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February 17, 1988


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, Cairo, Illinois.

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 attorney."

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 ...

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