Prod - Liab.rep. (CCH) P 11,050 Jim H. Nichols v. Elizabeth Barwick v. Biloxi MacHine Works & Roger Clark Nichols, Third Party, 792 F.2d 1520, 3rd Cir. (1986)

792 F.
2d 1520
Prod.Liab.Rep.(CCH)P 11,050
Jim H. NICHOLS, Plaintiff-Appellant,
v.
Elizabeth BARWICK, et al., Defendants-Appellees.
v.
BILOXI MACHINE WORKS & Roger Clark Nichols, Third
Party Defendants.
No. 85-3459.
United States Court of Appeals,

Eleventh Circuit.
July 7, 1986.
Joshua M. Morse, III, Fowler and White, Tallahassee, Fla., for plaintiffappellant.
Ronald A. Mowrey, David J. Russ, Tallahassee, Fla., for defendantsappellees.
Appeal from the United States District Court for the Northern District of
Florida
Before GODBOLD, Chief Judge, TJOFLAT, Circuit Judge, and
TUTTLE, Senior Circuit Judge.
GODBOLD, Chief Judge:
This action was brought by plaintiff to recover for injuries he sustained while
working on board the shrimp boat TIFFANY. Jurisdiction was invoked under
the Jones Act, 46 U.S.C. Sec. 688, 28 U.S.C. Secs. 1331, 1333(1), 1337, and
the general maritime law.
Defendants Elizabeth Barwick and her son, Ronny Barwick, are the owners of
defendant vessel TIFFANY, which Ronny Barwick constructed. Plaintiff
suffered the injury complained of when the boot on his left leg was caught or
entangled on the rotating spool, or "cat-head," of the winch he was operating to

retrieve the "try net."
3
The amended complaint alleged five causes of action: (1) negligence under the
Jones Act, 46 U.S.C. Sec. 688, (2) the maritime tort of negligence, (3)
unseaworthiness of the TIFFANY, (4) maintenance and cure, and (5) products
liability. Defendants filed third party claims against Biloxi Machine Works,
Inc. and Roger Nichols for contribution and indemnity.
After a two day bench trial, the district court dismissed plaintiff's claims under
the Jones Act, the negligence claims, the unseaworthiness claim, and the
products liability claim. The claim for maintenance and cure was dismissed as
to the Barwicks, but plaintiff was awarded $13,053.73 plus interest against the
TIFFANY for his medical expenses.
I. Appealability
5
Defendants question the jurisdiction of this court to entertain this appeal

because no final decision has been entered on defendants' third-party
complaints. To be appealable an order must either be final or fall into a specific
class of interlocutory orders made appealable by statute or jurisprudential
exception. Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102 (5th
Cir.1981). Under Fed.R.Civ.P. 54(b), absent an order from the court, no
decision is final unless it adjudicates all claims among all parties.
Although the judgment in this case is not a final order within the meaning of
"final" in 28 U.S.C. Sec. 1291, this court has jurisdiction. 28 U.S.C. Sec.
1292(a)(3) provides jurisdiction of appeals from
7
[i]nterlocutory
decrees ... of ... district courts ... determining the rights and liabilities
of the parties to admiralty cases in which appeals from final decrees are allowed.
8
Not all the rights and liabilities of all the parties need be determined before
such an order is appealable. O'Donnell v. Latham, 525 F.2d 650 (5th Cir.1976).
9II. Negligence, unseaworthiness, and products liability

claims
10
A. Causation
11
Plaintiff based the negligence claims, the unseaworthiness claim and the
products liability claim on defendants' allegedly negligent placement of the

winch. Plaintiff claimed that the winch was placed too close to the hatch cover
and not high enough above the deck, which configuration presented an
inherently unsafe condition.
12
One of the elements necessary to establish a cause of action for negligence,

unseaworthiness, and products liability is causation. See, e.g., Caldwell v.
Manhattan Tankers Corp., 618 F.2d 361, 363 (5th Cir.1980) (Jones Act
requires plaintiff to show a causal connection between his injury and some
omission or commission by the shipowner that renders the ship unseaworthy);
Davis v. Hill Engineering, Inc., 549 F.2d 314, 329-330 (5th Cir.1977) (cause of
action lies for damages for personal injury proximately caused by the vessel's
unseaworthiness); Restatement (Second) of Torts Sec. 402A(1) (1965)
(imposing strict liability on sellers of defective products for "physical harm
thereby caused to the ultimate user or consumer....").
13
Although the burden on the plaintiff to prove proximate cause in actions based
on general maritime law and the Jones Act is very light, even "featherweight,"
Davis, 549 F.2d at 331, plaintiff in this case failed to meet his burden of proof.
He presented no evidence to establish that his injury was caused by the
proximity of the winch to the hatch cover or its height above the deck. The
district court found that the size of the TIFFANY limited how far away the
hatch could have been located and that the distance between the winch and the
hatch was typical for a boat of that size and type. The winch controls were
located in such manner as to require the operator to stand immediately next to
the winch. Witnesses on both sides testified that the need to stand near the
winch during operation was one of several reasons it was dangerous to wear
loose clothing, long sleeves, or hip boots aboard a shrimp boat. Plaintiff was
wearing turned down hip boots at the time of the accident; the catching of his
boot by the cat-head initiated the injury. The district court found that plaintiff's
wearing of these boots substantially contributed to his injury.
14
We cannot say that the findings of the district court are clearly erroneous.
Because plaintiff has failed to establish the necessary causal connection
between his injury and the placement of the winch, his negligence,
unseaworthiness, and products liability claims must fail.
B. The third party complaint

15
Plaintiff maintains that it was not necessary for him to prove negligence,
unseaworthiness, or causation because the Barwicks, in their third party claims
against Biloxi Machine Works and Roger Nichols, admitted facts that would
constitute all three of these elements. Biloxi manufactured the winch in which
plaintiff's leg became entangled. The third party complaint against Biloxi
alleges that the winch was in a defective and unreasonably dangerous condition
and that the "defective condition of the winch may have been a proximate
cause" of plaintiff's injuries. The third party complaint against Roger Nichols
alleges that as the owner pro hac vice of the TIFFANY he breached his duties
to plaintiff to provide him with a seaworthy place to work and to adequately
train and supervise him and to warn him of any dangers present on the
TIFFANY.
16
Plaintiff's reliance upon Best Canvas Products & Supplies, Inc. v. Ploof Truck
Lines, Inc., 713 F.2d 618 (11th Cir.1983) is misplaced. In Ploof the court held
that the defendant was bound by its third party complaint/counterclaim as a
judicial admission that the cause of action arose in Georgia. Ploof is an
example of the general rule that a party is bound by the admissions in his
pleadings.
17
An exception has been carved out of this general rule to permit the exercise of
the liberal pleading and joinder provisions of the Federal Rules of Civil
Procedure lest inconsistent pleadings under Rule 8(e)(2) be used as admissions
negating each other and lest the allegations in third party complaints and crossclaims seeking recovery over in the event of liability in the principal action be
used as admissions establishing liability. Continental Insurance Co. of New
York v. Sherman, 439 F.2d 1294, 1298 (5th Cir.1971). In Sherman the court
held that the general rule binding a party by the admissions in his pleadings did
not apply when a party took "inconsistent positions ... in pleadings in a
complicated joinder situation, involving ... the contingent liability of third
parties." Id.
18
This case presents a fact pattern similar to that in Sherman. The Barwicks have
taken inconsistent positions in their pleadings in order to lay a basis for
establishing the contingent liability of Biloxi and Roger Nichols.
19
The entry of a default judgment on the third party complaint against Biloxi
should make no difference in the result of this case. To apply the principles of
res judicata or issue preclusion to inconsistent positions taken in pleadings in a
joinder situation involving the contingent liability of third parties merely
because a final judgment has been entered on those pleadings would contravene
the language and the policies set forth in Sherman.
20
The judgment of the district court dismissing plaintiff's claims for negligence,
unseaworthiness, and products liability must be affirmed.

III. Maintenance and cure
21
Plaintiff asserted claims for maintenance and cure against the Barwicks and the
TIFFANY.
22
Maintenance and cure are centuries old remedies under the general maritime
law. A seaman's right to maintenance and cure is implicit in the contractual
relationship between the seaman and his employer, and is designed to ensure
the recovery of these individuals upon injury or sickness sustained in the
service of the ship.... Maintenance and cure are due without regard to the
negligence of the employer or the unseaworthiness of the ship.... Maintenance
is a per diem living allowance, paid so long as the seaman is outside the
hospital and has not reached the point of "maximum cure." Cure involves the
payment of therapeutic, medical, and hospital expenses not otherwise furnished
to the seaman, again, until the point of "maximum cure."
23
Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir.1979).
24
The district court awarded plaintiff $13,053.75 plus interest for cure but
dismissed the claim for maintenance because plaintiff failed to produce
evidence that he had actually incurred any expenses for food or lodging. The
evidence indicated that when plaintiff was not in the hospital he lived with his
parents who fed and cared for him. An injured seaman who has not paid his
own expenses cannot recover for maintenance. Marine Drilling, Inc. v. Landry,
302 F.2d 127 (5th Cir.1962). "Maintenance is limited to seamen who actually
incur expenses for their support. Thus, when maintenance is provided by
parents or relatives or during hospitalization, no maintenance need be paid...."
Springborn v. American Commercial Barge Lines, Inc., 767 F.2d 89, 95 (5th
Cir.1985).
IV. Wages
25
Plaintiff claims that he is entitled to recover the wages that he would have
earned if he had continued to work on the TIFFANY until the end of the
season. There was no evidence, however, that plaintiff was working under a
contract providing that his term of employment lasted the entire season. To the
contrary, the evidence revealed that plaintiff was to work on the TIFFANY for
at most two weeks and that his voyages lasted only a day each. A seaman under
contract for a year can collect a year's lost wages as part of maintenance. Vitco
v. Joncich, 130 F.Supp. 945 (S.D.Calif.1955). Otherwise, he is entitled to
wages only to the end of the voyage. Id. See also Farrell v. United States, 336
U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949) (injured seaman entitled to wages
only until the completion of the voyage and not for 12 months under a contract
providing that the term of employment not exceed 12 months).
V. Attorney's Fees
26
Attorney's fees are available to a plaintiff when the defendant refuses to

provide maintenance and cure in bad faith, callously, or unreasonably. Vaughan
v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Mort v.
Weyerhaeuser Co., SS C.R. Musser, 294 F.Supp. 936 (S.D.N.Y.1968). The
district court found that defendants' failure to provide payment for plaintiff's
medical expenses was not so willful and egregious as to assess attorney's fees
against them. We cannot say that this finding was clearly erroneous.
27
AFFIRMED.

Prod - Liab.rep. (CCH) P 11,050 Jim H. Nichols v. Elizabeth Barwick v. Biloxi MacHine Works & Roger Clark Nichols, Third Party, 792 F.2d 1520, 3rd Cir. (1986)

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792 F.

United States Court of Appeals,

entangled on the rotating spool, or "cat-head," of the winch he was operating to

Defendants question the jurisdiction of this court to entertain this appeal

9II. Negligence, unseaworthiness, and products liability

products liability claim on defendants' allegedly negligent placement of the

One of the elements necessary to establish a cause of action for negligence,

B. The third party complaint

unseaworthiness, and products liability must be affirmed.

Attorney's fees are available to a plaintiff when the defendant refuses to

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