 1998. Although the
   shall if practicable ascertain what material facts exist                        court’s change of its ruling did not occur until after trial, it
   without substantial controversy and what material facts                         was based on the damage evidence relevant to maintenance
   are actually and in good faith controverted. It shall                           and cure presented at trial. Counsel on brief made no attempt
   thereupon make an order specifying the facts that appear                        to show that the post-trial change of the ruling prejudiced his
   without substantial controversy, including the extent to                        trial presentation. At oral argument he conceded that all of
   which the amount of damages or other relief is not in                           the evidence relevant to maintenance and cure had been
   controversy, and directing such further proceedings in the                      presented in support of Huss’s damage claim and that he
   action as are just. Upon the trial of the action the facts so                   knew of no questions he would have asked witnesses had he
   specified shall be deemed established, and the trial shall                      known of the court’s revised ruling. We conclude that the
   be conducted accordingly.                                                       district court did not commit error and that its action did not
                                                                                   prejudice Huss.
We agree with Judge Newman’s analysis of Rule 56(d) in
Leddy v. Standard Dry Wall, Inc., 875 F.2d 383 (2d Cir.                                B. Allocation of Comparative Negligence
1989), in which he stated:
                                                                                      Huss contends that the district court’s allocation to him of
   Once a district judge issues a partial summary judgment                         sixty percent comparative negligence was clearly erroneous.
   order removing certain claims from a case, the parties                          Our review of allocation of fault is for clear error. Phillips
   have a right to rely on the ruling by forbearing from                           Petroleum Co. v. Stokes Oil Co., 863 F.2d 1250, 1255 (6th
   introducing any evidence or cross-examining witnesses                           Cir. 1988). The court’s determination was based on extensive
   in regard to those claims. If, as allowed by Rule 54(b),4                       findings, including that Huss and his coworkers had a duty to
                                                                                   ensure the operation was performed safely, that Huss crawled
                                                                                   under the boat without having been instructed to do so and
     4
      Rule 54(b) provid es that in the absence o f a direction to enter
                                                                                   later admitted that it was stupid, and that he remained under
judgment on one of several claims presented in an action, “any order . . .         the boat when his supervisor crawled out from underneath the
which adjudic ates fewer than all the claims . . . shall not terminate the         boat. Huss argues a different interpretation of the essentially
action as to any of the claim s . . . and the order . . . is subject to revision   undisputed facts but he fails to show that the court’s finding
at any time before the entry of judgment adjudica ting all the claims.”            was clearly erroneous.
Fed. R. Civ. P. 54(b).
No. 02-1010               Huss v. The King Company, et al.                7    8     Huss v. The King Company, et al.             No. 02-1010

  C. Damages                                                                   currently suffers from no serious back disorder and whose
                                                                               physical limitations are self-imposed rather than medically
  As noted above, the district court gave King credit against                  required. He further found that the evidence clearly showed
the damage award for the sums previously paid for                              that Huss was able to return to work for over two years
maintenance and cure to which, under the court’s decision,                     following the accident with his earning capacity
Huss was not entitled. Huss does not contend that the court                    undiminished. While different interpretations of the evidence
lacked the authority to do this. Instead he argues that the                    may be reached, Huss has not shown the court’s findings to
claim for credit was an affirmative defense which was not                      be clearly erroneous. See Fed. R. Civ. P. 52(a); Meyers v.
pleaded as required by Rule 8(c), or raised in the pretrial                    City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994)
order, and was therefore waived. Fed. R. Civ. P. 8(c). We                      (stating that damages present a question of fact subject to
will assume for present purposes that the credit claim was an                  review under the clearly erroneous standard).
affirmative defense. “[T]he purpose of Rule 8(c) is to give
the opposing party notice of the affirmative defense and a                     II. THE CLAIM AGAINST LMC
chance to rebut it.” Moore, Owen, Thomas & Co. v. Coffey,
992 F.2d 1439, 1445 (6th Cir. 1993) (citing Blonder-Tongue                        The district court granted summary judgment for LMC on
Lab., Inc. v. University of Ill. Found., 402 U.S. 313, 350                     all claims. It dismissed the Jones Act claim because it was
(1971)). If a plaintiff receives notice of an affirmative                      undisputed that Huss was not an employee of LMC. It
defense by some means other than pleadings, the defendant’s                    dismissed the unseaworthiness and negligence claims, finding
failure to comply with Rule 8(c) does not cause the plaintiff                  that it was undisputed that King took the boat under a
any prejudice. Id. Huss has not shown how he was                               bareboat charter and that there was no evidence from which
prejudiced by King’s failure to plead the claim as an                          a trier of fact could find a defective condition pre-existing the
affirmative defense. The question whether Huss was entitled                    charter. Our review of summary judgment is de novo. Sargi
to funds paid after January 1998 was directly implicated in                    v. Kent City Bd. of Educ., 70 F.3d 907, 910 (6th Cir. 1995).
King’s opposition to Huss’s claim for maintenance and cure
after January 1998, which was litigated. Moreover, Huss has                       Huss challenges the unseaworthiness ruling, arguing that
pointed to no evidence or argument he would have offered in                    the owner of a vessel is under an absolute duty to furnish a
opposition to the credit claim had it been pleaded. Id.5                       seaworthy vessel. However, the owner of a vessel under a
                                                                               demise (or bareboat) charter is liable only for
  Huss further contends that the damage awards were clearly                    unseaworthiness that pre-existed the charter. Kerr-McGee
erroneous in their insufficiency. He argues that the court                     Corp. v. Law, 479 F.2d 61, 63 (4th Cir. 1973). “[W]hen the
ignored evidence of pain and suffering and of egregious pain                   owner of a vessel enters into a demise charter, he surrenders
precluding past and future work. The court found Huss to be                    all possession and control of the vessel to the charterer. Since
an outwardly healthy person, in no obvious distress, who                       he no longer has the right to control the use of the vessel, he
                                                                               is no longer charged with the duties and liabilities that arise
                                                                               out of its ownership.” Id.; see also, Baker v. Raymond Int’l,
                                                                               Inc., 656 F.2d 173, 181 (5th Cir. 1981); Schoenbaum at 348-
    5
      Huss contends that the district court abused its discretion in denying   49. Because the court found the evidence insufficient to
prejudgm ent interest. Because we up hold the district court’s d ecision to    support a finding that the boat was caused to fall by a failure
credit King with the overpayments of maintenance and cure, resulting in
a take-nothing judgment, the prejudgment interest claim is mo ot.
No. 02-1010          Huss v. The King Company, et al.        9

of the existing lines on the boat, this claim was properly
dismissed.
  Huss also challenges the dismissal of the negligence claim,
arguing that the failure of the rigging raised a genuine issue
as to whether LMC turned over a boat in a dangerous
condition. But the court found that the evidence did not
support a finding that the ropes or lines furnished with the
boat rendered it dangerous and that it was the manner in
which King’s employees performed their work that created
the dangerous situation. This claim was therefore properly
dismissed.
                      CONCLUSION
   We have carefully considered all of Huss’s contentions,
including those not specifically discussed in this opinion, and
find them to be without merit. We therefore AFFIRM the
judgment of the district court.
