                                                            [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                             No. 97-4956
                      ________________________   ELEVENTH CIRCUIT
                                                     09/10/98
                   D. C. Docket No. 92-340-CV-EBD THOMAS K. KAHN
                                                      CLERK
AMERICAN DREDGING COMPANY,
as owner of the tug Marco Island
her engines, tackle,

                               Plaintiff-Counter-Claimant-Appellant,

                                versus

JOSE LAMBERT,

                                Claimant-Counter-Defendant-Appellee,

MARIO PEREZ, as Personal
Representative of the Estate
of Vivian Perez, OLGA PEREZ,
VIVIAN PEREZ,

                                                 Claimants-Appellees.
                      ________________________

          Appeal from the United States District Court
              for the Southern District of Florida
                    _________________________

                        (September 10, 1998)

Before HATCHETT, Chief Judge, BLACK, Circuit Judge, and KRAVITCH,
     Senior Circuit Judge.

BLACK, Circuit Judge:
      A pleasure boat carrying four passengers collided with a floating dredgepipe for

which Appellant American Dredging Company, Inc. (American Dredging) was

responsible. Following a bench trial, the district court found American Dredging

liable to the parents and estates of two individuals killed in the accident. American

Dredging filed this appeal.

                                I. BACKGROUND

      On November 23, 1991, Donald Pietruszka, Vivian Perez, and Juan Renteria

went to a nightclub in Miami Beach, Florida. Around 2:15 a.m., they met up with

Alejandro Lambert. Shortly thereafter, the four of them left and took a ride in a

pleasure boat operated by Lambert. After riding around for a while, Lambert piloted

the boat towards Fisherman's Channel, a navigable channel located on the south side

of Dodge and Lummus Islands.

      That night, American Dredging was conducting a dredging operation in

Fisherman's Channel to deepen the waterway. Some five or six vessels, including a

dredge boat, a work boat, and three or four tugs, were working in the channel. Shortly

before Lambert navigated the boat into Fisherman’s Channel, a large barge and tug

sought access to a dock at the Port of Miami. The dredge boat and the pipeline were

blocking the dock. To permit access, one of the tugs, the Marco Island, opened the

pipeline and moved a portion of it into Fisherman's Channel, causing the dredgepipe


                                          2
effectively to block at least 70 percent of the navigable width of the channel. The

pipeline was dark rust colored with no reflective tape or paint on it, and it was half-

submerged in the water. The pipeline was supported on the water by floating orange

trestles, but, at the time of the accident, was not lit for 300 feet in one direction and

at least 100 feet in the other direction.

      When Lambert entered Fisherman's Channel, he was operating the boat at a

speed of approximately 30 mph. When the pleasure boat approached the pipeline, a

deckhand on the Marco Island waived at the boat. Lambert maintained the boat’s

course and the boat collided with the dredgepipe. All four occupants were ejected

from the boat upon impact. All died except Renteria.

      American Dredging filed a petition for exoneration from or limitation of

liability. Several parties contested American Dredging's right to exoneration from or

limitation of liability and asserted claims under Florida and federal maritime law

against American Dredging, seeking damages resulting from American Dredging's

negligent operation of its vessels and equipment. On cross motions for summary

judgment, the district court held that American Dredging’s negligence precluded both

exoneration from and limitation of liability and that the decedents’ representatives

potentially could recover non-pecuniary damages in the wrongful death suit. This

Court affirmed. See American Dredging Co. v. Lambert, 81 F.3d 127, 130-31 (11th


                                            3
Cir. 1996). On remand, the district court held a bench trial to determine (1) whether

Lambert was comparatively negligent in his operation of the vessel and (2) what

amount of damages would reasonably compensate the survivors of Lambert and

Perez.1

       At trial, American Dredging tried to establish Lambert's comparative negligence

by arguing that Lambert violated statutory rules intended to prevent collisions.

Specifically, American Dredging attempted to prove that Lambert violated the law by

being legally intoxicated, failing to operate the boat at a safe speed, and failing to

maintain a proper lookout. The district court rejected American Dredging’s statutory

violation theories and further concluded that Lambert was not comparatively negligent

because the pipe could not have been seen in time to avoid the accident.2 In its final

judgment, the district court awarded damages for past and future emotional pain and

suffering to Lambert’s and Perez’s parents.3 The district court further awarded


       1
       Renteria and Pietruszka’s personal representative and survivors resolved their claims with
American Dredging prior to trial.
       2
         American Dredging asserts that the district court did not conclude that Lambert was not
intoxicated at the time of the accident. We disagree. The toxicology report was the primary
evidence relied on by American Dredging to establish Lambert’s intoxication on the night of the
accident. The district court expressly ruled that the toxicology report was unreliable and that the
alcohol concentrations indicated in the toxicology report did not accurately reflect Lambert's blood-
alcohol level at the time of the accident. (District Court Order at ¶¶ 11, 16)
       3
         Specifically, the district court awarded $300,000 to Lambert’s mother, $300,000 to
Lambert’s father, $300,000 to Perez’s mother, and $300,000 to Perez’s father for past emotional pain
and suffering and $200,000 to Lambert's mother , $150,000 to Lambert’s father, $200,000 to Perez’s

                                                 4
prejudgment interest on the damage awards for past emotional pain and suffering from

the date of death to the date of the judgment.

                                       III. ANALYSIS

       American Dredging argues that the district court erred by: (1) holding that

Lambert was not comparatively negligent; (2) awarding damages for emotional pain

and suffering to the surviving parents of Lambert and Perez (Claimants) even though

they were not dependent on their deceased children; and (3) awarding prejudgment

interest on the damages for past emotional pain and suffering from the date of death

to the date of the district court’s judgment.

A.     Standard of Review

       In an action tried without a jury, the district court’s findings of fact “shall not

be set aside unless clearly erroneous, and due regard shall be given to the opportunity

of the trial court to judge of the credibility of the witnesses.” Fed. R. Civ. P. 52(a).

We will not hold a factual finding to be clearly erroneous unless “after assessing the

evidence, [we are] left with a definite and firm conviction that a mistake has been

committed.” Worthington v. United States, 21 F.3d 399, 400 (11th Cir. 1994)

(internal quotations and citations omitted). We review the district court’s findings on



mother, and $150,000 to Perez’s father for future emotional pain and suffering. The district court
also awarded $4,066 and $2,581 for funeral expenses to the estates of Lambert and Perez,
respectively.

                                                5
the question of proximate cause and on the ultimate question of negligence under the

clearly erroneous standard. Id. We review the district court’s conclusions of law de

novo. Id.

B.      Comparative Negligence

       American Dredging contests the district court’s conclusion that Lambert was

not comparatively negligent. More specifically, American Dredging argues that the

evidence clearly showed that Lambert violated three statutes designed to avoid

precisely the type of accident that occurred in this case4 and that, under federal

maritime law, the burden shifted to Claimants to prove that Lambert's statutory

violations could not have been a cause of the collision.5 Claimants respond that the

evidence supports the district court's findings that Lambert did not violate any of the

statutory rules relied upon by American Dredging. We agree with Claimants. The

district court’s conclusions that Lambert was not legally intoxicated, not operating at

an unsafe speed, and not failing to keep a proper lookout are not clearly erroneous.

       4
         American Dredging relies upon: (1) Fla. Stat. ch. 327.35 and ch. 327.351 (prohibiting the
operation of a vessel on the waters of Florida while under the influence of alcohol) (ch. 327.351 was
repealed in 1996); (2) 33 U.S.C. § 2006 (requiring vessels to proceed at a safe speed for “the
prevailing circumstances and conditions”); and (3) 33 U.S.C. § 2005 (requiring vessels to maintain
a proper look-out).
       5
         See, e.g., Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1554-55 (11th Cir. 1987)
(discussing application of the rule set out in The Pennsylvania, 86 U.S. (Wall.) 125 (1874), that
“when a ship involved in a collision is in violation of a statutory rule designed to prevent collisions,
the burden shifts to that ship to disprove that the violation was a contributing cause of the
collision”).

                                                   6
Furthermore, the district court’s ultimate conclusion that Lambert was not

comparatively negligent is not clearly erroneous.

       1.      Intoxication.

       At trial, the parties presented conflicting scientific evidence on the issue of

Lambert’s alleged intoxication at the time of the accident. Lambert's body was in the

sea water for between 56 and 59 hours after the accident. It was not until about 78

hours after the accident that forensic studies were conducted using samples of

Lambert’s chest fluid and bile. The test results indicated that Lambert had a blood

alcohol level of .22. To rebut the blood alcohol level test results, Claimants presented

expert testimony from Dr. Richard Jensen that chest fluid and bile are terrible samples

to analyze for alcohol content because they can contain contaminants. Dr. Jensen

further testified about studies in which decomposition alone accounted for blood

alcohol readings as high as .20.6 Dr. Jensen explained the .22 blood alcohol test result

in this case as “a result of either one or a combination of the processes that we have

talked about; that is, either post mortem decomposition or post mortem diffusion of

alcohol, if indeed, [Lambert] consumed just priority [sic] getting on the craft.”

Although American Dredging’s experts disputed the degree to which the factors



       6
         There also was evidence at trial pertaining to studies in which a blood alcohol reading as
high as .22 resulted from decomposition.

                                                7
identified by Dr. Jensen could skew the test results, they acknowledged that the factors

could have some effect.7

       The eyewitness testimony on the issue of Lambert’s alleged intoxication is

virtually uniform in its support for the conclusion that Lambert was not intoxicated

at the time of the accident. Peter Ghaleb, a close friend of Lambert since the third

grade, testified that he had seen Lambert intoxicated on prior occasions and therefore

knew the symptoms Lambert exhibited when intoxicated, including slurred speech,

red eyes, and stumbling. Ghaleb testified that he saw Lambert at a friend’s birthday

party around midnight on the night of the accident. Ghaleb testified that he did not

see Lambert drink any alcoholic beverages at the party and that Lambert did not

display any signs of intoxication that night.

       Renteria, the sole survivor of the accident, also testified that Lambert did not

exhibit any signs of intoxication on the night of the accident. Renteria said that

Lambert did not slur his words, have bloodshot eyes, or have any trouble walking.


       7
          Dr. William L. Hearn, the director of the Dade County Medical Examiner Department's
toxicology laboratory and the individual who prepared the toxicology report in this case, testified
that Lambert's actual blood alcohol level was probably about .20 to .21 to account for testing chest
fluid instead of whole blood. Another American Dredging expert, Dr. John D. Charlesworth,
testified that at the time he performed the autopsy, there was evidence of decomposition in
Lambert’s body. Dr. Charlesworth further testified that ethyl alcohol, the type of alcohol for which
the toxicology laboratory tested, is produced by decomposition where certain microbiological
organisms are involved, but stated that he could not be sure if such decomposition had occurred in
this case. Dr. Charlesworth surmised that decomposition could inflate a blood alcohol reading by
as much as .05.

                                                 8
Renteria did testify that Lambert ordered one beer at the nightclub, but said that

Lambert did not finish it. He further testified that Lambert neither operated the boat

erratically nor acted in any other way so as to create any cause for concern as to his

ability to operate the boat.

       2.      Excessive Speed.

       Lieutenant Eugene Morgan, the Marine Patrol officer who authored the Marine

Patrol investigative report on the accident, testified that 30 mph was an unsafe speed

because of the work going on and the number of boats in Fisherman’s Channel.8

However, Lieutenant Morgan also testified that had there been no obstruction, or had

the vessels been lit properly, there would have been nothing wrong with going 30 mph

in the channel. Lieutenant Morgan further testified that the chief causes of the

accident were the dredgepipe blocking the waterway and the lack of lights.

       3.      Proper Lookout.

       Renteria testified that Lambert faced forward and looked straight ahead while

operating the boat. He also testified that Lambert had no problems negotiating the

boat down a canal to an island and under two bridges before entering the channel

where the collision occurred. Lieutenant Morgan’s investigation also shows that

       8
         Lieutenant Morgan’s report identified four factors that contributed to the accident: (1) the
presumed impaired condition of Lambert (due to the .22 blood alcohol test result); (2) the speed of
the pleasure boat; (3) the lack of required lights on the pipeline; and (4) the interference to
navigation caused by the pipeline extending into the channel.

                                                 9
Lambert operated the boat in other areas with markers and properly lit obstructions

without problems.

       American Dredging relies primarily on statements made by Renteria four days

after the accident and at trial that he observed the dredgepipe three to four seconds

before impact, which American Dredging argues would have given Lambert adequate

time to avoid the collision had he been keeping a proper lookout. However, Renteria

also testified at trial that he saw the dredgepipe less than a second before impact and

that he could not differentiate with certainty between three and four seconds on the

one hand and less than one second on the other.

       Florida Marine Patrol Officer Vincent Peterson, the first police official to arrive

at the scene of the accident, testified that he likely would have hit the dredgepipe as

he approached the accident scene had a tug not shone its spotlight on the dredgepipe.

Peterson testified that the dredgepipe effectively blocked the entire navigable width

of Fisherman's Channel at the time of the accident and that the “channel seemed

clear . . . until they hit the spotlight on the pipe.”9




       9
        In concluding that the dredgepipe was difficult to see, the district court also relied on a
videotape of the scene taken shortly after the accident.

                                                10
      4.     Conclusion.

      Based upon the evidence presented at trial, we hold that the district court’s

factual findings that Lambert did not violate the statutory rules relied upon by

American Dredging are not clearly erroneous and therefore reject American

Dredging’s argument that the district court erred in failing to shift the burden of proof

to Claimants to establish that Lambert was not comparatively negligent. Moreover,

we hold that the evidence supports the district court’s conclusion that Lambert was not

comparatively negligent.

B.    Damages For Emotional Pain and Suffering

      American Dredging argues that the district court’s award of non-pecuniary

damages to Claimants under the Florida Wrongful Death Act conflicts with the

longstanding maritime rule that such damages are not available to non-dependent

parents of adult children and that the award therefore should be vacated.

      In American Dredging’s first appeal, another panel of this Court concluded that

Claimants could recover the non-pecuniary damages available under Florida law.

American Dredging, 81 F.3d at 130-31. American Dredging has put forth no grounds

on which we may reconsider that decision.




                                           11
C.    Prejudgment Interest on Damages For Past Emotional Pain and Suffering

      American Dredging contends that the district court erred by ordering it to pay

prejudgment interest to Claimants on the damage awards for past emotional pain and

suffering. We agree.

      Because Florida law provides the basis for recovery of damages for emotional

pain and suffering, Florida law must be applied to determine whether the prejudgment

interest award is proper. Cf. Royster Co. v. Union Carbide Corp., 737 F.2d 941, 948

(11th Cir. 1984) (“In a diversity case we follow the state law governing the award of

interest.” (citation omitted)).

      Under Florida law, “a claim becomes liquidated and susceptible of prejudgment

interest when a verdict has the effect of fixing damages as of a prior date.” Argonaut

Ins. Co. v. May Plumbing Co., 474 So.2d 212, 214 (Fla. 1985); see also Alvarado v.

Rice, 614 So.2d 498, 499 (Fla. 1993) (“a plaintiff is entitled to prejudgment interest

when it is determined that the plaintiff has suffered an actual, out-of-pocket loss at

some date prior to the entry of judgment”). “Personal injury plaintiffs are generally

not entitled to prejudgment interest because the damages are uncertain and are not

liquidated until determined by the jury.” Griefer v. DiPietro, 708 So.2d 666, 673 (Fla.

Dist. Ct. App. 1998); see also Lumbermens Mut. Cas. Co. v. Percefull, 653 So.2d 389,

390 (Fla. 1995) (“[T]ort claims are generally excepted from the rule allowing


                                          12
prejudgment interest, primarily because tort damages are generally too speculative to

liquidate before final judgment.”); Argonaut Ins. Co., 474 So.2d at 214 n.1 (“We are

mindful that this Court has ruled that prejudgment interest is not recoverable on

awards for personal injury.” (citations omitted)).

      Claimants in this case are analogous to personal injury plaintiffs – their

damages were uncertain and unliquidated until determined by the district court. The

district court divided the awards for emotional pain and suffering into two categories

– one for past emotional pain and suffering and one for future emotional pain and

suffering. This division demonstrates that damages for emotional pain and suffering

compensate for injury suffered over time, not injury suffered as of a certain date. We

therefore hold that the district erred in awarding prejudgment interest on the damage

awards for past emotional pain and suffering.

                                III. CONCLUSION

      We affirm the district court’s conclusion that Lambert was not comparatively

negligent and the district court’s award of damages to Claimants for emotional pain

and suffering. We reverse and vacate the award of prejudgment interest on the

damage awards for past emotional pain and suffering.

      AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART.




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