Opinion
99 Civ. 3851 (VM).
March 2, 2001
James M. Hazen, Hill, Betts, Nash, L.L.P., New York, NY., for Plaintiffs, HYGRADE OPERATORS, INC., Owner and Operator of the barge Ethel H.
James M. Hazen, (See above), for Plaintiffs, SPENTONBUSH/RED STAR COMPANIES, INC., Owner and Operator of the barge Ethel H
DECISION AND ORDER
This matter, requesting exoneration from or limitation of liability pursuant to the Jones Act, 46 U.S.C. App. § 183 et seq., was filed on behalf of Hygrade Operators, Inc. and Spentonbush/Red Star Companies, Inc. ("SRS"), the owner and operator respectively of the tanker barge ETHEL H (collectively, "Hygrade"). Claimant James Davis ("Davis") opposes the limitation and has asserted a claim arising from personal injuries he allegedly sustained during an accident while working aboard the ETHEL H on July 1, 1997.
The Court conducted a bench trial to resolve issues of liability and limitation and now sets forth its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court finds for Davis on the issue of liability and awards him $109,575.00 in damages.
FINDINGS OF FACT
While the Court has reviewed and considered all of the live testimony and designated deposition testimony offered in connection with the trial in this matter, the court addresses only those portions of testimony relevant to its legal conclusions.
Davis, a resident of Jackson, Mississippi, has worked on various types of boats for almost his entire life. After graduating from high school in 1976, Davis served as a deckhand with Booth Towing. In 1981, he obtained a tankerman's license. Between 1981 and 1997, Davis worked for Houston Towing, and as a tankerman for Marine Transportation, Bouchard Transportation and Poling Brothers Transportation.
Davis commenced employment with SRS as a tankerman in 1994. His first assignment was aboard the ST90, an oil barge, where he served as a barge mate trainee. Soon afterward, he advanced to the barge mate position and began working on the HYGRADE 22, where he worked for about a year. Shortly thereafter, Davis was promoted to barge captain and obtained his first assignment on the ETHEL H, a barge certified by the Coast Guard to transport petroleum product that required the services of a tankerman.
Davis's responsibilities as barge captain on the ETHEL H included, but were not limited to, tying the ETHEL H to a dock or facility in order to load petroleum product; hooking up cargo hoses; setting the tanks by turning valves to regulate the flow of the petroleum into and out of the tanks; loading petroleum product onto the ETHEL H; checking mooring lines; transporting the petroleum with the assistance of a tug to another dock or facility for discharge; discharging petroleum product; closing the tanks by shutting corresponding valves upon completion of the discharge; and performing maintenance, cleaning and paperwork on the barge.
Bill James ("James") was the barge mate who was working with Davis aboard the ETHEL H on July 1, 1997. A barge, like the ETHEL H, usually has two employees: the barge captain and the barge mate. Davis and James had similar duties, but Davis, as the captain, dealt with the central office more, performed more administrative work and generally had more responsibility.
Davis and James divided their work day into two 12 hour shifts, with Davis working from midnight to noon. Their normal stint aboard the ETHEL H was for 21 days during which they lived, ate and remained on the barge. Each assignment was typically followed by 21 days off from work. By the time of the July 1, 1997 accident, Davis had been the ETHEL H's captain for about a year and a half, and James had been his mate for at least five months.
On June 30, 1997, at 7:00 p.m., the ETHEL H, headed to be loaded, departing Court Street's Pier 8, located in Brooklyn, New York, towed by the ATLANTIC STAR. The ETHEL H arrived at ITB GROTON in New Jersey at 7:20 p.m. James was on duty when the ETHEL H arrived at ITB GROTON. Hose number one was placed on the ETHEL H at 9:00 p.m.; hose number two was placed on the vessel at 9:40 p.m. James opened the port loading valve, and, according to his testimony, claimed that he followed his usual procedure and turned the valve back a quarter to a half a turn to prevent the valve from becoming stuck. James then began loading petroleum product at 9:24 p.m. and did not touch the port loading valve again until the following morning because he completed his shift at midnight while the barge was still loading.
The ETHEL H continued that loading until it finished at 3:50 a.m. during Davis's tour of duty. While Davis shut off the first hose at 3:50 a.m. and shut the second hose at 4:18 a.m., he did not close the port loading valve. The ETHEL H departed ITB GROTON at 5:35 a.m. on July 1, 1997 and arrived at Hess 1st RTC in Perth Amboy, New Jersey at 9:20 a.m., where it was forced to stand by and wait to discharge.
At about 11:00 a.m. on that day, while Davis was otherwise occupied in the galley during his shift, James noticed that the port loading valve had remained open and attempted to close it. The valve was "snugged up", and James tried unsuccessfully to use a valve wrench to free it. Trial Tr. (hereafter "Tr.") at 142, 145. Thereafter, James advised Davis that the port loading valve was stuck, and Davis went to assist.
The valve-closing procedure requires — to indicate that the valve is in the closed position — that the employee-in-charge loop on to the valve wheel the end of a short rope tied to the valve stem. If the rope indicator is hanging from the stem, it is intended to signal that the valve is open.
Davis initially tried to close the valve with his hands. He then tried using the same valve wrench James had employed. Still unsuccessful, Davis next used an iron pry bar and put the bar through the openings between the spokes of the valve wheel to get more leverage, pulling at the end of the bar with no result after the first attempt. Following Davis's second pull on the pry bar, the valve spun open, and Davis fell backwards onto the top of a discharge line. Davis stepped back with his left leg to try to catch his balance and twisted his left knee. James observed that Davis did not have a hard fall.
Davis notified SRS the next morning about his injury; prepared an Employee Personal Injury Report and Seaman's Request for Medical Treatment/Evaluation; and was taken to a local medical clinic for evaluation and x-ray. Davis's employer recommended that Dr. Gene Barrett examine Davis. Davis saw Dr. Barrett on July 15, 1997 regarding the pain and swelling of his left knee.
On August 6, 1997, Dr. Barrett performed surgery on Davis's knee, reconstructing the torn anterior cruciate ligament and repairing a tear of the medial meniscus. Dr. Barrett examined Davis on February 23, 1998; determined that Davis was doing fine and that "[e]verything looked very solid" (Deposition Transcript of Dr. Gene Barrett, dated May 30, 2000 ("Barrett Tr.") at 12); and suggested that Davis return to work on March 1, 1998 because "[i]t's best to get them back to work right then." Id.
Dr. Barrett believed that Davis then could perform the physical activities as a barge captain and that there were no restrictions on Davis's physical activities as of March 1, 1998. Davis attempted to return to barge duty in early March 1998, working as a third man on the ETHEL H and then as a mate on the HYGRADE 22. Davis worked only from a Monday until the following Thursday on that tour and stopped because his left knee became swollen.
On March 10, 1998, Davis was moving from one barge to another and re-injured his left knee while stepping back to catch his balance as he descended the ladder of one vessel. On April 14, 1998, Dr. Barrett performed arthroscopic surgery on Davis's left knee in connection with this second injury. On May 8, 1998, Dr. Barrett "release[d] [Davis] for work as tolerable." Id. at 16. In August 1999, Davis began complaining to Dr. Barrett about pains in his lower back.
Davis again tried to return to work in January 1999, performing light duties, such as filing and other clerical work, in SRS's New York office. He spent approximately one twenty-one day hitch at this position; was paid full wages; and was not offered the opportunity to work in the office on a full time basis. Davis did not return to this position; was asked whether he could perform work outside of the company; and was terminated.
CONCLUSIONS OF LAW
Davis claims that Hygrade and SRS breached the warranty of seaworthiness and that they were negligent. The Court has considered both legal arguments and addresses each in turn.
A. NEGLIGENCE
Davis's first claim is for negligence pursuant to the Jones Act, 46 U.S.C. App. § 688. Under the Jones Act, Davis — as the seaman — has the burden of proving that the vessel owner's negligence proximately caused his injuries. See Chisholm v. Sabine Towing Transp. Co., Inc., 679 F.2d 60 (5th Cir. 1982). The mere fact that Davis was injured does not give rise to a Jones Act claim. See Clements v. Chotin Transport, Inc., 496 F. Supp. 163 (M.D. La. 1980).
To succeed, Davis must produce evidence indicating that the vessel owner or its employees were negligent. See Marvin v. Central Gulf Lines, Inc., 554 F.2d 1295 (5th Cir. 1977), reh'g denied, 559 F.2d 29, cert. denied, 434 U.S. 1035 (1978). A vessel owner' s negligence
is the failure to exercise the degree of care which an ordinary prudent person would use under the circumstances in discharging the duty that he owes to those who work on a vessel. The shipowner has a continuing duty to provide a reasonably safe place to work and to use ordinary care to maintain the vessel in a reasonably safe condition.Clements, 496 F. Supp. at 165.
In this case, Davis has argued that Hygrade was negligent because it (1) failed to provide him with adequate tools; (2) failed to train him how to deal with valves that became stuck; and (3) allowed an unsafe condition to exist aboard the ETHEL H which could have been avoided with a valve position indicator. While the parties have stipulated that Davis was acting in the course of his employment at the time of his injuries (see Joint Pre-Trial Order, dated May 30, 2000 ("JPTO"), at 4), the evidence does not reveal that Davis was without the proper tools on the ETHEL H or that he was unaware of the appropriate method for dealing with valves that became stuck. Moreover, the evidence indicates that the rope indicator which was utilized on the ETHEL H was appropriate, given the prevailing custom and practice in the New York barge industry at the time of the July 1, 1997 accident.
While the evidence does suggest that it is unlikely that the valve would have become as stuck as it was had James, as he asserted, turned it back a quarter to a half a turn when he opened the port loading valve in connection with the discharge operation the previous night, Davis's theory of negligence did not rest upon any wrongful conduct by James. Accordingly, the Court concludes that Davis has failed to prove that any negligent acts or omissions by Hygrade proximately caused his injuries.
Nonetheless, when an action for unseaworthiness is available, its concept of liability "swallows" any notion of liability based on maritime negligence. Lee v. Pacific Far East Line, Inc., 566 F.2d 65, 67 (9th Cir. 1977); Clevenger v. Star Fish Oyster Co., 325 F.2d 397, 402 (5th Cir. 1963). Thus, based on this Court's conclusions of law set forth below, Davis may still recover in connection with his unseaworthiness claim, notwithstanding the failure of his negligence claim.
B. UNSEAWORTHINESS
Davis's second claim is for breach of the warranty of seaworthiness grounded in the Court's admiralty jurisdiction. Liability based upon the concept of unseaworthiness is "wholly distinct" from liability based on negligence because unseaworthiness derives from a condition of the vessel — not limited by conceptions of negligence — and precisely how the condition came into being is irrelevant to the owner's liability for injuries resulting from it. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498 (1971); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-50 (1960). Here, Davis has claimed that the stuck port loading valve on the ETHEL H was not reasonably fit for its intended use and that if such a valve on such a vessel is jammed, tight or snug, then the vessel is rendered unseaworthy. In opposition, Hygrade has claimed that a valve that is merely stuck does not create an unseaworthy condition.
It is well-established that a vessel owner has a duty to furnish a vessel and appurtenances which are reasonably fit for their intended use. See Mitchell, 362 U.S. at 550. The owner's duty, however, is not a duty to provide a perfect or accident-free vessel, but one of reasonable fitness. See id. The duty includes maintaining a ship's equipment in proper operating condition. See Mahnich v. Southern S.S. Co., 321 U.S. 96, 104 (1944). The failure of a piece of equipment under proper and expected use is sufficient to establish unseaworthiness. See Usner, 400 U.S. at 499.
In order to prevail on his unseaworthiness claim, Davis must prove that (1) he was a member of a vessel in navigation at the time he suffered his injuries (see Williams v. United States, 712 F. Supp. 1132, 1135 (S.D.N.Y. 1989)); (2) the ETHEL H was unseaworthy, or that some part of it — such as the port loading valve — was not reasonably fit to be used for an intended purpose (see Mitchell, 362 U.S. at 550;Diebold v. Moore McCormack Bulk Transport Lines, Inc., 805 F.2d 55, 58 (2d Cir. 1986)) ; and (3) the unseaworthy condition caused or contributed to the injuries and damages sustained by him. See Dimas v. Lehigh Valley R.R. Co., 234 F.2d 151, 154 (2d Cir. 1956).
In this case, the determinative question is whether the stuck valve rendered the ETHEL H an unseaworthy vessel. The parties have stipulated that the ETHEL H was "in navigation" for purposes of the Jones Act at the time of Davis's accident on July 1, 1997; that Davis was a Jones Act seaman at the time of his injury; and that Davis was within the course and scope of his employment as captain when he was injured on July 1, 1997. See JPTO at 3-4.
The port loading valve on the ETHEL H was stuck on July 1, 1997. The valve was extremely hard to turn from the open position in part because Davis had failed to close the valve immediately after loading was completed during his tour earlier that morning. Moreover, James, contrary to his testimony, more likely must have failed to turn the valve back a quarter to a half a turn to prevent sticking, and thus became a causal agent in the valve becoming stuck in the fully open position. Such a stuck or jammed valve is not reasonably fit for its intended use and is sufficient to warrant recovery for Davis on his unseaworthiness claim where the condition has caused or contributed to his injuries. See Lee v. Pacific Far East Line, Inc., 566 F.2d 65, 67 (9th Cir. 1977); American President Lines, Ltd. v. Redfern, 345 F.2d 629 (9th Cir. 1965); The H.A. Scandrett, 87 F.2d 708 (2d Cir. 1937); see also Johannessen v. Gulf Trading Transp., Co., 633 F.2d 653, 657 (2d Cir. 1980) (citing Lee, 566 F.2d at 65) ("Verdicts based on unseaworthiness have been sustained in cases where injury resulted to a seaman from his own negligent efforts to crack a stuck valve."); Clements, 496 F. Supp. 163 (frozen valve renders vessel unseaworthy).
C. COMPARATIVE NEGLIGENCE
The principle of comparative negligence applies whether an action is brought based on unseaworthiness or negligence. See Jacob v. City of New York, 315 U.S. 752, 755 (1942); Jones v. Spentonbush-Red Star Co., 155 F.3d 587, 596 (2d Cir. 1998). The burden of establishing this affirmative defense is on the vessel owner. If a seaman's negligence has contributed to his injuries or created the condition which rendered the vessel unseaworthy, fault is allocated on a comparative basis, and any recovery should be reduced proportionately. See Usner, 400 U.S. at 498. A seaman's negligence does not defeat the right to recover damages unless his negligence is the sole cause of his injuries. See Williams, 712 F. Supp. at 1135-36. Here, the Court finds Hygrade has established that Davis substantially contributed to creating the condition which rendered the vessel unseaworthy by failing to close the port loading valve during his tour of duty and that his injuries were in large part caused by his own negligent actions and omissions.
First, Davis was on duty — during the early morning hours of July 1, 1997 — at the precise time when the port loading valve should have been closed. Stanley Chelluck ("Chelluck"), Hygrade's general manager, testified that company policy required the port loading valve to be closed immediately after loading petroleum product and that such a policy prevents (1) pollution and cargo contamination; (2) product drain off; (3) the evaporation and crystallization of the petroleum product; and (4) the expansion of the metals, especially in the July heat which very likely could cause an open valve to stick. See Tr. at 282, 284-85, 301-02. The Court concludes that the ETHEL H had completed loading petroleum approximately seven hours before Davis's accident; that Davis improperly failed to close the port loading valve upon the completion of the discharge; and that Davis failed to inspect properly that valve during his shift, which included the mostly daylight hours from approximately 4:00 a.m. — when the discharge was completed — to 11:00 a.m., when James noticed the open valve.
Second, Davis selected the tools and force to apply to the port loading valve. While William Serba, an SRS employee, testified that he was unsure what company policy applied with respect to what personnel were required to do when encountering a jammed valve (see Deposition Transcript of William Serba, dated July 10, 2000, at 33) and Chelluck testified that there was no specific policy or procedure for using tools to free a valve (see Tr. at 283, 286-87), the facts remain clear that Davis elected to use his hands and then decided to use a valve wrench and a pry bar. Davis also determined the amount of force, the duration of the force, and the direction of the force applied to the port loading valve. Simply put, Davis was in the best position to assess his ability to free the jammed port loading valve.
Third, Davis had time to evaluate the difficulty of freeing the valve and could have requested assistance from the central office after an initial unsuccessful attempt or two. Indeed, the "size and tightness of the valve and its refusal to yield" to Davis's initial efforts were "sure signs" that Davis should have sought assistance to close the port loading valve. Clements, 496 F. Supp. at 167. Moreover, Davis — an experienced seaman — was familiar with valves and knew how to operate valves in a safe manner, having previously opened and closed many valves over the approximately twenty years he had spent working on vessels like the ETHEL H. Finally, Davis was under a duty that required him to use reasonable care under the circumstances based on his experience and training.
Based on the foregoing, the Court concludes that Davis's own negligence contributed to fifty percent (50%) of the accident and that any damages award, therefore, should be reduced by fifty percent (50%).
D. MITIGATION OF DAMAGES
Davis, as the Claimant, is obligated to mitigate damages where possible by finding other employment. See Williams, 712 F. Supp. at 1136-39. The inquiry for this Court at this point becomes what Davis could have earned had he made a reasonable and good faith effort to mitigate his damages.See Saleeby v. Kingsway Tankers, Inc., 531 F. Supp. 879, 891 (S.D.N.Y. 1981).
Davis is not incapacitated from earning a living doing other things, and he is not entitled to recover for the rest of his life what he would have earned at sea. See Williams, 712 F. Supp. at 1139. A worker who previously engaged in heavy labor may reasonably be expected to earn a living by switching to lighter work. Id. at 1139. Simply put, Davis must mitigate his damages by finding other employment.
The Court concludes that Davis acted unreasonably and failed to mitigate damages in a proper manner. Other than working as a telemarketer selling long distance telephone service beginning in February 2000 and earning approximately $300.00 through July 2000 (see Tr. at 59), Davis made no other effort to find another job or work in any other position after the July 1, 1997 accident. Although Davis apparently considered different positions, such as a locksmith, dispatcher and casino dealer, and discussed certain jobs with others, he never tried working in any other capacity. In addition, Davis never attempted to work as a truck driver after the July 1, 1997 accident, even though he owned a truck; had the relevant training and a commercial driver's license; and had driven a truck before working at SRS. See Tr. at 87, 107.
The law requires that Davis, even if he remains unfit to work as a barge captain, mitigate his damages by diligently seeking alternative work. The evidence here clearly indicates that Davis failed to do so.
E. ADDITIONAL FACTORS
The Court has considered certain other factors in connection with reaching an appropriate award of damages. As a preliminary matter, Davis re-injured his left knee in early March 1998. Second, Davis had an old right knee injury which required surgery in 1981 and presented certain problems of its own which affected Davis's left knee. See Tr. at 82, 322, 325. Davis aggravated this condition when he twisted his right knee in July 1999 while walking down a "little boat ramp." Tr. at 81. It is difficult to determine from the evidence presented which of Davis's three accidents in 1997, 1998 and 1999 actually caused the left knee pain he complained of at trial, a factor which the Court has considered and which creates difficulty in determining the extent of any damages Davis is entitled to receive.
With regard to Davis's back condition, the Court finds that the issue presents a typical case in which the testimony of medical experts clashes sharply. The Court is not persuaded that Davis has sufficiently sustained his claim for recovery for back injuries. Dr. Edward Toriello ("Toriello"), an orthopedic surgeon, testified for SRS. He examined Davis at SRS's request on April 17, 2000 and found that Davis presented "evidence of a resolved low back strain and evidence of resolved left knee reconstructive surgery which involved the anterior cruciate ligament." Tr. at 233; Claimant's Ex. 16-H. Dr. Toriello also concluded that Davis's bulging disk was related to his weight (340 pounds); that Davis did not need any further medical treatment; and that Davis could perform the duties of a captain. See Tr. at 233-34, 237, 272.
Concerning his back, Davis testified that, although he sustained a back injury during the July 1, 1997 accident and started to suffer from pain in his lower back at that time, he did not see a doctor for his back until March 21, 2000 after his lawyer recommended that he see Dr. John Frenz. See Tr. at 56, 86. While Davis testified that he told Dr. Barrett about his back pain and that Dr. Barrett offered no treatment, Dr. Barrett testified that he did not know about Davis's lumbar spine condition and that he did not recall Davis talking about it. See Barrett Tr. at 5. He also testified that he never treated Davis's back condition (see id. at 23); that Davis did not list any back pain in the form Davis completed on July 15, 1997 (see id. at 27; Claimant's Ex. A); and that Davis did not complain of any back pain until August 25, 1999. See id. at 38.
Dr. Frenz testified at his deposition, among other things, that he examined and treated Davis's back condition (see Deposition Transcript of Dr. John Frenz, dated May 31, 2000, at 3); that he believed Davis's low back strain and lumbar facet arthropathy were related to the July 1, 1997 accident (see id. at 7); and that he believed that Davis would require surgery for his back condition. See id. at 20.
By letter dated June 29, 2000, Dr. Frenz wrote to Davis's counsel indicating, among other things, that Davis "wants to proceed in the near future with myelographic studies . . . ." Claimant's Ex. 21. This assertion contradicts Davis's own trial testimony. The Court finds that this letter — written less than two weeks before the trial in this matter — and the fact that Davis waited almost three years to assert back pains and have this condition treated, negate Davis's claim for damages for back injuries.
F. DAMAGES
Davis has sought an award of approximately $924,798.00 (see Claimant's Trial Memorandum ("Claimant's Memo") at 9), although Davis never articulated at trial any figure or amount of total damages he was seeking. The Court finds this amount to be excessive and considers only each category of damages for which recovery has been sought in Claimant's Memo.
First, Davis has requested recovery for (1) unpaid medical expenses in the amount of $2,430.00; (2) unpaid maintenance and cure in the amount of $2,400.00; and (3) future medicals in the amount of $40,000.00. See id. at 9; Claimant's Ex. 19. It is well-established that a shipowner has an obligation — regardless of fault — to provide medical care to a seaman who is injured while working. See Calo v. Ocean Ships, Inc., 57 F.3d 159, 162 (2d Cir. 1995). This right continues until the seaman is fully recovered or "`until he [is] so far cured as possible.'" Id. (quoting Farrell v. United States, 336 U.S. 511, 518 (1949)).
Davis did not introduce any testimony or documentation supporting a claim for any amount of unpaid medical expenses or of unpaid maintenance and cure. To the contrary, Davis testified that he received $15.00 a day in maintenance (see Tr. at 11) and that Hygrade "has satisfied all obligations regarding claimant's knee injuries." Claimant's Memo at 7; Tr. at 7. Accordingly, and based on the trial record, the Court finds that Davis has not proven that he is entitled to any award for unpaid medical expenses or unpaid maintenance and cure.
Davis has argued that Hygrade refused to provide any medical treatment for his back. See Claimant's Memo at 5, 7. In that regard, Davis has advanced "an estimate of $40,000 for past and future medicals pertaining to claimant's back condition." Id. The Court denies this request because the amount is related to a back condition which the Court has ruled the evidence does not sufficiently support as related to the July 1, 1997 accident. Moreover, the $40,000.00 figure appears to be the charge for a myelogram — a possible future back surgery — which on the record before the Court Davis has not asserted that he will actually undergo. Accordingly, such an injury is unsubstantiated, and in any event, its cost is too speculative for recovery. See Calo, 57 F.3d at 163.
Second, Davis has sought $27,183.00 for the loss of household services. See Claimant's Memo at 9. While Davis has noted that "the present value for loss of household services ranges from $20,190 to $27,183" (id. at 7) and his expert's report indicated that "the level of services Mr. Davis provides around the home has decreased by 2 hours per week", (Report of Andrew Verzilli, dated March 31, 2000 ("Verzilli Report"), at 3), Davis failed, however, even to address this issue at trial or to articulate, among other things, what services were in fact lost; how any services were lost; and when any services were lost. Accordingly, the Court concludes that Davis has not proven that he is entitled to recover for lost household services and denies this requested relief.
Third, Davis seeks an award for past and future pain and suffering in the amount of $350,000.00. and — but for suggesting that the Second Circuit decision in Calo, 57 F.3d 159, "is closely analogous to the facts at bar" — does not argue how that amount was reached or why it would be an appropriate award here. See Claimant's Memo at 9. In response, Hygrade acknowledges that "[a] reasonable award for past pain and suffering would be less than $100,000" and that Davis "is entitled to no future pain and suffering." JPTO at 2.
The Court notes that an award for pain and suffering "will be reduced by whatever [amount] . . . reflects compensation for [Davis's] psychological trauma or his feelings of inadequacy resulting from his mistaken belief that he is unemployable." Rapisardi v. United Fruit Co., 441 F.2d 1308, 1313 (2d Cir. 1971). Here, Davis was under family stress and tension at home before the July 1, 1997 accident (see Tr. at 114; Tr. at 74, 79) and had a history of depression, anxiety and related problems. See id. at 75, 117. Where "a good deal of [Davis's] trouble stemmed from psychological sources and not directly from any physical injury" (Ryan v. United States Lines Co., 303 F.2d 430, 432 (2d Cir. 1962) a claimant's recovery may properly be reduced. Based on the foregoing, the Court finds that an appropriate recovery for past and future pain and suffering related to the July 1, 1997 accident would be in the amount of $100,000.00. Awards of this magnitude for pain and suffering involving comparable circumstances have been sustained as appropriate in this Circuit. See Calo, 57 F.3d 159.
Fourth, Davis has requested an award of $21,500.00 for past lost wages. See Claimant's Memo at 7. Davis earned approximately $35,000.00 per year with SRS (see Tr. at 58) and had additional benefits, including, among other things, a 401k plan, dental coverage and medical insurance. While Davis testified that he received wages through February 2000 (see Tr. at 83), he has claimed that "[h]is wages were reduced by ten percent in 1999 and terminated on February 1, 2000 when his left knee reached maximum medical cure." Claimant's Memo at 7. Davis introduced no evidence at trial supporting this claim, and Hygrade has argued that it "paid [Davis's] wages and medical expenses." JPTO at 2. Based on the evidence presented, the Court finds that Davis is entitled to recover $19,150.00 for past lost wages ($1,000.00 for 1997; $7,000.00 for 1998; $3,500.00 for 1999; and $2,900.00 for the one month he worked in 2000 prior to his termination, plus a factor of thirty-three percent (33%) of the wages amounting to an additional $4,750.00 to account for Davis's various health and pension fringe benefits).
The court notes that Davis requested only $21,000.00 in "past lost wages" in another part of his submission. Claimant's Memo at 9.
Davis's 1997 W-2 reflects $34,966.61 earned in wages. His 1998 W-2 indicates $34,120.08 earned in wages; and his 1999 W-2 reflects $28,181.11 in wages. See claimant's Ex. 10.
Fifth, Davis has sought recovery of $481,785.00 for future lost wages.See Claimant's Memo at 6-7, 9. Such an amount reflects the highest possible range under the analysis conducted by Davis's economic expert.See id. at 6-7. That analysis considered only three options: that Davis would be able to find employment at the prevailing minimum wage of $5.50 per hour; at $6.50 per hour; and at $7.50 per hour. While Davis may be entitled to recover substantiated past wages lost as a result of the July 1, 1997 accident, recovery for the loss of future wages is never certain and often purely speculative. See Calcagni v. Hudson Waterways Corp., 603 F.2d 1049 (2d Cir. 1979). In fact, when future wages are so speculative as to be unsupported by the testimony at trial, an award may be reduced or stricken. See Alexander v. Nash-Kelvinator Corp., 271 F.2d 524 (2d Cir. 1959).
The Court has considered how much Davis "is capable of earning, given his physical condition, age, education, employment history, and rehabilitative potential," discounting that amount "by the risk that appropriate work will be unavailable." Williams, 712 F. Supp. at 1139. The Court concludes that Davis is able to work; that Davis is relatively young and experienced; that Davis can perform at least sedentary work; that given the enhanced administrative responsibilities and experience he possessed as a barge captain, Davis has the capability and potential to perform other gainful employment that can produce income exceeding the low end of the scale Davis suggests as ranging only from the prevailing minimum wage to $7.50 per hour; that Davis has acted unreasonably in not seeking alternative employment; and that it is unlikely Davis would have remained a barge captain and earned the corresponding wages until the age of sixty-five if he had not been injured on July 1, 1997. Accordingly, taking account of all of these considerations, including the reduction in availability of some employment opportunities for Davis by reason of his injury, the Court concludes that Davis suffered damages of $100,000.00 in future lost wages.
The Court notes that the 1997-1999 Three Year Average Median Income of Households by State indicates that a median of $39,657.00 for the United States and $30,628.00 for Mississippi — where Davis resides. See U.S. census Bureau, Current Population Survey, March 1998, 1999 and 2000.
This figure derives from reducing the amount of the lowest of the three assumptions of discounted wages Davis suggests he would have earned had he remained a barge captain until age 65 (approximately $644,000.00) by an amount of annual wages Davis could earn until age 65 that is higher than the $7.50 per hour he assumes as the maximum he could earn but lower than the average median income for households in Mississippi. See Verzilli Report. For this analysis, the Court has assumed a figure of approximately $24,000.00 per year for approximately 22.6 years. See id.
In summary, the amount of damages the Court has found Davis reasonably suffered on account of the July 1, 1997 accident total $219,150.00, representing (1) pain and suffering — $100,000.00; (2) past lost wages — $19,150.00; and (3) future lost wages — $100,000.00. Reducing the total damages by fifty percent corresponding to the degree of Davis's fault the Court has determined to be his portion of responsibility for the injury, Davis is entitled to recover $109,575.00 in damages.
G. LIMITATION
As noted previously, Hygrade commenced this action for exoneration from or limitation of liability and sought to limit any liability to the value of the vessel and its pending freight which the parties stipulated to be $792,000.00. See Tr. at 13. While the Court notes that Hygrade did not present any evidence at trial in support of exoneration from or limitation of liability, the Court declines to address this issue given its conclusion as to the amount of damages which are due Davis.
CONCLUSION AND ORDER
Based on the foregoing, it is hereby
ORDERED that the Court's Order in this matter dated January 31, 2001 is amended as set forth herein; and it is further
ORDERED that the Clerk shall enter judgment in favor of Claimant James Davis in the amount of One Hundred Nine Thousand Five Hundred Seventy Five Dollars ($109,575.00).
The Clerk of Court is directed to close this case.
SO ORDERED.