Mangan v. Shafmaster CV-95-571-JD 01/06/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas Mangan

v. Civil No. 95-571-JD

Jonathan S. Shafmaster, et al.

O R D E R

The plaintiff, Thomas Mangan, brought this action against

the defendants, Jonathan S. Shafmaster and Jonathan S. Shafmaster

d/b/a Shafmaster Fishing Co. ("Shafmaster Fishing"), seeking

damages arising out of an injury the plaintiff suffered during

the course of his employment on a fishing vessel owned and

operated by the defendants. Before the court is the motion for

summary judgment of defendant Shafmaster Fishing (document no.

13) .

Background1

On March 24, 1994, while employed as a deckhand on the F/V

CLAUDIA NICOLE, the plaintiff tripped over a deck hose and broke

his right foot. The accident occurred while the boat was in

navigable waters.

'The facts relevant to the instant motion either are not in dispute or have been alleged by the plaintiff. The plaintiff was treated by Dr. Gary Kish of Orthopaedic

Associates of Portsmouth, New Hampshire, between April 1, 1994,

and June 27, 1994. At some point prior to July 13, 1994, the

plaintiff received payments for maintenance of ten dollars per

day from March 29 through June 27, 1994 ($910.00), for cure of

$6,160.85, and for one-third of the lost share of the catch on

those trips he missed during his recovery period ($715.29) -- a

total of $7,784.14.

On June 27, 1994, after a screw had been surgically inserted

into his foot, the plaintiff was judged fit for "full duty" by

Dr. Kish. Early in July, the plaintiff met with Richard Hiscock,

a loss adjuster employed by Shafmaster Fishing. On July 13,

1994, the plaintiff met with Donna Peters, Shafmaster Fishing's

office manager, who told him that in order to return to work he

would have to sign a document prepared by Hiscock. Without

counsel present, and in the presence of Donna Peters and three

witnesses, the plaintiff signed the document, which purports to

release Jonathan Shafmaster and Shafmaster Fishing of every claim

arising from the plaintiff's March 24, 1994, injury.

At the top of the document in large, bold capital letters

appears the phrase "THIS IS A GENERAL RELEASE." The phrase "THIS

IS A RELEASE" appears at the bottom of the document, in slightly

larger bold capital lettering. The document calls for the signer

2 to place his signature on the letters of the phrase "THIS IS A

RELEASE" at the bottom of the page.

The first paragraph of the document states in bold

lettering:

WARNING -- READ CAREFULLY every word printed or written on both sides of this paper. By signing this paper YOU AGREE to give up every right against all the parties and vessels mentioned in this paper which you ever had, you now have, or you may in the future have because of any matter or anything which ever happened from the beginning of the world up to the time you sign this paper.

The second paragraph contains words and a series of spaces

filled in either by the defendants (typed) or the plaintiff

(handwritten). The plaintiff's additions are underlined.

I, Thomas A Mangan - Born YOOL 2 Dec. 1972 age 21 age 2A Married or single single Address 231 High Street in exchange for the sum of Eight thousand, five hundred, one Dollars and forty-three Cents ($8,501.43) lawful money of the United States of America which I have received, do hereby release and forever discharge F/V CLAUDIA NICOLE (D.N. 624270); Jonathan S. Shafmaster; SHAFMASTER FISHING; Commercial Union Insurance Companies; and, ERE Associates Ltd. heirs, executors, administrators, successors and assigns, and all his or their vessels and in particular the F/V CLAUDIA NICOLE (D.N. 624270[)]; Jonathan S. Shafmaster; SHAFMASTER FISHING; Commercial Union Insurance Companies; and ERE Associates Ltd. and the owners, operators, underwriters[,] agents, charterers, masters, officers, and crews, of said vessels of each and every right or claim which I now have, or may hereafter have, because of any matter or thing which happened before the signing of this paper: and particularly, but not only because of an injury to my right foot that occurred while working on board F/V CLAUDIA NICOLE (D.N. 624270) on or about 24 March 1994.

The phrase "THIS IS A RELEASE" appears in capital letters

3 beneath this paragraph, followed by the following paragraphs:

I know that in signing this release I am taking the risk that I may have other injuries, illnesses or disabilities that I do not now know of from the particular occurrence described above of [sic] from some other occurrence before the signing of this paper. I also know that I am taking the risk that the injuries, illnesses or disabilities I do know of may be or may turn out to be worse that they now seem to me or to the doctors I have seen. I take all these risks. I know I am giving up the right to any further money. I am satisfied.

I understand and agree that the money paid to me now is received by me in full settlement and satisfaction of all claims and demands whatsoever.

The next section contains a series of guestions and blank

lines in which the plaintiff wrote his answers. The plaintiff's

answers are underlined.

1. Have you read this paper? A. Yes 2. Has this paper been read to you? A. No 3. Do you know what this paper is that you are signing? A. Yes 4. What is this paper which you are signing? A. Release 5. Do you know that signing this paper settles and ends EVERY RIGHT AND CLAIM YOU HAVE FOR DAMAGES AS WELL AS FOR PAST, PRESENT, AND FUTURE MAINTENANCE, CURE AND WAGES? A. Yes

The final paragraphs provide, again with the plaintiff's

answers underlined:

THEREFORE, I am signing my name near the seal to show that I understand and mean everything that is written by or for me on this paper.

I am signing this of my own free will. Thomas A. Mangan 13 July 1994

4 Although Peters informed the plaintiff that he had to sign

the document if he wanted to return to work, she acknowledged

during deposition testimony that she never explained to the

plaintiff his legal rights under the Jones Act, never asked

whether he understood the nature and severity of his injuries,

and never advised him as to what rights he was waiving in

exchange for signing the release. Hiscock similarly acknowledged

during deposition testimony that he never advised the plaintiff

of his rights under the Jones Act, never informed the plaintiff

that he might have a right to recover for his pain and suffering,

never asked the plaintiff if he understood the nature and

severity of his injury, and never advised him of what rights he

would be waiving if he signed a release. The plaintiff also has

attested that he was not informed of his right to consult with an

attorney prior to signing the document.

Upon signing the document, the plaintiff was paid $715.29

(an additional one-third of his lost shares) in settlement of his

claims and was fired immediately thereafter. On November 27,

1995, the plaintiff filed this suit, alleging negligence under

the Jones Act and unseaworthiness under general maritime law, for

which he is seeking to be compensated.

5 Discussion

Shafmaster Fishing argues that summary judgment is warranted

because the release that the plaintiff signed bars recovery for

the claims currently before the court. The plaintiff contends

that the release is ineffective because he was not advised of his

rights under the Jones Act or under general maritime law, of the

nature and seriousness of his injury, or of his right to seek the

advice of an attorney. The plaintiff further claims that the

release is not valid because he was coerced into signing it and

the consideration offered was inadeguate.

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Snow v.

Harnischfeaer Corp.,

(1st Cir. 1993) (guoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992), cert, denied,

(1993)), cert. denied,

115 S. C t . 56 (1994). The court may only grant a motion for

summary judgment where 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 that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c); McKinley v. Afram

Lines (USA) C o .,

(D. Mass. 1993) (applying

6 summary judgment in a case under court's admiralty jurisdiction).

The party seeking summary judgment bears the initial burden of

establishing the lack of a genuine issue of material fact.

Celotex Corp. v. Catrett,

(1986); Quintero de

Quintero v. Aponte-Rogue,

(1st Cir. 1992) .

The court must view the entire record in the light most favorable

to the plaintiff, "'indulging all reasonable inferences in that

party's favor.'" Mesnick v. General Elec. Co . ,

(1st Cir. 1991) (guoting Griqqs-Ryan v. Smith,

(1st Cir. 1990)), cert, denied,

(1992). However,

once a defendant has submitted a properly supported motion for

summary judgment, the plaintiff "may not rest upon mere

allegation or denials of [their] pleading, but must set forth

specific facts showing that there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc.,

(1986) (citing

Fed. R. Civ. P. 56(e)).

Courts of admiralty protect seamen in their dealings with

shipowners as courts of eguity protect wards in their

relationships with guardians. The solicitude with which

admiralty law has viewed seamen's contracts was described by

Justice Story in 1823:

If there is any undue ineguality in the terms, any disproportion in the bargain, any sacrifice of rights on one side which are not compensated by extraordinary

7 benefits on the other, the judicial interpretation of the transaction, is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as ineguitable. . . . And on every occasion the court expects to be satisfied, that the compensation for every material alteration is entirely adeguate to the diminution of right or privilege on the part of seamen.

Harden v. Gordon, 11 F. C a s . 480, 485 (C.C.D. Me. 1823) (No.

6047) .

In Garrett v. Moore-McCormack Co . ,

(1942), the

Supreme Court articulated the standard under which courts are to

assess the validity of a contract in which a seaman releases his

rights against a shipowner:

[T]he burden is upon one who sets up a seaman's release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights. The adeguacy of the consideration and the nature of the medical and legal advice available to the seaman at the time of signing the release are relevant to an appraisal of this understanding.

I d . at 248. Cases decided after Garrett illustrate that in order

to establish the validity of a release, a shipowner must not only

demonstrate that the seaman knew he was releasing all of his

rights, but also that he knew the nature of the rights he was

releasing. See Waters v. United States,

(9th

Cir. 1951). In particular, the seaman must be aware of his

rights of action based on negligence, unseaworthiness, and maintenance and cure. See i d . at 214; Bay State Dredging &

Contracting Co. v. Porter,

(1st Cir. 1946) . In

addition, the severity of the injury should be discussed as a

means of ensuring that the settlement is adequate compensation

for the injury sustained. See Davis v. American Commercial

Lines, Inc.,

(6th Cir. 1987) (denying

shipowner's motion for summary judgment based on release where

discussion between plaintiff and shipowner's attorney "carefully

avoided" issue of adequacy of settlement amount), cert, denied,

(1988). Finally, the shipowner must demonstrate

that the plaintiff entered into the agreement without being

coerced. See Castillo v. Spiliada Maritime Corp.,

(5th Cir. 1991) (invalidating release where, inter alia,

employer threatened to blacklist employees if they refused to

sign release).

Given the heavy burden that a shipowner carries under

Garrett, several courts have noted that summary judgment may be

an inappropriate mechanism for establishing the validity of a

seaman's release. See Halliburton v. Ocean Drilling & Explor.

C o .,

(5th Cir. 1980) (shipowner has

particularly heavy burden on summary judgment because he must

conclusively demonstrate that the seaman signed the release with

a full understanding of his rights and the effects of his action); Saqastume v. Lampis Naviq. Ltd.,

(2d

Cir. 1978) (summary judgment inappropriate where the validity of

a seaman's release is at issue).

Here, Shafmaster Fishing has not met its burden of

demonstrating the lack of a genuine issue of material fact

concerning the validity of the release. The release itself does

not articulate the rights it purports to waive or mention the

seriousness of the plaintiff's injury, and Shafmaster Fishing has

offered no evidence suggesting that the plaintiff fully

understood his rights or of the extent of his injury. In fact,

Shafmaster Fishing's agents admitted during deposition testimony

that they did not discuss any of this information with the

plaintiff before he signed the release. Moreover, the plaintiff

has attested that he was told he had to sign the release before

returning to his job and claims that he was fired immediately

after he signed the document. It is therefore evident from the

record that there are genuine issues of material fact related to

the adeguacy of consideration offered, the plaintiff's

understanding of his rights and his injury when he signed the

release, and the plaintiff's freedom from coercion in signing the

document. Summary judgment is not warranted.

Conclusion

10 Shafmaster Fishing's motion for summary judgment (document

no. 13) is denied.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

January 6, 1997

cc: David J. Berg, Esguire Ellen F. McCauley, Esguire Lauren Motola-Davis, Esguire

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