Appeal from the United States District Court for the District of Nebraska.
The opinion of the court was delivered by: Colloton, Circuit Judge.
Submitted: April 16, 2009
Before LOKEN, Chief Judge, HANSEN and COLLOTON, Circuit Judges.
Daniel Doyle suffered injuries while he was a passenger on a boat owned and operated by Leland Graske. Doyle and his wife brought an action in Nebraska state court, claiming that Graske was negligent in his operation of the boat. Graske removed the case to federal district court, invoking admiralty jurisdiction. Removal based on admiralty jurisdiction was improper under 28 U.S.C. § 1441, see Romero v. International Terminal Operating Co., 358 U.S. 354, 371-72 (1959), but the Doyles waived their objection to improper removal by failing to seek a remand to state court, and the district court properly exercised jurisdiction over claims that could have been brought originally in federal court. See Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699, 702 (1972); Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1069 (9th Cir. 2001). The district court, sitting without a jury, found that Doyle's injuries were caused by Graske's negligence, and awarded compensatory damages to Doyle, as well as loss-of-consortium damages to his wife, Anne. We affirm the district court's judgment in favor of Daniel Doyle, but reverse its award of loss-of-consortium damages to Anne Doyle.
On October 31, 2003, Graske and two friends, Daniel Doyle and Robert Van Hook, decided to go fishing in the waters off the coast of Grand Cayman Island, where Graske owned a vacation home. The three set out on Graske's inflatable boat at around 10:30 a.m. The boat was fourteen feet long, with a seventy-horsepower engine and room for six passengers. It featured two seats at the stern (or rear), two more at midship, and a cushion for two passengers at the bow (or forward end). Both seats at the stern faced forward and included backrests. The stern seat on the starboard side (i.e., the right side while looking forward) was known as the "helm seat" because of its position opposite the boat's steering wheel, located on a console at midship. The forward side of the console functioned as a backrest for the starboard midship seat. The other midship seat (on the port, or left, side) and the bow cushion seats did not have backrests, and passengers sitting on the latter had to ride facing the rear. An inflatable tube formed most of the boat's hull, and there were hand straps along the top of the tube for passengers sitting at midship or in the bow.
From the helm seat, Graske steered the boat slowly through the no-wake zone -- a zone extending two hundred yards from shore in which boats are prohibited from traveling above five miles per hour. When the boat was past the zone, Graske said, "Here we go," or words to that effect, and began accelerating. As the boat came on plane -- that is, reached a speed at which its hull was no longer displacing the water, but skimming across it -- a nylock nut came loose from the boat's steering system, causing the system to malfunction and the boat to turn abruptly and sharply to the left.
Despite the sudden turn, Graske was able to maintain his position behind the steering wheel. Van Hook, who was sitting on one of the midship seats, managed to remain on the boat as well. Doyle, however, was thrown overboard. Accounts differ concerning where Doyle was located when he was ejected. According to Graske, Doyle was sitting on the inflatable tube, with his feet between the starboard midship and bow seats, and with at least one hand on a hand strap. According to Van Hook, Doyle was seated on the bow cushion (having moved there from the tube), and was not holding any hand strap. Doyle himself cannot remember.
Wherever he was sitting, Doyle was thrown into the water, and as the boat continued turning counterclockwise, it struck him in the back and on the head. Graske immediately put the boat in neutral. Doyle was some distance from the boat, injured but conscious. Graske brought the boat closer to Doyle, and Van Hook grabbed hold of him, eventually pulling him onto the inflatable tube.
Graske guided the boat to shore. From there, Doyle was transported to a local hospital and then transferred to medical facilities in the United States. Doctors diagnosed him with a flail chest, his respiration hindered by multiple rib fractures. Because of difficulties breathing, Doyle suffered permanent brain injury while hospitalized.
Doyle brought an action against Graske in Nebraska state court, claiming negligence in Graske's operation of the boat. Graske removed the case to federal district court, invoking admiralty jurisdiction under 28 U.S.C. § 1333(1). He sought to implead several third-party defendants, including a mechanic who repaired and reassembled the boat's steering system just days before the accident. Graske, however, was unable to establish personal jurisdiction over the third-party defendants, and his claims were ultimately dismissed without prejudice. Doyle filed an amended complaint, adding his wife, Anne, as a plaintiff.
Following a bench trial, the district court entered judgment in favor of the Doyles. Applying general maritime law, the court found that Graske was negligent in his operation of the boat, and that Graske's negligence was a proximate and substantial cause of Doyle's injuries. It also determined that Doyle's own negligence contributed to his injuries, because he should have been more aware of the dangers around him. The court apportioned ninety percent of the fault for Doyle's injuries to Graske and potential tortfeasors, including the mechanic, and the remaining ten percent to Doyle himself. Taking account of Doyle's comparative negligence, the court awarded $3,238,153 in compensatory damages to Doyle. It also awarded $750,000 in damages for loss of consortium to Anne, but that amount did not reflect any proportional reduction for Doyle's comparative fault. Graske appeals.
Graske first challenges the district court's finding that he was negligent in the operation of the boat. Because negligence in admiralty is a factual determination, we may not set aside the district court's finding unless it is clearly erroneous. McAllister v. United States, 348 U.S. 19, 20 (1954). "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is ...