* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 19, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40078

Summary Calendar

EMILE GREEN

Plaintiff-Appellee

v.

SEARIVER MARITIME, INC.

Defendant-Appellant

Appeal from the United States District court for the Southern District of

Texas, Galveston Division

USDC No. 3:05-CV-423

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

SeaRiver Maritime, the defendant-appellant, now appeals the district

court’s adverse findings of fact and calculation of damages We AFFIRM the

district court’s judgment, but VACATE the district court’s damages calculations.

FACTS

In 1996, Emile Green started working for SeaRiver as a deckhand/maintenance seaman aboard SeaRiver’s tankers. In 2001, Green
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2

transferred to work on SeaRiver’s harbor tugs, which included docking and other

manual labor. Four to six months before the injury, he was instructed to moor

using a single heavier line (instead of previously using three lighter lines). He

was not provided substantive instructions on how to avoid injury for single line

moorings. In one incident, he was instructed to throw an older mooring line in

an upward direction; the mooring line was probably wet and thus heavier than

normal. After throwing the line, his shoulder started to hurt. His shoulder

continued to hurt and he visited physicians who diagnosed him with

degenerative shoulder arthritis. In August, 2005, he came under the care of Dr.

Zoran Cupic, a Houston orthopedist, who operated on him and concluded that

the toss was the primary cause of his shoulder pain. Green filed a maritime

action against SeaRiver in the United States District Court for the Southern

District of Texas and alleged negligence under the Jones Act, 46 U.S.C. § 688

and unseaworthiness; he sought damages and maintenance and cure. SeaRiver

contests liability for damages, but paid maintenance and cure. During the

bench trial, after the plaintiff closed his case, SeaRiver moved for judgment on

partial findings under Rule 52(c) but its motion was denied. At the conclusion

of the trial, the trial court entered its Findings of Fact and Final Judgment in

favor of Green, awarding damages of $508,323.75 with pre-judgment and postjudgment interest. 

ANALYSIS

1. District Court Did Not Clearly Err in Denying SeaRiver’s Rule 52(c) Motion

and its Findings of Fact in its Judgment

We review a denial of a Rule 52(b) motion for abuse of discretion. We

review findings of fact made pursuant to Rule 52(c) for clear error and

conclusions of law de novo. Bursztajn v. United States, 367 F.3d 485, 488-89 (5th

Cir. 2004). We similarly review the trial court’s factual findings at judgment for

clear error. In re Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005).
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3

Since the appellant presents the same arguments against the trial court’s

adoption of the plaintiff’s findings of fact to infer liability at judgment and in its

denial of the Rule 52(c) motion, we will apply the same analysis to both of these

grounds for appeal. 

The appellant contends no evidence supports the trial court’s conclusion

that the one-person one-line tie-up was dangerous; that Green was

inexperienced with one-line tie-up moorings;thatthe line was abnormally heavy

and different from the average line; that the particular mooring causing the

injury was non-routine; and that the Captain knew the line was heavy, because

it had absorbed water, and was, therefore, unsuitable for mooring. Trial

testimony from both the plaintiff and his Captain substantiated the court’s

finding thatthe line used in that particular mooring was heavier and larger than

previous mooring lines. The court emphasized the subsequent replacement of

the lines after the injury and filing of the lawsuit. While subsequent repair is

not evidence of fault, it can be used as evidence for causation. In this case this

evidence tends to show the mooring was likely unusual, because an alleged

abnormal line was replaced and discarded in favor of a more “normal” lighter

line. Compare Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 429 (5th

Cir. 2006); Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392, 396 (5th Cir. 1972).

Testimony also established that the line could have absorbed water and some

evidence that the one-line mooring became the standard practice after a crew

reduction. Sufficient evidence exists for the district court’s findings. The

appellant’s challenges stem from a choice between two competing witnesses,

which is not clear error. See St. Martin v. Mobil Exploration & Producing, 224

F.3d 402, 408 (5th Cir. 2000) (“Our only role is to determine whether the district

court committed clear error. Defendants' evidence on causation was before the

district court through their experts, as were the parties' contradictory

explanations . . . There is nothing in the record to indicate that the court
No. 07-40078

4

committed clear error in accepting one explanation over another.”). There was

evidence that the line was unusual and the mooring different from the usual

situation, evidence that warning was inadequate, and evidence that the cause

of the injuries resulted solely from the mooring incident. The district court has

discretion to choose the plaintiff’s view of events. 

The appellant also challenges the inference of causation as post-hoc. The

standard for causation in Jones Act cases is fairly lenient. Martin v. John W.

Stone Oil Distributor, Inc., 819 F.2d 547, 548 (5th Cir. 1987) (quoting Landry v.

Two R. Drilling Co., 511 F.2d 138, 142 (5th Cir. 1975). While post-hoc reasoning

is generally fallacious by itself, such reasoning can be used to construe events

as an instance of a scientifically established cause-and-effect relationship. As

we noted in Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir. 1999), “[t]he

underlying predicates of any cause-and-effect medical testimony are that

medical science understands the physiological process by which a particular

disease or syndrome develops and knows whatfactors cause the process to occur.

Based on such predicate knowledge, it may then be possible to fasten legal

liability for a person's disease or injury.” In other words, if the plaintiff

establishes a scientific evidentiary predicate that a cause-and-effect relationship

exists, then circumstantial evidence related to the effect can be used to infer

cause. Curtis, 174 F.3d at 670. In this case, the appellant is not challenging the

reliability of Dr. Cupic’s testimony that established the cause-and-effect

relationship, like the appellant in Food Lion. Instead, the appellant is

challenging the trial court’s reliance on the expert testimony in its findings. Dr.

Cupic’s testimony was admitted, so the trial court could, in its discretion, credit

his testimony over others. See St. Martin, 224 F.3d at 408. 

Accordingly, we cannot say the trial judge committed clear error. Otto

Candies, LLC v. Nippon Kaiji Kyokai Corp., 346 F.3d 530, 533 (5th Cir. 2003)

(“Under a clear error standard, this court will reverse only if, on the entire
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evidence, we are left with the definite and firm conviction that a mistake has

been made.”) (internal citations and quotations omitted). For the same reasons,

the trial court did not commit clear error as to his findings of unseaworthiness

and denial of the motion for a new trial. 

2. The District Court Did Clearly Err In Calculating Damages

As the appellee concedes, the District Court did clearly err in calculating

pre-judgment interest as including future damages. The trial court improperly

awarded pre-judgment interest on the entire amount awarded, which included

future lost earnings, general damages, and medical expenses. However, under

maritime law, prejudgment interest can not be awarded on future damages. See

Couch v. Cro-Marine Transport, Inc., 44 F.3d 319, 328 (5th Cir. 1995).

Therefore, we vacate the judgment below as to the calculation of damages, and

remand for calculations without pre-judgment interest on future damages.

The appellant also asserts that while the judge’s memorandum ruling

denied SeaRiver a credit for disability benefits paid to Green, the actual

judgment and damage calculations incorporate the credit. The appellant asks

us to render an opinion reversing the memorandum ruling without affecting the

actual judgment. Such an opinion will not affect the rights of litigants and be

advisory in nature. See John Doe #1 v. Veneman, 380 F.3d 807, 814 (5th Cir.

2004). We decline to consider this issue on appeal. 

CONCLUSION

For the foregoing reasons, we AFFIRM the District Court’s Judgment, but

VACATE its calculation of damages, and REMAND for damages calculations

consistent with this opinion.