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ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RITA M. JOHNSON,

Plaintiff,

v.

OCEAN SHIPS, INC., ARROW LAUNCH

SERVICE, INC., ARROW MARINE

SERVICES, INC., and VESSEL JOHN

DOE ARROW,

Defendants.

 CASE NO. C05-5615RJB

 ORDER

 This matter comes before the Court on Defendant Arrow Launch Service, Inc. and Arrow

Marine Services, Inc.’s (“Arrow”) Motion for Partial Summary Judgment. Dkt. 61-1. The

Court has reviewed all documents filed in support of and in opposition to this motion, has

reviewed the entire file, and is fully advised. 

I. FACTS

On September 20, 2002, Plaintiff, a seaman returning to duty on Defendant Ocean Ship’s

vessel, the SAMUEL L. COBB, fell attempting to board Defendant Arrow’s launch from a dock

in Seattle. Dkt. 65-2, at 7-9. 

Plaintiff and Ocean Ships executed a release on December 28, 2002. Dkt. 62-2, at 3. The

release states:

THIS IS A RELEASE

I am giving up every right I have

I know that in signing this release I am taking the risk that I may have other injuries

from the accident that I do not now know of. I also know that I am taking the risk

that the injuries I do know of may be or may turn out to be worse than they seem to

me now. I take all these risks. I know I am giving up the right to any further

money. I am satisfied. 

I further warrant that the above mentioned sum is received by me in full settlement

and satisfaction of all the aforesaid claims and demands whatsoever. 

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ORDER - 2

Dkt. 62-2, at 3. Plaintiff signed this release five times. Id. at 3-7. Plaintiff received a check for

$2,300.00 in exchange for executing the release. Id. Plaintiff was not represented by an

attorney at the time she executed the release. 

On September 16, 2005, Plaintiff filed this suit, naming Ocean Ships and Arrow as

defendants. Dkt. 1. On January 23, 2006, Ocean Ships answered Plaintiff’s complaint and filed

a cross claim against Arrow for indemnification for any damages Ocean Ships may be forced to

pay if Plaintiff prevails. Dkt. 13.

Arrow now moves for Summary Judgment for an order that, to the extent Ocean Ships’s

indemnity claim is viable, it be limited to $2,300.00. Dkt. 61-1. Arrow argues that: 1) parties

seeking indemnity under maritime law must attempt to mitigate their damages, 2) Ocean Ships

failure to move for summary judgment dismissing it from this case, due to the validity of the

release, is a failure to mitigate its damages, and so 3) any indemnity owed, which Arrow

disputes, should be limited to the $2,300 Ocean Ships paid Plaintiff in consideration for the

release. Dkt. 61-1. Ocean Ships opposes the motion arguing that: 1) no legal authority

requires a party to pursue a motion for summary judgment in order to mitigate its damages, 2)

there are potential issues of fact as to whether the release is valid. Dkt. 63. Plaintiff opposes the

motion arguing that there are facts in dispute over the validity of the release. Dkt. 65-1. Arrow

replies that: 1) it was unreasonable for Ocean Ships to delay litigating the validity of the release,

and 2) Plaintiff’s sworn deposition testimony indicates that the release is valid. Dkt. 68.

II. DISCUSSION

 A. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter of law. 

Fed.R.Civ.P. 56 (c). The moving party is entitled to judgment as a matter of law when the

nonmoving party fails to make a sufficient showing on an essential element of a claim in the case

on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could

not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v.

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ORDER - 3

Zenith Radio Corp., 475 U.S. 574, 586 (1986)(nonmoving party must present specific,

significant probative evidence, not simply “some metaphysical doubt.”). See also Fed.R.Civ.P.

56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence

supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions

of the truth. Anderson v. Liberty Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec. Service Inc.

v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court

must consider the substantive evidentiary burden that the nonmoving party must meet at trial –

e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W.

Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in

favor of the nonmoving party only when the facts specifically attested by that party contradict

facts specifically attested by the moving party. The nonmoving party may not merely state that

it will discredit the moving party’s evidence at trial, in the hopes that evidence can be developed

at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson,

supra). Conclusory, non specific statements in affidavits are not sufficient, and “missing facts”

will not be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).

B. MITIGATION OF DAMAGES

 “In general, courts allow indemnitees to collect from the indemnitor reasonable and

necessary counsel fees and legal expenses incurred in defending against the plaintiff. The award

of fees and expenses does not encompass costs necessary to establish the right against the

alleged indemnitor.” Flunker v. U.S., 528 F.2d 239, 246 (9th Cir. 1975) (holding under the

facts of the case that a launch operator owes implied warranty of workman like performance to

shipowner, who it must indemnify if a breach thereof causes injury to a seaman passenger). A

party who has asserted an indemnity right has the duty to attempt to mitigate the damages for

which they seek indemnity. See Alcoa S.S. Co. v. Charles Ferran & Co., 251 F.Supp. 823, 832

(E.D. La. 1966). The duty to mitigate requires that a party act reasonably. Id. 

Arrow argues here that Ocean Ships failure to move for summary judgment based upon

the validity of the release was unreasonable, and thus a failure to mitigate its damages. Dkt. 68. 

Ocean Ships argues that it was not reasonable to engage in an expensive summary judgment

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ORDER - 4

motion when there are potential issues of fact as to whether the release is valid. Dkt. 63. 

Due to a seaman’s special status as a “ward of admiralty,” a shipowner bears the burden of

proving that a seaman’s release was executed freely, without deception or coercion, and that it

was made by the seaman with full understanding of his rights is valid. Garrett v. MooreMcCormack Co., 317 U.S. 239, 247 (1942). 

Garrett establishes a two-part test in determining the enforceability of a seaman's

release: (1) whether the release was executed freely, without deception or coercion;

and (2) whether it was made by the seaman with full understanding of his rights. To

apply the second part of the test, we consider: (1) the adequacy of the consideration;

(2) the nature of the medical advice available to the seaman at the time of signing

the release; and (3) the nature of the legal advice available to the seaman at the time

of signing the release.

Orsini v. O/S SEABROOKE O.N., 247 F.3d 953, 959 (9th Cir. 2001).

Arrow’s motion for summary judgment should be denied. Ocean Ships argues that it did

not move for summary judgment dismissal based upon the release because, viewing the facts in a

light most favorable to Plaintiff, there are potential issues of fact regarding whether Plaintiff

executed the release with a full understanding of her rights. Dkt. 63. Ocean Ships points to

Plaintiff’s testimony particularly regarding the nature of the legal advice she thought was

available to her at the time she signed the release. Id. 

“Where an injured seaman is not represented by counsel, it is the owner's obligation to

make a full, fair and complete disclosure as to all of a seaman's rights, including his right to sue

for damages under the Jones Act, and his right to wages, maintenance and cure under the

applicable Seamen's Law. Orsini at 964 (internal citations omitted). “For legal advice to be

considered adequate in a Garrett analysis, an unrepresented seaman is entitled to a fair

discussion of his or her entitlements to maintenance and cure, and alerted to the possibility of

tort remedies including those for negligence and unseaworthiness.” Id. However, a shipowner

is not obliged to explain the merits of his claim to a seaman or send him to a lawyer. Id. at n.7. 

Plaintiff testified at the time she was speaking with Mr. Miller, Defendant Ocean Ship’s

attorney, about the release, that they did not discuss Plaintiff’s rights under the Jones Act. Dkt.

65-2, at 6. Plaintiff testified further that she was unaware of other potential claims against

Ocean Ships. She testified, 

So, you knew with respect to settling the claim against Ocean Ships that you could,

in fact, go talk to an attorney about whether you should settle your claim, or not? 

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ORDER - 5

A. I didn’t have a claim against Ocean Ships. I had a claim against Arrow Launch. 

Q. What did you receive the money for from Ocean Ships? 

A. That - okay. That it was at that time that I needed something. I needed some

help, some financial help, and Mr. Miller said that this was his estimation of lost

wages, or wages that he was paying up to that period of time. He figured it out. I

took it at that, and that was that. 

Dkt. 65-2, at 1-2. Moreover, Plaintiff testified that she remembered very distinctly the release

included a clause which stated “please be advised that this agreement is confidential and your

not to discuss it with a third party.” Dkt. 65-3, at 10. Plaintiff further testified that, 

Third party meant no one else other than me and Mr. Miller. So then at any other

time in all this two, three years of this foolishness was that I - and if I did I’d have to

pay the $2,300 back . . . Going to an attorney would have been violating it, going

anywheres, saying it to anyone, speaking to anyone was going to be violating this

agreement. That was a big important deal. Id.

Plaintiff was questioned on whether she asked Mr. Miller whether she could take the release to

an attorney before she signed it, and she respond that she did not ask. Id. at 11. She was

further asked “did he tell you that you could [take the release to an attorney]? A: It never came

up. No. No. Q: Okay. A: I trusted him and –.” Id. 

Accordingly, there are issues of fact as to whether Plaintiff executed the release with “a

full understanding of her rights.” Orsini, at 595. As such, there are issues of fact as to whether

the release is valid. At this stage in the case, there is no evidence in the record that Ocean Ships

failed to mitigate any damages for which it may be liable for failing to move for summary

judgment. Arrow’s Motion for Summary Judgment should be denied. 

III. ORDER

Therefore, it is hereby, ORDERED that Defendant Arrow Launch Service, Inc. and Arrow

Marine Services, Inc.’s Motion for Partial Summary Judgment (Dkt. 61-1) is DENIED. 

The Clerk of the Court is directed to send uncertified copies of this Order to all counsel of

record and to any party appearing pro se at said party’s last known address.

DATED this 26th day of September, 2006.

A

ROBERT J. BRYAN

United States District Judge

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