ZILKO v. GOLDEN ALASKA SEAFOODS, INC., 52139-0-I (Wash.App. 9-20-2004)


LORI L. ZILKO, individually, and as Personal Representative of the Estate of Rodney L. Zilko, deceased, and as Guardian of Kayla Zilko and Colleen Zilko, surviving children of Rodney Zilko, Respondent, v. GOLDEN ALASKA SEAFOODS, INC., a Washington corporation; and OCEAN LEADER, INC., a Washington corporation, Appellants.

No. 52139-0-IThe Court of Appeals of Washington, Division One.
Filed: September 20, 2004 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County. Docket No: 01-2-11879-0. Judgment or order under review. Date filed: 03/11/2003. Judge signing: Hon. Mary I Yu.

Counsel for Appellant(s), Donald P. Marinkovich, Legros Buchanan and Paul, 701 5th Ave Ste 2500, Seattle, WA 98104-7051.

William Arthur Keller, Attorney at Law, 701 5th Ave Ste 2500, Seattle, WA 98104-7022.

Counsel for Respondent(s), David A. Kohles, David A Kohles Inc PS, 7208 267th St NW Ste 103, Stanwood, WA 98292-6289.

COX, C.J.

This is a Jones Act case in which the vessel owners, Golden Alaska Seafoods, Inc. and Ocean Leader, Inc., (collectively `Golden Alaska’) appeal the judgment in favor of the estate of their deceased employee, Rodney Zilko, and members of his family. He died by drowning while serving as a crewman on the vessel F/V Ocean Leader. The challenged findings are not clearly erroneous with the exception of those relating to the surviving minor children’s loss of nurture. The trial court did not abuse its discretion by awarding 12 percent prejudgment interest. We affirm in part and reverse in part.[1]

Rodney Zilko worked as a fisherman and engineer on the 119-foot fishing vessel F/V Ocean Leader. The ship docked at the Port of Astoria on June 15, 1999 to off-load fish, load fuel and supplies, conduct safety drills, and perform maintenance and repair work.

He worked on fishing boats most of his adult life and began working as a deckhand on the defendants’ boats in 1990. Zilko was usually at sea for six to seven months out of the year.

On the afternoon of June 16, 1999, Zilko went ashore to call his wife and to eat lunch. He visited several local taverns that day and consumed an unknown quantity of beer at each establishment. Towards the end of the evening, Zilko made the acquaintance of Thomas Henkle, and several of his friends. During the early morning hours of June 17, Zilko walked back to the Ocean Leader. Henkle followed Zilko and walked toward the Ocean Leader and his own sailboat. Henkle fell several yards behind and lost sight of Zilko as Zilko reached the Ocean Leader. When Henkle reached the Ocean Leader, he did not see or hear Zilko and presumed he successfully boarded the vessel and retired to his room. But, Zilko never made it.

The next day, the crew of the Ocean Leader could not find him as they set out sport fishing. After they returned, the crew and Zilko’s family posted `missing person’ signs and searched the area for him. Ten days later, searchers discovered his body floating in the spot where the Ocean Leader had been moored during the early morning hours of June 17, when Zilko was last seen.

Lori Zilko, individually and as surviving spouse, personal representative of the estate, and guardian of the minor children of the deceased sued. Following a bench trial, the court awarded damages. The damages included economic loss, loss of nurture, pain and suffering, funeral expenses, and prejudgment interest at the Washington statutory rate for prejudgment interest.[2]

Golden Alaska appeals. BREACH OF DUTY AND PROXIMATE CAUSE
Golden Alaska argues that no evidence supports the court’s findings that an act of negligence or the unseaworthiness of the vessel proximately caused Zilko’s death. Specifically, Golden Alaska claims that there was no evidence to support the trial court’s findings that Zilko fell to his death while trying to board the Ocean Leader or that it had drifted away from the pier by an unreasonable distance on the night in question. We disagree. Federal standards apply to determinations regarding the sufficiency of the evidence to prove a Jones Act claim.[3] Findings of fact made by admiralty trial courts are subject to the clearly erroneous standard of review.[4] This standard also extends, under comparative negligence principles, to an admiralty court’s apportionment of fault.[5] Under a clearly erroneous standard, we must affirm an apportionment of liability unless, after review of all the evidence, we are left with a `definite and firm conviction that a mistake has been committed.’[6] The court’s conclusions of law are reviewed de novo.[7]

We defer to the trial court’s views regarding the credibility of witnesses and the weight to be given competing inferences from circumstantial evidence.[8]
`The law does not distinguish between direct and circumstantial evidence in terms of their weight or value in finding the facts in this case. One is not necessarily more or less valuable than the other.’[9]
However, `[t]he quantum of evidence necessary to support a finding of Jones Act negligence is less than that required for common law negligence.’[10] `[A]nd even the slightest negligence is sufficient to sustain a finding of liability.’[11]

Here, the court’s finding that Zilko fell into the water while trying to board the Ocean Leader is not clearly erroneous. `[I]n wrongful death actions sounding in negligence under the Jones Act, or sounding in unseaworthiness under general maritime law, when the exact circumstances of the casualty are unknown, the United States Supreme Court has fundamentally transformed traditional negligence law respecting causation by permitting the finder of fact to supply by inference many of the elements normally required to be proven by the plaintiff or claimant.’[12] Minimal evidence is required.

[A]n accident may be inferred from the fact of disappearance; and the `where’ and `when’ of the accident need not be fixed exactly. As to `how’ or `why’ the accident occurred, considerable `speculation’ is permitted. The trier of fact must be afforded substantial latitude in making this determination even though the evidence supporting it is slight and even though the reviewing court might have arrived at a different conclusion.[13]

Several witnesses that the court found credible observed the Ocean Leader and the surrounding conditions on the night of the accident as the vessel was moored at Pier 2.

Henkle, who met Zilko on the evening preceding the early morning of the accident, followed Zilko within feet of the Ocean Leader. Henkle was walking several yards behind Zilko on the way back to the Ocean Leader. When Henkle finally came upon the boat, he saw no one and observed the boarding area of the boat was not lit at all, and was black. Henkle was the last credible witness to see Zilko alive near the vessel.

Also on the night of the accident, Captain John Bratland’s girlfriend, Cheri Lowman, drove within ten feet of the edge of the pier where the Ocean Leader was docked. She observed that there were no lights shining from the boat onto the pier. She also observed that the boat appeared dark from a distance of `probably ten feet away from the edge of the pier.’

Lowman boarded the Ocean Leader the day after Zilko disappeared. She testified it took a leap of two to three feet to get on the boat. Lowman agreed that if a crew member made a slip or a miss that they might have fallen in the water. The court expressly found both Henkle’s and Lowman’s testimony to be credible.

Conversely, the trial court found that Captain Bratland’s testimony that he tied the vessel closely to the pier a short time before Zilko would have been returning to the boat, not credible.

In addition to the credible lay witnesses’ testimony, expert testimony supported the inference of Zilko’s accidental drowning. Troy Corbin, a marine safety expert, testified that the Ocean Leader would move four to six feet away from the pier, and was at a minimum of three feet away from the pier. There is substantial evidence that there was at least a three foot gap between the Ocean Leader and the pier. It would not be clearly erroneous to infer from credible witness testimony and expert testimony that Zilko slipped between the pier and the Ocean Leader that night and drowned.

Next, Golden Alaska argues that with no eyewitness and no direct evidence of causation, the court’s determination of the manner of Zilko’s death was clearly erroneous. Again, we disagree.

Golden Alaska cites Quam v. Mobil Oil Corporation[14] and Charles v. West Indies Transport[15] for the proposition that Zilko’s death was unwitnessed, and therefore there was insufficient evidence to support that he died because of the Ocean Leader’s unseaworthiness or Golden Alaska’s negligence. Unlike Zilko who was seen moments before he disappeared, the seamen in Charles and Quam were not accounted for in the moments or even hours, before they disappeared.[16]

Here, an eyewitness, Henkle, saw Zilko within feet of the Ocean Leader and minutes later when he came upon the boat, he saw no one. He observed the front of the boat was dark, but assumed Zilko successfully boarded the ship and was in his bunk.

Two witnesses claim to have seen Zilko the day after he disappeared, but the judge found their reports not to be credible. There was no evidence of foul-play, or credible sightings of Zilko in the following days.[17] The last person who positively saw Zilko before he disappeared was Henkle.

Moreover, the trial judge heard other circumstantial evidence that supported her finding of unseaworthiness and causation. Searchers found Zilko’s body under the pier where the vessel had been moored that night. According to experts, bodies lost in the water in that area tend to stay where the victim drowned.

The trial court did not commit clear error in inferring that Zilko drowned that night because there was credible witness and expert testimony to support such an inference.

SEAWORTHINESS
Golden Alaska further argues that there is no direct evidence that causally relates Zilko’s death to an act or omission and/or the seaworthiness of the Ocean Leader. Golden Alaska attacks numerous findings that support the court’s finding that the absence of a safe ingress and egress made the ship unseaworthy. It argues that it was not practicable to use a ladder or gangway and that the ship was moored close to the dock and repeatedly `snubbed up’ against the dock by crewmembers tightening slack lines that moored the ship to the pier. Again, we disagree.

In addition to a Jones Act claim, an injured seaman may claim that a vessel is not seaworthy.[18] Such a claim arises from a breach by the shipowner of the absolute duty to furnish a seaworthy vessel; that is, a vessel that is reasonably fit for its intended use.[19] A shipowner has a nondelegable duty to furnish a seaworthy vessel and is strictly liable if he does not.[20] A seaman is entitled to recover if the employer’s negligence played any part, even the slightest, in producing the injury.[21] This duty is absolute. Failure to supply a safe ship results in liability `irrespective of fault and irrespective of the intervening negligence of crew members.’[22] To establish liability against the ship’s owner, a plaintiff must prove by a preponderance of the evidence that the ship was unseaworthy and that the unseaworthy condition caused the injury.[23]

To establish the requisite proximate cause in an unseaworthiness claim, a plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury, and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.[24]

Golden Alaska argues that having the ship close to the pier and secured with slack lines that allowed for the rise and fall of the tide was sufficient to avoid a claim of negligence or unseaworthiness.

Plaintiff’s expert, Thomas Dyer, a marine architect and engineer testified that a gangway could work on the Ocean Leader and the cost and inconvenience would not be prohibitive. Regardless of whether the trier of fact relied on the OSHA standards, `the duty to provide a seaworthy vessel includes providing a method for safely boarding and departing the vessel.’[25] A shipowner is not relieved of his duty to provide safe ingress and egress simply due to the fact that his vessel is moored close to the dock. There are numerous cases holding a shipowner liable in providing an improper means of ingress and egress, and it does not seem reasonable to exonerate a shipowner who provides no means of ingress and egress, but relies upon the fact that the vessel is moored in reasonably close proximity to the dock, particularly when it is known that the members of the crew will leave and return to the vessel during the night hours with no lighting facilities at the place of ingress or egress and with slack in the lines to allow for the rise and fall of the tide.[26]

In Tate, a crewman attempted to cross a gap that varied between one foot and four feet between the pier and his ship. Despite another crewmember’s warning, the decedent attempted to board, but failed and drowned. The area where he attempted to board was not lit.

Here, as in Tate, the shipowner does not deny that it provided no gangway or ladder. Despite crewmember’s claims, the ship was not well lit at the point of egress and ingress. According to Lowman, the relief skipper’s then girlfriend, the ship’s lights did not illuminate the area where crewmembers were expected to board. Henkle also testified that it was dark in the forward area, where he expected Zilko to board the boat.

Furthermore, Corbin stated, `My opinion is that it was a preventable death, that a gangway could have been provided. The lack of one, in my opinion, definitely contributed to his fall and his death.’ It was not clear error to conclude the failure to provide a method of safe ingress and egress on the Ocean Leader constituted negligence.

Golden Alaska also argues that it did not violate OSHA standards[27] relied on by Zilko’s experts claiming they do not apply because they relate to ship building, and even if they did apply it was not practicable to use a gangway or ladder on the Ocean Leader. Appellants, correctly point out that the OSHA regulation cited by the Estate does not apply because it relates only to shipbuilding activities. Notwithstanding the inapplicability of the regulation, the Ocean Leader was unseaworthy, and Golden Alaska was negligent in failing to provide safe ingress and egress to the vessel.

Failure to provide a safe way to board the ship and failure to properly light the entrance to the vessel would lead a reasonable trier of fact to conclude that the Ocean Leader was unseaworthy and Golden Alaska was negligent. Thus, the trial court’s conclusion was not clearly erroneous.

COMPARATIVE NEGLIGENCE
Golden Alaska claims that Zilko was comparatively at fault because he attempted to board the ship while intoxicated. We disagree. Although there is evidence that Zilko `consumed a number of beers,’ the trial court found `there is insufficient evidence to support a finding that Zilko was intoxicated or actually affected by the alcohol that he had consumed such that he would have had difficulty or been unable to board the vessel because of the affects [sic] of alcohol or that would allow the court to find him comparatively negligent.’

The trial court did not commit clear error because there was sufficient evidence that Zilko was not impaired to the point that would allow the court to find him comparatively negligent. The bartender at the Desdemona Tavern testified that Zilko had been there from 3:00 p.m. to 5:00 p.m. on June 16, and that Zilko was sober when he left. The bartender at the Portway Tavern testified that Zilko had consumed some beer, but `absolutely’ did not show signs of intoxication. Others saw Zilko at the Workers’ Tavern between 7:30 and 10:30 p.m. and testified that he was a slow drinker and may have had one and a half or two 16 ounce glasses of beers in three hours. Each witness described Zilko’s drinking in terms of sipping, not in terms of gulping or `binge drinking.’

In addition to eyewitness accounts of Zilko’s drinking on the day of his death, toxicology experts opined that Zilko drank at a rate that allowed the alcohol in his system to dissipate at the rate at which he consumed it. Furthermore, the trial court found that there was insufficient credible evidence for it to ascertain a specific and reliable percentage of Zilko’s after-death blood or urine alcohol level which could be attributed to pre-mortem consumption. Despite Golden Alaska’s claims that post mortem alcohol testing is a reliable, a commonly used technique, there was substantial evidence through expert testimony that measurements of post-mortem blood and urine alcohol levels were unreliable. The expert opined that it is difficult to get a reliable post-mortem blood alcohol or urine alcohol level because as a body decomposes alcohol is formed. This difficulty for an accurate measurement increased because Zilko’s body was underwater for ten days.

Golden Alaska next argues that the trial court erred by not finding Zilko solely or at least comparatively at fault for his death because he acted unreasonably under the circumstances. Golden Alaska also claims that Zilko should be found comparatively negligent as his own actions were the sole cause of his injuries, citing Alrayashi v. Rouge Steel Co.[28] Golden Alaska contends that Zilko’s claims should fail because Zilko was an experienced seaman and the unsafe condition was self-directed and created by plaintiff’s own negligent handling of a situation on an otherwise seaworthy vessel.[29]

However, under the doctrine of seaworthiness, the shipowner is strictly liable for a breach of his or her `nondelegable duty `to furnish a vessel and appurtenances reasonably fit for their intended use.”[30] Zilko, as a crewmember did not self-direct or create an unsafe condition on the Ocean Leader, the vessel was unseaworthy because it lacked a means of safe ingress and egress and sufficient lighting. Furthermore, other than the claimed intoxication, Golden Alaska cites to no acts or omission on the part of Zilko that supports a finding of comparative negligence. The trial court viewed the evidence presented at trial and determined that Zilko had consumed alcohol, but was not impaired. That an unimpaired Zilko attempted to board the unlit Ocean Leader and failed is not proof of his comparative negligence, but rather evidences the unseaworthy condition of the Ocean Leader.

DAMAGES Conscious Pain and Suffering
Golden Alaska claims that Zilko was unconscious when he drowned, and therefore suffered no conscious pain and suffering before his death. We disagree.

Golden Alaska relies on the absence of injuries or scratches on Zilko’s body which would indicate that he struggled to save his own life. It also argues that since no one heard any noise that would suggest a fall into the water or a struggle, that Zilko was unconscious when, and if, he fell into the water.

Nonetheless, the facts support the award allowed by the trier of fact. Recovery for pre-death pain and suffering claims is permitted because it is a claim that survives death under FELA and the Jones Act.[31] In Cook v. Ross Island Sand and Gravel,[32] an eyewitness saw a seamen fall into the water. The body was found three months later and the cause of death was determined to be drowning. The body showed no skull fracture or other indication of a loss of consciousness before death by drowning. The appeals court affirmed that a two and one-half minute period of consciousness before the decedent drowned was sufficient to permit a jury to return a verdict on the element of pain and suffering.

Here, there is substantial evidence that Zilko was conscious during his asphyxiation. There is no indication that Zilko was unconscious before he drowned, or that death was instantaneous. A pathologist testified that Zilko did not suffer a head injury, and was likely conscious and aware that he was drowning. Furthermore, the trier of fact heard testimony about how a drowning victim makes futile attempts to breathe which leads to inhalation of water, aspiration (vomiting and choking on it), then cut off of oxygen to the brain.

Zilko’s situation is similar to that of the drowning victims in Cook v. Ross Island Sand and Gravel Co.,[33] where there were no eyewitnesses to the drowning and the victims were likely conscious during the asphyxiation. In that case, the burden to prove that the deceased were not conscious at the time of their asphyxiation by drowning shifted to the defendant.[34] The defendant failed to come forward with any evidence in rebuttal.[35] The jury could then properly base a finding of consciousness based on the testimony of medical experts.[36]

Here, Golden Alaska failed to provide any credible rebuttal evidence that Zilko was unconscious at the time of asphyxiation.

The court relied on substantial evidence that Zilko suffered terrifying moments before he died. The court did not commit clear error in concluding that Zilko was conscious at the time of his drowning, and that he should receive a pre-death pain and suffering award of $200,000.

Loss of Nurture
Golden Alaska claims that an award of $15,000 per year per child for loss of guidance and nurture was excessive. We disagree.

Loss of nurture has been defined as `[g]uidance of a parent in matters material, moral, and spiritual [that are] of a definite practical and financial value and is subject to pecuniary estimate.’[37] In determining the pecuniary value of the loss of a decedent’s nurture, consideration should be given to such factors as the education and character of the decedent and the time and attention he devoted to his children when he was alive.[38]

Golden Alaska cites Red Star Towing Transportation Co. v. M/V Ming Giant,[39] for the proposition that the award is excessive. In Red Star, the award for loss of nurture was reduced from $550,000 to $150,000 for a seven and a four year-old child.

The trier of fact has discretion to award damages that are within the `range of relevant evidence.’[40] This court will not disturb a trial court’s damage award unless it is outside the range of substantial evidence, shocks the conscience, or appears to have been arrived at as a result of passion or prejudice.[41]

Here, plaintiff presented evidence of Zilko’s involvement with his children. He kept in constant contact with his family by telephone when he was in port, and he also spent the majority of his time at home helping with his daughters’ schooling and activities. Although, Zilko only had a high-school education, the estate presented evidence on the salaries of social workers and teachers, analogous to the value of equivalent services lost by the children. This evidence of salaries may not be relevant given Zilko’s education, but the court could base its decision on the evidence of his character, and the time and attention he devoted to his children. The loss of nurture award is not clearly erroneous. It is not outside the range of evidence, does not shock the conscience, and does not appear to have been arrived at as a result of passion or prejudice.

Limiting Loss of Nurture Up to Age 18
Golden Alaska argues that the loss of nurture award to Zilko’s children should not have been extended beyond the age of majority to age 20. We agree.

Some courts limit damages for the loss of instruction or moral and intellectual training to the remaining period of minority of the child or children involved while others have not.[42] The loss by a child of parental guidance and nurture is a separate item of damage from the loss of a parent’s society and companionship, which is not a recoverable item of damage under the pecuniary loss test of the Death on the High Seas Act (DOHSA).[43] The facts and circumstances of each particular case rather than a definite age control both the legal basis and quantum of loss of nurture damages.[44]

Zilko cites Curry v. United States for the proposition that the court may award loss of nurture to children until they reach age 21.[45] But in Solomon,[46] a more recent action to recover under DOHSA, loss of nurture damages did not extend beyond the age of majority.[47] The court in Solomon stated, `Our study of the cases in which loss of parental guidance and training of a child has been allowed as a recoverable item of damages under DOHSA has not brought to light any case where such damages were awarded to a surviving child for the period after reaching majority.’[48]

The court continued, `Whatever may be the rule for minor children, it is clear that those who have reached their majority must be very specific to show that their parents’ guidance had a pecuniary value beyond the irreplaceable values of companionship and affection.”[49]

Here, the evidence presented by Zilko’s expert, Dr. Eugene Silberberg, about the need for loss of nurture damages to continue beyond age 18 was not specific. Dr. Silberberg’s opinion that loss of nurture damages should extend beyond 18, was not based on specific facts and circumstances. He stated `nurturing goes beyond 18. I have kids and it certainly does.’ Dr. Silberberg also concluded that the loss of nurture damages `didn’t abruptly come to zero when the youngest gets 18.’ However, he failed to point to any specific facts or circumstances that justified extending the loss of nurture damages beyond age 18. Additionally, there was evidence that Dr. Silberberg improperly included companionship and affection as a part of nurturing.[50] There is no specific showing in the record to support an award of damages to the Zilko children for the loss of their father’s nurture and training after their majority.

Curry is distinguishable from the present case. Apparently, in Curry, there was specific evidence that merited an extension of the loss of nurture. The court awarded loss of nurture beyond age 18 to the decedent’s children without pointing to specific evidence, but stated, `a realistic view of family influence in the case of the Currys dictates that nurture for each child would effectively continue until he were at least 21, not 18.’[51] Zilko, however fails to present specific facts and circumstances that would require a loss of nurture award for each child continue until age 20. Accordingly, we reverse to the extent the award for this element of damages goes beyond the age of 18. We remand to the trial court for such action as is necessary to implement this direction.

Personal Consumption
Golden Alaska finally argues that deducting 12 percent for Zilko’s personal consumption from the Estate’s economic loss award was clear error. We disagree.

Golden Alaska cites Tallentire v. Offshore Logistics[52] and Howard v. Crystal Cruises, Inc.,[53] for the proposition that the 12 percent reduction made by the court was clearly erroneous. Rather, Golden Alaska claims a `Cheit Table’ which would yield a 22 percent reduction is the `judicially accepted’ way to determine personal consumption.

Dr. Silberberg opined that in a family of four, the personal consumption of one person is 12 percent. Here, the trier of fact considered and accepted the expert testimony that a 12 percent reduction would be merited. It was not clearly erroneous for the court to accept Dr. Silberberg’s opinion. His opinion was supported by a clearly reasoned formula on the record that thoroughly explained why a 12 percent reduction of the award for Zilko’s personal consumption was merited.

PREJUDGMENT INTEREST
Golden Alaska argues that prejudgment interest should be denied because the Estate did not file its lawsuit until April 18, 2001, when the date of the accident was June 16, 1999. The estate filed within the three year statute of limitations.[54] Golden Alaska cites no facts or law that suggests filing within the statute of limitations constitutes an unwarranted delay that would deny prejudgment interest as a matter of law.

Golden Alaska next argues that trial court abused its discretion when it awarded the Washington State prejudgment interest rate of 12 percent.[55] Golden Alaska argues, the federal prejudgment interest rate codified in 28 USC sec. 1961 should apply instead. We disagree.

In admiralty, prejudgment interest is awarded absent peculiar circumstances justifying its denial.[56] The disagreement between the circuit courts is not whether prejudgment interest applies in admiralty cases, but rather whether state or federal prejudgment interest rates should apply.[57] `The rate to be applied is a matter for the sound discretion of the trial court.’[58] Golden Alaska cites Monessen Southwestern Railway Co. v. Morgan[59] for the proposition that the federal prejudgment interest rate should apply. In Monessen, however, the United States Supreme Court concluded that Pennsylvania incorrectly awarded prejudgment interest and that FELA personal injury claims do not accrue prejudgment interest.[60]

This court in Paul v. All Alaskan Seafoods, Inc.,[61] decided that the state 12 percent interest rate was applicable in an admiralty action tried in state court. Paul involved fishermen’s claims for unpaid wages. This court addressed the conflict over which rate of prejudgment interest applied, concluding:

there is a direct conflict between Washington’s prejudgment interest rule and the federal rule, such that application of the state rule is preempted. Under general maritime law, the fishermen are entitled to prejudgment interest. Given the lack of uniformity as to the rate to be applied, the trial court did not abuse its discretion in applying the state statutory rate.[62]

Here, the trial court did not abuse its discretion because Paul allows the trial court discretion to adopt the state prejudgment interest rate in admiralty actions.

We affirm in part, reverse in part, and remand for such recalculation of damages as is necessary to implement the directive of this court.

APPELWICK and AGID, JJ., Concur.

[1] We deny Respondent’s motion to supplement the designation of clerk’s papers and exhibits dated February 25, 2004.
[2] RCW 19.52.020.
[3] 46 USC sec. 688 (Jones Act); see Adair v. Northern Pac. Ry. Co., 64 Wn.2d 539, 541-42, 392 P.2d 830 (1964); Miller v. Foster Wheeler Co., 98 Wn. App. 712, 993 P.2d 917 (1999) (Actions under the Jones Act incorporate and makes the recovery provisions of the Federal Employers’ Liability Act applicable to seamen (citing FELA sec. 6, as amended, 45 U.S.C.A. sec. 56)).
[4] In re White Cloud Charter Boat Co., Inc., 813 F.2d 1513, 1517 (9th Cir. 1987); Seattle First Nat’l Bank v. Bluewater Partnership, 772 F.2d 565, 568 (9th Cir. 1985).
[5] In re White Cloud, 813 F.2d at 1517; Alkmeon Naviera, S.A. v. M/V Marina L, 633 F.2d 789, 796 (9th Cir. 1980).
[6] In re White Cloud, 813 F.2d at 1517.
[7] Bingham v. Lechner, 111 Wn. App. 118, 127, 45 P.3d 562 (2002), review denied, 149 Wn.2d 1018 (2003).
[8] In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245
(1980).
[9] See Washington Pattern Instruction 1.03. `Direct and Circumstantial Evidence’.
[10] Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993) (citing Ward v. American Hawaii Cruises, Inc., 719 F. Supp. 915, 917
(D. Haw. 1988)).
[11] Havens, 996 F.2d at 218 (citing Ward, 719 F. Supp. at 917).
[12] Admiral Towing Company v. Woolen, 290 F.2d 641, 649 (9th Cir. 1961).
[13] Admiral Towing, 290 F.2d at 649-50 (footnote and citations omitted).
[14] 599 F.2d 42 (2nd Cir. 1979).
[15] 631 F. Supp. 1023, 1026 (D.P.R. 1986).
[16] Charles, 631 F. Supp. 1024-25; Quam, 599 F.2d at 43.
[17] Golden Alaska attacks the trial court’s finding that the witnesses who claimed to have seen Zilko the following day were not credible. Isla Verde Int’l Holdings, Inc. v. City of Camas, 99 Wn. App. 127, 133-34, 990 P.2d 429 (1999), aff’d on other grounds, 146 Wn.2d 740 (2002) (We reserve credibility determinations for the fact finder and do not review them on appeal.).
[18] Mohn v. Marla Marie, Inc., 625 F.2d 900, 901 (9th Cir. 1980).
[19] See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-50, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960).
[20] Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 208, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996) (citing Mitchell, 362 U.S. at 550).
[21] Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997).
[22] Yamaha, 516 U.S. at 208.
[23] Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir. 1987).
[24] Johnson, 845 F.2d at 1354.
[25] Hebert v. Otto Candies, Inc., 402 F. Supp 503, 506 (E.D. La. 1975).
[26] Tate v. C.G. Willis, Inc., 154 F. Supp 402, 406-07 (E.D. Va. 1957).
[27] 29 C.F.R. 1915.74.

(a) Access to vessels afloat. The employer shall not permit employees to board or leave any vessel, except a barge or river towboat, until the following requirements have been met:

(1) Whenever practicable, a gangway of not less than 20 inches walking surface of adequate strength, maintained in safe repair and safely secured shall be used. If a gangway is not practicable, a substantial straight ladder, extending at least 36 inches above the upper landing surface and adequately secured against shifting or slipping shall be provided. When conditions are such that neither a gangway nor a straight ladder can be used, a Jacob’s ladder meeting the requirements of paragraphs (d)(1) and

(2) of this section may be used.

[28] 702 F. Supp. 1334, 1337, aff’d, 889 F.2d 1086
(6th Cir. 1989).
[29] See Reinhart v. United States, 457 F.2d 151 (9th Cir. 1972); Peymann v. Perini Corp., 507 F.2d 1318 (1st Cir. 1974).
[30] Yamaha, 516 U.S. at 208 (citing Mitchell, 362 U.S. at 550).
[31] Section 59 of the FELA, which is incorporated into the Jones Act, provides that `(a)ny right of action given by this chapter to a person suffering injury shall survive to his or her personal representative. . . .’; Cook v. Ross Island Sand and Gravel, 626 F.2d 746 (9th Cir. 1980).
[32] 626 F.2d 746 (9th Cir. 1980).
[33] 626 F.2d 746 (9th Cir. 1980).
[34] Cook, 626 F.2d at 753.
[35] Cook, 626 F.2d at 750.
[36] Cook, 626 F.2d at 750 (citing Petition of United States Steel Corporation, 436 F.2d 1256, 1275-76 (6th Cir. 1970), cert. denied, 402 U.S. 987, 91 S. Ct. 1665, 29 L. Ed. 2d 153 (1971)).
[37] Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583, 593 n. 9a (2nd Cir. 1961), cert. denied, 370 U.S. 937, 82 S. Ct. 1577, 8 L. Ed. 2d 806 (1962); Bodden v. American Offshore, Inc., 681 F.2d 319, 329
(5th Cir. 1982).
[38] See Solomon v. Warren, 540 F.2d 777, 788 (5th Cir. 1976).
[39] 552 F. Supp 367 (S.D.N.Y. 1982).
[40] Mason v. Mortgage America, Inc., 114 Wn.2d 842, 850, 792 P.2d 142 (1990).
[41] Mason, 114 Wn.2d at 850.
[42] 22A Am. Jur. 2d Death sec. 220 (2003) (citations omitted).
[43] Solomon, 540 F.2d at 789, n. 11 (citations omitted) (The measure of damages for wrongful death is the same under the Death on the High Seas Act, 46 U.S.C.A. sec. 762, as it is under the FELA, which the Jones Act incorporates.).
[44] See Solomon 540 F.2d at 789.
[45] See Curry v. United States, 338 F. Supp. 1219, 1224 (N.D. Cal. 1971) (citing Petition of Canal Barge Company, 323 F. Supp. 805, 821 (N.D. Miss. 1971)).
[46] 540 F.2d 777 (5th Cir. 1976).
[47] Solomon, 540 F.2d at 789.
[48] Solomon, 540 F.2d at 789 (citations omitted).
[49] Solomon, 540 F.2d at 789 (citing First Nat’l Bank in Greenwich v. National Airlines, Inc., 288 F.2d 621, 624 (2nd Cir. 1961)).
[50] See Solomon, 540 F.2d at 789, n. 11.
[51] Curry, 338 F. Supp at 1224.
[52] 800 F.2d 1390, 1392 (5th Cir. 1986).
[53] 41 F.3d 527, 530 (9th Cir. 1994), cert. denied, 514 U.S. 1084, 115 S. Ct. 1796, 131 L. Ed. 2d 724 (1995).
[54] Under the Jones Act, suit must be filed within three years from the day the cause of action accrued. 45 U.S.C.A. sec. 56; in Washington a wrongful death action must be filed within three years from the day the cause of action accrued. (RCW 4.16.080).
[55] RCW 19.52.020.
[56] City of Milwaukee v. Cement Div., Nat’l Gypsum Co., 515 U.S. 189, 195, 115 S. Ct. 2091, 132 L. Ed. 2d 148 (1995).
[57] 34 A.L.R. Fed 126 sec. 9a (2004) (`No safe generalizations can be drawn about the two types of decisions as far as the matter of prejudgment interest rates is concerned. In those decisions which do give some indication as to how the rate of interest to be applied was determined, there has not been uniformity of approach, even within particular Circuits.’).
[58] Paul v. All Alaskan Seafoods, Inc., 106 Wn. App. 406, 429, 24 P.3d 447 (2001), rev. granted, 145 Wn.2d 1015 (2002).
[59] 486 U.S. 330, 108 S. Ct. 1837, 100 L. Ed. 2d 349
(1988).
[60] 486 U.S. at 336-37.
[61] 106 Wn. App. 406 (2001).
[62] Paul, 106 Wn. App. at 429-30.