                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                April 28, 2006
                       FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk
                       ____________________

                           No. 05-30287
                       ____________________


     JOHNNY MAYS and ALLEN RUSSELL,

                                      Plaintiffs-Appellants

          v.

     JP & SONS INC.; ET AL,

                                      Defendants

     CRESCENT SHIP SERVICE, INC.; BYWATER BOAT WORKS, INC.;
     BOSTON OLD COLONY INSURANCE COMPANY,

                                      Defendants-Appellees

_________________________________________________________________


     In Re: In the Matter of the Complaint of CRESCENT SHIP
     SERVICE, INC., as owner and owner pro-hac-vice, of the M/V
     MR FREDDIE, her engines, tackle, appurtenances, etc., in a
     cause of Exoneration From or Limitation of Liability
     CRESCENT SHIP SERVICE, INC., as owner and owner pro-hac-
     vice, of the M/V MR FREDDIE,

                                      Petitioner-Appellee

          v.

     ISAIAH JOHNSON; ET AL,

                                      Claimants

     JAMES YOUNG,

                                      Claimant-Appellant
_________________________________________________________________


     ISAIAH JOHNSON; ET AL,

                                      Plaintiffs

     JAMES YOUNG,

                                      Plaintiff-Appellant

          v.

     CRESCENT SHIP SERVICE, INC., Etc.;
     BYWATER BOAT WORKS, INC., Etc.,

                                   Defendants-Appellees
_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                          No. 2:04-CV-397
_________________________________________________________________

Before KING, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Johnny Mays, Allen Russell, and James Young, the plaintiffs-

appellants in this matter, claimed that they were injured in a

collision between boats owned by defendants-appellees Crescent

Ship Service, Inc., and Bywater Boats, Inc.    After a bench trial

on the issue of damages, the plaintiffs-appellants appealed to

this court.    All three plaintiffs-appellants now claim that the

district court erred in finding that their testimony was not

credible, and they seek more “adequate” damages.    In addition,

     *
        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.

                                  2
plaintiffs-appellants Mays and Russell argue that the district

court erred by failing to include prejudgment interest in their

damages.   We AFFIRM.

                          I.   BACKGROUND

     Several longshoremen in a crewboat owned by defendant-

appellee, Crescent Ship Service, Inc. (“Crescent Ship”), claimed

that they were injured when their crewboat was struck on February

10, 2003 by a barge pushed by a tugboat owned by defendant-

appellee Bywater Boat Works, Inc. (“Bywater”).1   Among these

passengers were plaintiffs-appellants Johnny Mays (“Mays”), Allen

Russell (“Russell”), and James Young (“Young”) (collectively,

“plaintiffs”).   Each of these three plaintiffs allegedly suffered

injuries in the collision, and each claimed that a debilitating

medical condition resulted from his initial injuries.2   Along


     1
        Collectively, the defendants-appellees will be referred
to as the “defendants.”
     2
        Mays claimed that he hit the side rail of the crewboat
with his back during the collision and collapsed to the deck.
The district court found that he suffered “a soft-tissue injury
resulting from the boat collision,” but it found that his
“allegations of more extensive injuries, such as a herniated disc
and nerve damage, [were] not credible in light of . . . [the
medical] reports.” In re Crescent Ship Serv., Inc., No. 03-2107,
at 4, 2005 WL 221562 (E.D. La. Jan. 27, 2005).
     Russell claimed that he hit the rail of the crewboat with
his back and leg during the collision. After reviewing the
record, the district court found that Russell did suffer “a soft
tissue injury as a result of the accident,” but it found that his
complaints about continuing and future pain and suffering were
not credible. Id. at 7. Citing Russell’s post-accident
“functional capacity evaluation,” the district court found that
Russell “was a minimal symptom/disability exaggerator” who was

                                 3
with nineteen of their fellow passengers, these three plaintiffs

filed suit against the defendants for damages related to injuries

and subsequent medical conditions allegedly caused by the

collision.   The district court considered this admiralty suit

without a jury on December 6-9, 2004, and filed its opinion on

January 27, 2005.     See In re Crescent Ship Serv., Inc., No. 03-

2107, at 1, 2005 WL 221562 (E.D. La. Jan. 27, 2005) [hereinafter

“Crescent Ship I”].    At trial, the defendants stipulated that

they were jointly and severally liable for causing the collision,

and the district court found “that the collision was strong

enough to cause injury to [the] passengers on the crew boat,”

leaving only the issue of damages to be considered for each of

the twenty-two claimants, including Mays, Russell, and Young.

Id. at 2.

     After considering the evidence, the district court declined

to grant Mays any damages for lost past or future wages because

he “did not lose time from work nor does the evidence support a

finding that the boat accident will be a cause of future

disability.”   Crescent Ship I at 4.   The district court awarded



“exaggerating his continued claims of back pain as well as
numbness in his toe.” Id. at 6, 7.
     Young claimed that he injured his wrists, arms, neck, and
back while clinging to the rail of the crewboat during the
accident. Based on medical “findings of objective evidence of
injury,” the district court found “that Young injured his wrists
and neck” in the accident; however, the district court was “not
persuaded that the collision was severe enough to have caused a
herniated disc.” Id. at 26.

                                  4
Mays $2,585.82 for medical expenses through June of 2003, but it

declined to grant him any further medical expenses due to lack of

credible continuing symptoms.     Id.   The district court did not

award Mays any damages for future pain and suffering, but it did

award him $2,500 for past pain and suffering, “taking into

consideration the amount of treatment required and the time

needed to recover from the legitimate soft-tissue injury, but

also taking into account Mays’s lack of credibility and

unnecessary prolongation of his treatment program.”      Id. at 4-5.

      Similarly, the district court also declined to grant Russell

any damages for lost or future wages, noting that he was never

placed on work restriction, and stating that it did “not find

credible Russell’s claims that he is or ever was unable to work.”

Crescent Ship I at 6.     The district court did grant Russell

$1,547 to cover his medical expenses through May of 2003, but it

declined to award him any further medical expenses, again,

largely based on a lack of credible continuing symptoms.      Id. at

7.   The district court did not award Russell any damages for

future pain and suffering, but it did award him $1,500 for pain

and suffering based on the soft tissue injury he suffered as a

result of the accident.

      Young did not make a claim for lost wages, but he did claim

past and future pain and suffering damages as well as medical

expenses.   Noting that Young was both “fully recovered and

gainfully employed,” and based on in part its finding that Young

                                   5
was not a “particularly credible” witness, the district court

granted Young $4,022 for his medical expenses and $8,000 “in

general damages.”     Crescent Ship I at 26.

     In its opinion in Crescent Ship I, the district court

omitted prejudgment interest from its calculations of the various

damage awards for Mays, Russell, Young, and the other nineteen

original claimants.    Nineteen of the original claimants,

including Young but not including either Mays or Russell, filed a

total of three motions for the overlooked prejudgment interest

after the district court filed its opinion.    One of these

motions, filed on behalf of thirteen of the original claimants,

including Young, was timely filed.     The other two motions, filed

on behalf of six of the original claimants, were not timely

filed.   The district court disposed of these postjudgment motions

in a single order filed on April 20, 2005.     See In re Crescent

Ship Service, No. 03-2107, at 1-3, 2005 WL 1038652 (E.D. La. Apr.

20, 2005) [hereinafter “Crescent Ship II”].     In this order, the

district court pointed out that none of the claimants “made any

mention of prejudgment interest in their respective proposed

findings of fact,” but it acknowledged that it had “overlooked

the issue” as all of the original claimants “did pray for

prejudgment interest in their original Complaints.”     Crescent

Ship II, at 2.

     Therefore, the district court granted the claim for

prejudgment interest by the group of thirteen claimants,

                                   6
including Young, who timely filed their postjudgment motion, and

it ordered them to bring a new motion to set an accrual date and

an interest rate.   However, the district court denied the

postjudgment motions for prejudgment interest of six other

claimants because they were filed “over two weeks late,” noting

that under FED. R. CIV. P. 59(e), a postjudgment motion to amend a

judgment for prejudgment interest “must be brought within 10

working days of the entry of the final judgment.”   Crescent Ship

II, at 2-3 (citing, inter alia, Osterneck v. Ernst & Whinney, 489

U.S. 169, 174-77 (1989)).   Mays and Russell do not mention these

motions or the district court’s order in Crescent Ship II in

their brief before this court, and there is no indication in the

record that either ever filed a postjudgment motion to amend for

prejudgment interest, timely or otherwise.

     In this appeal, all three plaintiffs argue that this court

should review their testimony and the medical evidence, vacate

the decision of the district court, and grant them more

“adequate” damages.   In addition, Mays and Russell argue that the

district court erred by failing to award them prejudgment

interest.   In response to the plaintiffs’ common argument, the

defendants point out that the factual findings of the district

court, including damages, are binding unless clearly erroneous.

The defendants also argue that this court should not consider the

prejudgment interest argument advanced by Mays and Russell for

the first time on appeal.

                                 7
                          II.   DISCUSSION

     The jurisdiction of this court over the general claims

raised by all three plaintiffs, which is not contested by any

party to this appeal, is proper pursuant to 28 U.S.C. § 1291.

     Before considering the plaintiffs’ common argument that the

district court erred in its credibility and damage

determinations, we must note that “[a] district court’s

determination of damages is a factual finding that will be set

aside only if clearly erroneous.”     Canal Barge Co. v. Torco Oil

Co., 220 F.3d 370, 379 (5th Cir. 2000) (citing Marine Transp.

Lines, Inc. v. M/V Tako Invader, 37 F.3d 1138, 1140 (5th Cir.

1994)).   Under this clearly erroneous standard, we will reverse a

district court’s determination of damages “only if we have a

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

Canal Barge, 220 F.3d at 375 (citing Mid-Continent Cas. Co. v.

Chevron Pipe Line Co., 205 F.3d 222, 229 (5th Cir. 2000)).

Moreover, this court has repeatedly held that “‘[t]he burden of

showing that the findings of the district court are clearly

erroneous is heavier’” when, as here, “‘the credibility of the

witnesses is a factor in the trial court’s decision.’”     Canal

Barge, 220 F.3d at 375 (quoting Dunbar Med. Sys. Inc. v. Gammex

Inc., 216 F.3d 441, 453 (5th Cir. 2000)).    In this appeal, the

plaintiffs have essentially reiterated the evidentiary claims and

factual assertions that they made before the district court,



                                  8
combined with the additional statement that the district court’s

contrary conclusions were clearly erroneous.       However, we have

found the district court’s damage awards to be well-reasoned,

based as they are upon express references to medical evidence in

the record and specific, convincing descriptions of the

plaintiffs’ lack of credibility.       We decline to disturb them.

     Mays’ and Russell’s claim for prejudgment interest was

asserted in their complaint, but was not asserted in the Pre-

Trial Order (which operates as the final amendment to the

pleadings) or in their request for findings of fact and

conclusions of law.   Nor did they file a motion under FED. R. CIV.

P. 59(e).   It is, therefore, effectively being raised for the

first time on appeal, and we do not consider matters being raised

for the first time on appeal.

                         III.   CONCLUSION

     For the reasons given above, we AFFIRM the judgment of the

district court.




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