Present: All the Justices
CHRISTOPHER T. HALE
v. Record No. 111389
MAERSK LINE LIMITED OPINION BY JUSTICE S. BERNARD GOODWYN September 14, 2012 MAERSK LINE LIMITED
v. Record No. 111390
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH James C. Hawks, Judge
In this appeal, we consider whether the circuit court
erred in remitting a jury verdict awarding compensatory and
punitive damages to a seaman injured while on authorized shore
leave in a foreign port.
Background
Christopher T. Hale filed this action in the Circuit Court
of the City of Portsmouth in March 2009 to recover maintenance
and cure and compensatory and punitive damages from his former
employer, Maersk Line Limited (Maersk). Hale claims that he
suffers post-traumatic stress disorder and depression as a
result of being "gang-raped," on or about July 14, 2008, by
uniformed Korean police officers while he was on authorized
shore leave from a Maersk ship docked in Yosu, Republic of
Korea. In his first amended complaint, Hale alleged five counts against Maersk: (1) negligence and unseaworthiness; (2)
failure to provide maintenance and cure; (3) wrongful
termination; (4) violation of Title VII of the Civil Rights Act
of 1964, 41 U.S.C. § 2000e et seq.; and (5) intentional
infliction of emotional distress. Hale sought $50,000,000 in
compensatory and punitive damages.
Prior to trial, Hale's wrongful termination, Title VII and
intentional infliction of emotional distress claims were
struck. Also, the circuit court ruled that Maersk did not owe
Hale a duty of care under either the Jones Act, 46 U.S.C.
§ 30101 et seq., or the general maritime law, including the
duty to furnish a seaworthy vessel, at any time on the relevant
dates when Hale was ashore on authorized leave in Yosu. It
ruled that, to the extent Maersk owed Hale a duty of care
during the relevant time period under either the Jones Act or
the general maritime law, such duty did not arise until Hale
returned from authorized shore leave to the vessel on which he
was working.
Hale proceeded to trial on three remaining claims: a
claim for maintenance and cure, plus actual and punitive
damages for unreasonable, willful and wanton refusal to provide
maintenance and cure; a Jones Act claim for negligence after
Hale’s return to the ship; and a claim based on the
2 unseaworthiness of the vessel due to the crew’s incompetence
after Hale’s return to the ship.
During trial, after the defense rested, Hale moved to
strike Maersk's defense of willful misconduct. The circuit
court overruled the motion.
Maersk then moved for summary judgment as to the
maintenance and cure claim for compensatory and punitive
damages on the ground that a plaintiff seeking maintenance and
cure needed medical evidence. Maersk asserted that Hale failed
to provide evidence that he was unfit for duty, and there was
no evidence of a willful and callous disregard to pay Hale
maintenance and cure. The circuit court overruled the motion.
Maersk proffered an instruction concerning the Jones Act
and seaworthiness claims that quoted the circuit court’s pre-
trial ruling:
Maersk owed no duty of care to Hale under either the Jones Act or the general maritime law, including the duty to furnish a seaworthy vessel, at any time on July 13th and July 14th, 2008 while Hale was ashore on authorized shore leave from the MAERSK RHODE ISLAND.
The circuit court refused the instruction but stated that
Maersk could argue the point of the instruction to the jury
during its closing. Maersk did not object to Hale’s
instructions concerning the award of compensatory and punitive
damages on the maintenance and cure claim.
3 The jury returned a general verdict awarding Hale
$20,000,000 in compensatory damages and $5,000,000 in punitive
damages. Maersk moved to set aside the verdict and for a new
trial, asserting that the award of compensatory damages was
excessive and that several erroneous rulings undermined the
fairness of the trial.
Maersk also requested that the circuit court reconsider
and grant its summary judgment motion made at the close of the
evidence. Maersk asserted that it was entitled to summary
judgment on Hale's maintenance and cure claim for compensatory
and punitive damages because Maersk had a reasonable defense as
a matter of law: Hale's willful misconduct and failure to
provide medical information to substantiate his entitlement to
maintenance and cure. Hale responded, asserting that Maersk
had waived its argument regarding its motion and that the
jury's verdict was not contrary to the law or evidence.
During a post-trial hearing, the circuit court stated that
it found the jury verdict "shocking" and "appallingly excessive
in comparison to the injury that was actually proven." The
circuit court also ruled "that compensatory damages, and
especially punitive damages, for denial of maintenance and cure
4 were not warranted by the evidence and the defendant's Motion
to Strike should have been granted." 1
The circuit court opined that submitting evidence of
Maersk's net worth to the jury may have "unfairly enlarge[d]
the amount of the damages." However, it concluded that a
retrial on damages offered "no better recourse since it . . .
assumes the jury's determination of liability was unaffected by
the evidence and arguments as to denial of maintenance and cure
. . . ." Thereafter, the circuit court granted Maersk’s motion
for partial summary judgment precluding Hale’s recovery of
compensatory and punitive damages associated with Maersk’s
denial of maintenance and cure, set aside the punitive damages
award, and remitted the compensatory damages award to
$2,000,000. Hale accepted the remittitur under protest and the
circuit court entered judgment against Maersk for $2,000,000.
Both parties appeal.
Facts
Maersk is an American shipping company headquartered in
Norfolk, Virginia that operates a fleet of merchant ships,
which are deployed world-wide. In July 2008, the tanker MAERSK
RHODE ISLAND was under contract with the United States Military
1 Maersk characterized its motion as a motion for summary judgment during trial and in its post-trial motions, and the circuit court refers to it as such in its final order.
5 Sealift Command, primarily delivering jet fuel to United States
military installations in the Far East. Hale was a
steward/baker aboard the MAERSK RHODE ISLAND when it made a
port call at Yosu, Republic of Korea on July 13, 2008.
Maersk granted permission to members of the crew of the
MAERSK RHODE ISLAND to take authorized shore leave while the
vessel was in the port of Yosu. Maersk made arrangements for
its crew members to be transported between the vessel and
certain drop-off and pick-up locations. Maersk coordinated
this transportation with its local agents.
Hale, along with other crewmembers of the MAERSK RHODE
ISLAND, was transported to a drop-off location in Yosu. Hale
traveled with First Assistant Engineer, Henry Matuszynski;
Third Assistant Engineer, Darrin Heard; Deck Cadet, Gina
Gottschalk; and Engine Cadet, Margaret Edwards. After arriving
in town, Hale, Matuszynski, Heard, Gottschalk, and Edwards went
together to a restaurant where they consumed food and drinks,
including beer and a local alcohol known as Soju. 2
Hale believes that at some time before he departed the
restaurant, he ingested, without his knowledge or consent, a
drug or other substance that caused him to become disoriented,
fearful for his personal safety, and incapacitated. Hale
2 Soju is a diluted grain alcohol with an 18-20% alcohol content.
6 testified that he informed Matuszynski that he was not feeling
well and Matuszynski responded with a wink and patted Hale on
the shoulder, stating that everything would be okay. Hale
testified that "for whatever reason," Matuszynski's response
made Hale feel "threatened" and "very afraid." Hale "ran off"
and hid behind a dumpster down the street. He eventually ran
across the street to hide under a car parked in a parking lot.
Hale's next memory is being in a police car, with the
police "punching," "smothering," and "suffocat[ing]" him. Hale
testified that the Korean police officers then dragged him out
of the car and hit his face fifteen times or more, kicked him,
exposed themselves to him and raped him. Hale also stated that
the Korean police officers forced him to drink alcohol. At
some point during the ordeal, Hale recalls someone, who Hale
believes was a tall Korean who was possibly the ship's agent,
said "I know you" and kicked Hale between the eyes, rendering
him unconscious.
Hale next remembers waking up lying on the floor of a van.
Hale asked the driver to return him to the ship, but instead,
the driver offered to take him to a hotel. Hale refused to go
anywhere with the agent and insisted on being taken to the
ship. The driver returned Hale to the ship around 2:30 a.m. on
July 14, 2008.
7 Chris Townsend, the chief mate, was awakened by a
telephone call from the duty officer informing him that a
member of the crew had a problem. Townsend went to the main
deck and came upon Hale in the mess hall. Townsend testified
that it was apparent that Hale had been drinking. Townsend
observed the smell of alcohol on his breath, his lack of motor
skills, and rambling conversation. Hale informed Townsend that
Hale had been assaulted by four military personnel and the
ship's agent, who together held him down and poured Soju down
his throat.
Captain James Walker, who had also been contacted by the
duty officer, arrived at the mess hall later. Walker observed
that Hale's eyes were bloodshot, his speech was slurred, and he
smelled of alcohol. Hale informed Walker that he had been
drinking and that he had a "scuffle" with the police. Later,
according to Walker, Hale elaborated that four Korean soldiers
attacked him and that the Koreans remembered him from when he
was in the Army and they were out to get him. Walker testified
that Hale told him that after that attack, as Hale was on his
knees crawling toward what he thought was a sentry post for a
8 U.S. military base, 3 four Korean police officers grabbed him and
assaulted him.
Walker began to administer a breathalyzer test to Hale.
Maersk has a zero tolerance policy for drugs and alcohol and
the captain is authorized to fire a seaman for being
intoxicated on board. At that point, according to Walker, Hale
said, "[W]hat if I told you that they held me down and poured
liquor down my throat? Would you still breathalyze me?"
Walker claims he asked Hale whether this happened but Hale did
not respond. Hale then asked, "[W]ould you still breathalyze
me if they pulled my pants down and stuck a bottle up my butt?"
Again, according to Walker, Hale did not respond when Walker
asked him whether that happened. Walker testified that he
believed Hale was "trying to talk himself out of getting
fired." Walker administered the breathalyzer test.
Before leaving the mess hall, Hale contacted Daniel
Laitinen, the ship's union representative, and asked him to
come to speak with him. Laitinen observed that Hale had a
black eye. Laitinen testified that Hale told him that four or
five people, including the ship's agent, sat on top of him and
poured whiskey and Soju down his throat until he was drunk and
3 There is no U.S. military base in Yosu. Walker testified that the closest base was about a two and a half hour car ride away.
9 then raped Hale with Coke bottles. Hale said that his
assailants remembered him from when he was in the Army.
Hale testified that he told Walker what had happened and
that he wanted medical care. Walker told him he would get him
to a hospital. Hale refused to go anywhere with the ship’s
agent due to his belief of a Korean conspiracy. Hale wanted a
marshal or crew member to take him to a hospital. Hale was
escorted to his stateroom and fell asleep.
Walker testified that he contacted the ship's agent,
Young-Min Ga, to discuss what happened and arrange
transportation for Hale to see a doctor. Walker then called
Catherine O'Connell, Maersk's claims manager. Upon advice from
O'Connell, Walker called Marine Medical Access and spoke with
Dr. Neal Sikka at George Washington Hospital. Dr. Sikka
advised Walker to get Hale to a doctor "fairly quickly."
Walker testified that because of Hale’s adamant refusal
concerning being sent ashore with the ship’s agent for medical
treatment, and because Hale’s only apparent injury was a black
eye, Walker decided to let Hale "sleep it off," then "get him
to a hospital when he was sobered up a little bit."
Around 6 a.m., Hale woke up and went to speak to Walker
about receiving medical care. Around 7 a.m. on July 14, 2008,
Hale met with Walker again in Walker's cabin. Walker attempted
to complete a breathalyzer exam but Hale refused because he saw
10 termination papers on Walker’s desk. Walker informed Hale that
Hale was terminated. Hale testified that Walker stated "there
were too many jobs at stake and that people could lose their
jobs because the MSC [Military Sealift Command] contract was
getting ready to expire and he [Walker] just didn't believe my
[Hale's] story." An agent arrived around 9:40 a.m. to take
Hale ashore.
After leaving the ship, Hale was transported to the St.
Paul Surgical Center in Yosu, where he met with a Korean doctor
who did not speak fluent English. Hale testified that he asked
the doctor to examine him for sexual assault, but once Hale
indicated that he believed the Korean police had raped him, the
doctor refused to perform the sexual assault exam. The doctor
reported that the test results for five types of drugs,
including alcohol, were negative and that Hale had contusions
on his head and back.
Maersk arranged for Hale to be flown to Seoul and then
eventually to the United States. Upon his arrival in the
United States, Hale's wife took him to a hospital in
Williamsburg, Virginia, where Hale checked into the emergency
room at 8:27 p.m. on July 15, 2008. He reported that he had
been attacked and possibly sexually assaulted. Dr. Kimberly
Kaminer examined him at 11:30 p.m. and determined that he had
pain with a bruise around his left eye and "some internal
11 tenderness on rectal exam." Other than the black eye, Hale did
not have objective signs of trauma.
In August 2008, Hale contacted Georg Kenny, his union
representative, and informed him that he had been "kidnapped,
raped and tortured ashore in Korea." Kenny explained the
grievance process concerning termination of employment and Hale
attended a meeting with a Maersk representative on August 27,
2008. Hale gave the Maersk representative a written statement
concerning the assault.
On October 9, 2008, Kenny contacted O'Connell to inform
her that he had discussed maintenance and cure with Hale.
O'Connell spoke with Hale and he informed her of what he
alleged happened to him in Yosu. O'Connell indicated that she
would review the file and requested that Hale send her any
medical documentation to support his claim for maintenance and
cure. Hale did not send her any medical documentation.
O'Connell reviewed the file, including a statement from Walker,
and attempted to contact the other officers that were involved.
O'Connell later reviewed statements from the agent and the
Korean doctor as well as a report from the Williamsburg
hospital, received from Kenny, concerning Hale’s injuries and
treatment. She relied on those statements and reports in
determining whether to provide Hale maintenance and cure.
12 As a result of her investigation, O'Connell stated that
she "only had information that Mr. Hale had a black eye." She
testified that she had no information that indicated "he would
not be fit for duty for any other reason," and denied his
request for maintenance and cure. In December 2008, Hale
became employed with Sealift, Incorporated, earning more money
than he had while on the MAERSK RHODE ISLAND or in any of his
previous positions. Hale filed this action in March 2009.
As a result of this experience, Hale testified that he
feels "humiliated, worthless, hopeless, [and] disgusted" and
has tried on multiple occasions to kill himself. His
psychologist, Dr. K. Jeffrey Schlichter, who started to treat
Hale on August 23, 2010, testified that an important aspect of
recovering from a brutal sexual assault is being treated
immediately. The longer one goes without appropriate rape
counseling, the worse the trauma tends to become. Dr.
Schlichter testified that his prognosis of Hale and his
prospects for recovery were "[g]ood with continued treatment
over an undefined long period of time." He testified that he
does not believe Hale has reached a level of maximum
improvement from what he suffered on July 14, 2008. Dr.
Schlichter could not separate Hale's damages between the actual
assault as opposed to Maersk's alleged refusal to provide
appropriate medical care. Although Hale became employed in
13 December 2008, returning to sea interferes with Hale's
psychological treatment schedule.
Analysis
Hale asserts that the circuit court erroneously set aside
the verdict for compensatory damages and ordered remittitur,
erroneously set aside the punitive damages he was awarded, and
erroneously granted Maersk’s post-trial motion for summary
judgment on his maintenance and cure claims.
Maintenance and Cure
In support of his contention that the circuit court erred
in granting Maersk’s post-trial motion for summary judgment,
Hale argues that Maersk waived its motion to strike made at the
close of the evidence by not objecting to related jury
instructions. Hale also claims that ample evidence existed to
support a finding that Maersk's decision not to provide
maintenance and cure caused him devastating emotional damage,
and Maersk conducted no medical investigation before summarily
firing Hale and persistently denying him maintenance and cure.
Maersk argues that it was properly entitled to judgment on
Hale's maintenance and cure claim for both compensatory and
punitive damages because Maersk had a reasonable defense as a
matter of law. Maersk claims it had substantial evidence that
Hale suffered only minor injuries as a result of his drunken
assault of police officers, and Hale provided no medical
14 evidence that he was unfit for duty or needed more curative
care.
Hale asserts that by not objecting to jury instructions
concerning the award of compensatory and punitive damages on
the maintenance and cure claim, Maersk waived its prior
contention that those damage claims should have been struck.
We disagree.
In WJLA-TV v. Levin, 264 Va. 140, 564 S.E.2d 383 (2002),
this Court stated:
Normally, when a party proffers or agrees to an instruction which is contrary to a position previously argued during trial, the agreed instruction becomes the law of the case, and the party is deemed to have waived its previous objection. However, when the record is clear that the party is not waiving its objection to the prior ruling, but merely proffering or agreeing to an instruction consistent with the trial court’s prior ruling, the previous objection will not be waived.
Id. at 159, 264 S.E.2d at 395 (citations omitted).
As with the defendant in the WJLA case, it is clear from
the post-verdict record that Maersk merely agreed to
instructions consistent with the circuit court’s prior ruling,
and in its motion to set aside the jury’s verdict, Maersk
continued to assert that the claim should have been struck. We
hold that Maersk did not waive its objection to the circuit
court’s ruling denying its motion for summary judgment. The
15 merits of the circuit court’s ruling on Maersk’s motion for
summary judgment therefore must be addressed.
The circuit court's post-trial decision to grant summary
judgment on the maintenance and cure claims 4 is a question of
law. Consequently, this Court reviews that determination de
novo. St. Joe Co. v. Norfolk Redevelopment & Hous. Auth., 283
Va. 403, 407, 722 S.E.2d 622, 625 (2012) ("In an appeal from a
circuit court's decision to grant or deny summary judgment,
this Court reviews the application of law to undisputed facts
de novo.").
Under the general maritime law, "[w]hen a seaman becomes
ill or injured while in the service of his ship, the shipowner
must pay him maintenance and cure, whether or not the shipowner
was at fault or the ship unseaworthy." Morales v. Garijak,
Inc., 829 F.2d 1355, 1358 (5th Cir. 1987). The obligation to
pay maintenance and cure extends to a seaman disabled in the
service of the ship, no matter what the cause, and liability
extends for a fair and reasonable time after the voyage to
effect improvement in the seaman's condition. Calmar S.S.
Corp. v. Taylor, 303 U.S. 525, 529 (1938). "This obligation
includes paying a subsistence allowance, reimbursing medical
4 Both parties seem to agree that the circuit court granted Maersk post-trial summary judgment on the seaworthiness claim as well. However, the circuit court’s final order does not
16 expenses actually incurred, and taking all reasonable steps to
ensure that the seaman receives proper care and treatment."
Morales, 829 F.2d at 1358. "The maintenance exacted is
comparable to that to which the seaman is entitled while at
sea, and 'cure' is care, including nursing and medical
attention during such period as the duty continues." Taylor,
303 U.S. at 528 (internal citations omitted).
In Aguilar v. Standard Oil Co., 318 U.S. 724, 736-37
(1943), the Supreme Court of the United States extended
maintenance and cure to encompass injuries suffered by a seaman
on authorized shore leave who was struck by a motor vehicle
driven by a third party. The Supreme Court considered shore
leave integral to a seaman's life and to his service to his
ship. Id. at 732, 734. In Farrell v. United States, 336 U.S.
511, 516 (1949), the Supreme Court held that a seaman must be
"in the service of the ship" while ashore to qualify for
maintenance and cure; "he must be generally answerable to its
call to duty rather than actually in performance of routine
tasks or specific orders." In the instant case, Maersk is not
disputing that Hale was "in the service of the ship" while on
authorized shore leave in Yosu.
reflect any post-trial summary judgment ruling regarding the seaworthiness claim and, therefore, we will not address it.
17 "Upon receiving a claim for maintenance and cure, the
shipowner need not immediately commence payments; he is
entitled to investigate and require corroboration of the
claim." Morales, 829 F.2d at 1358. After conducting an
investigation, a shipowner is "allowed to rely on certain legal
defenses to deny these claims." Brown v. Parker Drilling
Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005). "A failure
to pay maintenance and cure due an injured seaman is reasonable
if a diligent investigation indicates that the seaman's claim
is not legitimate or if the seaman does not submit medical
reports to document his claim." Morales, 829 F.2d at 1360.
"If, after investigating, the shipowner unreasonably
rejects the claim, when in fact the seaman is due maintenance
and cure, the owner becomes liable not only for the maintenance
and cure payments, but also for compensatory damages." Id. at
1358. A seaman may recover punitive damages only if the
shipowner lacked a reasonable defense and "exhibited
callousness and indifference." Id.; see also Atlantic Sounding
Co. v. Townsend, 557 U.S. 404, 417 (2009) (allowing recovery of
punitive damages in maintenance and cure actions). Because the
shipowner's failure to pay maintenance and cure is not only
unreasonable but the shipowner was egregiously at fault, the
shipowner will be liable for attorney's fees in addition to
punitive damages. Morales, 829 F.2d at 1358.
18 Thus, to determine maintenance and cure liability, there
is a well-established escalating scale of liability:
[A] shipowner who is in fact liable for maintenance and cure, but who has been reasonable in denying liability, may be held liable only for the amount of maintenance and cure. If the shipowner has refused to pay without a reasonable defense, he becomes liable in addition for compensatory damages. If the owner not only lacks a reasonable defense but has exhibited callousness and indifference to the seaman's plight, he becomes liable for punitive damages and attorney's fees as well.
Brown, 410 F.3d at 177 (emphasis omitted) (quoting Morales, 829
F.2d at 1358).
In the instant case, Maersk asserts that it had a
reasonable defense for denying liability because the medical
evidence from two medical exams after the incident both
indicated Hale suffered only contusions, a black eye and some
internal rectal tenderness. Hale never presented medical
evidence to support his claim for maintenance and cure. Maersk
also relied on evidence that Hale's injuries were a result of
his drunken assault of police officers.
When first speaking with Hale about the incident,
O'Connell asked him to provide a doctor's report indicating he
was unfit for duty. Hale responded that he had a doctor's note
from Korea and that he saw a doctor when he got back to
Virginia. O’Connell obtained the doctors’ reports from the
physicians Hale saw in Korea and Virginia. O'Connell never
19 received documentation that Hale was unfit for duty other than
the report from the Korean doctor indicating Hale had
contusions and was prescribed medication for seven days. When
O'Connell spoke with Hale on October 9, 2008, she already had
information in her file, including an e-mail from Walker
summarizing the incident. In November 2008, O'Connell
interviewed Walker and attempted to contact other Maersk
employees who were involved. O'Connell did not have evidence
of injuries other than Hale's contusions and black eye; nothing
indicated he needed further medical care. O'Connell determined
and informed Hale that Maersk did not owe Hale maintenance and
cure.
An employer may be exempt from penalties, if "the employer
deliberately relies on a reasonable, but ultimately wrong,
legal argument to withhold payment." Williams v. Wilmington
Trust Co., 345 F.3d 128, 132 (2d Cir. 2003) (addressing
plaintiff's claim for penalties under the seaman's wage
statutes and finding that "negligent failures to pay are not
comparable to this intentional, good-faith refusal to tender
wages"); see Brown, 410 F.3d at 171 (stating that a Jones Act
employer is entitled to investigate a seaman's claim for
maintenance and cure and rely on certain defenses); Rose v.
Miss Pacific, LLC, 2012 U.S. Dist. LEXIS 2997 at *25 (D. Or.
Jan. 10, 2012) ("Because defendants reasonably asserted the
20 . . . defense, even if they ultimately fail to sustain that
defense at trial, all other actions allegedly taken by them in
bad faith are irrelevant.").
Viewing the evidence in the light most favorable to Hale,
Hale proved that his injuries did not result from his voluntary
intoxication or other misconduct. However, he provided no
evidence to Maersk and Maersk’s investigation revealed no
medical evidence prior to denial of the claim that was
sufficient to support Hale’s claim for maintenance and cure.
Hale did not prove at trial or even allege that any such
medical evidence existed at that time. Hale testified that
Maersk was governed by corporate greed rather than a concern
for the health of its crew, but he did not otherwise present
any evidence suggesting Maersk's denial of his claim was
unreasonable, given its investigation. In this instance,
although its determination may ultimately have been wrong,
Maersk still had an unrefuted reasonable defense underlying its
refusal to provide maintenance and cure.
The circuit court correctly concluded that there was
insufficient evidence to support Hale's assertion that Maersk
was unreasonable in denying his maintenance and cure claim.
Having determined that there was insufficient evidence to prove
that Maersk's reliance on its defense was unreasonable, Hale’s
damages on the maintenance and cure claim were limited to
21 recovery of maintenance and cure benefits. The circuit court
properly granted Maersk’s motion for partial summary judgment
and properly set aside the jury verdict for compensatory and
punitive damages on the maintenance and cure claim. See Brown,
410 F.3d at 178 ("The jury could not rationally have determined
that [the defendant] was unreasonable in relying on this
defense, so their finding constitutes clear error.").
Remittitur
Having found that the circuit court properly struck Hale's
damages, this Court must next consider whether the circuit
court erred in remitting the verdict.
Hale argues that the circuit court erroneously remitted
the verdict because credible evidence supports the jury's
finding that the vessel was unseaworthy and that Maersk
unreasonably denied Hale maintenance and cure. Hale asserts
that the record supports the verdict and does not warrant a new
trial. He asks this Court to reinstate the jury verdict.
Maersk argues that the circuit court abused its discretion
when, after finding that the jury's verdict resulted from an
unfair trial, it ordered remittitur instead of a new trial on
the merits. Maersk claims that the jury was improperly
instructed on a legally invalid theory of liability because the
evidence did not warrant compensatory and punitive damages for
22 denial of maintenance and cure, and that it was also prejudiced
by the evidence and argument regarding its net worth admitted
in support of Hale’s punitive damages claim. We agree that the
circuit court erred by not ordering a new trial.
Code § 8.01-383.1(A) provides authority for a circuit
court to remit a jury verdict:
In any action at law in which the trial court shall require a plaintiff to remit a part of his recovery, as ascertained by the verdict of a jury, or else submit to a new trial, such plaintiff may remit and accept judgment of the court thereon for the reduced sum under protest, but, notwithstanding such remittitur and acceptance, if under protest, the judgment of the court in requiring him to remit may be reviewed by the Supreme Court . . . .
Alternatively, a circuit court may order a new trial.
Code § 8.01-383 provides: "In any civil case or proceeding,
the court before which a trial by jury is had, may grant a new
trial . . . . A new trial may be granted as well where the
damages awarded are too small as where they are excessive."
"In determining whether an excessive damage award requires a
new trial on all issues, a new trial limited to damages, an
order of remittitur, or a judgment confirming the award, a
trial judge is vested with broad discretion, and we will not
reverse his ruling unless the record plainly shows an abuse of
discretion." Ford Motor Co. v. Bartholomew, 224 Va. 421, 434,
297 S.E.2d 675, 682 (1982). A new trial is not mandatory when:
23 the monetary award, though out of proportion to the injuries suffered, is not so excessive as to compel the conclusion that the liability verdict was the product of sympathy for the plaintiff or bias against the defendant. In such case, if the evidence before the jury clearly supports its finding of liability, a trial judge has two options. He may put the plaintiff on terms to accept a remittitur in lieu of a new trial, Code § 8.01-383.1, or he may grant the defendant a new trial limited to damages, Code § 8.01- 383.
Id.
Although a circuit court may order remittitur to remedy an
excessive verdict, it may not use remittitur to remedy an
unfair trial of liability issues. See Agelasto v. Frank
Atkinson Real Estate, 229 Va. 59, 65, 327 S.E.2d 84, 87 (1985)
(observing that a new trial on all issues is necessary when
erroneous admission of evidence, which may have "tipped the
scales," is not harmless); Hope Windows, Inc. v. Snyder, 208
Va. 489, 493, 158 S.E.2d 722, 725 (1968) ("The remittitur
required by the trial judge did not, however, cure the
prejudice on the issue of liability" and therefore "a new trial
on all issues" was necessary.).
When remitting the verdict, the circuit court acknowledged
that the evidence did not support Hale's maintenance and cure
claim for compensatory and punitive damages and the circuit
court should have granted Maersk's motion to strike on that
issue. The circuit court was correct in that regard. Thus,
the jury was erroneously instructed on the maintenance and cure
24 claim and imposed liability for unreasonably failing to pay
maintenance and cure, as evidenced by its award of punitive
damages.
" 'If an issue is erroneously submitted to a jury, [this
Court will] presume that the jury decided the case upon that
issue.' " Herr v. Wheeler, 272 Va. 310, 318, 634 S.E.2d 317,
322 (2006) (quoting Clohessy v. Weiler, 250 Va. 249, 254, 462
S.E.2d 94, 97 (1995)). "[A] substantial error such as this one
'is presumed to be prejudicial unless it plainly appears that
it could not have affected the result.' " Clohessy, 250 Va. at
253-54, 462 S.E.2d at 97 (quoting Spence v. Miller, 197 Va.
477, 482, 90 S.E.2d 131, 135 (1955)). In the instant case,
instructing the jury on compensatory and punitive damages for
Maersk’s unreasonable failure to pay Hale maintenance and cure
clearly affected the result, as the jury awarded punitive
damages on that claim.
Additionally, when a court erroneously allows a party to
try a punitive damages claim to a jury, a new trial on all
remaining contested issues is the appropriate remedy. See
Wilson v. Whittaker, 207 Va. 1032, 1039, 154 S.E.2d 124, 129
(1967) (ordering new trial where trial court improperly allowed
recovery of punitive damages and admitted irrelevant evidence);
PTS Corp. v. Buckman, 263 Va. 613, 621-23, 561 S.E.2d 718, 723-
24 (2002) (error allowing proof relating to punitive damages
25 “influenced the jury’s award of both compensatory and punitive
damages” and a new trial on all issues was ordered). In the
instant case, the circuit court observed that it was error to
allow evidence of Maersk's net worth to be submitted to the
jury, as it "served only to unfairly enlarge the amount of the
damages." In closing argument, Hale's counsel argued that
Maersk's 2009 annual revenue of $1.5 billion justified a
significant award of punitive damages. If the maintenance and
cure claim for punitive damages should not have been before the
jury, this evidence of Maersk's net worth also should not have
been before the jury. "Yet the irrelevant evidence was before
the jury without the court's instructing them that it should
not be considered in fixing the amount of damages." Eubank v.
Spencer, 203 Va. 923, 927, 128 S.E.2d 299, 302 (1962)
(reversing and remanding for new trial because of error noted).
It cannot be said that instructing the jury on
compensatory and punitive damages regarding maintenance and
cure was harmless error. The order of remittitur did not
correct the fact that the circuit court erred by instructing
the jury on Hale's maintenance and cure claim for compensatory
and punitive damages. Thus, the circuit court erred by not
ordering a new trial on all issues after concluding that the
damages should not have been submitted to the jury.
26 Our conclusion requires that we reverse the judgment of
the trial court and remand the case for a new trial. However,
because additional issues raised by the parties in this appeal
may arise on retrial, we will address them here.
Scope of Maersk's Liability
Prior to the trial, the circuit court granted a motion for
partial summary judgment filed by Maersk, ruling that
"Defendant owed no duty of care to Plaintiff under either the
Jones Act, or the general maritime law, including the duty to
furnish a seaworthy vessel, at any time on July 13-14, 2008
when Plaintiff was ashore on authorized shore leave from the
Tank Vessel MAERSK RHODE ISLAND." The circuit court held that
to the extent Maersk owed Hale a duty of care under either the
Jones Act or the general maritime law, such duty did not arise
until Hale returned from authorized shore leave.
Hale argues that the circuit court erred in its pre-trial
ruling on that issue because Maersk is liable under the Jones
Act for its negligence in violating its duty owed to Hale while
he was on shore leave, enabling Hale’s attack by Korean police
officers.
Maersk argues that the circuit court correctly granted its
pre-trial motion for partial summary judgment because, as a
matter of law, Hale was not in the course of his employment
when injured and Maersk did not breach any duty to Hale. Also,
27 it argues that Maersk had no duty to foresee the criminal acts
of third parties. We agree that the circuit court correctly
limited Maersk's liability to its actions once Hale returned to
the ship.
This Court reviews de novo the circuit court's pre-trial
ruling that Maersk breached no duties owed to Hale while he was
on shore leave. See, e.g., Volpe v. City of Lexington, 281 Va.
630, 636, 708 S.E.2d 824, 827 (2011) ("We review the trial
court's ruling de novo, as [t]he issue whether a legal duty in
tort exists is a pure question of law.") (internal quotation
marks omitted). "The employer's duty under the Jones Act 'is
to provide seamen with a safe place to work.' " Martin v.
Harris, 560 F.3d 210, 216 (4th Cir. 2009) (quoting Estate of
Larkins v. Farrell Lines, Inc., 806 F.2d 510, 514 (4th Cir.
1986)). "[T]his duty extends from the vessel to the shore,
provided the seaman is acting 'in the course of his
employment.' " Id. (quoting O'Donnell v. Great Lakes Dredge &
Dock Co., 318 U.S. 36, 39, 43 (1943)). "To prevail on a Jones
Act negligence claim against his employer, a seaman must show
(1) that he is a seaman under the Act; (2) that he suffered
injury in the course of his employment; (3) that his employer
was negligent; and (4) that his employer's negligence caused
his injury at least in part." Id.
28 The Jones Act is not to be interpreted as a workers'
compensation statute and remains "grounded in negligence and
not merely on the fact that injuries occur." Hernandez v.
Trawler Miss Vertie Mae, 187 F.3d 432, 436-37 (4th Cir. 1999)
(internal quotation marks omitted). An employer is liable if
his "negligence played any part, even the slightest, in
producing the injury or death for which damages are sought."
Id. at 436. Negligence is "conduct which falls below the
standard established by law for the protection of others
against unreasonable risk of harm." Id. at 437 (internal
quotation marks omitted). "And the risk included in this
definition is one that is reasonably foreseeable." Id.
Hale argues that Maersk is liable under the Jones Act
because its employees abandoned Hale on shore, knowing that he
was in an intoxicated state. However, courts have indicated
that a shipowner will not be liable when a crew member fails to
escort an intoxicated shipmate from shore leave back to the
vessel. "[I]n cases arising under the Jones Act, it is settled
that it is not within the scope of his employment for a seaman
to aid an intoxicated member of the same crew in returning to
their ship." McClure v. United States Lines Co., 368 F.2d 197,
199 (4th Cir. 1966); see In re Atlass, 350 F.2d 592, 596 (7th
Cir. 1965) ("Whatever the parental duty of a ship's captain may
be, it surely does not require him to forcibly detain every
29 crew member who has had a few drinks or who wishes to go ashore
to do a bit of drinking for relaxation.") (internal quotation
marks omitted). If a seaman voluntarily assumes the duty of
escorting an intoxicated shipmate back to the vessel and
performs this duty unsuccessfully, the seaman's negligence
cannot be imputed to the shipowner. See Robinson v.
Northeastern S.S. Corp., 228 F.2d 679, 681 (2d Cir. 1956)
("Without such authorization [the seaman] was not acting within
the scope of his employment, and his negligence, if any, in
performing his voluntary undertaking could not be imputed to
defendant even if successful performance would further the
interests of the shipowner.").
Similarly, shipowners have no duty to supervise crew
members' leisure activities. In re Atlass, 350 F.2d at 596;
Howard v. M/V Bristol Monarch, 652 F. Supp. 677, 683 (W.D.
Wash. 1987) ("[T]he crew members have a duty to use good sense.
Supervision of the leisure time activities of the crew was not
within the scope of the duties" of the captain.).
Applying these principles to the instant case, Maersk had
no duty to either supervise Hale's leisure activities while on
shore leave or to escort the intoxicated Hale back to the
vessel. Assuming the accompanying crew members' search for
Hale was inadequate, this cannot be imputed to Maersk, as they
30 undertook any search voluntarily and were not acting within the
scope of their employment. See Robinson, 228 F.2d at 681.
The circuit court correctly concluded as a matter of law
that Maersk did not have a duty to ensure Hale's safety while
on shore leave pursuing his own private interests. If no duty
existed, Maersk could not breach that duty and there was no
question for the jury on this issue. Although Jones Act
liability may extend to seamen on authorized shore leave, such
liability does not apply in the instant case. Cf. Daughenbaugh
v. Bethlehem Steel Corp., 891 F.2d 1199, 1206, 1208-09 (6th
Cir. 1989) (seaman's injury was related to his duty to return
to the ship at a particular time and occurred while seaman was
en route to vessel from shore leave).
Furthermore, to establish shipowner negligence and recover
for an assault, a seaman must establish either that (1) the
assault was committed by the plaintiff's superior for the
benefit of the ship's business or (2) the master or ship's
officers failed to prevent the assault when it was foreseeable.
Miles v. Melrose, 882 F.2d 976, 983-84 (5th Cir. 1989); Colon
v. Apex Marine Corp., 832 F. Supp. 508, 511 (D.R.I. 1993). In
the instant case, the evidence failed to establish the
foreseeability of the assault upon Hale. See Hernandez, 187
F.3d at 437. Assuming arguendo that Maersk violated some duty
by failing to have Hale escorted back to the ship, Maersk would
31 not be liable for the criminal acts of Hale’s assailants. See
Howard, 652 F. Supp. at 682 (shipowners "cannot possibly be
required to anticipate, assess, and warn seamen of all the
possible dangers awaiting them at anchorages around the
world.").
In that the instruction proffered by Maersk quoting the
circuit court’s pre-trial ruling on the Jones Act and
seaworthiness claims accurately stated the circuit court’s
correct ruling on the law, the circuit court erred in refusing
that instruction. The refusal of the proffered instruction was
not harmless, and it was reversible error for the circuit court
to refuse the instruction. See Hancock-Underwood v. Knight,
277 Va. 127, 130-31, 670 S.E.2d 720, 722 (2009).
Conclusion
Pursuant to the holdings above, we will reverse the
circuit court’s judgment and remand the case for a new trial on
all issues relating to the seaworthiness and Jones Act claims
regarding Maersk's actions after Hale returned to the ship, and
Hale’s claim for maintenance and cure benefits. 5
Reversed and remanded.
5 Given this disposition, the remaining assignments of error raised in these appeals are rendered moot and we need not address them.