Larry Gwin v. American River Transportation Company

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2900
L ARRY G WIN ,
Plaintiff-Appellee,
v.
A MERICAN R IVER T RANSPORTATION
C OMPANY ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03-C-862—Michael J. Regan, Judge.
____________
A RGUED F EBRUARY 9, 2007—D ECIDED A PRIL 10, 2007
____________
Before B AUER , F LAUM , and W ILLIAMS , Circuit Judges.
F LAUM , Circuit Judge. Larry Gwin worked as a tow-
boat operator for American River Transportation Company
(“Artco”) until May 2003. He and five other former Artco
employees filed suit in federal district court arguing that
Artco fired them because they refused to perform duties
they considered unsafe, in violation of 46 U.S.C.
§ 2114(a)(1)(B). After a 12-day trial, the jury returned
a verdict in favor of Gwin, but against the other plaintiffs.
Artco then filed a motion for judgment as a matter of law,
a motion for costs, and a motion to compel payment for
its experts’ expenses. The district court denied Artco’s
motions and Artco appeals. For the following reasons, we

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2 No. 06-2900
1 Each barge is approximately 200 feet long and 23 feet wide,
weighing between 1,400 and 2,200 tons.
2 The pay scale was as follows: “C” captains and pilots pushed six
long tows and were paid the highest salary. “B” captains and
pilots operated all-river vessels and received the second highest
pay. “A” captains and pilots who refused to operate the six long
tows were paid the least.
affirm the judgment of the district court and remand for
a finding on costs.
I. B ACKGROUND
Artco operates towboats on the Mississippi River be-
tween St. Paul, Minnesota and New Orleans, Louisiana.
Artco has two types of vessels: all-river vessels and lower-
river vessels. The all-river vessels are smaller because
they have to navigate through narrower passages in the
river beginning just north of St. Louis. The lower-river
boats are larger and travel only between St. Louis and
New Orleans. Prior to 1999, the largest lower-river vessels
towed forty barges, five long and eight wide. 1
In 1999, Artco initiated a “six long” program meaning
that its lower river vessels would push forty-eight barges,
six long and eight wide. At that time, no other towboat
company was pushing six long tows on the Mississippi
River. Artco ran the program on a trial basis for six
months and then adopted it as part of its regular busi-
ness practice. Pilots and captains who wanted to partici-
pate in the program had to receive extra training, but
were also paid a higher salary than those pilots and
captains pushing smaller tows. 2 Artco maintains that at
all times the six long program was voluntary.
Larry Gwin captained the Daniel MacMillan, a 10,500
horsepower, triple screw (three propellers) towboat, the

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No. 06-2900 3
largest size towboat on the river. Gwin was the Daniel
MacMillan’s captain for five and a half years and rou-
tinely pushed forty-barge tows between St. Louis and New
Orleans. Gwin’s supervisor, Port Captain Bruce Hussell,
informed Gwin of the six long program. Hussell told Gwin
that the program was voluntary but that Gwin should
think about participating. Gwin eventually decided not to
participate in the program because he thought that the
program was unsafe. Gwin informed Hussell of his deci-
sion.
On January 16, 2002, Gwin received a written evalua-
tion. Hussell rated Gwin’s performance as “good” in 12 of
13 categories but rated his performance as “fair” in
category #9, which was titled “does he/she operate the
vessel to its full potential.” Under the section titled
“recommendations for improvement,” Hussell wrote,
“Other vessels in the class as the [Daniel MacMillan] take
46 loads southbound.” On February 1, Gwin wrote Hussell
a letter in response to the evaluation and sent copies
to Artco’s President and Vice President. Gwin wrote,
As for #9 of the evaluation, this is an area which we
have discussed on many occasions. You have asked me
if I was willing to take 46 barges southbound. I ad-
vised you that the safe number of barges to navigate
southbound on the Mississippi River is determined by
the river conditions, but never more than 40 . . . . Some
of the reasons I gave you for not wanting to take more
than 40 barges southbound include my concern for the
life and safety of my crew and my livelihood, i.e., my
license. Concerning my license, each time we dis-
cussed me taking 46 barges southbound, you have
been quick to say that this was my decision and was
strictly voluntary. You stressed to me that it was not
mandatory, not something Artco would force me to do.
Gwin testified that after he sent the letter, Hussell
continued to ask him to push six long tows. Gwin again

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4 No. 06-2900
told Hussell, “I thought we talked about this . . . I am not
going to do it.”
In January 2003, Gwin received another evaluation from
Hussell. Hussell rated Gwin’s performance as “good” in 11
of 13 categories. This time he received a “fair” rating for
“learns new skills” and “does he/she operate the vessel to
its full potential.” Under recommendations for improve-
ment, Hussell wrote, “Larry should put the effort to go to
6 long. As a Master on a very good vessel he should be
heading in that direction.” In April 2003, Hussell called
Gwin and told him that he was being demoted to pilot.
Thirty days later, Artco discharged Gwin through a letter
indicating that he had been terminated because of a
reduction in Artco’s business.
Gwin and five other captains/pilots whom Artco had also
laid off, sued Artco under 46 U.S.C. § 2114(a)(1)(B)—which
forbids a person from discharging a seaman for refusing
to perform duties ordered by his employer if the duties
would result in serious injury—and various other federal
and state common law theories. The statutory claims
were tried to a jury during a 12-day trial beginning on
February 27, 2006. Artco moved for judgment as a matter
of law at the close of the plaintiffs’ case. The district court
took the motion under advisement. Artco renewed its
motion at the close of its case. The Court sustained the
motion as to one plaintiff who admitted he had been
terminated for failing a drug test, but denied it as to the
other five plaintiffs, including Gwin. The jury found for
Gwin on his § 2114 claim, awarding him $10,000 in
compensatory damages and $130,000 in punitive damages,
but found for Artco on the other plaintiffs’ claims. The
district court entered judgment on the jury’s verdict.
Artco filed three post-trial motions. First, it filed a
motion renewing its motion for judgment as a matter of
law against Gwin, arguing that Artco never “ordered” him

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No. 06-2900 5
to push a six long tow. Second, it filed a motion for costs
under Federal Rule of Civil Procedure 54(d) as the prevail-
ing party on five of the six plaintiffs’ claims and on the
substantial part of Gwin’s claim. Finally, it filed a motion
for its retained and non-retained experts’ fees, arguing
that Artco had entered into an agreement with the plain-
tiffs that each party would pay the fees and expenses
for the other party’s experts.
On June 9, 2006, the district court held a hearing and
denied all three of Artco’s motions. On the motion for
judgment as a matter of law, the district court held that
a plaintiff suing under § 2114 does not need to show
that the defendant explicitly used the word “order.” The
district court denied Artco’s motion for costs, ruling that
Rule 54’s provision for an award of costs to the prevail-
ing party was superceded by the provisions of § 2114
regarding attorney’s fees and costs. The district court also
held that it would not enforce any agreement between the
parties regarding non-retained experts. Artco filed a
notice of appeal.
II. A NALYSIS
A. Judgment as a matter of law
Artco argues that the district court erred by denying
its motion for judgment as a matter of law because no
reasonable juror could conclude that Artco ordered Gwin
to push six long tows. This Court reviews the denial of a
motion for judgment as a matter of law de novo. DeBasio
v. Ill. Cent. R.R., 52 F.3d 678, 682 (7th Cir. 1995). Section
2114 provides that
A person may not discharge or in any manner discrimi-
nate against a seaman because . . . the seaman has
refused to perform duties ordered by the seaman’s
employer because the seaman has a reasonable appre-

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6 No. 06-2900
3 The Seaman’s Protection Act, of which § 2114 is a part, was
drafted in response to the Fifth Circuit’s decision in Donovan v.
Texaco, Inc., 720 F.2d 825, 828-29 (5th Cir. 1983), where the
court held that the Occupational Safety and Health Act’s
prohibition against retaliatory discharge of an employee did
not apply to seamen. Congress passed the Act “to expand the
protection of seamen against discrimination. This section does
not allow for anyone to discharge or discriminate against
any seaman who reports a violation of a maritime law to the
Coast Guard or refuses to perform duties which he believes
would result in his or another’s individual’s injury.” H.R. Conf.
Rep. No. 777 (2002).
hension or expectation that performing such duties
would result in serious injury to the seaman, other
seamen, or the public. 3
46 U.S.C. § 2114(a)(1)(B). Artco contends that judgment
as a matter of law was appropriate because Gwin admitted
that he never received an order from Artco to push six long
tows. On cross examination, Artco’s attorney asked Gwin
From the time you were first asked to consider towing
barges that were six lengths long, southbound on the
Mississippi River until the time your employment
ended on June 10, of 2003, nobody at Artco ever
ordered you to take a six long tow southbound on the
Mississippi River, did they sir?
Gwin answered, “No, sir.” During re-direct examination,
Gwin and his attorney had the following exchange:
Q: I want to ask you a few questions about some of
the questions, some of the other questions Mr.
Sacks had asked you about. You stated that Artco
had never specifically ordered you to push a six
long tow. Do you remember saying that?
A: Yes, sir.

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No. 06-2900 7
Q: I wanted to know why you said that.
***
A: I got the evaluations, had the evaluations, and
I looked at them. And by those evaluations I
assumed that was what I had to do, something
because I could see the writing on the wall that
I was fixing to get furloughed, terminated, or laid
off.
Artco argues that this testimony demonstrates that Gwin
did not receive an order to push six long tows. We disagree.
While Gwin testified that he did not receive an explicit
order, the evidence in the record is sufficient to support a
finding that Artco implicitly ordered him to push six long
tows. Gwin testified that despite his repeated refusal to
push six long tows, Hussell persistently asked him to do
so. Gwin’s attorney asked him, “Did they keep—did
anybody ask you again whether you wanted to push six
long?” Gwin responded, “Yes, sir. It seemed like just about
every trip or every other trip . . . .” Gwin stated that after
being asked so frequently to push six long tows, “I felt that
and said to myself and thought to myself, this isn’t volun-
tary anymore.”
Gwin also presented testimony that he called Hussell to
get his boat fixed because the “propellers and the boat
was shaking real bad.” Hussell told Gwin that if Gwin
would agree to push six long tows, Artco could probably get
the boat in to be repaired sooner. In addition, Artco began
a program called the “free ride,” in which pilots were
forced to choose between going home without pay or rid-
ing on their own boat while another captain operated it,
pushing a six long tow. Finally, as discussed above, Gwin
presented testimony concerning two negative evaluations.
Three months after the last evaluation, Hussell demoted
Gwin to pilot and then terminated him. Thus, the evidence

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8 No. 06-2900
at trial was more than sufficient to support the jury’s
finding.
Artco, ignoring all of the circumstantial evidence except
for the evaluations, maintains that evaluations are not
orders. Artco states that “employee evaluations by their
nature look only to what has happened in the past. An
order refers to something required to be done in the
future.” However, Artco overlooks the portion of both
evaluations entitled “recommendations for improvement,”
which clearly advise towing six longs in the future.
Artco next contends that Gwin’s assumption that he
had to push six long is not enough to support a claim
under § 2114 because employers can control orders, but
they cannot control assumptions. Artco distinguishes
between an “assumption,” which “involves taking some-
thing for granted without any proof,” and a “conclusion,”
which is “derived from studying facts.” Artco is merely
arguing semantics. According to Artco, if Gwin testified
that he concluded that he had to tow six longs, then that
would be sufficient to hold Artco liable under § 2114. In
any event, Artco’s liability under § 2114 was not based on
Gwin’s assumption, it was based on the totality of the
circumstantial evidence that Artco had given an implicit
order.
Artco finally argues that several other captains who
consistently refused to push six long tows received evalua-
tions nearly identical to Gwin’s but were not fired. There-
fore, Artco contends, Gwin’s evaluations could not be
orders. Artco does not provide any citations to the record
for its assertion, nor does it provide any further informa-
tion about the other captains or their evaluations. Regard-
less, whether or not Artco treated other captains differ-
ently, a jury reasonably could find—given the circumstan-
tial evidence pertaining to Gwin—that he was ordered to
push six long tows.

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No. 06-2900 9
B. Rule 54(d) Costs
Artco argues that the district court erred by denying its
Federal Rule of Civil Procedure 54(d) motion for costs
because § 2114 does not supercede Rule 54(d). The proper
interpretation of Rule 54(d) is a legal conclusion that
this Court reviews de novo. Gavoni v. Dobbs House, Inc.,
164 F.3d 1071, 1075 (7th Cir. 1999). Rule 54(d) states,
“Except when express provision therefor[e] is made either
in a statute of the United States or in these rules, costs
other than attorney’s fees shall be allowed as of course to
the prevailing party unless the court otherwise directs.”
Section 2114(b) provides that the court may order any
appropriate relief, including
(3) an award of costs and reasonable attorney’s fees to
a prevailing plaintiff not exceeding $1,000; and
(4) an award of costs and reasonable attorney’s fees
to a prevailing employer not exceeding $1,000 if
the court finds that a complaint filed under this
section is frivolous or has been brought in bad
faith.
Artco claims that § 2114 merely augments the normal
recovery of costs to a prevailing defendant with an award
of attorney’s fees that are expressly not recoverable under
Rule 54(d). We reject this argument. Section 2114 provides
for the recovery of both costs and attorney’s fees. If the
statute was merely supplementing Rule 54(d) by allow-
ing attorney’s fees, then it would not have included an
express reference to costs. We therefore hold that § 2114
supercedes Rule 54(d). Because the jury rejected Artco’s
contention that the plaintiffs’ claims were frivolous and
brought in bad faith, Artco is not entitled to its costs or
attorney’s fees under § 2114.
Artco points out that each plaintiff brought claims under
several different legal theories, only one of which was

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10 No. 06-2900
§ 2114. Artco prepared defenses to these other claims, but,
after discovery, the plaintiffs submitted only the § 2114
claims to the jury. Artco argues that this is akin to a
voluntary dismissal, which means that Artco prevailed on
these claims and should receive its costs under Rule 54(d).
See First Commodity Traders, Inc. v. Heinold Commodities,
Inc., 766 F.2d 1007, 1015 (7th Cir. 1985) (noting that a
voluntary dismissal without prejudice renders the oppos-
ing party a “prevailing party” within the meaning of Rule
54). We agree and remand to the district court
for a determination of which of Artco’s costs are solely
allocable to the plaintiffs’ dismissed claims.
C. Rule 26(b)(4)(C) Costs
Artco alleges that the district court erred by denying
its motion to compel payment for the fees and expenses
associated with the deposition of Mike Thompson, Artco’s
retained expert on marine safety. This Court reviews
the denial of expenses for expert discovery for an abuse of
discretion. See Schrott v. Bristol-Myers Squibb Co., 403
F.3d 940, 943 (7th Cir. 2005). Federal Rule of Civil Proce-
dure Rule 26(b)(4)(C) provides, “unless manifest injustice
would result, . . . the court shall require that the party
seeking discovery pay the expert a reasonable fee for
time spent in responding to discovery.” The mandatory
language of the rule is tempered by two limitations: 1) the
costs may not be imposed if doing so would result in
manifest injustice, and 2) the expert’s fees must be reason-
able. In other words, before refusing to order a deposing
party to pay the other party’s expert, the district court
must explicitly find either manifest injustice or that the
fee was unreasonable. See United States v. Twin Falls,
Idaho, 806 F.2d 862, 879 (9th Cir. 1986), overruled on other
grounds as recognized by Ass’n of Flight Attendants v.
Horizon Air Indus., Inc., 976 F.2d 541 (9th Cir. 1992). The

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No. 06-2900 11
4 On remand, the district court should address Gwin’s argu-
ment that Thompson’s fees were unreasonable.
district court did not explain its decision to deny Artco’s
motion to compel payment. As a result, the district court
abused its discretion by denying Artco’s motion to recover
Thompson’s expenses. 4
Artco next argues that the district court erred by deny-
ing its motion to compel payment for the fees and expenses
of its thirty-six (36) non-retained experts. It concedes that
there is no federal rule that requires the plaintiffs to pay
for Artco’s non-retained experts. However, Artco claims
that the plaintiffs agreed to pay for the travel and lodging
expenses of Artco’s non-retained experts. If an agreement
did exist and Artco believes that the plaintiffs’ breached
that agreement, Artco has a potential remedy in state
court for breach of contract. The district court did not
abuse its discretion by denying Artco’s motion to compel
payment for its non-retained experts.
III. C ONCLUSION
For the above reasons, we A FFIRM the district court’s
judgment as it pertains to Artco’s liability, but R EVERSE
the denial of costs in part and R EMAND for further pro-
ceedings pursuant to this opinion.

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12 No. 06-2900
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-10-07

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