United States Court of Appeals 

For the First Circuit 

Nos. 16-1302 

 16-1565 

KENNETH NEVOR, 

Plaintiff, Appellee, 

v. 

MONEYPENNY HOLDINGS, LLC, 

Defendant, Appellant. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. John J. McConnell, Jr., U.S. District Judge] 

Before 

Barron, Selya and Stahl, 

Circuit Judges. 

 Robert P. Powers, with whom Michael R. Byrne and Melick & 

Porter, LLP were on brief, for appellant. 

 Maurice J. Cusick, with whom Vincent M. Morgera was on brief, 

for appellee. 

November 22, 2016 
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SELYA, Circuit Judge. In this maritime personal injury 

case, the district court awarded the plaintiff compensatory 

damages for past and future harms totaling nearly $1,500,000. 

Adding insult to injury, the court tacked on prejudgment interest 

at the Rhode Island state rate of 12% per annum and entered 

judgment in the plaintiff's favor for $2,318,487. The defendant 

appeals, challenging both the damages award and the prejudgment 

interest increment. 

After careful consideration, we find the award of 

damages to be unimpugnable. The award of prejudgment interest, 

though, presents greater complications: with respect to that 

award, we tackle a question of first impression within this circuit 

and, following the resolution of that question, affirm the interest 

award in part and reverse it in part. The tale follows. 

I. BACKGROUND

We rehearse the relevant facts as found by the district 

court, see Nevor v. Moneypenny Holdings, LLC, 2016 WL 183906 

(D.R.I. Jan. 14, 2016), consistent with record support. Plaintiffappellee Kenneth Nevor was once a professional sailor. His 

experience included sailing, racing, and transporting racing 

yachts. His skillset extended to maintaining and repairing 

sailboats, their mechanical equipment, and their electronic gear. 

Nevor began sailing as a boy and — by the age of 35 — 

had participated in a number of elite racing events worldwide. At 
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the time of the mishap giving rise to this action, Nevor was an 

employee of defendant-appellant Moneypenny Holdings, LLC 

(Moneypenny), which owned a 52-foot sailing vessel called the 

Vesper and a 35-foot motor support vessel called the Odd Job. 

In March of 2011, Nevor was part of a crew preparing the 

Vesper for a regatta in the Caribbean. The Vesper was travelling 

in the British Virgin Islands when the members of the crew learned 

that they — but not the boat — needed to return to St. Thomas to 

clear customs. To facilitate this process, the Odd Job met the 

Vesper with a view toward carrying some crewmembers back to shore. 

When the Odd Job pulled up alongside the Vesper, the Vesper's 

captain directed some of the crew (including Nevor) to transfer 

from the Vesper to the Odd Job. The wind was blowing at between 

eight and twelve knots — normal for that time of year — but the 

sea was choppy. Still, the captain did not lash the Odd Job and 

Vesper together before proceeding with the transfer. 

As Nevor disembarked the Vesper to board the Odd Job, 

the boats separated. Nevor slipped, grasping the Vesper's lifeline 

as he reached for the Odd Job with his foot. He was able to 

complete the transfer, but the stress on his right arm caused his 

bicep to tear from the bone. 

Nevor stayed with the Vesper for two weeks after his 

injury to assist with race preparations. He then returned 

stateside to undergo surgery. Once the operation was performed, 
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he completed six months of physical therapy. Even after he had 

finished the prescribed course of therapy, his treating physician 

found residual atrophy in the reattached muscle. Several months 

later, Nevor visited another specialist who determined that 

Nevor's right arm remained weaker than his left and was unlikely 

to improve. This specialist concluded that Nevor could not do the 

heavy lifting that his previous job demanded. 

In June of 2013, Nevor invoked admiralty jurisdiction, 

see 28 U.S.C. § 1333, and sued Moneypenny in Rhode Island's federal 

district court.1 His complaint alleged negligence under the Jones 

Act, see 46 U.S.C. §§ 30101-30106, and unseaworthiness under 

general maritime law. 

Following a four-day bench trial, the district court 

wrote a thorough and closely reasoned rescript stating its findings 

of fact and conclusions of law. The court awarded Nevor $1,460,458 

in damages ($710,458 for loss of earnings and loss of future 

earning capacity and $750,000 for pain, suffering, and mental 

anguish).2 See Nevor, 2016 WL 183906, at *7. The court 

subsequently granted Nevor's motion to add prejudgment interest to 

 1 Nevor's complaint named James R. Swartz, Moneypenny's 

principal, as a codefendant. Nevor subsequently dropped Swartz as 

a party, though, and we make no further mention of him. 

2 Nevor's hospital and medical expenses were paid separately 

as part of the shipowner's obligation of maintenance and cure. 

See Whitman v. Miles, 387 F.3d 68, 71-72 (1st Cir. 2004). 
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the damages award. This increment, which totaled $858,029, brought 

the aggregate judgment to $2,318,487 (plus costs). 

These consolidated appeals ensued.3 In them, Moneypenny 

concedes liability but challenges several of the monetary 

components of the judgment. 

II. ANALYSIS

Moneypenny's claims of error fall into two broad 

categories. First, it offers various reasons why the award of 

damages should be deemed excessive. Second, it assails the 

prejudgment interest award as totally inappropriate and, 

alternatively, says that no prejudgment interest should accrue on 

damages for future harm. We address these claims sequentially. 

A. Damages.

As an opening salvo, Moneypenny blasts the district 

court's stated basis for awarding economic damages (lost wages and 

prospective loss of earning capacity). In its words, the court's 

factual findings were "clearly erroneous" and "premised on 

inadmissible speculation." 

In the aftermath of a bench trial, we review the district 

court's factual findings for clear error. See Reliance Steel 

Prods. Co. v. Nat'l Fire Ins. Co., 880 F.2d 575, 576 (1st Cir. 

1989). We will set aside those findings "only if, on the entire 

 3 Moneypenny filed notices of appeal on two separate 

occasions. For simplicity's sake, we treat the appeals as a unit. 
- 6 - 

evidence, we are left with the definite and firm conviction that 

a mistake has been committed." Id. (citation omitted). Whether 

we would have reached the same result as the district court is not 

the issue: "[w]here there are two permissible views of the 

evidence, the factfinder's choice between them cannot be clearly 

erroneous." Id. at 577 (quoting Anderson v. City of Bessemer City, 

470 U.S. 564, 574 (1985)). 

This deferential standard of review applies with 

unabated force when a district court's findings depend wholly or 

in part on expert testimony. When judges act as factfinders, they 

are given "considerable leeway in choosing among the views of 

experts and in determining the weight and value to be assigned to 

the opinions of each expert." Reilly v. United States, 863 F.2d 

149, 167 (1st Cir. 1988). 

At trial, the parties presented detailed information 

about the sailing industry, as well as expert testimony about 

Nevor's physical limitations, projected wages, past and future 

earning capacity, vocational capabilities, and work-life 

expectancy. With respect to Nevor's projected wages and lost 

earning capacity — the focal points of the district court's 

economic damages calculation — Nevor's experts testified that at 

the time of the accident he was "at the cusp" of joining the ranks 

of the ultra-elite sailors who earned between $100,000 and $120,000 

per year. This evidence was consistent with the fact that, in the 
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first three months of 2011 (the year of his injury), Nevor already 

had earned just shy of $30,000 working for Moneypenny. The experts 

went on to explain that Nevor was one of "only maybe a thousand 

people" competing internationally at an elite level and that he 

had the skills and strength required to advance. Similarly, they 

opined that, but for the injuries sustained in the accident, Nevor 

could have remained employed as a top-echelon sailor for several 

decades.4

Of course, this evidence did not go unrebutted. 

Moneypenny presented expert testimony that Nevor sustained 

virtually no loss in earning capacity as a result of the accident 

and that, even if not injured, he was unlikely to earn more than 

$100,000 per year as a sailor. 

The district court sided with Nevor's experts. It 

concluded that, but for the injuries sustained in the accident, 

Nevor "would have continued to be employed in high-level sailing" 

and "would have advanced as a professional sailor in his chosen 

field if he had not been injured." Nevor, 2016 WL 183906, at *6. 

 4 In the court below, Moneypenny made several unsuccessful 

attempts to strike the testimony of Nevor's vocational expert 

(Michael LaRaia). On appeal, it complains of these denials in but 

a single sentence in its opening brief: a conclusory assertion 

that the district court abused its discretion in refusing to strike 

the testimony. We thus deem the argument undeveloped and consider 

it waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 

1990) ("[I]ssues adverted to in a perfunctory manner, 

unaccompanied by some effort at developed argumentation, are 

deemed waived."). 
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In reaching these conclusions, the court found persuasive the 

testimony voiced by Nevor's witnesses regarding his vocational 

capabilities, earning capacity, and work-life expectancy. 

In this venue, Moneypenny asseverates that the compiled 

record offered "no reliable means of predicting the duration of 

Nevor's sailing career, the positions which he may have held, or 

the income which he might have earned." And although Moneypenny 

concedes that it might have been "possible" for Nevor to reach 

sailing's upper echelon and earn the wages commensurate with 

sailing at that level, it insists that the evidence fell well short 

of the "reliable demonstration" benchmark set by the Supreme Court. 

See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 534-35 

(1983) (explaining that "[a]lthough it may be difficult to prove 

when, and whether, a particular injured worker might have received 

[] wage increases, . . . they may be reliably demonstrated for 

some workers"). 

Contrary to Moneypenny's importunings, a reliable 

demonstration does not demand proof positive. Forecasting future 

losses necessarily requires the trier to sift through the 

projections of experts, gauge the credibility of witnesses, and 

draw reasonable inferences from the facts. See Johnson v. Watts 

Regulator Co., 63 F.3d 1129, 1138 (1st Cir. 1995); Reliance Steel, 

880 F.2d at 576. While robes and gavels, not tea leaves or crystal 

balls, are the tools of a trial judge's trade, some degree of 
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speculation is inherent in any such forecast. A reliable 

demonstration demands only that the court's prediction is 

reasonable, given the facts in the record. Here, we must give due 

weight to the court's determinations of witness credibility, its 

findings as to the relative persuasiveness of various experts, and 

its appraisal of competing facts. See Reliance Steel, 880 F.2d at 

576. 

Viewed through this prism, we find plentiful support in 

the record for the court's determination that Nevor had in prospect 

a top-flight racing career that was likely to be long and 

successful and lost it due to the injuries sustained in the 

accident. Consequently, we decline Moneypenny's invitation to 

second-guess the district court's founded determination that the 

evidence reliably demonstrated that Nevor was likely to move 

further up the ranks. In the last analysis, that determination 

depended upon a weighing of conflicting evidence, and such an 

appraisal falls peculiarly within the trial court's ken. See 

Reilly, 863 F.2d at 167. 

Moneypenny next argues that Nevor's failure to attend a 

specialized vocational rehabilitation program constituted a breach 

of his duty to mitigate damages and should have reduced his damages 

award. The district court saw the matter differently and did not 

reduce the award on this account. 
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At the threshold, we note that mitigation is in the 

nature of an affirmative defense. See Allied Int'l, Inc. v. Int'l 

Longshoremen's Ass'n, 814 F.2d 32, 38-39 (1st Cir. 1987). Thus, 

Moneypenny bore the burden to prove by a preponderance of the 

evidence that Nevor "failed to take reasonable steps to hold down 

[his] losses." Id. As the proponent of an affirmative defense, 

Moneypenny also bore "the risk of equipoise." O'Neal v. McAninch, 

513 U.S. 432, 444 (1995). 

On appeal, Moneypenny ascribes two errors to the 

district court's refusal to credit its mitigation defense. We 

start with its suggestion that the district court was obligated to 

give a fuller explanation of its ruling. 

The Civil Rules provide that, after a bench trial, "the 

court must find the facts specially and state its conclusions of 

law separately." Fed. R. Civ. P. 52(a)(1). This rule, however, 

has practical limits. A "district court [is] not required to make 

findings on every detail, [is] not required to discuss all of the 

evidence that supports each of the findings made, and [is] not 

required to respond individually to each evidentiary or factual 

contention made by the losing side." Addamax Corp. v. Open 

Software Found., Inc., 152 F.3d 48, 55 (1st Cir. 1998). The 

court's findings are adequate as long as they "make plain the basis 

for its disposition of the case." Valsamis v. González-Romero, 

748 F.3d 61, 63 (1st Cir. 2014). 
- 11 - 

Here, the district court explained in considerable 

detail the basis for its findings on liability, concluding that 

Moneypenny was liable under both the Jones Act (for negligence) 

and general maritime law (for unseaworthiness). See Nevor, 2016 

WL 183906, at *4-5. It then set forth (again, in considerable 

detail) the basis for its calculation of damages. See id. at *5-

7. Those calculations rejected, albeit implicitly, Moneypenny's 

mitigation defense.5 The upshot is that the court found the facts 

with particularity, stated its legal conclusions plainly, and 

explained in no uncertain terms its disposition of the case. No 

more was exigible to satisfy the requirements of Rule 52(a). See 

Damon v. Sun Co., 87 F.3d 1467, 1480 (1st Cir. 1996); see also 

Banerjee v. Bd. of Trs. of Smith Coll., 648 F.2d 61, 66 (1st Cir. 

1981). 

The second branch of Moneypenny's mitigation defense is 

its claim that the evidence required a finding of failure to 

mitigate. We disagree: the district court's implicit conclusion 

that Moneypenny's mitigation defense did not hold water is 

adequately supported in the record. 

 5 There is no question, though, that the district court did 

in fact consider the mitigation defense. At trial, the court 

acknowledged that the parties had "thoroughly covered" and 

"valiantly argued" the issue, and vouchsafed that it would "take 

[the mitigation defense] into consideration." 
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The relevant facts are susceptible to succinct 

summarization. Moneypenny introduced evidence that one of Nevor's 

doctors prescribed a round of vocational rehabilitation sessions 

that Nevor did not attend. Nevor countered that he was never 

notified about this proposed regimen. He also introduced evidence 

that, even if he had been notified, the therapy was unavailable — 

the rehabilitation center that he was directed to attend treated 

only injuries (unlike Nevor's) arising under state workers' 

compensation law. We think it a commonsense proposition that a 

plaintiff cannot be charged with a failure to mitigate damages 

when the suggested mitigation measure is unavailable to him. 

What is more, the record is replete with testimony that, 

far from avoiding therapy, Nevor avidly sought it out. On one 

occasion, he asked his doctor to refer him for an additional round 

of physical therapy. At other times, he sought therapy on his 

own. 

The short of it is that the district court faced a factsensitive determination on the mitigation issue, couched in 

evidence that lent itself to multiple interpretations. Where, as 

here, "the conclusions of the [trier] depend on its election among 

conflicting facts or its choice of which competing inferences to 

draw from undisputed basic facts, appellate courts should defer to 

such fact-intensive findings, absent clear error." Reliance 

Steel, 880 F.2d at 576 (alteration in original) (quoting Irons v. 
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FBI, 811 F.2d 681, 684 (1st Cir. 1987)). Such deference is 

appropriate in this instance, and we discern no clear error in the 

court's implicit conclusion that Nevor was not guilty of failing 

to mitigate his damages. 

This brings us to Moneypenny's claim that the award of 

non-economic damages (for pain and suffering, mental anguish, and 

the like) is excessive and unsupported by the evidence. The 

court's ultimate conclusion — the monetization of Nevor's noneconomic harms — is assayed for abuse of discretion. See Limone 

v. United States, 579 F.3d 79, 103 (1st Cir. 2009) (describing 

such a conclusion as a "classic example of a judgment call"). Such 

an award will stand unless it "shock[s] our collective conscience 

or raise[s] the specter of a miscarriage of justice." Id. at 84. 

We conclude that the district court's non-economic 

damages award finds sufficient purchase in the record. Nevor 

offered ample evidence showing that he underwent significant pain 

and suffering, that his quality of life was reduced, and that he 

experienced lasting physical and emotional distress long after the 

accident. He submitted to a painful surgery, endured a lengthy 

recovery, attended months of physical therapy sessions, and was 

forced to limit his physical activities. Moreover, Nevor faces 

the prospect of lasting consequences because his injuries 

(including some residual scarring) have been found to be permanent. 
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Non-economic damages are notoriously difficult to 

quantify. "[T]here is no scientific formula or measuring device 

which can be applied to place a precise dollar value" on pain, 

suffering, and other items of intangible harm. Limone, 579 F.3d 

at 105 (quoting Wagenmann v. Adams, 829 F.2d 196, 216 (1st Cir. 

1987)). Given what Nevor has experienced and what he predictably 

faces, we find the district court's award to be within the wide 

universe of reasonable awards. Though generous, the award is 

proportional to the weight of the evidence and is neither 

conscience-shocking nor a harbinger of a miscarriage of justice. 

Indeed, it is consistent with awards in analogous cases. See, 

e.g., Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 80-82 (1st 

Cir. 2010) (affirming award of over $2,000,000 in non-economic 

damages where plaintiff sustained painful foot injury that 

resulted in disability). 

For these reasons, the district court's damages award 

must be affirmed in full. 

B. Interest.

Moneypenny's interest-related assignments of error can 

be divided into two tranches. First, Moneypenny submits that the 

successful Jones Act claim should have precluded any award of 

prejudgment interest. Second, Moneypenny submits that — even apart 

from his Jones Act argument — the district court should not have 

granted Nevor any prejudgment interest with respect to damages for 
- 15 - 

future harm. We address these matters one by one, affording de 

novo review to questions of law and abuse-of-discretion review to 

judgment calls. See Limone, 579 F.3d at 102. 

We preface our discussion of specific issues with a 

synopsis of the applicable legal doctrine. A seaman injured during 

the course of his employment may recover damages under a variety 

of statutory and common-law theories, including (as pertinent 

here) the Jones Act and general maritime law. The Jones Act 

provides a cause of action for a seaman injured through his 

employer's negligence. See 46 U.S.C. §§ 30101-30106. Whether a 

plaintiff is entitled to prejudgment interest on an award of 

damages under the Jones Act, however, is open to question. The 

prevailing view appears to be that, in pure Jones Act suits, 

recovery of prejudgment interest is not permitted.6 See Petersen 

v. Chesapeake & Ohio Ry. Co., 784 F.2d 732, 740 (6th Cir. 1986). 

Our court has not squarely addressed this issue. 

The situation is quite different with respect to general 

maritime law. Under that body of law, there is a common-law cause 

of action for injuries resulting from the unseaworthiness of a 

 6 There is, however, some play in the joints. Compare Wyatt 

v. Penrod Drilling Co., 735 F.2d 951, 955 (5th Cir. 1984) (noting 

that the Fifth Circuit has "disapproved the award of prejudgment 

interest in a Jones Act case tried to a jury"), with Williams v. 

Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir. 1985) 

(holding that when a federal court sits in admiralty jurisdiction, 

the judge may exercise his discretion to award prejudgment interest 

on a Jones Act claim). 
- 16 - 

vessel on which a seaman was employed. See Poulis-Minott v. Smith, 

388 F.3d 354, 366 (1st Cir. 2004). In that context, "[p]rejudgment 

interest is generally available." Borges v. Our Lady of the Sea 

Corp., 935 F.2d 436, 443 n.1 (1st Cir. 1991). 

There is a split of authority about whether an injured 

seaman who prevails on fully aligned claims under both the Jones 

Act and the unseaworthiness rubric may be awarded prejudgment 

interest. For example, some courts of appeals have held that a 

seaman is not entitled to prejudgment interest when he prevails on 

parallel Jones Act and unseaworthiness claims. See Petersen, 784 

F.2d at 741; see also Wyatt v. Penrod Drilling Co., 735 F.2d 951, 

956 (5th Cir. 1984) (noting that "[i]f the court may not award 

prejudgment interest on the Jones Act claim, there is no separate 

pure admiralty item on which to allow interest" (internal 

alteration and citation omitted)). The Second Circuit has viewed 

the matter differently. When a seaman prevails on both Jones Act 

and unseaworthiness claims and there are no exceptional 

circumstances militating against an award of prejudgment interest, 

that court has held that the seaman is entitled to prejudgment 

interest on the total amount of the award. See Magee v. U.S. 

Lines, Inc., 976 F.2d 821, 822 (2d Cir. 1992). That rule is 

preferable, the court reasoned, because it permits the plaintiff 

to "be paid under the theory of liability that provides the most 

complete recovery." Id. 
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It is in this stormy sea that we must anchor our 

analysis. Moneypenny, though, attempts to circumnavigate the 

issue entirely. It claims that the district court's damages award 

was based solely on a finding of Jones Act negligence and, thus, 

cannot bear the weight of prejudgment interest. The record belies 

this claim. 

In its separate written order awarding prejudgment 

interest, the district court explicitly found that Nevor was 

entitled to prejudgment interest because the damages award was, at 

least in part, under general maritime law (that is, for 

unseaworthiness). The language of the district court's earlier 

rescript supports this characterization. There, the court found 

that Moneypenny's failure to apply a non-skid product to the Odd 

Job's slippery side "made the [boat] unseaworthy and substantially 

contributed to" Nevor's injuries. Nevor, 2016 WL 183906, at *5. 

Additionally, the court found that Moneypenny's failure either to 

provide proper training to its crew or to implement appropriate 

safety procedures rendered both the Vesper and the Odd Job 

unseaworthy and further contributed to Nevor's injuries. See id. 

The district court's conclusion that the damages award 

was based in part on a finding of unseaworthiness was not clearly 

erroneous. To begin, a district court's characterization of its 

own findings is entitled to some deference. See Martha's Vineyard 

Scuba Headquarters, Inc. v. Unidentified, Wrecked & Abandoned 
- 18 - 

Steam Vessel, 833 F.2d 1059, 1066-67 (1st Cir. 1987) (acknowledging 

the "special role played by the writing judge in elucidating the 

meaning and intendment of an order which he authored"). The court 

below, sitting without a jury, was entitled to weigh the evidence 

and to draw reasonable inferences. See Reliance Steel, 880 F.2d 

at 576-77. In the circumstances of this case, we conclude, without 

serious question, that the damages award was a "mixed" award. 

Struggling to right a sinking ship, Moneypenny asserts 

that even if the lack of non-skid product rendered the Odd Job 

unseaworthy, the record does not establish that this particular 

unseaworthiness contributed to Nevor's injuries. We need not probe 

this point too deeply because, even assuming (albeit without 

deciding) that Moneypenny's assertion may have some force, it would 

not change our conclusion. The district court's findings regarding 

Moneypenny's failure to provide proper training and to implement 

appropriate safety procedures are well-documented, and those 

findings are alone sufficient to show that the damages award was 

based at least in part on a viable theory of unseaworthiness. See 

Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 427 (1959) 

(explaining that "[u]nseaworthiness extends not only to the vessel 

but to the crew"); Cape Fear, Inc. v. Martin, 312 F.3d 496, 500 

(1st Cir. 2002) (explaining that procedures crewmembers employ may 

render ship unseaworthy). 
- 19 - 

Having established that the damages award straddles both 

a successful Jones Act claim and a successful unseaworthiness 

claim, we turn to Moneypenny's contention that the presence of the 

Jones Act claim poisons the well and precludes an award of 

prejudgment interest. We assume for argument's sake — but do not 

decide — that a successful Jones Act claim, standing alone, would 

not bear prejudgment interest. Even so, we reject Moneypenny's 

contention. We hold that when a court, in a bench trial, awards 

damages based on mixed Jones Act and unseaworthiness claims, 

prejudgment interest is available.7 We explain briefly. 

To begin, we lay to rest a diversion. Moneypenny asserts 

that our analysis is controlled by the Supreme Court's decision in 

Miles v. Apex Marine Corp., 498 U.S. 19 (1990). There, the Court 

considered whether the estate of a deceased seaman could recover 

the seaman's future lost earnings under general maritime law. See 

id. at 21. The Court observed that even if it were to create an 

exception to the traditional rule that unseaworthiness claims do 

not survive a seaman's death, it would nevertheless bar the 

recovery of the deceased seaman's lost wages because the Jones Act 

— which does include a limited survival right — already prohibits 

such a recovery. Thus, there was no principled basis for expanding 

 7 We take no view as to the appropriate interest rate to be 

applied. The court below borrowed the Rhode Island state rate for 

prejudgment interest in tort actions, see R.I. Gen. Laws § 9-21-

10, and Moneypenny has not contested the court's use of that rate. 
- 20 - 

the remedies available in a general maritime action based on strict 

liability. See id. at 33-36.

The case at hand, however, is a different kettle of fish. 

The Miles plaintiff wanted the Court to create a general maritime 

law remedy that was previously unavailable. Here, however, Nevor 

seeks to have us retain a remedy — prejudgment interest on damages 

awarded in connection with admiralty torts — that was available 

long before the passage of the Jones Act. See City of Milwaukee 

v. Cement Div., Nat'l. Gypsum Co., 515 U.S. 189, 195 & n.7, 196 

(1995). Seen in this light, this case fits much more closely with 

Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009), in which 

the Court concluded that the passage of the Jones Act did not 

implicitly deprive plaintiffs of their longstanding right to 

recover those damages historically available under general 

maritime law. See id. at 408 (holding that the Jones Act did not 

preclude plaintiffs from seeking punitive damages in combined 

Jones Act and general maritime law cases); id. at 420 (noting that 

"[u]nlike the situation presented in Miles, both the general 

maritime cause of action . . . and the remedy . . . were well 

established before the passage of the Jones Act"). 

With this potential distraction laid to rest, we return 

to the question of whether the intertwining of Jones Act and 

unseaworthiness claims precludes Nevor from any access to 

prejudgment interest. We approach this conundrum mindful that 
- 21 - 

"prejudgment interest traditionally has been considered part of 

the compensation due plaintiff." Osterneck v. Ernst & Whinney, 

489 U.S. 169, 175 (1989). The "essential rationale for awarding 

prejudgment interest is to ensure that an injured party is fully 

compensated for its loss," and "[f]ull compensation has long been 

recognized as a basic principle of admiralty law." City of 

Milwaukee, 515 U.S. at 195-96. Put simply, an award of prejudgment 

interest helps achieve the laudable goal of making an injured 

plaintiff whole. See id. at 196. It follows that adopting 

Moneypenny's grudging approach to prejudgment interest would 

prevent many prevailing plaintiffs from recovering damages 

generally considered part of their due compensation. See 

Osterneck, 489 U.S. at 175. 

To be sure, a plaintiff who recovers damages for a 

general maritime law claim, such as an unseaworthiness claim, may 

lose his right to prejudgment interest if "exceptional 

circumstances" make an award of interest inequitable. City of 

Milwaukee, 515 U.S. at 194-95 (citation omitted). Such 

circumstances might include, say, undue delay by the prevailing 

party, exorbitant overestimation of damages, or bad faith. See 

Anderson v. Whittaker Corp., 894 F.2d 804, 809 (6th Cir. 1990) 

(citation omitted); Alkmeon Naviera, S.A. v. M/V Marina L, 633 

F.2d 789, 797-98 (9th Cir. 1980) (collecting cases). But the 
- 22 - 

record here evinces no such disabling circumstance: Nevor has 

prosecuted his case forcefully, but not unreasonably so.8

Even though our court has not decided the precise 

question with which we are confronted, a persuasive analogy exists. 

We have held that when a plaintiff raises claims under parallel 

causes of action (both federal and state, for example) and receives 

a damages award straddling both of those fully aligned claims, the 

defendant may not cite the presence of a more restricted remedy on 

one claim to deny the plaintiff a more expansive remedy on the 

other claim. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 

146 (1st Cir. 2009) (explaining that "a successful plaintiff's 

right to a particular remedy under federal law does not trump his 

right to a more advantageous remedy under state law"). Thus, 

"[w]hen federal and state claims overlap, the plaintiff may choose 

to be awarded damages based on state law if that law offers a more 

generous outcome than federal law." Id.; accord Freeman v. Package 

Mach. Co., 865 F.2d 1331, 1345 (1st Cir. 1988) (noting that 

although a prevailing plaintiff in such a situation is "entitled 

 8 The mere fact that Nevor elected to sue simultaneously under 

both the Jones Act and general maritime law is not itself an 

exceptional circumstance. See McAllister v. Magnolia Petrol. Co., 

357 U.S. 221, 224-25 (1958) (explaining that if a seaman "is to 

sue for both unseaworthiness [under general maritime law] and Jones 

Act negligence, he must do so in a single proceeding" and that 

such an injured seaman will "rarely forego" his right to seek 

relief under both causes of action). 
- 23 - 

to only a single slice of the pie[,] . . . the choice of the slice 

[is] his"). 

This same paradigm seems altogether appropriate where, 

as here, a plaintiff has prevailed on fully aligned Jones Act and 

unseaworthiness claims. After all, the plaintiff is entitled to 

interest on the unseaworthiness claim and there is no logical 

reason why his broader success should strip him of that 

entitlement. 

There is yet another leg to our voyage. Although we 

hold that the district court was correct in awarding some 

prejudgment interest (due to the successful unseaworthiness 

claim), we nonetheless agree with Moneypenny that the court went 

too far: in fashioning an award of prejudgment interest, the court 

should first have set to one side the damages attributable to 

future harm. 

In this circuit, the law is well-established that 

"prejudgment interest should not be awarded on damages for future 

loss, either liquidated or unliquidated." Borges, 935 F.2d at 

444-45 (collecting cases). This is a reflection of the commonsense 

notion that interest should not accrue before the harm itself has 

occurred. See id. at 445. 

The law of the circuit doctrine requires this court (and, 

by extension, all lower courts within this circuit) to respect, in 

the absence of supervening authority, the decisions of prior panels 
- 24 - 

on the same issue. See San Juan Cable LLC v. P.R. Tel. Co., 612 

F.3d 25, 33 (1st Cir. 2010). "Once we have decided a legal question 

and articulated our reasoning, there is usually no need for us to 

repastinate the same soil when another case presents essentially 

the same legal question." Vander Luitgaren v. Sun Life Assur. Co. 

of Canada, 765 F.3d 59, 61 (1st Cir. 2014). Although there are a 

few exceptions to this rule, see San Juan Cable, 612 F.3d at 33 

(describing narrow exceptions to law of the circuit doctrine), 

none applies here. We conclude, therefore, that the district court 

was bound to follow Borges, and its failure to do so constitutes 

reversible error.9 Prejudgment interest must be limited to items 

of loss that were in the rear-view mirror at the time of the 

damages award and the concomitant entry of judgment (e.g., wages 

and earning capacity already lost, pain and suffering already 

experienced, and the like). Correspondingly, the award of 

prejudgment interest must omit items of loss not yet accrued as of 

that date (e.g., future loss of wages and earning capacity, future 

pain and suffering, and the like). On remand, the district court 

 9 At oral argument, Nevor insisted that our opinion in Rivera 

v. Rederi A/B Nordstjernan, 456 F.2d 970 (1st Cir. 1972), supports 

his receipt of prejudgment interest on damages for future harms. 

This is magical thinking: Rivera held that trial judges have 

discretion to award prejudgment interest in some cases, but it did 

not address the propriety of awarding such interest with respect 

to damages for future harms. See id. at 976. 
- 25 - 

must reformulate its award of prejudgment interest in accordance 

with these principles. 

III. CONCLUSION

We need go no further. For the reasons elucidated above, 

we affirm the damages award; affirm the award of prejudgment 

interest in part and reverse it in part; and remand for the entry 

of an amended judgment, nunc pro tunc, consistent with this 

opinion. The amended judgment shall, of course, carry postjudgment interest at the federal rate, see 28 U.S.C. § 1961(a), 

which will commence to run (by virtue of the nunc pro tunc 

provision) from the date of the original judgment, see Fiorentino 

v. Rio Mar Assocs. LP, SE, 626 F.3d 648, 652 (1st Cir. 2010). 

Affirmed in part, reversed in part, and remanded. Two-thirds costs 

shall be taxed in favor of the plaintiff.