Fisher v. Nichols

81 F.3d 319
Court of Appeals for the Second Circuit·Decided April 11, 1996·No. Nos. 141, 258, Dockets 94-7696, 94-7728·Published·Cited by 7 cases

Opinion

WALKER, Circuit Judge.

Defendant Stephen R. Nichols appeals from a judgment of the United States District Court for the Southern District of New York (Mark D. Fox, Magistrate Judge), following a jury verdict for Plaintiff Alexander Fisher. In August 1987, Fisher was injured during a sailing race while serving as a crew-member aboard the OBSESSION, a seventy foot oceangoing sailboat owned by Nichols. Fisher was struck by the boom sheet during a jibe and suffered spinal injuries to his back and neck. Fisher sued Nichols under § 33 of the Merchant Marine Act of 1920, 46 U.S.CApp. § 688 (the “Jones Act”), and under the unseaworthiness doctrine of general maritime law. The parties consented to a jury trial before a magistrate judge pursuant to 28 U.S.C. § 636(c). On October 23, 1993, following an eleven-day trial, the jury found for Fisher on the Jones Act claim and for Nichols on the unseaworthiness claim. The jury awarded Fisher damages for pain ($65,-000), future pain ($155,000), medical expenses ($28,000), and future medical expenses ($75,-000) as a result of injuries sustained while Fisher was employed aboard Nichols’s yacht. The magistrate judge discounted to present value the award for future pain and entered a judgment accordingly.

On appeal, Nichols argues: (1) that the jury’s finding that Fisher was a “seaman” covered by the Jones Act was not a reasonable conclusion from the facts or, alternatively, that as a matter of law, Fisher was not a Jones Act “seaman”; (2) that the jury erred in awarding Fisher $75,000 in future medical costs because proof of such costs was speculative; and (3) that the magistrate judge erred in not discounting to present value the award for future medical costs. On cross-appeal, Fisher argues that the magistrate judge should not have discounted the award for future pain.

The judgment of the district court is affirmed.

DISCUSSION

I. Fisher’s Status as a Jones Act Seaman

The first question for resolution is whether Fisher is a “seaman” entitled to protection under the Jones Act, which provides as follows:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply .... Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

46 U.S.C.App. § 688(a). Whether Fisher is a “seaman” is a mixed question of law and fact. McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991).

Although, as is evident from the language of the statute, the Jones Act covers “seamen” who are “injur[ed] in the course of [their] employment,” it does not define these terms. We have no trouble concluding that the district court’s finding that Fisher was employed by Nichols aboard the OBSESSION was not clearly erroneous. Fisher’s trial testimony, which was credited by the jury, revealed that in exchange for working aboard the OBSESSION, he was paid $250 cash and was reimbursed for travel expenses.

The question whether Fisher is a “seaman” and thus entitled to Jones Act recovery is more difficult. Because the statute does not define this term, the task has been left to the courts. The circuits have, however, set forth inconsistent standards to be applied in determining whether a Jones Act plaintiff is or is not a seaman. See, e.g., Latsis v. Chandris, Inc., 20 F.3d 45, 52-55 (2d Cir.1994) (requiring employment-related connection to a single vessel or group of vessels and a contribution to the work of the vessel that is substantial in terms of duration and nature), aff'd, — U.S. -, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995); Johnson v. John F. Beasley Constr. Co., 742 F.2d 1054, 1061 (7th [322] Cir.1984) (emphasizing the employee’s contribution to the transportation function of a vessel), cert. denied, 469 U.S. 1211, 105 S.Ct. 1180, 84 L.Ed.2d 328 (1985); Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959) (requiring permanent assignment to a vessel or performance of a substantial part of one’s work on the vessel and requiring a contribution to the function of the vessel, the accomplishment of its mission, or to its operation or welfare); Carumbo v. Cape Cod S.S. Co., 123 F.2d 991, 995 (1st Cir.1941) (defining Jones Act “seaman” as “one who does any sort of work aboard a ship in navigation”). Even the Supreme Court has commented that “[o]ur wayward case law has led the lower courts to a myriad of standards and lack of uniformity in administering the elements of seaman status.” McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 353, 111 S.Ct. 807, 816, 112 L.Ed.2d 866 (1991) (internal quotation and citation omitted).

Two recent Supreme Court cases have, however, attempted to clarify the standard for Jones Act seaman status. See Chandris, Inc. v. Latsis, — U.S. -, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995); McDermott, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866. The rule that emerges has essentially two components. The first component examines the plaintiffs employment at the time of the injury and requires that the “employee’s duties ... contribute] to the function of the vessel or to the accomplishment of its mission.” Chandris, — U.S. at -, 115 S.Ct. at 2190 (internal quotations omitted). That test is easily met here and requires no further discussion. Fisher was a crewmember actively employed in carrying out functions designed to effectively sail the OBSESSION during a race.

■ The second component is concerned with whether the plaintiff derives his livelihood from sea-based activities. McDermott laid to rest the idea that in order to qualify for seaman status, one has to aid in the navigation function of a vessel to which he was connected. McDermott held that it is not the employee’s particular job that is determinative; rather, “[t]he key to seaman status is employment-related connection to a vessel in navigation.” 498 U.S. at 355, 111 S.Ct. at 817. However, the Court believed that it was “not called upon [in McDermott ] to define this connection in all details.” Id. Still, it did “hold that a necessary element of the connection is that a seaman perform the work of a vessel.” Id.

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Fisher v. Nichols, 81 F.3d 319 (2d Cir. 1996).

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