The opinion of the court was delivered by: Foreman, Chief Judge:
This civil action involves several claims for damages by Aaron
D. Gaddis for leg injuries suffered while plaintiff was working
on the M/V ED RENSHAW for Orgulf Transport Company. Plaintiff's
complaint asserts that Mr. Gaddis was injured because of the
unseaworthiness of defendant's vessel under general maritime
law as well as defendant's negligence under the Jones Act,
46 U.S.C. § 688. The plaintiff claimed at trial that he suffered
physical and vocational disability, as well as pain and
suffering, for approximately one year following his injury on
April 28, 1985. Plaintiff's complaint also alleged that
defendant wrongfully discharged plaintiff in retaliation for
plaintiff's intention of filing a claim for the injuries
resulting from the April 28, 1985 accident. This action was
tried before the Court. After considering the testimony,
exhibits, stipulations and arguments of counsel, the Court
makes the following Findings of Fact and Conclusions of Law:
1. On April 28, 1985, the plaintiff was employed by the
defendant as a seaman and deckhand aboard the M/V ED RENSHAW, a
tugboat owned and operated by the defendant, Orgulf Transport
Company. On April 28, 1985, the M/V ED RENSHAW was located on
the Mississippi River, a navigable stream, at Moore's Landing,
2. Plaintiff was a member of the Seafarers International Union
of North America, Atlantic, Gulf, Lakes and Inland Waters
District, AFL-CIO ("SIU") while he was employed by Orgulf
Transport Company. Plaintiff had been a SIU member for
approximately five years preceding July 8, 1985.
3. On or about April 23, 1985, the plaintiff boarded the M/V ED
RENSHAW on the upper Mississippi River to work for the
defendant as a deckhand.
4. After plaintiff boarded the tugboat ED RENSHAW, it proceeded
down the Mississippi with a compliment of barges to Moore's
Landing. The barge tow was dropped off and the crew of the ED
RENSHAW prepared to wire up another barge tow for a trip up
river to Minneapolis, Minnesota.
5. On April 28, 1985, plaintiff was assigned to the "forward
watch." Plaintiff stood watch from 6:00 p.m. to 12:00 a.m. on
the day of his injury.
6. On April 28, 1985, at approximately 9:45 p.m., plaintiff was
assigned to operate the capstan line in order to bring a barge
tow alongside the M/V ED RENSHAW. The capstan was located in
the bow of the boat, approximately five feet in front of the
bulkhead. In order to properly operate the capstan, a deckhand
would have to stand immediately in front of the bulkhead, where
the capstan controls were located. In preparation for running
the capstan, the plaintiff laid out a line 200 feet in length
and 2-1/2; inches in diameter from the capstan directly out
over the port side of the tugboat. One end of the line ran
across an intervening empty barge and was secured to a full
barge; the plaintiff coiled the other end around the capstan. A
crew hand properly operating the capstan controls would have
stood between coils of new line approximately five feet high
and four feet wide. In effect, these stacks of line shielded
someone standing at the capstan controls.
7. Defendant's Deckhand's Manual required crew members to stand
clear of the capstan when a strain was on the capstan line. A
capstan operator can relieve excessive strain on a capstan line
by executing any of the following maneuvers: reversing the
capstan, manually feeding the capstan slack line, or shutting
the capstan switch off. All three of these operations can be
performed while remaining at the capstan switch against the
bulkhead. Plaintiff stood behind the capstan on the starboard
side, away from the controls and in the direct line of fire of
the capstan line.
8. Plaintiff proceeded to perform his ordered assignment of
drawing together the tow barges and the tugboat by operating
the capstan. At about 11:00 p.m., excessive strain developed on
the capstan line and it broke approximately seventy-five feet
away from the capstan. The broken line rapidly retrogressed
towards the capstan, striking plaintiff in the calves.
9. The force of the broken line knocked plaintiff onto a stack
of iron ratchets lying on the deck. The only significant injury
generating this lawsuit was to plaintiff's calves, which were
swollen, deeply bruised, and painful.
10. Immediately after the accident, several crew members who
witnessed the line break came to plaintiff's assistance. Sam
Wilson, the first mate, cut plaintiff's pant legs to determine
the seriousness of plaintiff's injury. Plaintiff was taken off
the boat and driven to Sikeston Hospital, where a doctor
X-rayed his legs and applied ice packs to reduce swelling.
Finding no serious injury requiring hospital admittance, the
doctor sent plaintiff home that same night.
11. Albert Mynes, the lead man and second mate on the M/V ED
RENSHAW, and Russell Jeffries, a deckhand who witnessed the
accident, examined the capstan rope that struck plaintiff and
found it to be in very good condition.
12. Plaintiff was treated by J. Wills Oglesby, M.D. Dr.
Oglesby's initial examination of plaintiff revealed that
plaintiff's right calf was abraded and that both calves were
bruised and very swollen. Although plaintiff was ordered not to
work, no serious complications arising from the injury were
evident. After several examinations, Dr. Oglesby observed that
plaintiff's condition was essentially normal. Therefore, on
June 14, 1985, Dr. Oglesby gave plaintiff a release letter
allowing him to return to work on June 19, 1985.
13. At some point before plaintiff's return to work, a
representative of Orgulf, Mr. Penny of Waterways Marina,
allegedly visited plaintiff, suggested his injuries were minor,
and requested that he seek treatment from another doctor.
Plaintiff objected and ambiguously stated he would "see an
14. On June 19, 1985, plaintiff returned to work for Orgulf,
but experienced pain in both legs. Plaintiff was unable to
perform his duties without pain, so he consulted Dr. Oglesby,
who advised plaintiff to leave the boat. Plaintiff stepped off
the boat at a lock near St. Louis. Dr. Oglesby examined
plaintiff's calves and found no irregularities other than
plaintiff's complaints of tenderness and apprehension.
15. On July 8, 1985, Orgulf terminated plaintiff based upon the
company's determination that plaintiff had performed poorly
during his thirty-day probationary period. Copies of
plaintiff's termination letter were sent to two SIU
representatives. Plaintiff spoke with the two SIU
representatives regarding his termination, but neglected to
pursue any grievance procedures.
16. Dr. Oglesby re-examined the plaintiff on August 2, 1985 and
on September 6, 1985. Plaintiff's condition steadily improved
and on September 6, 1985, Dr. Oglesby once again released
plaintiff to return to work.
17. At the date of trial, plaintiff claims to suffer present
disability and discomfort; however, plaintiff only seeks
damages for the year ...