Michael B. Huss v. the King Company, Inc.; Lake Michigan Contract Ors, Inc.

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0272P (6th Cir.)
File Name: 03a0272p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MICHAEL B. HUSS,
Plaintiff-Appellant,
v.
THE KING COMPANY, INC.;
LAKE MICHIGAN
CONTRACT ORS, INC.,
Defendants-Appellees.
X
-
-
-
->
,
-
-
-
-
-
N
No. 02-1010
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
Nos. 98-00366; 00-00043—Wendell A. Miles,
District Judge.
Argued: June 11, 2003
Decided and Filed: August 5, 2003
Before: MOORE and GIBBONS, Circuit Judges;
SCHWARZER, Senior District Judge.*
2 Huss v. The King Company, et al. No. 02-1010
_________________
COUNSEL
ARGUED: Joseph Kelly Carley, JAQUES ADMIRALTY
LAW FIRM, Detroit, Michigan, for Appellant. Robert D.
Nienhuis, GOLDSTEIN & PRICE, St. Louis, Missouri, Paul
D. Galea, FOSTER, MEADOWS & BALLARD, Detroit,
Michigan, for Appellees. ON BRIEF: Joseph Kelly Carley,
Judith A. Schornack-Smith, JAQUES ADMIRALTY LAW
FIRM, Detroit, Michigan, for Appellant. Robert D. Nienhuis,
GOLDSTEIN & PRICE, St. Louis, Missouri, Paul D. Galea,
FOSTER, MEADOWS & BALLARD, Detroit, Michigan, for
Appellees.
_________________
OPINION
_________________
WILLIAM W SCHWARZER, Senior District Judge. This
is an appeal from an adverse judgment after trial in an action
brought by Michael Huss for injuries sustained while
employed by defendant King Company, Inc. (King). On
May 3, 1995, Huss, together with three other King
employees, attempted to retrieve a work boat from the yard of
codefendant Lake Michigan Contractors (LMC). As the boat
was being hoisted by a crane off its cradle, Huss crawled
underneath the boat to remove a scrap of rope from the
propeller shaft. While he was attempting to remove the rope,
one of the lines securing the boat to the crane came loose,
causing it to fall on Huss. He sustained a compression
fracture of the fifth lumbar vertebra and a posterior left rib
fracture. After spending one night in the hospital, he was
released to home. He returned to work approximately one
month after the accident, performing duties that did not
require heavy lifting, until August 1997. At that time, he
ceased reporting to work, and in December 1997, he
terminated his employment with King. In May 1998, Huss

-- 1 of 5 --

No. 02-1010 Huss v. The King Company, et al. 3
1A seaman who is injured while in service of a vessel is entitled to
maintenance and cure at the expense of the vessel owner. Maintenance
is a subsistence allowance designed to provide the seam an with
compensation sufficient to pay for his food and lodging until the time of
maximum cure. C ure is the emplo yer’s obligation to pay for medical
expenses for an injured seaman. The obligation to pay maintenance and
cure continues until the seaman is cured or, if there is permanent
impairment, until he reaches the point of m aximum me dical re covery.
See Thomas J. Schoenbaum, Admiralty and Maritime Law 369, 372, 375
(3d ed. 2001 ).
filed this action alleging claims against King under the Jones
Act, 46 U.S.C.§ 688 et seq., and for unseaworthiness, and
against LMC for unseaworthiness and negligence. In January
2000, he filed another action against King alone to recover
maintenance and cure. The two actions were consolidated.
Following a bench trial, the court awarded Huss damages of
$30,234.73; after reducing this amount by sixty percent for
Huss’s comparative fault and crediting King with
overpayment of maintenance and cure, it entered a take-
nothing judgment. This appeal followed. The district court
had jurisdiction under 28 U.S.C. § 1333, and we have
jurisdiction under 28 U.S.C.§ 1291. Because the rulings of
the district court were not clearly erroneous and did not abuse
its discretion, we affirm the judgment.
DISCUSSION
I. THE CLAIM AGAINST KING
A. The Maintenance and Cure Issue
In July 2000, Huss moved for partial summary judgment on
his claim for maintenance and cure.1 The court found that
King had discontinued payment of maintenance and cure on
January 1, 1998. It held that because Huss had presented
evidence that he had not reached maximum cure and King
had failed to raise a triable issue, Huss was entitled to
summary judgment on liability, leaving the amount due, if
any, to be determined. A pretrial order entered in May 2001
4 Huss v. The King Company, et al. No. 02-1010
2The court found, inter alia, that Huss provided false information
during a med ical history leading the court to question his cred ibility.
Huss vigoro usly challenges the court’s credibility determination but offers
nothing compelling a finding of clear error. See Peveler v. United States,
269 F.3d 693 , 702 (6th C ir. 200 1) (“W e are generally reluctant to set
aside credibility determinations made by the trier of fact, who has had the
opportunity to view the witness on the stand and assess his demeanor.”).
On the merits, the court also found that medical opinion that Huss would
have benefitted from a second surgery was lacking, partially based on the
fact that the physician who performed Huss’s surgery, Dr. Reynaldo
Castillo, expressed the opinion in November 1997 that pain may be
something with which he will have to live.
3The court did not require Huss to repay any amounts he had
received.
stated the amount of maintenance and cure due to be a
disputed issue.
In July and August 2001 the case went to trial before the
district judge. At the conclusion of the trial, the court
delivered oral findings stating, among other things, that new
evidence had come to light leading the court to determine that
maximum cure had been reached prior to January 1998.2 In
subsequent written findings, the court stated that the prior
entry of summary judgment for Huss on the issue of
maintenance and cure was “essentially meaningless if by the
time of the ruling King had already paid all of the
maintenance and cure to which [Huss] was entitled.” It held
that because Huss reached maximum cure sometime between
September and December 1997, King properly discontinued
maintenance and cure payments as of January 1998. King
had, however, as the court noted, made additional payments
following the court’s earlier ruling for the years 1998, 1999,
and 2000. The court found that King was entitled to credit for
those sums toward any judgment on the unseaworthiness and
Jones Act claims.3 Huss then filed a post-trial brief, much of
it devoted to the maintenance and cure issue. In November
2000 the court issued its Supplemental Order Regarding
Maintenance and Cure addressing the evidence adduced at

-- 2 of 5 --

No. 02-1010 Huss v. The King Company, et al. 5
4Rule 54(b) provid es that in the absence of a direction to enter
judgment on one of several claims presented in an action, “any order . . .
which adjudic ates fewer than all the claims . . . shall not terminate the
action as to any of the claim s . . . and the order . . . is subject to revision
at any time before the entry of judgment adjudicating all the claims.”
Fed. R. Civ. P. 54(b).
trial and not previously presented that led the court to find
that maximum cure had been reached before January 1998, as
well as the arguments on the issue advanced by Huss.
Huss’s principal argument on appeal is that the court erred
in revoking its partial summary judgment determining that
maintenance and cure had not been reached by September
2000. Rule 56(d) authorizes the entry of partial summary
judgment. Fed. R. Civ. P. 56(d). It states that if summary
judgment is rendered on less than an entire case and a trial on
the remaining claims is necessary, the court
shall if practicable ascertain what material facts exist
without substantial controversy and what material facts
are actually and in good faith controverted. It shall
thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to
which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the
action as are just. Upon the trial of the action the facts so
specified shall be deemed established, and the trial shall
be conducted accordingly.
We agree with Judge Newman’s analysis of Rule 56(d) in
Leddy v. Standard Dry Wall, Inc., 875 F.2d 383 (2d Cir.
1989), in which he stated:
Once a district judge issues a partial summary judgment
order removing certain claims from a case, the parties
have a right to rely on the ruling by forbearing from
introducing any evidence or cross-examining witnesses
in regard to those claims. If, as allowed by Rule 54(b),4
6 Huss v. The King Company, et al. No. 02-1010
the judge subsequently changes the initial ruling and
broadens the scope of the trial, the judge must inform the
parties and give them an opportunity to present evidence
relating to the newly revived issue. Failure to do so
might in some circumstances cause substantial prejudice.
875 F.2d at 386.
Here, the district judge informed Huss of the change of his
initial ruling and gave him an opportunity in post-trial
briefing to argue that he was entitled to continued payment of
maintenance and cure after January 1998. Although the
court’s change of its ruling did not occur until after trial, it
was based on the damage evidence relevant to maintenance
and cure presented at trial. Counsel on brief made no attempt
to show that the post-trial change of the ruling prejudiced his
trial presentation. At oral argument he conceded that all of
the evidence relevant to maintenance and cure had been
presented in support of Huss’s damage claim and that he
knew of no questions he would have asked witnesses had he
known of the court’s revised ruling. We conclude that the
district court did not commit error and that its action did not
prejudice Huss.
B. Allocation of Comparative Negligence
Huss contends that the district court’s allocation to him of
sixty percent comparative negligence was clearly erroneous.
Our review of allocation of fault is for clear error. Phillips
Petroleum Co. v. Stokes Oil Co., 863 F.2d 1250, 1255 (6th
Cir. 1988). The court’s determination was based on extensive
findings, including that Huss and his coworkers had a duty to
ensure the operation was performed safely, that Huss crawled
under the boat without having been instructed to do so and
later admitted that it was stupid, and that he remained under
the boat when his supervisor crawled out from underneath the
boat. Huss argues a different interpretation of the essentially
undisputed facts but he fails to show that the court’s finding
was clearly erroneous.

-- 3 of 5 --

No. 02-1010 Huss v. The King Company, et al. 7
5Huss contends that the district court abused its discretion in denying
prejudgm ent interest. Because we uphold the district court’s d ecision to
credit King with the overpayments of maintenance and cure, resulting in
a take-nothing judgment, the prejudgment interest claim is mo ot.
C. Damages
As noted above, the district court gave King credit against
the damage award for the sums previously paid for
maintenance and cure to which, under the court’s decision,
Huss was not entitled. Huss does not contend that the court
lacked the authority to do this. Instead he argues that the
claim for credit was an affirmative defense which was not
pleaded as required by Rule 8(c), or raised in the pretrial
order, and was therefore waived. Fed. R. Civ. P. 8(c). We
will assume for present purposes that the credit claim was an
affirmative defense. “[T]he purpose of Rule 8(c) is to give
the opposing party notice of the affirmative defense and a
chance to rebut it.” Moore, Owen, Thomas & Co. v. Coffey,
992 F.2d 1439, 1445 (6th Cir. 1993) (citing Blonder-Tongue
Lab., Inc. v. University of Ill. Found., 402 U.S. 313, 350
(1971)). If a plaintiff receives notice of an affirmative
defense by some means other than pleadings, the defendant’s
failure to comply with Rule 8(c) does not cause the plaintiff
any prejudice. Id. Huss has not shown how he was
prejudiced by King’s failure to plead the claim as an
affirmative defense. The question whether Huss was entitled
to funds paid after January 1998 was directly implicated in
King’s opposition to Huss’s claim for maintenance and cure
after January 1998, which was litigated. Moreover, Huss has
pointed to no evidence or argument he would have offered in
opposition to the credit claim had it been pleaded. Id.5
Huss further contends that the damage awards were clearly
erroneous in their insufficiency. He argues that the court
ignored evidence of pain and suffering and of egregious pain
precluding past and future work. The court found Huss to be
an outwardly healthy person, in no obvious distress, who
8 Huss v. The King Company, et al. No. 02-1010
currently suffers from no serious back disorder and whose
physical limitations are self-imposed rather than medically
required. He further found that the evidence clearly showed
that Huss was able to return to work for over two years
following the accident with his earning capacity
undiminished. While different interpretations of the evidence
may be reached, Huss has not shown the court’s findings to
be clearly erroneous. See Fed. R. Civ. P. 52(a); Meyers v.
City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994)
(stating that damages present a question of fact subject to
review under the clearly erroneous standard).
II. THE CLAIM AGAINST LMC
The district court granted summary judgment for LMC on
all claims. It dismissed the Jones Act claim because it was
undisputed that Huss was not an employee of LMC. It
dismissed the unseaworthiness and negligence claims, finding
that it was undisputed that King took the boat under a
bareboat charter and that there was no evidence from which
a trier of fact could find a defective condition pre-existing the
charter. Our review of summary judgment is de novo. Sargi
v. Kent City Bd. of Educ., 70 F.3d 907, 910 (6th Cir. 1995).
Huss challenges the unseaworthiness ruling, arguing that
the owner of a vessel is under an absolute duty to furnish a
seaworthy vessel. However, the owner of a vessel under a
demise (or bareboat) charter is liable only for
unseaworthiness that pre-existed the charter. Kerr-McGee
Corp. v. Law, 479 F.2d 61, 63 (4th Cir. 1973). “[W]hen the
owner of a vessel enters into a demise charter, he surrenders
all possession and control of the vessel to the charterer. Since
he no longer has the right to control the use of the vessel, he
is no longer charged with the duties and liabilities that arise
out of its ownership.” Id.; see also, Baker v. Raymond Int’l,
Inc., 656 F.2d 173, 181 (5th Cir. 1981); Schoenbaum at 348-
49. Because the court found the evidence insufficient to
support a finding that the boat was caused to fall by a failure

-- 4 of 5 --

No. 02-1010 Huss v. The King Company, et al. 9
of the existing lines on the boat, this claim was properly
dismissed.
Huss also challenges the dismissal of the negligence claim,
arguing that the failure of the rigging raised a genuine issue
as to whether LMC turned over a boat in a dangerous
condition. But the court found that the evidence did not
support a finding that the ropes or lines furnished with the
boat rendered it dangerous and that it was the manner in
which King’s employees performed their work that created
the dangerous situation. This claim was therefore properly
dismissed.
CONCLUSION
We have carefully considered all of Huss’s contentions,
including those not specifically discussed in this opinion, and
find them to be without merit. We therefore AFFIRM the
judgment of the district court.

-- 5 of 5 --